AGREEMENT
EXECUTION COPY
AGREEMENT
AGREEMENT made this 4th day of November, 2005, by and among Xxxxxxx Asset Management Corp., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (“Xxxxxxx”), and Trian Fund Management, L.P., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (“Trian”), with respect to Wendy’s International, Inc., an Ohio corporation (the “Company”).
R E C I T A L S:
The Parties wish to enter into this Agreement to coordinate certain of their efforts with respect to: (i) the purchase of up to a 9.9% beneficial ownership interest in the Company, whether through the purchase of equity securities of the Company and/or options, swaps or other derivative securities or instruments relating to the Company (collectively, “Securities”); and (ii) the proposal of certain actions and/or transactions to the Company. The parties have no intention, either alone or in concert with another person, to acquire or exercise control of the Company.
The parties hereto agree as follows:
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Purchase and Sale of Securities. |
(a) The parties represent and warrant that, as of the date hereof, none of them or any of their affiliates own any Securities. The parties agree that, without Trian’s prior approval, no investment funds, managed accounts and other investment vehicles managed or advised by them or their affiliates (with respect to Xxxxxxx, the “Xxxxxxx Funds”, with respect to Trian, the “Trian Funds”, and collectively, the “Funds”) shall in the aggregate collectively beneficially own 5% or more of the Company’s common stock.
(b) Unless otherwise agreed to by the parties, all Securities acquired and sold in accordance with this Agreement shall be allocated 61.5% to the Xxxxxxx Funds and 38.5% to the Trian Funds (such percentages, the “Pro Rata Percentages”); provided that the Pro Rata Percentages shall automatically be adjusted to reflect the actual ratio of Securities owned by the parties. The parties understand and agree that Trian shall have final approval with respect to the timing, amounts and prices of purchases, sales and exercises of Securities, subject to prior discussion and consultation with Xxxxxxx. Unless otherwise agreed to by the parties, all purchases, sales and exercises of Securities shall be executed solely by Xxxxxxx’x trading desk, subject to prior discussion and consultation with Trian. At the end of each trading day, purchased Securities or proceeds from sales of Securities shall be allocated to accounts designated by the parties in accordance with the Pro Rata Percentages, with each party responsible for its allocable portion of the purchase price of any purchased Securities.
(c) Notwithstanding anything herein to the contrary, the parties agree that (i) without Xxxxxxx’x prior approval, Xxxxxxx and the Xxxxxxx Funds shall not be required to purchase Securities having an aggregate purchase price in excess of $200 million and (ii) without Trian’s prior approval, Trian and the Trian Funds shall not be required to purchase Securities having an aggregate purchase price in excess of $125 million.
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Other Coordinated Activities. |
(a) The parties understand and agree that Trian shall have final approval with respect to (i) whether to initiate any proxy contest involving the Company, and if so, all related matters including the manner and timing thereof and the nomination of individuals to serve as directors of the Company, (ii) the manner in which Securities held by the Funds are voted in connection with any matter submitted for a vote by shareholders of the Company, (iii) the manner, form,
content and timing of any communications with the Company as well as any public disclosures, public statements or other third party communications relating to the Company, the Securities, this Agreement and the activities of the parties pursuant to this Agreement, including the making of any proposals regarding corporate transactions, and (iv) any decisions with respect to changing the intentions of the parties and the Funds from that previously disclosed in Item 4 of any Schedule 13D or any other regulatory filings filed by the parties and/or the Funds. Any of the foregoing actions shall be taken solely by Trian, but only after reasonable advance notice to, and a reasonable period of consultation with, Xxxxxxx. In addition, Xxxxxxx shall be offered the opportunity, with reasonable advance notice, to attend or participate in any pre-arranged in-person or telephonic meeting or conference relating to the activities of the parties hereunder. Notwithstanding the foregoing, (x) Xxxxxxx shall have the right to approve in advance (such approval not to be unreasonably withheld) any disclosure proposed to be made with respect to Xxxxxxx or any of its affiliates in any public statements or regulatory filings and (y) if Xxxxxxx believes, after consultation with counsel, that it or any of its affiliates are required by applicable law to make any public announcement with respect to the Company, this Agreement and/or the activities of the parties pursuant hereto, it shall be entitled to make such disclosure provided that it gives Trian reasonable advance notice and a reasonable period of consultation before making any such disclosure.
(b) For value received, Xxxxxxx hereby appoints and constitutes Trian and/or its designees, with full power of substitution, during the term of this Agreement, as its proxy, including, without limitation, for the purpose of enforcing the provisions set forth in clause (a) above relating to the voting of Securities, in respect of all Securities now or hereafter owned by Xxxxxxx and/or the Xxxxxxx Funds, to the full extent of their rights with respect to such Securities.
This proxy is coupled with an interest, is irrevocable and shall survive, and shall not be affected by, the subsequent bankruptcy or insolvency of Xxxxxxx or any of the Xxxxxxx Funds.
