<PAGE> 1
Filed with the Securities and Exchange Commission on August 9, 1996
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
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<S> <C> <C>
WENDY'S INTERNATIONAL, INC. OHIO 31-0785108
WENDY'S FINANCING I DELAWARE TO BE APPLIED FOR
WENDY'S FINANCING II DELAWARE TO BE APPLIED FOR
(Exact name of Registrant (State or other jurisdiction of (I.R.S. Employer
as specified in its charter) incorporation or organization) Identification No.)
</TABLE>
P.O. BOX 256
4288 WEST DUBLIN-GRANVILLE ROAD
DUBLIN, OHIO 43017
(614) 764-3100
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
--------------------
DANA KLEIN
P.O. BOX 256
4288 WEST DUBLIN-GRANVILLE ROAD
DUBLIN, OHIO 43017
(614) 764-3100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
WITH A COPY TO:
JAMES H. GROSS
VORYS, SATER, SEYMOUR AND PEASE
52 EAST GAY STREET, P.O. BOX 1008
COLUMBUS, OHIO 43216-1008
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement as the
Registrant shall determine.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration number of the earlier effective registration
statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH AMOUNT MAXIMUM MAXIMUM
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BEING REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE REGISTRATION FEE
(1)(2)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Trust Preferred Securities
of Wendy's Financing I
and II
- -----------------------------------------------------------------------------------------------------------------------
Debt Securities of Wendy's
International, Inc.
- -----------------------------------------------------------------------------------------------------------------------
Guarantees of Trust
Preferred Securities of
Wendy's Financing I and
II by Wendy's
International, Inc. and
certain back-up
undertakings (4)
- -----------------------------------------------------------------------------------------------------------------------
Preferred Shares, par value
$1.00, of Wendy's
International, Inc.
- -----------------------------------------------------------------------------------------------------------------------
Common Shares, without par
value, of Wendy's
International, Inc. (3)(5)
- -----------------------------------------------------------------------------------------------------------------------
Warrants of Wendy's
International, Inc.
- -----------------------------------------------------------------------------------------------------------------------
Total..................... $200,000,000 100% $200,000,000 $68,966
=======================================================================================================================
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies. Such amount
represents the aggregate offering price of the Trust Preferred Securities
of Wendy's Financing I and II and the Debt Securities, Preferred Stock,
Common Stock, Warrants to Purchase Debt Securities and Warrants to Purchase
Equity Securities of Wendy's International, Inc. and the exercise price of
any Securities issuable upon exercise of Warrants of Wendy's International,
Inc. Subordinated Debt Securities of Wendy's International, Inc. may be
issued and sold to Wendy's Financing I and II, in which event such
Subordinated Debt Securities may later be distributed to the holders of
Trust Preferred Securities.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933.
(3) Also includes such indeterminate number of shares of Preferred Stock and
Common Stock as may be issued upon conversion or exchange for any Debt
Securities or Preferred Stock that provide for conversion or exchange into
other securities and such indeterminate number of shares of Common Stock as
may be issued upon conversion of Trust Preferred Securities. No separate
consideration will be received for the Debt Securities, Preferred Stock or
Common Stock issuable upon conversion of or in exchange for such other
securities.
(4) No separate consideration will be received for any Guarantees. The
Guarantees include the rights of holders of the Trust Preferred Securities
under the Guarantees and certain back-up undertakings, comprised of
obligations of Wendy's International, Inc. under the Subordinated Indenture
and Supplemental Indentures thereto and under the Declarations of Trust of
each of Wendy's Financing I and II, each as described in the Registration
Statement.
(5) The number of shares of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) under the Securities Act of
1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
===============================================================================
<PAGE> 3
SUBJECT TO COMPLETION DATED AUGUST __, 1996
PROSPECTUS
[Wendy's logo]
WENDY'S INTERNATIONAL, INC.
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK AND WARRANTS
---------------
WENDY'S FINANCING I
WENDY'S FINANCING II
TRUST PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
WENDY'S INTERNATIONAL, INC.
---------------
Wendy's International, Inc. ("Wendy's" or the "Company") may offer and
issue from time to time, together or separately, (i) its debt securities (the
"Debt Securities"), which may be either unsubordinated debt securities (the
"Unsubordinated Debt Securities") or subordinated debt securities (the
"Subordinated Debt Securities"), consisting of notes, debentures or other
secured or unsecured evidences of indebtedness in one or more series; (ii) its
preferred shares, $1.00 par value per share (the "Preferred Stock"); (iii) its
common shares, without par value (the "Common Stock"); and (iv) warrants to
purchase Debt Securities, Preferred Stock or Common Stock or any combination
thereof, as shall be designated by the Company at the time of the offering (the
"Warrants") in amounts, at prices and on terms to be determined at the time of
the offering.
Wendy's Financing I and Wendy's Financing II (each, a "Wendy's Trust"),
each a statutory business trust created under the laws of the State of Delaware,
may offer, from time to time, preferred securities, representing undivided
beneficial interests in the assets of the respective Wendy's Trust ("Trust
Preferred Securities"). The payment of periodic cash distributions
("distributions") with respect to Trust Preferred Securities of each of the
Wendy's Trusts out of moneys held by each of the Wendy's Trusts, and payment on
liquidation, redemption or otherwise with respect to such Trust Preferred
Securities, will be guaranteed by the Company to the extent described herein
(each, a "Trust Preferred Securities Guarantee"). See "Description of Trust
Preferred Securities Guarantees." The Company's obligations under the Trust
Preferred Securities Guarantees will be subordinate and junior in right of
payment to all other liabilities of the Company and rank pari passu with the
most senior preferred stock, if any, issued from time to time by the Company.
Subordinated Debt Securities may be issued and sold from time to time in one or
more series to a Wendy's Trust, or a trustee of such Wendy's Trust, in
connection with the investment of the proceeds from the offering of Trust
Preferred Securities and Trust Common Securities (as defined herein, together
the "Trust Securities") of such Wendy's Trust. The Subordinated Debt Securities
purchased by a Wendy's Trust may be subsequently distributed pro rata to holders
of Trust Preferred Securities and Trust Common Securities in connection with the
dissolution of such Wendy's Trust upon the occurrence of certain events as may
be described in an accompanying Prospectus Supplement. The Trust Preferred
Securities Guarantees, when taken together with the Company's other obligations
under Subordinated Debt Securities, the Indenture
(continued on next page)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED ON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------------
, 1996
<PAGE> 4
(continued from previous page)
related thereto and the Declaration (as defined below), including its
obligations to pay costs, expenses, debts and liabilities of the Wendy's Trusts
(other than with respect to the Trust Securities), will provide a full and
unconditional guarantee on a subordinated basis by the Company of payments due
on the Trust Preferred Securities. The Debt Securities, Preferred Stock, Common
Stock, Warrants and the Trust Preferred Securities and the related Trust
Preferred Securities Guarantees are collectively called the "Securities."
The Securities may be offered as separate series or issuances at an
aggregate initial public offering price not to exceed $200,000,000 or, if
applicable, the equivalent thereof in one or more foreign currencies, currency
units, composite currencies or in amounts determined by reference to an index as
shall be designated by the Company, in amounts, at prices and on terms to be
determined in light of market conditions at the time of sale and set forth in
the applicable Prospectus Supplement. The Prospectus Supplement relating to any
series of Securities will contain information concerning United States federal
income tax considerations, if applicable.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The Subordinated
Debt Securities, when issued, will be subordinated in right of payment to all
Senior Indebtedness (as hereinafter defined) of the Company. If the Debt
Securities are secured, the security, which may consist of real estate
properties or other assets owned by the Company, and any related mortgage will
be described in the Prospectus Supplement.
Certain specific terms of the particular Securities in respect of which
this Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement, including, where applicable, (i) in the case of Debt
Securities, the title, aggregate principal amount, denominations, maturity,
subordination terms, if any, any interest rate (which may be fixed or variable)
and time of payment of any interest, the right of the Company, if any, to defer
payment of interest on the Debt Securities and the maximum length of such
deferral period, any terms for redemption at the option of the Company or the
holder, any terms for sinking fund payments, any terms for conversion or
exchange into other Securities, currency or currencies of denomination and
payment, if other than U.S. dollars, any security applicable to Debt Securities
which are secured, any listing on a securities exchange and any other terms in
connection with the offering and sale of the Debt Securities in respect of which
this Prospectus is delivered, as well as the initial public offering price; (ii)
in the case of Trust Preferred Securities, the designation and number,
liquidation preference per Trust Preferred Security, initial public offering
price, any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, any voting rights, terms for any
conversion or exchange into other Securities, any redemption, exchange or
sinking fund provisions, any other rights, preferences, privileges, limitations
or restrictions relating to the Trust Preferred Securities and the terms upon
which the proceeds of the sale of the Trust Preferred Securities shall be used
to purchase a specific series of Subordinated Debt Securities of the Company,
(iii) in the case of Preferred Stock, the specific title, the aggregate amount,
any dividend (including the method of calculating payment of dividends),
seniority, liquidation, redemption, voting and other rights, any terms for any
conversion or exchange into other Securities, any listing on a securities
exchange, the initial public offering price and any other terms; (iv) in the
case of Common Stock, the number of shares of Common Stock and the terms of
offering thereof; and (v) in the case of Warrants, the designation and number,
the exercise price, any listing of the Warrants or the underlying Securities on
a securities exchange and any other terms in connection with the offering, sale
and exercise of the Warrants.
The Company's Common Stock is listed on the New York Stock Exchange,
Inc. (the "New York Stock Exchange") under the symbol "WEN." Any Common Stock
sold pursuant to a Prospectus Supplement will be listed on such exchange,
subject to official notice of issuance.
The Company and/or each of the Wendy's Trusts may sell the Securities
directly, through agents, underwriters or dealers as designated from time to
time, or through a combination of such methods. See "Plan of Distribution." If
agents of the Company and/or any Wendy's Trust or any dealers or underwriters
are involved in the sale of the Securities in respect of which this Prospectus
is being delivered, the names of such agents, dealers or underwriters and any
applicable commissions or discounts will be set forth in or may be calculated
from the Prospectus Supplement with respect to such Securities. The net proceeds
to the Company from such sale also will be set forth in the applicable
Prospectus Supplement.
2
<PAGE> 5
This Prospectus may not be used to consummate sales of securities
unless accompanied by a Prospectus Supplement.
IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, any accompanying
Prospectus Supplement or the documents incorporated or deemed incorporated by
reference herein, and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or by any
underwriter, agent or dealer. This Prospectus and any Prospectus Supplement
shall not constitute an offer to sell or a solicitation of an offer to buy any
of the Securities offered hereby in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. Neither the
delivery of this Prospectus and any Prospectus Supplement nor any sale made
thereunder shall, under any circumstances, create any implication that the
information therein is correct as of any time subsequent to the date thereof.
---------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices located at
Citicorp Center, 500 West Madison, 14th Floor, Chicago, Illinois 60661 and Seven
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such
material may also be accessed electronically by means of the Commission's home
page on the Internet at http://www.sec.gov. The Company's Common Stock is listed
on the New York Stock Exchange. Reports, proxy statements and other information
concerning the Company can be inspected and copied at the offices of The New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company and the Wendy's Trusts have filed a registration statement
on Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement and the exhibits
filed as part thereof. Statements contained herein are qualified in their
entirety by reference to the Registration Statement and such exhibits.
No separate financial statements of any of the Wendy's Trusts have been
included herein. The Company does not consider that such financial statements
would be material to holders of the Trust Preferred Securities because (i) all
of the voting securities of each of the Wendy's Trusts will be owned, directly
or indirectly, by the Company, a reporting company under the Exchange Act, (ii)
each of the Wendy's Trusts has no independent operations but exists for the sole
purpose of issuing securities representing undivided beneficial interests in the
assets of such Wendy's Trust and investing the proceeds thereof in Subordinated
Debt Securities issued by the Company, and (iii) the Company's obligations
described herein and in any accompanying Prospectus Supplement under the
Declarations of each Trust, the guarantee issued with respect to Trust Preferred
Securities issued by that Trust, the Subordinated Debt Securities purchased by
that Trust and the related Indenture, taken together, constitute a full and
unconditional guarantee of payments due on the Trust Preferred Securities. See
"Description of Debt Securities" and "Description of Trust Preferred Securities
Guarantees."
3
<PAGE> 6
The Wendy's Trusts are not currently subject to the information
reporting requirements of the Exchange Act. The Wendy's Trusts will become
subject to such requirements upon the effectiveness of the Registration
Statement, although they intend to seek and expect to receive exemptions
therefrom.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995; the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1996 and June 30, 1996, respectively; the Company's
Current Report on Form 8-K dated July 23, 1996; and all other documents filed by
the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(File No. 1-8116) subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities are incorporated herein by
reference. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon the request of any such person, a copy of
all of the documents which are incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests should be directed to Wendy's
International, Inc., P.O. Box 256, 4288 West Dublin-Granville Road, Dublin, Ohio
43017, Attention: Vice President of Investor Relations, telephone number (614)
764-3251.
THE COMPANY
Wendy's is primarily engaged in the business of operating, developing
and franchising a system of distinctive quick-service restaurants under the name
Wendy's Old Fashioned Hamburgers. The Company is one of the largest food service
organizations in the world. Each Wendy's restaurant offers a relatively standard
menu featuring hamburgers and filet of chicken breast sandwiches, which are
prepared to order with the customer's choice of condiments. Wendy's menu
includes a salad bar, chili, baked and french fried potatoes, prepared salads,
desserts, soft drinks and other non-alcoholic beverages, and a child's meal
which features either a small hamburger or chicken nuggets, french fries and a
small drink. In addition the Wendy's restaurants sell a variety of promotional
products on a limited basis. A breakfast menu is available at certain Wendy's
restaurants during the morning hours. At June 30, 1996, there were 4,778 Wendy's
restaurants in operation in 50 states and 33 other countries and territories of
which 1,321 were operated by the Company and 3,457 were operated by franchisees.
