Form of Nonqualified Stock Option Award Agreement under The Wendys Company 2020 Omnibus Award Plan
NONQUALIFIED STOCK OPTION AWARD AGREEMENT
UNDER THE WENDYS COMPANY
2020 OMNIBUS AWARD PLAN
_______________ Shares of Common Stock
THIS NONQUALIFIED STOCK OPTION AWARD AGREEMENT (this Agreement) is made as of ____________, 20___, by and between The Wendys Company (the Company) and __________________ (the Optionee).
The Company, pursuant to the provisions of The Wendys Company 2020 Omnibus Award Plan (the Plan), hereby irrevocably grants to the Optionee the right and option (the Option) to purchase _______________ shares of Common Stock, par value $0.10 per share (the Common Stock), of the Company upon and subject to the following terms and conditions:
1. The Option is not intended to qualify as an incentive stock option under the provisions of Section 422 of the Internal Revenue Code of 1986, as amended (the Code).
2. ____________, 20___ is the date of grant of the Option (the Date of Grant).
3. The purchase price of the shares of Common Stock subject to the Option shall be $________ per share (the Exercise Price), which is the Fair Market Value on the Date of Grant, as determined by the Committee.
4. Subject to the Optionees continued provision of services to the Company, the Option shall be exercisable as follows:
(a) One-third of the shares of Common Stock subject to the Option shall be exercisable on or after the first anniversary of the Date of Grant;
(b) One-third of the shares of Common Stock subject to the Option shall be exercisable on or after the second anniversary of the Date of Grant; and
(c) One-third of the shares of Common Stock subject to the Option shall be exercisable on or after the third anniversary of the Date of Grant.
Notwithstanding the foregoing, in the event the Optionees employment or service to the Company and its Subsidiaries are terminated as follows, the Option shall be fully (100%) vested and immediately exercisable as of the date of such termination of employment or service: (i) by the Company or its Subsidiaries other than for Cause (and other than due to death or Disability) within twelve (12) months following a Change in Control; (ii) by the Optionee for Good Reason within twelve (12) months following a Change in Control; (iii) as a result of the Optionees death; or (iv) due to the Optionees Disability.
5. The unexercised portion of the Option shall automatically and without notice terminate and become null and void at the earlier of (i) the tenth anniversary of the Date of Grant (the Option Period) and (ii) the earliest applicable time set forth below:
(a) In the event the Optionees employment or service to the Company and its Subsidiaries are terminated by the Company or its Subsidiaries for Cause, all outstanding Options granted to the Optionee shall immediately terminate and expire;
(b) In the event the Optionees employment or service to the Company and its Subsidiaries are terminated by the Company or its Subsidiaries due to death or Disability, each outstanding vested Option shall remain exercisable for one (1) year thereafter (but in no event beyond the expiration of the Option Period);
(c) Unless otherwise provided by the Committee, in the event (i) the Optionees employment or service to the Company and its Subsidiaries are terminated by the Company or its Subsidiaries other than for Cause (and other than for any reason stated above in Section 4) and (ii) the Optionee is Retirement Eligible, each outstanding unvested Option granted to the Optionee shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable for three (3) years thereafter (but in no event beyond the expiration of the Option Period;
(d) Unless otherwise provided by the Committee, in the event (i) the Optionees employment or service to the Company and its Subsidiaries are terminated by the Optionee upon the Optionees Retirement and (ii) the Optionee provided to the Company or its Subsidiaries at least six (6) months prior notice of such termination upon Retirement, each outstanding unvested Option granted to the Optionee shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable for three (3) years thereafter (but in no event beyond the expiration of the Option Period); and
(e) Unless otherwise provided by the Committee, in the event of the termination of the Optionees employment or service for any other reason not stated above in Section 5(a), (b), (c) or (d), and after taking into account any accelerated vesting under Section 4 above, each outstanding unvested Option granted to the Optionee shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable for ninety (90) days thereafter (but in no event beyond the expiration of the Option Period).
6. Options which have become exercisable may be exercised by the Optionee, subject to the provisions of the Plan and this Agreement, as to all or part of the shares of Common Stock covered hereby, by the giving of written or electronic notice of such exercise to the Company at its principal business office (or telephonic instructions to the extent permitted by the Committee), accompanied by payment of the full purchase price for the shares being purchased. No shares of Common Stock shall be delivered pursuant to any exercise of an Option until payment in full of the Exercise Price therefor is received by the Company and the Optionee has paid to the Company an amount equal to any Federal, state, local and non-U.S. income and employment taxes required to be withheld. The Exercise Price shall be payable: (a) in cash, check, cash equivalent and/or shares of Common Stock valued at Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of shares of Common Stock in lieu of actual delivery of such shares to the Company), provided that such shares of Common Stock are not subject to any pledge or other security interest; or (b) by such other method as the Committee may permit in its sole discretion, including without limitation: (i) in other property having a Fair Market Value on the date of exercise equal to the
Exercise Price; (ii) if there is a public market for the shares of Common Stock at such time, by means of a broker-assisted cashless exercise pursuant to which the Company is delivered (including telephonically to the extent permitted by the Committee) a copy of irrevocable instructions to a stockbroker to sell the shares of Common Stock otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price; or (iii) a net exercise procedure effected by withholding the minimum number of shares of Common Stock otherwise deliverable in respect of an Option that are needed to pay the Exercise Price and all applicable required withholding taxes. Any fractional shares of Common Stock shall be settled in cash.
