Amended and Restated Wendys International, Inc. Supplemental Executive Retirement Plan No. 3

 

1.1

ACCOUNT means a notional account established for each Participant equal to all supplemental contributions and interest credited under Section 3.1.

 

1.2

ACTIVE PARTICIPANT means a Covered Employee who becomes a Participant and continues to participate in the SERP pursuant to Article II.

 

1.3

BENEFICIARY means any person or persons designated by a Participant to receive any death benefits that may become payable under Article IV after the death of such Participant.

 

1.4

BOARD means the Board of Directors of the Company.

 

1.5

CAUSE means the termination of a Participant’s employment by reason of the Board’s good faith determination that the Participant (a) willfully and continually failed to substantially perform his or her duties with the Company or Participating Employer (other than a failure resulting from the Participant’s incapacity due to physical or mental illness) after a written demand for substantial performance is delivered to the Participant by the Board which specifically identifies the manner in which the Board believes that the Participant has not substantially performed his or her 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 the Company or Participating Employer, monetarily or otherwise, or (c) has otherwise materially breached the terms of his or her employment agreement with the Company or Participating Employer, if

 

applicable (each, an “Employment Agreement”) (including, without limitation, a voluntary termination of the Participant’s employment by the Participant during the term of such Employment Agreement).  No act, nor failure to act, on the Participant’s part, shall be considered “willful” unless he or she has acted, or failed to act, with an absence of good faith and without a reasonable belief that his or her action or failure to act was in the best interest of the Company.  Notwithstanding the foregoing, the Participant’s employment shall not be deemed to have been terminated for Cause unless and until (1) there shall have been delivered to the Participant a copy of a written notice setting forth that the Participant was guilty of conduct set forth above in clause (a), (b) or (c) of the first sentence of this definition and specifying the particulars thereof in detail, and (2) the Participant shall have been provided an opportunity to be heard by the Board (with the assistance of Participant’s counsel).

 

1.6

CHANGE IN CONTROL means the occurrence during the Plan Year of:

 

a)

An acquisition (other than directly from the Company) of any common stock or other voting securities of the Company 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 the Company's common stock or the combined voting power of the Company'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 (1) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company 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 the Company (for purposes of this definition, a "Subsidiary") (2) the Company or its Subsidiaries, or (3) any Person in connection with a "Non-Control Transaction" (as hereinafter defined);

 

b)

The individuals who, as of January 1, 2003, 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 the Company'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 SERP, 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

 

an 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 Proxy Contest; or

 

c)

The consummation of:

 

1)

A merger, consolidation or reorganization with or into the Company, or in which securities of the Company are issued (a "Merger"), unless such Merger is a "Non-Control Transaction."  A "Non-Control Transaction" shall mean a Merger if:

 

A)

the stockholders of the Company, immediately before such Merger own directly or indirectly immediately following such Merger at least seventy percent (70%) of the combined voting power of the outstanding voting securities of the corporation resulting from such Merger (the "Surviving Company") in substantially the same proportion as their ownership of the Voting Securities immediately before such Merger,

 

B)

the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such Merger constitute at least two-thirds of the members of the board of directors of the Surviving Company, or a corporation beneficially directly or indirectly owning a majority of the Voting Securities of the Surviving Company, and

 

C)

no Person other than (i) the Company, (ii) any Subsidiary, (iii) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such Merger was maintained by the Company or any Subsidiary, or (iv) any Person who, immediately prior to such Merger had Beneficial Ownership of thirty percent (30%) or more of the then outstanding Voting Securities or common stock of the Company, has Beneficial Ownership of thirty percent (30%) or more of the combined voting power of the Surviving Company then outstanding voting securities or its common stock;

 

2)

A complete liquidation or dissolution of the Company; or

 

3)

The sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary).

 

1.7

CODE means the Internal Revenue Code of 1986, as amended from time to time.

 

1.8

COMMITTEE means the Administrative Committee established in Article V.

 

1.9

COMPANY means, prior to January 1, 2010, Wendy's International, Inc.  Effective January 1, 2010, Company means Wendy’s/Arby’s Group, Inc.

 

1.10

COMPENSATION means a Participant's annual Compensation, as that term is defined in the WAG 401(k) Plan, except that there shall be no maximum amount of Compensation considered.  Compensation paid by the Company or any of its Subsidiaries after January 1, 2010 for services performed by a legacy Wendy’s brand employee, shall be treated as Compensation even though it is not paid by a Participating Employer.

