exhibit10-25_030410.htm


    Exhibit
10.25

    


    


    


    


    


    


    


    WENDY'S
INTERNATIONAL, INC.

    AMENDED
AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN NO. 3

    


    (EFFECTIVE
JANUARY 1, 2010)

    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    WENDY'S
INTERNATIONAL, INC.

    SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN NO. 3

    


     

    
      
        	
                Preamble

              	
                1

              
	
                 

                Article
      I - Definitions

                 

              	
                 

                1

              
	
                    1.1  Account

              	
                1

              
	
                    1.2  Active
      Participant

              	
                1

              
	
                    1.3  Beneficiary

              	
                1

              
	
                    1.4  Board

              	
                1

              
	
                    1.5  Cause

              	
                1

              
	
                    1.6  Change
      in Control

              	
                2

              
	
                    1.7  Code

              	
                4

              
	
                    1.8  Committee

              	
                4

              
	
                    1.9  Company

              	
                4

              
	
                    1.10  Compensation

              	
                4

              
	
                    1.11  Contributions

              	
                4

              
	
                    1.12  Covered
      Employee

              	
                4

              
	
                    1.13  Effective
      Date

              	
                4

              
	
                    1.14  Employee

              	
                5

              
	
                    1.15  Good
      Reason

              	
                5

              
	
                    1.16  Inactive
      Participant

              	
                5

              
	
                    1.17  Normal
      Retirement Date / Age

              	
                5

              
	
                    1.18  Participant

              	
                5

              
	
                    1.19  Participating
      Employer

              	
                5

              
	
                    1.20  Plan
      Year

              	
                5

              
	
                    1.21  SERP

              	
                5

              
	
                    1.22  Total
      and Permanent Disability

              	
                5

              
	
                    1.23  WAG
      401(k) Plan

              	
                5

              
	
                    1.24  Year
      of Service

              	
                5

              
	
                 

                Article
      II - Eligibility and Participation

                 

              	
                 

                6

              
	
                    2.1  Eligibility

              	
                6

              
	
                    2.2  Reemployment
      Following Qualified Military Service

              	
                6

              
	
                 

                Article
      III - Amount of Benefit

                 

              	
                 

                6

              
	
                    3.1  Credits
      to Supplemental Account

              	
                6

              
	
                    3.2  Termination
      Benefit

              	
                7

              
	
                 

                Article
      IV - Forms of Payment

                 

              	
                 

                7

              
	
                    4.1  Distribution
      of Benefits

              	
                7

              
	
                    4.2  Distributions
      on Total and Permanent Disability or Death

              	
                8

              
	
                    4.3  Distributions
      on Change in Control

              	
                8

              
	
                    4.4  Designation
      of Beneficiary

              	
                9

              


         

        
          
             

          

          
             

            
              

            

          

        

        
          	
                  Article
      V - Plan Administration

                   

                	9
	
                      5.1  Plan
      Administration

                	
                  9

                
	
                      5.2  Powers
      of the Plan Administrator

                	
                  9

                
	
                      5.3  Committee

                	
                  10

                
	
                      5.4  Indemnification

                	
                  10

                
	
                   

                  Article
      VI - Claims Procedure

                   

                	
                   

                  10

                
	
                      6.1  Claims
      Review

                	
                  10

                
	
                      6.2  Appeals
      Procedure

                	
                  11

                
	
                      6.3  Discretion
      Regarding Claims and Appeals

                	
                  11

                
	
                   

                  Article
      VII - Miscellaneous

                   

                	
                   

                  12

                
	
                      7.1  Amendment
      and Termination

                	
                  12

                
	
                      7.2  No
      Contract Of Employment

                	
                  12

                
	
                      7.3  Unfunded
      Plan

                	
                  12

                
	
                      7.4  Restrictions
      Upon Assignments and Creditors’ Claims

                	
                  12

                
	
                      7.5  Payment
      Constitutes Release

                	
                  13

                
	
                      7.6  Applicable
      Law

                	
                  13

                


        

      


      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

     

    WENDY'S
INTERNATIONAL, INC.

    SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN NO. 3

    


    Prior to
January 1, 2010, Wendy's International, Inc. maintained the Wendy's
International, Inc. Profit Sharing and Savings Plan for the benefit of its
non-crew employees.  Effective December 31, 2009, the Profit Sharing
and Savings Plan merged with and into the Wendy’s/Arby’s Group, Inc. 401(k)
Retirement Plan (the “WAG 401(k) Plan”).  The Company has adopted this
Supplemental Executive Retirement Plan No. 3 (the “SERP”) to provide benefits in
excess of those permitted in the WAG 401(k) Plan under the Internal Revenue Code
and in compliance with the provisions of Code section 409A.  This SERP
shall be interpreted in conformity with the requirements of Code section
409A.

