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Exhibit 2(o)
REGISTRATION RIGHTS AGREEMENT
AMENDING AGREEMENT NO. 1
THIS IS AN AMENDING AGREEMENT made as of February 25, 1999 by
and among WENDY'S INTERNATIONAL, INC., an Ohio corporation ("Wendy's") and
XXXXXX X. XXXXX ("Shareholder").
WHEREAS:
A. Wendy's and Shareholder entered into a Registration Rights Agreement
dated as of December 29, 1995 (the "Registration Rights Agreement"); and
B. Shareholder wishes to pledge Newco Exchangeable Shares to Canadian
Imperial Bank of Commerce, a bank chartered under the laws of Canada ("CIBC") as
security for loans which may be made from time to time by CIBC 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 Registration Rights Agreement
and this Agreement and the Registration Rights 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 Registration Rights
Agreement by this Agreement had been contained in the Registration Rights
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;
(b) all other capitalized terms have the respective meanings given
to them in the Registration Rights Agreement as amended by
Article 2 of this Agreement; and
(c) "Bank" means a bank chartered under the laws of Canada to
which an assignment has been properly made under Section
9.6(2) of the Registration Rights Agreement.
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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 Registration
Rights Agreement.
ARTICLE II
AMENDMENTS
2.1 The definition of Registrable Securities is amended to read as follows:
Any Wendy's Common Shares (or any shares of capital stock issued in
exchange therefor or reclassification thereof) issued to Shareholder
(or a permitted assignee under Section 9.6(2) of this Agreement)
pursuant to the Ancillary Agreements, except that particular
Registrable Securities shall cease to be Registrable Securities if and
at such time as (i) a registration statement with respect to the sale
of such securities shall have been declared effective under the 1933
Act and such securities shall have been disposed of in accordance with
such registration statement or (ii) such securities shall have been
sold or otherwise transferred in a privately negotiated transaction,
pursuant to Rule 144 under the 1933 Act, or otherwise, to a party other
than Xxxxxx X. Xxxxx or his legal representatives.
2.2 Section 9.1 of the Registrations Rights Agreement is amended to read
as follows:
9.1 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 Shareholder. In addition, so long as
Newco Exchangeable Shares or any Wendy's Common Shares are pledged by
Shareholder to a Bank any amendment, modification of, or supplement to
this Agreement in any manner requires an instrument in writing signed
by duly authorized officers or representatives of any such Bank.
2.3 Section 9.4 of the Registrations Rights Agreement is amended to add
notice to CIBC (so long as Newco Exchangeable Shares or Wendy's Common Shares
have been pledged and continue to be pledged by Shareholder to CIBC) as follows:
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If to CIBC:
Canadian Imperial Bank of Commerce
Main Branch, Commerce Court West
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: X.X. Xxxxxxxx
Senior Financial Adviser
Facsimile: (000) 000-0000
2.4 Section 9.6 of the Registration Rights Agreement shall be renumbered
Section 9.6(1), and Section 9.6(2) shall be added to the Registration Rights
Agreement as follows:
9.6(2) Assignment to a Bank. Notwithstanding Section 9.6(1) Shareholder
shall be entitled to assign its rights together with its obligations,
under this Agreement to a Bank in connection with and to the extent of
Newco Exchangeable Shares from time to time pledged by Shareholder to a
Bank as security for loans made by a Bank to Shareholder and upon such
assignment such Bank shall be entitled to all of the rights of and be
subject to all of the obligations of Shareholder with respect to such
pledged Newco Exchangeable Shares as if such Bank were named in this
Agreement in place of Shareholder. Such Bank shall give notice to
Wendy's of any pledge of Newco Exchangeable Shares along with a copy of
the pledge and such Bank shall agree in writing, as pledgee, to be
bound by the obligations of Shareholder under the Registration Rights
Agreement to the extent that such obligations apply to Newco
Exchangeable Shares pledged by Shareholder to such Bank.
ARTICLE III
GENERAL
3.1 Effective Date and Confirmation. This Agreement and the amendment to
the Registration Rights Agreement contained in this Agreement shall be effective
as of and from the date of this Agreement. The Registration Rights Agreement, as
amended by this Agreement, is confirmed by Wendy's and Shareholder.
3.2 Binding Nature. This Agreement shall enure to the benefit of and be
binding upon each of Wendy's and Shareholder and their respective successors and
permitted assigns.
3.3 Conflicts. If any provision of this Agreement is inconsistent with any
provision of the Registration Rights Agreement the relevant provision of this
Agreement shall prevail.
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3.4 Law of Contract. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to its conflict of
law rules.
3.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
IN WITNESS OF WHICH Wendy's and Shareholder 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
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Secretary
I/We have authority to bind Wendy's
International, Inc.
/s/ Xxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
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WITNESS XXXXXX X. XXXXX