The Company shall cause certificates for the shares so purchased to be delivered to or registered (and held in book entry form) in the name of the Optionee or the Optionees executors or administrators, against payment of the purchase price, as soon as practicable following the Companys receipt of the notice of exercise.
7. Neither the Optionee nor the Optionees executors or administrators shall have any of the rights of a stockholder of the Company with respect to the shares subject to the Option until such Option is validly exercised.
8. The Option shall not be transferable by the Optionee other than to the Optionees executors or administrators by will or the laws of descent and distribution, and during the Optionees lifetime shall be exercisable only by the Optionee, except as may be otherwise permitted by the Committee in its sole discretion pursuant to the Plan.
9. In the event of the Optionees death, the Option shall thereafter be exercisable (to the extent otherwise exercisable hereunder) only by the Optionees executors or administrators.
10. The terms and conditions of the Option, including the number of shares and the class or series of capital stock that may be delivered upon exercise of the Option and the purchase price per share, are subject to adjustment as provided in the Plan, including, without limitation, under Section 12 of the Plan.
11. The Optionee agrees that the obligation of the Company to issue shares upon the exercise of the Option shall also be subject, as conditions precedent, to compliance with applicable provisions of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, state securities or corporation laws, rules and regulations under any of the foregoing and applicable requirements of any securities exchange upon which the Companys securities shall be listed.
12. The Option is subject to the clawback and forfeiture provisions of Section 14(u) of the Plan and any subsequent clawback or forfeiture policy adopted by the Board or the Committee that is communicated to the Optionee or that is consistent with applicable law, whether the Option was granted before or after the effective date of any such clawback or forfeiture policy. Consistent with Section 14(u)(ii) of the Plan, the Committee may, in its sole discretion, cancel the Option if the Optionee, without the consent of the Company, while employed by or providing services to the Company or any Affiliate or after termination of such employment or service, violates a non-competition, non-solicitation or non-disclosure covenant or agreement or otherwise has engaged
in or engages in any Detrimental Activity that is in conflict with or adverse to the interests of the Company or any Affiliate, as determined by the Committee in its sole discretion. If the Committee determines, in its sole discretion, that the Optionee has engaged in or engages in any activity referred to in the preceding sentence, the Committee may, in its sole discretion, require the Optionee to forfeit any gain realized on the exercise of the Option and to repay the gain to the Company. In addition, if the Optionee receives any amount in excess of what the Optionee should have received under the terms of the Option for any reason (including, without limitation, by reason of a financial restatement, mistake in calculations or other administrative error), then the Optionee shall be required to repay any such excess amount to the Company.
13. The Option has been granted subject to the terms and conditions of the Plan, a copy of which has been provided to the Optionee and which the Optionee acknowledges having received and reviewed. Any conflict between this Agreement and the Plan shall be decided in favor of the provisions of the Plan. Any conflict between this Agreement and the terms of a written employment agreement for the Optionee that has been approved, ratified or confirmed by the Board of Directors of the Company or the Committee shall be decided in favor of the provisions of such employment agreement. Capitalized terms used but not defined in this Agreement shall have the meanings given to them in the Plan. This Agreement may not be amended, altered, suspended, discontinued, cancelled or terminated in any manner that would materially and adversely affect the rights of the Optionee except by a written agreement executed by the Optionee and the Company.
14. By accepting the Options evidenced by this Agreement, the Optionee hereby consents to the electronic delivery of all documents, including prospectuses, annual reports and other information required to be delivered by Securities and Exchange Commission rules. This consent may be revoked in writing by the Optionee at any time upon three (3) business days notice to the Company, in which case all documents, including subsequent prospectuses, annual reports and other information, will be delivered in hard copy to the Optionee.
15. The Optionee shall be required to pay to the Company, and the Company shall have the right and is hereby authorized to withhold, from any cash, shares of Common Stock, other securities or other property deliverable under the Option or from any compensation or other amounts owing to the Optionee, the amount (in cash, Common Stock, other securities or other property) of any required withholding taxes in respect of the Option, and to take such other action as may be necessary in the opinion of the Committee or the Company to satisfy all obligations for the payment of such withholding and taxes. In addition, the Committee may, in its sole discretion, permit the Optionee to satisfy, in whole or in part, the foregoing withholding liability (but no more than the withholding liability calculated using the highest marginal tax rate) by (a) the delivery of shares of Common Stock (which are not subject to any pledge or other security interest) owned by the Optionee having a Fair Market Value equal to such withholding liability or (b) having the Company withhold from the number of shares of Common Stock otherwise issuable or deliverable pursuant to the exercise or settlement of the Option a number of shares with a Fair Market Value equal to such withholding liability. The obligations of the Company under this Agreement will be conditional on such payment or arrangements, and the Company will, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Optionee. If no election is made by the Optionee, the Company will withhold shares of Common Stock to satisfy the minimum statutory required tax withholding.