    


    


    ARTICLE I - DEFINITIONS

    


    Whenever
used herein with the initial letter capitalized and unless a different meaning
is plainly required by the context, words and phrases shall have (a) the
meanings stated below, or (b) if not stated below, the meanings given to them in
the WAG 401(k) Plan Plan, if defined under that plan.  All masculine
terms shall include the feminine and all singular terms shall include the
plural, unless the context clearly indicates the gender or the
number.

    


    
      	
               
      

            	
              1.1

            	
              ACCOUNT means a notional
      account established for each Participant equal to all supplemental
      contributions and interest credited under Section
  3.1.

            


    

     

    
      	
               
      

            	
              1.2

            	
              ACTIVE PARTICIPANT means a
      Covered Employee who becomes a Participant and continues to participate in
      the SERP pursuant to Article II.

            


    

     

    
      	
               
      

            	
              1.3

            	
              BENEFICIARY means any
      person or persons designated by a Participant to receive any death
      benefits that may become payable under Article IV after the death of such
      Participant.

            


    

     

    
      	
               
      

            	
              1.4

            	
              BOARD means the Board of
      Directors of the Company.

            


    

     

    
      	
               
      

            	
              1.5

            	
              CAUSE means the
      termination of a Participant’s employment by reason of the Board’s good
      faith determination that the Participant (a) willfully and continually
      failed to substantially perform his or her duties with the Company or
      Participating Employer (other than a failure resulting from the
      Participant’s incapacity due to physical or mental illness) after a
      written demand for substantial performance is delivered to the Participant
      by the Board which specifically identifies the manner in which the Board
      believes that the Participant has not substantially performed his or her
      duties and such failure substantially to perform continues for at least
      fourteen (14) days, or (b) has willfully engaged in conduct which is
      demonstrably and materially injurious to the Company or Participating
      Employer, monetarily or otherwise, or (c) has otherwise materially
      breached the terms of his or her employment agreement with the Company or
      Participating Employer, if

            


    

     


    
      
         


      

      
        
          

        

      

      
         


      

    


    
      	
               
      

            	
              applicable
      (each, an “Employment Agreement”) (including, without limitation,
      a voluntary termination of the Participant’s employment by the
      Participant during the term of such Employment Agreement).  No
      act, nor failure to act, on the Participant’s part, shall be considered
      “willful” unless he or she has acted, or failed to act, with an absence of
      good faith and without a reasonable belief that his or her action or
      failure to act was in the best interest of the
      Company.  Notwithstanding the foregoing, the Participant’s
      employment shall not be deemed to have been terminated for Cause
      unless and until (1) there shall have been delivered to the Participant a
      copy of a written notice setting forth that the Participant was guilty of
      conduct set forth above in clause (a), (b) or (c) of the first sentence of
      this definition and specifying the particulars thereof in detail, and (2)
      the Participant shall have been provided an opportunity to be heard by the
      Board (with the assistance of Participant’s
  counsel).

            


    

     

    
      	
               
      

            	
              1.6

            	
              CHANGE IN CONTROL means
      the occurrence during the Plan Year
of:

            


    

     

    
      	
               
      

            	
              a)

            	
              An
      acquisition (other than directly from the Company) of any common stock or
      other voting securities of the Company entitled to vote generally for the
      election of directors (the "Voting Securities") by any "Person" (as
      the term person is used for purposes of Section 13(d) or 14(d) of the
      Securities Exchange Act of 1934, as amended (the "Exchange Act")),
      immediately after which such Person has "Beneficial Ownership" (within the
      meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty
      percent (30%) or more of the then outstanding shares of the Company's
      common stock or the combined voting power of the Company's then
      outstanding Voting Securities; provided, however, in
      determining whether a Change in Control has occurred, Voting Securities
      which are acquired in a "Non-Control Acquisition" (as hereinafter defined)
      shall not constitute an acquisition which would cause a Change in
      Control.  A "Non-Control Acquisition" shall mean an acquisition
      by (1) an employee benefit plan (or a trust forming a part thereof)
      maintained by (A) the Company or (B) any corporation or other Person
      of which a majority of its voting power or its voting equity securities or
      equity interest is owned, directly or indirectly, by the Company (for
      purposes of this definition, a "Subsidiary") (2) the Company or its
      Subsidiaries, or (3) any Person in connection with a "Non-Control
      Transaction" (as hereinafter
defined);