On December 29, 1995, the Company completed its acquisition of the Tim
Hortons restaurant chain. Tim Hortons is the second largest restaurant chain in
Canada and the largest chain that features coffee and fresh baked goods such as
donuts, muffins, croissants, cookies and fancy desserts. The acquisition was
accounted for as a pooling of interests and therefore the Company's 1995 and
prior financial statements have been restated to reflect the operations of both
Wendy's and Tim Hortons.
The Company was incorporated in 1969 under the laws of the State of
Ohio. The principal offices of the Company are located at 4288 West
Dublin-Granville Road, Dublin, Ohio 43017, and its telephone number is (614)
764-3100.
THE TRUSTS
Each of Wendy's Financing I and Wendy's Financing II is a statutory
business trust created under Delaware law pursuant to (i) a separate declaration
of trust (each, as amended, a "Declaration") executed by the Company, as sponsor
for such trust (the "Sponsor") and the Wendy's Trustees (as defined herein) for
such trust and (ii) the filing of a certificate of trust with the Delaware
Secretary of State on August 8, 1996. Each Wendy's Trust exists for the
exclusive purposes of (i) issuing the Trust Preferred Securities and common
securities representing undivided beneficial interests in the assets of
4
<PAGE> 7
such Trust (the "Trust Common Securities" and, together with the Trust Preferred
Securities, the "Trust Securities"), (ii) investing the gross proceeds of the
Trust Securities in a specific series of Subordinated Debt Securities and (iii)
engaging in only those other activities necessary or incidental thereto. All of
the Trust Common Securities will be directly or indirectly owned by the Company.
The Trust Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Trust Preferred Securities except that upon an event
of default under the Declaration, the rights of the holders of the Trust Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Trust Preferred Securities. The Company will, directly or indirectly,
acquire Trust Common Securities in an aggregate liquidation amount equal to 1%
of the total capital of each Wendy's Trust. Each Wendy's Trust has a term of
approximately 35 years, but may earlier terminate as provided in the
Declaration. Each Wendy's Trust's business and affairs will be conducted by the
trustees (the "Wendy's Trustees") appointed by the Company, as the direct or
indirect holder of all the Trust Common Securities. Except in certain limited
circumstances, the holder of the Trust Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the
Wendy's Trustees of a Wendy's Trust. The duties and obligations of the Wendy's
Trustees shall be governed by the Declaration of such Wendy's Trust. A majority
of the Wendy's Trustees (the "Regular Trustees") of each Wendy's Trust will be
persons who are employees or officers of or affiliated with the Company. One
Wendy's Trustee of each Wendy's Trust will be a financial institution which will
be unaffiliated with the Company and which shall act as property trustee and as
indenture trustee for purposes of the Trust Indenture Act of 1939 (the "Trust
Indenture Act"), pursuant to the terms set forth in a Prospectus Supplement (the
"Property Trustee"). In addition, unless the Property Trustee maintains a
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, one Wendy's Trustee of each Wendy's Trust will
have its principal place of business or reside in the State of Delaware (the
"Delaware Trustee"). The Company will pay all fees and expenses related to the
Wendy's Trusts and the offering of Trust Securities. The payment of periodic
distributions with respect to Trust Preferred Securities of each of the Wendy's
Trusts out of moneys held by each of the Wendy's Trusts, and payment on
liquidation, redemption or otherwise with respect to such Trust Preferred
Securities, will be guaranteed by the Company to the extent described herein.
See "Description of Trust Preferred Securities Guarantees." The Company's
obligations under the Trust Preferred Securities Guarantees will be subordinate
and junior in right of payment to all other liabilities of the Company and rank
pari passu with the most senior preferred shares, if any, issued from time to
time by the Company. The office of the Delaware Trustee for each Wendy's Trust
in the State of Delaware is c/o First Chicago Delaware Inc., 300 King Street,
Wilmington, Delaware 19801. The principal place of business of each Wendy's
Trust shall be c/o Wendy's International, Inc., P.O. Box 256, 4288 West
Dublin-Granville Road, Dublin, Ohio 43017.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of the Securities will be used by the Company for general
corporate purposes, which may include the repayment of existing indebtedness.
Proceeds from the sale of Securities initially may be temporarily invested in
short-term securities.
RATIOS OF EARNINGS TO FIXED CHARGES AND OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges
for the Company for the periods indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SIX MONTHS ENDED
---------------------------------------------------------- --------------------
DEC. 29, JAN. 3, JAN. 2, JAN. 1, DEC. 31, JULY 2, JUNE 30,
1991 1993 1994 1995 1995 1995 1996
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges.... 2.91x 3.47x 3.84x 4.68x 5.05x 4.85x 6.09x
</TABLE>
The ratio of earnings to fixed charges was computed by dividing
earnings by fixed charges. For this purpose, earnings includes income before
income taxes and fixed charges excluding capitalized interest. Fixed charges
includes interest expense, capitalized interest and one-third of rent expense,
representative of the interest factor. The Company did not have any preferred
stock dividends in any of the periods indicated, and, therefore, the ratio of
earnings to combined fixed charges and preferred stock dividends for each of the
periods indicated was equal to the ratio of earnings to fixed charges for such
period.
5
<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under the Indenture dated as of
December 14, 1995 (as amended or supplemented, the "Existing Indenture") between
the Company and The Huntington National Bank, as trustee (the "Existing
Indenture Trustee"), or under a subordinated indenture between the Company and
NBD Bank, as trustee (the "Subordinated Indenture Trustee"). The Existing
Indenture and the Subordinated Indenture are sometimes referred to herein
collectively as the "Indentures" or, individually, as an "Indenture." The forms
of the Indentures have been filed as an exhibit to the Registration Statement of
which this Prospectus is a part or incorporated therein by reference. The
Existing Indenture permits the Company and the Existing Indenture Trustee, and
the Subordinated Indenture permits the Company and the Subordinated Indenture
Trustee, to enter into a Supplemental Indenture to provide for the appointment
of another qualifying bank or trust company to act as trustee with respect to a
series of unsubordinated Debt Securities or Subordinated Debt Securities,
respectively. Any such bank or trust company so appointed will be identified in
the Prospectus Supplement relating to the particular Debt Securities offered
thereby (the "Offered Debt Securities"). The Existing Indenture Trustee and the
Subordinated Indenture Trustee, as well as any such other bank or trust company
as shall have been appointed to act with respect to a series of Offered Debt
Securities, are sometimes referred to herein collectively as the "Trustees" or
individually as a "Trustee."
The Debt Securities will represent unsecured general obligations of the
Company, unless otherwise provided in the Prospectus Supplement. As indicated in
the applicable Prospectus Supplement, the Debt Securities will either be senior
to all future subordinated indebtedness of the Company and pari passu with other
current and future unsecured, unsubordinated indebtedness of the Company or, in
the alternative, subordinate in right of payment to current and future senior
debt and pari passu with other future subordinated indebtedness of the Company.
The following summaries of certain provisions of the Debt Securities
and the Indentures do not purport to be complete and are subject to and are
qualified in their entirety by reference to all the provisions of the Indenture
applicable to a particular series of Offered Debt Securities (the "Applicable
Indenture"), including the definitions of certain terms therein. Wherever
particular Sections, Articles or defined terms of the Applicable Indenture are
referred to, it is intended that such Sections, Articles or defined terms shall
be incorporated herein by reference. Article and Section references used herein
are references to the Applicable Indenture or the Indentures, as the case may
be. Capitalized terms not otherwise defined herein shall have the respective
meanings given to them in the Applicable Indenture.
In the event Subordinated Debt Securities are issued to a Wendy's Trust
or a trustee of such trust in connection with the issuance of Trust Securities
by such Wendy's Trust, such Subordinated Debt Securities will be issued pursuant
to the Subordinated Indenture and subsequently may be distributed pro rata to
the holders of such Trust Securities in connection with the dissolution of such
Wendy's Trust upon the occurrence of certain events described in the Prospectus
Supplement relating to such Trust Securities. Only one series of Subordinated
Debt Securities will be issued to a Wendy's Trust or a trustee of such trust in
connection with the issuance of Trust Securities by such Wendy's Trust.
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Offered Debt Securities and the extent, if any, to
which such general provisions may not apply to the Offered Debt Securities will
be described in the Prospectus Supplement relating to such Offered Debt
Securities.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provide that Debt Securities may be
issued thereunder from time to time in one or more series. Reference is made to
the Prospectus Supplement relating to the Offered Debt Securities, which shall
set forth the following terms, as applicable, of the Offered Debt Securities:
(1) the title of the Offered Debt Securities; (2) any limit on the aggregate
principal amount of the Offered Debt Securities; (3) the price (expressed as a
percentage of the aggregate principal amount thereof) at which the Offered Debt
Securities will be issued; (4) the Person to whom any interest on the Offered
Debt Securities will be payable, if other than the Person in whose name such
Offered Debt Securities (or one or more Predecessor Securities) are registered
on any Regular Record Date; (5) the date or dates on which the principal of the
Offered Debt Securities will be payable; (6) the rate or rates per annum (which
may be fixed, floating or adjustable) at which the Offered Debt Securities will
bear interest, if any, or the formula pursuant to which such rate or rates shall
be determined, the date or
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dates from which such interest will accrue and the dates on which such interest,
if any, will be payable and the Regular Record Dates for such interest payment
dates; (7) the place or places where principal of (and premium, if any) and
interest, if any, on Offered Debt Securities will be payable; (8) if applicable,
the price at which, the periods within which and the terms and conditions upon
which the Offered Debt Securities may be redeemed at the option of the Company,
pursuant to a sinking fund or otherwise; (9) if applicable, any obligation of
the Company to redeem or purchase Offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a holder thereof (each,
a "Holder"), and the period or periods within which, the price or prices at
which and the terms and conditions upon which the Offered Debt Securities will
be redeemed or purchased, in whole or in part; (10) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which the
Offered Debt Securities will be issuable; (11) the currency or currencies,
including composite currencies or currency units, in which payment of the
principal of (or premium, if any) or interest, if any, on any of the Offered
Debt Securities will be payable if other than the currency of the United States
of America; (12) if the amount of payments of principal of (or premium, if any)
or interest, if any, on the Offered Debt Securities may be determined with
reference to one or more indices, the manner in which such amounts will be
determined; (13) if the principal of (or premium, if any) or interest, if any,
on any of the Offered Debt Securities of the series is to be payable, at the
election of the Company or a Holder thereof, in one or more currencies,
including composite currencies, or currency units other than that or those in
which the Securities are stated to be payable, the currency, currencies,
including composite currencies, or currency units in which payment of the
principal of (or premium, if any) or interest, if any, on Securities of such
series as to which such election is made will be payable, and the periods within
which and the terms and conditions upon which such election is to be made; (14)
the portion of the principal amount of the Offered Debt Securities, if other
than the entire principal amount thereof, payable upon acceleration of maturity
thereof; (15) whether all or any part of the Offered Debt Securities will be
issued in the form of a permanent Global Security or Securities, as described
under "Permanent Global Securities," and, if so, the depositary for, and other
terms relating to, such permanent Global Security or Securities; (16) any event
or events of default applicable with respect to the Offered Debt Securities in
addition to those provided in the Applicable Indenture; (17) any other covenant
or warranty included for the benefit of the Offered Debt Securities in addition
to (and not inconsistent with) those included in the Indentures for the benefit
of Debt Securities of all series, or any other covenant or warranty included for
the benefit of the Offered Debt Securities in lieu of any covenant or warranty
included in the Indenture for the benefit of Offered Debt Securities, or any
combination of such covenants, warranties or provisions; (18) any restriction or
condition on the transferability of the Offered Debt Securities; (19) if
applicable, that such Offered Debt Securities, in whole or any specified part,
are defeasible pursuant to the provisions of the Applicable Indenture described
under "Defeasance and Covenant Defeasance"; (20) any authenticating or paying
agents, registrars, conversion agents or any other agents with respect to the
Offered Debt Securities; (21) designation (including whether the Offered Debt
Securities are senior debt or subordinated debt and whether such debt is
convertible); (22) the terms, if any, on which such Offered Debt Securities will
be subordinate to other debt of the Company; (23) any rights of the Holders
thereof to convert such Offered Debt Securities into other securities or
property of the Company; and (24) any other specific terms or provisions of the
Offered Debt Securities not inconsistent with the Applicable Indenture. (Section
301)
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Offered Debt Securities are to be issued as registered securities
without coupons in denominations of $1,000 or any integral multiple of $1,000.
(Section 302). No service charge will be made for any transfer or exchange of
such Offered Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
Debt Securities may be issued under the Indentures as Original Issue
Discount Debt Securities to be offered and sold at a substantial discount below
their stated principal amount. Special Federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Debt Security" means any security
which provides for an amount less than the principal amount thereof to be due
and payable upon the declaration of acceleration of the maturity thereof upon
the occurrence and continuance of an Event of Default. (Section 101)
If the Debt Securities are denominated in whole or in part in any
currency other than United States dollars, if the principal of (and premium, if
any) or interest, if any, on the Debt Securities are to be payable, at the
election of the Company or a Holder thereof, in a currency or currencies other
than that in which such Debt Securities are to be payable, or if any index is
used to determined the amount of payments of principal of, premium, if any, or
interest on any series of the Debt Securities, special Federal income tax,
accounting and other considerations applicable thereto will be described in the
Prospectus Supplement relating thereto.
