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Exhibit 3
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT, dated as of December 29, 1995 (this
"Agreement"), by and among WENDY'S INTERNATIONAL, INC., an Ohio corporation
("Wendy's"), 1149658 ONTARIO INC., an Ontario Corporation and a subsidiary of
Wendy's (1149658 Ontario Inc. and its successors being referred to herein as
"Newco"), and XXXXXX X. XXXXX ("Seller").
W I T N E S S E T H
WHEREAS, pursuant to a Stock Purchase Agreement entered into among
Wendy's, Xxxxx, 000000 Xxxxxxx Ltd., an Alberta corporation, continued as
1052106 Ontario Inc., an Ontario corporation (the "Company"), and Seller dated
as of October 31, 1995, as amended (the "Purchase Agreement"), the parties
thereto have agreed, subject to the terms and conditions set forth therein, that
Newco shall acquire from Seller all of the issued and outstanding shares of the
Company, and Seller shall receive Non-Voting Exchangeable Shares of Newco (such
shares, and shares of any successor corporation having terms substantially
equivalent to those of the Non-Voting Exchangeable Shares of Newco, being
referred to herein as the "Newco Exchangeable Shares");
WHEREAS, Seller desires the right to exchange from time to time pursuant
to the terms of this Agreement his Newco Exchangeable Shares for common shares,
without par value, of Wendy's (the "Wendy's Common Shares"); and
WHEREAS, Wendy's desires the right to purchase from time to time, pursuant
to the terms of this Agreement, Newco Exchangeable Shares from Seller;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties agree as follows:
ARTICLE 1
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE ON LIQUIDATION OF WENDY'S
1.1. EXCHANGE RIGHT.
1.1.1. Wendy's agrees with Seller that, at any time and from time to time
(including at any time during which Newco is insolvent or is in the course of
liquidation, dissolution or winding up), Seller shall have the right (the
"Exchange Right") to request Wendy's to purchase any or all of his Newco
Exchangeable Shares for a purchase price per share (the "Exchange Price") equal
to (a) the Current Market Price of the Specified Number of Wendy's Common Shares
on the last Business Day prior to the Exchange Date (as hereinafter defined)
plus (b) the amount by which the declared and unpaid dividends
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on one Newco Exchangeable Share then exceed, if at all, the declared and unpaid
dividends on the Specified Number of Wendy's Common Shares (calculated as of the
date of the declaration of such dividend or dividends in accordance with Newco's
Articles of Incorporation) (less any Taxes or U.S. Taxes).
1.1.2. If Seller wishes to exercise his Exchange Right in respect of all
or any of the Newco Exchangeable Shares registered in his name, he shall deliver
to Wendy's (or cause the Escrow Agent to deliver to Wendy's in the case of Newco
Exchangeable Shares held in escrow pursuant to the Escrow Agreement), in person
or by certified or registered mail, at its principal office (attention: Chief
Financial Officer), or at such other place as may be specified by Wendy's from
time to time, one or more certificates representing such Newco Exchangeable
Shares accompanied by one or more stock transfer powers endorsed in blank by
Seller, together with a duly completed exercise notice executed by Seller in the
form set forth in Exhibit A attached hereto (the "Exchange Notice"):
(a) specifying the number of Newco Exchangeable Shares in
respect of which the Exchange Right is being
exercised;
(b) stating the Business Day on which Seller desires to
exchange such Newco Exchangeable Shares (the "Exchange
Date"); provided that the Exchange Date shall be not
less than ten Business Days nor more than 15 Business
Days after the date on which the Exchange Notice is
received by Wendy's and provided, further, that, if no
Exchange Date is specified in the Exchange Notice, the
Exchange Date shall be deemed to be the tenth Business
Day after the date on which the Exchange Notice is
received by Wendy's; and
(c) representing and warranting that Seller is not a
non-resident of Canada within the meaning of the
Income Tax Act (Canada); if Seller does not so
represent and warrant, the provisions of Section 5.9
shall apply.
1.1.3. Subject to compliance with the provisions of Section 5.9, on the
Exchange Date, Wendy's shall pay or cause to be paid to Seller (or the Escrow
Agent in the case the Exchange Right is exercised with respect to Newco
Exchangeable Shares then being held in escrow pursuant to the Escrow Agreement),
the Exchange Price for each Newco Exchangeable Share surrendered on this
Exchange Date for exchange pursuant to Section 1.1.2. Payment of the total
Exchange Price for such Newco Exchangeable Shares shall be made by delivery to
Seller or the Escrow Agent, as the case may be, at the registered office of
Wendy's or at such other location as may be specified by Wendy's by notice to
Seller and the Escrow Agent, if applicable, of one or more certificates
representing the Specified Number of Wendy's Common Shares with respect to each
such Newco Exchangeable Share (less any Wendy's Common Shares withheld by
Wendy's in
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respect of Taxes) and a cheque of Wendy's, payable at any branch of the bankers
of Wendy's, in respect of the total amount set forth in Section 1.1.1(b). As of
and with effect from the Exchange Date, Seller shall cease to be the holder of
such Newco Exchangeable Shares and, subject to Section 5.1 hereof, shall not be
entitled to exercise any of the rights of a holder in respect thereof, other
than the right to receive the Exchange Price, unless payment of the total
Exchange Price for such Newco Exchangeable Shares shall not be made in
accordance with this provision, in which case the rights of Seller shall remain
unaffected to the extent payment of the Exchange Price has not been made until
the Exchange Price has been fully paid in the manner hereinbefore provided. Upon
such payment or deposit of the Exchange Price, Seller shall thereafter be
considered and deemed for all purposes to be the holder of the Wendy's Common
Shares delivered to him or the Escrow Agent, as the case may be.
1.2. AUTOMATIC EXCHANGE ON LIQUIDATION OF WENDY'S.
1.2.1. Wendy's shall give Seller and the Escrow Agent, if applicable,
notice of each of the following events at the time set forth below:
(a) in the event of any determination by the Board of
Directors of Wendy's to institute voluntary
liquidation, dissolution or winding-up proceedings
with respect to Wendy's or to effect any other
distribution of assets of Wendy's among its
shareholders for the purpose of winding-up its
affairs, at least 45 days prior to the proposed
effective date of such liquidation, dissolution or
winding-up or other distribution; and
(b) immediately, upon the earlier of (i) receipt by
Wendy's of notice of or (ii) Wendy's otherwise
becoming aware of any threatened or instituted claim,
suit, petition or other proceedings with respect to
the involuntary liquidation, dissolution or
distribution of assets of Wendy's among its
shareholders for the purpose of winding-up its
affairs.
