**Exhibit 10(aa)**

**AMENDED AND RESTATED PERFORMANCE SHARE AWARD AGREEMENT**

**Wendy’s International, Inc.**

 

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THIS AMENDED AND RESTATED 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 Companyand its Subsidiaries; and 

WHEREAS, as of              (the“Date of Grant”), the Committee had 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; and 

WHEREAS, to avoid the negative consequences of a violation of Code section 409A, the Committee and Grantee have agreed to amend the prior award agreementissued on the Date of Grant, as set forth herein. 

NOW, THEREFORE, the parties hereto agree as follows: 

 

1.1 The Companyhereby grants to the Grantee an award of              Performance Shares (the “Award”), subject to adjustment pursuant to Sections 3 and 4 hereof and the executionand 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 bemade 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 forthin the Plan. 

 

The Performance Cycle shall be             the Company’s 20         fiscal year, beginning on            , 20         and ending on             ,20        . 

 

3.1 ThePerformance Objective established by the Committee with respect to the Performance Shares is positive earnings before interest and taxes by the Wendy’s brand for the Performance Cycle. 

3.2 If the Company achieves this Performance Objective during the Performance Cycle and the Committee certifies to this result in accordance withSection 4 hereof, the Performance Shares shall be earned and, subject to Sections 4.1, 5, and 6.4 hereof, on *            *,20         (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 bya factor determined in accordance with the matrix set forth in Appendix A attached hereto. 

For the purpose of applying the matrix setforth in Appendix A, earnings before interest and taxes by the Wendy’s brand shall be as reported on the Company’s income statement for last half of the Company’s 20         fiscal yearwith the following adjustments: 

(i) disregarding the impact of (a) severance costs or other charges incurred in connection with theCompany’s initiative to reduce its overhead as part of an organizational restructuring of the Company, and 

related costs of outside consultants and advisors, or (b) new accounting standards or interpretations issued in20        ; and 

(ii) adjusting the number of Performance Shares in the event of a spin-offof 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 thespin-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 tothe adjustment in the number of Performance Shares. 

 
 4.Determination of Award. 
4.1 DeterminationNotice. 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, inaccordance 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 whichmay 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 theGrantee (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 Noticeshall specify (i) the Company’s reported earnings before interest and taxes by the Wendy’s brand as adjusted pursuant to Section 3.2, and (ii) the number of Earned Performance Shares, if any, calculated in accordance withthe 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 Date of Grant, the Grantee shall also be issued a number of Dividend Equivalent Rights equal to the number of Performance Shares. As of the Issue Date, the number of Dividend EquivalentRights shall be multiplied by a factor determined in accordance with the matrix set forth in Appendix A. Each Dividend Equivalent Right represents the right to receive all of the cash dividends that are or would be payable with respect to the Sharerepresented by the Performance Share or 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 Performance Shares or EarnedPerformance 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 Performance Share or Earned Performance Share shall be subject to thesame terms and conditions applicable to the Performance Share or Earned Performance Share to which the Dividend Equivalent Right relates, including, without limitation, the restrictions on transfer, forfeiture, vesting, voting and payment provisionscontained in Sections 6 through 9 of this Agreement. In the event that a Performance Share or Earned Performance Share is forfeited pursuant to Section 5 or 6 hereof, the related Dividend Equivalent Right shall also be forfeited. 

 
 5.Forfeiture of Award Prior to Issue Date. 
5.1Misconduct. 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 orviolated 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 thatGrantee’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 beentitled to receive any Earned Performance Shares under Section 4 hereof or otherwise under this Agreement. 

 

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 6.Vesting of Earned Performance Shares. 
6.1Restrictions on Transfer. The Earned Performance Shares issued under this Agreement may not be sold, transferred or otherwise disposed of and may not be pledged or otherwise hypothecated. 

6.2 Vesting Generally. Except as provided in Sections 6.3, 6.4 and 7 hereof, one-fourth (1/4) of the number of Earned Performance Sharesissued hereunder (rounded down to the nearest whole Share, if necessary) shall vest on each of the first four (4) anniversaries of the Issue Date. 

 
 6.3Effect of Certain Terminations of Employment. 
(i)If the Grantee dies or becomes Disabled (where such Disability would qualify as a disability under Code section 409A), all Earned Performance Shares which have not become vested in accordance with Section 6.2 or 7 hereof shall vest, and therestrictions on such Earned Performance Shares shall lapse, as of the date of such termination. 

