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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of report (date of earliest event reported): September 13, 1996
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WENDY'S INTERNATIONAL, INC.
WENDY'S FINANCING I
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(Exact Name of Registrants as Specified in Their Charters)
Ohio 1-8116 31-0785108
Delaware N/A 31-6538061
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(State or Other (Commission File Number) (IRS Employer
Jurisdiction of Identification No.)
Incorporation)
4288 West Dublin-Granville Rd., Dublin, OH 43085
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(Address of Principal Executive Offices) (Zip Code)
Registrants' telephone number, including area code: (614) 764-3100
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
Please see "Index to Exhibits" beginning at page 3 for a list of the
exhibits filed with this Current Report.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
WENDY'S INTERNATIONAL, INC.
Date: September 13, 1996 By /s/ Ronald E. Musick
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Name: Ronald E. Musick
Title: Executive Vice President
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<TABLE>
<CAPTION>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION LOCATION
<S> <C> <C>
1 Form of Underwriting Agreement dated as of September __, 1996
relating to Term Convertible Securities, Series A, to
be issued by Wendy's Financing I, a Delaware statutory
business trust
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Exhibit 1
WENDY'S FINANCING I
3,500,000 Trust Preferred Securities
Underwriting Agreement
September [ ], 1996
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
As Representatives of the several
underwriters listed in Schedule I hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
Wendy's Financing I, a special purpose business trust created under the
laws of the State of Delaware (the "Trust"), proposes to issue and sell to the
several Underwriters listed in Schedule I hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives") an aggregate of
3,500,000 of its $_____ Term Convertible Securities, Series A (the "Underwritten
Securities") and, for the sole purpose of covering over-allotments in connection
with the sale of the Underwritten Securities, at the option of the Underwriters,
up to an additional 500,000 of its $_____ Term Convertible Securities (the
"Option Securities"). The Underwritten Securities and the Option Securities are
herein referred to as the "Trust Preferred Securities."
The Trust Preferred Securities will be guaranteed (the "Guarantee") by
Wendy's International, Inc., an Ohio corporation (the "Company"), to the extent
described in a Preferred Securities Guarantee Agreement dated as of September
[ ], 1996 and will be convertible into the common shares, without par value
of the Company ("Wendy's Common Stock"). The Trust will use the proceeds from
the sale of the Trust Preferred Securities to purchase from the Company
$__________aggregate principal amount of its ____% Convertible Subordinated
Debentures due _____ , 2026 (the "Convertible Debentures") to be issued under
a subordinated indenture (the "Base Indenture") dated as of September [ ], 1996
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between the Company and NBD Bank, as trustee (the "Indenture Trustee"), as
supplemented by the First Supplemental Indenture dated as of September [ ], 1996
(the "Supplemental Indenture," and together with the Base Indenture, the
"Indenture"). The Company will also be the holder of one hundred percent of the
common securities representing undivided beneficial interests in the assets of
the Trust (the "Trust Common Securities," and together with the Trust Preferred
Securities, the "Trust Securities"). The Trust has been created and continued
under Delaware law pursuant to an Amended and Restated Declaration of Trust (the
"Declaration") executed by the Company and by the trustees of the Trust (the
"Wendy's Trustees"), all of whom have been appointed by the Company, as holder
of one hundred percent of the Trust Common Securities. A majority of the Wendy's
Trustees (the "Regular Trustees") are persons who are employees or officers of
or affiliated with the Company. One Wendy's Trustee, First Chicago Delaware
Inc., is unaffiliated with the Company and shall act as property trustee
("Property Trustee") and as Indenture Trustee for the purposes of the Trust
Indenture Act of 1939 (the "Trust Indenture Act").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Trust Preferred Securities.
The registration statement as amended at the time when it became effective
including information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement," and the
prospectus in the form first used to confirm sales of Securities is referred to
in this Agreement as the "Prospectus." If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. Any reference in this Agreement to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the effective date of the Registration Statement
or the date of such preliminary prospectus or the Prospectus, as the case may
be, and any reference to "amend," "amendment" or "supplement" with respect to
the Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collec-
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tively, the "Exchange Act") that are deemed to be incorporated by reference
therein.
Each of the Trust and the Company hereby agree with the Underwriters as
follows:
1. The Trust agrees to issue and sell the Underwritten Securities to
the several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties of the Trust and the Company herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Trust the respective number of Underwritten
Securities set forth opposite such Underwriter's name in Schedule I hereto, at a
purchase price per Underwritten Security (the "Purchase Price") of $ .
In addition, the Trust agrees to issue and sell the Option Securities
to the several Underwriters as hereinafter provided, and the Underwriters on the
basis of the representations and warranties of the Trust and the Company herein
contained, but subject to the conditions hereinafter stated, shall have the
option to purchase, severally and not jointly, from the Trust up to an aggregate
of Option Securities at the Purchase Price, for the sole purpose of covering
over-allotments (if any) in the sale of Underwritten Securities by the several
Underwriters.
If any Option Securities are to be purchased, the number of Option
Securities to be purchased by each Underwriter shall be the number of Option
Securities which bears the same ratio to the aggregate number of Option
Securities being purchased as the number of Underwritten Securities set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the aggregate number of
Underwritten Securities being purchased from the Trust by the several
Underwriters, subject, however, to such adjustments to eliminate any fractional
Securities as the Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option
Securities at any time (but not more than once) on or before the thirtieth day
following the date of this Agreement, by written notice from the Representatives
to the Trust and the Company. Such notice shall set forth the aggregate number
of Option Securities as to which the option is being exercised and the date and
time when the Option Securities are to be delivered and paid for which may be
the same date and time as the Closing Date (as hereinafter defined) but shall
not be earlier than the Closing Date nor later than the tenth full Business Day
(as hereinafter defined) after the date of such notice (unless such time and
date are
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postponed in accordance with the provisions of Section 9 hereof). Any such
notice shall be given at least two Business Days prior to the date and time of
delivery specified therein.
2. The Trust and the Company understand that the Underwriters intend
(i) to make a public offering of the Trust Preferred Securities as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement, as in the judgment of the
Representatives is advisable and (ii) initially to offer the Trust Preferred
Securities upon the terms set forth in the Prospectus.