1.2.2. In order to enable Seller to participate on a pro rata basis with
the holders of Wendy's Common Shares in the distribution of assets of Wendy's in
connection with any of the events set forth in Section 1.2.1(a) or 1.2.1(b)
above (a "Wendy's Liquidation Event"), on the fifth Business Day (the "Automatic
Exchange Date") prior to the date on which Wendy's shall be liquidated all of
the then outstanding Newco Exchangeable Shares shall be automatically exchanged
for Wendy's Common Shares (the "Automatic Exchange"). To effect the Automatic
Exchange, Wendy's shall purchase each Newco Exchangeable Share outstanding on
the Automatic Exchange Date and held by Seller, and Seller shall sell all Newco
Exchangeable Shares held by him at such time, for a purchase
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price per share (the "Wendy's Liquidation Amount") equal to (a) the Current
Market Price of the Specified Number of Wendy's Common Shares on the last
Business Day prior to the Automatic Exchange Date plus (b) the amount by which
the declared and unpaid dividends on one Newco Exchangeable Share then exceed,
if at all, the declared and unpaid dividends on the Specified Number of Wendy's
Common Shares (calculated as of the date of the declaration of such dividend or
dividends in accordance with the Articles of Incorporation of Newco) (less any
Taxes or U.S. Taxes).
1.2.3. On the Automatic Exchange Date, Wendy's shall pay or cause to be
paid to Seller (or the Escrow Agent in the case of Newco Exchangeable Shares
then being held in escrow pursuant to the Escrow Agreement), the Wendy's
Liquidation Amount for each such Newco Exchangeable Share upon presentation and
surrender at the registered office of Wendy's (attention: Chief Financial
Officer), or at such other place as may be specified by Wendy's from time to
time, of the certificates representing such Newco Exchangeable Shares, together
with one or more stock transfer powers endorsed in blank by Seller and
containing a representation and warranty by Seller that Seller is not a
non-resident of Canada within the meaning of the Income Tax Act (Canada). If
Seller does not so represent and warrant, the provisions of Section 5.9 shall
apply. Payment of the total Wendy's Liquidation Amount for such Newco
Exchangeable Shares shall be made by delivery to Seller or the Escrow Agent, as
applicable, of one or more certificates of Wendy's Common Shares representing
the Specified Number of Wendy's Common Shares with respect to each such Newco
Exchangeable Share (less any Wendy's Common Shares withheld by Wendy's in
respect of Taxes) and a cheque of Wendy's, payable at any branch of the bankers
of Wendy's in respect of the total amount specified in Section 1.2.2(b) with
respect to all such Newco Exchangeable Shares. As of and with effect from the
Automatic Exchange Date, Seller shall cease to be the holder of the Newco
Exchangeable Shares exchanged on such date and, shall not be entitled to
exercise any of the rights of a holder in respect thereof, other than the right
to receive the Wendy's Liquidation Amount, unless payment of the total Wendy's
Liquidation Amount shall not be made upon presentation and surrender of the
share certificates representing such Newco Exchangeable Shares in accordance
with the foregoing provisions, in which case the rights of Seller shall remain
unaffected to the extent payment of the Wendy's Liquidation Amount has not been
made until the Wendy's Liquidation Amount has been fully paid in the manner
hereinbefore provided. Wendy's shall have the right to deposit or cause to be
deposited in a custodial account with any chartered bank or trust company in
Canada (the "Wendy's Liquidation Amount Depositary"), the Wendy's Liquidation
Amount in respect of the Newco Exchangeable Shares represented by certificates
that have not been surrendered on the Automatic Exchange Date. Immediately upon
making such deposit, Wendy's shall give notice thereof to Seller. The Newco
Exchangeable Shares in respect of which such deposit shall have been made shall
be deemed to be exchanged as of the date of such deposit and, subject to Section
5.1 hereof, the rights of Seller with respect to such Newco Exchangeable Shares
shall thereafter be limited to the right to receive the Wendy's Liquidation
Amount deposited against presentation and
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surrender of the certificates representing such Newco Exchangeable Shares to the
Wendy's Liquidation Amount Depositary. Upon such payment or deposit of the
Wendy's Liquidation Amount, Seller shall thereafter be considered and deemed for
all purposes to be the holder of the Wendy's Common Shares either (i) delivered
to him or the Escrow Agent, as the case may be, or (ii) deposited with the
Wendy's Liquidation Amount Depositary.
1.3. EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION. In the event
that Seller has exercised his right under Article 6 of the Articles of
Incorporation of Newco to require Newco to redeem any or all of the Newco
Exchangeable Shares held by Seller (the "Retracted Shares"), provided that
Wendy's shall not have exercised the Retraction Call Right (as hereinafter
defined) with respect to the Retracted Shares, and Seller is notified by Newco
pursuant to Section 6.6 of the Articles of Incorporation of Newco that Newco
will not be permitted as a result of solvency requirements of applicable law to
redeem all such Retracted Shares, Newco hereby agrees to immediately notify
Wendy's of such prohibition against Newco redeeming all of the Retracted Shares
and to immediately forward or cause to be forwarded to Wendy's all relevant
materials delivered by Seller to Newco (including, without limitation, a copy of
the Retraction Request delivered pursuant to Section 6.1 of the Articles of
Incorporation of Newco) in connection with such requested retraction of the
Retracted Shares. In any such event, the Retraction Request will constitute and
will be deemed to constitute notice from Seller to Wendy's that Seller is
exercising the Exchange Right with respect to those Retracted Shares which Newco
is not permitted to redeem, and Wendy's agrees to purchase such Retracted Shares
in accordance with the provisions of Section 1.1.3.
ARTICLE 2
PURCHASE BY WENDY'S
2.1. PURCHASE OF SHARES. Subject to Section 2.2.1 hereof, on the
Purchase Date Wendy's shall purchase all of the then outstanding Newco
Exchangeable Shares (the "Purchase") for an amount per share (the "Purchase
Price") equal to (a) the Current Market Price of the Specified Number of Wendy's
Common Shares on the last Business Day prior to the Purchase Date, which amount
shall be paid and satisfied in full by Wendy's causing to be delivered to Seller
(or the Escrow Agent in the case of Newco Exchangeable Shares then being held in
escrow pursuant to the Escrow Agreement), the Specified Number of Wendy's Common
Shares (less any Taxes) plus (b) the amount by which the declared and unpaid
dividends on one Newco Exchangeable Share then exceed, if at all, the declared
and unpaid dividends on the Specified Number of Wendy's Common Shares
(calculated as of the date of the declaration of such dividend or dividends in
accordance with the Articles of Incorporation of Newco) (less any Taxes or U.S.