            


    

     

    
      	
               
      

            	
              b)

            	
              The
      individuals who, as of January 1, 2003, are members of the Board (the
      "Incumbent Board"), cease for any reason to constitute at least seventy
      percent (70%) of the members of the Board; provided, however, that
      if the election, or nomination for election by the Company's common
      stockholders, of any new director was approved by a vote of at least
      two-thirds of the Incumbent Board, such new director shall, for purposes
      of this SERP, be considered as a member of the Incumbent Board; provided further, however, that
      no individual shall be considered a member of the Incumbent Board if such
      individual initially assumed office as a result
  of

            


    

     


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              an
      actual or threatened solicitation of proxies or consents by or on behalf
      of a Person other than the Board (a "Proxy Contest") including by reason
      of any agreement intended to avoid or settle any Proxy Contest;
      or

            


    

     

    
      	
               
      

            	
              c)

            	
              The
      consummation of:

            


    

     

    
      	
               
      

            	
              1)

            	
              A
      merger, consolidation or reorganization with or into the Company, or in
      which securities of the Company are issued (a "Merger"), unless such
      Merger is a "Non-Control Transaction."  A "Non-Control
      Transaction" shall mean a Merger
if:

            


    

     

    
      	
               
      

            	
              A)

            	
              the
      stockholders of the Company, immediately before such Merger own directly
      or indirectly immediately following such Merger at least seventy percent
      (70%) of the combined voting power of the outstanding voting securities of
      the corporation resulting from such Merger (the "Surviving Company") in
      substantially the same proportion as their ownership of the Voting
      Securities immediately before such
Merger,

            


    

     

    
      	
               
      

            	
              B)

            	
              the
      individuals who were members of the Incumbent Board immediately prior to
      the execution of the agreement providing for such Merger constitute at
      least two-thirds of the members of the board of directors of the Surviving
      Company, or a corporation beneficially directly or indirectly owning a
      majority of the Voting Securities of the Surviving Company,
      and

            


    

     

    
      	
               
      

            	
              C)

            	
              no
      Person other than (i) the Company, (ii) any Subsidiary, (iii) any employee
      benefit plan (or any trust forming a part thereof) that, immediately prior
      to such Merger was maintained by the Company or any Subsidiary, or (iv)
      any Person who, immediately prior to such Merger had Beneficial Ownership
      of thirty percent (30%) or more of the then outstanding Voting Securities
      or common stock of the Company, has Beneficial Ownership of thirty percent
      (30%) or more of the combined voting power of the Surviving Company then
      outstanding voting securities or its common
  stock;

            


    

     

    
      	
               
      

            	
              2)

            	
              A
      complete liquidation or dissolution of the Company;
  or

            


    

     

    
      	
               
      

            	
              3)

            	
              The
      sale or other disposition of all or substantially all of the assets of the
      Company to any Person (other than a transfer to a
    Subsidiary).

            


    

     

    Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the "Subject Person") acquired Beneficial Ownership

     


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    of more
than the permitted amount of the then outstanding common stock or Voting
Securities as a result of the acquisition of common stock or Voting Securities
by the Company which, by reducing the number of shares of common stock or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the
acquisition of common stock or Voting Securities by the Company, and after such
share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional common stock or Voting Securities which increase the
percentage of the then outstanding Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.

     

    
      	
               
      

            	
              1.7

            	
              CODE means the Internal
      Revenue Code of 1986, as amended from time to
  time.

            


    

     

    
      	
               
      

            	
              1.8

            	
              COMMITTEE means the
      Administrative Committee established in
  Article V.

            


    

     

    
      	
               
      

            	
              1.9

            	
              COMPANY means, prior to
      January 1, 2010, Wendy's International, Inc.  Effective January
      1, 2010, Company means Wendy’s/Arby’s Group,
  Inc.

            


    

     

    
      	
               
      

            	
              1.10

            	
              COMPENSATION means a
      Participant's annual Compensation, as that term is defined in the WAG
      401(k) Plan, except that there shall be no maximum amount of Compensation
      considered.  Compensation paid by the Company or any of its
      Subsidiaries after January 1, 2010 for services performed by a legacy
      Wendy’s brand employee, shall be treated as Compensation even though it is
      not paid by a Participating
Employer.

            


    

     

    
      	
               
      

            	
              1.11

            	
              CONTRIBUTIONS means the
      amounts credited to a Participant's Account during a Plan Year, other than
      interest, pursuant to Article III.