3. Payment for the Trust Preferred Securities shall be made by wire
transfer in immediately available funds, to the account specified by the Trust
to the Representatives no later than noon the Business Day (as defined below)
prior to the Closing Date (as defined below), in the case of the Underwritten
Securities, on September [ ], 1996, or at such other time on the same or such
other date, not later than the fifth Business Day thereafter, as the
Representatives and the Trust may agree upon in writing or, in the case of the
Option Securities, on the date and time specified by the Representatives in the
written notice of the Underwriters' election to purchase such Option Securities.
The time and date of such payment for the Underwritten Securities is referred to
herein as the "Closing Date" and the time and date for such payment for the
Option Securities, if other than the Closing Date, are herein referred to as the
"Additional Closing Date," As used herein, the term "Business Day" means any day
other than a day on which banks are permitted or required to be closed in New
York City, Columbus, Ohio or Detroit, Michigan.
Payment for the Trust Preferred Securities to be purchased on the
Closing Date or the Additional Closing Date, as the case may be, shall be made
against delivery to the Representatives for the respective accounts of the
several Underwriters of the Trust Preferred Securities to be purchased on such
date registered in such names and in such denominations as the Representatives
shall request in writing not later than two full Business Days prior to the
Closing Date or the Additional Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Trust Preferred Securities duly paid by the Company. The certificates for
the Trust Preferred Securities will be made available for inspection and
packaging by the Representatives at the office of J.P. Morgan Securities Inc.
set forth above not later than 1:00 P.M., New York City time, on the Business
Day prior to the Closing Date or the Additional Closing Date, as the case may
be.
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As compensation to the Underwriters for their commitments hereunder,
the Company on the Closing Date or the Additional Closing Date, as the case may
be, will pay, or cause to be paid, to J.P. Morgan Securities Inc., for the
accounts of the several Underwriters, an amount equal to $____ per Trust
Preferred Security for the Trust Preferred Securities to be delivered by the
Trust hereunder on the Closing Date or the Additional Closing Date, as the case
may be. The Company will pay or cause to be paid such commission payable to the
order of J.P. Morgan Securities Inc. in immediately available funds.
4. Each of the Trust and the Company jointly and severally represent
and warrant to each Underwriter that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the
Securities Act, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Trust and the
Company in writing by such Underwriter through the Representatives expressly for
use therein;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of each of the Trust and the Company,
threatened by the Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Trust or the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the case may be,
in all material respects with the Securities Act. The Registration Statement did
not and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto, as the case may be, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Prospectus, as amended or supplemented, if applicable, as of the date of the
Prospectus and any amendments or supplements thereto and at the Closing Date or
Additional Closing Date, as the case may be, did not and will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they
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were made, not misleading; except that the foregoing representations and
warranties shall not apply to statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Trust or the Company in
writing by such Underwriter through the Representatives expressly for use
therein;
(c) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and as of such time none of such documents
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to the requirements
of the Exchange Act, and will not contain an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not apply to
statements or omissions in the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Trust
or the Company in writing by such Underwriter through the Representatives
expressly for use therein;
(d) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly, in all material respects, the consolidated financial
position of the Company and the Company's consolidated subsidiaries as of the
dates indicated and the results of their operations and changes in their
consolidat ed cash flows for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly, in all
material respects, the information required to be stated therein; and the pro
forma financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the Securities
Act and the Exchange Act, as applicable, and is based upon good faith estimates
and assumptions believed by each of the Trust and the Company to be reasonable;
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(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material change in the capital stock or long-term debt of either of the Trust or
the Company or any of the Company's subsidiaries, or any material adverse
change, or any development reasonably likely to involve a prospective material
adverse change, in or affecting the general affairs, business, financial
position, shareholders' equity or results of operations of either the Trust or
the Company and the Company's consolidated subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(f) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole;
(g) each of the Company's material subsidiaries (as set forth
in Annex A hereto) (each, a "Material Subsidiary"), has been duly incorporated
and is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole;
(h) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, has the
business trust power and authority to conduct its business as presently
conducted and as described in the Registration Statement and the Prospectus, and
is not required to be authorized to do business in any other jurisdiction;
(i) this Agreement has been duly authorized, executed and
delivered by the Trust and the Company;
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(j) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity and
public policy;
(k) the Declaration has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and, upon execution
and delivery thereof by the Company, and assuming due authorization, execution
and delivery thereof by the Wendy's Trustees, the Declaration will, as of the
Closing Date, be a valid and binding agreement of the Company and the Wendy's
Trustees, in each case enforceable in accordance with its terms, subject to
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity and public policy;
(l) the Guarantee has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and, upon execution
and delivery thereof by the Company, the Guarantee will, as of the Closing Date,
be a valid and binding agreement of the Company, enforceable in accordance with
its terms, subject to bankruptcy, insolvency or similar laws affecting
creditors' rights generally and to general principles of equity and public
policy;
(m) the Convertible Debentures have been duly authorized and,
when executed by the Company, authenticated by the Indenture Trustee, issued in
accordance with the Indenture and delivered to the Trust against payment
therefor as described in the Registration Statement and the Prospectus, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency or similar laws
affecting creditors' rights generally and to general principles of equity and
public policy;
(n) the Trust Preferred Securities have been duly authorized
by the Declaration and, when issued and delivered in accordance with the terms
of this Agreement, will be validly issued undivided beneficial interests in the
assets of the Trust, and the issuance of such Trust Preferred Securities will
not be subject to any preemptive or similar rights. The Trust Common Securities
to be issued to the Company will be authorized by the Declaration and, when
executed in accordance with the terms of the Declaration and delivered to the
Company against payment therefor as described in the Registration Statement and
the Prospectus, will represent validly issued undivided beneficial interests in
the assets of the Trust;
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(o) the shares of Wendy's Common Stock initially issuable upon
the conversion of the Convertible Debentures and the Trust Preferred Securities
have been duly authorized and reserved for issuance upon such conversion and,
when issued upon such conversion, will be duly issued, fully paid and
nonassessable and will not be subject to any preemptive or similar rights;
(p) the Company has an authorized capitalization as set forth
in the Prospectus and the authorized capital stock conforms as to legal matters
to the description thereof set forth in the Prospectus, and, except for the
shares of Wendy's Common Stock subject to that certain Subscription Agreement
dated as of December 29, 1995 between the Company and the Irrevocable Trust for
the benefit of Ronald V. Joyce, all of the outstanding shares of capital stock
of the Company have been duly authorized and validly issued, are fully-paid and
non-assessable and are not subject to any preemptive or similar rights; and,
except as described in or expressly contemplated by the Prospectus, and, except