Taxes).
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2.2. PURCHASE PROCEDURE.
2.2.1. In any case of a purchase of Newco Exchangeable Shares under this
Article 2, other than a purchase on December 29, 2005, Wendy's shall at least 30
days (or, if impracticable, such lesser time period as is practicable) before
the Purchase Date send or cause to be sent to Seller a notice in writing of the
Purchase. Such notice shall set out the formula for determining the Purchase
Price and the Purchase Date. Thirty days prior to December 29, 2005, Wendy's
shall send or cause to be sent to Seller and Newco a notice in writing setting
forth whether Wendy's has elected, in its sole discretion, to (a) purchase the
then outstanding Newco Exchangeable Shares on the Purchase Date pursuant to this
Article 2 or (b) cause Newco to redeem such Newco Exchangeable Shares on the
Purchase Date pursuant to Article 7 of the Articles of Incorporation of Newco.
In the event Wendy's shall have elected to purchase such Newco Exchangeable
Shares pursuant to this Article 2, such notice shall set out the formula for
determining the Purchase Price. In the event Wendy's shall have elected to cause
Newco to redeem such Newco Exchangeable Shares, such notice shall contain
instructions for Newco to take all steps necessary to redeem the Newco
Exchangeable Shares on the Purchase Date and Newco shall, unless prohibited by
law, redeem such Newco Exchangeable Shares in accordance with such instructions
and the provisions of Article 7 of Newco's Articles of Incorporation. If Newco
is prohibited by law from so redeeming such Newco Exchangeable Shares, it shall
forthwith notify Wendy's in writing thereof and Wendy's shall purchase the then
outstanding Newco Exchangeable Shares on the Purchase Date pursuant to this
Article 2.
2.2.2. Subject to Section 2.2.1 hereof, on the Purchase Date Wendy's shall
pay or cause to be paid to Seller (or the Escrow Agent in the case of Newco
Exchangeable Shares then being held in escrow pursuant to the Escrow Agreement),
the Purchase Price for each Newco Exchangeable Share upon presentation and
surrender at the registered office of Wendy's (attention: Chief Financial
Officer), or at such other place as may be specified by Wendy's from time to
time, of the certificates representing such Newco Exchangeable Shares, together
with one or more stock transfer powers endorsed in blank by Seller and
containing a representation and warranty by Seller that Seller is not a
non-resident of Canada within the meaning of the Income Tax Act (Canada). If
Seller does not so represent and warrant, the provisions of Section 5.9 shall
apply. Payment of the total Purchase Price for such Newco Exchangeable Shares
shall be made by delivery to Seller or the Escrow Agent, as the case may be, at
the registered office of Wendy's or at such other location as may be specified
by Wendy's by notice to Seller and the Escrow Agent, if applicable, of one or
more certificates representing the Specified Number of Wendy's Common Shares
with respect to each such Newco Exchangeable Share (less any Wendy's Common
Shares withheld by Wendy's in respect of Taxes) and a cheque of Wendy's, payable
at any branch of the bankers of Wendy's, in respect of the total amount set
forth in Section 2.1(b). As of and with effect from the Purchase Date, Seller
shall cease to be the holder of such Newco Exchangeable Shares and, subject to
Section 5.1 hereof, shall not be entitled to exercise any of the rights of a
holder in respect thereof, other than the
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right to receive the Purchase Price, unless payment of the total Purchase Price
for such Newco Exchangeable Shares shall not be made upon presentation and
surrender of share certificates representing such Newco Exchangeable Shares in
accordance with the foregoing provisions, in which case the rights of Seller
shall remain unaffected to the extent payment of the Purchase Price has not been
made until the Purchase Price has been fully paid in the manner hereinbefore
provided. Wendy's shall have the right, on or after the Purchase Date, to
deposit or cause to be deposited in a custodial account with any chartered bank
or trust company in Canada (the "Purchase Price Depositary") the Purchase Price
in respect of the Newco Exchangeable Shares represented by certificates that
have not at the date of such deposit been surrendered by Seller in connection
with the Purchase; provided that, in the event of an acceleration of the
Purchase Date pursuant to clause (i) of the last sentence of the definition of
"Purchase Date", Wendy's shall be required to make such deposit, if any, on the
Purchase Date. Immediately upon making such deposit, Wendy's shall give notice
thereof to Seller. The Newco Exchangeable Shares in respect of which such
deposit shall have been made shall be deemed to be exchanged as of the date of
such deposit and, subject to Section 5.1 hereof, Seller's rights with respect to
such Newco Exchangeable Shares shall thereafter be limited to the right to
receive the Purchase Price so deposited against presentation and surrender of
the certificates representing such Newco Exchangeable Shares to the Purchase
Price Depositary. Upon such payment or deposit of the Purchase Price, Seller
shall thereafter be considered and deemed for all purposes to be the holder of
the Wendy's Common Shares either (i) delivered to him or the Escrow Agent as the
case may be, or (ii) deposited with the Purchase Price Depositary.
ARTICLE 3
DISTRIBUTION ON LIQUIDATION OF NEWCO
3.1. LIQUIDATION CALL RIGHT. In the event of the liquidation,
dissolution or winding-up of Newco, whether voluntary or involuntary, or any
other distribution of the assets of Newco among its shareholders for the purpose
of winding-up its affairs, Wendy's shall have the overriding right (the
"Liquidation Call Right") to purchase all, but not less than all, of the Newco
Exchangeable Shares from Seller for an amount per share (the "Liquidation Call
Price") equal to (a) the Current Market Price of the Specified Number of Wendy's
Common Shares on the last Business Day prior to the date on which Newco's assets
shall be distributed to its shareholders in connection with such liquidation,
dissolution or winding-up (the "Newco Liquidation Date"), which amount shall be
satisfied in full by Wendy's causing to be delivered to Seller (or to the Escrow
Agent in the case of Newco Exchangeable Shares then being held in escrow
pursuant to the Escrow Agreement), the Specified Number of Wendy's Common Shares
(less any Taxes) plus (b) the amount by which the declared and unpaid dividends
on one Newco Exchangeable Share exceed, if at all, the declared and unpaid
dividends on the Specified Number of Wendy's Common Shares (calculated as of the
date of declaration of such dividend or
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dividends in accordance with the Articles of Incorporation of Newco) (less any
Taxes or U.S. Taxes).