            


    

     

    
      	
               
      

            	
              1.12

            	
              COVERED EMPLOYEE means
      an Employee who, after October 26, 2006, was first appointed to serve as
      an officer:

            


    

     

    
      	
               
      

            	
              a)

            	
              For
      Wendy’s International, Inc., with the title of "Vice President" or above;
      or

            


    

     

    
      	
               
      

            	
              b)

            	
              For
      any Participating Employer, with such titles as may be designated for that
      Participating Employer by the Board or a committee
  thereof.

            


    

     

    Notwithstanding
the foregoing, an Employee shall not be a Covered Employee under this SERP for
any Plan Year in which such Employee actively participates in the Wendy’s
International, Inc. Supplemental Executive Retirement Plan No. 2.

    


    
      	
               
      

            	
              1.13

            	
              EFFECTIVE DATE means
      January 1, 2010, the effective date of this
  SERP.

            


    

     


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              1.14

            	
              EMPLOYEE means a person
      employed by the Company or a Participating Employer who is a United States
      citizen or resident alien.

            


    

     

    
      	
               
      

            	
              1.15

            	
              GOOD REASON shall
      mean:

            


    

     

    
      	
               
      

            	
              a)

            	
              in
      the case of an employee whose employment with the Company or one of its
      subsidiaries is subject to the terms of an employment agreement between
      such individual and the Company or such subsidiary, which employment
      agreement includes a definition of “Good Reason,” shall have the meaning
      set forth in such employment agreement during the period that such
      employment agreement remains in effect following a Change in Control,
      and

            


    

     

    
      	
               
      

            	
              b)

            	
              in
      all other cases, means (1) a material diminution in position or
      responsibilities, (2) a material reduction of salary or aggregate
      incentive compensation opportunities or (3) a required relocation beyond
      fifty miles from the present work
location.

            


    

     

    
      	
               
      

            	
              1.16

            	
              INACTIVE PARTICIPANT
      means a former Active Participant who is no longer a Covered Employee but
      who has an Account remaining in the
SERP.

            


    

     

    
      	
               
      

            	
              1.17

            	
              NORMAL RETIREMENT DATE
      and NORMAL RETIREMENT AGE
      both mean the first of the month coincident with or next following
      a Participant's sixty-fifth
birthday.

            


    

     

    
      	
               
      

            	
              1.18

            	
              PARTICIPANT means an
      Active Participant or an Inactive
Participant.

            


    

     

    
      	
               
      

            	
              1.19

            	
              PARTICIPATING EMPLOYER
      means an Affiliate, as defined in the WAG 401(k) Plan, that has been
      authorized to participate in the SERP by the Board or a committee
      thereof.

            


    

     

    
      	
               
      

            	
              1.20

            	
              PLAN YEAR means the
      calendar year.

            


    

     

    
      	
               
      

            	
              1.21

            	
              SERP means the Wendy's
      International, Inc. Supplemental Executive Retirement Plan No.
      3.

            


    

     

    
      	
               
      

            	
              1.22

            	
              TOTAL AND PERMANENT
      DISABILITY means a physical or mental condition which qualifies a
      Participant for Social Security disability benefits or which qualifies
      such Participant to continue to receive benefits under the Company's
      disability plan, after having received such benefits for twelve (12)
      months.

            


    

     

    
      	
               
      

            	
              1.23

            	
              WAG 401(k) PLAN means
      the Wendy's/Arby’s Group, Inc. 401(k) Retirement
  Plan.

            


    

     

    
      	
               
      

            	
              1.24

            	
              YEAR OF SERVICE means
      any Plan Year during which an Employee is credited with a Year of Service
      under the WAG 401(k) Plan.

            


    

     


    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    ARTICLE
II - ELIGIBILITY AND PARTICIPATION

     

    
      	
               
      

            	
              2.1

            	
              ELIGIBILITY

            


    

     

    A Covered
Employee shall become a Participant in the SERP on the latest of the Effective
Date, the first day of the Plan Year following the date the Employee became a
Covered Employee (the Covered Employee's date of hire or promotion into eligible
employment), or the Entry Date upon which the Covered Employee becomes a Match
Eligible Participant in the WAG 401(k) Plan.

     

    
      	
               
      

            	
              2.2

            	
              REEMPLOYMENT FOLLOWING
      QUALIFIED MILITARY SERVICE

            


    

     

    Notwithstanding
any provision of this SERP to the contrary, a Covered Employee who returns to
employment following qualified military service shall be credited with such
Contributions and Years of Service as required under Chapter 43 of Title 38 of
the United States Code.

