This Executive Compensation Plan Agreement involves
Title: Special Executive Deferred Compensation Plan
Governing Law: Delaware Date: 9/2/2011
Industry: Restaurants Sector: Services
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)(2)(viii)(B) of Regulation S-K under the Securities Act of 1933, as amended.
6. Responsibility for Administration of this Plan. The Administrator shall be responsible for the administration of this Plan. The Administrator may employ others to render advice with regard to its responsibilities under this Plan. It may also allocate its responsibilities to others and may exercise any other powers necessary or advisable for the discharge of its duties. The primary responsibility of the Administrator is to administer this Plan for the benefit of the Executive and his Beneficiaries, subject to the terms and conditions of this Plan. The Administrator shall administer this Plan in accordance with its terms. The Administrator shall have all powers and discretion necessary to acc