3.2. EXERCISE OF LIQUIDATION CALL RIGHT. To exercise the Liquidation
Call Right, Wendy's shall notify Seller and Newco of Wendy's intention to
exercise the Liquidation Call Right (a) in the case of a voluntary liquidation,
dissolution or winding-up of Newco at least 30 days before the Newco Liquidation
Date and (b) in the case of an involuntary liquidation, dissolution or winding-
up of Newco at least five Business Days before the Newco Liquidation Date. If
Wendy's exercises the Liquidation Call Right, on the Newco Liquidation Date
Wendy's will purchase, and Seller will sell, all of the Newco Exchangeable
Shares then outstanding for a price per share equal to the Liquidation Call
Price.
3.3. PROCEDURE FOR PAYMENT OF LIQUIDATION CALL PRICE. In the event
Wendy's has exercised the Liquidation Call Right as provided herein, then on or
after the Newco Liquidation Date, Wendy's shall pay or cause to be paid to
Seller (or the Escrow Agent in the case of Newco Exchangeable Shares then being
held in escrow pursuant to the Escrow Agreement) the Liquidation Call Price for
each Newco Exchangeable Share upon presentation and surrender at the registered
office of Wendy's (attention: Chief Financial Officer), or at such other place
as may be specified by Wendy's from time to time, of the certificates
representing such Newco Exchangeable Shares, together with one or more stock
transfer powers endorsed in blank by Seller and containing a representation and
warranty by Seller that Seller is not a non-resident of Canada within the
meaning of the Income Tax Act (Canada). If Seller does not so represent and
warrant, the provisions of Section 5.9 shall apply. Payment of the total
Liquidation Call Price for such Newco Exchangeable Shares shall be made by
delivery to Seller or the Escrow Agent, as applicable, at the address of the
Seller or the Escrow Agent, at the registered office of Wendy's or at such other
location as may be specified by Wendy's by notice to Seller and the Escrow
Agent, if applicable, of the certificates representing Wendy's Common Shares
(less any Wendy's Common Shares withheld by Wendy's in respect of Taxes) and a
cheque of Wendy's payable at any branch of the bankers of Wendy's in respect of
the total amount specified in Section 3.1(b) with respect to all such
Exchangeable Shares. In the event Wendy's has exercised the Liquidation Call
Right as provided herein, then as of and with effect from the Newco Liquidation
Date, Seller shall cease to be a holder of such Newco Exchangeable Shares and
shall not be entitled to exercise any of the rights of a holder in respect
thereof, other than the right to receive the Liquidation Call Price with respect
to each Newco Exchangeable Share held by him on the Newco Liquidation Date,
unless payment of the total Liquidation Call Price for such Newco Exchangeable
Shares shall not be made upon presentation and, subject to Section 5.1 hereof,
surrender of the share certificates representing such Newco Exchangeable Shares
in accordance with the foregoing provisions, in which case the rights of Seller
shall remain unaffected to the extent payment of the Liquidation Call Price has
not been made until the Liquidation Call
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Price has been fully paid in the manner hereinbefore provided. Wendy's shall
have the right to deposit or cause to be deposited in a custodial account with
any chartered bank or trust company in Canada (the "Liquidation Call Price
Depositary") the Liquidation Call Price in respect of the Newco Exchangeable
Shares represented by certificates that have not at the date of such deposit
been surrendered by Seller in connection with the exercise by Wendy's of the
Liquidation Call Right. Immediately upon making such deposit, Wendy's shall give
notice thereof to Seller. The Newco Exchangeable Shares in respect of which such
deposit shall have been made shall be deemed to be exchanged on the date of such
deposit and, subject to Section 5.1 hereof, Seller's rights with respect to such
Newco Exchangeable Shares shall thereafter be limited to the right to receive
the Liquidation Call Price so deposited against presentation and surrender of
the certificates representing such Newco Exchangeable Shares to the Liquidation
Call Price Depositary. Upon such payment or deposit of the Liquidation Call
Price, Seller shall thereafter be considered and deemed for all purposes to be
the holder of the Wendy's Common Shares either (i) delivered to him or the
Escrow Agent, as the case may be, or (ii) deposited with the Liquidation Call
Price Depositary.
ARTICLE 4
EXERCISE OF THE RETRACTION CALL RIGHT
4.1. RETRACTION. In the event that Seller has exercised Seller's right
under Article 6 of the Articles of Incorporation of Newco to require Newco to
redeem any or all of the Newco Exchangeable Shares held by him (the "Retraction
Right"), Wendy's shall have the overriding right (the "Retraction Call Right")
to purchase all, but not less than all, of such Newco Exchangeable Shares from
Seller for an amount per share (the "Retraction Call Price") equal to (a) the
Current Market Price of the Specified Number of Wendy's Common Shares on the
last Business Day prior to the Retraction Date (as such term is defined in
Section 6.1 of the Articles of Incorporation of Newco) which amount shall be
paid and satisfied in full by Wendy's causing to be delivered to Seller (or the
Escrow Agent in the case of Newco Exchangeable Shares then being held in escrow
pursuant to the Escrow Agreement) the Specified Number of Wendy's Common Shares
plus (b) the amount by which the declared and unpaid dividends on one Newco
Exchangeable Share then exceed, if at all, the declared and unpaid dividends on
the Specified Number of Wendy's Common Shares (calculated as of the date of the
declaration of such dividend or dividends in accordance with the Articles of
Incorporation of Newco) (less any Taxes or U.S. Taxes).
4.2. EXERCISE OF RETRACTION CALL RIGHT. To exercise the Retraction Call
Right, Wendy's shall notify Seller and Newco in writing of Wendy's intention to
exercise such right within five Business Days after Wendy's has been notified by
Newco that Seller has exercised the Retraction Right. If Wendy's exercises the
Retraction Call Right, on the
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Retraction Date Wendy's will purchase, and Seller will sell, such Newco
Exchangeable Shares for a price per share equal to the Retraction Call Price.