    


    ARTICLE
III – AMOUNT OF BENEFIT

     

    
      	
               
      

            	
              3.1

            	
              CREDITS TO SUPPLEMENTAL
      ACCOUNT

            


    

     

    
      	
               
      

            	
              a)

            	
              For
      each Plan Year commencing after December 31, 2006, for each Active
      Participant who remains employed as a Covered Employee by the Company or a
      Participating Employer on the last day of the Plan Year, or who dies,
      becomes disabled or attains Normal Retirement Age during the Plan Year
      while actively employed, the Company shall credit to the Supplemental
      Account of such Active Participant an amount equal to the sum
      of:

            


    

     

    
      	
               
      

            	
              1)

            	
              Deemed Match
      Credit.  As of the last day of each Plan Year commencing
      after December 31, 2006, an amount equal to a percentage of the
      Participant’s Compensation for the Plan Year in excess of the dollar
      limitation under Code section 401(a)(17), where the percentage is the
      maximum annual rate of match available under the WAG 401(k)
      Plan.

            


    

     

    
      	
               
      

            	
              2)

            	
              Profit Sharing
      Contribution Credit.  As soon as practicable after the
      Company approves a profit sharing contribution to the WAG 401(k) Plan, an
      amount equal to a percentage of the Participant’s Compensation for the
      Plan Year in excess of the dollar limitation under Code section
      401(a)(17), where the percentage is the annual rate of the profit-sharing
      contribution made to the WAG 401(k) Plan on the Participant’s behalf for
      such Plan Year (expressed as a percentage of his or her “compensation,” as
      defined pursuant to the WAG 401(k) Plan and with the percentage rounded to
      the nearest one hundredth of a
percent).

            


    

     

    
      	
               
      

            	
              b)

            	
              Interest.  On
      the last day of each Plan Year, interest shall be credited to the
      Supplemental Account as of that date but before crediting the
      allocation

            


    

     


    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              for
      that Plan Year (if any) under this Section, for each Participant at a rate
      equal to the 30 year Constant Maturity Treasury Rate (or the next longest
      US government bond rate then available) as of November 30th.

            


    

     

    
      	
               
      

            	
              3.2

            	
              TERMINATION
      BENEFIT

            


    

     

    If a
Participant's employment terminates for any reason on or after his Normal
Retirement Age, after incurring a Total and Permanent Disability, as a result of
death or after completing five (5) Years of Service, such Participant (or his
Beneficiary in the event of the Participant's death) shall be entitled to
receive a benefit, payable in accordance with Article IV, equal to the balance
of the Participant's Account.  If a Participant's employment is
terminated for any reason prior to the earliest of attaining his Normal
Retirement Age, incurring a Total and Permanent Disability, the date of his
death or completing five (5) Years of Service, then notwithstanding any contrary
provision in this SERP, neither the Participant nor his Beneficiary shall be
entitled to any benefits under this SERP.

     

    Notwithstanding
the foregoing, the Participant shall be entitled to receive a benefit payable in
accordance with Article IV, equal to the balance of the Participant's Account,
if the Participant’s employment is terminated by the Company without Cause (a)
within two years following a Change in Control or (b) prior to the date of a
Change in Control if the Participant reasonably demonstrates that the
termination (1) was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change in Control or
(2) otherwise arose in connection with, or in anticipation of, a Change in
Control which has been threatened or proposed, such termination shall be deemed
to have occurred after a Change in Control for purposes of this Agreement
provided a Change in Control shall actually have occurred.

     

     

    ARTICLE
IV - FORMS OF PAYMENT

     

    
      	
               
      

            	
              4.1

            	
              DISTRIBUTION OF
      BENEFITS

            


    

     

    
      	
               
      

            	
              a)

            	
              Normal
      Form.  Unless a Participant elects one of the
      distribution alternatives described in Section 4.1(b) in the manner set
      forth in Section 4.1(c), upon the Participant’s Termination (other than
      for death, Total and Permanent Disability or a Termination described in
      Section 4.3), the Participant will receive the distribution of his or her
      Accounts in a single lump sum payable within 60 days after the first day
      of the calendar quarter following the six month anniversary of the date of
      such Termination.

            


    

     

    
      	
               
      

            	
              b)

            	
              Alternative
      Form.  In the alternative, a Participant may elect to
      receive his or her Accounts in quarterly installments payable over no less
      than two years and no more than fifteen (15) years commencing within 60
      days after the first day of the calendar quarter following the six-month
      anniversary of the date of such Termination, with the amount of each
      installment equal to the amount of the Account on the Valuation
      Date

            


    

     


    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              immediately
      prior to the payment of such installment divided by the number of
      installments remaining to be paid.