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PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on a Debt Security on any Interest Payment Date will be made
to the Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest payment. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that, at
the option of the Company, payment of any interest may be made by check mailed
to the address of the Person entitled thereto as such address appears in the
Security Register. Unless otherwise indicated in the applicable Prospectus
Supplement, the corporate trust office of the applicable Trustee in Columbus,
Ohio, New York, New York or Wilmington, Delaware, as the case may be, will be
designated as the Company's sole Paying Agent for payments with respect to Debt
Securities of each series.
Any other Paying Agents initially designated by the Company for the
Debt Securities of a particular series will be named in the applicable
Prospectus Supplement. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent or approve a change in the
office through which any Paying Agent acts, except that the Company will be
required to maintain a Paying Agent in each place of payment for the Debt
Securities of a particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section 1003)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness, including the Senior Debt Securities. Upon
any payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company the holders of Senior Indebtedness will
first be entitled to receive payment in full of principal of (and premium, if
any) and interest, if any, on such Senior Indebtedness before the holders of the
Subordinated Debt Securities will be entitled to receive or retain any payment
in respect of the principal of (and premium, if any) or interest, if any, on the
Subordinated Debt Securities. (Subordinated Indenture Section )
By reason of such subordination, in the event of liquidation or
insolvency, creditors of the Company who are not Holders of Senior Indebtedness
or Subordinated Debt Securities may recover less, ratably, than holders of
Senior Indebtedness and may recover more, ratably, than the holders of the
Subordinated Debt Securities.
In the event of the acceleration of the maturity of any Subordinated
Debt Securities, the holders of all Senior Indebtedness outstanding at the time
of such acceleration will first be entitled to receive payment in full of all
amounts due thereon before the Holders of Subordinated Debt Securities will be
entitled to receive any payment upon the principal of (or premium, if any) or
interest, if any, on the Subordinated Debt Securities. (Subordinated Indenture
Section )
No payments on account of principal (or premium, if any) or interest,
if any, in respect of the Subordinated Debt Securities may be made if there
shall have occurred and be continuing a default in the payment of principal of
(or premium, if any) or interest on Senior Indebtedness or an event of default
with respect to any Senior Indebtedness resulting in the acceleration of the
maturity thereof, or if any judicial proceeding shall be pending with respect to
any such default. (Subordinated Indenture Section )
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"Debt" means (without duplication and without regard to any portion of
principal amount that has not accrued and to any interest component thereof
(whether accrued or imputed) that is not due and payable) with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; and (vi) every obligation of the type
referred to in clauses (i) through (v) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable, directly or indirectly, as obligor or otherwise.
(Subordinated Indenture Section )
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent that such claim for post-petition interest is allowed in such
proceeding), on Debt, whether incurred on or prior to the date of the
Subordinated Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligations are not superior in right of payment to the
Subordinated Debt Securities, or to other Debt which is pari passu with, or
subordinated to the Subordinated Debt Securities; provided, however, that Senior
Indebtedness shall not be deemed to include the Subordinated Debt Securities.
(Subordinated Indenture Section )
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include indebtedness that is senior to
the Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities, when issued, will constitute Senior
Indebtedness.
The applicable Prospectus Supplement may further describe the
provisions, if any, applicable to the subordination of the Subordinated Debt
Securities of a particular series.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Liens
The Indentures provide that the Company may not, and may not permit any
Domestic Subsidiary to, create or suffer to exist any Lien to secure any
Indebtedness of the Company or any Subsidiary upon any Principal Property, or
upon any shares of capital stock or evidences of Indebtedness issued by any
Domestic Subsidiary and owned by the Company or any Domestic Subsidiary (whether
such Principal Property, shares or evidences of indebtedness were owned as of
the date of the Indenture or thereafter acquired), without making, or causing
such Domestic Subsidiary to make, effective provision to secure all of the Debt
Securities issued under the Indenture and then Outstanding by such Lien, equally
and ratably with any and all other Indebtedness thereby secured, so long as such
Indebtedness is so secured, unless, after giving effect thereto, the sum of (A)
the principal amount of Indebtedness secured by all Liens incurred after the
date of the Indenture and otherwise prohibited by the Indenture and (B) the
Attributable Value of all Sale and Leaseback Transactions entered into after the
date of the Indenture and otherwise prohibited by the Indenture does not exceed
10% of Consolidated Capitalization. The foregoing restrictions shall not apply
to Indebtedness secured by Liens existing on the date of the Indenture or to:
(i) Liens on any property existing at the time of the acquisition thereof; (ii)
Liens on property of a corporation existing at the time such corporation is
merged into or consolidated with the Company or a Domestic Subsidiary or at the
time of a sale, lease or other disposition of the properties of such corporation
(or a division thereof) as an entirety or substantially as an entirety to the
Company or a Domestic Subsidiary, provided that such Lien as a result of such
merger, consolidation, sale, lease or other disposition is not extended to
property owned by the Company or such Domestic Subsidiary immediately prior
thereto; (iii) Liens on property of a corporation existing at the time such
corporation becomes a Domestic Subsidiary; (iv) Liens securing Indebtedness of a
Domestic Subsidiary to the Company or to another Domestic Subsidiary; (v) Liens
to secure all or part of the cost of acquisition, construction, development or
improvement of the underlying property, or to secure Indebtedness incurred to
provide funds for any such purpose, provided that the commitment of the creditor
to extend the credit secured by any such Lien shall have been obtained not later
than 24 months after the later of (a) the completion of the acquisition,
construction, development or improvement of such property or (b) the placing in
operation of such property or of such property as so constructed,
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developed or improved; (vi) Liens on any property created, assumed or otherwise
brought into existence in contemplation of the sale or other disposition of the
underlying property, whether directly or indirectly, by way of share disposition
or otherwise, provided that the Company must have disposed of such property
within 180 days after the creation of such Liens and that any Indebtedness
secured by such Liens shall be without recourse to the Company or any
Subsidiary; (vii) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
thereof, to secure partial, progress, advance or other payments; (viii) Liens to
secure Indebtedness of joint ventures in which the Company or a Domestic
Subsidiary has an interest, to the extent such Liens are on property or assets
of, or equity interests in, such joint ventures; (ix) Liens to secure
Indebtedness in connection with financing by the Company or a Domestic
Subsidiary of the acquisition, development or construction of one or more
restaurants by or for one or more franchisees of the Company or of a Domestic
Subsidiary; and (x) any extension, renewal, replacement or refunding of any Lien
existing on the date of the Indenture or referred to in clauses (i) to (iii),
(v) and (ix), provided that the principal amount of Indebtedness secured thereby
and not otherwise authorized by clauses (i) to (iii), (v) or (ix) shall not
exceed the principal amount of Indebtedness, plus any premium or fee payable in
connection with any such extension, renewal, replacement or refunding, so
secured at the time of such extension, renewal, replacement or refunding.
(Section 1008)
Limitation on Sale and Leaseback Transactions
The Indenture provides that the Company may not, and may not permit any
Domestic Subsidiary to, enter into any Sale and Leaseback Transaction with
respect to any Principal Property, unless, either (i) the Company or such
Domestic Subsidiary would otherwise be entitled to issue, assume or guarantee
Indebtedness secured by a Lien on such Principal Property without equally and
ratably securing the outstanding Debt Securities under the Indenture; (ii) the
Company or such Domestic Subsidiary applies, within 180 days after the effective
date of such Sale and Leaseback Transaction, an amount equal to the Net
Available Proceeds therefrom to (A) the acquisition of one or more Principal
Properties or (B) to the retirement of the Debt Securities or the repayment of
other Indebtedness of the Company or a Domestic Subsidiary (other than such
Indebtedness owned by the Company or a Domestic Subsidiary) which, in the case
of such Indebtedness of the Company, is not subordinate and junior in right of
payment to the prior payment of the Debt Securities; or (iii) after giving
effect thereto, the sum of (A) the principal amount of Indebtedness secured by
all Liens incurred after the date of the Indenture and otherwise prohibited by
the Indenture and (B) the Attributable Value of all Sale and Leaseback
Transactions entered into after the date of the Indenture and otherwise
prohibited by the Indenture does not exceed 10% of Consolidated Capitalization.
The foregoing restrictions will not apply to (w) a Sale and Leaseback
Transaction providing for a lease for a term, including any renewal thereof, of
not more than three years, by the end of which term it is intended that the use
of such Principal Property by the lessee will be discontinued; (x) a Sale and
Leaseback Transaction between the Company and a Domestic Subsidiary or between
Domestic Subsidiaries; (y) a Sale and Leaseback Transaction between the Company
or a Domestic Subsidiary and a joint venture in which the Company or a Domestic
Subsidiary has an interest; or (z) a Sale and Leaseback Transaction between the
Company or a Domestic Subsidiary and any other Person primarily for the purpose
of financing the acquisition, development or construction of one or more
restaurants by one or more franchisees of the Company or of a Domestic
Subsidiary. (Section 1009)
If Subordinated Debt Securities are issued to a Wendy's Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Wendy's Trust and (i) there shall have occurred any event that would
constitute an Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the related Trust Preferred
Securities Guarantee or Trust Common Securities Guarantee, or (iii) the Company
shall have given notice of its election to defer payments of interest on such
Subordinated Debt Securities by extending the interest payment period as
provided in the Subordinated Indenture and such period, or any extension
thereof, shall be continuing, then (a) the Company shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or make
a liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plans,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock or, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock of the Company or the
security being converted or exchanged) or make any guarantee payments with
respect to the foregoing, and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by the Company which rank pari
passu with or junior to such Subordinated Debt Securities.
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In the event Subordinated Debt Securities are issued to a Wendy's Trust
or a trustee of such trust in connection with the issuance of Trust Securities
of such Wendy's Trust, for so long as such Trust Securities remain outstanding,
the Company will covenant (i) to directly or indirectly maintain 100% ownership
of the Trust Common Securities of such Wendy's Trust; provided, however, that
any permitted successor of the Company under the Indenture may succeed to the
Company's ownership of such Trust Common Securities, (ii) to use its reasonable
efforts to cause such Wendy's Trust (a) to remain a statutory business trust,
except in connection with the distribution of Subordinated Debt Securities to
the holders of Trust Securities in liquidation of such Wendy's Trust, the
redemption of all of the Trust Securities of such Wendy's Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the Declaration
of such Wendy's Trust, and (b) to continue to be classified as a grantor trust
for United States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Subordinated Debt Securities. (Subordinated
Indenture Section 1010)
RESTRICTIONS ON MERGER AND SALE OF ASSETS
The Indentures provide that the Company may not consolidate with or
merge into any other Person or sell, lease or otherwise transfer its property
and assets as, or substantially as, an entirety to any Person, and the Company
may not permit any Person to merge into or consolidate with the Company unless
(i) either (A) the Company will be the resulting or surviving entity or (B) any
successor or purchaser is a corporation, partnership, limited liability company
or trust organized under the laws of the United States of America, any State or
the District of Columbia, and any such successor or purchaser expressly assumes
the Company's obligations on the Debt Securities under a supplemental Indenture;
(ii) immediately after giving effect to the transaction no Event of Default, and
no event which after notice or lapse of time or both would become an Event of
Default, shall have occurred and be continuing; and (iii) certain other
conditions are met. (Section 801). Upon any consolidation or merger into any
other Person or any conveyance, transfer or lease of the Company's assets
substantially as an entirety to any Person, the successor Person shall succeed
to, and be substituted for, the Company under the Indentures, and the Company,
except in the case of a lease, shall be relieved of all obligations and
covenants under the Indentures and the Debt Securities to the extent it was the
predecessor Person. (Section 802)
CONVERSION RIGHTS
The terms and conditions, if any, upon which Debt Securities are
convertible into Common Stock, Preferred Stock or other securities of the
Company will be set forth in the applicable Prospectus Supplement relating
thereto. Such terms will include the conversion price (or manner of calculation
thereof), the conversion period, provisions as to whether conversion will be at
the option of the Holders or the Company, the events requiring an adjustment of
the conversion price and provisions affecting conversion in the event of
redemption of such Debt Securities.
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Debt Securities, the following events are, in the case of
clauses (a) through (e) and (g), defined in the Existing Indenture or, in the
case of clauses (a) through (g), defined in the Subordinated Indenture as
"Events of Default" with respect to Debt Securities of any series: (a) failure
to pay principal (including any sinking fund payment) of (or premium, if any,
on) any Debt Security of that series when due; (b) failure to pay any interest
on any Debt Security of that series when due, continued for 30 days; (c) failure
to perform any other covenant or agreement of the Company under the Applicable
Indenture (other than a covenant the performance of which is dealt with
specifically elsewhere in the Applicable Indenture or which has been included in
the Applicable Indenture solely for the benefit of a series of Debt Securities
other than that series), continued for 90 days after written notice as provided
in the Applicable Indenture; (d) failure to pay when due (after applicable grace
periods as provided in the Applicable Indenture) the principal of, or
acceleration of, any indebtedness for money borrowed by the Company having an
aggregate principal amount outstanding equal to at least $25 million, if such
indebtedness is not discharged, or such acceleration is not annulled, within 10
days after written notice as provided in the Applicable Indenture; (e) certain
events of bankruptcy, insolvency or reorganization; (f) in the event
Subordinated Debt Securities are issued to a Wendy's Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such Wendy's Trust,
the voluntary or involuntary dissolution, winding-up or termination of such
Wendy's Trust, except in connection with the distribution of Subordinated Debt
Securities to the holders of Trust Securities in liquidation of such Wendy's
Trust, the redemption of all of the Trust Securities of such Wendy's Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration of such Wendy's Trust; and (g) any other Event of Default provided
with respect to Debt Securities of that series. (Section 501)
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Except as defined in the Prospectus Supplement relating thereto and
except as specified in clauses (d) and (e) of the preceding paragraph, no Event
of Default with respect to Debt Securities of a particular series shall
necessarily constitute an Event of Default with respect to Debt Securities of
any other series. (Section 501) The Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series shall have the right,
subject to such provisions for indemnification of the Trustee, to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee under the Applicable Indenture or exercising any trust or power
conferred on the Trustee with respect to Debt Securities of that series.