as provided by the Company's employee benefit plans and dividend reinvestment
plan, there are no outstanding rights (including, without limitation, preemptive
rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the
Company or any of the Material Subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options;
(q) neither the Company nor any of the Material Subsidiaries
is, or with the giving of notice or lapse of time or both would be, in violation
of or in default under, its Articles of Incorporation or its Regulations or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Material Subsidiaries is a party
or by which it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the aggregate are
not material to the Company and the Company's consolidated subsidiaries taken as
a whole; the issue and sale of the Trust Securities and the performance by the
Company of its obligations under this Agreement, the Declaration, the Guarantee
and the Indenture, the issuance and sale of the Convertible Debentures, and the
conversion of the Convertible Debentures and the Trust Preferred Securities into
Wendy's Common Stock, and the consummation of the transactions contemplated
herein will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of the Material Subsidiaries is a party or by which the Company or any of
the Material
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Subsidiaries is bound or to which any of the property or assets of the Company
or any of the Material Subsidiaries is subject, except for such conflicts or
breaches which individually and in the aggregate are not material to the Company
and its consolidated subsidiaries, taken as a whole, nor will any such action
result in any violation of the provisions of the Articles of Incorporation or
the Regulations of the Company or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, the Material Subsidiaries or any of their
respective properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Trust Securities or the
consummation by the Company of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act and as may be
required under state securities or Blue Sky Laws in connection with the purchase
and distribution of the Trust Securities by the Underwriters;
(r) the Trust is not, nor with the giving of notice or lapse
of time or both would it be, in violation of or in default under, the
Declaration or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Trust is a party or by which it or any of
its properties is bound, except for violations and defaults which individually
and in the aggregate are not material to the Trust; the issue and sale of the
Trust Preferred Securities and the performance by the Trust of its obligations
under this Agreement, the Declaration and the Guarantee and the consummation of
the transactions contemplated herein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Trust is a party or by which the Trust is bound or to
which any of the property or assets of the Trust is subject, nor will any such
action result in any violation of the provisions of the Declaration or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trust or any of its
properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Trust Preferred Securities or
the consummation by the Trust of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities Act
and as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Trust Preferred Securities by the
Underwriters;
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(s) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the
Trust, the Company or any of the Material Subsidiaries or any of their
respective properties or to which the Trust, the Company or any of the Material
Subsidiaries is or may be a party or to which any property of the Trust, the
Company or any of the Material Subsidiaries is or may be the subject which
individually or in the aggregate are reasonably likely to have a material
adverse effect on the general affairs, business, financial position,
shareholders' equity or results of operations of the Trust, the Company and its
consolidated subsidiaries, taken as a whole; and there are no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(t) no relationship, direct or indirect, exists between or
among the Company or any or the Material Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or any
of the Material Subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the Prospectus
which is not so described;
(u) other than the rights granted to Ronald V. Joyce in the
Registration Rights Agreement dated as of December 29, 1995 between the Company
and Ronald V. Joyce, no person has the right to require the Company to register
any securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issue and sale
of the Trust Securities;
(v) the Trust is not, and after giving effect to the offering
and sale of the Trust Preferred Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the Company is not, and after giving effect to
the issuance of the Convertible Debentures and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act;
(w) neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes (Chapter 92-198,
Laws of Florida);
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(x) to the best of the Company's knowledge, Coopers & Lybrand
L.L.P., who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Securities
Act; and
(y) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Wendy's
Common Stock.
5. Each of the Trust and the Company covenants and agrees with
each of the several Underwriters as follows:
(a) to use its best efforts, if required, to file the final
Prospectus with the Commission within the time periods specified by Rule 424(b)
and Rule 430A under the Securities Act and to timely file all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Trust Preferred Securities; and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 a.m., New York City time, on the
Business Day next succeeding the date of this Agreement in such quantities as
the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the
Representatives three (3) signature pages to the Registration Statement (as
originally filed) and each amendment thereto and, during the period mentioned in
paragraph 5(e), 5(e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and documents
incorporated by reference therein as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the Representatives a
copy of the proposed amendment or supplement for review and not to file any such
proposed amendment or supplement to which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm
such advice in writing, (i) when any amendment to the Registration Statement
has been
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filed or becomes effective, (ii) when any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives with copies
thereof, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the Prospectus
or the initiation or threatening of any proceeding for that purpose, (v) of the
occurrence of any event, within the period referenced in paragraph 5(e) below,
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
and (vi) of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Trust Preferred Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any such
stop order, or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any such qualification
of the Trust Preferred Securities, or notification of any such order thereof
and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Trust Preferred Securities as in the opinion of counsel
for the Underwriters a prospectus relating to the Trust Preferred Securities is
required by law to be delivered in connection with sales by the Underwriters or
any dealer, any event shall occur as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Trust Preferred Securities
may have been sold by the Representatives on behalf of the Underwriters and to
any other dealers upon request, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law;
(f) to endeavor to qualify the Trust Preferred Securities, the
Guarantee, the Convertible Debentures and the Wendy's Common Stock for offer
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<PAGE> 14
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such qualification in
effect so long as reasonably required for distribution of the Trust Preferred
Securities; provided that neither the Company nor the Trust shall be required to
file a general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement of the Company
covering a period of at least twelve months beginning with the first fiscal
quarter of the Company occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder;
(h) for two years following the date hereof, to furnish to the
Representatives copies of all reports or other communications (financial or
other) furnished to holders of the Trust Securities, and copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) for a period of 90 days after the date hereof not to (x)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any
Wendy's Common Stock ("Stock") or any securities convertible into or exercisable
or exchangeable for Stock or (y) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Stock, whether any such transaction described in clause (x) or (y) above is
to be settled by delivery of Stock or such other securities, in cash or
otherwise without the prior written consent of J.P. Morgan Securities Inc.;
provided that, notwithstanding the foregoing, during such period (i) the Trust
may sell the Trust Preferred Securities to the Underwriters as contemplated
hereunder, (ii) the Company may sell the Convertible Debentures to the Trust as
contemplated hereunder, (iii) the Company may issue Stock upon conversion of any
