WENDY’S/ARBY'S GROUP,
INC.
2009 DIRECTORS' DEFERRED
COMPENSATION PLAN
EFFECTIVE AS OF
Section
1.01
Purpose . This Plan is being established by
Wendy’s/Arby’s Group, Inc. (the “Company”)
to assist the Company in attracting and retaining well-qualified
directors who are not officers or employees of the Company
(“Directors”) and to align the interests of Directors
with those of the shareholders of the Company. The
purpose of this Plan is to establish a program whereby the
Directors of the Company may elect to defer certain cash amounts
paid and equity grants awarded to Directors as fees in connection
with their services to the Board of Directors. The Plan
is authorized pursuant to Sections 18 and 28 of the Company’s
2002 Equity Participation Plan, but is contained in a separate Plan
document, set forth herein.
As used in this
Plan, the following capitalized terms shall have the following
meanings:
Section 2.01 “
Administrator ” shall mean any administrator appointed
by the Committee pursuant to Section 3.01 herein or, in the absence
of any such appointment, the Committee.
Section 2.02 “
Board ” shall mean the Board of Directors of the
Company.
Section 2.03 “ Board
Appointment ” shall have the meaning ascribed to such
term in Section 4.03 herein.
Section 2.04 “ Cash
Compensation ” shall mean the annual retainer and meeting
fees paid in cash to a Director for his or her services as a
Director.
Section 2.05 “ Change
of Control ” shall have the meaning ascribed to such term
in Section 25 of the 2002 Plan.
Section 2.06 “
Code ” shall mean the Internal Revenue Code of 1986,
as amended, and applicable Treasury regulations promulgated
thereunder.
Section 2.07 “
Committee ” shall mean the Committee appointed
pursuant to Section 2 of the 2002 Plan.
Section 2.08 “
Company ” shall mean Wendy’s/Arby’s Group,
Inc.
Section
2.09 “
Compensation ” shall mean a Participant's compensation
for services as a Director, which as of the Effective Date,
includes Cash Compensation and awards of Restricted
Shares.
Section 2.10 “
Deferred Compensation ” shall mean Compensation
deferred pursuant to the provisions of this Plan.
Section 2.11 “
Director ” shall mean a member of the Board who is not
an officer or employee of the Company.
Section
2.12 “
Earned ” as used herein with respect to a
Director’s (a) annual retainer shall refer to the beginning
of each calendar quarter on which the individual is serving as a
Director, (b) when used with respect to fees for Committee
meetings, shall refer to the date on which the meeting was attended
by such Director, and (c) when used with respect to an award
of
Restricted Shares, shall refer
to the date of election or appointment as a Director or of
re-election to the Board, which award shall be subject to
forfeiture unless Vested as provided for herein.
Section 2.13 “
Effective Date ” shall mean May 28, 2009.
Section 2.14 “ Initial
Cash Election Deadline ” shall have the meaning ascribed
to such term in Section 4.01 herein.
Section 2.15 “ Market
Price ” shall mean the “fair market value” in
respect of any shares of the Company’s Common Stock, as
defined in Section 7 of the 2002 Plan.
Section 2.16 “ New
Director Election ” shall have the meaning ascribed to
such term in Section 4.03 herein.
Section 2.17 “ New
Directors ” shall mean any Director who is first elected
or appointed to the Board after the Effective Date of this
Plan.
Section 2.18 “
Participant ” shall mean any Director of the Company
who has elected to have all or a part of his or her Compensation
deferred pursuant to the Plan.
Section
2.19 “
Payment Date ” shall mean the date designated by the
Participant on the Participant’s election form, which shall
be the earliest of the date the Participant has a separation from
service from the Company within the meaning Section 409A, the
Participant’s death or, if elected by the Participant, a
Specified Payment Date. If the Participant does not
elect a Specified Payment Date, his or her Payment Date shall be
the earlier of the date the Participant has a separation from
service from the Company within the meaning Section 409A or the
Participant’s
death. Notwithstanding
the foregoing, a Payment Date shall occur upon a Change of Control
which qualifies as “a change in the ownership or effective
control of the corporation, or in the ownership of a substantial
portion of the assets of the corporation” within the meaning
of Section 409A if earlier than the Payment Date otherwise provided
for under the Plan.
Section 2.20 “
Plan ” shall mean this Wendy’s/Arby’s
Group, Inc. 2009 Directors' Deferred Compensation Plan (as it may
be amended and restated from time to time).
Section 2.21 “ Plan
Earnings ” shall mean amounts of dividends and
distributions to which reference is made in Section 6.01
herein.
Section 2.22 “
Restricted Shares ” shall mean restricted shares
awarded to a Director with respect to his or her services as a
Director.