(ii) If the Grantee’s employmentterminates as a result of the Grantee’s Retirement or becoming Disabled (where such Disability would not qualify as a disability under Code section 409A), or if the Grantee is terminated without Cause in connection with the disposition of oneor more restaurants or other assets of the Company or its Subsidiaries or the sale or disposition of a Subsidiary (a “Sale Termination”), all Earned Performance Shares which have not become vested in accordance with Section 6.2 or 7hereof shall vest, and the restrictions on such Earned Performance Shares shall lapse, as of the date of such termination and, if the Grantee is a “specified employee,” shall be settled as set forth in Section 8.3. For purposes ofthis Award Agreement, Retirement shall mean termination of employment after attaining age 60 with at least 10 years of service (as defined in the Company’s qualified retirement plans) other than by reason of death, Disability or for Cause.

6.4 Forfeiture of Earned Performance Shares. Any and all Earned Performance Shares which have not become vested in accordance withSection 6.2, 6.3 or 7 hereof shall be forfeited and shall revert to the Company upon: 

(i) the termination by the Grantee, the Companyor its Subsidiaries of the Grantee’s employment for any reason other than those set forth in Section 6.3 hereof prior to such vesting; or 

(ii) the commission by the Grantee of an Act of Misconduct prior to such vesting. 

 
 7.Effect of Change in Control. 
In the event of aChange in Control which also constitutes a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of its assets, in each case within the meaning of Section 409A of the Code, all EarnedPerformance Shares which have not become vested in accordance with Section 6 hereof shall vest immediately. 

 
 8.Delivery of Shares upon Vesting and Lapse. 
8.1Except as otherwise provided in Section 8.2 or 8.3 hereof, upon the vesting of Earned Performance Shares pursuant to Section 6.2, 6.3 or 7 hereof, the Grantee shall be entitled to receive one (1) Share for each vested EarnedPerformance Share. Evidence of book entry Shares or, if requested by the Grantee prior to such vesting, a stock certificate with respect to such Earned Performance Shares, shall be delivered to the Grantee as soon as practicable following the dateon which such Earned Performance Shares have vested, free of all restrictions hereunder. 

8.2 With respect to Earned Performance Shareswhich have vested upon the Grantee’s death pursuant to Section 6.3 hereof, the Grantee’s estate shall be entitled to receive one (1) Share for each vested Earned Performance Share. Evidence of book entry Shares or, if requestedby the executors or administrators of the 

 

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Grantee’s estate, a stock certificate with respect to such Shares, shall be delivered to the executors or administrators of the Grantee’s estate assoon as practicable following the Company’s receipt of acceptable documentation evidencing such individual’s representation of the Grantee’s estate, free of all restrictions hereunder. 

8.3 If the Grantee is a “specified employee” within the meaning of Section 409A of the Code as of the date of the Grantee’stermination of employment based on the Grantee’s Share ownership (at least 1% of the outstanding Shares) or compensation relative to other employees (in the top 50) and determined in accordance with policies and procedures adopted by theCompany, the Grantee shall be entitled to receive one (1) Share for each Earned Performance Shares which has vested pursuant to Section 6.3(ii) due to the termination of the Grantee’s employment as a result of the Grantee’sRetirement, a Sale Termination, or the Grantee becoming Disabled (other than a Disability which constitutes a disability within the meaning of Code section 409A). Evidence of book entry Shares or, if requested by the Grantee prior to such vesting, astock certificate with respect to such Earned Performance Shares, shall be delivered to the Grantee, free of all restrictions hereunder, as soon as administratively practicable after the first day of the calendar month following the date which issix (6) months after the date of the Grantee’s termination of employment. 

 
 9.Dividends and Voting Rights. 
Except as otherwiseset forth herein, the Grantee (or his or her representative) shall have no rights of a stockholder with respect to any Earned Performance Shares until the Shares have been issued pursuant to Section 8 to the Grantee (or his or herrepresentative). 

