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Exhibit 10(a)
RESTATED EMPLOYMENT AGREEMENT
Between
WENDY'S INTERNATIONAL, INC.
And
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This Agreement is made and entered into as of _______________, _______,
by and between WENDY'S INTERNATIONAL, INC., an Ohio corporation ("WENDY'S"), and
_________________ (the "EXECUTIVE"), who are the parties to this Agreement.
RECITALS
(1) WENDY'S is engaged, directly and through subsidiaries, in the
business of owning, operating and franchising fast food restaurants and carrying
on ancillary activities incident thereto.
(2) The EXECUTIVE possesses unique skills, knowledge and experience
relating to WENDY'S business.
(3) The EXECUTIVE is currently employed by WENDY'S directly or through
a subsidiary of WENDY'S, and desires to continue to be so employed.
(4) WENDY'S desires to be assured of the continued services of the
EXECUTIVE and to afford him the job security this Agreement provides without,
however, increasing the compensation he would otherwise obtain were it not for
the occurrence of events foreseen by this Agreement, and the EXECUTIVE desires
to be assured that, in the event of a material change in WENDY'S management,
occasioned by a substantial change in the control of WENDY'S, the terms,
conditions and environment of his employment will not be unreasonably affected.
(5) WENDY'S desires to be assured of the objectivity of the EXECUTIVE
in evaluating a potential offer the effect of which would be a change of control
of WENDY'S, and advising whether or not he believes a potential change of
control is in the best interests of WENDY'S and its shareholders. WENDY'S
further desires to be assured of the dedication of the EXECUTIVE to maximizing
the value to be received by the shareholders of WENDY'S in the circumstances of
negotiating or otherwise responding to a proposed change of control, and to be
assured of the continuity of services of the EXECUTIVE during such time as a
proposed change of control is under negotiation or otherwise pending.
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CONSIDERATION
In consideration of their mutual covenants expressed herein, the
parties, intending to be legally bound hereby, agree as follows:
Section 1. EXECUTIVE'S Rights to Continued Employment in the event of a
CHANGE IN CONTROL of WENDY'S.
For purposes of this Agreement a "CHANGE IN CONTROL" shall mean the
occurrence of:
(a) An acquisition (other than directly from WENDY'S) of any common
stock or other voting securities of WENDY'S entitled to vote generally for the
election of directors (the "Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of thirty percent (30%) or more of the then outstanding
shares of WENDY'S common stock or the combined voting power of WENDY'S then
outstanding Voting Securities; provided, however, in determining whether a
CHANGE IN CONTROL has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a CHANGE IN CONTROL. A "Non-Control Acquisition"
shall mean an acquisition by (i) an employee benefit plan (or a trust forming a
part thereof) maintained by (A) WENDY'S or (B) any corporation or other Person
of which a majority of its voting power or its voting equity securities or
equity interest is owned, directly or indirectly, by WENDY'S (for purposes of
this definition, a "Subsidiary") (ii) WENDY'S or its Subsidiaries, or (iii) any
Person in connection with a "Non-Control Transaction" (as hereinafter defined);
(b) The individuals who, as of ____________, ______, are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at least
seventy percent (70%) of the members of the Board; provided, however, that if
the election, or nomination for election by WENDY'S common stockholders, of any
new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Plan, be considered as a
member of the Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board (a "Proxy Contest") including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest; or
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(c) The consummation of:
(i) A merger, consolidation or reorganization with or into
WENDY'S or in which securities of WENDY'S are issued, unless such
merger, consolidation or reorganization is a "Non-Control Transaction."
A "Non-Control Transaction" shall mean a merger, consolidation or
reorganization with or into WENDY'S or in which securities of WENDY'S
are issued where:
(A) the stockholders of WENDY'S, immediately before
such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least seventy percent (70%) of the combined
voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation or
reorganization (the "Surviving WENDY'S") in substantially the
same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds of the members of the board of
directors of the Surviving WENDY'S, or a corporation
beneficially directly or indirectly owning a majority of the
Voting Securities of the Surviving WENDY'S, and
(C) no Person other than (i) WENDY'S, (ii) any
Subsidiary, (iii) any employee benefit plan (or any trust
forming a part thereof) that, immediately prior to such
merger, consolidation or reorganization, was maintained by
WENDY'S or any Subsidiary, or (iv) any Person who, immediately
prior to such merger, consolidation or reorganization had
Beneficial Ownership of thirty percent (30%) or more of the
then outstanding Voting Securities or common stock of WENDY'S,
has Beneficial Ownership of thirty percent (30%) or more of
the combined voting power of the Surviving WENDY'S then
outstanding voting securities or its common stock;
(ii) A complete liquidation or dissolution of WENDY'S; or
(iii) The sale or other disposition of all or substantially
all of the assets of WENDY'S to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a CHANGE IN CONTROL shall not be deemed
to occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding common stock
or Voting Securities as a result of the acquisition of common stock or Voting
Securities by WENDY'S which, by reducing the number of shares of common stock or
Voting Securities then outstanding, increases the proportional number of shares
Beneficially
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Owned by the Subject Persons, provided that if a CHANGE IN CONTROL would occur
(but for the operation of this sentence) as a result of the acquisition of
common stock or Voting Securities by WENDY'S, and after such share acquisition
by WENDY'S, the Subject Person becomes the Beneficial Owner of any additional
common stock or Voting Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by the Subject Person, then a
CHANGE IN CONTROL shall occur.
