SEC Info - Wendy’s Co. - ‘10-Q’ for 9/27/20

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Wendy’s Co. – ‘10-Q’ for 9/27/20 – ‘EX-10.3’

On: Wednesday, 11/4/20, at 7:14am ET · For: 9/27/20 · Accession #: 30697-20-9 · File #: 1-02207

  As Of               Filer                 Filing    For·On·As Docs:Size

11/04/20  Wendy’s Co.                       10-Q        9/27/20   93:10M

Quarterly Report — Form 10-Q
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-Q        Quarterly Report                                    HTML   1.24M 
 2: EX-10.1     Abigail Pringle Non-Compete and Confidentiality     HTML     36K 
                Agreement                                                        
 3: EX-10.2     M. Coley O'Brien Non-Compete and Confidentiality    HTML     36K 
                Agreement                                                        
 4: EX-10.3     Leigh Burnside Non-Compete and Confidentiality      HTML     36K 
                Agreement                                                        
 5: EX-31.1     CEO 302 Certification                               HTML     28K 
 6: EX-31.2     CFO 302 Certification                               HTML     28K 
 7: EX-32.1     CEO and CFO Certification Pursuant to Section 906   HTML     25K 
14: R1          Document and Entity Information                     HTML     76K 
15: R2          Condensed Consolidated Balance Sheets               HTML    131K 
16: R3          Condensed Consolidated Statements of Operations     HTML     95K 
17: R4          Condensed Consolidated Statements of Comprehensive  HTML     36K 
                Income                                                           
18: R5          Consolidated Statements of Stockholders' Equity     HTML     84K 
                Statement                                                        
19: R6          Condensed Consolidated Statements of Cash Flows     HTML    112K 
20: R7          Basis of Presentation                               HTML     30K 
21: R8          New Accounting Standards                            HTML     31K 
22: R9          Revenue (Notes)                                     HTML    103K 
23: R10         Acquisitions (Notes)                                HTML     34K 
24: R11         System Optimization Gains, Net                      HTML     46K 
25: R12         Reorganization and Realignment Costs                HTML    126K 
26: R13         Cash and Receivables (Notes)                        HTML     81K 
27: R14         Investments                                         HTML     38K 
28: R15         Long-Term Debt (Notes)                              HTML     46K 
29: R16         Fair Value Measurements                             HTML     79K 
30: R17         Impairment of Long-Lived Assets                     HTML     37K 
31: R18         Income Taxes                                        HTML     28K 
32: R19         Net Income Per Share                                HTML     35K 
33: R20         Stockholders' Equity                                HTML     37K 
34: R21         Leases (Notes)                                      HTML     68K 
35: R22         Transactions with Related Parties                   HTML     27K 
36: R23         Guarantees and Other Commitments and Contingencies  HTML     28K 
37: R24         Legal and Environmental Matters                     HTML     27K 
38: R25         Segment Information (Notes)                         HTML     72K 
39: R26         Revenue (Tables)                                    HTML    108K 
40: R27         Acquisitions (Tables)                               HTML     33K 
41: R28         System Optimization Gains, Net (Tables)             HTML     46K 
42: R29         Reorganization and Realignment Costs (Tables)       HTML    129K 
43: R30         Cash and Receivables (Tables)                       HTML     84K 
44: R31         Investments (Tables)                                HTML     36K 
45: R32         Long-Term Debt (Tables)                             HTML     42K 
46: R33         Fair Value Measurements (Tables)                    HTML     75K 
47: R34         Impairment of Long-Lived Assets (Tables)            HTML     36K 
48: R35         Net Income Per Share (Tables)                       HTML     34K 
49: R36         Stockholders' Equity (Tables)                       HTML     31K 
50: R37         Leases (Tables)                                     HTML     66K 
51: R38         Segment Information (Tables)                        HTML     74K 
52: R39         Revenue Disaggregation of Revenue (Details)         HTML     65K 
53: R40         Revenue Contract Balances (Details)                 HTML     44K 
54: R41         Revenue Revenue, Remaining Performance Obligation   HTML     34K 
                (Details)                                                        
55: R42         Acquisitions (Details)                              HTML     55K 
56: R43         System Optimization Gains, Net Summary of           HTML     47K 
                Disposition Activity (Details)                                   
57: R44         System Optimization Gains, Net Assets Held for      HTML     33K 
                Sale (Details)                                                   
