WENDY'S INTERNATIONAL, INC. 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 23, 2008
WENDYS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
Ohio
(State or other jurisdiction of
incorporation or organization)
|
|
001-08116
(Commission File Number)
|
|
31-0785108
(I.R.S. Employer
Identification No.) |
|
|
|
P.O. Box 256 |
|
|
4288 West Dublin-Granville Road |
|
|
Dublin, Ohio
|
|
43017 |
(Address of Principal Executive Offices)
|
|
(Zip Code) |
(614) 764-3100
(Registrants telephone number, including area code)
Check the appropriate box below if the form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
|
|
|
þ |
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
|
|
o |
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
|
|
o |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
|
|
|
o |
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
TABLE OF CONTENTS
|
|
|
Item 1.01 |
|
Entry into a Material Definitive Agreement. |
Agreement and Plan of Merger
On April 23, 2008, Wendys International, Inc., an Ohio corporation (Wendys), entered into
an Agreement and Plan of Merger (the Merger Agreement) with Triarc Companies, Inc., a Delaware
corporation (Triarc), and Green Merger Sub, Inc., an Ohio corporation and a wholly-owned
subsidiary of Triarc (Merger Sub). The Merger Agreement provides that, upon the terms and
subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into
Wendys with Wendys continuing as the surviving corporation and as a wholly-owned subsidiary of
Triarc (the Merger). The Merger has been approved by the board of directors of both Wendys and
Triarc.
Pursuant to the terms of the Merger Agreement, each share of common stock, no par value, of
Wendys (Wendys Common Stock) will be converted into the right to receive 4.25 (the Exchange
Ratio) shares of Class A Common Stock, par value $0.10 per share, of Triarc (the Triarc Class A
Common Stock). Wendys stock options and other equity awards will generally convert upon
consummation of the Merger and without any action on the part of the holder into stock options and
equity awards with respect to the Triarc Class A Common Stock, after giving effect to the Exchange
Ratio. Cash will be paid to Wendys shareholders in lieu of fractional shares of Triarcs Class A
Common Stock.
The Merger Agreement also provides that upon consummation of the Merger, the board of
directors of Triarc will be made up of twelve members, consisting of ten members of Triarcs
current board of directors and two members of Wendys current board of directors designated by
Wendys and reasonably acceptable to Triarc. At the first meeting of the board of directors of
Triarc following the consummation of the Merger, Triarcs board of directors shall elect one of its
members to the position of chairman.
The Merger is intended to qualify as a tax-free reorganization for U.S. federal income tax
purposes so that none of Wendys, Triarc, Merger Sub or any of Wendys shareholders generally will
recognize any gain or loss in the transaction, except that Wendys shareholders will recognize gain
with respect to cash received in lieu of fractional shares of Triarc Class A Common Stock.
The Merger Agreement contains representations and warranties that Wendys, on the one hand,
and Triarc and Merger Sub, on the other hand, made to each other as of specific dates. The
assertions embodied in those representations and warranties were made solely for purposes of the
Merger Agreement and may be subject to important qualifications and limitations agreed to by
Wendys, Triarc and Merger Sub in connection with negotiating its terms. Moreover, the
representations and warranties may be subject to a contractual standard of materiality that may be
different from what may be viewed as material to shareholders, or may have been used for the
purpose of allocating risk among Wendys, on the one hand, and Triarc and Merger Sub, on the other
hand, rather than establishing matters as facts. For the foregoing reasons, no person should
-2-
rely on the representations and warranties as statements of factual information at the time
they were made or otherwise.