Section 2.23 “
Restricted Share Units ” shall mean a measure of value
equal to one share of the Company's Common Stock, as provided under
Section 18 of the 2002 Plan.
Section 2.24 “
Restricted Share Units Account ” shall mean the
Participant's Restricted Share Units Account established pursuant
to Section 5.01 herein.
Section
2.25 “
Restricted Share Units Subaccount Attributable to Cash
Deferrals ” shall mean the account established for
deferral of a Director’s annual retainer and meeting fees
pursuant to Section 5.01 of the Plan.
Section
2.26 “
Restricted Share Units Subaccount Attributable to Restricted
Share Deferrals ” shall mean the account established for
deferral of a Director’s awards of Restricted Shares pursuant
to Section 5.01 of the Plan.
Section 2.27 “ Section
409A ” shall mean Section 409A of the Code and the
regulations promulgated thereunder.
Section
2.28 “
Specified Payment Date ” means a date specified by the
Director at the time he or she elects to defer the Compensation,
which date must be January 1, April 1, July 1, or October 1 of a
specified year in the future, but no earlier than January 1 of the
calendar year following the year in which the Compensation would
have been paid (had it not been deferred.)
Section 2.29 “
Subsequent Election Deadline ” shall have the meaning
ascribed to such term in Section 4.02 herein.
Section 2.30 “ 2002
Plan ” shall mean the Company’s Amended and
Restated 2002 Equity Participation Plan and any successor plan, in
each case, as amended from time to time.
Section 2.31 “
Vested ” shall mean any Restricted Share Units which
are vested pursuant to Section 7.01 of the Plan.
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ARTICLE III. ADMINISTRATION
OF THE PLAN
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Section
3.01
Administrator . The Committee may designate an Administrator
to aid the Committee in its administration of the Plan. Such
Administrator shall maintain complete and adequate records
pertaining to the Plan, including but not limited to Participants'
Restricted Share Units Accounts, and shall serve at the pleasure of
the Committee.
Section
3.02
Administration . The Plan shall be administered
by the Administrator, who shall have discretionary authority to
interpret and administer the Plan, correct errors in administration
and otherwise to implement the Plan, in each case consistent with
the Plan’s purposes and intent. The Administrator
shall also have authority to take all actions as are necessary to
ensure that any transactions pursuant to this Plan do not result in
liability under Section 16(b) of the Securities Exchange Act of
1934. All actions of the Administrator with respect to
this Plan shall be final and binding on all persons for such Plan
purposes.
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ARTICLE IV. DEFERRED
COMPENSATION
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Section 4.01 Initial Elections
by Existing Directors.
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Any Director of the Company as
of the Effective Date may make an initial election prior to the
2009 Annual Meeting of Shareholders of the Company to participate
in the Plan and have all, or such percentage or dollar amount as he
or she may specify, of his or her award of Restricted Shares with
respect to the 2009 Annual Meeting (and Plan Earnings thereon)
deferred into Restricted Share Units and paid to him or her upon
his or her Payment Date. Such deferral election shall be
made by completing and executing an election form prescribed by the
Administrator and delivering such election form to the
Administrator prior to the 2009 Annual Meeting of
Shareholders Such election shall become irrevocable
immediately prior to the 2009 Annual Meeting of
Shareholders.
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Any Director of the Company as
of the Effective Date may make an initial election within 30 days
following the Effective Date (the “Initial Cash Election
Deadline”), to participate in the Plan and have all, or such
percentage or dollar amount as
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he or she may specify, of (i)
his or her annual retainer Earned for each calendar quarter of 2009
which begins after the Initial Cash Election Deadline and (ii) his
or her meeting fees Earned in 2009 after the Initial Cash Election
Deadline (and Plan Earnings thereon) deferred into Restricted Share
Units and paid to him or her upon his or her Payment
Date. Such deferral election shall be made by completing
and executing an election form prescribed by the Administrator and
delivering such election form to the Administrator on or before the
Initial Cash Election Deadline. Such election shall
become irrevocable as of the close of business on the Initial Cash
Election Deadline.
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A separate
election shall be made with respect to the Cash Compensation, on
the one hand, and with respect to Restricted Share awards on the
other.
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Section 4.02 Subsequent
Elections by Participants.
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Subsequent to the Initial
Election by a Participant provided for in Section 4.01 or a New
Director Election by a Participant provided for in Section 4.03, a
Participant may elect by December 31 of each calendar year (the
“Subsequent Election Deadline”) to defer all, or such
percentage or dollar amount as he or she may specify, of the Cash
Compensation to be Earned in the following calendar year
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