(Section 512)
If an Event of Default (other than an Event of Default specified in
clause (e) of the second preceding paragraph) with respect to Debt Securities of
any series at the time Outstanding shall occur and be continuing, either the
Trustee or the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that series may, by a notice in writing to the Company (and
to the Trustee if given by the Holders), declare the principal amount (or, if
the Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all Debt Securities of that series to be due and payable immediately;
provided, however, that under certain circumstances the Holders of a majority in
aggregate principal amount of Outstanding Debt Securities of that series may
rescind or annul such declaration and its consequences. (Section 502). If an
Event of Default specified in clause (e) of the next preceding paragraph occurs,
the outstanding Debt Securities automatically will become immediately payable
without any declaration or other act on the part of the Trustee or any Holder.
(Section 502). For information as to waiver of defaults, see "Modification and
Waiver" herein.
Reference is made to the Prospectus Supplement relating to any series
of Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to the principal amount of such Original Issue
Discount Securities due on acceleration upon the occurrence of an Event of
Default and the continuation thereof.
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Applicable Indenture or for any
remedy thereunder, unless such Holder shall have previously given to the
applicable Trustee written notice of a continuing Event of Default with respect
to Debt Securities of that series and unless also the Holders of at least 25% in
aggregate principal amount of the Outstanding Debt Securities of the same series
shall have made written request, and offered reasonable indemnity to the
applicable Trustee, to institute such proceeding as trustee, and the applicable
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of the same series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. (Section 507). However, such limitations do not apply
to a suit instituted by a Holder of any Debt Security for enforcement of payment
of the principal of (or premium, if any) or interest, if any, on such Debt
Security on or after the respective due dates expressed in such Debt Security.
(Section 508)
Subject to the provisions of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), the Trustee will be under no obligation to
exercise any of its rights or powers under the Applicable Indenture at the
request of any of the Holders of Debt Securities unless they shall have offered
to the applicable Trustee security or indemnity in form and substance reasonably
satisfactory to such Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request. (Section 603)
The Company will be required to furnish to each Trustee annually a
statement by certain officers of the Company as to whether the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of the Applicable Indenture. (Section 1004)
Notwithstanding anything in the Indentures to the contrary, the right
of any holder of a Debt Security to receive payment of the principal of and
interest on such Debt Security, on and after the respective due dates expressed
in such Debt Security (as the same may be extended in accordance with the terms
of such Debt Security) or to institute suit for the enforcement of any such
payment shall not be impaired or affected without the consent of such holder,
including, in the case of a Subordinated Debt Security issued to a Wendy's
Trust, the holders of the Trust Preferred Securities issued by such Wendy's
Trust. In addition, in the case of a Subordinated Debt Security issued to a
Wendy's Trust, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or principal
then a holder of Trust Preferred Securities of such Wendy's Trust may directly
institute a proceeding against the Company for payment.
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MODIFICATION AND WAIVER
Each Indenture will provide that modifications and amendments of such
Indenture may be made by the Company and the applicable Trustee, with the
consent of the Holders of not less than a majority of principal amount of each
series of the Outstanding Debt Securities of each series under such Indenture
affected by the modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each such
Outstanding Debt Security affected thereby: (a) change the Stated Maturity of
the principal of (or premium, if any) or any installment of principal or
interest, if any, on any such Debt Security; (b) reduce the principal amount of
(or premium, if any) or the interest rate, if any, on any such Debt Security or
the principal amount due upon acceleration of an Original Issue Discount
Security; (c) adversely affect any right of repayment at the option of the
Holder of any such Debt Security; (d) reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous obligation; (e) change
the place or currency of payment of principal of (or premium, if any) or the
interest, if any, on any such Debt Security; (f) impair the right to institute
suit for the enforcement of any such payment on or with respect to any such Debt
Security on or after the Stated Maturity (or, in the case of redemption, on or
after the Redemption Date); (g) reduce the percentage of the principal amount of
Outstanding Debt Securities of any series, the consent of the Holders of which
is necessary to modify or amend the Applicable Indenture; or (h) modify the
foregoing requirements or reduce the percentage of Outstanding Debt Securities
necessary to waive compliance with certain provisions of the Applicable
Indenture or for waiver of certain defaults. (Section 902)
If a Wendy's Trust or the Property Trustee of a Wendy's Trust holds a
series of Subordinated Debt Securities no such amendment or modification which
requires the approval of the holders of a certain percentage in aggregate
principal amount of Subordinated Debt Securities shall be effective without the
approval of the holders of the same percentage of aggregate liquidation
preference of Trust Preferred Securities of such Wendy's Trust.
The holders of at least a majority of the aggregate principal amount of
the Outstanding Debt Securities of any series may, on behalf of all Holders of
that series, waive compliance by the Company with certain restrictive provisions
of the Applicable Indenture and waive any past default under such Indenture,
except a default in the payment of principal, premium or interest or in the
performance of certain covenants. (Sections 1010 and 513)
Each Indenture provides that a supplemental indenture which changes or
eliminates any covenant or other provision of such Indenture which has expressly
been included solely for the benefit of one or more particular series of Debt
Securities, or which modifies the rights of the Holders of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under such Indenture of the Holders of Debt Securities of any other
series. (Section 901)
Each Indenture provides that modifications and amendments of such
Indenture may be made by the Company and the applicable Trustee, without the
consent of the Holders of any series of Debt Securities issued thereunder: (1)
to evidence the succession of another corporation to the Company and assumption
by any such successor of the covenants of the Company in such Indenture and in
the Debt Securities issued thereunder; (2) to add to the covenants of the
Company or to add any additional events of default; (3) to permit or facilitate
the issuance of Debt Securities in bearer form or to provide for uncertificated
Debt Securities to be issued thereunder; (4) to change or eliminate any
provision of such Indenture, provided that any such change or elimination shall
become effective only when there are no Debt Securities outstanding of any
series created prior to the execution of such supplemental indenture which are
entitled to the benefit of such provision; (5) to secure any Debt Securities
issued thereunder; (6) to establish the form or terms of Debt Securities issued
thereunder; (7) to evidence and provide for a successor trustee under such
Indenture with respect to one or more series of Debt Securities issued
thereunder or to provide for or facilitate the administration of the trusts
under such Indenture by more than one trustee; or (8) to cure any ambiguity, to
correct or supplement any provision in such Indenture that may be inconsistent
with any other provision of such Indenture or to make any other provisions with
respect to matters or questions arising under such Indenture, provided that such
action shall not adversely affect the interests of the Holders of any series of
Debt Securities issued thereunder. (Section 901)
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities of any series have
given or taken any direction, notice, consent, waiver or other action under the
Indenture as of any date, (i) the principal amount of an Original Issue Discount
Debt Security that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
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acceleration of the Maturity thereof to such date; (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security; and (iii) the
principal amount of a Security denominated in one or more foreign currencies or
currency units that will be deemed to be Outstanding will be the United States
dollar equivalent, determined as of such date in the manner prescribed for such
Debt Security, of the principal amount of such Debt Security (or, in the case of
a Debt Security described in clause (i) or (ii) above, of the amount described
in such clause). Certain Debt Securities, including those for which payment or
redemption money has been deposited or set aside in trust for the Holders and
those that have been fully defeased pursuant to the Applicable Indenture, will
not be deemed to be Outstanding. (Section 101) For purposes of the Indentures,
the Debt Securities of any series "Outstanding" thereunder are deemed to exclude
those held by Persons (other than any Wendy's Trust that has issued related
Trust Preferred Securities) that control, are controlled by or are under common
control with the Company; provided that any Person who does not own, directly or
indirectly, more than 5% of the outstanding voting securities of the Company
will not be deemed to control the Company. (Section 101)
Except in certain limited circumstances, the Company will be entitled
to set any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver or other action under the Indentures, in the
manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such
shorter period as may be specified by the Company (or the Trustee, if it set the
record date), and may be shortened or lengthened (but not beyond 180 days) from
time to time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides, if such provision is made applicable to the
Debt Securities of any series pursuant to Section 301 of the Indentures (which
will be indicated in the Prospectus Supplement applicable thereto), that the
Company may elect either (A) to defease and be discharged from any and all
obligations with respect to such Debt Securities then outstanding (except for
the obligations to exchange or register the transfer of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to
maintain an office or agency in respect of the Debt Securities, and to hold
monies for payments in trust) ("defeasance"), or (B) to be released from its
obligations with respect to such Debt Securities concerning the restrictions
described under "Restriction on Merger and Sale of Assets" (Section 801) and any
other covenants applicable to such Debt Securities which are subject to covenant
defeasance ("covenant defeasance"), and the occurrence of an event described and
notice thereof in clauses (c) and (d) under "Events of Default and Notice
Thereof" (with respect to covenants determined, pursuant to Section 301 of the
Applicable Indenture, to be subject to covenant defeasance) shall no longer be
an Event of Default, in each case, upon the irrevocable deposit with the
applicable Trustee (or other qualifying trustee), in trust for such purpose, of
money, and/or U.S. Government Obligations (as defined in the Indentures) which
through the payment of principal and interest in accordance with their terms
will provide money in an amount sufficient without reinvestment to pay the
principal of (and premium, if any) and interest, if any, on such Debt
Securities, and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor. Such a trust may only be established if, among
other things, (i) the Company has delivered to the applicable Trustee an opinion
of counsel (as specified in the Applicable Indenture) to the effect that the
Holders of such Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
or covenant defeasance had not occurred, (ii) no Event of Default or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under the Indenture shall have occurred and be continuing on the date of
such deposit and (iii) certain other customary conditions precedent are
satisfied. In the case of defeasance under clause (A) above, the opinion of
counsel referred to in clause (i) above must refer to and be based on a ruling
of the Internal Revenue Service issued to the Company or published as a revenue
ruling or on a change in applicable Federal income tax law, in each case after
the date of such Indenture. (Article Thirteen)
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The Company may exercise the defeasance option with respect to such
Debt Securities notwithstanding its prior exercise of the covenant defeasance
option. If the Company exercises the defeasance option, payment of such Debt
Securities may not be accelerated because of an Event of Default. If the Company
exercises the covenant defeasance option, payment of such Debt Securities may
not be accelerated by reference to the covenants noted under clause (B) above.
In the event the Company omits to comply with the remaining obligations with
respect to such Debt Securities under such Indenture after exercising its
covenant defeasance option and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations on deposit with the applicable Trustee may be
insufficient to pay amounts due on the Debt Securities of such series at the
time of the acceleration resulting from such Event of Default, because the
required deposit in the defeasance trust is based upon scheduled cash flows,
rather than market values, which will vary depending on prevailing interest
rates and other factors. However, the Company will remain liable in respect of
such payments. (Article Thirteen)
The Prospectus Supplement may further describe the provisions, if any,
applicable to defeasance or covenant defeasance with respect to the Debt
Securities of a particular series.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in
the Indentures. Reference is made to the Applicable Indenture with respect to
any particular series of Debt Securities for the full definition of all such
terms, as well as any other terms used herein for which no definition is
provided. (Section 101)
"Attributable Value" in respect of any Sale and Leaseback Transaction
means, as of the time of determination, the lesser of (i) the sale price of the
Principal Property so leased multiplied by a fraction the numerator of which is
the remaining portion of the base term of the lease included in such Sale and
Leaseback Transaction and the denominator of which is the base term of such
lease, and (ii) the total obligation (discounted to present value at the highest
rate of interest specified by the terms of any series of Debt Securities then
Outstanding compounded semi-annually) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such Sale and Leaseback Transaction.
"Consolidated Capitalization" of the Company means consolidated total
assets less consolidated current liabilities, all as shown on a consolidated
balance sheet of the Company and all Subsidiaries (whether or not consolidated
for accounting purposes).
"Domestic Subsidiary" means any Subsidiary which owns a Principal
Property.
"Indebtedness" of any Person means (without duplication), with respect
to any Person, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person and (iv) every obligation of the type referred to
in clauses (i) through (iii) of another Person the payment of which such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor, guarantor or otherwise (but only, in the case of clause (iv), to the
extent such Person has guaranteed or is responsible or liable for such
obligations).