 

1.11

CONTRIBUTIONS means the amounts credited to a Participant's Account during a Plan Year, other than interest, pursuant to Article III.

 

1.12

COVERED EMPLOYEE means an Employee who, after October 26, 2006, was first appointed to serve as an officer:

 

a)

For Wendy’s International, Inc., with the title of "Vice President" or above; or

 

b)

For any Participating Employer, with such titles as may be designated for that Participating Employer by the Board or a committee thereof.

 

1.13

EFFECTIVE DATE means January 1, 2010, the effective date of this SERP.

 

1.14

EMPLOYEE means a person employed by the Company or a Participating Employer who is a United States citizen or resident alien.

 

1.15

GOOD REASON shall mean:

 

a)

in the case of an employee whose employment with the Company or one of its subsidiaries is subject to the terms of an employment agreement between such individual and the Company or such subsidiary, which employment agreement includes a definition of “Good Reason,” shall have the meaning set forth in such employment agreement during the period that such employment agreement remains in effect following a Change in Control, and

 

b)

in all other cases, means (1) a material diminution in position or responsibilities, (2) a material reduction of salary or aggregate incentive compensation opportunities or (3) a required relocation beyond fifty miles from the present work location.

 

1.16

INACTIVE PARTICIPANT means a former Active Participant who is no longer a Covered Employee but who has an Account remaining in the SERP.

 

1.17

NORMAL RETIREMENT DATE and NORMAL RETIREMENT AGE both mean the first of the month coincident with or next following a Participant's sixty-fifth birthday.

 

1.18

PARTICIPANT means an Active Participant or an Inactive Participant.

 

1.19

PARTICIPATING EMPLOYER means an Affiliate, as defined in the WAG 401(k) Plan, that has been authorized to participate in the SERP by the Board or a committee thereof.

 

1.20

PLAN YEAR means the calendar year.

 

1.21

SERP means the Wendy's International, Inc. Supplemental Executive Retirement Plan No. 3.

 

1.22

TOTAL AND PERMANENT DISABILITY means a physical or mental condition which qualifies a Participant for Social Security disability benefits or which qualifies such Participant to continue to receive benefits under the Company's disability plan, after having received such benefits for twelve (12) months.

 

1.23

WAG 401(k) PLAN means the Wendy's/Arby’s Group, Inc. 401(k) Retirement Plan.

 

1.24

YEAR OF SERVICE means any Plan Year during which an Employee is credited with a Year of Service under the WAG 401(k) Plan.

 

2.1

 

2.2

 

3.1

 

a)

For each Plan Year commencing after December 31, 2006, for each Active Participant who remains employed as a Covered Employee by the Company or a Participating Employer on the last day of the Plan Year, or who dies, becomes disabled or attains Normal Retirement Age during the Plan Year while actively employed, the Company shall credit to the Supplemental Account of such Active Participant an amount equal to the sum of:

 

1)

Deemed Match Credit.  As of the last day of each Plan Year commencing after December 31, 2006, an amount equal to a percentage of the Participant’s Compensation for the Plan Year in excess of the dollar limitation under Code section 401(a)(17), where the percentage is the maximum annual rate of match available under the WAG 401(k) Plan.

 

2)

Profit Sharing Contribution Credit.  As soon as practicable after the Company approves a profit sharing contribution to the WAG 401(k) Plan, an amount equal to a percentage of the Participant’s Compensation for the Plan Year in excess of the dollar limitation under Code section 401(a)(17), where the percentage is the annual rate of the profit-sharing contribution made to the WAG 401(k) Plan on the Participant’s behalf for such Plan Year (expressed as a percentage of his or her “compensation,” as defined pursuant to the WAG 401(k) Plan and with the percentage rounded to the nearest one hundredth of a percent).

 

b)

Interest.  On the last day of each Plan Year, interest shall be credited to the Supplemental Account as of that date but before crediting the allocation

 

for that Plan Year (if any) under this Section, for each Participant at a rate equal to the 30 year Constant Maturity Treasury Rate (or the next longest US government bond rate then available) as of November 30th.

 

3.2

 

4.1

 

a)

Normal Form.  Unless a Participant elects one of the distribution alternatives described in Section 4.1(b) in the manner set forth in Section 4.1(c), upon the Participant’s Termination (other than for death, Total and Permanent Disability or a Termination described in Section 4.3), the Participant will receive the distribution of his or her Accounts in a single lump sum payable within 60 days after the first day of the calendar quarter following the six month anniversary of the date of such Termination.