Convertible Debentures, (iv) the Company may sell Stock upon conversion of the
Company's presently outstanding convertible securities pursuant to the Company's
existing employee benefit plans as in effect on the date hereof, (v) the Company
may sell securities pursuant to employee benefit plans registered on Form S-8,
(vi) the Company may sell Stock pursuant to the Company's dividend reinvestment
plan, and (vii) the Company may offer and sell shares of its capital stock as
consideration for acquisitions in the ordinary course of business, provided that
the purchasers in
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<PAGE> 15
such transactions agree not to offer for sale, sell or otherwise dispose of such
capital stock during such period;
(j) to use its best efforts to list, subject to notice of
issuance, the Trust Preferred Securities on the New York Stock Exchange (the
"Exchange");
(k) to reserve and keep available at all times, free of
preemptive rights, Wendy's Common Stock for the purpose of enabling the Company
to satisfy any obligations to issue Wendy's Common Stock upon the conversion of
the Convertible Debentures and the Trust Preferred Securities;
(l) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all costs
and expenses (i) incident to the preparation, issuance, execution and delivery
of the Trust Preferred Securities and the Convertible Debentures, including any
transfer taxes payable in connection with the transfer of Trust Preferred
Securities to the Underwriters, (ii) of the Company, its counsel and its
accountants incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification of
the Trust Preferred Securities, the Guarantee, the Convertible Debentures and
the Wendy's Common Stock under the laws of such jurisdictions as the
Representatives may designate (including reasonable fees of counsel for the
Underwriters and its disbursements), (iv) in connection with the listing of the
Trust Preferred Securities on the Exchange, (v) related to the filing with, and
clearance of the offering by, the National Association of Securities Dealers,
Inc., (vi) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Preliminary and
Supplemental Blue Sky Memoranda and the furnishing to the Underwriters and
dealers of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided, (vii) any expenses incurred by the
Company in connection with a "road show" presentation to potential investors,
(viii) the cost of preparing security certificates, (ix) the cost and charges of
any transfer agent and any registrar, (x) the fees and expenses of the Trustee
and the reasonable fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Convertible Debentures, (xi) the fees and
expenses associated with obtaining ratings for the Trust Preferred Securities
from nationally recognized statistical rating organizations, and (xii) the
reasonable fees
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<PAGE> 16
and disbursements of Canadian counsel for the Underwriters in connection with
the qualification or exemption of the Trust Preferred Securities under Canadian
Law.
6. The several obligations of the Underwriters hereunder to purchase
the Trust Preferred Securities on the Closing Date or the Additional Closing
Date, as the case may be, are subject to the performance by the Company and the
Trust of their respective obligations hereunder and to the following additional
conditions:
(a) if a post-effective amendment is required to be filed by
the Securities Act, such post-effective amendment shall have become effective
not later than 5:00 P.M., New York City time, on the date hereof, and no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission; the Prospectus shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the rules and regulations
under the Securities Act and in accordance with Section 5(a) hereof; and all
requests for additional information shall have been complied with to the
satisfaction of the Representatives;
(b) the representations and warranties of the Trust and the
Company contained herein are true and correct on and as of the Closing Date or
the Additional Closing Date, as the case may be, as if made on and as of the
Closing Date or the Additional Closing Date, as the case may be, and the Trust
and the Company shall have complied with all agreements and all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing Date
or the Additional Closing Date, as the case may be;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Additional Closing Date, as the case may
be, there shall not have occurred any downgrading, nor shall any notice have
been given of (i) any downgrading, (ii) any intended or potential downgrading or
(iii) any review or possible change that does not indicate an improvement, in
the rating accorded any securities of or guaranteed by the Company or the Trust
by any "nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material change in the
capital
16
<PAGE> 17
stock or long-term debt of the Trust, the Company or any of the Company's
subsidiaries or any material adverse change, or any development reasonably
likely to involve a prospective material adverse change, in or affecting the
general affairs, business, financial position, shareholders' equity or results
of operations of the Trust or the Company and the Material Subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the reasonable judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Trust Preferred Securities on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated in the
Prospectus; and neither the Trust, the Company nor any of the Material
Subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, certificates of
an executive officer of the Company and of a Regular Trustee of the Trust, with
specific knowledge about the Company's and the Trust's financial matters,
satisfactory to the Representatives to the effect set forth in subsections 6(a)
through 6(c) (with respect to the respective representations, warranties,
agreements and conditions of the Company or the Trust) hereof and to the further
effect that there has not occurred any material adverse change, or any
development reasonably likely to involve a prospective material adverse change,
in or affecting the general affairs, business, financial position, shareholders'
equity or results of operations of the Trust or the Company and the Material
Subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(f) Dana Klein, Assistant General Counsel of the Company,
shall have furnished to the Representatives his written opinion, dated the
Closing Date, or the Additional Closing Date, as the case may be, in form and
substance reasonably satisfactory to the Representatives, to the effect that:
(i) the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or to be
17
<PAGE> 18
in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole;
(ii) each of the Material Subsidiaries is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(iii) to the best of such counsel's knowledge, there
are no legal or governmental proceedings pending to which the Trust,
the Company or any of the Material Subsidiaries is a party or of which
any property of the Trust, the Company or any of the Company's
subsidiaries is the subject which are required to be described in the
Prospectus and which are not described as required; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) neither the Company nor any of the Material
Subsidiaries is in violation of its Regulations or Articles of
Incorporation, and neither the Trust, the Company nor any of the
Material Subsidiaries is in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of its
properties may be bound, except to the extent that such violation or
default would not have a material adverse effect;
(v) the execution and delivery by the Company of this
Agreement, the Declaration, the Guarantee and the Indenture and the
performance by the Company of its obligations hereunder and thereunder,
the extension of the Guarantee, the issuance and sale of the
Convertible Debentures by the Company and the consummation of the other
transactions contemplated by this Agreement will not contravene any
provision of applicable law or the Articles of Incorporation or
Regulations of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or any of
the Material Subsidiaries that is identified by the Company to such
counsel as material to the Company and the Company's consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any
18
<PAGE> 19
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Material Subsidiary, and,
to the best of such counsel's knowledge, no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Convertible Debentures and the Trust
Preferred Securities; provided, that such counsel need not opine as to
the enforceability of the indemnity and contribution provisions of
Section 7 hereto;
(vi) to the best of such counsel's knowledge, other
than this Agreement, the Declaration and the Trust Securities, there
are no agreements or instruments binding on the Trust that are material
to the Trust, and, to the best of such counsel's knowledge, there is no
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Trust; and
(vii) the statements in the Company's annual report
on Form 10-K for the year ended December 31, 1995 under the captions
"Business-- Franchised Wendy's Restaurants," "Business-- Franchised
Hortons Units," and "Legal Proceedings," as modified or amended by any
subsequent document incorporated by reference in the Registration
Statement or Prospectus, insofar as they describe legal documents or
refer to statements of law or legal conclusions, are accurate in all
material respects and present fairly the information required to be
shown.