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Net Available Proceeds" from any Sale Transaction by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Indebtedness or obligations relating to the properties or assets
that are the subject of such Sale Transaction or received in any other noncash
form) therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Sale Transaction; (ii) all payments made by such Person
or its Subsidiaries on any Indebtedness which is secured in
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whole or in part by any such properties and assets in accordance with the terms
of any Lien upon or with respect to any such properties and assets or which
must, by the terms of such Lien, or in order to obtain a necessary consent to
such Sale Transaction or by applicable law, be repaid out of the proceeds from
such Sale Transaction; and (iii) all distributions and other payments made to
minority interest holders in Subsidiaries of such Person or joint ventures as a
result of such Sale Transaction; provided, however, that for purposes of clause
(ii) of "Limitations on Sale and Leaseback Transactions," the amount of Net
Available Proceeds to be applied to any acquisition of Principal Properties or
retirement of Debt Securities or other Indebtedness shall be reduced by an
amount equal to the sum of (A) an amount equal to the redemption price with
respect to such Debt Securities delivered within 180 days after the effective
date of such Sale and Leaseback Transaction to the Trustee for retirement and
cancellation and (B) the principal amount, plus any premium or fee paid in
connection with a redemption in accordance with the terms, of such other
Indebtedness voluntarily retired by the Company within such 180-day period,
excluding in each case retirements pursuant to mandatory sinking fund or
prepayment provisions and payments at maturity.
"Principal Property" means all restaurant or related equipment and all
real property, in each case which is owned by the Company or a Subsidiary and
which constitutes all or part of any restaurant located within one of the 50
states of the United States or the District of Columbia.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any Principal Property that, more
than 12 months after (i) the completion of the acquisition, construction,
development or improvement of such Principal Property or (ii) the placing in
operation of such Principal Property or of such Principal Property as so
constructed, developed or improved, has been or is being sold, conveyed,
transferred or otherwise disposed of by such Person to such lender or investor
or to any Person to whom funds have been or are to be advanced by such lender on
the security of such Principal Property. The term of such arrangement, as of any
date (the "measurement date"), shall end on the date of the last payment of rent
or any other amount due under such arrangement on or prior to the first date
after the measurement date on which such arrangement may be terminated by the
lessee, at its sole option, without payment of a penalty. "Sale Transaction"
means any such sale, conveyance, transfer or other disposition.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
PERMANENT GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or
more permanent Global Securities that will be deposited with a Depositary or its
nominee. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of Outstanding Debt Securities of the series to be represented
by such Global Security or Securities. The Prospectus Supplement relating to
such series of Debt Securities will describe the circumstances, if any, under
which beneficial owners of interests in any such permanent Global Security may
exchange such interests for Debt Securities of such series and of like tenor and
principal amount in any authorized form and denomination. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a permanent Global Security may not be registered for transfer or exchange
except in the circumstances described in the applicable Prospectus Supplement.
(Sections 204 and 305)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a permanent Global
Security and a description of the Depositary will be contained in the applicable
Prospectus Supplement.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by and
construed in accordance with the internal laws of the State of New York.
(Section 112)
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DESCRIPTION OF THE CAPITAL STOCK
The authorized capital stock of the Company consists of 200,000,000
shares of Common Stock, without par value, and 250,000 shares of Preferred
Stock, par value $1.00 per share. As of August 5, 1996, there were 128,804,000
shares of Common Stock outstanding, and no shares of Preferred Stock were
outstanding.
The following summary does not purport to be complete and is qualified
in its entirety by reference to the applicable provisions of Ohio law and the
Company's Articles of Incorporation (the "Articles of Incorporation") and New
Regulations (the "Regulations").
COMMON STOCK
Holders of outstanding Common Stock are entitled to receive dividends
when and if declared by the Board of Directors from funds legally available
therefor, subject to the rights of holders of Preferred Stock, if any, and to
restrictions contained in long-term indebtedness of the Company. At all meetings
of shareholders, holders of Common Stock are entitled to one vote for each share
held except that the laws of Ohio provide for cumulative voting for the election
of directors upon the previous request of any shareholder. Holders of Common
Stock have no preemptive or subscription rights. Upon liquidation, all shares of
Common Stock are entitled to participate equally in the assets of the Company
available for distribution to holders of Common Stock. All of the outstanding
shares of Common Stock are fully paid and nonassessable.
PREFERRED STOCK
The Board of Directors has the authority to issue the Preferred Stock
in one or more series and to fix certain of the rights, preferences, privileges
and restrictions thereof, including the dividend rights, dividend rate, the
dates of payment of dividends and the dates from which they are cumulative,
conversion rights, terms of redemption (including sinking fund provisions),
redemption price or prices, liquidation preferences and the number of shares
constituting any series or the designations of such series, without any further
vote or action by the shareholders. Holders of the Preferred Stock are entitled
to one vote per share on matters to be voted upon by the holders of Common Stock
and Preferred Stock voting together as a single class, except that Ohio laws
entitles the holders of Preferred Stock to exercise a class vote on certain
matters.
SHAREHOLDER RIGHTS PLAN
On August 4, 1988, the Board of Directors of the Company declared a
dividend of one Right for each outstanding share of Common Stock. Until the
Rights become exercisable, or the earlier redemption or exchange of the Rights,
the Company will issue one Right with each share of Common Stock that is newly
issued so that all shares of Common Stock will have Rights attached thereto.
Upon the occurrence of the events enumerated below, each Right will entitle the
holder thereof, until the earlier of the close of business on August 10, 1998,
or the redemption or exchange of the Rights, to buy one ten-thousandth of one
Series A Preferred Share of the Company, at a price of $25.00 per one
ten-thousandth of a share, subject to adjustment. The rights will not be
exercisable until the earlier to occur of (i) a public announcement that,
without the prior consent of the Company, a person or group of affiliated or
associated persons have acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock (an
"Acquiring Person") or (ii) the tenth business day (or such later date as may be
determined by the Board of Directors prior to such time as any person becomes an
Acquiring Person) following the commencement of, or the first public
announcement of an intention to make, a tender offer or exchange offer, the
consummation of which would result in the beneficial ownership by a person or
group of 15% or more of such outstanding shares of Common Stock (the earlier of
such dates being referred to as the "Distribution Date"). Until the Distribution
Date (or earlier exchange or redemption of the Rights), the Rights will be
transferred with and only with the shares of Common Stock. Separate certificates
for the Rights will be issued as soon as practicable following the Distribution
Date to holders of record of the Common Stock as of the Distribution Date. The
Rights will then begin trading separately from the Common Stock.
In the event the Company is acquired in a merger or other business
combination transaction or 50% or more of its assets or earning power is sold,
each holder of a Right will have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of common shares of
the acquiring company which at the time of such transaction will have a market
value of two times the exercise price of the Right. In the event that any
person
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becomes an Acquiring Person (unless such person first acquires 15% or more of
the outstanding shares of Common Stock pursuant to a tender or exchange offer
for all outstanding shares of Common Stock at a price and on terms determined
by at least a majority of the members of the Board of Directors who are not
officers of the Company to be both adequate and otherwise in the best interests
of the Company and its shareholders (other than the person or an affiliate or
associate thereof on whose behalf the offer is being made)), each holder of a
Right (other than Rights beneficially owned by the Acquiring Person which will
thereafter be void) will have the right to receive upon exercise that number of
shares of Common Stock having a market price of two times the exercise price
of the Right.
Generally, the Company may redeem each Right for $.01 at any time
before a person or group becomes an Acquiring Person without prior approval.
After the Distribution Date, Rights will not be issued with respect to Common
Stock except under certain circumstances.
The summary description of the Rights set forth above does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement, as amended, between the Company and American Stock Transfer and Trust
Company, as Rights Agent, which is incorporated by reference as an exhibit to
the Registration Statement.
TRANSFER AGENT
The transfer agent and registrar for the Company's Common Stock is
American Stock Transfer and Trust Company, 40 Wall Street, New York, New York
10005.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities (the "Debt
Warrants"), Preferred Stock (the "Preferred Share Warrants") or Common Stock
(the "Common Stock Warrants", collectively with the Debt Warrants and the
Preferred Stock Warrants the "Warrants"). Warrants may be issued independently
or together with any Securities and may be attached to or separate from such
Securities. The Warrants are to be issued under warrant agreements (each a
"Warrant Agreement") to be entered into between the Company and a bank or trust
company, as warrant agent (the "Warrant Agent"), all as shall be set forth in
the Prospectus Supplement relating to the Warrants being offered pursuant
thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the debt warrant certificates representing such Debt Warrants, including the
following: (1) the title of such Debt Warrants; (2) the aggregate number of such
Debt Warrants; (3) the price or prices at which such Debt Warrants will be
issued; (4) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Debt Warrants; (5) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each such security; (6)
the date, if any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (7) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant, and the price at
which such principal amount of Debt Securities may be purchased upon such
exercise; (8) the date on which the right to exercise such Debt Warrants shall
commence, and the date on which such right shall expire; (9) the maximum or
minimum number of such Debt Warrants which may be exercised at any time; (10) a
discussion of material federal income tax considerations, if any; and (11) any
other terms of such Debt Warrants and terms, procedures and limitations relating
to the exercise of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt Warrant
certificates of different denominations, and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the Prospectus Supplement. Prior to the exercise of their Debt Warrants, holder
of Debt Warrants will not have any of the rights of holders of the securities
purchasable upon such exercise and will not be entitled to payments of principal
of (or premium, if any) or interest, if any, on the securities purchasable upon
such exercise.
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OTHER WARRANTS
The applicable Prospectus Supplement will describe the following terms
of Preferred Stock Warrants and Common Share Warrants in respect of which this
Prospectus is being delivered: (1) the title of such Warrants; (2) the
Securities for which such Warrants are exercisable; (3) the price or prices at
which such Warrants will be issued; (4) the number of such Warrants issued with
each share of Preferred Stock or Common Stock; (5) any provisions for adjustment
of the number or amount of Preferred Stock or Common Stock receivable upon
exercise of such Warrants or the exercise price of such Warrants; (6) if
applicable, the date on and after which such Warrants and the related Preferred
Stock or Common Stock will be separately transferable; (7) if applicable, a
discussion of material federal income tax considerations; (8) any other terms of
such Warrants, including terms, procedures and limitations relating to the
exchange and exercise of such Warrants; (9) the date on which the right to
exercise such Warrants shall commence, and the date on which the right shall
expire; (10) the maximum or minimum number of such Warrants which may be
exercised at any time.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of the Warrants to purchase for
cash such principal amount of Debt Securities or Preferred Stock or Common Stock
at such exercise price as shall in each case be set forth in, or be determinable
as set forth in, the Prospectus Supplement relating to the Warrants offered
thereby. Warrants may be exercised at any time up to the close of business on
the expiration date set forth in the Prospectus Supplement relating to the
Warrants offered thereby. After the close of business on the expiration date,
unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, forward the Debt
Securities or Preferred Stock or Common Stock purchasable upon such exercise. If
less than all of the Warrants represented by such warrant certificate are
exercised, a new warrant certificate will be issued for the remaining Warrants.
DESCRIPTION OF TRUST PREFERRED SECURITIES
Each Wendy's Trust may issue, from time to time, only one series of
Trust Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each Wendy's Trust authorizes the Regular
Trustees of such Wendy's Trust to issue on behalf of such Wendy's Trust one
series of Trust Preferred Securities. The Declaration will be qualified as an
indenture under the Trust Indenture Act. The Trust Preferred Securities will
have such terms, including distributions, redemption, voting, liquidation,
conversion rights and such other preferred, deferred or other special rights or
such restrictions as shall be set forth in the Declaration or made part of the
Declaration by the Trust Indenture Act, and which will mirror the terms of the
Subordinated Debt Securities held by the Wendy's Trust and described in the
Prospectus Supplement related thereto. Reference is made to the Prospectus
Supplement relating to the Trust Preferred Securities of any Wendy's Trust for
specific terms, including (i) the distinctive designation of such Trust
Preferred Securities; (ii) the number of Trust Preferred Securities issued by
such Wendy's Trust; (iii) the annual distribution rate (or method of determining
such rate) for Trust Preferred Securities issued by such Wendy's Trust and the
date or dates upon which such distributions shall be payable; provided, however,
that distributions on such Trust Preferred Securities shall be payable on a
quarterly basis to holders of such Trust Preferred Securities as of a record
date in each quarter during which such Trust Preferred Securities are
outstanding; (iv) whether distributions on Trust Preferred Securities issued by
such Wendy's Trust shall be cumulative, and, in the case of Trust Preferred
Securities having such cumulative distribution rights, the date or dates or
method of determining the date or dates from which distributions on Trust
Preferred Securities issued by such Wendy's Trust shall be cumulative; (v) the
amount or amounts which shall be paid out of the assets of such Wendy's Trust to
the holders of Trust Preferred Securities of such Wendy's Trust upon voluntary
or involuntary dissolution, winding-up or termination of such Wendy's Trust;
(vi) the obligation, if any, of such Wendy's Trust to purchase or redeem Trust
Preferred Securities issued by such Wendy's Trust and the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, Trust Preferred Securities issued by such Wendy's Trust shall be
purchased or redeemed, in whole or in part, pursuant to such obligation; (vii)
the voting rights, if any, of Trust Preferred Securities issued by such Wendy's
Trust in addition to those required by law, including the number of votes per
Trust Preferred Security and any requirement for the approval by the holders of
Trust Preferred Securities, or of Trust Preferred Securities issued by one or
more Wendy's Trusts, or of both, as a condition to specified
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<PAGE> 22
action or amendments to the Declaration of such Wendy's Trust; (viii) the terms
and conditions, if any, upon which Trust Preferred Securities issued by such
Wendy's Trust may be converted into shares of Common Stock, including the
conversion price per share and the circumstances, if any, under which any such
conversion right shall expire; (ix) the terms and conditions, if any, upon which
the Subordinated Debt Securities may be distributed to holders of Trust
Preferred Securities; (x) if applicable, any securities exchange upon which the
Trust Preferred Securities shall be listed; and (xi) any other relevant rights,
preferences, privileges, limitations or restrictions of Trust Preferred
Securities issued by such Wendy's Trust not inconsistent with the Declaration of
such Wendy's Trust or with applicable law. All Trust Preferred Securities
offered hereby will be guaranteed by the Company to the extent set forth below
under "Description of Trust Preferred Securities Guarantees." Certain United
States federal income tax considerations applicable to any offering of Trust
Preferred Securities will be described in the Prospectus Supplement relating
thereto.