If the EXECUTIVE'S employment is terminated by WENDY'S without CAUSE
prior to the date of a CHANGE IN CONTROL but the EXECUTIVE reasonably
demonstrates that the termination (A) was at the request of a third party who
has indicated an intention or taken steps reasonably calculated to effect a
CHANGE IN CONTROL or (B) otherwise arose in connection with, or in anticipation
of, a CHANGE IN CONTROL which has been threatened or proposed, such termination
shall be deemed to have occurred after a CHANGE IN CONTROL for purposes of this
Agreement provided a CHANGE IN CONTROL shall actually have occurred.
1.1 From and after the date of occurrence of a CHANGE IN CONTROL,
WENDY'S shall cause the EXECUTIVE to be employed, and the EXECUTIVE
shall accept employment, with the duties, nature and place of such
employment as described in Section 2 of this Agreement. The term of
such employment, referred to hereinafter as the "EMPLOYMENT TERM,"
shall commence on the date when the CHANGE IN CONTROL shall have
occurred and shall end on the earlier of:
(a) the fifth anniversary of:
(i) the date when the occurrence of an event described in
subparagraph (a) of Section 1 hereof shall be disclosed in a
Schedule 13D or other such similar or successor form
promulgated by the Securities and Exchange Commission, filed
with the Securities and Exchange Commission of Washington, D.
C., and the duplicate of which is actually received by
WENDY'S, or
(ii) the date on which a transaction described in subparagraph
(c) of Section 1 of this Agreement (other than a Non-Control
Transaction) shall be consummated, or
(iii) the first date on which at least thirty percent (30%) of
the members of the Board of Directors of WENDY'S are not
INCUMBENT DIRECTORS; or
(b) the date when the EMPLOYMENT TERM shall be terminated by WENDY'S
for CAUSE or by the EXECUTIVE without GOOD REASON (as such terms are
defined in Section 4 of this Agreement); or
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(c) the death of the EXECUTIVE.
Section 2. Duties, Nature and Place of Employment. During the
EMPLOYMENT TERM, the EXECUTIVE shall provide WENDY'S with such executive,
financial, administrative, and consulting services in managing and directing
WENDY'S business as may be required by the EXECUTIVE'S job description, as
attached hereto, or as amended by the agreement of the parties hereafter, or
reasonably requested and directed from time to time by action of WENDY'S Board
of Directors. The EXECUTIVE shall at all times faithfully, industriously and to
the best of his ability and talent perform all of the duties that may be
required or requested of him pursuant to the express terms and conditions of
this Agreement. Such duties shall be performed in Franklin County, Ohio and, on
a temporary basis, at such other place or places as the interests, needs,
business and opportunities of WENDY'S and of its subsidiaries shall reasonably
require.
Section 3. Remuneration during the EMPLOYMENT TERM. During the
EMPLOYMENT TERM, the EXECUTIVE shall receive from WENDY'S, as a minimum, the
salary, benefits and perquisites being paid to or afforded him immediately prior
to the date of occurrence of the CHANGE IN CONTROL provided that such salary
shall be increased as of the EXECUTIVE'S established annual salary review date
in each calendar year by a percentage at least as great as the annual increase
in the Consumer Price Index for All Urban Consumers for All Items most recently
published by the United States Bureau of Labor Statistics prior to such salary
review date. Such salary shall be paid to the EXECUTIVE on the same days of each
month as WENDY'S pays its other employees. The EXECUTIVE shall also receive an
annual bonus each year at least equal to the same annual bonus he received in
the twelve months preceding the CHANGE IN CONTROL; provided, however, that if
the bonus plan in which the EXECUTIVE participated during the twelve months
preceding the CHANGE IN CONTROL is not the same as the bonus plan in which the
EXECUTIVE is participating following the CHANGE IN CONTROL, with respect to the
twelve month period preceding the CHANGE IN CONTROL, the EXECUTIVE will be
deemed to have received a bonus equal to that received by the EXECUTIVE'S
predecessor in his position, (or, where there was not a predecessor in the same
position, equal to the average of the bonuses received by bonus plan
participants in comparable positions to the EXECUTIVE'S then current position).
The EXECUTIVE shall also be entitled to all rights afforded him under the terms
of any outstanding stock options granted him by WENDY'S and all incentive
compensation and deferred compensation programs maintained by WENDY'S in which
the EXECUTIVE was entitled to participate immediately preceding the CHANGE IN
CONTROL, or successors to such programs.