(g) Richards, Layton & Finger, special Delaware counsel for
the Trust and the Company shall have given to the Representatives their written
opinion dated the Closing Date or the Additional Closing Date, as the case may
be, in form and substance satisfactory to the Representatives, to the effect
that:
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Trust as a business trust have been made;
(ii) under the Declaration and the Delaware Business
Trust Act, the Trust has the trust power and authority (i) to own
property and conduct its business, all as described in the Prospectus
and the
19
<PAGE> 20
Prospectus Supplement, (ii) to issue and sell the Trust Securities in
accordance with the Declaration, and as described in the Prospectus and
Prospectus Supplement, and to perform its other obligations under the
Declaration, this Agreement and the Trust Securities, (iii) to deliver
this Agreement, and (iv) to consummate the transactions contemplated by
this Agreement;
(iii) the Declaration constitutes a valid and binding
obligation of the Company and the Wendy's Trustees, and is enforceable
against the Company and the Wendy's Trustees, in accordance with its
terms, subject to the effect upon the Declaration of (x) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, (y)
principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (z) the effect of applicable public policy on
the enforceability of provisions relating to indemnification or
contribution;
(iv) the Trust Common Securities have been authorized
by the Declaration and are duly and validly issued undivided beneficial
interests in the assets of the Trust;
(v) the Trust Preferred Securities have been duly
authorized by the Declaration and are duly and validly issued and,
subject to the qualifications set forth in paragraph 6(g)(vi) below,
fully paid and nonassessable undivided beneficial interest in the
assets of the Trust;
(vi) the holders of the Trust Preferred Securities,
as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware; provided that the holders of Trust Preferred
Securities may be obligated, pursuant to the Declaration, (i) to
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Trust
Preferred Securities Certificates and the issuance of replacement Trust
Preferred Securities Certificates, and (ii) to provide security or
indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Declaration;
20
<PAGE> 21
(vii) under the Declaration and the Delaware Business
Trust Act, the issuance of the Trust Securities is not subject to
preemptive rights;
(viii) the issuance and sale by the Trust of the
Trust Securities and the delivery and performance by the Trust and the
consummation of the transactions contemplated by this Agreement do not
violate (i) the Declaration, or (ii) any applicable Delaware law, rule
or regulation;
(ix) under the Declaration and the Delaware Business
Trust Act, (i) issuance and sale by the Trust of the Trust Securities
and the delivery by the Trust of this Agreement, and the performance by
the Trust of its obligations hereunder, have been duly authorized by
all necessary trust action on the part of the Trust, and (ii) assuming
the due authorization, execution and delivery of (x) this Agreement by
the Company as depositor under the Declaration on behalf of the Trust,
and (y) the Trust Preferred Securities Certificates for the Trust
Preferred Securities by a Wendy's Trustee on behalf of the Trust, this
Agreement has been duly delivered by the Trust and the Trust Preferred
Securities Certificates have been duly executed and delivered by the
Trust;
(x) no authorization, approval, consent or order of
any Delaware court or Delaware governmental authority or Delaware
agency is required to be obtained by the Trust solely as a result of
the issuance and sale of the Trust Preferred Securities, the
consummation by the Trust of the transactions contemplated by this
Agreement or the compliance by the Trust of its obligations under this
Agreement;
(xi) the holders of Trust Preferred Securities (other
than those holders who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by the State
of Delaware solely as a result of their participation in the Trust, and
the Trust will not be liable for any income tax imposed by the State of
Delaware; and
(xii) after due inquiry on September [ ], 1996,
limited to, and solely to the extent disclosed thereupon, court dockets
for active cases of the Court of Chancery of the State of Delaware in
and for New Castle County, Delaware, of the Superior Court of the State
of Delaware in and for New Castle County, Delaware, and of the United
States Federal
21
<PAGE> 22
District Court sitting in the State of Delaware, such counsel is not
aware of any legal or governmental proceeding pending against the
Trust.