In connection with the issuance of Trust Preferred Securities, each
Wendy's Trust will issue one series of Trust Common Securities. The Declaration
of each Wendy's Trust authorizes the Regular Trustees of such trust to issue on
behalf of such Wendy's Trust one series of Trust Common Securities having such
terms including distributions, redemption, voting and liquidation rights or such
restrictions as shall be set forth therein. The terms of the Trust Common
Securities issued by a Wendy's Trust will be substantially identical to the
terms of the Trust Preferred Securities issued by such trust and the Trust
Common Securities will rank pari passu, and payments will be made thereon pro
rata, with the Trust Preferred Securities except that, upon an event of default
under the Declaration, the rights of the holders of the Trust Common Securities
to payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. Except in certain limited circumstances, the Trust Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Wendy's Trustees of a Wendy's Trust. All of the Trust Common Securities
of each Wendy's Trust will be directly or indirectly owned by the Company.
PROPOSED TAX LEGISLATION
On March 19, 1996, as a part of President Clinton's Fiscal 1997 Budget
Proposal, the Treasury Department proposed legislation (the "Proposed
Legislation") that, among other things, would (i) treat as equity for United
States federal income tax purposes certain debt instruments with a maximum term
of more than 20 years and (ii) disallow interest deductions on certain
convertible debt instruments or defer interest deductions on certain debt
instruments issued with OID. The Proposed Legislation is proposed to be
effective for debt instruments issued on or after December 7, 1995.
On March 29, 1996, Senate Finance Committee Chairman William V. Roth,
Jr. and House Ways and Means Committee Chairman Bill Archer issued a joint
statement (the "Joint Statement") indicating their intent that the Proposed
Legislation, if adopted by either of the tax-writing committees of Congress,
would have an effective date that is no earlier than the date of "appropriate
Congressional action." However, there can be no assurances that the effective
date guidance contained in the Joint Statement will be incorporated in the
Proposed Legislation, if enacted, or that other legislation enacted after the
date hereof will not otherwise adversely affect the tax treatment of the
Subordinated Debt Securities. In addition, there can be no assurances as to
whether or in what form the Proposed Legislation may be enacted into law or
whether other legislation will be enacted that otherwise adversely affects the
tax treatment of the Subordinated Debt Securities and the Trust Preferred
Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If an Event of Default under the Declaration of a Wendy's Trust occurs
and is continuing, then the holders of Trust Preferred Securities of such
Wendy's Trust would rely on the enforcement by the Property Trustee of its
rights as a holder of the applicable series of Subordinated Debt Securities
against the Company. In addition, the holders of a majority in liquidation
amount of the Trust Preferred Securities of such Wendy's Trust will have the
right to direct the time, method, and place of conducting any proceeding for any
remedy available to the Property Trustee or to direct the exercise of any trust
or power conferred upon the Property Trustee under the applicable Declaration,
including the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Subordinated Debt Securities. If the Property
Trustee fails to enforce its rights under the applicable series of Subordinated
Debt Securities, a holder of Trust Preferred Securities of such Wendy's Trust
may institute a legal proceeding directly against the Company to enforce the
Property Trustee's rights under the applicable series of Subordinated Debt
Securities without first instituting any legal proceeding against the Property
Trustee or any other person or entity. Notwithstanding the foregoing, if an
Event of Default under the applicable Declaration has occurred and is continuing
and such event is attributable to the failure of the Company to pay
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<PAGE> 23
interest or principal on the applicable series of Subordinated Debt Securities
on the date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a holder of Trust Preferred Securities
of such Wendy's Trust may directly institute a proceeding for enforcement of
payment to such holder of the principal of or interest on the applicable series
of Subordinated Debt Securities having a principal amount equal to the aggregate
liquidation amount of the Trust Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in the applicable series
of Subordinated Debt Securities. In connection with such Direct Action, the
Company will be subrogated to the rights of such holder of Trust Preferred
Securities under the applicable Declaration to the extent of any payment made by
the Company to such holder of Trust Preferred Securities in such Direct Action.
DESCRIPTION OF TRUST PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Trust
Preferred Securities Guarantees which will be executed and delivered by the
Company for the benefit of the holders from time to time of Trust Preferred
Securities. Each Trust Preferred Securities Guarantee will be qualified as an
indenture under the Trust Indenture Act. NBD Bank will act as the independent
trustee under each Trust Preferred Securities Guarantee (the "Preferred
Guarantee Trustee") for purposes of the Trust Indenture Act. The terms of each
Trust Preferred Securities Guarantee will be those set forth in such Trust
Preferred Securities Guarantee and those made part of such Trust Preferred
Securities Guarantee by the Trust Indenture Act. The summary is subject in all
respects to the provisions of, and is qualified in its entirety by reference to,
the form of Trust Preferred Securities Guarantee, which is filed as an exhibit
to the Registration Statement of which this Prospectus forms a part, and the
Trust Indenture Act. Each Trust Preferred Securities Guarantee will be held by
the Preferred Guarantee Trustee for the benefit of the holders of the Trust
Preferred Securities of the applicable Wendy's Trust.
GENERAL
Pursuant to each Trust Preferred Securities Guarantee, the Company will
agree, to the extent set forth therein, to pay in full, to the holders of the
Trust Preferred Securities issued by a Wendy's Trust, the Guarantee Payments (as
defined herein) (except to the extent paid by such Wendy's Trust), as and when
due, regardless of any defense, right of setoff or counterclaim which such
Wendy's Trust may have or assert. The following payments with respect to Trust
Preferred Securities issued by a Wendy's Trust to the extent not paid by such
Wendy's Trust (the "Guarantee Payments"), will be subject to the Trust Preferred
Securities Guarantee thereon (without duplication): (i) any accrued and unpaid
distributions which are required to be paid on such Trust Preferred Securities,
to the extent such Wendy's Trust shall have funds available therefor; (ii) the
redemption price set forth in the applicable Prospectus Supplement (the
"Redemption Price"), which will not be lower than the liquidation amount, and
all accrued and unpaid distributions, to the extent such Wendy's Trust has funds
available therefor with respect to any Trust Preferred Securities called for
redemption by such Wendy's Trust and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of such Wendy's Trust (other than in
connection with the distribution of Subordinated Debt Securities to the holders
of Trust Preferred Securities or the redemption of all of the Trust Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on such Trust Preferred Securities to the date
of payment, to the extent such Wendy's Trust has funds available therefor and
(b) the amount of assets of such Wendy's Trust remaining available for
distribution to holders of such Trust Preferred Securities in liquidation of
such Wendy's Trust. The Company's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Company to the
holders of Trust Preferred Securities or by causing the applicable Wendy's Trust
to pay such amounts to such holders.
Each Trust Preferred Securities Guarantee will not apply to any payment
of distributions on the Trust Preferred Securities except to the extent such
Wendy's Trust shall have funds available therefor. If the Company does not make
interest payments on the Subordinated Debt Securities purchased by a Wendy's
Trust, such Wendy's Trust will not pay distributions on the Trust Preferred
Securities issued by such Wendy's Trust and will not have funds available
therefor. See "Description of Debt Securities,Certain Covenants of the Company."
The Trust Preferred Securities Guarantee, when taken together with the Company's
obligations under the Subordinated Debt Securities, the Indenture and the
Declaration, including its obligations to pay costs, expenses, debts and
liabilities of such Wendy's Trust (other than with respect to the Trust
Securities), will provide a full and unconditional guarantee on a subordinated
basis by the Company of payments due on the Trust Preferred Securities.
The Company has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the Wendy's Trusts with respect to
the Trust Common Securities (the "Trust Common Securities Guarantees") to the
same
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<PAGE> 24
extent as the Trust Preferred Securities Guarantee, except that upon an event of
default under the Indenture, holders of Trust Preferred Securities shall have
priority over holders of Trust Common Securities with respect to distributions
and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Trust Preferred Securities Guarantee, the Company will covenant
that, so long as any Trust Preferred Securities issued by the applicable Wendy's
Trust remain outstanding, if there shall have occurred any event that would
constitute an event of default under such Trust Preferred Securities Guarantee
or the Declaration of such Wendy's Trust, then (a) the Company shall not declare
or pay any dividend on, make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of its capital stock
(other than (i) purchases or acquisitions of shares of Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans, (ii) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's capital
stock, or (iii) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock of the Company or the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing and (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Company which rank pari passu with or junior to such Subordinated Debt
Securities.
MODIFICATION OF THE TRUST PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not materially adversely
affect the rights of holders of Trust Preferred Securities (in which case no
vote will be required), each Trust Preferred Securities Guarantee may be amended
only with the prior approval of the holders of not less than a majority in
liquidation amount of the outstanding Trust Preferred Securities issued by the
applicable Wendy's Trust. The manner of obtaining any such approval of holders
of such Trust Preferred Securities will be as set forth in an accompanying
Prospectus Supplement. All guarantees and agreements contained in a Trust
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the holders of the Trust Preferred Securities of the applicable Wendy's Trust
then outstanding.
TERMINATION
Each Trust Preferred Securities Guarantee will terminate as to the
Trust Preferred Securities issued by the applicable Wendy's Trust (a) upon full
payment of the Redemption Price of all Trust Preferred Securities of such
Wendy's Trust, (b) upon distribution of the Subordinated Debt Securities held by
such Wendy's Trust to the holders of the Trust Preferred Securities of such
Wendy's Trust or (c) upon full payment of the amounts payable in accordance with
the Declaration of such Wendy's Trust upon liquidation of such Wendy's Trust.
Each Trust Preferred Securities Guarantee will continue to be effective or will
be reinstated, as the case may be, if at any time any holder of Trust Preferred
Securities issued by the applicable Wendy's Trust must restore payment of any
sums paid under such Trust Preferred Securities or such Trust Preferred
Securities Guarantee. The subordination provisions of the Subordinated Debt
Securities provide that in the event payment is made on the Subordinated Debt
Securities or the Trust Preferred Securities Guarantee in contravention of such
provisions such payments shall be paid over to the holders of Senior
Indebtedness.
EVENTS OF DEFAULT
An event of default under a Trust Preferred Securities Guarantee will
occur upon (a) the failure of the Company to perform any of its payment or other
obligations thereunder or (b) if applicable, the failure by the Company to
deliver Common Stock upon an appropriate election by the holder or holders of
Trust Preferred Securities to convert the Trust Preferred Securities into shares
of Common Stock.
The holders of a majority in liquidation amount of the Trust Preferred
Securities relating to such Trust Preferred Securities Guarantee have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee in respect of the Trust Preferred
Securities Guarantee or to direct the exercise of any trust or power conferred
upon the Preferred Guarantee Trustee under such Trust Preferred Securities. If
the Preferred Guarantee Trustee fails to enforce such Trust Preferred Securities
Guarantee, any holder of Trust Preferred
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<PAGE> 25
Securities relating to such Trust Preferred Securities Guarantee may institute a
legal proceeding directly against the Company to enforce the Preferred Guarantee
Trustee's rights under such Trust Preferred Securities Guarantee, without first
instituting a legal proceeding against the relevant Wendy's Trust, the Preferred
Guarantee Trustee or any other person or entity. Notwithstanding the foregoing,
if the Company has failed to make a guarantee payment, a holder of Trust
Preferred Securities may directly institute a proceeding against the Company for
enforcement of the Trust Preferred Securities Guarantee for such payment. The
Company waives any right or remedy to require that any action be brought first
against such Wendy's Trust or any other person or entity before proceeding
directly against the Company.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEES
The Trust Preferred Securities Guarantees will constitute unsecured
obligations of the Company and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Company, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the Company and
with any guarantee now or hereafter entered into by the Company in respect of
any preferred or preference stock of any affiliate of the Company; and (iii)
senior to Common Stock. The terms of the Trust Preferred Securities provide that
each holder of Trust Preferred Securities issued by the applicable Wendy's Trust
by acceptance thereof agrees to the subordination provisions and other terms of
the Trust Preferred Securities Guarantee relating thereto.
The Trust Preferred Securities Guarantees will constitute a guarantee
of payment and not of collection (that is, the guaranteed party may institute a
legal proceeding directly against the guarantor to enforce its rights under the
guarantee without instituting a legal proceeding against any other person or
entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default
with respect to a Trust Preferred Securities Guarantee, undertakes to perform
only such duties as are specifically set forth in such Trust Preferred
Securities Guarantee and, after default, shall exercise the same degree of care
as a prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Preferred Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by a Trust Preferred
Securities Guarantee at the request of any holder of Trust Preferred Securities,
unless offered reasonable indemnity against the costs, expenses and liabilities
which might be incurred thereby.
PLAN OF DISTRIBUTION
The Securities may be sold (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise). The distribution of
Securities may be effected from time to time in one or more transactions at a
fixed price or prices, which may be changed, or at market prices prevailing at
the time of sale, at prices relating to such prevailing market prices or at
negotiated prices.
Offers to purchase the Securities may be solicited by agents designated
by the Company from time to time. Any such agent involved in the offer or sale
of the Securities will be named, and any commissions payable by the Company to
such agent will be set forth in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the
Securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters and the terms of the transactions, including compensation
of the underwriters and dealers, if any, will be set forth in the Prospectus
Supplement, which will be used by the underwriters to make resales of the
Securities.