3.1 WENDY'S Board of Directors shall review annually the performance of
the EXECUTIVE, the results of operations and financial condition of
WENDY'S, together with prevailing economic conditions and other
factors, and consider and act upon:
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(a) whether to pay the EXECUTIVE an increase in salary above
the aforesaid minimum annual salary, and
(b) whether to pay the EXECUTIVE a bonus in excess of the
minimum bonus required aforesaid; provided, however, if
WENDY'S pays a bonus to any of its other full-time exempt
employees, WENDY'S shall pay the EXECUTIVE a bonus computed on
the same basis as the bonus paid to such other employees if
the bonus so computed is in excess of the minimum bonus
required to be paid the EXECUTIVE pursuant to this Section 3.
3.2 WENDY'S shall cause the EXECUTIVE, his spouse and dependent
children to be enrolled in and covered by group life, hospitalization,
major medical and disability income insurance coverages under insurance
plans and executive medical reimbursement plans not less favorable to
the EXECUTIVE than the plans of such description in effect immediately
prior to the date of occurrence of the CHANGE IN CONTROL.
3.3 WENDY'S shall cause the EXECUTIVE to be a participant in one or
more retirement income (pension) plans which afford participation and
benefits to the EXECUTIVE on a basis not less favorable to the
EXECUTIVE than the plans of such description in effect immediately
prior to the date of occurrence of the CHANGE IN CONTROL; provided,
however, that if WENDY'S extends to any executive officer of WENDY'S
(or of any of its subsidiaries) one or more retirement income (pension)
plans affording participation and benefits more favorable than those
required by the preceding sentence, then WENDY'S shall cause the
EXECUTIVE to be a participant in the latter plan(s).
3.4 WENDY'S shall cause reimbursement to be paid promptly to the
EXECUTIVE for all expenses reasonably incurred by him in connection
with performing his duties pursuant hereto.
3.5 In the event that the insurance and reimbursement plan benefits
required by paragraph 3.2, above, or the retirement income (pension)
plan benefits required by paragraph 3.3, above, are not actually
available to the EXECUTIVE under the terms of the plan(s) or applicable
law, then WENDY'S shall make available to the EXECUTIVE an equivalent
benefit, or an amount of cash consideration sufficient to fund or
purchase an equivalent benefit, computed as if he had received a full
year of service (for vesting and benefit purposes) for each of his
years of service with WENDY'S or any affiliate or subsidiary, including
any years for which he is entitled to payment under Section 3 during
the EMPLOYMENT TERM.
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Section 4. Termination of Employment of the EXECUTIVE during the
EMPLOYMENT TERM. The EXECUTIVE'S employment hereunder may be terminated under
the following circumstances:
4.1 Cause. WENDY'S may terminate the EXECUTIVE'S employment under this
Agreement for "CAUSE." A termination for CAUSE is a termination by
reason of the Board's good faith determination that the EXECUTIVE (a)
willfully and continually failed to substantially perform his duties
with WENDY'S (other than a failure resulting from the EXECUTIVE'S
incapacity due to physical or mental illness) after a written demand
for substantial performance is delivered to the EXECUTIVE by the Board
of Directors which specifically identifies the manner in which the
Board of Directors believes that the EXECUTIVE has not substantially
performed his duties and such failure substantially to perform
continues for at least fourteen (14) days, or (b) has willfully engaged
in conduct which is demonstrably and materially injurious to WENDY'S,
monetarily or otherwise, or (c) has otherwise materially breached this
Agreement (including, without limitation, a voluntary termination of
the EXECUTIVE'S employment by the EXECUTIVE during the EMPLOYMENT
TERM). No act, nor failure to act, on the EXECUTIVE'S part, shall be
considered "willful" unless he has acted, or failed to act, with an
absence of good faith and without a reasonable belief that his action
or failure to act was in the best interest of WENDY'S. Notwithstanding
the foregoing, the EXECUTIVE'S employment shall not be deemed to have
been terminated for CAUSE unless and until (1) there shall have been
delivered to the EXECUTIVE a copy of a written notice setting forth
that the EXECUTIVE was guilty of conduct set forth above in clause (a),
(b) or (c) of the first sentence of this Section 4.1 and specifying the
particulars thereof in detail, and (2) the EXECUTIVE shall have been
provided an opportunity to be heard by the Board of Directors of
WENDY'S (with the assistance of EXECUTIVE'S counsel).
