Exhibit 10(b)
First Amendment to
Indemnification Agreement
This First Amendment to the
Indemnification Agreement is made as of this
day of
, 2008 by and between Wendy’s International, Inc., an Ohio
corporation (the “Company”) and
, an individual (“Indemnitee”).
WHEREAS, the Company and Indemnitee
entered into an Indemnification Agreement as of
,
; and
WHEREAS, to avoid the negative
consequences of a violation of Code section 409A, the Company and
Indemnitee have agreed to amend the Indemnification Agreement, as
set forth herein.
NOW, THEREFORE, the parties hereto
agree to the addition of a new section 11.17 to read as
follows:
11.17 Special Rules for
Reimbursements Subject to Code Section 409A.
Notwithstanding any other provision of this Agreement and solely to
the extent that any payment or reimbursement of Indemnitee’s
expenses under this Agreement (including Expenses, judgments, fines
and settlement amounts) would not be exempt from the requirements
of Section 409A of the Internal Revenue Code (“Section
409A”), all of the following conditions shall
apply:
(a) Indemnitee shall only be
entitled to the payment or reimbursement of expenses incurred
during the duration of this Agreement.
(b) The amount of expenses paid or
reimbursed during one taxable year of Indemnitee shall not affect
the amount of expenses eligible for payment or reimbursement in any
other taxable year.
(c) Any reimbursement or required
advancement of an expense shall be made on or before the last day
of Indemnitee’s taxable year following the taxable year in
which the expense was incurred. Notwithstanding the foregoing, in
the event of a bona fide dispute regarding Indemnitee’s
entitlement to reimbursement or advancement, reimbursement or
advancement of an expense may be delayed to a later date if
provided for under
