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WENDY'S INTERNATIONAL, INC AND SUBSIDIARIES
EXHIBIT 2
AGREEMENT
This Agreement is made this 16th day of September, 1998, by and between
Xxxxxx Xxxxxxx Xxxxx ("Transferor"), WENTIM, LTD., an Ontario corporation,
having its principal office at 000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx X0X 0X0,
Xxxxxx ("Wentim"), Wendy's International, Inc., an Ohio corporation having its
principal office at 0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxx, Xxxx 00000
("Wendy's"), and the Irrevocable Trust for the Benefit of Xxxxxx X. Xxxxx
established under agreement dated as of December 29, 1995 ("Trust").
WHEREAS, The Huntington Trust Company, N.A., was merged with and into
The Huntington National Bank on July 1, 1997, and, The Huntington National Bank,
as the successor by merger, is the trustee of the Trust; and
WHEREAS, Transferor currently holds 16,450,000 exchangeable shares of
Wentim, which is the successor by amalgamation to 1149658 Ontario, Inc. and
632687 Alberta Ltd.; and
WHEREAS, Wendy's, Transferor, 1149658 Ontario Inc. and 000000 Xxxxxxx
Ltd. entered into a Share Purchase Agreement dated October 31, 1995, at which
time the parties had not contemplated a sale of exchangeable shares for cash;
and
WHEREAS, Wendy's, Transferor and 1149658 Ontario Inc. entered into a
Share Exchange Agreement dated as of December 29, 1995, at which time the
parties had not contemplated a sale of exchangeable shares for cash; and
WHEREAS, Transferor and Trust entered into a Guaranty Agreement dated as
of December 29, 1995, at which time the parties had not contemplated a sale of
exchangeable shares for cash; and
WHEREAS, Trust and Wendy's entered into a Subscription Agreement dated
as of December 29, 1995, at which time the parties had not contemplated a sale
of exchangeable shares for cash; and
WHEREAS, Transferor has initiated this transaction to sell 1,000,000 of
his exchangeable shares of Wentim for cash; and
WHEREAS, Wendy's desires to purchase, or to have one of its wholly owned
direct or indirect subsidiaries as Wendy's shall designate purchase (Wendy's or
such purchasing subsidiary "Transferee"), such shares from Transferor on the
terms and subject to the conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION ONE. SALE OF STOCK. Transferor hereby sells and Transferee
hereby buys or causes to be bought 1,000,000 exchangeable shares of Wentim
effective on the date of this Agreement (the "transaction date"). On the
settlement date, as hereafter fixed, Transferor shall deliver such exchangeable
shares to Transferee and Transferee shall pay or cause to be paid to Transferor
the purchase price as defined herein. The purchase price per exchangeable share
shall be the Canadian dollar equivalent of the closing price of a common share
of Wendy's on the transaction date as published in the Wall Street Journal,
Midwest Edition, reduced by three-quarters of one percent (0.75%), provided,
however, that the purchase price shall not exceed the average of the closing
prices of a common share of Wendy's as published in the Wall Street Journal,
Midwest Edition, on the twenty trading days immediately preceding the
transaction date. The Canadian dollar equivalent shall be determined using the
conversion rate which applied to Canadian dollars purchased by Wendy's on the
business day before the settlement date in accordance with Wendy's normal cash
management practices. Notwithstanding the foregoing, the Transferor may
unilaterally elect in writing to the Transferee, which writing must be received
no later than 4:00 p.m. Eastern Daylight Savings Time two business
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days prior to the settlement date, to receive the purchase price in United
States dollars rather than the Canadian equivalent thereof. The parties hereby
agree that the purchase price is the fair market value of the applicable
exchangeable shares of Wentim.
SECTION TWO. SETTLEMENT. Settlement of the sale of the exchangeable
shares shall take place three business days after the transaction date.
Transferor shall deliver a duly endorsed certificate for 1,000,000 exchangeable
shares of Wentim to Wendy's at 0000 Xxxx Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxx, Xxxx
00000 in sufficient time on the settlement date to permit Wendy's to deliver
such shares to the Transferee and to permit Transferee to cause the purchase
price to be transferred by wire to the account designated by the Transferor in
writing. For purposes of this Agreement, a business day shall be each day on
which American Stock Transfer and Trust Company is open for business.
SECTION THREE. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRANSFEROR.
Transferor hereby represents and warrants that he is the sole record and
beneficial owner and holder of the exchangeable shares of Wentim being sold
pursuant to this Agreement and covenants that he has not, and as of the
settlement date will not have, pledged, transferred, sold or otherwise
hypothecated any interest in such exchangeable shares which are being sold
pursuant to this Agreement. The Transferor delivers herewith a Certificate in
the form of Schedule A which will survive settlement.
SECTION FOUR. AMENDMENT TO THE SHARE PURCHASE AGREEMENT. Pursuant to
Section 8.5 of the Share Purchase Agreement and effective concurrently with the
execution of this Agreement, Section 4.3(b) of the Share Purchase Agreement
shall be amended to read as follows:
Seller agrees that Seller will not sell, dispose of, mortgage, pledge,
charge, grant a security interest in, or otherwise transfer the
Exchangeable Shares or any part thereof, except for an exchange of such
Exchangeable Shares for Wendy's Common Shares pursuant to Newco's
Articles of Incorporation or the Share Exchange Agreement and except for
a transfer to Wendy's (or to a wholly owned direct or indirect
subsidiary of Wendy's designated by Wendy's) or a transfer to the
Trustee under the Guaranty and the Trust Agreement.