4.2 (a) Good Reason. The EXECUTIVE may terminate his employment for
"GOOD REASON." For purposes of this Agreement, GOOD REASON shall mean
the occurrence after a CHANGE IN CONTROL of any of the events or
conditions described in Subsections (1) through (6) hereof without the
EXECUTIVE'S express written consent:
(1) a change in the EXECUTIVE'S status, title, position or
responsibilities (including reporting responsibilities) which,
in the EXECUTIVE'S reasonable judgment, does not represent a
promotion from his status, title, position or responsibilities
as in effect immediately prior thereto; the assignment to the
EXECUTIVE of any duties or responsibilities which, in the
EXECUTIVE'S reasonable judgment, are inconsistent with such
status, title, position or responsibilities; or any removal of
the EXECUTIVE from or failure to reappoint or reelect him to
any of such positions, except in connection with the
termination of his
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employment for DISABILITY, CAUSE, as a result of his death or
by the EXECUTIVE other than for GOOD REASON;
(2) a reduction by WENDY'S in the EXECUTIVE'S base salary as
in effect immediately prior to the CHANGE IN CONTROL or as the
same may be increased from time to time, or a failure to
increase EXECUTIVE'S annual base salary as of his established
annual salary review date in any calendar year by a percentage
at least as great as the annual increase in the Consumer Price
Index for All Urban Consumers and for All Items most recently
published by the United States Bureau of Labor Statistics
prior to such salary review date;
(3) WENDY'S requiring the EXECUTIVE to be based at any place
outside a 30-mile radius from the EXECUTIVE'S business office
location immediately prior to the CHANGE IN CONTROL, except
for reasonably required travel on WENDY'S business which is
not materially greater than such travel requirements prior to
the CHANGE IN CONTROL;
(4) the failure by WENDY'S to continue to provide the
EXECUTIVE with the compensation and benefits substantially
similar (in terms of benefit levels and/or reward
opportunities) to those provided for under this Agreement and
those provided to him under any of the employee benefit plans
in which the EXECUTIVE becomes a participant, or the taking of
any action by WENDY'S which would directly or indirectly
materially reduce any of such benefits or deprive the
EXECUTIVE of any material fringe benefit enjoyed by him at the
time of the CHANGE IN CONTROL;
(5) any material breach by WENDY'S of any provision of this
Agreement; and
(6) the failure of WENDY'S to notify the EXECUTIVE within the
30-day period specified in Section 17 hereof that WENDY'S has
obtained a satisfactory agreement from a successor or assign
of WENDY'S to assume and agree to perform this Agreement, as
contemplated in such Section 17.
(b) The EXECUTIVE'S right to terminate his employment pursuant to this
Section 4.2 shall not be affected by his incapacity due to physical or
mental illness.
4.3 Notice of Termination. Any purported termination by WENDY'S or by
the EXECUTIVE shall be communicated by written NOTICE OF TERMINATION to
the other. For purposes of this Agreement, a "NOTICE OF TERMINATION"
shall mean a notice which indicates the specific termination provision
in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of the
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EXECUTIVE'S employment under the provision so indicated. If the
EXECUTIVE'S employment is terminated by WENDY'S for any reason, NOTICE
OF TERMINATION must be given at least 30 days prior to the EXECUTIVE'S
TERMINATION DATE (as defined below). For purposes of this Agreement, no
such purported termination shall be effective without such NOTICE OF
TERMINATION.
4.4 Termination Date, Etc. "TERMINATION DATE" shall mean if the
EXECUTIVE'S employment is terminated for any reason other than due to
death, the date specified in the Notice of Termination.
Section 5. Compensation Upon Termination. Upon termination of the
EXECUTIVE'S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be
entitled to the following benefits:
5.1 If the EXECUTIVE'S employment shall be terminated by WENDY'S for
CAUSE or by the EXECUTIVE other than for GOOD REASON, WENDY'S shall pay
the EXECUTIVE his full base salary and accrued vacation pay through the
TERMINATION DATE, plus any benefits or awards which pursuant to the
terms of any compensation or benefit plan have been earned or become
payable, but which have not yet been paid to the EXECUTIVE and WENDY'S
shall have no further obligations to the EXECUTIVE under this
Agreement. The EXECUTIVE'S benefits thereafter shall be determined in
accordance with WENDY'S employee benefit plans and other applicable
programs and practices then in effect.
5.2 If the EXECUTIVE'S employment terminates by reason of the
EXECUTIVE'S death, WENDY'S shall pay the EXECUTIVE'S beneficiaries his
full base salary and accrued vacation pay through the TERMINATION DATE,
plus any benefits or awards which pursuant to the terms of any
compensation or benefit plan have been earned or become payable, but
which have not yet been paid to the EXECUTIVE and a pro rata portion of
any bonus or incentive award that the EXECUTIVE would have been
entitled to receive in respect of the calendar year in which the
EXECUTIVE'S TERMINATION DATE occurs had he continued in employment
until the end of such calendar year, payable at the same time that such
bonuses or awards are payable to other WENDY'S employees. In the case
of the EXECUTIVE'S death, the EXECUTIVE'S beneficiaries' benefits shall
be determined in accordance with WENDY'S employee benefit plans and
other applicable programs and practices then in effect.
