WENDY?S INTERNATIONAL, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN NO. 2Addendum or Modifications |
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Exhibit 10(b)
WENDY’S INTERNATIONAL, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN NO. 2
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2005)
WENDY’S INTERNATIONAL, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN NO. 2
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Preamble |
1 | |
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Article I – Definitions |
1 | |
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1.1 Account |
1 | |
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1.2 Active Participant |
1 | |
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1.3 Beneficiary |
1 | |
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1.4 Board |
1 | |
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1.5 Cause |
1 | |
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1.6 Change in Control |
2 | |
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1.7 Code |
4 | |
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1.8 Committee |
4 | |
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1.9 Company |
4 | |
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1.10 Compensation |
4 | |
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1.11 Contributions |
4 | |
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1.12 Covered Employee |
4 | |
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1.13 Effective Date |
4 | |
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1.14 Employee |
5 | |
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1.15 Final Average Compensation |
5 | |
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1.16 Good Reason |
5 | |
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1.17 Grandfather Eligible Participant |
5 | |
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1.18 Inactive Participant |
5 | |
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1.19 Normal Retirement Date / Age |
5 | |
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1.20 Participant |
5 | |
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1.21 Participating Employer |
5 | |
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1.22 Pension Plan |
5 | |
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1.23 Profit Sharing and Savings Plan |
6 | |
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1.24 Plan Year |
6 | |
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1.25 SERP |
6 | |
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1.26 Total and Permanent Disability |
6 | |
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1.27 Year of Service |
6 | |
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Article II – Eligibility and Participation |
6 | |
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2.1 Eligibility |
6 | |
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2.2 Reemployment Following Qualified Military Service |
6 | |
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Article III – Amount of Benefit |
7 | |
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3.1 Credits to Supplemental Account |
7 | |
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3.2 Target Credit for Grandfather Eligible Participants |
9 | |
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3.3 Termination Benefit |
11 | |
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Article IV – Forms of Payment |
11 | |
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4.1 Distribution of Benefits |
11 | |
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4.2 Distributions on Total and Permanent Disability or Death |
12 | |
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4.3 Distributions on Change in Control |
12 | |
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4.4 Designation of Beneficiary |
13 | |
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Article V – Plan Administration |
13 | |
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5.1 Plan Administrator |
13 | |
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5.2 Powers of the Plan Administrator |
14 | |
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5.3 Committee |
14 | |
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5.4 Indemnification |
14 | |
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Article VI – Claims Procedure |
15 | |
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6.1 Claims Review |
15 | |
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6.2 Appeals Procedure |
15 | |
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6.3 Discretion Regarding Claims and Appeals |
16 | |
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Article VII – Miscellaneous |
16 | |
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7.1 Amendment and Termination |
16 | |
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7.2 No Contract Of Employment |
16 | |
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7.3 Unfunded Plan |
16 | |
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7.4 Restrictions Upon Assignments and Creditors’ Claims |
17 | |
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7.5 Payment Constitutes Release |
17 | |
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7.6 Applicable Law |
17 | |
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Exhibit I |
18 | |
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WENDY’S INTERNATIONAL, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN NO. 2
Wendy’s International, Inc. maintains the Wendy’s International, Inc. Pension Plan and the Wendy’s International, Inc. Profit Sharing and Savings Plan for the benefit of its non-crew employees. From 1984 to 2004, the Company also maintained the Supplemental Executive Retirement Plan to provide benefits in excess of those permitted in the Pension and Profit Sharing and Savings Plans under the Internal Revenue Code. Following the enactment of Code section 409A, the Company froze contributions credited under the Supplemental Executive Retirement Plan to maintain the grandfathered status of that plan under Code section 409A. The Company has adopted this Supplemental Executive Retirement Plan No. 2 (the “SERP”) to provide benefits in compliance with the provisions of Code section 409A. This SERP shall be interpreted in conformity with the requirements of Code section 409A.
ARTICLE I - DEFINITIONS
Whenever used herein with the initial letter capitalized and unless a different meaning is plainly required by the context, words and phrases shall have (a) the meanings stated below, (b) if not stated below, the meanings given to them in the Profit Sharing and Savings Plan, if defined under that plan, or (c) if not defined in either the SERP or the Profit Sharing and Savings Plan, the meanings given to them in the Pension Plan. All masculine terms shall include the feminine and all singular terms shall include the plural, unless the context clearly indicates the gender or the number.
| 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 |
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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); |
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| 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; |
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| 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). |
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 the Company which, by reducing the number of shares of common stock or Voting Securities then outstanding, increases the proportional number of shares Beneficially 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 the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional common stock or Voting Securities which increase the percentage of the then outstanding Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.
| 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 Wendy’s International, Inc., an Ohio corporation. |
| 1.10 | COMPENSATION means a Participant’s annual Compensation, as that term is defined in the Profit Sharing and Savings Plan, except that there shall be no maximum amount of Compensation considered. |
| 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, on or before October 26, 2006, has been appointed to serve as an officer: |
| a) | For the Company, 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, 2005, the effective date of this SERP. |
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| 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 | FINAL AVERAGE COMPENSATION shall mean a Participant’s average annual Compensation over the five (5) consecutive calendar years while a Covered Employee (or the total number of completed calendar years while a Covered Employee if less than five (5)) out of the last ten (10) completed calendar years while a Covered Employee preceding the Participant’s attainment of age sixty (60) which will provide him with the highest annual average Compensation. |
| 1.16 | 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. |
| 1.17 | GRANDFATHER ELIGIBLE PARTICIPANT shall mean a Participant who was an Active Participant in the Wendy’s International, Inc. Supplemental Executive Retirement Plan on January 1, 2003, who had attained age 55 and completed at least five (5) Years of Service as of that date, and who has been continuously employed by the Company or an Affiliate since that date. |
| 1.18 | INACTIVE PARTICIPANT means a former Active Participant who is no longer a Covered Employee but who has an Account remaining in the SERP. |
| 1.19 | 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. |
| 1.20 | PARTICIPANT means an Active Participant or an Inactive Participant. |
| 1.21 | PARTICIPATING EMPLOYER means an Affiliate, as defined in the Profit Sharing and Savings Plan, that has been authorized to participate in the SERP by the Board or a committee thereof. |
| 1.22 | PENSION PLAN means the Wendy’s International, Inc. Pension Plan. |
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| 1.23 | PROFIT SHARING AND SAVINGS PLAN means the Wendy’s International, Inc. Profit Sharing and Savings Plan. |
| 1.24 | PLAN YEAR means the calendar year. |
| 1.25 | SERP means the Wendy’s International, Inc. Supplemental Executive Retirement Plan No. 2. |
| 1.26 | 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. |
| 1.27 | YEAR OF SERVICE means any Plan Year during which an Employee is credited with a Year of Service under the Profit Sharing and Savings Plan. |
ARTICLE II - ELIGIBILITY AND PARTICIPATION
| 2.1 | ELIGIBILITY |
Each Covered Employee who was an Active Participant in the Wendy’s International, Inc. Supplemental Executive Retirement Plan on the day prior to the Effective Date shall be an Active Participant in the SERP on the Effective Date if still a Covered Employee on that date.
Any other Covered Employee shall become a Participant in the SERP on the latest of the Effective Date, the first day of the Plan Year following the date the Employee became a Covered Employee (the Covered Employee’s date of hire or promotion into eligible employment), or the Entry Date upon which the Covered Employee becomes a Match Eligible Participant in the Profit Sharing and Savings Plan.
| 2.2 | REEMPLOYMENT FOLLOWING QUALIFIED MILITARY SERVICE |
Notwithstanding any provision of this SERP to