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Expenses; Indemnification; Contribution. |
(a) Each of the parties agrees to pay their respective Pro Rata Percentage of any expenses reasonably incurred by either party hereto in furtherance of the activities engaged in by the parties pursuant to this Agreement (collectively, “Expenses”), including, without limitation, any expenses related to any Indemnifiable Litigation (as defined below). Each of the parties will promptly upon request reimburse the other party for their respective Pro Rata Percentage of any such expenses paid or advanced by such other party. Upon request, the party seeking reimbursement hereunder shall provide the other party with reasonable documentation evidencing its expenses.
(b) Each of the parties agrees to indemnify and hold harmless the other party and its affiliates in accordance with their respective Pro Rata Percentage from and against any and all expense, liability and loss (including attorneys’ fees, judgments, fines and amounts paid or to be paid in any settlement by a party hereto and approved in advance by the other, such approval not to be unreasonably withheld) actually incurred or suffered by such other party or any of its affiliates in connection with any threatened, pending or contemplated investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (collectively, “Indemnifiable Litigation”), to which such party or any of its affiliates is made a party or is threatened to be made a party by reason of any action or inaction taken or omitted in connection with this Agreement and the ownership of Securities. The parties shall jointly cooperate in the defense of any Indemnifiable Litigation. Notwithstanding any of the foregoing, no party or any of its affiliates shall be entitled to any indemnification hereunder for any such expense, liability
or loss arising out of such person’s fraud, willful misconduct, gross negligence, bad faith or violation of federal or state securities laws.
(c) In the event that a party’s or its affiliates’ right to indemnification as provided above is for any reason not available or insufficient to hold such party or its affiliates harmless to the extent provided herein, each of the parties agrees to contribute to the aggregate expense, liability or loss (including legal or other expenses reasonably incurred in connection with investigating or defending the same) involved in proportion to their respective Pro Rata Percentage (“Contribution Expense”). Each of the parties agrees that it would not be just and equitable if contribution were determined by any other method of allocation. Notwithstanding the foregoing, a party or its affiliates shall not be entitled to contribution for any Contribution Expense arising out of such party’s or its affiliates’ fraud, willful misconduct, gross negligence, bad faith or violation of federal or state securities laws.
4. Regulatory Reporting. In the event that any transaction entered into pursuant to this Agreement gives rise to any requirement that a party hereto and/or any of its affiliates file any schedule or report pursuant to the Securities Exchange Act of 1934, as amended (excluding filings on Form 13F), the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or any other federal, state or regulatory requirement, such person(s) shall, subject to the provisions of this Section 4, make the required filings within the time period required. If any such schedule or report may be filed jointly by the parties and/or their respective affiliates, the parties hereto shall by mutual agreement determine whether to file jointly or individually. If the parties decide to file jointly, Trian shall prepare and timely file such filings; provided that the form and content thereof, as well as the timing of such filings, shall be reasonably satisfactory to each of the filing parties, each of which shall be given the opportunity to review and comment on
each such filing a reasonable period of time before such filing is made. In the event Xxxxxxx elects to make individual filings, Trian shall have the right to review and comment upon all such filings prior to the filing thereof, and Xxxxxxx shall make the form and contents thereof, as well as the timing of such filings, reasonably satisfactory to Trian. Each party will cooperate with the other, including by providing all necessary information, in order to facilitate the timely and accurate filing of all joint and individual filings. In the case of any joint filings, the parties shall share all costs and expenses associated with such filings in accordance with the Pro Rata Percentages. All costs and expenses associated with individual filings shall be borne by the filing party.
5. Termination. This Agreement shall terminate at the conclusion of the next annual meeting of the Company’s shareholders (including any adjournments or postponements thereof) or earlier if the Company shall have announced that it has entered into a definitive agreement whereby all of the Company’s common stock is to be acquired by a third party; provided, however, that the provisions set forth in Section 3 hereof and the governing law provisions set forth in Section 6(a) hereof shall survive any termination of this Agreement.
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Miscellaneous. |
(a) The terms and provisions of this Agreement may not be amended, waived or modified except by a writing signed by all of the parties hereto. Notwithstanding the foregoing, Trian may at any time amend this Agreement solely to join additional parties reasonably acceptable to Xxxxxxx, provided that any such additional parties shall be subject to the same terms as Xxxxxxx and the parties mutually agree to revised Pro Rata Percentages. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. This Agreement may not be assigned by either party
without the prior written consent of the other party. This Agreement may be executed in counterparts. This Agreement represents the entire agreement between the parties hereto, and supersedes all prior agreements, arrangements or understandings, with respect to the subject matter hereof.
(b) Each party represents and warrants that neither it nor any of its Funds are in possession of any material non-public information regarding the Company, whether received from the Company or any third party, and that in no event shall a party make available to the other party any such information that it may in the future obtain unless expressly authorized by such other party to do so.
(c) The parties intend to share, on the basis of their common interest in the subject matter hereof, certain advice from their respective counsel in connection with such subject matter, and neither party intends thereby to waive the attorney-client privilege as against third parties.
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the day and year first above written.
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TRIAN FUND MANAGEMENT, X.X. |
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XXXXXXX ASSET MANAGEMENT CORP. |
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By: Trian Fund Management GP, LLC, |
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its General Partner |
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/s/ Xxxxxx X. Garden |
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By: |
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Xxxxxx X. Garden |
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Xxxxxx Xxxxxxx |
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Member |
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CEO |
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