exhibit10-1_1109.htm


     

    EXHIBIT
10.1




    NON-INCENTIVE
STOCK OPTION AGREEMENT

    Under

    AMENDED
AND RESTATED 2002 EQUITY PARTICIPATION PLAN

    of

    WENDY’S/ARBY’S
GROUP, INC.

     

    ______
Shares of Common Stock

     

    WENDY’S/ARBY’S
GROUP, INC. (the “Company”), pursuant
to the terms of its Amended and Restated 2002 Equity Participation Plan, as
amended (as so amended, the “Plan”), hereby
irrevocably grants to ____________________ (the “Optionee”) the right
and option to purchase ______ shares of Common Stock, par value $0.10 per share
(the “Common
Stock”), of the Company upon and subject to the following terms and
conditions:

     

    1.           The
Option is not intended to qualify as an incentive stock option under the
provisions of Section 422 of the Internal Revenue Code of 1986, as amended, or
its predecessor (the “Code”).

     

    2.           ________
__, 20__ is the date of grant of the Option (“Date of
Grant”).

     

    3.           The
purchase price of the shares of Common Stock subject to the Option shall be
$__.__ per share.

     

    4.           Subject
to the Optionee’s continued provision of services to the Company, the Option
shall be exercisable as follows:

     

    (a)           One-third
of the shares of Common Stock subject to the Option shall be exercisable on or
after ________ __, 20__.

     

    (b)           One-third
of the shares of Common Stock subject to the Option shall be exercisable on or
after ________ __, 20__.

     

    (c)           One-third
of the shares of Common Stock subject to the Option shall be exercisable on or
after ________ __, 20__.

     

    Notwithstanding
the foregoing, in the event of (i) the termination of the Optionee’s services to
the Company and its subsidiaries (A) as a result of the Optionee’s death or (B)
by the Company due to the Optionee’s total and permanent disability, as
determined by the Committee (“Disability”), or (ii)
the occurrence of a Change of Control (as defined in the Plan), the Option shall
be deemed to be fully (100%) vested and exercisable as of immediately prior to
the Optionee’s death or Disability or the Change of Control.

     

    5.           The
unexercised portion of the Option shall automatically and without notice
terminate and become null and void at the earlier of (a) the tenth anniversary
of the Date of Grant and (b) the earliest applicable time specified in Section
6.

     


    
      
         


      

      
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    6.           The
unexercised portion of any such Option shall automatically and without notice
terminate and become null and void at the time of the earliest to occur of the
following:

     

    (a)           the
termination of the Optionee’s services to the Company and its subsidiaries if
the Optionee’s services are terminated for “cause,” that is for
“cause” or any like term, as defined in any written contract between the Company
and the Optionee; or if not so defined, (i) on account of fraud, embezzlement or
other unlawful or tortious conduct, whether or not involving or against the
Company or any affiliate, (ii) for violation of a policy of the Company or any
affiliate, (iii) for serious and willful acts or misconduct detrimental to the
business or reputation of the Company or any affiliate;

     

    (b)           the
termination of Optionee’s services to the Company and its subsidiaries for
reasons other than as provided in subsection (a), (c), (d) or (e) of this
Section 6; provided, however, that the
portion of the Option granted to such Optionee which was exercisable immediately
prior to such termination may be exercised until the earlier of (i) 90 days
after Optionee’s termination of service or (ii) the date on which such Option
terminates or expires in accordance with the provisions of this Agreement (other
than this Section 6);

     

    (c)           the
termination of Optionee’s services to the Company and its subsidiaries by reason
of the Optionee’s death, or if the Optionee’s services terminate in the manner
described in subsection (b) of this Section 6 and the Optionee dies within such
period for exercise provided for therein; provided, however, that the
portion of the Option exercisable by the Optionee immediately prior to the
Optionee' s death shall be exercisable by the Optionee's executors or
administrators, as provided in Section 10, or by the person to whom the Option
passes (the Optionee’s “Beneficiary”) under
such Optionee’s will (or, if applicable, pursuant to the laws of descent and
distribution) until the earlier of (i) one year after the Optionee's death or
(ii) the date on which such Option terminates or expires in accordance with the
provisions of this Agreement (other than this Section 6);