4.3. PROCEDURE FOR PAYMENT OF RETRACTION CALL PRICE. In the event that
Wendy's has exercised the Retraction Call Right with respect to any Newco
Exchangeable Shares as provided herein, then, on or after the Retraction Date,
Wendy's shall pay or cause to be paid to Seller (or the Escrow Agent in the case
of Newco Exchangeable Shares then being held in escrow pursuant to the Escrow
Agreement) the Retraction Call Price for each such Newco Exchangeable Share upon
presentation and surrender at the registered office of Wendy's (attention: Chief
Financial Officer), or at such other place as may be specified by Wendy's from
time to time, of the certificates representing such Newco Exchangeable Shares
together with one or more stock transfer powers endorsed in blank by Seller and
containing a representation and warranty by Seller that Seller is not a
non-resident of Canada within the meaning of the Income Tax Act (Canada). If
Seller does not so represent and warrant, the provisions of Section 5.9 shall
apply. Payment of the total Retraction Call Price for such Newco Exchangeable
Shares shall be made by delivery to Seller or the Escrow Agent, as applicable,
at the registered office of Wendy's or at such other location as may be
specified by Wendy's by notice to Seller and the Escrow Agent, if applicable, of
certificates representing Wendy's Common Shares (less any Wendy's Common Shares
withheld in respect of Taxes) and a cheque of Wendy's payable at any branch of
the bankers of Wendy's in respect of the total amount specified in Section
4.1(b) with respect to all such Exchangeable Shares. In the event Wendy's has
exercised the Retraction Call Right as provided herein, then as of and with
effect from the Retraction Date Seller shall cease to be a holder of such Newco
Exchangeable Shares with respect to which Wendy's has exercised the Retraction
Call Right and, subject to Section 5.1 hereof, shall not be entitled to exercise
any of the rights of a holder in respect thereof, other than the right to
receive the Retraction Call Price with respect to each such Newco Exchangeable
Share, unless payment of the total Retraction Call Price for such Newco
Exchangeable Shares shall not have been made upon presentation and surrender of
the share certificates representing such Newco Exchangeable Shares in accordance
with the foregoing provisions, in which case Seller's rights shall remain
unaffected to the extent the Retraction Call Price has not been paid until the
Retraction Call Price has been fully paid in the manner hereinbefore provided.
Wendy's shall have the right to deposit or cause to be deposited in a custodial
account with any chartered bank or trust company in Canada (the "Retraction Call
Price Depositary") the Retraction Call Price in respect of the Newco
Exchangeable Shares represented by certificates that have not at the date of
such deposit been surrendered by Seller in connection with the exercise by
Wendy's of the Retraction Call Right. Immediately upon making such deposit,
Wendy's shall give notice thereof to Seller. The Newco Exchangeable Shares in
respect of which such deposit has been made shall be deemed to be exchanged as
of the date of such deposit and, subject to Section 5.1 hereof, Seller's rights
with respect to such Newco Exchangeable Shares shall thereafter be limited to
the right to receive the Retraction Call Price so deposited against presentation
and
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surrender of the certificates representing such Newco Exchangeable Shares to the
Retraction Call Right Depositary. Upon such payment or deposit of the Retraction
Call Price, Seller shall thereafter be considered and deemed for all purposes to
be the holder of the Wendy's Common Shares either (i) delivered to him or the
Escrow Agent, as the case may be, or (ii) deposited with the Retraction Call
Price Depositary.
ARTICLE 5
COVENANTS OF WENDY'S, NEWCO AND SELLER
5.1. RIGHT TO DIVIDENDS. There shall be no payment or adjustment by
Wendy's, Newco or Seller on account of any dividends on any Newco Exchangeable
Shares on a Share Exchange in respect of the Newco Exchangeable Shares exchanged
on such occasion. Dividends payable on any such Newco Exchangeable Shares for
which the record date has occurred prior to the date of exchange or deemed
exchange with respect to such Newco Exchangeable Shares shall be paid by Newco,
even if the distribution date with respect to such dividends occurs after such
date of exchange or deemed exchange; provided, however, that, if Wendy's shall
have exercised the Liquidation Call Right and the Newco Liquidation Date occurs
after the record date with respect to such dividends, but prior to the
distribution date with respect thereto, Seller shall be treated with respect to
each Newco Exchangeable Share to be purchased by Wendy's on the Newco
Liquidation Date pursuant to Article 3 hereof, as if he had been a holder of the
Specified Number of Wendy's Common Shares on such record date and shall be
deemed to have assigned to Wendy's all rights against Newco with respect to such
dividends.
5.2. STAMP OR OTHER TRANSFER TAXES. Seller shall be solely responsible
for the payment of any stamp, documentary, transfer or other like taxes or
charges that may be payable to any governmental body or agency in respect of the
disposition by Seller to Wendy's of Newco Exchangeable Shares or the issuance of
Wendy's Common Shares to Seller pursuant to a Share Exchange and for any taxes
which must be deducted or withheld by Wendy's by reason of such Holder being a
non-resident of Canada within the meaning of the Income Tax Act (Canada) or
otherwise. Except as aforesaid and as otherwise provided in this Agreement,
exchanges of Newco Exchangeable Shares shall be effected at no cost to Seller.
5.3. FRACTIONAL SHARES. Wendy's shall not be required to issue
fractional Wendy's Common Shares upon any Share Exchange, but in lieu thereof
shall pay an amount in cash equal to the same fraction of the Current Market
Price of one Wendy's Common Share at the effective date of the Share Exchange.
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5.4. ISSUANCE OF NEW CERTIFICATES. Subject to compliance with the
provisions of Section 5.9, Wendy's shall deliver or cause to be delivered to
Seller (or the Escrow Agent in the case of the exchange of Newco Exchangeable
Shares then being held in escrow pursuant to the Escrow Agreement), if
necessary, one or more certificates representing the Newco Exchangeable Shares
in respect of which the Exchange Right or the Retraction Right, as the case may
be, was not exercised by Seller but which were evidenced by the certificate or
certificates delivered to Wendy's pursuant to Section 1.1.2 or 4.3 hereof.
5.5. WENDY'S SHARES. (a) Wendy's hereby represents, warrants and
covenants that it has irrevocably reserved for issuance and will at all times
keep available, free from pre-emptive and other rights, out of its authorized
and unissued capital stock such number of Wendy's Common Shares as is equal to
the sum of the maximum number of Wendy's Common Shares which may be issuable
from time to time to Seller upon a Share Exchange.
(b) Whenever Wendy's is required to deliver Wendy's Common Shares
pursuant to this Agreement, such shares shall be duly issued as fully paid and
non-assessable and free and clear of any lien, claim and encumbrance, other than
any escrow requirements imposed by the Escrow Agreement and the restriction on
transfer imposed by Section 5.6 hereof and applicable securities laws.
