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Exhibit 2(f)
SHARE EXCHANGE AGREEMENT
AMENDING AGREEMENT NO. 2
THIS IS AN AMENDING AGREEMENT made as of February 25, 1999 by
and among WENDY'S INTERNATIONAL, INC., an Ohio corporation ("Wendy's"), WENTIM,
LTD., an Ontario corporation and a subsidiary of Wendy's ("WENTIM") and ▇▇▇▇▇▇
▇. ▇▇▇▇▇ ("Seller").
WHEREAS:
A. Wendy's and 1149658 Ontario Inc., a predecessor of WENTIM, and
Seller entered into a Share Exchange Agreement dated as of December 29, 1995
which was amended by an Agreement dated September 16, 1998 between Wendy's,
WENTIM, the Seller and the Irrevocable Trust for the benefit of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
established under agreement dated as of December 29, 1995 (the "Trust")
(collectively, the "Share Exchange Agreement"); and
B. Seller 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 Seller.
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 Share Exchange Agreement and
this Agreement and the Share Exchange 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 Share Exchange Agreement by this
Agreement had been contained in the Share Exchange 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; and
(b) all other capitalized terms have the respective meanings given
to them in the Share Exchange Agreement as amended by Article
2 of this Agreement.
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.
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1.4 References. All references in this Agreement to Articles and
Sections, unless otherwise specified, are to Articles and Sections of the Share
Exchange Agreement.
ARTICLE II
AMENDMENTS
2.1 Section 6.3 of the Share Exchange Agreement is 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.
Notwithstanding the foregoing, Seller may from time to time transfer
all or any portion of Seller's Newco Exchangeable Shares to a bank
chartered under the laws of Canada (the "Bank"), as security for loans
made by the Bank to Seller, provided that the Bank gives written notice
to Wendy's and WENTIM of any pledge of Newco Exchangeable Shares along
with a copy of the pledge and further provided that the Bank has
agreed, as pledgee, to be bound by the provisions of the Share Exchange
Agreement and the Guaranty. Upon receipt by Wendy's and Newco of a
certificate from an officer of the Bank stating that Seller is in
default in any payment of principal of or interest accruing on loans
made by the Bank to Seller, and specifying the number of Newco
Exchangeable Shares pledged to the Bank by Seller, the Bank shall be
entitled to all of the rights of and be subject to all of the
obligations of Seller with respect to such number of Newco Exchangeable
Shares as if the Bank were named in this Agreement in place of Seller.
The Bank shall also provide written notice to Wendy's and WENTIM if the
pledge ceases to be in effect.
2.2 Section 7.1 of the Share Exchange Agreement is amended to read as
follows:
TERM. This Agreement shall continue until the earliest to occur of
the following events:
(a) no outstanding Newco Exchangeable Shares are held by Seller or are
pledged to a Bank which has notified Wendy's and WENTIM of such pledge
and which has complied with Section 6.3 hereof, and
(b) the execution of an instrument in writing terminating this
Agreement, signed by duly authorized officers or representatives of
Wendy's, WENTIM and by Seller; and in the event that Newco Exchangeable
Shares are pledged to a Bank which has notified Wendy's and WENTIM of
such pledge and which has complied with Section 6.3 hereof, no such
instrument will have the effect of terminating this Agreement without
the consent of the Bank.
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2.3 Section 8.6 of the Share Agreement is amended to add the following:
If to the Bank:
Canadian Imperial Bank of Commerce
Main Branch, Commerce Court West
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇▇
Senior Account Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE III
GENERAL
3.1 Effective Date and Confirmation. This Agreement and the amendment to
the Share Exchange Agreement contained in this Agreement shall be effective as
of and from the date of this Agreement. The Share Exchange Agreement, as amended
by this Agreement, is confirmed by Wendy's, WENTIM and Seller.
3.2 Binding Nature. This Agreement shall enure to the benefit of and be
binding upon each of Wendy's, WENTIM and Seller and their respective successors
and permitted assigns.
3.3 Conflicts. If any provision of this Agreement is inconsistent with
any provision of the Share Exchange Agreement the relevant provision of this
Agreement shall prevail.
3.4 Law of Contract. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable in the Province of Ontario.
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.
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IN WITNESS OF WHICH Wendy's, WENTIM and Seller have executed this
Agreement as of the date indicated on the first page of this Agreement.
WENDY'S INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer/Secretary
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: Senior Vice President
Title: Assistant Secretary
I/We have authority to bind
Wendy's International, Inc.
WENTIM, LTD.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer/Secretary
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: Senior Vice President
Title: Assistant Secretary
I/We have authority to bind WENTIM, Ltd.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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WITNESS ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
