Common use of Underpayment and Overpayment Clause in Contracts

Underpayment and Overpayment. It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Section 2. In the event of an Underpayment, the amount of any such Underpayment shall be paid to the Executive as an additional Gross-Up Payment. In the event of an Overpayment, the Executive shall promptly pay to Wendy’s the amount of such Overpayment together with interest on such amount at the applicable Federal rate provided for in Section 1274(d) of the Code for the period commencing on the date of the Overpayment to the date of such payment by the Executive to Wendy’s. The Executive shall make such payment to Wendy’s as soon as administratively practicable after Wendy’s notifies the Executive of (a) the Accounting Firm’s determination that an Overpayment was made and (b) the amount to be repaid. The Executive has certain personal investments as set forth below. 1. On or prior to the 30th calendar day following the commencement of the Period of Employment, the Executive will resign from his position as president of the company listed in section 1 of the Disclosure Letter delivered by the Executive to the Company as of the date hereof (the “Disclosure Letter”). The Executive may remain on the board of directors during the Period of Employment. Following the first 30 calendar days of the Period of Employment, the Executive will not become involved in the day to day operations of this company, whether as an employee, consultant or otherwise. It is acknowledged that the Executive may from time to time provide informal strategic advice to the company, solely for so long as the Executive owns in excess of 5% of the company or remains on the board. 2. The Executive shall completely dispose (by sale or otherwise) of his investment in the companies listed in Section 2 of the Disclosure Letter during the 90 calendar day period commencing with the Period of Employment (the “Disposition”). During such 90 day period, the Executive will not become involved in the day to day operations of these companies, whether as an employee, consultant or otherwise and shall not serve on the board of directors of these companies. 3. The Executive shall completely dispose (by sale or otherwise) of his investment in the companies listed in Section 3 of the Disclosure Letter during the 90 calendar day period commencing with the Period of Employment (the “Additional Disposition”). During such 90 day period, the Executive will not become involved in the day to day operations of these companies, whether as an employee, consultant or otherwise and shall not serve on the board of directors of these companies.

Underpayment and Overpayment. It is possible that no Gross-Up Payment will initially be made but that a Gross-Up Payment should have been made, or that a Gross-Up Payment will initially be made in an amount that is less than what should have been made (either of such events is referred to as an “Underpayment”). It is also possible that a Gross-Up Payment will initially be made in an amount that is greater than what should have been made (an “Overpayment”). The determination of any Underpayment or Overpayment shall be made by the Accounting Firm in accordance with Section 2. a) In the event of an Underpaymentany SRP feels that he/she has been underpaid, the amount of any such Underpayment procedures shall be paid to as follows: 1) ▇▇▇▇ ▇▇▇ shall notify in writing the Executive as Superintendent or his/her designee of alleged underpayment and the supporting reasons for the allegation. 2) The Superintendent or his/her designee shall investigate the above allegation and notify the SRP in writing, providing an additional Gross-Up Payment. explanation and/or verification of the allegation within ten (10) days of the complaint. 3) In the event of that an Overpaymentunderpayment has been verified, the Executive SRP shall promptly pay to Wendy’s receive the full amount of such Overpayment together with interest on such amount at underpayment in the applicable Federal rate provided for in Section 1274(d) of the Code salary warrant issued for the pay period commencing on immediately following the date of pay period in which the Overpayment verification occurs. 4) Retroactivity for underpayment shall be limited to the date current year and the year immediately preceding the one in which the allegation of such payment by the Executive to Wendy’s. The Executive shall make such payment to Wendy’s as soon as administratively practicable after Wendy’s notifies the Executive of (a) the Accounting Firm’s determination that an Overpayment was made and (underpayment is made. b) In the amount to event an underpayment is discovered as a result of something other than an allegation by an SRP, the procedures shall be repaid. The Executive has certain personal investments as set forth below.follows: 1. On or prior to ) The SRP shall receive the 30th calendar day full amount of underpayment in the salary warrant issued for the pay period immediately following the commencement of pay period in which the Period of Employment, the Executive will resign from his position as president of the company listed in section 1 of the Disclosure Letter delivered by the Executive to the Company as of the date hereof (the “Disclosure Letter”). The Executive may remain on the board of directors during the Period of Employment. Following the first 30 calendar days of the Period of Employment, the Executive will not become involved in the day to day operations of this company, whether as an employee, consultant or otherwise. It underpayment is acknowledged that the Executive may from time to time provide informal strategic advice to the company, solely for so long as the Executive owns in excess of 5% of the company or remains on the boarddetermined and verified. 2. The Executive ) Retroactivity for underpayment shall completely dispose (be limited to the current year and the year immediately preceding the one in which the identification of underpayment is made. c) In the event any SRP is overpaid by sale or otherwise) of his investment in the companies listed in Section 2 of the Disclosure Letter during the 90 calendar day period commencing with the Period of Employment (the “Disposition”). During such 90 day periodBoard, the Executive will not become involved following procedure shall be in effect: 1) Notification of said overpayment shall be provided in writing to the day SRP. Said notification shall contain the supporting reasons for and dates of overpayment. 2) The SRP shall reimburse the Board the full amount of verified overpayment on a basis mutually agreeable to day operations of these companies, whether as an employee, consultant the SRP and the Superintendent or otherwise and his/her designee. Said repayment shall not serve on extend beyond the board of directors of these companiesoncoming fiscal year. 3. The Executive ) Retroactivity for overpayment shall completely dispose (by sale or otherwise) of his investment be limited to the current year and the year immediately preceding the one in which the companies listed in Section 3 of the Disclosure Letter during the 90 calendar day period commencing with the Period of Employment (the “Additional Disposition”). During such 90 day period, the Executive will not become involved in the day to day operations of these companies, whether as an employee, consultant or otherwise and shall not serve on the board of directors of these companiesoverpayment is identified.