5.6. RESTRICTIONS ON TRANSFERS OF WENDY'S SHARES. (a) As long as Seller
is a director, officer or employee of Wendy's or Newco or any of their
respective subsidiaries, Seller shall comply with all Wendy's policies in force
from time to time concerning the purchase and sale of securities of Wendy's by
directors, officers or employees of Wendy's and its subsidiaries to the extent
such policies are applicable to Seller pursuant to its terms.
(b) At any xxxx Xxxxxx intends to sell any Wendy's Common Shares
(whether acquired pursuant to this Agreement or otherwise), Seller shall (i)
sell such Wendy's Common Shares only in compliance with all applicable
securities laws, including, but not limited to, the U.S. Securities Act of 1933
and the rules and regulations promulgated thereunder, and (ii) use his best
efforts not to sell any such Wendy's Common Shares to a person (other than a
person who would be entitled to file a Schedule 13G under the U.S. Securities
Exchange Act of 1934, as amended (the "1934 Act"), with respect to such sale)
who would "beneficially own" (as such term is used in the regulations
promulgated pursuant to Section 13(d) of the 1934 Act), after giving effect to
the purchase of such Wendy's Common Shares, more than 5% of the Wendy's Common
Shares outstanding at such time (other than to an underwriter in connection with
a registration of Wendy's Common Shares pursuant to the Registration Rights
Agreement).
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5.7. TRANSFER AGENT. Wendy's covenants that it will supply its transfer
agent with duly executed share certificates for the purpose of completing a
Share Exchange.
5.8. NEWCO LIQUIDATION. Wendy's covenants that prior to the Purchase
Date it will use its best efforts to prevent the liquidation, dissolution or
winding-up of Newco.
5.9. NON-RESIDENT OF CANADA AT TIME OF EXCHANGE. Notwithstanding the
provisions of any section of this Agreement, in the event that Seller does not
represent and warrant that he is not a non-resident of Canada within the meaning
of the Income Tax Act (Canada) when Seller or Wendy's is entitled to exercise
any exchange right hereunder or any such exchange occurs automatically, Seller
shall provide to Wendy's a certificate pursuant to section 116 of the Income Tax
Act (Canada) or any successor provision thereto (such certificate being
hereinafter referred to as a "Certificate") having a certificate limit that is
not less than fair market value of the Wendy's Common Shares which Seller is
entitled to receive upon such exchange and otherwise conforming in all respects
with the provisions of section 116 of the Income Tax Act (Canada) or any
successor provisions thereto. If Seller does not provide such Certificate to
Wendy's on or before the date on which the exchange is to occur, Wendy's shall
be entitled to hold back Wendy's Common Shares having a fair market value equal
to the amount of any Taxes that Wendy's would be required to pay on behalf of
Seller pursuant to section 116 of the Income Tax Act (Canada) or any successor
thereto. Wendy's shall be entitled to sell such Wendy's Common Shares and to
remit the sale price to Revenue Canada on account of any such Taxes within such
time (determined by Wendy's acting reasonably) as will enable it to comply with
the requirements of subsection 116(5) of the Income Tax Act (Canada) or any
successor thereto in the event that Seller fails to provide such Certificate
before such time and Seller hereby appoints Wendy's as his lawful attorney with
full and irrevocable power and authority to execute all agreements, documents
and instruments and to take such other action as may be required to effect such
sale. If Seller provides such Certificate before such time, Wendy's shall
release to Seller any Wendy's Common Shares so held back or the proceeds from a
sale thereof if not remitted to Revenue Canada.
5.10. REINCORPORATION OF WENDY'S. The parties hereto agree that, in the
event Wendy's ceases to be an Ohio corporation and is reincorporated in another
jurisdiction, the parties hereto shall amend or modify, or cause, or consent to,
the amendment or modification of, such Transaction Documents, and enter into
such additional agreements and execute, or cause the execution of, such
additional documents, as may be required to provide the parties hereto with
substantially the same rights and obligations and economic benefits under the
laws of such jurisdiction of reincorporation.
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ARTICLE 6
SUCCESSORS AND ASSIGNS
6.1. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon, and inure to the benefit of, the respective transferees and
assigns (if the transfer or assignment of this Agreement is permitted
hereunder), or the successors, executors, administrators and legal
representatives of the parties hereto, provided, however, that this Agreement
may not be assigned by the parties hereto in whole or in part except as
otherwise expressly provided herein.
6.2. WENDY'S SUCCESSORS. Wendy's shall not enter into any transaction
(whether by way of restructuring, reorganization, consolidation, merger,
transfer, sale, lease or otherwise) whereby all or substantially all of its
undertaking, property and assets would become the property of any other person
or, in the case of a merger, of the continuing corporation resulting therefrom
unless;
(a) (i) such other person or continuing corporation (the
"Wendy's Successor"), by operation of law, becomes
automatically bound by the terms and provisions of this
Agreement or (ii) if the Wendy's Successor does not become
so bound, the Wendy's Successor executes, prior to or
contemporaneously with the consummation of such transaction,
an agreement supplemental hereto and such other instruments
(if any) as are satisfactory to Seller and, in the opinion
of legal counsel to Seller, are necessary or advisable to
evidence the assumption by the Wendy's Successor of the
liability for all moneys payable and property deliverable
hereunder and the covenant of such Wendy's Successor to pay
and deliver or cause to be delivered the same and its
agreement to observe and perform all the covenants and
obligations under this Agreement; and
(b) such transaction shall, to the satisfaction of Seller and in
the opinion of such legal counsel, be upon such terms as are
required to substantially preserve and not to impair in any
material respect any of the rights, duties, powers and
authorities of the Seller hereunder.
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6.3. TRANSFER BY SELLER. Seller shall not transfer (other than to
Wendy's or the Escrow Agent) all or any portion of Seller's Newco Exchangeable
Shares, except to the Trustee under the Trust Agreement pursuant to the terms of
the Guaranty and the Trust Agreement.
ARTICLE 7
TERMINATION
7.1. TERM. This Agreement shall continue until the earliest to occur of
the following events:
(a) no outstanding Newco Exchangeable Shares are held by Seller,
and
(b) the execution of an instrument in writing terminating this
Agreement, signed by duly authorized officers or
representatives of Wendy's and Newco and by Seller.