5.3 If the EXECUTIVE'S employment by WENDY'S shall be terminated (i) by
WENDY'S other than for CAUSE or death, or (ii) by the EXECUTIVE for
GOOD REASON, then the EXECUTIVE shall be entitled to the benefits
provided below:
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(a) WENDY'S shall pay the EXECUTIVE his full base salary and accrued
vacation pay through the TERMINATION DATE, plus the maximum benefits or
awards which pursuant to the terms of any compensation or benefit plan
have been earned or become payable as if all objectives including the
completion of the award cycle thereunder had been met, but which have
not yet been paid to the EXECUTIVE, and a pro rata portion of any bonus
or incentive award that the EXECUTIVE would have been entitled to
receive in respect of the calendar year in which the EXECUTIVE'S
TERMINATION DATE occurs had he continued in employment until the end of
such calendar year, calculated (i) if the EXECUTIVE is participating in
either the Senior Executive Earnings Maximization Plan ("SEEMP") or the
Earnings Maximization Plan ("EMP"), with the bonus pool being
determined (A) as if the target level two (2) entry point had been
achieved by WENDY'S for such year, (B) if actual performance is
measurable against the targeted performance over a period of less than
one year, based on the actual Wendy's performance up to the EXECUTIVE'S
TERMINATION DATE (or if the TERMINATION DATE occurs in the year in
which a CHANGE IN CONTROL occurs, up to the date of the CHANGE IN
CONTROL, if later), or (C) at the level established in the preceding
year, whichever is greater and, in the case of the EMP, as if the
EXECUTIVE'S percentage interest in the plan's bonus pool had been equal
to his percentage interest in the pool in the preceding year (or if he
was not a participant in the bonus pool in the preceding year, the
EXECUTIVE will be deemed to have had a percentage interest equal to the
percentage interest of the EXECUTIVE'S predecessor in his position, or,
where there was not a predecessor in the same position, equal to the
average of the percentage interests of bonus plan participants in
comparable positions to the Executive's then current position) and/or
(ii) if the EXECUTIVE is not participating in either the SEEMP or the
EMP or participates in another bonus plan in addition to the SEEMP or
the EMP, as if all performance targets under the applicable plan had
been fully met at the highest level by WENDY'S and by the EXECUTIVE
and, if applicable, the EXECUTIVE'S percentage interest in any bonus
pool had been at least equal to his percentage interest in the
preceding year (or if he was not a participant in the plan in the
preceding year, the EXECUTIVE will be deemed to have had a percentage
interest equal to the percentage interest of the EXECUTIVE'S
predecessor in his position, or, where there was not a predecessor in
the same position, equal to the average of the percentage interests of
bonus plan participants in comparable positions to the Executive's then
current position); provided, however, that the bonus payment provided
for in this Section 5.3(a) shall be reduced (but not below zero) by the
amount, if any, payable to the EXECUTIVE in respect of the year in
which the EXECUTIVE'S TERMINATION DATE occurs under the provisions of
the SEEMP, EMP or other bonus or incentive plan, as applicable.
(b) as severance pay and in lieu of any further salary for periods
subsequent to the TERMINATION DATE, WENDY'S shall pay to the EXECUTIVE
in a single payment an amount in cash equal to three times the sum of
(A) the
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EXECUTIVE'S base salary at the rate in effect at the time Notice of
Termination is given and (B) one third of the sum of the annual bonuses
paid or payable to the EXECUTIVE in respect of the three calendar years
preceding the calendar year in which the EXECUTIVE'S TERMINATION DATE
occurs; provided, however, that if the EXECUTIVE had not been a
participant in each of those three calendar years in the annual bonus
plan in which he was participating as of his TERMINATION DATE, then
with respect to any calendar year during the relevant three-year period
for which the EXECUTIVE was not so participating, the EXECUTIVE will be
deemed to have received a bonus equal to that received by the
EXECUTIVE'S predecessor in his position, (or, where there was not a
predecessor in the same position, equal to the average of the bonuses
received by bonus plan participants in comparable positions to the
Executive's then current position).
(c) as additional severance, WENDY'S shall pay to the EXECUTIVE in a
single payment an amount equal to the excess of (i) the present value
of the retirement benefits attributable to employer contributions the
EXECUTIVE would have accrued under WENDY'S tax-qualified retirement
plan and supplemental plan if he had remained an employee for three
years following the TERMINATION DATE and had continued to earn his base
salary in effect at the TERMINATION DATE over (ii) the present value of
his vested accrued benefits under such plans attributable to employer
contributions as of the TERMINATION DATE. Present values shall be
determined using the assumptions stated in WENDY'S tax-qualified
retirement plan.