SECTION FIVE. AMENDMENT TO THE SHARE EXCHANGE AGREEMENT. Pursuant to
Section 8.2 of the Share Exchange Agreement and effective concurrently with the
execution of this Agreement, Section 6.3 of the Share Exchange Agreement shall
be amended to read as follows:
TRANSFER BY SELLER. Seller shall not transfer (other than to Wendy's, a
wholly owned direct or indirect subsidiary of Wendy's designated by
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.
SECTION SIX. AMENDMENT TO THE GUARANTY AGREEMENT. Pursuant to Section
7 of the Guaranty Agreement and effective concurrently with the execution of
this Agreement, Section 2 of the Guaranty Agreement shall be amended to read as
follows:
In addition to any other restrictions that may apply from time to time
to the Newco Exchangeable Shares and Wendy's Common Shares, SHAREHOLDER
may transfer (other than to ISSUER) all or any portion of SHAREHOLDER's
Newco Exchangeable Shares and Wendy's Common Shares only in accordance
with Section 4.3 of the Purchase Agreement and Sections 5.6 and 6.3 of
the Share Exchange Agreement, as amended.
SECTION SEVEN. AMENDMENT TO THE SUBSCRIPTION AGREEMENT. Effective
concurrently with the execution of this Agreement, Section 1(A) of the
Subscription Agreement shall be amended by adding the following:
and (iv) the number equal to the Specified Number (as of the date of
such purchase or transfer) multiplied by the number of Newco
Exchangeable Shares purchased by Wendy's (or its designated wholly owned
direct or indirect subsidiary) or transferred to Wendy's (or its
designated wholly owned direct or indirect subsidiary).
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SECTION EIGHT. SETTLEMENT PROCESS TO OBLIGATIONS OF ACQUIRING
CORPORATION. The obligations of Transferee is subject only to the delivery by
Transferor of one or more certificates representing all of the exchangeable
shares of Wentim which are being sold, duly endorsed for transfer.
SECTION NINE. NOTICES. All notices required or permitted to be given
under this Agreement shall be deemed duly given when delivered personally or by
telefax or sent by registered or certified mail, postage prepaid, properly
addressed to the party to receive such notice, at the addresses specified above.
SECTION TEN. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties; there are no agreements, covenants, warranties,
or representations, express or implied, except those expressly set forth in this
Agreement. All agreements, covenants, representations, and warranties contained
in this Agreement shall apply as of the transaction date and shall survive the
settlement of this Agreement.
SECTION ELEVEN. MODIFICATION. This Agreement may not be amended or
modified, except by written agreement of the parties.
SECTION TWELVE. BINDING EFFECT. This Agreement shall bind and inure to
the benefit of the parties and their heirs, legal representatives, successors,
and assigns.
SECTION THIRTEEN. GOVERNING LAW. This Agreement shall be construed
under and governed by the laws of the State of Ohio.
SECTION FOURTEEN. COUNTERPARTS. This Agreement may be executed in one
or more counterparts each of which shall be deemed to be a duplicate original,
but all of which, taken together, shall be deemed to constitute a single
instrument.
SECTION FIFTEEN. FURTHER ASSURANCES. The parties will take, or cause to
be taken, such further actions which are necessary to complete the transfer of
the exchangeable shares being sold pursuant to this Agreement on the records of
Wentim. Transferor will receive a new certificate for the balance of the
exchangeable shares which will continue to be owned by Transferee after giving
effect to the sale transaction contemplated by this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the
parties or their duly authorized officers on the date first written above.
/s/ Xxx Xxxxxxxxx /s/ Xxxxxx X. Xxxxx
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Witness to the signature of Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx Xxxxx
WENTIM, LTD.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman of the Board
Title: Chief Executive Officer
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WENDY'S INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman of the Board
Title: CEO and President
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The Huntington National Bank, successor by merger to The Huntington Trust
Company, N.A., as trustee of the Irrevocable Trust for the Benefit of Xxxxxx X.
Xxxxx, hereby executes this Agreement for the purpose of agreeing in writing to
the amendments to the Guaranty Agreement and Subscription Agreement as herein
set forth.
THE IRREVOCABLE TRUST FOR THE BENEFIT
OF XXXXXX X. XXXXX
The Huntington National Bank,
successor by merger to
The Huntington Trust Company, N.A.,
Trustee
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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Schedule A
CERTIFICATE
Xxxxxx Xxxxxxx Xxxxx ("Transferor") hereby represents and warrants that
he is the sole record and beneficial owner and holder of the exchangeable shares
of Wentim being sold pursuant to the Agreement dated September 16, 1998
("Agreement"), and that he has not pledged, transferred, sold or otherwise
hypothecated any interest in such exchangeable shares which are being sold
pursuant to this Agreement.
Transferor hereby further represents, warrants and covenants that, as of
September 21, 1998, he will be the sole record and beneficial owner and holder
of the exchangeable shares of Wentim being sold pursuant to the Agreement and
that he will not have pledged, transferred, sold or otherwise hypothecated any
interest in such exchangeable shares which are being sold pursuant to this
Agreement.
/s/ Xxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx Xxxxx
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Witness to the signature of Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx Xxxxx
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