Exhibit 10(e)
PERFORMANCE SHARE AWARD
AGREEMENT
Wendy’s International,
Inc.
March 17, 2006
THIS AGREEMENT, made as of
March 17, 2006 (the “ Date of Grant ”),
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:
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1.
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Grant of
Performance Shares .
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1.1 The Company hereby grants to the
Grantee an award of
Performance Shares (the “ Award ”), subject to
adjustment pursuant to Sections 3 and 4 hereof 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 Sections 5 and 6 hereof, payment
with respect to vested Earned Performance Shares shall be made
entirely in Shares in accordance with Section 8
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.
The Performance Cycle shall be the
Company’s 2006 fiscal year, beginning on January 2, 2006
and ending on December 31, 2006.
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3.
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Performance
Objective and Formula .
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3.1 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 2006 with the following
adjustments:
(i) disregarding the impact of
(a) costs incurred in connection with the initial public
offering and any spin-off or other disposition of Tim Hortons Inc.,
including costs related to additional employees hired by Tim
Hortons Inc. or its subsidiaries as a result of its becoming a
separate reporting company, (b) interest costs or other
expense incurred by Tim Hortons Inc.
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(ii) related to revolving credit and other debt
financing arrangements entered into by Tim Hortons Inc. in 2006,
(c) the sale of equity of Tim Hortons Inc. in the initial
public offering (which will decrease the Company’s reported
earnings attributable to earnings of Tim Hortons Inc.),
(d) the Tim Hortons Inc. initial public offering and any
spin-off or other disposition of Tim Hortons Inc. on the
Company’s 2006 income tax expense, (e) costs (including
charges) incurred in connection with the sale or other disposition
of one or more business units of the Company, (f) severance
costs or other charges incurred in connection with the
Company’s initiative to reduce its overhead as part of an
organizational restructuring of the Company, and related costs of
outside consultants and advisors, or (g) new accounting
standards or interpretations issued in 2006; and
(iii) adding the budgeted
consolidated earnings of Tim Hortons Inc. and any other business
unit sold or otherwise disposed of to the earnings results of the
Company for any period in 2006 for which the earnings results of
Tim Hortons Inc. and any other business unit sold or otherwise
disposed of are not included in the consolidated earnings results
of the Company; and
(iv) adjusting the number of
Performance Shares in the event of a spin-off of Tim Hortons Inc.
prior to May 1, 2007, such that the Fair Market Value of the
Performance Shares (calculated as though the Fair Market Value of a
Performance Share is equal to the Fair Market Value of a Share)
immediately prior to the spin-off is equal to the Fair Market Value
of the Performance Shares (calculated in the same manner)
immediately after the spin-off, and the number of Shares issued in
settlement of the Earned Performance Shares shall be adjusted
proportionately to the adjustment in the number of Performance
Shares;
3.2 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 be earned and,
subject to Sections 4.1, 5, and 6.4 hereof, on May 1, 2007 (the
“Issue Date”), the Grantee will be credited with a
number of Earned Performance Shares equal to the number of
Performance Shares listed in Section 1.1 multiplied by a
factor determined in accordance with the matrix set forth in
Appendix A attached hereto.
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4.
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Determination of Award .
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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 determine the number of
Earned Performance Shares, if any, 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
Earned Performance Shares which may become 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 as adjusted pursuant to Section 3,
(ii) the relative placement on the matrix set forth in
Appendix A of the Company’s three-year average total
shareholder return measured
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against the three-year average total shareholder
return of the companies comprising the Standard &
Poor’s 500 Composite Index, and (iii) the number of
Earned Performance Shares, if any, calculated in accordance with
the Committee’s certification pursuant to this
Section 4.1 and which may become payable to Grantee pursuant
to Sections 6 or 7 hereof.
4.2 Dividend Equivalent
Rights . As of the Issue Date, the Grantee shall also be issued
a number of Dividend Equivalent Rights equal to the number of
Earned Performance Shares. Each Dividend Equivalent Right
represents the right to receive all of the cash dividends that are
or would be payable with respect to the Share represented by the
Earned Performance Share to which the Dividend Equivalent Right
relates. With respect to each Dividend Equivalent Right, any such
cash dividends shall be converted into additional Earned
Performance Shares based on the Fair Market Value of a Share on the
date such dividend is made (provided that no fractional Stock Units
shall be granted). Each such additional Earned Performance Share
shall be subject to the same terms and conditions applicable to the
Earned Performanc