(d) for the three years following the TERMINATION DATE, WENDY'S shall
at its expense continue on behalf of the EXECUTIVE and his dependents
and beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits which were being provided to the EXECUTIVE at
the time NOTICE OF TERMINATION is given. The benefits provided in this
Section 5.3(d) shall be no less favorable to the EXECUTIVE, in terms of
amounts and deductibles and costs to him, than the coverage provided
the EXECUTIVE under the plans providing such benefits at the time
NOTICE OF TERMINATION is given (or, if the EXECUTIVE'S employment is
terminated after a CHANGE IN CONTROL, at the time of the CHANGE IN
CONTROL if more favorable to the EXECUTIVE). WENDY'S obligation
hereunder with respect to the foregoing benefits shall be limited to
the extent that the EXECUTIVE obtains any such benefits pursuant to a
subsequent employer's benefit plans, in which case WENDY'S may reduce
the coverage of any benefits it is required to provide the EXECUTIVE
hereunder as long as the aggregate coverage of the combined benefit
plans is no less favorable to the EXECUTIVE in terms of amounts and
deductibles and costs to him, than the coverage provided hereunder by
WENDY'S to the EXECUTIVE at the time the NOTICE OF TERMINATION is given
(or, if the EXECUTIVE'S employment is terminated after a CHANGE IN
CONTROL, at the time of the CHANGE IN CONTROL if more favorable to the
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EXECUTIVE). This paragraph (d) shall not be interpreted so as to limit
any benefits to which the EXECUTIVE or his dependents may be entitled
under any of WENDY'S employee benefit plans, programs or practices
following the EXECUTIVE'S termination of employment.
(e) WENDY'S shall offer to sell to the EXECUTIVE at book value the
automobile provided to the EXECUTIVE at the time of the EXECUTIVE'S
termination of employment.
(f) (1) Effect of Section 280G of the Internal Revenue Code. In the
event it shall be determined that any payment (other than the payment
provided for in this Section 5.3(f)) or distribution of any type to or
for the benefit of the EXECUTIVE, by WENDY'S, any affiliate of WENDY'S,
any Person who acquires ownership or effective control of WENDY'S or
ownership of a substantial portion of WENDY'S assets (within the
meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations thereunder) or any Affiliate
of such Person, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (the "Payments"),
is or will be subject to the excise tax imposed by Section 4999 of the
Code or any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest and penalties, are
collectively referred to as the "Excise Tax"), then the EXECUTIVE shall
be entitled to receive an additional payment (a "Reimbursement
Payment") in an amount such that after payment by the EXECUTIVE of all
taxes (including any interest or penalties imposed with respect to such
taxes), including any income tax, employment tax or Excise Tax, imposed
upon the Reimbursement Payment, the EXECUTIVE retains an amount of the
Reimbursement Payment equal to the Excise Tax imposed upon the
Payments.
(2) All mathematical determinations, and all determinations as
to whether any of the Payments are "parachute payments" (within the
meaning of Section 280G of the Code), that are required to be made
under this Section 5.3(f), including determinations as to whether a
Reimbursement Payment is required, the amount of such Reimbursement
Payment and amounts relevant to the last sentence of this Section
5.3(f)(2), shall be made by an independent accounting firm selected by
the EXECUTIVE from among the five (5) largest accounting firms in the
United States (the "Accounting Firm"), which shall provide its
determination (the "Determination"), together with detailed supporting
calculations regarding the amount of any Reimbursement Payment and any
other relevant matter, both to WENDY'S and the EXECUTIVE by no later
than ten (10) days following the Termination Date, if applicable, or
such earlier time as is requested by WENDY'S or the EXECUTIVE (if the
EXECUTIVE reasonably believes that any of the Payments may be subject
to the Excise Tax). If the Accounting Firm determines that no Excise
Tax is payable by the EXECUTIVE, it shall furnish the EXECUTIVE and
WENDY'S with an opinion reasonably
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acceptable to the EXECUTIVE and WENDY'S that no Excise Tax is payable
(including the reasons therefor) and that the EXECUTIVE has substantial
authority not to report any Excise Tax on his federal income tax
return. If a Reimbursement Payment is determined to be payable, it
shall be paid to the EXECUTIVE within twenty (20) days after the
Determination (and all accompanying calculations and other material
supporting the Determination) is delivered to WENDY'S by the Accounting
Firm. Any determination by the Accounting Firm shall be binding upon
WENDY'S and the EXECUTIVE, absent manifest error. As a result of
uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is
possible that Reimbursement Payments not made by WENDY'S should have
been made ("Underpayment"), or that Reimbursement Payments will have
been made by WENDY'S which should not have been made ("Overpayments").
In either such event, the Accounting Firm shall determine the amount of
the Underpayment or Overpayment that has occurred. In the case of an
Underpayment, the amount of such Underpayment (together with any
interest and penalties payable by the EXECUTIVE as a result of such
Underpayment) shall be promptly paid by WENDY'S to or for the benefit
of the EXECUTIVE. In the case of an Overpayment, the EXECUTIVE shall,
at the direction and expense of WENDY'S, take such steps as are
reasonably necessary (including the filing of returns and claims for
refund), follow reasonable instructions from, and procedures
established by, WENDY'S, and otherwise reasonably cooperate with
WENDY'S to correct such Overpayment, provided, however, that (i) the
EXECUTIVE shall not in any event be obligated to return to WENDY'S an
amount greater than the net after-tax portion of the Overpayment that
he has retained or has recovered as a refund from the applicable taxing
authorities and (ii) if a Reimbursement Payment is determined to be
payable, this provision shall be interpreted in a manner consistent
with an intent to make the EXECUTIVE whole, on an after-tax basis, from
the application of the Excise Tax, it being understood that the
correction of an Overpayment may result in the EXECUTIVE repaying to
WENDY'S an amount which is less than the Overpayment. The cost of all
such determinations made pursuant to this Section 5.3(f) shall be paid
by WENDY'S.