If a dealer is utilized in the sale of the Securities, the Company will
sell such Securities to the dealer, as principal. The dealer may then resell
such Securities to the public at varying prices to be determined by such dealer
at the time of resale. The name of the dealer and the terms of the transactions
will be set forth in the Prospectus Supplement relating thereto.
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<PAGE> 26
Offers to purchase the Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to institutional
investors or others. The terms of any such sales, including the terms of any
bidding or auction process, if utilized, will be described in the Prospectus
Supplement relating thereto.
The Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms"), acting as principals for their own
accounts or as agents for the Company. Any remarketing firm will be identified
and the terms of its agreement, if any, with the Company and its compensation
will be described in the Prospectus Supplement. Remarketing firms may be deemed
to be underwriters in connection with the Securities remarketed thereby.
Agents, underwriters, dealers and remarketing firms may be entitled
under agreements which may be entered into with the Company to indemnification
by the Company against certain liabilities, including liabilities under the 1933
Act, and any such agents, underwriters, dealers or remarketing firms, or their
affiliates may be customers of, engage in transactions with or perform services
for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize agents and underwriters to solicit offers by certain institutions to
purchase Debt Securities from the Company at the public offering price set forth
in the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Such Contracts will be subject to only those conditions
set forth in the Prospectus Supplement. A commission indicated in the Prospectus
Supplement will be paid to underwriters and agents soliciting purchases of Debt
Securities pursuant to Contracts accepted by the Company.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1995
and January 1, 1995 and the consolidated statements of income, shareholders'
equity and cash flows for the years ended December 31, 1995, January 1, 1995
and January 2, 1994 incorporated by reference in this Prospectus have been
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that Firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the Securities, other than the Trust Securities,
offered hereby will be passed upon for the Company by Vorys, Sater, Seymour and
Pease ("Vorys Sater"), Columbus, Ohio and the validity of the Trust Securities
will be passed upon for the Company and the Wendy's Trusts by Richards, Layton &
Finger, Wilmington, Delaware, special Delaware counsel to the Company and the
Wendy's Trusts. Frederick R. Reed, a director of the Company, is a partner in
Vorys Sater and has been named to serve as Executive Vice President of the
Company commencing on September 1, 1996. As of July 24, 1996, members of Vorys
Sater and attorneys employed thereby, together with members of their immediate
families, beneficially owned an aggregate of approximately 72,338 shares of
Common Stock of the Company.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated (except for the Securities
and Exchange Commission registration fee) fees and expenses (other than
underwriting discounts and commissions) in connection with the Offering
described in this Registration Statement:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.................. $ 68,966
Rating Agency fees................................................... 140,000
Transfer Agent fees and expenses..................................... 1,000
Trustee fees and expenses............................................ 12,500
Blue Sky filing and counsel fees and expenses........................ 20,000
Printing and engraving costs......................................... 30,000
Legal fees and expenses.............................................. 65,000
Accounting fees and expenses......................................... 15,000
Miscellaneous expenses............................................... $ 7,534
--------
Total....................................................... $360,000
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by a corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, member, manager, or
agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, if
he had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, he had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee, member, manager,
or agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member, manager,
or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's
fees, actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall
be made in respect of any of the following:
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(a) Any claim, issue, or matter as to which such
person is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and
only to the extent that, the court of common pleas or the
court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action suit or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened by the action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation
or any person to be indemnified within the past five years;
(c) By the shareholders; or
(d) By the court of common pleas or the court in
which such action, suit or proceeding referred to in division
(E)(1) or (2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that
is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the regulations
of a corporation state, by specific reference to this division, that
the provisions of this division do not apply to the corporation and
unless the only liability asserted against a director in an action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney's fees, incurred by a director in defending the
action, suit, or proceeding shall be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding, upon receipt of an undertaking by or on behalf of the
director in which he agrees to both of the following:
(i) Repay such amount if it is proved by
clear and convincing evidence in a court of competent
jurisdiction that his action or failure to act
involved an act or
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<PAGE> 29
omission undertaken with deliberate intent to cause
injury to the corporation or undertaken with reckless
disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the
corporation concerning the action, suit, or
proceeding.
(b) Expenses, including attorney's fees, incurred by
a director, trustee, officer, employee, member, manager, or
agent in defending any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, may be paid by the
corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized
by the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer,
employee, member, manager, or agent to repay such amount, if
it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of or for any person
who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation has
a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this section
do not create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
Section 5.01 of the Registrant's New Regulations govern indemnification
by the Registrant and provides as follows:
SECTION 5.01. Indemnification. The corporation shall indemnify
each director and officer, each former director and officer and each
person who may have served at its request as an officer and each person
who may have served at its request as a director, trustee or officer of
any other corporation, partnership, joint venture, trust or other
enterprise to the greatest extent permitted by Ohio law, with respect
to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, to which such
person was or is a party by reason of the fact that he is or was a
director or officer of the corporation or is or was serving at its
request as aforesaid. Indemnification hereunder shall include all
expenses, including attorneys' fees, judgments, fines and amounts paid
in
II-3
<PAGE> 30
settlement if actually and reasonably incurred by him in connection
with such action, suit or proceeding. Such expenses shall be paid in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation. In addition, the
corporation may indemnify or agree to indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that
he is or was an employee or agent of the corporation or is or was an
employee or agent of the corporation or is or was serving as an
employee or agent of another enterprise at the request of the
corporation; subject, however, to the limitations imposed by Ohio law.
The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification
may be entitled under the Articles or any agreement, vote of
shareholders or disinterested directors or otherwise (including,
without limitation, any insurance), both as to action in his official
capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a
director, trustee, officer, employee or agent and shall inure to the
benefit of the heirs, executors, administrators and successors of such
a person.
In addition, the Registrant has purchased insurance coverage under
policies issued by the Chubb Group of Insurance Companies, National Union
Insurance Company and CNA Insurance Companies which insure directors and
officers against certain liabilities which might be incurred by them in such
capacity.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
No. Exhibits
- ------- --------
<S> <C>
1+ Form of Underwriting Agreement relating to Debt Securities
4(a) Form of Indenture dated as of December 14, 1995, for Debt
Securities between the Registrant and Huntington National
Bank, as trustee (incorporated by reference to Exhibit 4 to
the Registrant's Registration Statement on Form S-3 (File
No. 33-57101))
4(b)* Form of Indenture for Subordinated Debt Securities between the
Registrant and NBD Bank, as trustee
4(c)+ Form or forms of Securities (other than the form of
convertible Preferred Security which is included in Exhibit
4(h))
4(d) Certificate of Trust of Wendy's Financing I
4(e) Certificate of Trust of Wendy's Financing II
4(h)(i)* Form of Amended and Restated Declaration of Trust of Wendy's
Financing I
4(h)(ii)* Form of Amended and Restated Declaration of Trust of Wendy's
Financing II
4(i)* Form of Supplemental Indenture to be used in connection with
the issuance of Subordinated Debt Securities and Trust
Preferred Securities
4(j)(i)* Form of Preferred Securities Guarantee for the benefit of the
holders of Trust Preferred Securities of Wendy's Financing I
4(j)(ii)* Form of Preferred Securities Guarantee for the benefit of the
holders of Trust Preferred Securities of Wendy's Financing
II
4(k)+ Form of certificate for Preferred Stock
4(l)+ Form of Warrant Agreement
4(m) Rights Agreement dated as of August 10, 1988 between the
Registrant and Morgan Shareholder Services Trust Company, as
Rights Agent (incorporated by reference to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A (File No.
1-8116) filed on August 18, 1988), as amended by Amendment
dated as of December 29, 1995, between the Registrant and
American Stock and Transfer Company (incorporated by
reference to Exhibit 1 to the Registrant's Registration
Statement on Form 8-A/A (File No. 1-8116) filed on January
8, 1996)
5(a)* Opinion of Vorys, Sater, Seymour and Pease
5(b)* Opinion of Richards, Layton & Finger regarding the validity of
the trust issued securities of Wendy's Financing I
5(c)* Opinion of Richards, Layton & Finger regarding the validity of
the trust issued securities of Wendy's Financing II
</TABLE>
II-4
<PAGE> 31
<TABLE>
<S> <C>
12 Statement re: Computation of Ratios of Earnings to Fixed
Charges and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends
23(a) Consent of Coopers & Lybrand L.L.P., Independent Accountants
23(b)* Consent of Vorys, Sater, Seymour and Pease (included in
Exhibit 5(a))
23(c)* Consent of Richards, Layton & Finger (included in Exhibits
5(b) and 5(c))
24 Powers of Attorney
25(a) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Huntington National Bank, as Trustee under
the Indenture (incorporated by reference to Exhibit 25 to
the Registrant's Registration Statement on Form S-3 (File
No. 33-57101))
25(b)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Subordinated
Indenture
25(c)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Amended and
Restated Declaration of Trust of Wendy's Financing I
25(d)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Amended and
Restated Declaration of Trust of Wendy's Financing II
25(e)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Preferred
Securities Guarantee of Wendy's International, Inc. for the
benefit of the holders of Trust Preferred Securities of
Wendy's Financing I
25(f)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Preferred
Securities Guarantee of Wendy's International, Inc. for the
benefit of the holders of Trust Preferred Securities of
Wendy's Financing II
</TABLE>
- ----------------
* To be filed by amendment.
+ To be filed as an exhibit to a Current Report of the Company on Form 8-K and
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-5
<PAGE> 32
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-6
<PAGE> 33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Columbus, State of Ohio,
on August 9, 1996.
WENDY'S INTERNATIONAL, INC.
By /s/ JOHN K. CASEY
---------------------------------------
JOHN K. CASEY
Vice Chairman and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME AND TITLE DATE NAME AND TITLE DATE
-------------- ---- -------------- ----
<S> <C> <C> <C>
/s/ R. DAVID THOMAS * /s/ GORDON F. TETER *
- ------------------- -------------------
R. DAVID THOMAS 8/9/96 GORDON F. TETER
Senior Chairman of the Board and Founder, President, Chief Executive Officer & 8/9/96
Director Chief Operating Officer, Director
/s/ JOHN K. CASEY * /s/ RONALD E. MUSICK *
- ----------------- --------------------
JOHN K. CASEY RONALD E. MUSICK 8/9/96
Vice Chairman and Chief Financial Officer, 8/9/96 Executive Vice President, Director
Director
/s/ LAWRENCE A. LAUDICK * /s/ W. CLAY HAMNER *
- ----------------------- ------------------
LAWRENCE A. LAUDICK 8/9/96 W. CLAY HAMNER 8/9/96
Vice President, General Controller and Director
Assistant Secretary
/s/ ERNEST S. HAYECK * /s/ JANET HILL *
- -------------------- --------------
ERNEST S. HAYECK 8/9/96 JANET HILL 8/9/96
Director Director
/s/ RONALD V. JOYCE * /s/ THOMAS F. KELLER *
- ------------------- --------------------
RONALD V. JOYCE 8/9/96 THOMAS F. KELLER 8/9/96
Director Director
/s/ FIELDEN B. NUTTER, SR. * /s/ JAMES V. PICKETT *
- -------------------------- --------------------
FIELDEN B. NUTTER, SR. 8/9/96 JAMES V. PICKETT 8/9/96
Director Director
/s/ FREDERICK R. REED * /s/ THEKLA R. SHACKELFORD *
- --------------------- -------------------------
FREDERICK R. REED 8/9/96 THEKLA R. SHACKELFORD 8/9/96
Director Director
</TABLE>
* By: /s/ JOHN K. CASEY
------------------
JOHN K. CASEY
ATTORNEY-IN-FACT
II-7
<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wilmington, State of
Delaware, on August 9, 1996.
WENDY'S FINANCING I, a Delaware business trust
By: WENDY'S INTERNATIONAL, INC., as Depositor
By: /s/ John K. Casey
------------------------------------------
John K. Casey
Vice Chairman and Chief Financial Officer
II-8
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wilmington, State of
Delaware, on August 9, 1996.
WENDY'S FINANCING II, a Delaware business trust
By: WENDY'S INTERNATIONAL, INC., as Depositor
By: /s/ John K. Casey
------------------------------------------
John K. Casey
Vice Chairman and Chief Financial Officer
II-9
<PAGE> 36
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exh. No. Exhibits
- -------- --------
<S> <C>
1+ Form of Underwriting Agreement relating to Debt Securities
4(a) Form of Indenture dated as of December 14, 1995, for Debt
Securities between the Registrant and Huntington National
Bank, as trustee (incorporated by reference to Exhibit 4 to
the Registrant's Registration Statement on Form S-3 (File
No. 33-57101))
4(b)* Form of Indenture for Subordinated Debt Securities between the
Registrant and NBD Bank, as trustee
4(c)+ Form or forms of Securities (other than the form of
convertible Preferred Security which is included in Exhibit
4(h))
4(d) Certificate of Trust of Wendy's Financing I
4(e) Certificate of Trust of Wendy's Financing II
4(h)(i)* Form of Amended and Restated Declaration of Trust of Wendy's
Financing I
4(h)(ii)* Form of Amended and Restated Declaration of Trust of Wendy's
Financing II
4(i)* Form of Supplemental Indenture to be used in connection with
the issuance of Subordinated Debt Securities and Trust
Preferred Securities
4(j)(i)* Form of Preferred Securities Guarantee for the benefit of the
holders of Trust Preferred Securities of Wendy's Financing I
4(j)(ii)* Form of Preferred Securities Guarantee for the benefit of the
holders of Trust Preferred Securities of Wendy's Financing
II
4(k)+ Form of certificate for Preferred Stock
4(l)+ Form of Warrant Agreement
4(m) Rights Agreement dated as of August 10, 1988 between the
Registrant and Morgan Shareholder Services Trust Company, as
Rights Agent (incorporated by reference to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A (File No.