     

    (d)           the
termination of Optionee’s services to the Company and its subsidiaries by reason
of Disability; provided, however, that the
portion of the Option exercisable by the Optionee immediately prior to the
Optionee’s termination may be exercised until the earlier of (i) one year after
Optionee’s termination or (ii) the date on which such Option terminates or
expires in accordance with the provisions of this Agreement (other than this
Section 6); or

     

    (e)           the
occurrence of a Change of Control (as defined in the Plan); provided, however, that the
portion of the Option which remains outstanding and unexercised immediately
prior to such Change of Control shall be exercisable until the earlier of (i)
the date described in Section 5 and (ii) the later of (A) the first anniversary
of the Change of Control and (B) the time otherwise determined

     


    
      
         


      

      
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    pursuant
to the foregoing provisions of this Section 6; further provided, however, that if such
Change of Control is a Reorganization Event (as defined in the Plan), the
provisions of Paragraph 24 of the Plan shall apply.

     

    7.           The
Option shall be exercised by the Optionee (or by the Optionee’s Beneficiary, as
provided in Section 6, or by the Optionee’s executors or administrators, as
provided in Section 10), subject to the provisions of the Plan and of this
Agreement, as to all or part of the shares of Common Stock covered hereby, as to
which the Option shall then be exercisable, by the giving of written notice of
such exercise to the Company at its principal business office, accompanied by
payment of the full purchase price for the shares being
purchased.  Payment of such purchase price shall be made (a) by cash
or by check payable to the Company and/or (b) by delivery of unrestricted shares
of the Common Stock having a fair market value (determined as of the date the
Option is exercised, but in no event at a price per share less than the par
value per share of the Common Stock delivered) equal to all or part of the
purchase price and, if applicable, of a check payable to the Company for any
remaining portion of the purchase price.  Whenever the Optionee is
permitted to pay the exercise price of an Option or taxes relating to the
exercise of an Option by delivering shares of Common Stock, the Optionee may,
subject to procedures satisfactory to the Committee (as defined in the Plan),
satisfy such delivery requirement by presenting proof of beneficial ownership of
such shares, in which case the Company shall treat the Option as exercised
without further payment  and shall withhold such number of shares from
the shares acquired by the exercise of the Option (or if the Option is paid in
cash, cash in an amount equal to the fair market value of such shares on the
date of exercise).  Payment in accordance with this Section 7 may also
be satisfied by way of a “net exercise” pursuant to which the Optionee, without
tendering the purchase price for the shares being purchased under the Option, is
paid shares of Common Stock representing the excess of (i) the aggregate fair
market value (as defined in the Plan) on the date of exercise of the shares of
Common Stock as to which the Option is being exercised over (ii) the aggregate
purchase price for such shares.

     

    The
Company shall cause certificates for the shares so purchased to be delivered to
the Optionee or the Optionee's executors or administrators, against payment of
the purchase price, as soon as practicable following the Company's receipt of
the notice of exercise.

     

    8.           Neither
the Optionee nor the Optionee’s Beneficiary, executors or administrators shall
have any of the rights of a stockholder of the Company with respect to the
shares subject to the Option until a certificate or certificates for such shares
shall have been issued upon the exercise of the Option.

     

    9.           The
Option shall not be transferable by the Optionee other than to the Optionee's
Beneficiary, executors or administrators by will or the laws of descent and
distribution, and during the Optionee's lifetime shall be exercisable only by
the Optionee.

     

    10.           In
the event of the Optionee's death, the Option shall thereafter be exercisable
(to the extent otherwise exercisable hereunder) only by the Optionee's
Beneficiary, executors or administrators.

     


    
      
         


      

      
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    11.           The
terms and conditions of the Option, including the number of shares and the class
or series of capital stock which may be delivered upon exercise of the Option
and the purchase price per share, are subject to adjustment as provided in
Paragraph 23 of the Plan.

     

    12.           The
Optionee agrees that the obligation of the Company to issue shares upon the
exercise of the Option shall also be subject, as conditions precedent, to
compliance with applicable provisions of the Securities Exchange Act of 1934, as
amended, state securities or corporation laws, rules and regulations under any
of the foregoing and applicable requirements of any securities exchange upon
which the Company's securities shall be listed.