5.4 The amounts provided for in Sections 5.1, 5.2 and 5.3(a), (b) and
(c) shall be paid within five days after the EXECUTIVE'S TERMINATION
DATE.
5.5 The EXECUTIVE shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount
of any compensation or benefits provided to the EXECUTIVE in any
subsequent employment.
Section 6. Effect of a CHANGE IN CONTROL. Upon the occurrence of any
CHANGE IN CONTROL, (a) any options to purchase shares of common stock of
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WENDY'S and any stock appreciation rights granted by WENDY'S to the EXECUTIVE
which are not yet fully vested and exercisable shall become fully vested and
exercisable, and (b) any restrictions remaining at that time on any stock
awarded to the EXECUTIVE by WENDY'S shall lapse.
Section 7. Fees and Expenses. WENDY'S shall pay all reasonable legal
fees and related expenses (including the costs of experts, evidence and counsel)
incurred in good faith by the EXECUTIVE as they become due as a result of (a)
the termination of the EXECUTIVE'S employment by WENDY'S or by the EXECUTIVE for
GOOD REASON (including all such fees and expenses, if any, incurred in
contesting, defending or disputing the basis for any such termination of
employment), (b) the EXECUTIVE'S hearing before the Board of Directors of
WENDY'S as contemplated in Section 4.1 of this Agreement, or (c) the EXECUTIVE
seeking to obtain or enforce any right or benefit provided by this Agreement or
by any other plan or arrangement maintained by WENDY'S under which the EXECUTIVE
is or may be entitled to receive benefits.
Section 8. Benefits Protection Trust. WENDY'S shall establish a
BENEFITS PROTECTION TRUST for the benefit of the EXECUTIVE and other executives
with employment agreement with the independent bank as trustee. Such BENEFITS
PROTECTION TRUST shall be established pursuant to a separate TRUST AGREEMENT.
The terms and conditions of the BENEFITS PROTECTION TRUST shall be governed, in
all respects, by the TRUST AGREEMENT. Prior to a CHANGE IN CONTROL, WENDY'S
shall transfer to the BENEFITS PROTECTION TRUST assets at least equal to the sum
of (a) the present value of all benefits that would be payable to the EXECUTIVE
and all the other executives if they were all terminated by WENDY'S without
CAUSE immediately following a CHANGE IN CONTROL and (b) the estimated amount
needed to pay for any legal fees the EXECUTIVE and the other executives may
incur in enforcing their rights under their employment agreements. All payments
required under this Agreement on account of the EXECUTIVE'S termination of
employment by WENDY'S without CAUSE following a CHANGE IN CONTROL shall be paid
from the BENEFITS PROTECTION TRUST to the extent not otherwise paid by WENDY'S.
Section 9. Protection of Business. Notwithstanding anything to the
contrary in this Agreement:
9.1 At all times during the EMPLOYMENT TERM while the EXECUTIVE is
employed by WENDY'S, the EXECUTIVE will not participate as a partner,
joint venturer, officer, director, employee, or representative, or have
any direct financial interest in, any business or enterprise conducting
a quick service restaurant business in the United States, other than a
business or enterprise engaged in operating restaurants under a
franchise granted by WENDY'S or any of its subsidiaries; provided, that
the ownership by EXECUTIVE of securities of a public corporation shall
not be a violation of this subparagraph so long as (a) the EXECUTIVE
does not own, directly or indirectly, more than five percent (5%) of
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any class of the securities of such corporation, and (b) the value of
such securities does not exceed ten percent (10%) of the net worth of
the EXECUTIVE; and provided further that ownership by EXECUTIVE of
securities of WENDY'S or any successor to WENDY'S by merger or other
form of transaction contemplated by subparagraph (b) or (c) of Section
1 hereof shall not be a violation of this subparagraph.
9.2 The EXECUTIVE will not at any time (during or after the expiration
of the EMPLOYMENT TERM) divulge, disclose, reveal or communicate to any
person, firm, corporation, partnership, joint venture or other entity,
directly or indirectly, any trade secrets or other information which
the EXECUTIVE may have obtained during the course of his employment by
WENDY'S in respect of any matters affecting or relating to the fast
food restaurant business of WENDY'S or its subsidiaries, including,
without limitation, any of their plans, policies, business practices,
finances, recipes, methods of operation, franchises or other
information known to the EXECUTIVE to be considered by WENDY'S to be
confidential information.