(h) Vorys, Sater, Seymour and Pease, counsel for the Company
and the Trust, shall have furnished to the Representatives their written opinion
dated the Closing Date or the Additional Closing Date, as the case may be, in
form and substance reasonably satisfactory to the Representatives, to the effect
that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the state of Ohio, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus;
(ii) each of the Material Subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus;
(iii) the authorized capital stock of the Company
conforms as to legal matters, in all material respects, to the
description thereof contained in the Prospectus;
(iv) the shares of Wendy's Common Stock initially
issuable upon the conversion of the Convertible Debentures and the
Trust Preferred Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such conversion,
will be duly issued, fully paid and nonassessable and will not be
subject to any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the Guarantee has been duly authorized, executed
and delivered by the Company and the Guarantee is a valid and binding
agreement of the Company enforceable against the Company, subject to
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and to general principles of equity and public policy;
22
<PAGE> 23
(vii) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency or similar laws affecting creditors'
rights generally and to general principles of equity and public policy;
(viii) the Convertible Debentures have been duly
authorized by the Company and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the purchasers thereof, will be valid and binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency or similar laws affecting creditors's
rights generally and to general principles of equity and public policy;
(ix) each document filed under the Exchange Act and
incorporated by reference into the Prospectus (except for financial
statements and schedules and other financial and statistical
information included therein or excluded therefrom or the exhibits of
such documents incorporated by reference as to which such counsel need
not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder; and the Registration
Statement and Prospectus (except for financial statements and schedules
and other financial and statistical data included therein as to which
such counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder;
(x) the statements in the Prospectus under the
captions "Risk Factors," "Wendy's Financing I," "Description of the
TECONS," "Description of the Guarantee," "Description of the
Convertible Debentures," "Effect of Obligations Under the Convertible
Debentures and the Guarantee," "Description of Debt Securities,"
"Description of the Capital Stock," "Description of Warrants,"
"Description of Trust Preferred Securities," "Description of Trust
Preferred Securities Guarantees," and "Plan of Distribution," in each
case insofar as they describe legal documents or refer to statements of
law or legal conclusions, are accurate in all material respects and
present fairly the information required to be shown.
23
<PAGE> 24
Such counsel shall also state that, while they have not
themselves checked the accuracy or completeness of or otherwise
verified, and are not passing upon, and assume no responsibility for,
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, in the course of their
preparation, review and discussion of the contents of the Registration
Statement and Prospectus with certain officers and employees of the
Company and its independent accountants, but without independent check
or verification (except as set forth above), no facts have come to
their attention which have caused them to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the date hereof (other than the
financial statements and schedules and other financial or statistical
information therein or incorporated therein by reference, as to which
such counsel need express no belief) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to
the date hereof (other than the financial statements and schedules and
other financial or statistical information therein or incorporated
therein by reference, as to which such counsel need express no belief)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that,
as of the date hereof, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the date hereof (other
than the financial statements and schedules and other financial or
statistical information therein or incorporated therein by reference,
as to which such counsel need express no belief) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; furthermore,
such counsel shall state that no facts have come to their attention
which have caused them to believe that any of the documents
incorporated by reference in the Prospectus (other than the financial
statements and schedules and other financial or statistical information
therein or incorporated therein by reference, as to which such counsel
need express no belief), when they became effective or were so filed,
as the case may be, in the case of a registration statement which
became effective under the Securities Act, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make
24
<PAGE> 25
the statements therein not misleading, or, in the case of other
documents which were filed under the Securities Act or the Exchange Act
with the Commission, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
(i) Vorys, Sater, Seymour and Pease, special tax counsel for the
Company and the Trust, shall have furnished to the Representatives their written
opinion dated the Closing Date or the Additional Closing Date, as the case may
be, in form and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) the Trust will be classified as a grantor trust
and not as an association taxable as a corporation. Accordingly, for
United States federal income tax purposes, each holder of Trust
Preferred Securities will generally be considered the owner of an
undivided interest in the Convertible Debentures, and each holder will
be required to include in its gross income any original issue discount
accrued with respect to its allocable share of those Convertible
Debentures;
(ii) the Convertible Debentures will be classified
for United States federal income tax purposes as indebtedness of the
Company;
(iii) although the discussion set forth in the
Prospectus under the heading "Certain Federal Tax Consequences" does
not purport to discuss all possible United States federal income tax
consequences of the purchase, ownership and disposition of the Trust
Preferred Securities, in such counsel's opinion such discussion
constitutes, in all material respects, a fair and accurate summary of
the United States federal income tax consequences of the purchase,
ownership and disposition of the Trust Preferred Securities under
current law; and
25
<PAGE> 26
(j) Pepper, Hamilton & Scheetz, special Delaware counsel for
the Delaware Trustee shall have given to the Representatives their written
opinion dated the Closing Date or the Additional Closing Date, as the case may
be, in form and substance satisfactory to the Representatives, to the effect
that:
(i) the Delaware Trustee is a Delaware corporation,
duly organized, validly existing and in good standing, with full power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration.
(ii) the Delaware Trustee has been authorized to
perform its obligations under the Certificate of Trust and the
Declaration; the Declaration under Delaware law constitutes a legal,
valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or
at law).
(iii) no consent, approval or authorization of, or
registration with or notice to, any Delaware banking authority is
required for the execution, delivery or performance by the Delaware
Trustee of the Declaration.
(iv) the Delaware Trustee has its principal place of
business in the State of Delaware; the Delaware Trustee satisfies for
the Trust the requirements set forth in Section 3807(a) of the Business
Trust Act.
In rendering such opinions, Dana Klein and Vorys, Sater, Seymour and
Pease may rely as to matters involving the application of laws other than the
laws of the United States and the State of Ohio, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws. Such counsel may
assume that, for purposes of rendering such opinions, New York law is the same,
in all respects material to such opinion, as Ohio law. In rendering such
opinions, Richards, Layton & Finger and Pepper, Hamilton & Scheetz may rely as
to matters involving the application of laws other than the laws of the United
States and the State of Delaware, to the extent such
26
<PAGE> 27
counsel deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (in form and substance reasonably satisfactory to
the Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable law. Such counsel may rely
as to matters of fact, to the extent such counsel deems proper, on certificates
of responsible officers of the Trust and of the Company and certificates or
other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Trust and
of the Company. The opinion of such counsel shall state that the opinion of any
such other counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and they are justified
in relying thereon.