58: R45         Reorganization and Realignment Costs Summary        HTML     36K 
                (Details)                                                        
59: R46         Reorganization and Realignment Costs Operations     HTML     49K 
                and Field Realignment (Details)                                  
60: R47         Reorganization and Realignment Costs Operations     HTML     34K 
                and Field Realignment Accrual Rollforward                        
                (Details)                                                        
61: R48         Reorganization and Realignment Costs IT             HTML     58K 
                Realignment Costs (Details)                                      
62: R49         Reorganization and Realignment Costs IT             HTML     46K 
                Realignment Accrual Rollforward (Details)                        
63: R50         Reorganization and Realignment Costs G&A            HTML     52K 
                Realignment Costs (Details)                                      
64: R51         Reorganization and Realignment Costs G&A            HTML     49K 
                Realignment Accrual Rollforward (Details)                        
65: R52         Reorganization and Realignment Costs System         HTML     28K 
                Optimization Costs (Details)                                     
66: R53         Cash and Receivables Cash and Cash Equivalents      HTML     50K 
                (Details)                                                        
67: R54         Cash and Receivables Accounts and Notes Receivable  HTML     79K 
                (Details)                                                        
68: R55         Cash and Receivables Allowance for Doubtful         HTML     46K 
                Accounts Receivable (Details)                                    
69: R56         Investments Equity Investment Summary (Details)     HTML     52K 
70: R57         Long-Term Debt Schedule of Long Term Debt           HTML     59K 
                (Details)                                                        
71: R58         Long-Term Debt Senior Notes (Details)               HTML     53K 
72: R59         Long-Term Debt Other Long-term Debt Disclosure      HTML     42K 
                (Details)                                                        
73: R60         Fair Value Measurements Financial Instruments       HTML     62K 
                (Details)                                                        
74: R61         Fair Value Measurements Non-Recurring Fair Value    HTML     40K 
                Measurements (Details)                                           
75: R62         Impairment of Long-Lived Assets (Details)           HTML     31K 
76: R63         Income Taxes (Details)                              HTML     35K 
77: R64         Net Income Per Share (Details)                      HTML     34K 
78: R65         Stockholders' Equity Dividends (Details)            HTML     26K 
79: R66         Stockholders' Equity Repurchases of Common Stock    HTML     60K 
                (Details)                                                        
80: R67         Stockholders' Equity Accumulated Other              HTML     35K 
                Comprehensive Loss (Details)                                     
81: R68         Leases Lessee Lease Narrative (Details)             HTML     33K 
82: R69         Leases Lessor Lease Narrative (Details)             HTML     30K 
83: R70         Leases Components of Lease Cost (Details)           HTML     50K 
84: R71         Leases Components of Lease Income (Details)         HTML     40K 
85: R72         Transactions with Related Parties (Details)         HTML     31K 
86: R73         Guarantees and Other Commitments and Contingencies  HTML     27K 
                Lease Guarantees (Details)                                       
87: R74         Guarantees and Other Commitments and Contingencies  HTML     25K 
                Letters of Credit (Details)                                      
88: R75         Segment Information Reconciliation of Revenue from  HTML     34K 
                Segments to Consolidated (Details)                               
89: R76         Segment Information Reconciliation of Profit from   HTML     67K 
                Segments to Consolidated (Details)                               
91: XML         IDEA XML File -- Filing Summary                      XML    163K 
13: XML         XBRL Instance -- wen-20200927_htm                    XML   2.97M 
90: EXCEL       IDEA Workbook of Financial Reports                  XLSX    106K 
 9: EX-101.CAL  XBRL Calculations -- wen-20200927_cal                XML    234K 
10: EX-101.DEF  XBRL Definitions -- wen-20200927_def                 XML    934K 
11: EX-101.LAB  XBRL Labels -- wen-20200927_lab                      XML   1.63M 
12: EX-101.PRE  XBRL Presentations -- wen-20200927_pre               XML   1.08M 
 8: EX-101.SCH  XBRL Schema -- wen-20200927                          XSD    181K 
92: JSON        XBRL Instance as JSON Data -- MetaLinks              357±   524K 
93: ZIP         XBRL Zipped Folder -- 0000030697-20-000009-xbrl      Zip    367K