1-8116) filed on August 18, 1988), as amended by Amendment
dated as of December 29, 1995, between the Registrant and
American Stock and Transfer Company (incorporated by
reference to Exhibit 1 to the Registrant's Registration
Statement on Form 8-A/A (File No. 1-8116) filed on January
8, 1996)
5(a)* Opinion of Vorys, Sater, Seymour and Pease
5(b)* Opinion of Richards, Layton & Finger regarding the validity of
the trust issued securities of Wendy's Financing I
5(c)* Opinion of Richards, Layton & Finger regarding the validity of
the trust issued securities of Wendy's Financing II
12 Statement re: Computation of Ratios of Earnings to Fixed
Charges and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends
23(a) Consent of Coopers & Lybrand L.L.P., Independent Accountants
23(b)* Consent of Vorys, Sater, Seymour and Pease (included in
Exhibit 5(a))
23(c)* Consent of Richards, Layton & Finger (included in Exhibits
5(b) and 5(c))
24 Powers of Attorney
25(a) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Huntington National Bank, as Trustee under
the Indenture (incorporated by reference to Exhibit 25 to
the Registrant's Registration Statement on Form S-3 (File
No. 33-57101))
25(b)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Subordinated
Indenture
25(c)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Amended and
Restated Declaration of Trust of Wendy's Financing I
25(d)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Amended and
Restated Declaration of Trust of Wendy's Financing II
25(e)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Preferred
Securities Guarantee of Wendy's International, Inc. for the
benefit of the holders of Trust Preferred Securities of
Wendy's Financing I
</TABLE>
<PAGE> 37
<TABLE>
<CAPTION>
Exh. No. Exhibits
- -------- --------
<S> <C>
25(f)* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of NBD Bank, as Trustee under the Preferred
Securities Guarantee of Wendy's International, Inc. for the
benefit of the holders of Trust Preferred Securities of
Wendy's Financing II
</TABLE>
- ----------------
* To be filed by amendment.
+ To be filed as an exhibit to a Current Report of the Company on Form 8-K and
incorporated herein by reference.
<PAGE> 1
EXHIBIT 4(d)
CERTIFICATE OF TRUST OF WENDY'S FINANCING I
THIS Certificate of Trust of Wendy's Financing I (the "Trust"), dated as of
August , 1996, is being duly executed and filed by First Chicago Delaware
Inc., a Delaware corporation, NBD Bank, a Michigan banking corporation, and
John F. Brownley, each as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. C. SECTION 3801, ET SEQ.).
1. NAME. The name of the business trust formed hereby is Wendy's
Financing I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware are First Chicago Delaware, Inc., 300 King
Street, Wilmington, New Castle County, Delaware 19801.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the Trust,
have executed this Certificate as of the date first-above written.
FIRST CHICAGO DELAWARE INC.
By: /s/ L. Dillard
---------------------------
Name: L. Dillard
Title: Vice President
NBD BANK
By: /s/ Joseph L. Weidenbach
---------------------------
Name: Joseph L. Weidenbach
Title: Assistant Vice President
/s/ John F. Brownley
-------------------------------
Name: John F. Brownley
<PAGE> 1
EXHIBIT 4(e)
CERTIFICATE OF TRUST OF WENDY'S FINANCING II
THIS Certificate of Trust of Wendy's Financing II (the "Trust"), dated as of
August , 1996, is being duly executed and filed by First Chicago Delaware
Inc., a Delaware corporation, NBD Bank, a Michigan banking corporation, and
John F. Brownley, each as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. C. SECTION 3801, ET SEQ.).
1. NAME. The name of the business trust formed hereby is Wendy's
Financing II.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware are First Chicago Delaware, Inc., 300 King
Street, Wilmington, New Castle County, Delaware 19801.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the Trust,
have executed this Certificate as of the date first-above written.
FIRST CHICAGO DELAWARE INC.
By: /s/ L. Dillard
---------------------------
Name: L. Dillard
Title: Vice President
NBD BANK
By: /s/ Joseph L. Weidenbach
---------------------------
Name: Joseph L. Weidenbach
Title: Assistant Vice President
/s/ John F. Brownley
-------------------------------
Name: John F. Brownley
<PAGE> 1
EXHIBIT 12
WENDY'S INTERNATIONAL, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SIX MONTHS ENDED
----------------------------------------------------------- ----------------------
12/29/91 1/3/93 1/2/94 1/1/95 12/31/95 7/2/95 6/30/96
-------- ------ ------ ------ -------- ------ -------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Computation of Earnings:
Income before income
taxes $ 78,940 $103,781 $118,241 $150,293 $165,145 $ 76,874 $111,802
Add:
Interest expense
and amortization of
debt expense and
discount 25,824 24,823 23,552 22,176 20,456 10,959 10,777
Interest portion of
rent expense 15,134 16,492 17,205 17,834 19,605 8,739 10,888
-------- -------- -------- -------- -------- -------- --------
Income as adjusted 119,898 145,096 158,998 190,303 205,206 96,572 133,467
Computation of Fixed Charges:
Interest expense and
amortization of debt
expense and discount 25,824 24,823 23,552 22,176 20,456 10,959 10,777
Interest portion of rent
expense 15,134 16,492 17,205 17,834 19,605 8,739 10,888
Capitalized interest 304 447 643 651 603 220 247
-------- -------- -------- -------- -------- -------- --------
Fixed Charges 41,262 41,762 41,400 40,661 40,664 19,918 21,912
Preferred Stock Dividends -- -- -- -- -- -- --
Ratio of Earnings to Fixed
Charges/ Ratio of Earnings to
Combined Fixed Charges and
Preferred Stock Dividends 2.91 3.47 3.84 4.68 5.05 4.85 6.09
======== ======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Wendy's International, Inc. on Form S-3 of our report dated February 22, 1996 on
our audits of the consolidated financial statements and financial statement
schedule of Wendy's International, Inc. as of December 31, 1995 and January 1,
1995, and for the years ended December 31, 1995, January 1, 1995 and January 2,
1994, which report is included in Wendy's International, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1995. We also consent to the
reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
/s/ COOPERS & LYBRAND L.L.P.
Columbus, Ohio
August 9, 1996
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
I, R. David Thomas, Senior Chairman of the Board and Director of
Wendy's International, Inc. (the "Company"), do hereby constitute and appoint
John K. Casey and Lawrence A. Laudick my true and lawful attorneys and agents,
each with full power of substitution, to do any and all acts and things in my
name and on my behalf in my capacity as such director and/or officer of the
Company and to execute any and all instruments for me and in my name in such
capacity, which said attorneys or agents, or either of them, may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of a Registration Statement
on Form S-3 relating to the offering from time to time of up to $200,000,000
aggregate principle amount of debt securities, common shares, preferred shares,
depositary shares or warrants of the Company or trust preferred securities of
certain trusts created by the Company which securities would be guaranteed by
the Company, including specifically but without limitation, power and authority
to sign for me in my name in such capacity as a director and/or officer for the
Company, any and all amendments (including post-effective amendments) to such
Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ R. David Thomas
-------------------
R. David Thomas
<PAGE> 2
POWER OF ATTORNEY
I, Gordon F. Teter, President, Chief Executive Officer & Chief
Operating Officer and Director of Wendy's International, Inc. (the "Company"),
do hereby constitute and appoint John K. Casey and Lawrence A. Laudick my true
and lawful attorneys and agents, each with full power of substitution, to do any
and all acts and things in my name and on my behalf in my capacity as such
director and/or officer of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director and/or officer for the Company, any and all
amendments (including post-effective amendments) to such Registration Statement;
and I do hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Gordon F. Teter
-------------------
Gordon F. Teter
<PAGE> 3
POWER OF ATTORNEY
I, John K. Casey, Vice Chairman, Chief Financial Officer and Director
of Wendy's International, Inc. (the "Company"), do hereby constitute and appoint
Lawrence A. Laudick my true and lawful attorney and agent, with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as such director and/or officer of the Company and to execute any
and all instruments for me and in my name in such capacity, which said attorney
or agent may deem necessary or advisable to enable the Company to comply with
the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director and/or officer for the Company, any and all
amendments (including post-effective amendments) to such Registration Statement;
and I do hereby ratify and confirm all that said attorney and agent, or his
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ John K. Casey
-----------------
John K. Casey
<PAGE> 4
POWER OF ATTORNEY
I, Ronald E. Musick, Executive Vice President and Director of Wendy's
International, Inc. (the "Company"), do hereby constitute and appoint John K.
Casey and Lawrence A. Laudick my true and lawful attorneys and agents, each with
full power of substitution, to do any and all acts and things in my name and on
my behalf in my capacity as such director and/or officer of the Company and to
execute any and all instruments for me and in my name in such capacity, which
said attorneys or agents, or either of them, may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the filing of a Registration Statement on Form
S-3 relating to the offering from time to time of up to $200,000,000 aggregate
principle amount of debt securities, common shares, preferred shares, depositary
shares or warrants of the Company or trust preferred securities of certain
trusts created by the Company which securities would be guaranteed by the
Company, including specifically but without limitation, power and authority to
sign for me in my name in such capacity as a director and/or officer for the
Company, any and all amendments (including post-effective amendments) to such
Registration Statement; and I do hereby ratify and confirm all that said
attorneys and agents, or their substitute or substitutes, or any of them, shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Ronald E. Musick
--------------------
Ronald E. Musick
<PAGE> 5
POWER OF ATTORNEY
I, Lawrence A. Laudick, Vice President, General Controller and
Assistant Secretary of Wendy's International, Inc. (the "Company"), do hereby
constitute and appoint John K. Casey my true and lawful attorney and agent, with
full power of substitution, to do any and all acts and things in my name and on
my behalf in my capacity as such director and/or officer of the Company and to
execute any and all instruments for me and in my name in such capacity, which
said attorney or agent may deem necessary or advisable to enable the Company to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission, in connection with
the filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director and/or officer for the Company, any and all
amendments (including post-effective amendments) to such Registration Statement;
and I do hereby ratify and confirm all that said attorney and agent, or his
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Lawrence A. Laudick
-----------------------
Lawrence A. Laudick
<PAGE> 6
POWER OF ATTORNEY
I, W. Clay Hamner, Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ W. Clay Hamner
------------------
W. Clay Hamner
<PAGE> 7
POWER OF ATTORNEY
I, Ernest S. Hayeck, Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Ernest S. Hayeck
--------------------
Ernest S. Hayeck
<PAGE> 8
POWER OF ATTORNEY
I, Janet Hill, Director of Wendy's International, Inc. (the "Company"),
do hereby constitute and appoint John K. Casey and Lawrence A. Laudick my true
and lawful attorneys and agents, each with full power of substitution, to do any
and all acts and things in my name and on my behalf in my capacity as a director
of the Company and to execute any and all instruments for me and in my name in
such capacity, which said attorneys or agents, or either of them, may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the filing of a
Registration Statement on Form S-3 relating to the offering from time to time of
up to $200,000,000 aggregate principle amount of debt securities, common shares,
preferred shares, depositary shares or warrants of the Company or trust
preferred securities of certain trusts created by the Company which securities
would be guaranteed by the Company, including specifically but without
limitation, power and authority to sign for me in my name in such capacity as a
director for the Company, any and all amendments (including post-effective
amendments) to such Registration Statement; and I do hereby ratify and confirm
all that said attorneys and agents, or their substitute or substitutes, or any
of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Janet Hill
--------------
Janet Hill
<PAGE> 9
POWER OF ATTORNEY
I, Ronald V. Joyce, Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Ronald V. Joyce
-------------------
Ronald V. Joyce
<PAGE> 10
POWER OF ATTORNEY
I, Thomas F. Keller, Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Thomas F. Keller
--------------------
Thomas F. Keller
<PAGE> 11
POWER OF ATTORNEY
I, Fielden B. Nutter, Sr., Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Fielden B. Nutter, Sr.
--------------------------
Fielden B. Nutter, Sr.
<PAGE> 12
POWER OF ATTORNEY
I, James V. Pickett, Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ James V. Pickett
--------------------
James V. Pickett
<PAGE> 13
POWER OF ATTORNEY
I, Frederick R. Reed, Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Frederick R. Reed
---------------------
Frederick R. Reed
<PAGE> 14
POWER OF ATTORNEY
I, Thekla R. Shackelford, Director of Wendy's International, Inc. (the
"Company"), do hereby constitute and appoint John K. Casey and Lawrence A.
Laudick my true and lawful attorneys and agents, each with full power of
substitution, to do any and all acts and things in my name and on my behalf in
my capacity as a director of the Company and to execute any and all instruments
for me and in my name in such capacity, which said attorneys or agents, or
either of them, may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
filing of a Registration Statement on Form S-3 relating to the offering from
time to time of up to $200,000,000 aggregate principle amount of debt
securities, common shares, preferred shares, depositary shares or warrants of
the Company or trust preferred securities of certain trusts created by the
Company which securities would be guaranteed by the Company, including
specifically but without limitation, power and authority to sign for me in my
name in such capacity as a director for the Company, any and all amendments
(including post-effective amendments) to such Registration Statement; and I do
hereby ratify and confirm all that said attorneys and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of the 1st day of
August, 1996.
/s/ Thekla R. Shackelford
-------------------------
Thekla R. Shackelford