9.3 The restrictions on competition and other restrictions imposed upon
the EXECUTIVE by this Section 9 may be enforced by WENDY'S by an action
for an injunction, it being agreed (in view of the general practical
impossibility of determining by computation or legal proof the exact
amount of damages, if any, resulting to WENDY'S from a violation by the
EXECUTIVE of the provisions of this Section 9) that there would be no
adequate remedy at law for any breach by the EXECUTIVE of any such
restriction.
Section 10. Notices and Payments. All payments required or permitted to
be made under the provisions of this Agreement, and all notices and other
communications required or permitted to be given or delivered under this
Agreement to WENDY'S or to the EXECUTIVE, which notices or communications must
be in writing, shall be deemed to have been given if delivered by hand, or
mailed by first class mail, addressed as follows:
10.1 if to WENDY'S, to:
Chief Executive Officer
WENDY'S INTERNATIONAL, INC.
0000 Xxxx Xxxxxx Xxxxxxxxx Xxxx
P. O. Xxx 000
Xxxxxx, Xxxx 00000
With a copy (except as to payments) to:
General Counsel
WENDY'S INTERNATIONAL, INC.
0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx
X. X. Xxx 000
Xxxxxx, Xxxx 00000
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10.2 if to EXECUTIVE, to:
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--------------------------
WENDY'S or the EXECUTIVE may, by notice given to the other from time to
time, designate a different address for making payments required to be made, and
for the giving of notices or other communications required or permitted to be
given, to the party designating such new address. Any payment, notice or other
communication required or permitted to be given in accordance with this
Agreement shall be deemed to have been given if and when placed in the U.S.
Mail, addressed and mailed as provided above.
Section 11. Payroll Taxes. Any payment required or permitted to be made
or given to the EXECUTIVE pursuant to this Agreement shall be subject to the
withholding and other requirements of applicable laws, and to the deduction
requirements of any benefit plan maintained by WENDY'S in which the EXECUTIVE is
a participant, and to all reporting, filing and other requirements in respect of
such payments, and WENDY'S shall promptly satisfy all such requirements.
Section 12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
Section 13. Duplicate Originals. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be a duplicate original,
but all of which, taken together, shall constitute a single instrument.
Section 14. Captions. The captions contained in this Agreement are
included only for convenience of reference and do not define, limit, explain or
modify this Agreement or its interpretation, construction or meaning.
Section 15. Severability. If any provision of this Agreement or the
application of any provision to any person or any circumstances shall be
determined to be invalid or unenforceable, then such determination shall not
affect any other provision of this Agreement or the application of said
provision to any other person or circumstance, all of which other provisions
shall remain in full force and effect. It is the intention of WENDY'S and the
EXECUTIVE that if any provision of this Agreement is susceptible of two or more
constructions, one of which would render the provision enforceable and other or
others of which would render the provision unenforceable, then the provision
shall have the meaning which renders it enforceable.
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Section 16. Number and Gender. When used in this Agreement, the number
and gender of each pronoun shall be construed to be such number and gender as
the context, circumstances or its antecedent may require.
Section 17. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns (including successive,
as well as immediate, successors and assigns) of WENDY'S; provided, however,
that the obligations of this Agreement may not be transferred by WENDY'S;
provided, however, that if WENDY'S transfers to any other person substantially
all of its business and assets by merger, consolidation, sale of assets or
otherwise, WENDY'S must transfer its obligations hereunder to such other person
and such other person must accept such transfer and assume the obligations of
WENDY'S imposed hereby. WENDY'S shall notify the EXECUTIVE in writing within the
thirty-day period following any transfer of business and assets that the
transferee has accepted the transfer and assumption of WENDY'S obligations under
this Agreement. This Agreement shall inure to the benefit of and be binding upon
the heirs and assigns (including successive, as well as immediate, assigns) of
the EXECUTIVE; provided, however, that the rights of the EXECUTIVE under this
Agreement may be assigned only to his personal representative or by will or
pursuant to applicable laws of descent and distribution.
Section 18. Prior Agreement. This Agreement amends and restates the
prior employment agreement between the EXECUTIVE and WENDY'S dated as of
________________, ______ (the "Prior Agreement"), and upon the execution of this
Agreement, the Prior Agreement shall be superceded and shall be of no further
force and effect.
Section 19. Arbitration. Any dispute arising under or in connection
with this Agreement shall be submitted to arbitration by the American
Arbitration Association in Columbus, Ohio, and the determination of the American
Arbitration Association shall be final and absolute. The arbitrator shall be
governed by the duly promulgated commercial arbitration rules of the American
Arbitration Association and the pertinent provisions of the laws of the State of
Ohio relating to arbitration. During the pendency of such arbitration
proceedings, the EXECUTIVE shall be entitled to the full benefits provided by
the Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed to be effective as of the date first above written.
WENDY'S:
Wendy's International, Inc.
By
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EXECUTIVE:
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an individual
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