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Exhibit 8
GUARANTY AGREEMENT
This Guaranty Agreement (this "Guaranty"), made to be
effective as of December 29, 1995, by and between the Irrevocable Trust for the
Benefit of Xxxxxx X. Xxxxx, an Ohio Trust (the "TRUST") and Xxxxxx X. Xxxxx (the
"SHAREHOLDER").
WITNESSETH:
WHEREAS, pursuant to a Share Purchase Agreement, dated as of
October 31, 1995, as amended, among Wendy's International, Inc., an Ohio
corporation ("ISSUER"), 1149658 Ontario Inc., an Ontario corporation and a
subsidiary of ISSUER, 632687 Alberta Ltd., an Alberta corporation, continued as
1052106 Ontario Limited, an Ontario corporation (the "Company"), and the
SHAREHOLDER (the "Purchase Agreement"), the parties thereto have agreed, subject
to the terms and conditions set forth therein, that 1149658 Ontario Inc. shall
acquire from the SHAREHOLDER all of the issued and outstanding shares of the
Company and SHAREHOLDER shall receive 16,450,000 Non-Voting Exchangeable Shares
of 1149658 Ontario Inc. (such shares, and shares of any successor corporation
having terms substantially equivalent to those of the Non-Voting Exchangeable
Shares of 1149658 Ontario Inc., being referred to herein as the "Newco
Exchangeable Shares" and such entities being referred to herein as "NEWCO")
which initially shall be exchangeable for 16,450,000 of the common shares,
without par value, of the ISSUER (the "Wendy's Common Shares");
WHEREAS, pursuant to NEWCO's Articles of Incorporation
("NEWCO's Articles") and the Share Exchange Agreement, dated as of the date
hereof (the "Share Exchange Agreement"), among ISSUER, NEWCO and the
SHAREHOLDER, the Newco Exchangeable Shares held by the SHAREHOLDER may be
exchanged from time to time for Wendy's Common Shares and the number of Wendy's
Common Shares for which each of the SHAREHOLDER's Newco Exchangeable Shares may
be exchanged from time to time (the "Specified Number") may be adjusted in
certain circumstances set forth in NEWCO's Articles;
WHEREAS, ISSUER desires to give the SHAREHOLDER rights equal
to those of a holder of the aggregate number of Wendy's Common Shares for which
the Newco Exchangeable Shares held by the SHAREHOLDER may be exchanged from time
to time except the right to receive dividends and the right to receive any
amount in the event of the liquidation, dissolution or winding up of ISSUER;
WHEREAS, for such purpose, on the date hereof, the TRUST and
ISSUER have entered into a Subscription Agreement (the "Subscription Agreement")
pursuant to which the TRUST has subscribed for and purchased from ISSUER, and
ISSUER has sold and agreed to issue to the TRUST, 16,450,000 Wendy's Common
Shares (the "SUBSCRIBED SHARES");
WHEREAS, the Subscription Agreement provides that the purchase
price for any SUBSCRIBED SHARES shall be payable only by the TRUST's conveyance
to ISSUER of such number of Newco Exchangeable Shares as is equal to such number
of SUBSCRIBED SHARES divided by the Specified Number as of such date and that
unless the Subscription Agreement is
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earlier terminated, the TRUST is obligated to make payment of the full purchase
price under the Subscription Agreement before 5:00 p.m., Columbus, Ohio, time,
on January 8, 2006;
WHEREAS, the Subscription Agreement provides that the TRUST
agrees to take all action consistent with the Subscription Agreement, this
Guaranty and applicable laws that is necessary, desirable or appropriate to
acquire the Newco Exchangeable Shares in order to satisfy its obligations under
paragraph (2) of the Subscription Agreement; and
WHEREAS, the SHAREHOLDER acknowledges that the ability of the
TRUST to fulfill its obligations under the Subscription Agreement is dependent
upon the SHAREHOLDER delivering Newco Exchangeable Shares to the TRUST as
required by the Subscription Agreement, and the SHAREHOLDER and the TRUST wish
to memorialize the SHAREHOLDER's agreement to take all actions that are
necessary, desirable or appropriate to enable the TRUST to make full and timely
payment of the purchase price for the SUBSCRIBED SHARES.
