EXHIBIT 22
STOCK PURCHASE AGREEMENT
AGREEMENT, dated September 12, 2008 by and between TCMG-MA, LLC, a
Delaware limited liability company ("Seller"), Trian Partners, L.P. ("Onshore
Fund") a Delaware limited partnership, Trian Partners Master Fund, L.P., a
Cayman Islands exempted limited partnership ("Offshore Fund" and together with
Onshore Fund, "Buyer"), and Trian Fund Management, L.P., a Delaware limited
partnership (the "Management Company").
Pursuant to an Amended and Restated Investment Management Agreement dated
as of April 30, 2007 (the "Management Agreement"), Seller retained the
Management Company to provide discretionary investment management services with
respect to the Account (as defined in the Management Agreement). Among the
securities that were purchased on behalf of the Seller and are held in the
Account are 251,320 shares of common stock (the "Shares") of Wendy's
International, Inc. ("Wendy's").
Pursuant to an Agreement and Plan of Merger among Triarc Companies, Inc.
("Triarc"), Green Merger Sub, Inc. ("Merger Sub"), and Wendy's dated as of April
23, 2008 (the "Merger Agreement"), shares of common stock of Wendy's that are
owned by Triarc and its subsidiaries, including Seller, are to be cancelled in
exchange for no consideration, without any further action of the holder, upon
the completion of the merger of Merger Sub with and into Wendy's (the "Merger").
The Merger Agreement provides, however, that Seller may sell the Shares prior to
consummation of the Merger to, among others, a fund or account managed by the
Management Company, including the Buyer, provided that the audit committee of
Triarc's Board of Directors (the "Audit Committee") shall have approved such
transaction.
Seller has determined that it is in its best interest to sell the Shares
to Buyer for cash, rather than having such Shares be cancelled for no
consideration which would cause Seller to suffer a reduction in the value of the
Account. The Management Company has determined that it is in the best interest
of Buyer to acquire the Shares as it believes that the consideration to be
received for such Shares in the Merger will provide an attractive long-term
return on such investment.
Accordingly, Seller wishes to sell the Shares and Buyer wishes to purchase
the Shares, both upon the terms and subject to the conditions of this Agreement.
In consideration of the premises and of the mutual covenants, agreements
and conditions set forth herein, the parties hereto hereby agree as follows:
1. Sale and Purchase of Shares. On the date hereof, subject to the
terms and conditions set forth in this Agreement, Seller shall sell
the Shares to Buyer, and Buyer shall purchase the Shares from
Seller, all for the Purchase Price.
2. Purchase Price. In consideration for the sale of the Shares provided
for in Section 1, Buyer shall pay to Seller at the Closing an amount
per share equal to the closing share price of Wendy's common stock
on the New York Stock Exchange on the date of this Agreement (the
aggregate purchase price to be paid by Buyer, the "Purchase Price").
3. Delivery of Shares; Payment of Purchase Price. On the first business
day after the date of this Agreement, the Management Company shall
deliver notices to Xxxxxxx Xxxxx & Co. and Xxxxxx Xxxxxxx &Co., each
as Prime Broker, to (i) transfer on their books and records
ownership of a total of 131,325 Shares from Seller to Onshore Fund
and a total of 119,995 Shares from Seller to Offshore Fund and (ii)
transfer from the accounts of Buyer to the account of Seller on its
books and records such amount of cash as shall be necessary for each
Buyer to pay its portion of the Purchase Price. The Management
Company agrees to deliver such notices to the Prime Brokers as may
be required to effect such transfers.