‘EX-10.3’ — Leigh Burnside Non-Compete and Confidentiality Agreement

This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ]

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Document

Exhibit 10.3

NON-COMPETE AND CONFIDENTIALITY AGREEMENT

This Agreement is made between Leigh A. Burnside (the “Executive”) and The Wendy’s Company (the “Company” or “Wendy’s”).

1. PURPOSE. Executive is a senior executive of the Company and, as a result, has been and will continue to be involved, at the highest level, in the development, implementation, and management of Wendy’s business strategies and plans, including those which involve Wendy’s finances, marketing and other operations, and acquisitions. As a result, Executive has and will have access to Wendy’s most valuable trade secrets and proprietary information. By virtue of this unique and sensitive position, Executive’s employment by a competitor of Wendy’s represents a material unfair competitive danger to Wendy’s and the use of Executive’s knowledge and information about Wendy’s business, strategies, and plans can and would constitute an unfair competitive advantage over Wendy’s. The purpose of this Agreement is to formalize the agreements between Executive and the Company to address these legitimate business interests.

2. CONFIDENTIALITY. Executive agrees that they will not at any time during their employment and anytime thereafter, divulge, furnish, or make known or accessible to, or use for the benefit of anyone other than Wendy’s, its subsidiaries affiliates and their respective officers, directors and employee, any information of a confidential nature relating in any way to the business of Wendy’s or its subsidiaries or affiliates, or any of their respective franchisees, suppliers or distributors. Executive further agree that they are not subject to any agreement that would restrict them from performing services to Wendy’s and that they will not disclose to Wendy’s or use on its behalf, any confidential information or material that is the property of a former employer or third party.

3. NONCOMPETE/NONSOLICITATION/EMPLOYEE NO-HIRE. Executive agrees that during their employment with Wendy’s and either (x) in the event Executive’s employment with Wendy’s is terminated without cause, for a period of eighteen (18) months following such termination, or (y) in the event Executive’s employment with Wendy’s is terminated for cause, for a period of twelve (12) months following such termination:

(i) in any state or territory of the United States (and the District of Columbia) or any country where Wendy’s maintains restaurants, Executive will not engage or be engaged in any capacity, “directly or indirectly” (as defined below), except as a passive investor owning less than a two percent (2%) interest in a publicly held company, in any business or entity that is competitive with the business of Wendy’s or its affiliates. This restriction includes any business engaged in drive through or food service restaurant business where hamburgers, chicken sandwiches or entree salads are predominant products (15% or more, individually or in the aggregate, of food products not including beverages). Notwithstanding anything to the contrary herein, this restriction shall not prohibit Executive from accepting employment, operating or otherwise becoming associated with a franchisee of Wendy’s, any of its affiliates or any subsidiary of the foregoing, but only in connection with activities associated with the operation of such a franchise or activities that otherwise are not encompassed by the restrictions of this paragraph, subject to any confidentiality obligations contained herein;

(ii) Executive will not, directly or indirectly, without Wendy’s prior written consent, hire or cause to be hired, solicit or encourage to cease to work with Wendy’s or any of its subsidiaries or affiliates, any person who is at the time of such activity, or who was within the six (6) month period preceding such activity, an employee of Wendy’s or any of its subsidiaries or affiliates at the level of director or any more senior level or a consultant

under contract with Wendy’s or any of its subsidiaries or affiliates and whose primary client is such entity or entities; and

(iii) Executive will not, directly or indirectly, solicit, encourage or cause any franchisee or supplier of Wendy’s or any of its subsidiaries or affiliates to cease doing business with Wendy’s or any subsidiary or affiliate, or to reduce the amount of business such franchisee or supplier does with Wendy’s or such subsidiary or affiliate.