            


    

     

    
      	
               
      

            	
              c)

            	
              Timing
      and Manner of Distribution Elections.  Distribution
      elections shall be made in such manner as may be designated by the Plan
      Administrator and communicated to Participants.  Any election
      made within twelve months of the date payment would otherwise commence
      (unless made no later than 30 days after becoming a Participant) shall be
      disregarded and benefits shall be paid in accordance with the preceding
      distribution election, if any, selected by such Participant or, if no such
      distribution election has been made, in accordance with Section
      4.1(a).  Any distribution election made more than 30 days after
      the Participant became a Covered Employee shall delay the commencement of
      distributions to such Participant by five years from the date payments
      would have commenced in accordance with the preceding distribution
      election, if any, selected by such Participant or, if no such distribution
      election has been made, in accordance with Section
      4.1(a).

            


    

     

    
      	
               
      

            	
              4.2

            	
              DISTRIBUTIONS ON TOTAL AND
      PERMANENT DISABILITY OR
DEATH

            


    

     

    Notwithstanding
the foregoing, in the event: (a) a Participant incurs a Total and Permanent
Disability or (b) a Participant dies, whether before or after the payment of
benefits has commenced hereunder, the Participant’s total Account Balance shall
be paid in a single lump sum as soon as practicable after such occurrence (but
not later than the later of (1) the last day of the calendar year in which the
event occurs, or (2) 60 days after the date the event occurs).

     

    
      	
               
      

            	
              4.3

            	
              DISTRIBUTIONS ON CHANGE IN
      CONTROL

            


    

     

    Notwithstanding
the foregoing, if a Participant’s employment with the Company and its Affiliates
is involuntarily terminated without Cause or is terminated by the Participant
for Good Reason:

     

    
      	
               
      

            	
              (a)

            	
              If
      the termination of employment occurs within two years following a Change
      in Control and the Change in Control constitutes “a change in ownership or
      effective control of the Company” or a “change in the ownership of a
      substantial portion of the Company’s assets,” in each case within the
      meaning of Code section 409A, the Participant’s Total Account Balance
      shall be paid in a single lump sum within 60 days after the first day of
      the calendar quarter following the six month anniversary of the date of
      such termination.

            


    

     

    
      	
               
      

            	
              (b)

            	
              If
      the termination of employment occurs within two years following a Change
      in Control but the Change in Control does not constitute either “a change
      in ownership or effective control of the Company” or a “change in the
      ownership of a substantial portion of the Company’s assets,” in each case
      within the meaning of Code section 409A, the Participant’s
      total

            


    

     


    
      
         


      

      
        8

        
          

        

      

      
         


      

    



    
      	
               
      

            	
              Account
      Balance shall be paid at the time and in the manner elected by the
      Participant pursuant to Section
4.1.

            


    

     

    
      	
               
      

            	
              (c)

            	
              If
      the Plan Administrator determines that a Participant has demonstrated that
      a termination prior to a Change in Control met the requirements for
      accelerated vesting under Section 3.2(b), the Participant’s total Account
      Balance shall be paid at the time and in the manner elected by the
      Participant pursuant to Section 4.1, with the date of the Change in
      Control treated as the date of Termination when determining the timing of
      the distribution.

            


    

     

    
      	
               
      

            	
              4.4

            	
              DESIGNATION OF
      BENEFICIARY

            


    

     

    Each
Participant shall designate, by giving a designation in approved form to the
Plan Administrator, a Beneficiary to receive any benefits which may become or
continue to be payable upon or after his death under this
Plan.  Successive designations may be made and the last designation
received by the Plan Administrator prior to the death of the Participant shall
be effective and shall revoke all prior designations.

    


    If a
Participant shall fail to designate a Beneficiary, if such designation shall for
any reason be illegal or ineffective or if no Beneficiary so designated survives
the Participant, then his benefits shall be paid to:

    


    
      	
               
      

            	
              a)

            	
              His
      surviving spouse; or

            


    

     

    
      	
               
      

            	
              b)

            	
              If
      there is no surviving spouse, to the executor or other personal
      representative of the Participant to be distributed in accordance with the
      Participant’s will, or if he has no valid will, in accordance with
      applicable state law.

            


    

     

     

    ARTICLE
V - PLAN ADMINISTRATION

     

    
      	
               
      

            	
              5.1

            	
              PLAN
      ADMINISTRATOR

            


    

     

    
      	
               
      

            	
              a)

            	
              The
      Company shall be the Plan Administrator.  The Company shall
      appoint a Committee to act as its agent or delegate in carrying out its
      administrative duties.