4. Representations and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
a. Seller owns the Shares, free and clear of any lien or other
encumbrance of any nature whatsoever (other than those created
by the Management Company), and upon delivery of and payment
for such Shares as herein provided, Seller will convey to
Buyer good and valid title thereto, free and clear of any lien
or other encumbrance of any nature whatsoever (other than
those created by the Management Company);
b. The sale of the Shares contemplated by this Agreement has been
duly authorized by the Audit Committee and/or by the Special
Committee of the Board of Directors of Triarc formed in June
2005 and by the Board of Directors of Seller; and
c. Neither the execution and delivery by Seller of this Agreement
nor the consummation of the transactions contemplated hereby
will (i) conflict with or result in any violation of or
constitute a default under any instrument, contract or other
obligation to which Seller is bound or (ii) constitute a
violation by Seller of any law or regulation of any
jurisdiction as such law or regulation relates to Seller or to
the securities, property or business of Seller.
d. This Agreement has been duly executed by Seller and, assuming
the due execution and delivery of this Agreement by the other
parties hereto, constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance
with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and
by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in
equity).
5. Representations and Warranties of Buyer. Each Buyer, severally and
not jointly, represents and warrants to Seller as follows:
a. The purchase of the Shares to be acquired by it pursuant to
this Agreement has been duly authorized by the General Partner
of each Buyer and, as required by the organizational documents
of each Buyer, has been approved by an independent third
party; and
b. Neither the execution and delivery of this Agreement by such
Buyer nor the consummation of the transactions contemplated
hereby will (i) conflict with or result in any violation of or
constitute a default under any instrument, contract or other
obligation to which such Buyer is bound or (ii) constitute a
violation by such Buyer of any law or regulation of any
jurisdiction as such law or regulation relates to such Buyer
or to the securities, property or business of such Buyer.
c. This Agreement has been duly executed by such Buyer and,
assuming the due execution and delivery of this Agreement by
the other parties hereto, constitutes the legal, valid and
binding obligation of such Buyer, enforceable against such
Buyer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity.)
6. Borrowing of Proceeds; Repayment of Proceeds. At any time within
three (3) business days of the date of this Agreement, the Seller
may borrow from the Account an amount equal to the Purchase Price;
provided that Seller shall repay to the Account the amount so
borrowed within six (6) months of such borrowing date. Such loan
shall constitute a capital asset of the Account and as such is
subject to the Management Fee and the Performance Fee and such
borrowed funds, once repaid to the Account, shall continue to be
subject to all of the terms and conditions of the Management
Agreement, including without limitation, the existing Lock-Up Period
(as defined in the Management Agreement).
7. Notices. Any notice or request to be given under this Agreement by
one party to another shall be in writing and shall be delivered by
hand, overnight courier service, facsimile or by certified mail,
postage prepaid, (i) if to Seller, at 0000 Xxxxxxxxx Xxxxxx Xxxx,
Xxxxxxx, XX 00000, fax: 000-000-0000, Attn: General Counsel, and
(ii) if to Buyer, at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, fax: 000-000-0000, Attn: General Counsel, or to such other
addresses as any party may designate in writing to the other.
8. Counterparts. This Agreement may be in one or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
9. No Other Agreement or Understandings. This Agreement embodies all of
the agreements and understandings in relation to the subject matter
of this Agreement, and no covenants, understandings or agreements in
relation to this Agreement exist between the parties, except as
expressly set forth in this Agreement.
10. No Third Party Benefit. Nothing expressed or implied in this
Agreement shall be construed to confer upon or give to any person or
entity, other than a party to this Agreement, any rights or remedies
under or by reason of this Agreement.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving
effect to any choice or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State
of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
TCMG-MA, LLC
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
TRIAN PARTNERS MASTER FUND, L.P.
By: Trian Partners GP, L.P.,
its managing general partner
By: Trian Partners General Partner, LLC,
its general partner
By: /s/ Xxxxx X. May
-------------------------
Name: Xxxxx X. May
Title: Member
TRIAN PARTNERS, L.P.
By: Trian Partners GP, L.P., its general
partner
By: Trian Partners General Partner, LLC,
its general partner
By: /s/ Xxxxx X. May
-------------------------
Name: Xxxxx X. May
Title: Member
TRIAN FUND MANAGEMENT, L.P.
By: Trian Fund Management GP, LLC
its general partner
By: /s/ Xxxxx X. May
-------------------------
Name: Xxxxx X. May
Title: Member