For purposes of this section, “directly or indirectly” means in Executive’s individual capacity for their own benefit or as a shareholder, lender, partner, member or other principal, officer, director, employee, agent or consultant of or to any individual, corporation, partnership, limited liability company, trust, association or any other entity whatsoever; provided, however, that Executive may own stock in Wendy’s and may operate, directly or indirectly, Wendy’s restaurants as a franchisee without violating sections (i) or (iii).

4. CONSIDERATION. The parties hereto acknowledge and agree that continued employment of Executive by the Company, the compensation and benefits received and to be received by the Executive in connection with Executive’s present and future employment by the Company, and Executive’s receipt and continued receipt of the Company’s confidential and proprietary information are consideration for Executive’s execution and performance of this Agreement.

5. OTHER TERMS.

a.This Agreement represents the entire agreement and supersedes all prior and contemporaneous agreements and understandings relative to the same subject matter.

b.Executive acknowledges and agrees that this Agreement is not intended to and does not modify the “at-will” nature of Executive’s employment. Executive further acknowledges and agrees that, except as expressly stated herein, this Agreement is not intended to and does not modify any other terms and conditions of Executive’s employment, including Executive’s compensation and benefits or the application of Wendy’s policies, such as the Executive Severance Pay Policy.

c.This Agreement may not be amended or changed unless set forth in writing signed by a duly authorized officer of the Company and Executive. The failure of either party to enforce any term of this Agreement shall not constitute a waiver of any rights or deprive the party of the right to insist thereafter upon strict adherence to that or any other term of this Agreement, nor shall a waiver of any breach of this Agreement constitute a waiver of any preceding or succeeding breach.

d.This Agreement shall be governed by Ohio law, without regard to conflict of law principles.

e.This Agreement shall inure to the benefit of and be binding upon and enforceable by the Company’s successors and assigns.

f.Executive acknowledges that the provisions of this Agreement are reasonable and necessary to protect Wendy’s legitimate business interests. If any competent authority having jurisdiction over this Agreement determines that any of the provisions is unenforceable because of the duration or geographical scope of such provision, such competent authority shall have the power to reduce the duration or scope, as the case may be, of such provision and, in its reduced form, such provision shall then be enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect or limit the validity and enforceability of the other provisions hereof. In the event of Executive breaches their obligations under the post-employment restrictive covenants, then the post-employment restricted period shall be tolled and extended during the length of such breach, to the extent permitted by law.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by duly authorized signatories:


EXECUTIVE:
Signature:			/s/ *Leigh A. Burnside*
Name:			Leigh A. Burnside
Date:			October 27, 2020


THE WENDY’S COMPANY
By:			/s/ *M. Coley O’Brien*
Name:			M. Coley O’Brien
Title:			Chief People Officer
Date:			October 27, 2020

Dates Referenced Herein and Documents Incorporated by Reference

This ‘10-Q’ Filing	Date	Other Filings

Filed on:	11/4/20	8-K
	10/27/20
For Period end:	9/27/20
		List all Filings

4 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 2/26/24  Wendy’s Co.                       10-K       12/31/23  156:17M
 3/01/23  Wendy’s Co.                       10-K        1/01/23  161:19M
 3/01/22  Wendy’s Co.                       10-K        1/02/22  156:19M
 3/03/21  Wendy’s Co.                       10-K        1/03/21  170:22M

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Filing Submission 0000030697-20-000009 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)