            


    

     

    
      	
               
      

            	
              b)

            	
              The
      Committee shall consist of not fewer than three (3) members who shall be
      appointed by the Company and may include individuals who are not
      Participants in the Plan.  The Company may remove or replace any
      member at any time in its sole discretion, and any member may resign by
      delivering a written resignation to the Company, which resignation shall
      become effective at its delivery or at any later date specified
      therein.

            


    

     

    
      	
               
      

            	
              5.2

            	
              POWERS OF THE PLAN
      ADMINISTRATOR

            


    

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

    The Plan
Administrator shall be charged with the operation and administration of the
SERP in accordance with the terms hereof and shall have all the powers necessary
to carry out the provisions of the SERP.  Any and all determinations,
actions or decisions of the Plan Administrator and Committee with respect to the
administration of the SERP, including without limitation the determination of
benefit eligibility and interpretation of SERP provisions, shall be final and
conclusive and binding upon all parties having an interest in the
SERP.

    


    
      	
               
      

            	
              5.3

            	
              COMMITTEE

            


    

     

    
      	
               
      

            	
              a)

            	
              The
      Committee shall hold meetings upon such notice and at such times and
      places as its members may from time to time deem appropriate, and may
      adopt from time to time such bylaws and regulations for the conduct and
      transaction of its business and affairs consistent with the terms of the
      Plan and the delegation of duties and powers by the Company.  A
      majority of its members at the relevant time shall constitute a quorum for
      the transaction of business.  All action taken by the Committee
      shall be by vote of the majority of its members present at such meeting,
      except that the Committee also may act without a meeting by a written
      consent signed by a majority of its members.  A member shall not
      be disqualified from acting because of any personal interest, benefit or
      advantage, inasmuch as a member may be a director of the Company, an
      Employee or a Participant, but no member shall vote or act in connection
      with an action of the Committee relating exclusively to
      himself.

            


    

     

    
      	
               
      

            	
              b)

            	
              The
      Committee may allocate among its members such specific responsibilities,
      obligations, powers or duties as shall be deemed
    appropriate.

            


    

     

    
      	
               
      

            	
              5.4

            	
              INDEMNIFICATION

            


    

     

    The
Company shall indemnify and defend each member of the Committee and all officers
or representatives of the Company and Employees assigned fiduciary
responsibility under Federal law to the greatest extent permitted by applicable
law against any and all claims, losses, damages, expenses (including reasonable
attorneys' fees) and liability arising from any action or failure to act in
connection with the SERP.

    


    ARTICLE
VI - CLAIMS PROCEDURES

     

    
      	
               
      

            	
              6.1

            	
              CLAIMS
      REVIEW

            


    

     

    Any
Participant, former Participant or Beneficiary who wishes to request a review of
a claim for benefits or who wishes an explanation of a benefit or its denial may
direct to the Plan Administrator a written request for such review within one
hundred twenty (120) days of the denial.  The Plan Administrator shall
respond to the request by issuing a notice to the claimant as soon as possible,
but in no event later than ninety (90) days (one hundred eighty (180) days in
special cases) from the date of receipt of the request.  This notice
furnished by the Plan Administrator 

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    shall be
written in a manner calculated to be understood by the claimant and shall
include the following:

    


    
      	
               
      

            	
              a)

            	
              The
      specific reason or reasons for any denial of
  benefits;

            


    

     

    
      	
               
      

            	
              b)

            	
              The
      specific SERP provisions on which any denial is
  based;

            


    

     

    
      	
               
      

            	
              c)

            	
              A
      description of any further material or information which is necessary for
      the claimant to perfect his claim and an explanation of why the material
      or information is needed; and

            


    

     

    
      	
               
      

            	
              d)

            	
              An
      explanation of the SERP's claim appeals
  procedure.

            


    

     

    If the
Plan Administrator denies the claim or fails to respond to the claimant's
written request for a review within one hundred eighty (180) days of its
receipt, the claimant shall be entitled to proceed to the claim appeals
procedure described in Section 6.2.  If the claimant does not respond
to the notice, posted by first-class mail to the address of record of the
claimant, within sixty (60) days from receipt of the notice, the claimant shall
be considered satisfied in all respects.