The opinions of Dana Klein, Richards, Layton & Finger, Vorys, Sater,
Seymour and Pease and Pepper, Hamilton & Scheetz described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(k) on the effective date of the Registration Statement and
the effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date or Additional Closing Date,
as the case may be, Coopers & Lybrand L.L.P. shall have furnished to you
letters, dated the respective dates of delivery thereof, in form and substance
reasonably satisfactory to you, containing statements and information of the
type customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus;
(l) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an opinion of Davis
Polk & Wardwell, counsel to the Underwriters, with respect to the due
authorization and valid issuance of the Trust Preferred Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(m) the Trust Preferred Securities to be delivered on the
Closing Date or Additional Closing Date, as the case may be, shall have been
approved for listing on the Exchange, subject to official notice of issuance;
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<PAGE> 28
(n) on or prior to the Closing Date or Additional Closing
Date, as the case may be, each of the Trust and the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request;
(o) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between the Representatives and each of the executive
officers and directors of the Company listed in Annex B hereto, relating to
sales and certain other dispositions of Wendy's Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date or Additional Closing Date, as the case may
be.
7. Each of the Trust and the Company jointly and severally agree to
indemnify and hold harmless each Underwriter, each affiliate of any Underwriter
which assists such Underwriter in the distribution of the Trust Preferred
Securities and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Trust or the Company shall have furnished any amendments or supplements thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished to the Trust or the Company in writing by
any Underwriter through the Representatives expressly for use therein; provided,
that if any preliminary prospectus or the Prospectus contained any alleged
untrue statement of a material fact or allegedly omitted to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and such statement or omission shall have been corrected in a revised
preliminary prospectus or in the Prospectus (as amended or supplemented), the
Company and the Trust shall not be liable to any Underwriter pursuant to this
paragraph with respect to such alleged untrue statement or alleged omission to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Underwritten Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the revised
28
<PAGE> 29
preliminary prospectus or the Prospectus as so amended or supplemented, as the
case may be, containing a correction that cures such alleged misstatement or
omission, if the Company has complied with the provisions of Section 5(b)
hereof.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Trust, the Regular Trustees, the Company, its directors, its
officers who sign the Registration Statement and each person who controls the
Trust or the Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Trust and the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Trust or the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In case
any such action shall be brought against any Indemnified Person and it shall
notify the Indemnifying Person of the commencement thereof, the Indemnifying
Person shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other Indemnifying Person similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Person (who shall not, except with the consent of the Indemnified Person, be
counsel to the Indemnifying Person), and, after notice from the Indemnifying
Person to such Indemnified Person of its election so to assume the defense
thereof, except as set forth in the sentence immediately hereafter, the
Indemnifying Person shall not be liable to such Indemnified Person under this
Section 7 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such Indemnified Person, in connection with the
defense thereof other than reasonable out-of-pocket costs of investigation. No
Indemnifying Person shall, without the written consent of the Indemnified
Person, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim
29
<PAGE> 30
in respect of which indemnification or contribution may be sought hereunder
(whether or not the Indemnified Person is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release by the parties asserting such action or claim of the
Indemnified Person from all liability arising out of such action or claim and
(ii) does not include an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemni fying Person and the Indemnified Person shall have mutually agreed
to the contrary, (ii) the Indemnifying Person has failed within a reasonable
time to retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and the
Indemnified Person shall have been advised by its counsel in writing that
representation of both parties by the same counsel would be inappropriate under
applicable standards of professional conduct. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one primary firm representing all Indemnified Persons and one local counsel
in each jurisdiction in which an action in which indemnification is available
has been brought, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters, each affiliate
of any Underwriter which assists such Underwriter in the distribution of the
Trust Preferred Securities and such control persons of Underwriters shall be
designated in writing by J.P. Morgan Securities Inc. and any such separate firm
for the Company, its directors, its officers who sign the Registration Statement
and such control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement, unless such failure to reimburse the
30
<PAGE> 31
Indemnified Person is based on a dispute with a good faith basis as to either
the obligation of the Indemnifying Person arising under this Section 7 to
indemnify the Indemnified Person or the amount of such obligation; provided that
the Indemnifying Person will promptly reimburse the Indemnified Person for
amounts not in dispute.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person there under, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Trust and the Company on the one hand and the
Underwriters on the other hand from the offering of the Trust Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the Indemnified Person fails to give the
notice referred to in the immediately preceding paragraph, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Trust and the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Trust and the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the net proceeds
from the offering (before deducting expenses) received by the Trust and the
Company and the total underwriting compensation received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Trust Preferred Securities. The relative
fault of the Trust and the Company on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Trust
or the Company by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Trust, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims,
31
<PAGE> 32
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Trust Preferred Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section ll(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Trust Preferred Securities set forth opposite their names
in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Trust and the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Trust or the Company, its officers or directors or any other
person controlling the Trust or the Company and (iii) acceptance of and payment
for any of the Trust Preferred Securities.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Securities)
may be terminated in the absolute discretion of the Representatives, by notice
given to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (or, in the case of the Option Securities, prior to
the Additional Closing Date) (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange or the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of or
guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York
32
<PAGE> 33
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Represen tatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Trust Preferred Securities
being delivered at the Closing Date or the Additional Closing Date, as the case
may be, on the terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Trust
Preferred Securities which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Trust Preferred Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of Trust Preferred Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Trust Preferred Securities set
forth opposite their respective names in Schedule I bears to the aggregate
number of Under written Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Trust Preferred Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Trust Preferred Securities
that any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Trust Preferred Securities without the written consent of such Underwriter. If
on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter or Underwriters shall fail or refuse to purchase Trust Preferred
Securities which it or they have agreed to purchase hereunder on such date, and
the aggregate number of Trust Preferred Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Trust Preferred
Securities to be purchased on such date, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Trust Preferred Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Trust Preferred Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory
33
<PAGE> 34
to the Representatives to purchase such Trust Preferred Securities on such
terms. In any such case either the Representatives or the Company shall have the
right to postpone the Closing Date (or, in the case of the Option Securities,
the Additional Closing Date), but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. If,
after giving effect to any arrangements for the purchase of the Trust Preferred
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided above, the aggregate number of Trust Preferred
Securities which remains unpurchased exceeds one-tenth of the aggregate number
of the Trust Preferred Securities, as referred to above, or if the Company shall
not exercise the right described above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters, then
this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party hereto.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Trust or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Trust or the Company shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company agrees to reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
reasonable fees and expenses of its counsel) reasonably incurred by the
Underwriter in connection with this Agreement or the offering contemplated
hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Trust, the Company, the Underwriters, each affiliate of any Underwriter
which assists such Underwriter in the distribution of the Trust Preferred
Securities, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Trust Preferred Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
34
<PAGE> 35
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by J.P. Morgan Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
J.P. Morgan Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed by certified or registered mail postage
prepaid or by overnight delivery by a nationally recognized delivery service or
if transmitted by any standard form of telecommunication. Notices shall be
deemed effective upon receipt. Notices to the Underwriters shall be given to the
Representatives, c/o J.P. Morgan Securities Inc., 60 Wall Street, New York, New
York 10260 (telefax: 212-648-5705); Attention: Syndicate Department. Notices to
the Company shall be given to it at Wendy's International, Inc., 4288 West
Dublin- Granville Road, Dublin, Ohio, 43017-0256, (telefax: 614-764-3330);
Attention: John F. Brownley, or at such other address as the Company shall
deliver to the Representatives.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
WENDY'S FINANCING I
By: WENDY'S INTERNATIONAL,
INC., as Sponsor
By:______________________
Name:
Title:
35
<PAGE> 36
WENDY'S INTERNATIONAL, INC.