NOW THEREFORE, in consideration of the premises contained
herein and for the purpose of inducing ISSUER to enter into the Purchase
Agreement, the Share Exchange Agreement, the Subscription Agreement and the
transactions related thereto, the SHAREHOLDER and the TRUST agree as follows:
(1) Unless the Subscription Agreement is earlier terminated in
accordance with the provisions of paragraph (8)(a) or (b) of the Subscription
Agreement, the SHAREHOLDER unconditionally and absolutely guarantees to deliver
to the TRUST at the principal office of the Trustee the requisite number of
Newco Exchangeable Shares, as such number may be adjusted from time to time in
accordance with the Subscription Agreement, in order to enable the TRUST to pay
the full purchase price for all of the SUBSCRIBED SHARES subject to the
Subscription Agreement at such time, such delivery to be made on the earlier of
(A) the date on which the TRUST shall make payment for the SUBSCRIBED SHARES
pursuant to the instruction given to the TRUST by the SHAREHOLDER or his legal
representative under Section 4.9 of the Irrevocable Trust Agreement for the
Benefit of Xxxxxx X. Xxxxx (the "Trust Agreement") and (B) January 8, 2006. The
SHAREHOLDER further unconditionally and absolutely agrees to take any and all
other actions that are necessary, desirable or appropriate to effect full and
timely payment of the purchase price for the SUBSCRIBED SHARES by the TRUST to
ISSUER. The SHAREHOLDER shall effect delivery of the Newco Exchangeable Shares
by delivering to the TRUST certificates evidencing Newco Exchangeable Shares,
free and clear of all liens, duly endorsed for transfer to ISSUER (the
"Delivery"). If the SHAREHOLDER or his legal representative directs that the
certificate(s) representing Wendy's Common Shares be issued in the SHAREHOLDER'S
name as provided in the Trust Agreement, the TRUST shall give such direction in
writing to ISSUER. If any Newco Exchangeable Shares delivered to the TRUST
hereunder shall have been deposited with the Escrow Agent under the Escrow
Agreement, dated as of the date hereof, among Shareholder, the ISSUER and The
Trust Company of Bank of Montreal, as Escrow Agent, immediately prior to such
delivery, the TRUST shall direct the ISSUER to cause the SUBSCRIBED SHARES to be
issued for such Newco Exchangeable
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Shares to be issued in the name of the SHAREHOLDER and to be delivered to the
Escrow Agent in accordance with the terms of the Escrow Agreement.
(2) 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 Section 5.6 of the
Share Exchange Agreement.
(3) As of the date hereof, the SHAREHOLDER owns, and at the
Delivery shall own, all of the Newco Exchangeable Shares to be delivered to the
TRUST for transfer by it to ISSUER, free and clear of all mortgages, liens,
pledges, security interests, charges, claims, restrictions and other
encumbrances and defects of title of any kind or of any nature whatsoever,
except as provided in the Escrow Agreement.
(4) The representations, warranties, covenants and agreements
contained in this Guaranty are for the benefit of, and shall be binding upon,
the parties hereto and their heirs, executors, administrators, legal
representatives, successors and assigns, and they shall not be construed as
conferring any rights on any other persons, except that ISSUER shall be a third
party beneficiary of this Guaranty and shall have the unilateral right to
enforce directly against the SHAREHOLDER any and all of the representations,
warranties, covenants and agreements contained in this Guaranty. The parties
hereto agree that damages from any breach of or non-compliance with this
Guaranty would not be capable of being determined or measured and that the
parties hereto and ISSUER shall be entitled to the remedy of specific
performance upon any such breach of or non-compliance with this Guaranty.