    


    
      	
               
      

            	
              6.2

            	
              APPEALS
      PROCEDURE

            


    

     

    In the
event that the claimant wishes to appeal the claim review denial, the claimant
or his duly authorized representative may submit to the Plan Administrator,
within sixty (60) days of his receipt of the notice, a written notification of
appeal of the claim denial.  The notification of appeal of the claim
denial shall permit the claimant or his duly authorized representative to
utilize the following claim appeals procedures:

    


    
      	
               
      

            	
              a)

            	
              To
      review pertinent documents; and

            


    

     

    
      	
               
      

            	
              b)

            	
              To
      submit issues and comments in writing to which the Plan Administrator
      shall respond.

            


    

     

    The Plan
Administrator shall furnish a final written decision on formal review not later
than sixty (60) days after receipt of the notification of appeal, unless special
circumstances require an extension of the time for processing the
appeal.  In no event, however, shall the Plan Administrator respond
later than one hundred twenty (120) days after a request for an
appeal.  The decision on the appeal shall be written in a manner
calculated to be understood by the claimant, shall include specific reasons for
the decision, and shall contain specific references to the pertinent SERP
provisions on which the decision is based.

    


    
      	
               
      

            	
              6.3

            	
              DISCRETION REGARDING CLAIMS AND
      APPEALS

            


    

     

    The Plan
Administrator, or any individual or committee to whom responsibility for claims
and appeals has been delegated, shall have complete discretion in

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    deciding
such claims and appeals and any such decision shall be final, conclusive and
binding upon the claimant.

     

    


    ARTICLE
VII - MISCELLANEOUS

     

    
      	
               
      

            	
              7.1

            	
              AMENDMENT AND
      TERMINATION

            


    

     

    The SERP
may be amended by the Company, by action of its Board or a committee thereof, at
any time in its discretion and without the consent of any
Participant.  However, in the event of the amendment or termination of
the SERP, any benefit accrued to such date shall not be reduced or forfeited
without the consent of each affected Participant.  Further, the SERP
may not be amended or terminated for two years following the end of the Plan
Year in which a Change in Control occurs or, prior to the date of a Change in
Control, if an affected Participant reasonably demonstrates that the amendment
or termination had been adopted (a) at the request of a third party who has
indicated an intention or taken steps reasonably calculated to effect a Change
in Control or (b) otherwise in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed, in either case provided
a Change in Control shall actually have occurred.

     

    
      	
               
      

            	
              7.2

            	
              NO CONTRACT OF
      EMPLOYMENT

            


    

     

    Nothing
herein contained shall be construed to constitute a contract of employment
between the Company and any Participant.

    


    
      	
               
      

            	
              7.3

            	
              UNFUNDED
      PLAN

            


    

     

    The SERP
at all times shall be considered entirely unfunded both for tax purposes and for
purposes of the Employee Retirement Income Security Act of 1974
(ERISA).  Notwithstanding the foregoing, the Company may establish a
benefits protection trust for the benefit of Participants with an independent
bank as trustee.  Prior to a Change in Control, the Company shall
transfer to such trust assets equal to the Accounts of all
Participants.  Any benefits protection trust established to provide
benefits under this SERP shall at all times remain subject to the claims of the
Company's general creditors in the event of insolvency.

    


    
      	
               
      

            	
              7.4

            	
              RESTRICTIONS UPON ASSIGNMENTS
      AND CREDITORS' CLAIMS

            


    

     

    No
benefit payable under this SERP shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge prior to
actual receipt thereof by the Participant or Beneficiary and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge prior
to such receipt shall be void.  No benefit payable under this SERP
shall be subject to attachment, garnishment, execution, levy or other legal or
equitable proceeding or process, and any attempt to do so shall be
void.  The Company shall not be in any manner liable for or subject to
the debts, contracts, liabilities, engagements or 

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

    torts of
any Participant or Beneficiary except as may be required by the tax withholding
provisions of the Code or any state's income tax laws.

     

    
      	
               
      

            	
              7.5

            	
              PAYMENT CONSTITUTES
      RELEASE

            


    

     

    Payment
to the Participant or Beneficiary as set forth in Article IV shall completely
discharge the Company's obligations under this SERP, whether paid by a benefits
protection trust established under Section 7.3 or directly by the
Company.

    


    
      	
               
      

            	
              7.6

            	
              APPLICABLE
      LAW

            


    

     

    To the
extent not preempted by Federal law, the SERP shall be construed and
administered in accordance with the laws of the State of Ohio.

    


    


    IN
WITNESS WHEREOF, the Company has caused this instrument to be executed by its
duly authorized officer this 30th day
of December, 2009.

    


    WENDY'S INTERNATIONAL,
INC.

    


    By: 
/s/ Wendy
Henderson      

    Its: 
SVP              


    
      
         


      

      
        13