By:______________________
Name:
Title:
Accepted: September [ ], 1996
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
Acting severally on behalf of themselves
and the several Underwriters listed in
Schedule I hereto.
By: J.P. Morgan Securities Inc.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By:_________________________
Name:
Title:
36
<PAGE> 37
SCHEDULE I
Number of
Trust Preferred
Securities
Underwriter To Be Purchased
- ----------- ---------------
J.P. Morgan Securities Inc...............................
Goldman, Sachs & Co......................................
Total...........................................
<PAGE> 38
ANNEX A
Delavest, Inc.
Delcan, Inc.
The TDL Group Ltd.
Wendy's Old Fashioned Hamburgers of New York, Inc.
<PAGE> 39
ANNEX B
Ronald V. Joyce
Charles W. Rath
John K. Casey
Ronald E. Musick
Gordon F. Teter
John F. Brownley
R. David Thomas
W. Clay Hamner
Ernest S. Hayeck
Janet Hill
Thomas F. Keller
Fielden B. Nutter, Sr.
James V. Pickett
Frederick R. Reed, Esq.
Thekla R. Shackelford
<PAGE> 40
Exhibit A
---------
LOCK-UP AGREEMENT
WENDY'S INTERNATIONAL, INC.
September __, 1996
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
As Representatives of the several Underwriters
listed in Schedule I to the Underwriting
referred to herein
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Dear Ladies and Gentlemen:
The undersigned understands that you propose to enter into an
Underwriting Agreement (the "Underwriting Agreement") with Wendy's Financing I,
a special purpose business trust created under the laws of the State of Delaware
(the "Trust") and Wendy's International, Inc., an Ohio corporation (the
"Company"), providing for the public offering (the "Public Offering") by you of
up to 4,000,000 of the Trust's $ Term Convertible Securities, Series A
(the "TECONS"). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of your agreement to purchase and make the Public
Offering of the TECONS, and for other good and valuable consideration receipt of
which is hereby acknowledged, the undersigned hereby agrees that, without the
prior written consent of J.P. Morgan Securities Inc. on your behalf, the
undersigned will not, during the period ending 90 days after the date of the
prospectus supplement relating to the TECONS (the "Prospectus"), (1) offer,
pledge to sell, file a registration statement relating to, announce the
intention to sell, sell, issue, contract to sell, sell
<PAGE> 41
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any common shares, without par value, of the Company
(the "Wendy's Common Stock") or any securities convertible into or exercisable
or exchangeable for Wendy's Common Stock (including, without limitation, Wendy's
Common Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission and securities which may be issued upon exercise of a stock option or
warrant), or (2) enter into any swap or other agreement that transfers, in whole
or in part, any of the economic consequences of ownership of the Wendy's Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Wendy's Common Stock or such other securities, in cash
or otherwise.
Notwithstanding the preceding paragraph, this lock-up agreement shall
not prohibit any transfer or other disposition by the undersigned involving any
of the following: (1) a transfer or disposition of shares of Wendy's Common
Stock to his or her spouse, siblings, parents or any natural or adopted children
or other descendants or to any personal trust in which such family members or
the undersigned retains the entire beneficial interest; (2) a transfer or
disposition of shares of Wendy's Common Stock on his or her death to the
undersigned's estate, executor, administrator or personal representative or to
the undersigned's beneficiaries pursuant to a devise or bequest or by the laws
of descent and distribution; (3) a transfer or disposition of shares of Wendy's
Common Stock as a bona fide gift; and (4) a pledge of Wendy's Common Stock as
collateral, to a banking institution; provided, in each case, that the
transferee, pledgee or other person receiving such shares shall agree to all of
the restrictions set forth in this lock-up agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this lock-up agreement, and that, upon
request, the undersigned will execute any additional documents necessary or
desirable in connection with the enforcement hereof. All authority herein
conferred or agreed to be conferred and any obligations of the undersigned shall
be binding upon the successors and assigns of the undersigned.
In furtherance of the foregoing, the Company, the Trust, and any duly
appointed transfer agent for the registration or transfer of the securities
described herein, are hereby authorized to decline to make any transfer of
securities if such transfer would constitute a violation or breach of this
lock-up agreement.
2
<PAGE> 42
The undersigned understands that, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the TECONS, the undersigned shall be
released from all obligations to you under this lock-up agreement.
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
The undersigned understands that the Underwriters are entering into the
Underwriting Agreement and proceeding with the Public Offering in reliance upon
this letter agreement. The undersigned agrees that the provisions of this letter
agreement shall also be binding upon the successors, assigns, heirs or personal
representatives of the undersigned, as the case may be.
Very truly yours,
By ______________________
Name:
Title:
3
<PAGE> 43
Accepted as of the date first set forth above:
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
Acting severally on behalf of themselves
and the several Underwriters listed in
Schedule I to the Underwriting Agreement
By: J.P. Morgan Securities Inc.
Acting on behalf of itself and the
several Underwriters
By: _________________________
Name:
Title:
4
