AMENDMENT NO. 2 TO AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 2 TO AMENDED AND RESTATED RIGHTS AGREEMENT
This AMENDMENT NO. 2 (this “Amendment”) to the Amended and Restated Rights Agreement, dated as
of December 8, 1997, between Wendy’s International, Inc., an Ohio corporation (the “Company”), and
American Stock Transfer and Trust Company, as rights agent (the “Rights Agent”), as amended by
Amendment No. 1 to Amended and Restated Rights Agreement, dated as of January 26, 2001 (as so
amended, the “Rights Agreement”), is by and between the Company and the Rights Agent and is entered
into as of April 23, 2008. Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Rights Agreement.
WHEREAS, Section 27 of the Rights Agreement permits the Company to amend the Rights Agreement
in the manner provided therein at any time prior to the Distribution Date, and there has not been a
Distribution Date.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
Section 1. Amendments to Rights Agreement. The Rights Agreement is hereby amended as follows:
(a) The definition of “Acquiring Person” set forth in Section 1(a) of the Rights Agreement is
hereby amended to add the following sentence at the end thereof:
“In addition, and notwithstanding anything in this Rights Agreement that might
otherwise be deemed to the contrary, none of Triarc, Merger Sub, any party to a Voting
Agreement, any Person who as of the date hereof has filed a joint Schedule 13D with Triarc
with respect to the Company, or any of the respective Affiliates or Associates of any of the
foregoing, either individually or in any combination, shall be or become an Acquiring Person
solely by virtue of one or more of the following: (i) the public or other announcement or
disclosure of the Merger (as such term is defined in the Merger Agreement), the Merger
Agreement or any of the transactions contemplated by the Merger Agreement, including,
without limitation, the Voting Agreements, (ii) the execution, delivery or performance of
the Merger Agreement or the Voting Agreements or (iii) the consummation of the Merger or any
of the other transactions contemplated by the Merger Agreement (each such event described in
clauses (i), (ii) and (iii), an “Exempt Event”).”
(b) The following definitions are hereby added to Section 1 of the Rights Agreement:
“(o) “Effective Time” shall have the meaning set forth in the Merger Agreement.”
“(p) “Merger Agreement” shall mean that certain Agreement and Plan of Merger, dated as
of the date hereof, by and among the Company, Triarc and Merger Sub, as such agreement
may be amended from time to time.”
“(q) “Merger Sub” shall mean Green Merger Sub, Inc., an Ohio corporation.”
“(r) “Triarc” shall mean Triarc Companies, Inc., a Delaware corporation.”
“(s) “Voting Agreements” shall mean that certain Voting Agreement, dated as of the date
hereof, by and among the Company and the parties listed on Annex I thereto, and that
certain Voting Agreement, dated as of the date hereof, by and among Triarc and the
parties listed on Annex I thereto.”
(c) Section 1(j) of the Rights Agreement is hereby amended by adding the following sentence at
the end thereof:
“Notwithstanding anything in this Rights Agreement that might otherwise be deemed to
the contrary, a Stock Acquisition Date shall not be deemed to have occurred solely as a
result of an Exempt Event.”
(d) Section 1(l) of the Rights Agreement is hereby amended by adding the following sentence at
the end thereof:
“Notwithstanding anything in the Rights Agreement that might otherwise be deemed to the
contrary, in no event shall an Exempt Event constitute a Transaction.”
(e) Section 3(a) of the Rights Agreement is amended to add the following sentence at the end
thereof:
“Notwithstanding anything in this Rights Agreement that might otherwise be deemed to
the contrary, a Distribution Date shall not be deemed to have occurred solely as the result
of an Exempt Event.”
(f) The first sentence of Section 7(a) of the Rights Agreement is hereby deleted in its
entirety and replaced with the following:
”(a) The registered holder of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein) in whole or in part at any time after the
Distribution Date upon presentation of the Rights Certificate, with the appropriate form of
election to purchase on the reverse side thereof duly executed, to the Rights Agent at the
principal office of the Rights Agent, together with payment of the Purchase Price for each
one ten-thousandth of a share of Preferred Stock (or such other number of shares or other
securities) as to which the Rights are exercised, at or prior to the earliest of (i) the
close of business on August 10, 2008 (the “Final Expiration Date”), (ii) the time at which
the Rights are redeemed, as provided in Section 24 hereof, or (iii) immediately prior to the
Effective Time (such earliest time being herein referred to as the “Expiration Date”).”
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(g) Section 11(a)(ii) of the Rights Agreement is hereby amended by adding the following
sentence at the end thereof:
“Notwithstanding anything in the Rights Agreement that might otherwise be deemed to the
contrary, in no event shall an Exempt Event cause an adjustment to the Rights pursuant to
this Section 11(a)(ii).”
(h) The first sentence of Section 13(a) of the Rights Agreement is hereby amended by deleting
the word “mortgage” in both instances in which such word appears in clause (z) of such sentence.
Section 2. Certification. This Section 2 shall constitute a certificate from an appropriate
officer of the Company for purposes of Section 27 of the Rights Agreement, and the Company and the
officer of the Company signing this Amendment below, on behalf of the Company, (i) hereby certify
that to their knowledge this Amendment is in compliance with the terms of Section 27 of the Rights
Agreement and (ii) request and direct that the Rights Agent execute and deliver this Amendment, in
accordance with Section 27.
Section 3. Full Force and Effect. Except as expressly amended hereby, the Rights Agreement shall
continue in full force and effect unamended and in accordance with the provisions thereof on the
date hereof.
Section 4. Governing Law. This Amendment shall be governed by and construed in accordance with the
laws of the State of Ohio applicable to contracts to be made and performed entirely within such
State.
Section 5. Severability. If any term, provision, covenant or restriction of this Amendment is held
by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 6. Counterparts. This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused this Amendment to be duly
executed as of the day and year first above written.
| COMPANY: | ||||||
| WENDY’S INTERNATIONAL, INC. | ||||||
| By: | /s/ Xxxx X. XxXxxxxx, Xx. | |||||
| Title: EVP, GC | ||||||
| RIGHTS AGENT: | ||||||
| AMERICAN STOCK TRANSFER AND TRUST COMPANY | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx
|
|||||
| Title: Vice President | ||||||
Signature
Page to Amendment No. 2 to Amended and Restated Rights Agreement