 

b)

Alternative Form.  In the alternative, a Participant may elect to receive his or her Accounts in quarterly installments payable over no less than two years and no more than fifteen (15) years commencing within 60 days after the first day of the calendar quarter following the six-month anniversary of the date of such Termination, with the amount of each installment equal to the amount of the Account on the Valuation Date

 

immediately prior to the payment of such installment divided by the number of installments remaining to be paid.

 

c)

Timing and Manner of Distribution Elections.  Distribution elections shall be made in such manner as may be designated by the Plan Administrator and communicated to Participants.  Any election made within twelve months of the date payment would otherwise commence (unless made no later than 30 days after becoming a Participant) shall be disregarded and benefits shall be paid in accordance with the preceding distribution election, if any, selected by such Participant or, if no such distribution election has been made, in accordance with Section 4.1(a).  Any distribution election made more than 30 days after the Participant became a Covered Employee shall delay the commencement of distributions to such Participant by five years from the date payments would have commenced in accordance with the preceding distribution election, if any, selected by such Participant or, if no such distribution election has been made, in accordance with Section 4.1(a).

 

4.2

 

4.3

 

(a)

If the termination of employment occurs within two years following a Change in Control and the Change in Control constitutes “a change in ownership or effective control of the Company” or a “change in the ownership of a substantial portion of the Company’s assets,” in each case within the meaning of Code section 409A, the Participant’s Total Account Balance shall be paid in a single lump sum within 60 days after the first day of the calendar quarter following the six month anniversary of the date of such termination.

 

(b)

If the termination of employment occurs within two years following a Change in Control but the Change in Control does not constitute either “a change in ownership or effective control of the Company” or a “change in the ownership of a substantial portion of the Company’s assets,” in each case within the meaning of Code section 409A, the Participant’s total

 

Account Balance shall be paid at the time and in the manner elected by the Participant pursuant to Section 4.1.

 

(c)

If the Plan Administrator determines that a Participant has demonstrated that a termination prior to a Change in Control met the requirements for accelerated vesting under Section 3.2(b), the Participant’s total Account Balance shall be paid at the time and in the manner elected by the Participant pursuant to Section 4.1, with the date of the Change in Control treated as the date of Termination when determining the timing of the distribution.

 

4.4

 

a)

His surviving spouse; or

 

b)

If there is no surviving spouse, to the executor or other personal representative of the Participant to be distributed in accordance with the Participant’s will, or if he has no valid will, in accordance with applicable state law.

 

5.1

 

a)

The Company shall be the Plan Administrator.  The Company shall appoint a Committee to act as its agent or delegate in carrying out its administrative duties.

 

b)

The Committee shall consist of not fewer than three (3) members who shall be appointed by the Company and may include individuals who are not Participants in the Plan.  The Company may remove or replace any member at any time in its sole discretion, and any member may resign by delivering a written resignation to the Company, which resignation shall become effective at its delivery or at any later date specified therein.

 

5.2

 

5.3

 

a)

The Committee shall hold meetings upon such notice and at such times and places as its members may from time to time deem appropriate, and may adopt from time to time such bylaws and regulations for the conduct and transaction of its business and affairs consistent with the terms of the Plan and the delegation of duties and powers by the Company.  A majority of its members at the relevant time shall constitute a quorum for the transaction of business.  All action taken by the Committee shall be by vote of the majority of its members present at such meeting, except that the Committee also may act without a meeting by a written consent signed by a majority of its members.  A member shall not be disqualified from acting because of any personal interest, benefit or advantage, inasmuch as a member may be a director of the Company, an Employee or a Participant, but no member shall vote or act in connection with an action of the Committee relating exclusively to himself.

 

b)

The Committee may allocate among its members such specific responsibilities, obligations, powers or duties as shall be deemed appropriate.

 

5.4

 

6.1

 

a)

The specific reason or reasons for any denial of benefits;

 

b)

The specific SERP provisions on which any denial is based;

 

c)

A description of any further material or information which is necessary for the claimant to perfect his claim and an explanation of why the material or information is needed; and

 

d)

An explanation of the SERP's claim appeals procedure.

 

6.2

 

a)

To review pertinent documents; and

 

b)

To submit issues and comments in writing to which the Plan Administrator shall respond.

 

6.3

 

7.1

 

7.2

 

7.3

 

7.4

 

7.5

 

7.6