ARTICLE 8
DEFINITION AND MISCELLANEOUS
8.1. DEFINITIONS OF CERTAIN TERMS. As used herein, the following terms
shall have the following meanings:
"1934 Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Agreement" has the meaning given thereto in the first paragraph
hereof.
"Articles of Incorporation of Newco" has the meaning given thereto
in the Purchase Agreement.
"Automatic Exchange" has the meaning given thereto in Section
1.2.2.
"Automatic Exchange Date" has the meaning given thereto in Section
1.2.2.
"Business Day" means a day other than a Saturday, Sunday or any
other day treated as a holiday in the municipality in Canada in
which Newco's registered office is then situated.
"Certificate" has the meaning given thereto in Section 5.9.
"Company" has the meaning given thereto in the second paragraph
hereof.
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"Current Market Price" means, in respect of a Wendy's Common Share,
on any date, the average of the closing prices of a Wendy's Common
Share on the New York Stock Exchange (as published in The Wall
Street Journal (Midwest Edition) or, if not published therein, in
any other authoritative source determined by the Board of Directors
of Wendy's) on the twenty trading days immediately preceding such
date, or, if the Wendy's Common Shares are not then listed on the
New York Stock Exchange, on such other stock exchange or automated
quotation system on which the Wendy's Common Shares are then listed
or quoted, as the case may be, and, if the Wendy's Common Shares
are listed or quoted on more than one such exchange or automated
quotation system, on such exchange or automated quotation system as
may be selected by the Board of Directors of Wendy's for the
purpose of establishing such average price.
"Escrow Agent" has the meaning given thereto in the Escrow
Agreement.
"Escrow Agreement" has the meaning given thereto in the Purchase
Agreement.
"Exchange Date" has the meaning given thereto in Section 1.1.2.
"Exchange Notice" has the meaning given thereto in Section 1.1.2.
"Exchange Price" has the meaning given thereto in Section 1.1.1.
"Exchange Right" has the meaning given thereto in Section 1.1.1.
"Guaranty" has the meaning given thereto in the Purchase Agreement.
"Liquidation Call Price" has the meaning given thereto in Section
3.1.
"Liquidation Call Price Depositary" has the meaning given thereto
in Section 3.3.
"Liquidation Call Right" has the meaning given thereto in Section
3.1.
"Newco" has the meaning given thereto in the first paragraph
hereof.
"Newco Exchangeable Shares" has the meaning given thereto in the
second paragraph hereof.
"Newco Liquidation Date" has the meaning given thereto in Section
3.1.
"person" means an individual, a corporation, partnership, trust,
any other entity and any group (which term includes a "group" as
defined in Section 13(d)(3) of the 1934 Act).
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"Purchase" has the meaning given thereto in Section 2.1.
"Purchase Agreement" has the meaning ascribed thereto in the second
paragraph hereof.
"Purchase Date" means December 29, 2005 unless such date shall be
accelerated at any time to a specified earlier date by the Board of
Directors of Wendy's if at such time there are less than 10,000
Newco Exchangeable Shares outstanding other than Newco Exchangeable
Shares held by Wendy's and its subsidiaries (as such number of
shares may be adjusted from time to time to give effect to any
subdivision or consolidation of or stock dividend on the Newco
Exchangeable Shares, any issue or distribution of rights to acquire
Newco Exchangeable Shares or securities exchangeable for or
convertible into Newco Exchangeable Shares, any issue or
distribution of other securities or rights or evidences of
indebtedness or assets, or any other capital reorganization or
other transaction affecting the Newco Exchangeable Shares), in each
case upon at least 30 days' prior written notice by Wendy's of any
such extension or acceleration, as the case may be, to Seller, in
which case the Purchase Date shall be such later or earlier date.
Notwithstanding the foregoing, if any of the following events
occurs: (i) Wendy's merges with or into any other entity, other
than a wholly owned subsidiary of Wendy's, (ii) all or
substantially all of the Wendy's Common Shares or the assets of
Wendy's are sold, (iii) the bankruptcy of Seller, whether voluntary
or involuntary, or (iv) the death of Seller, then the Purchase Date
shall be accelerated to the following dates, if such dates are
earlier than the tenth anniversary hereof: in the case of (i) or
(ii), the effective date of the merger or sale, in the case of
(iii) 30 days after the Seller has been declared bankrupt and, in
the case of (iv), the date which is 120 days after the date of
Seller's death, as the case may be.
"Purchase Price" has the meaning given thereto in Section 2.1.
"Purchase Price Depositary" has the meaning given thereto in
Section 2.2.2.
"Retracted Shares" has the meaning given thereto in Section 1.3.
"Retraction Call Price" has the meaning given thereto in Section
4.1.
"Retraction Call Price Depositary" has the meaning given thereto in
Section 4.3.
"Retraction Call Right" has the meaning given thereto in Section
4.1.
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"Retraction Date" has the meaning given thereto in Section 4.1.
"Retraction Request" has the meaning given thereto in the Articles
of Incorporation of Newco.
"Retraction Right" has the meaning given thereto in section 4.1.
"Seller" has the meaning given thereto in the first paragraph
hereof.
"Share Exchange" means, with respect to any Newco Exchangeable
Share, the acquisition by Wendy's hereunder of such Newco
Exchangeable Share, whether pursuant to exercise (i) by Seller of
the Exchange Right, the Automatic Exchange, the Purchase or (ii) by
Wendy's of the Liquidation Call Right or the Retraction Call Right.
"Specified Number" has the meaning given thereto in the Articles of
Incorporation of Newco.
"Subsidiary" means any corporation, association, or other business
entity a majority (by number of votes on the election of directors)
of the shares of capital stock (or other voting interests) of which
is owned, directly or indirectly, by Wendy's.
"Subscription Agreement" means the Subscription Agreement, dated as
of the date hereof, between Wendy's and the Irrevocable Trust for
the Benefit of Xxxxxx X. Xxxxx.
"Support Agreement" has the meaning given thereto in the Purchase
Agreement.
"Taxes" means any taxes that Wendy's may be required to pay on
behalf of, or withhold from, any person pursuant to the Income Tax
Act (Canada) or any successor thereto or pursuant to any applicable
provincial tax legislation.
"U.S. Taxes" means any U.S. dividend withholding taxes that Wendy's
believes may be required to be withheld.
"Transaction Documents" means this Agreement, Newco's Articles of
Incorporation, the Support Agreement, the Subscription Agreement,
the Trust Agreement, the Escrow Agreement and the Guaranty.