16. Notices and communications under this Agreement must be in writing and either personally delivered or sent by registered or certified United States mail, return receipt requested, postage prepaid. Notices to the Company must be addressed to The Wendys Company, One Dave Thomas Boulevard, Dublin, Ohio 43017, Attention: Corporate Secretary, or any other address designated by the Company in a written notice to the Optionee. Notices to the Optionee will be directed to the address of the Optionee then currently on file with the Company, or at any other address given by the Optionee in a written notice to the Company.
17. If any provision of this Agreement could cause the application of an accelerated or additional tax under Section 409A of the Code upon the vesting or exercise of the Option (or any portion thereof), such provision shall be restructured, to the minimum extent possible, in a manner determined by the Company (and reasonably acceptable to the Optionee) that does not cause such an accelerated or additional tax.
18. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to contracts made and performed wholly within the State of Delaware, without giving effect to the conflict of laws provisions thereof.
19. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Furthermore, delivery of a copy of a counterpart signature by facsimile or electronic transmission shall constitute a valid and binding execution and delivery of this Agreement, and such copy shall constitute an enforceable original document.
20. This Agreement may be executed and exchanged by facsimile or electronic mail transmission and the facsimile or electronic mail copies of each partys respective signature will be binding as if the same were an original signature. This Agreement may also be executed through the use of electronic signature, which each party acknowledges is a lawful means of obtaining signatures in the United States. Each party agrees that its electronic signature is the legal equivalent of its manual signature on this Agreement. Each party further agrees that its use of a key pad, mouse or other device to select an item, button, icon or similar act/action, regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes its signature, acceptance and agreement as if actually signed by such party in writing. Furthermore, to the extent applicable, all references to signatures in this Agreement may be satisfied by procedures that the Company or a third party designated by the Company has established or may establish for an electronic signature system, and the Optionees electronic signature shall be the same as, and shall have the same force and effect as, such Optionees written signature.
21. The Optionee agrees and acknowledges that by accepting the Option, the Optionee (a) consents to the collection, use and transfer, in electronic or other form, of any of Optionees personal data that is necessary or appropriate to facilitate the implementation, administration and management of the Option, this Agreement and the Plan, (b) understands that the Company may, for purposes of implementing, administering and managing the Plan, hold certain personal information about the Optionee, including, without limitation, the Optionees name, home address, telephone number, date of birth, social security number or other identification number, salary, nationality, job title, and details of all awards or entitlements to awards granted to the Optionee under the Plan or otherwise (Personal Data), (c) understands that Personal Data may be
transferred to any third parties assisting in the implementation, administration and management of the Plan, including any broker with whom the shares of Common Stock issued upon exercise of the Option may be deposited, and that these recipients may be located in the United States or elsewhere, and that the recipients country may have different data privacy laws and protections than the United States, (d) waives any data privacy rights the Optionee may have with respect to Personal Data, and (e) authorizes the Company, its Affiliates and its agents, to store and transmit such Personal Data and related information in electronic form. The Optionee understands that the Optionee is providing consent under this Section 21 on a purely voluntary basis. If the Optionee does not consent, or if the Optionee later seeks to revoke consent, the Optionees employment status or service with the Company will not be affected; the only consequence of the Optionees refusing or withdrawing consent is that the Company would not be able to grant the Option or other awards to the Optionee or implement, administer or maintain such awards.
22. This Agreement shall be valid, binding and effective upon the Company on the Date of Grant. However, the Options evidenced by this Agreement shall be forfeited by the Optionee and this Agreement shall have no force and effect if it is duly rejected. The Optionee may reject this Agreement and forfeit the Options by notifying the Company or its designee in the manner prescribed by the Company and communicated to the Optionee, provided that such rejection must be received by the Company or its designee no later than the earlier of (a) ____________, 20___ and (b) the date that is immediately prior to the date that the Options first vest pursuant to Section 4 above. If this Agreement is rejected on or prior to such date, the Options evidenced by this Agreement shall be forfeited, and neither the Optionee nor the Optionees heirs, executors, administrators and successors shall have any rights with respect thereto.
23. This grant does not constitute an employment contract. Nothing in the Plan or this Agreement shall (a) confer upon the Optionee the right to continue to serve as a director or officer to, or to continue as an employee or service provider of, the Company or any of its Affiliates for the length of the vesting schedule set forth in Section 4 above or for any portion thereof or (b) be deemed to be a modification or waiver of the terms and conditions set forth in any written employment agreement for the Optionee that has been approved, ratified or confirmed by the Board of Directors of the Company or the Committee.
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IN WITNESS WHEREOF, the Company, by a duly authorized officer thereof, has caused this Nonqualified Stock Option Award Agreement to be executed as of the date hereof.
|THE WENDYS COMPANY|