Special
Executive Deferred Compensation Plan
This
Special Executive Deferred Compensation Plan (this “
Plan ”) has been established by The Wendy's Company
(the “ Company ”) effective as set forth in
Section 11.10 hereof pursuant to Section 4(a) of the
Employment Agreement.
Under
the Employment Agreement, Executive has agreed to defer, pursuant
to the terms and conditions of this Plan, payment of all amounts of
Base Salary in excess of $1,000,000 that would otherwise be payable
to him during a calendar year until the termination of his
employment with the Company. This Plan has been established to
carry out the Company's and Executive's agreement for the deferral
of such Base Salary.
To
the extent that there are any inconsistencies between Section 4(a)
of the Employment Agreement and the terms of this Plan, the terms
of the Employment Agreement will govern.
2.
Definitions and interpretations
“Account”
means
the bookkeeping account established by the Company under this Plan
on behalf of the Executive for the purpose of recording the amount
of the compensation being deferred pursuant to this Plan and the
amount of any interest credited thereto.
“Administrator”
means
the Compensation Committee of the Board, the Board or, with the
prior written consent of the Executive (which consent shall not be
unreasonably withheld), such other person, committee or entity
designated by the Board (which designation may be by means of a
general delegation to a committee of the Board that includes the
responsibility for the administration of this Plan) that shall
administer this Plan.
“Annual
Deferral Amount ”
means amounts deferred in accordance with Section 4(a) of the
Employment Agreement, for any single Plan Year, as Base Salary may
be increased from time to time by the Administrator. In the event
of the Executive's termination of employment prior to the end of a
Plan Year, such year's Annual Deferral Amount shall be the actual
amount so deferred prior to such employment termination.
“Base
Salary” means
“Base Salary” as defined in Section 4(a) of the
Employment Agreement.
“Beneficiary”
means
any person or entity designated by the Executive as such on a
writing filed with the Secretary of the Company, from time to time,
and surviving Executive, as such beneficiary designation may be
amended from time to time, with any such amendment to be made
solely by the Executive in his sole and absolute discretion at any
time in writing and filed with the Secretary of the Company, and
will be subject to applicable law. In the absence of such
designation or living Beneficiary at Executive's death, Executive's
“Beneficiary” shall be his estate.
“Board”
means
the board of directors of the Company.
“Business
Day” means
any day other than (i) Saturday, (ii) Sunday or (iii) other day on
which commercial banks located in the State of New York are
authorized or required by law to remain closed.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to
time.
“Effective
Date” means
the date indicated in Section 11.10 hereof.
“Employment
Agreement” means
that certain employment agreement dated as of the Effective Date,
between the Company and Executive.
“
Executive ” means the individual identified on the
signature page hereto as “Executive.”
“Plan
Year” means
each 12-month period beginning on January 1 and ending on
December 31.
3.
Eligibility.
The
Executive shall be eligible to participate in this Plan for the
duration of his employment with the Company in accordance with the
terms hereof. The Executive shall be the sole person eligible to
participate in this Plan.
4.
Annual
Deferral Amounts .
For each Plan Year, pursuant to Section 4(a) of the Employment
Agreement, the Executive hereby irrevocably elects to defer the
Annual Deferral Amount, if any, from the Executive's Base Salary.
The Annual Deferral Amount so deferred shall be withheld from the
Executive's Base Salary in substantially equal installments from
each regularly scheduled payment of the Executive's Base Salary at
the same time that would otherwise be payable to the Executive in
the absence of the Executive's deferral election hereunder. Each
installment of the Annual Deferral Amount so withheld shall then be
credited to the Executive's Account as of the date it would
otherwise have been payable to the Executive. The Executive's
election hereunder shall be deemed made on (i) the Effective Date
respecting Annual Deferral Amounts otherwise earned and payable
after the Effective Date and during the 2011 Plan Year, and (ii)
for Plan Years after 2011, on the December 31
st
immediately
preceding each such Plan Year during the Term (as defined under the
Employment Agreement), in each case, to the extent applicable
pursuant to Section 4(a) of the Employment Agreement or as the
Executive and the Company shall otherwise agree; provided, however,
that any such modification or revocation of Executive's deferral
election shall be effective only to the extent permitted pursuant
to Section 409A of the Code.
5.
Crediting
of Interest. On
the last day of each whole or partial calendar quarter from and
after the Effective Date until Executive's Account shall have been
distributed in full, interest shall be credited (compounded for
each full or partial calendar quarter) on the deferred and
undistributed Annual Deferral Amounts at a rate equal to the three
(3)-month London Interbank Offered Rate (LIBOR), as reported from
time to time in The Wall Street Journal (Electronic Edition), plus
500 basis points; provided, however, that, notwithstanding the
foregoing, in no event shall such rate exceed 120% of the
applicable United States federal long-term rate then in effect, so
that in no event shall such rate constitute an
“above-market” rate within the meaning of Item
402(c)(