"Trust Agreement" has the meaning given thereto in the Purchase
Agreement.
"Wendy's" has the meaning given thereto in the first paragraph
hereof.
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"Wendy's Common Shares" has the meaning given thereto in the third
paragraph hereof.
"Wendy's Liquidation Amount" has the meaning given thereto in
Section 1.2.2.
"Wendy's Liquidation Amount Depositary" has the meaning given
thereto in Section 1.2.3.
"Wendy's Liquidation Event" has the meaning given thereto in
Section 1.2.2.
"Wendy's Successor" has the meaning given thereto in Section 6.2.
8.2. AMENDMENTS, MODIFICATIONS, ETC. This Agreement may not be amended,
modified or supplemented by the parties hereto in any manner, except by an
instrument in writing signed by duly authorized officers or representatives of
Wendy's and Newco and by Seller.
8.3. CHANGES IN CAPITAL OF WENDY'S AND NEWCO. At all times after the
occurrence of any event effected pursuant to Section 2.6 of the Support
Agreement or Article 11 of Newco's Articles of Incorporation, as a result of
which either the Wendy's Common Shares or the Newco Exchangeable Shares or both
are in any way changed, this Agreement shall forthwith be amended and modified
as necessary in order that it shall apply with full force and effect, mutatis
mutandis, to all new securities into which the Wendy's Common Shares or the
Newco Exchangeable Shares or both are so changed and the parties hereto shall
execute, in accordance with Section 8.2, such amendments, modifications and
supplement to this Agreement as are necessary to effect such changes.
8.4. NO WAIVER. The failure of any party hereto to enforce at any time
any of the provisions of this Agreement shall in no way be construed to be a
waiver of any such provision, nor in any way to affect the validity of this
Agreement or any party hereof or the right of such party thereafter to enforce
each and every such provision. No waiver of any breach of or non-compliance
with this Agreement shall be held to be a waiver of any other or subsequent
breach or non-compliance.
8.5. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of Ontario (and the laws of Canada
applicable therein), without regard to their respective conflict of law rules.
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8.6. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered in person or sent by facsimile or
via a reputable international overnight courier service to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice), and shall be deemed given on the date on which delivered by
hand or otherwise on the date of receipt:
If to Wendy's or Newco:
Wendy's International, Inc.
X.X. Xxx 000
0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
With a copy to:
Lang Xxxxxxxx
XXX Xxxxx, Xxxxx 0000
X.X. Xxx 000
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile Number: (000) 000-0000
and
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile Number: (000) 000-0000
If to the Seller:
Xx. Xxxxxx X. Xxxxx
00 Xxxx Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Facsimile Number: (000) 000-0000
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With a copy to:
Tory Xxxx XxxXxxxxxxx & Binnington
Suite 3000 Aetna Tower
X.X. Xxx 000
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn.: Xxxxxx Xxxxxxx, Esq., Q.C.
Facsimile Number: (000) 000-0000
8.7. CONSTRUCTION OF AGREEMENT. A reference to an Article or Section
shall mean an Article of or a Section in this Agreement unless otherwise
expressly stated. The titles and headings herein are for reference purposes only
and shall not in any manner limit the construction of this Agreement which shall
be considered as a whole. The words "include," "includes" and "including" when
used herein shall be deemed in each case to be followed by the words, "without
limitation."
8.8. ENTIRE AGREEMENT. This Agreement (a) constitutes the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral between the parties with respect to the subject matter hereof,
and (b) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder, except as otherwise expressly provided herein.
8.9. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity of any other provision of this
Agreement, each of which shall remain in full force and effect.
8.10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
WENDY'S INTERNATIONAL, INC.
By:/s/ Xxxxxx X. Xxxxx
--------------------------
Title: President,
Chief Executive Officer and
Chief Operating Officer
1149658 ONTARIO INC.
By:/s/ Xxxxxx X. Xxxxx
--------------------------
Title: Chairman of the Board and
President
/s/ Xxxxxx Xxxxx /s/ Xxxxxx X. Xxxxx
----------------------------- --------------------------
Witness to the signature of XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
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Exhibit A
EXERCISE NOTICE
TO WENDY'S INTERNATIONAL, INC.
Reference is made to a certain Share Exchange Agreement, dated as
of December 29, 1995 (the "Share Exchange Agreement"), by and among Wendy's
International, Inc., an Ohio corporation ("Wendy's"), [Wendy's Canadian Sub], an
Ontario Corporation and a subsidiary of Wendy's ("Newco"), and Xxxxxx X. Xxxxx
("Seller"). Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed thereto in the Share Exchange Agreement.
Seller hereby notifies Wendy's, pursuant to Section 1.1.2 of the
Share Exchange Agreement, of his election to exercise Seller's Exchange Right in
respect of _____________ Newco Exchangeable Shares (the "Shares").
Seller represents, warrants and agrees that:
(a) Seller has delivered herewith (or, in the case of Newco
Exchangeable Shares held in escrow pursuant to the Escrow
Agreement, caused the Escrow Agent to deliver to Wendy's)
the certificate(s) representing the Shares together with one
or more stock transfer powers endorsed in blank by Seller;
(b) Seller has good title to and beneficially owns the Shares
free and clear of all liens, claims and encumbrances (other
than the escrow requirements imposed by the Escrow
Agreement);
(c) Seller is not a "U.S. person" (as such term is defined under
Rule 902 of Regulation S of the U.S. Securities Act of 1933,
as amended (the "Securities Act")) and the Shares are not
being exchanged on behalf of a "U.S. person";
(d) Seller agrees that the Wendy's Common Shares that Seller
will receive in exchange for the Shares may be resold only
in accordance with the provisions of the Securities Act,
pursuant to registration under the Securities Act, or
pursuant to an available exemption from registration; and
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(e) Seller is not a non-resident of Canada within the meaning of
the Income Tax Act (Canada).
The certificate or certificates representing the Wendy's Common
Shares issuable in exchange for the Shares are to be registered in the name of
Seller as set forth below and (subject to the provisions of the Share Exchange
Agreement) should be delivered to Seller at the following address, except that
any such Wendy's Common Shares that are required to remain in escrow pursuant to
the Escrow Agreement shall be delivered to the Escrow Agent.
Name and Address for delivery, if different than address specified
in the Share Exchange Agreement:
--------------------------------------------
--------------------------------------------
--------------------------------------------
Seller:
-------------------------
Xxxxxx X. Xxxxx
Date:
---------------