(5) SHAREHOLDER agrees to indemnify and hold harmless the
trustee of the TRUST (the "TRUSTEE") and each of its directors, officers and
agents appointed and acting in accordance with the agreement creating the TRUST
(the "Trust Agreement") (collectively, the "Indemnified Parties") against all
claims, liabilities, losses, damages, costs, penalties, fines and reasonable
expenses, including reasonable legal expenses (collectively, "Damages") which,
without fraud, negligence, wilful misconduct or bad faith on the part of such
Indemnified Party, may be paid, incurred or suffered by the Indemnified Party as
a result of the TRUSTEE's compliance with its duties set forth in the Trust
Agreement and this Guaranty. In no case shall SHAREHOLDER be liable under this
indemnity for any claim against any of the Indemnified Parties unless
SHAREHOLDER shall be notified by the TRUSTEE of the written assertion of a claim
or of any action commenced against the Indemnified Parties, as soon as
practicable after any of the Indemnified Parties shall have received any such
written assertion of a claim or shall have been served with a summons or other
first legal process giving information as to the nature and basis of the claim.
Subject to clause (ii) below, SHAREHOLDER shall be entitled to participate at
his own expense in the defense and, if SHAREHOLDER so elects at any time after
receipt of such notice, he may assume the defense of any suit brought to enforce
any such claim. The TRUSTEE shall have the right to employ separate counsel in
any such suit and participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of the TRUSTEE unless: (i) the
employment of such counsel has been authorized by SHAREHOLDER;
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or (ii) the counsel retained by SHAREHOLDER would be inappropriate due to actual
or potential difference in interests between the TRUSTEE and any other party
represented by such counsel retained by SHAREHOLDER in such a proceeding (in
which case SHAREHOLDER shall not have the right to assume the defense of such
suit on behalf of the TRUSTEE but shall be liable to pay the reasonable fees and
expenses of counsel for the TRUSTEE). This provision shall survive the
resignation or removal of the TRUSTEE or the termination of the Trust Agreement
or this Guaranty.
(6) SHAREHOLDER agrees to pay the TRUSTEE's fees in such
amounts as may be agreed from time to time, together with the TRUSTEE's expenses
and disbursements.
(7) This Guaranty may not be amended, modified or supplemented
by the parties hereto in any manner, except by an instrument in writing signed
by a duly authorized representative of the TRUST and by the SHAREHOLDER, and
only if ISSUER grants its written consent to any such amendment, modification or
supplement (which consent may be arbitrarily refused).
(8) The failure of the TRUST, the SHAREHOLDER or ISSUER to
enforce at any time any of the provisions of this Guaranty shall in no way be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Guaranty or the right of the TRUST, the SHAREHOLDER or ISSUER
thereafter to enforce each and every such provision. No waiver of any breach of
or non-compliance with this Guaranty shall be held to be a waiver of any other
or subsequent breach or non-compliance.
(9) The invalidity or unenforceability of any provision of
this Guaranty shall not effect the validity of any other provision of this
Guaranty, each of which shall remain in full force and effect.
(10) This Guaranty may be executed in counterparts, all of
which together shall constitute one and the same agreement.
(11) This Guaranty shall be construed in accordance with and
governed in all respects by the laws of the State of Ohio without giving effect
to conflict of law principles.
(12) This Guaranty may not be assigned by either party.
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IN WITNESS WHEREOF, the parties have duly executed this
Guaranty as of the date first above written.
THE IRREVOCABLE TRUST FOR THE
BENEFIT OF XXXXXX X. XXXXX
The Huntington Trust Company, N.A.,
Trustee
By: /s/ Candada X. Xxxxx
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Title: Vice President
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/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
/s/ Xxxxxx Xxxxx
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Witness to the signature of
Xxxxxx X. Xxxxx
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