Exhibit 10(s)
PERFORMANCE SHARE AWARD
AGREEMENT
(settled in Restricted
Stock)
Wendy’s International,
Inc.
, 20
THIS AGREEMENT, made as of
, 20 , between Wendy’s
International, Inc., an Ohio corporation (the “
Company ”), and
(the “Grantee ”).
WHEREAS, the Company has adopted the
Wendy’s International, Inc. 2003 Stock Incentive Plan (the
“ Plan ”) in order to provide additional
incentive to certain employees and directors of the Company and its
Subsidiaries; and
WHEREAS, the Committee has
determined to grant to the Grantee an Award of Performance Shares
as provided herein to encourage the Grantee’s efforts toward
the continuing success of the Company.
NOW, THEREFORE, the parties hereto
agree as follows:
1. Grant of Performance
Shares .
1.1 The Company hereby grants to the
Grantee an award of
Performance Shares, subject to adjustment pursuant to Sections 3
and 4 hereof (the “ Award ”) and the execution
and return of this Agreement by the Grantee (or the Grantee’s
estate, if applicable) to the Company as provided in Section 10
hereof. Subject to Section 5 hereof, payment with respect to vested
Performance Shares shall be made entirely in the form of Restricted
Stock in accordance with Section 4 hereof.
1.2 This Agreement shall be
construed in accordance and consistent with, and subject to, the
provisions of the Plan (the provisions of which are hereby
incorporated by reference) and, except as otherwise expressly set
forth herein, the capitalized terms used in this Agreement shall
have the same definitions as set forth in the Plan.
2. Performance Cycle
.
The Performance Cycle shall be the
Company’s 20 fiscal year,
beginning on
, 20 and ending on
, 20 .
3. Performance Objective and
Formula .
The Performance Objective
established by the Committee with respect to the Performance Shares
is positive diluted earnings per Share. For this purpose, diluted
earnings per Share shall be as reported on the Company’s
income statement for fiscal 20 . If
the Company achieves this Performance Objective during the
Performance Cycle and the Committee certifies to this result in
accordance with Section 4 hereof, the Performance Shares shall vest
and, subject to Sections 4.1, 5, and 6.4 hereof, the Grantee will
be entitled to receive a number of shares of Restricted Stock equal
to
multiplied by a factor determined in accordance with the matrix set
forth in Appendix A attached hereto.
4. Determination of Award
.
4.1 Determination Notice . As
soon as possible after the end of the Performance Cycle, the
Committee will certify in writing whether the Performance Objective
has been met for the Performance Cycle and
1
determine the number of shares of Restricted
Stock, if any, payable in accordance with the matrix set forth in
Appendix A; provided , that , if the Committee
certifies that the Performance Objective has been met, the
Committee may, in its sole discretion, reduce the number of shares
of Restricted Stock payable to the Grantee with respect to the
Award. The date of the Committee’s certification pursuant to
this Section 4.1 shall hereinafter be referred to as the “
Certification Date ”. The Company will notify the
Grantee (or the executors or administrators of the Grantee’s
estate, if appropriate) of the Committee’s certification
following the Certification Date (such notice, the “
Determination Notice ”). The Determination Notice
shall specify (i) the Company’s reported diluted earnings per
Share for the Performance Cycle, (ii) the relative placement on the
matrix set forth in Appendix A of the Company’s three-year
average total shareholder return measured against the three-year
average total shareholder return of the companies comprising the
Standard & Poor’s 500 Composite Index, and (iii) subject
to Section 5 hereof, the number of shares of Restricted Stock, if
any, payable in accordance with the Committee’s certification
pursuant to this Section 4.1.
4.2 Issuance of Restricted
Stock . The shares of Restricted Stock to be issued pursuant to
this Agreement shall be issued in the form of book entry Shares in
the name of the Grantee on
(the “ Issue Date ”).
5. Forfeiture of Award Prior to
Issue Date .
5.1 Termination of Employment
. If the Grantee’s employment terminates for any reason prior
to the Issue Date, the Award shall automatically terminate and the
Grantee shall not be entitled to receive any Shares of Restricted
Stock under Section 4 hereof or otherwise under this
Agreement.
5.2 Misconduct . If prior to
the Issue Date the Grantee has (i) used for profit or disclosed to
unauthorized persons, confidential information or trade secrets of
the Company or any of its Subsidiaries, (ii) breached any contract
with or violated any fiduciary obligation to the Company or any of
its Subsidiaries, or (iii) engaged in unlawful trading in the
securities of the Company or any of its Subsidiaries or of another
company based on information gained as a result of that
Grantee’s employment with, or status as a director to, the
Company or any of its Subsidiaries (each of (i), (ii) and (iii), an
“ Act of Misconduct ”), the Award shall
automatically terminate and the Grantee shall not be entitled to
receive any Shares of Restricted Stock under Section 4 hereof or
otherwise under this Agreement.
6. Shares of Restricted Stock
.
6.1 Restrictions on Transfer
. The Shares of Restricted Stock issued under this Agreement may
not be sold, transferred or otherwise disposed of and may not be
pledged or otherwise hypothecated until all restrictions on such
Restricted Stock shall have lapsed in the manner provided in
Section 6.2, 6.3 or 7 hereof.
6.2 Lapse of Restrictions
Generally . Except as provided in Sections 6.3, 6.4 and 7
hereof, one-fourth (1/4) of the number of Shares of Restricted
Stock issued hereunder (rounded down to the nearest whole Share, if
necessary) shall vest, and the restrictions with respect to such
Restricted Stock shall lapse, on each of the first four (4)
anniversaries of the Issue Date.
6.3 Effect of Certain
Terminations of Employment . If the Grante