 
 10.Execution of Award Agreement. 
The PerformanceShares granted to the Grantee pursuant to the Award shall be subject to the Grantee’s execution and return of this Agreement to the Company or its designee (including by electronic means, if so provided) no later than            , 20         (the “Grantee Return Date”); provided that if the Grantee dies before the Grantee ReturnDate, this requirement shall be deemed to be satisfied if the executor or administrator of the Grantee’s estate executes and returns this Agreement to the Company or its designee no later than ninety (90) days following the Grantee’sdeath (the “Executor Return Date”). If this Agreement is not so executed and returned on or prior to the Grantee Return Date or the Executor Return Date, as applicable, the Performance Shares evidenced by this Agreement shall beforfeited, and neither the Grantee nor the Grantee’s heirs, executors, administrators and successors shall have any rights with respect thereto. 

 
 11.No Right to Continued Employment. 
Nothing in thisAgreement or the Plan shall interfere with or limit in any way the right of the Company or its Subsidiaries to terminate the Grantee’s employment, nor confer upon the Grantee any right to continuance of employment by the Company or any of itsSubsidiaries. 

 
 12.Adjustments. 
To the extent permitted underSection 162(m) of the Code and the regulations thereunder without adversely affecting the treatment of the Award as Performance-Based Compensation, the Committee shall adjust the Performance Objective to reflect the impact of specifiedcorporate transactions (such as a stock split or dividend), special charges, accounting or tax law changes and other extraordinary or nonrecurring events. 

 
 13.Withholding of Taxes. 
Prior to the delivery to theGrantee (or the Grantee’s estate, if applicable) of a stock certificate or evidence of book entry Shares with respect to vested Earned Performance Shares, the Grantee (or the Grantee’s estate) shall pay to the Company the federal, stateand local income taxes and other amounts as may be required by law to be withheld by the Company (the “Withholding Taxes”) with respect to such Earned Performance Shares. By 

 

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executing and returning this Agreement in the manner provided in Section 10 hereof, the Grantee (or the Grantee’s estate) shall be deemed to electto have the Company withhold a portion of such Earned Performance Shares having an aggregate Fair Market Value equal to the Withholding Taxes in satisfaction of the Withholding Taxes, such election to continue in effect until the Grantee (or theGrantee’s estate) notifies the Company at least four days prior to the applicable vesting date that the Grantee (or the Grantee’s estate) shall satisfy such obligation in cash, in which event the Company shall not withhold a portion ofsuch Earned Performance Shares as otherwise provided in this Section 13. 

 
 14.Grantee Bound by the Plan. 
The Grantee herebyacknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. 

 
 15.Modification of Agreement. 
This Agreement may bemodified, amended, suspended or terminated, and any terms or conditions may be waived, but only by a written instrument executed by the parties hereto. 

 
 16.Severability. 
Should any provision of thisAgreement be held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remaining provisions of this Agreement shall not be affected by such holding and shall continue in full force in accordance with their terms.

 
 17.Governing Law. 
The validity, interpretation,construction and performance of this Agreement shall be governed by the laws of the State of Ohio without giving effect to the conflicts of laws principles thereof. 

 
 18.Successors in Interest. 
This Agreement shall inureto the benefit of and be binding upon any successor to the Company. This Agreement shall inure to the benefit of the Grantee’s legal representatives. All obligations imposed upon the Grantee and all rights granted to the Company under thisAgreement shall be binding upon the Grantee’s heirs, executors, administrators and successors. 

 
 19.Resolution of Disputes. 
Any dispute ordisagreement which may arise under, or as a result of, or in any way relate to, the interpretation, construction or application of this Agreement shall be determined by the Committee. Any determination made hereunder shall be final, binding andconclusive on the Grantee, the Grantee’s heirs, executors, administrators and successors, and the Company and its Subsidiaries for all purposes. 

 
 20.Entire Agreement. 
This Agreement and the terms andconditions of the Plan constitute the entire understanding between the Grantee and the Company and its Subsidiaries, and supersede all other agreements, whether written or oral, with respect to the Award. 

 
 21.Headings. 
The headings of this Agreement areinserted for convenience only and do not constitute a part of this Agreement. 

 

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 22.Counterparts. 
This Agreement may be executedsimultaneously in two or more counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same agreement. 

 

WENDY’S INTERNATIONAL, INC.
By:  
 

GRANTEE
 
 

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APPENDIX A 

[Spreadsheet setting forth Grantee’s performance objectives and calculations] 

 

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