     

    13.           The
Option has been granted subject to the terms and conditions of the Plan, a copy
of which has been provided to the Optionee and which the Optionee acknowledges
having received and reviewed.  Any conflict between this Agreement and
the Plan shall be decided in favor of the provisions of the Plan.  Any
conflict between this Agreement and the terms of a written employment agreement
for the Optionee that has been approved, ratified or confirmed by the Board of
Directors of the Company or the Committee shall be decided in favor of the
provisions of such employment agreement.  Capitalized terms used but
not defined in this Agreement shall have the meanings given to them in the
Plan.  This Agreement may not be amended in any manner adverse to the
Optionee except by a written agreement executed by the Optionee and the
Company.

     

    14.           By
executing this Agreement, the Optionee hereby consents to the electronic
delivery of prospectuses, annual reports and other information required to be
delivered by Securities and Exchange Commission rules.  This consent
may be revoked in writing by the Optionee at any time upon three business days’
notice to the Company, in which case subsequent prospectuses, annual reports and
other information will be delivered in hard copy to the Optionee.

     

    15.           The
Company or any Affiliate employing the Optionee has the authority and the right
to deduct or withhold, or require the Optionee to remit to the Company or its
Affiliate, as applicable, an amount sufficient to satisfy federal, state, and
local income and employment taxes (including the Optionee’s FICA obligation)
required by law to be withheld with respect to any taxable event arising as a
result of the exercise of the Option (or any portion thereof).  The
withholding requirement may be satisfied, in whole or in part, at the election
of the Optionee by withholding from the shares of Common Stock otherwise
issuable upon the exercise of the Option (or portion thereof) that number of
shares having an aggregate fair market value (as defined in the Plan) on the
date of the withholding equal to the minimum amount (and not any greater amount)
required to be withheld for tax purposes, all in accordance with such procedures
as the Committee establishes.  The obligations of the Company under
this Agreement will be conditional on such payment or arrangements, and the
Company, and, where applicable, its Affiliates, will, to the extent permitted by
law, have the right to deduct any such taxes from any payment of any kind
otherwise due to Optionee.

     

    
      
        
        

      

      
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    16.           Notices
and communications under this Agreement must be in writing and either personally
delivered or sent by registered or certified United States mail, return receipt
requested, postage prepaid.  Notices to the Company must be addressed
to Wendy’s/Arby’s Group, Inc., 1155 Perimeter Center West, Suite 1200, Atlanta,
GA 30338; Attn: Secretary, or any other address designated by the Company in a
written notice to the Optionee.  Notices to the Optionee will be
directed to the address of the Optionee then currently on file with the Company,
or at any other address given by the Optionee in a written notice to the
Company.

     

    17.           If
any provision of this Agreement could cause the application of an accelerated or
additional tax under Section 409A of the Code upon the vesting or exercise of
the Option (or any portion thereof), such provision shall be restructured, to
the minimum extent possible, in a manner determined by the Company (and
reasonably acceptable to the Optionee) that does not cause such an accelerated
or additional tax (including, if applicable, by increasing the purchase price of
the shares of Common Stock subject to the Option to the reflect the “fair market
value” of share of Common Stock on the Date of Grant, within the meaning of
Section 409A of the Code and any Treasury Regulations or other IRS guidance
promulgated thereunder).

     

    18.           This
grant does not constitute an employment contract.  Nothing herein
shall confer upon the Optionee the right to continue to serve as a director or
officer to, or to continue as an employee or service provider of, the Company or
any of its Affiliates for the length of the vesting schedule set forth in
Section 4 or for any portion thereof.

     

    IN
WITNESS WHEREOF, the Company has caused this Agreement to be signed by an
officer duly authorized thereto as of the ____ day of ________,
20__.

     

    WENDY’S/ARBY’S
GROUP, INC.

    


    


    By:
_______________________________

    Name:    Roland C.
Smith

    Title:      President
and

          
Chief Executive Officer

    


    


    ACCEPTED
AND AGREED TO:

    


    


    ___________________________________

    Optionee
Name

     

    
      
         


      

      
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