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Exhibit 2(k)
SUBSCRIPTION AGREEMENT
AMENDING AGREEMENT NO. 2
THIS IS AN AMENDING AGREEMENT made as of February 25, 1999, by and
among THE IRREVOCABLE TRUST FOR THE BENEFIT OF XXXXXX X. XXXXX, an Ohio Trust
("Subscriber"), and WENDY'S INTERNATIONAL, INC., an Ohio Corporation ("Issuer").
WHEREAS:
A. Issuer and Subscriber entered into a Subscription Agreement dated as
of December 29, 1995, as amended by an Agreement dated September 16, 1998,
between Issuer, WENTIM, Xxxxxx X. Xxxxx ("Shareholder") and Subscriber (the
"Subscription Agreement"), pursuant to which Subscriber subscribed for and
purchased Wendy's Common Shares and agreed to pay for such Wendy's Common Shares
by conveying to Issuer an equivalent number of Newco Exchangeable Shares, which
Newco Exchangeable Shares were originally issued to Shareholder; and
B. Shareholder intends to pledge a portion of his Newco Exchangeable
Shares to a bank chartered under the laws of Canada (each, "a Bank") as security
for loans which may be made from time to time by a Bank to Shareholder.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 One Agreement. This Agreement amends the Subscription Agreement and
this Agreement and the Subscription Agreement shall be read, interpreted,
construed and have effect as, and shall constitute one agreement with the same
effect as if the amendments made to the Subscription Agreement by this Agreement
had been contained in the Subscription Agreement as of the date of this
Agreement.
1.2 Defined Terms. In this Agreement, unless something in the subject
matter or context is inconsistent:
(a) terms defined in the description of the parties or in
the recitals have the respective meanings given to
them in such description or recitals; and
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(b) all other capitalized terms have the respective
meanings given to them in the Subscription Agreement.
1.3 Headings. The headings of the Articles and Sections of this
Agreement are inserted for convenience of reference only and shall not affect
the construction or interpretation of this Agreement.
1.4 References. All references in this Agreement to Articles and
Sections, unless otherwise specified, are to Articles and sections of the
Subscription Agreement.
ARTICLE II
AMENDMENTS
2.1 The fourth sentence of Section (2) of the Subscription Agreement
shall be amended to read as follows:
Upon payment of the purchase price hereunder by delivery of
certificates evidencing Newco Exchangeable Shares duly
endorsed for transfer to ISSUER at its principal executive
offices, ISSUER shall cause its transfer agent to issue one or
more certificate(s) to SUBSCRIBER representing SUBSCRIBER'S
ownership of fully paid and nonassessable Wendy's Common
Shares; provided, however, if SUBSCRIBER directs in writing
that the certificate(s) be issued in the name of a BENEFICIARY
(as defined in the Irrevocable Trust Agreement for the Benefit
of Xxxxxx X. Xxxxx of even date hereof), ISSUER shall cause
the certificate(s) to be issued in the name of the BENEFICIARY
upon receipt of written representations and warranties from
the BENEFICIARY in substantially the form set forth in
paragraph (3) below.
ARTICLE III
GENERAL
3.1 Effective Date and Confirmation. This Agreement and the amendment
to the Subscription Agreement contained in this Agreement shall be effective as
of and from the date of this Agreement. The Subscription Agreement, as amended
by this Agreement, is confirmed by ISSUER and SUBSCRIBER.
3.2 Binding Nature. This Agreement shall inure to the benefit of and be
binding upon each of ISSUER and SUBSCRIBER and their respective successors and
permitted assigns.
3.3 Conflicts. If any provision of this Agreement is inconsistent with
any provision of the Share Exchange Agreement the relevant provision of this
Agreement shall prevail.
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3.4 Law of Contract. This Agreement and the Subscription Agreement
shall be governed by and construed in accordance with the laws of the State of
Ohio.
3.5 Counterparts. This Agreement may be executed in one or more
counterparts and each copy which has been signed by all parties shall be deemed
to be a duplicate original, but all of which, taken together, shall be deemed to
constitute a single instrument.
IN WITNESS OF WHICH Issuer and Subscriber have executed this
Agreement as of the date indicated on the first page of this Agreement.
WENDY'S INTERNATIONAL, INC.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Chief Financial Officer & Secretary
I/We have authority to bind
Wendy's International, Inc.
IRREVOCABLE TRUST FOR THE BENEFIT
OF XXXXXX X. XXXXX
THE HUNTINGTON NATIONAL BANK, TRUSTEE
By: /s/ Candada X. Xxxxx
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Name: Candada X. Xxxxx
Title: Vice President
I/We have authority to bind the Trust