Wendys, Triarc and Merger Sub have made customary agreements in the Merger Agreement,
including agreements (i) with respect to the conduct of Wendys and Triarc during the interim
period between the execution of the Merger Agreement and consummation of the Merger; (ii) not to
engage in certain kinds of transactions during such period; (iii) that Wendys will convene and
hold a meeting of the shareholders of Wendys to consider and vote upon the adoption of the Merger
Agreement and the transactions contemplated thereby; and (iv) that Triarc will convene and hold a
meeting of stockholders of Triarc to consider and vote upon the approval of the issuance of Triarc
Class A Common Stock required to be issued in the Merger and to vote upon the approval of an
amendment to its certificate of incorporation. In addition, Wendys and Triarc have made certain
additional customary agreements, including, among others, (i) not to solicit or knowingly
facilitate inquiries or proposals relating to alternative business combination transactions or (ii)
subject to certain exceptions, not to engage in discussions or negotiations regarding, or provide
any non-public information in connection with, alternative business combination transactions (the
No-Shop Covenants).
Each partys obligation to consummate the Merger is subject to customary conditions,
including, among others, (i) adoption of the Merger Agreement by Wendys shareholders; (ii)
approval of the issuance of Triarc Class A Common Stock required to be issued in the Merger and the
amendment of Triarcs certificate of incorporation by holders of Triarcs capital stock; (iii)
absence of certain laws or orders of governmental authorities prohibiting the closing, (iv)
regulatory clearance under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and, if
applicable, the Competition Act (Canada) R.S.C. 1985, c. C-34, as amended; and (v) the declaration
by the Securities and Exchange Commission (the SEC) that the Form S-4 Registration Statement
registering shares of Triarc Class A Common Stock to be issued in connection with the Merger has
become effective under the Securities Act of 1933, as amended. Wendys obligation to consummate
the Merger is subject to certain other conditions, including, among others, (i) subject to certain
exceptions, the accuracy of the representations and warranties of Triarc, (ii) performance in all
material respects of Triarc of its obligations, (iii) the delivery of customary opinions from
counsel to Wendys that the Merger will qualify as a tax-free reorganization for federal income tax
purposes and (iv) effectiveness of an amendment to the Triarc bylaws providing that the
headquarters of the Wendys brand will be located in the greater Columbus, Ohio area for a period
of ten years from the date of the consummation of the Merger. Triarcs obligation to consummate
the Merger is also subject to certain other conditions, including, among others, (i) subject to
certain exceptions, the accuracy of the representations and warranties of Wendys, (ii) performance
in all material respects of Wendys of its obligations, (iii) the delivery of customary opinions
from counsel to Triarc that the Merger will qualify as a tax-free reorganization for federal income
tax purposes and (iv) that the total number of dissenting shares not exceed 5% of the issued and
outstanding shares of Wendys Common Stock as of the effective time of the Merger.
Either Triarc or Wendys may terminate the Merger Agreement: (i) by mutual agreement; (ii) if
the Merger has not closed on or before December 31, 2008, provided that the party seeking to
terminate the Merger Agreement has not breached in any material respect any of its obligations
-3-
under the Merger Agreement in any manner that shall have proximately caused the failure to
consummate the Merger on or before such date; (iii) if there exists any injunction, order, decree
or ruling would prohibit the consummation of the Merger and such injunction, order, decree or
ruling has become final and non-appealable; (iv) if a breach by the other party has not or cannot
be cured within 30 days notice of such breach if such breach would result in a failure of the
conditions to closing set forth in the Merger Agreement; or (v) if Wendys shareholders fail to
approve the Merger or Triarcs stockholders fail to approve the issuance of the Class A Common
Stock required to be issued in the Merger or the amendment to Triarcs certificate of
incorporation.
Triarc may terminate the Merger Agreement under certain circumstances, including if: (i) prior
to receiving the approval of the Triarc stockholders, Triarcs board of directors approves a
superior proposal and promptly following such termination, enters into a definitive agreement in
connection with such superior proposal, provided that Triarc shall have complied with its
obligations under the No-Shop Covenants; or (ii) Wendys (1) withdraws its recommendation that the
shareholders of Wendys adopt the Merger Agreement (the Wendys Recommendation), (2) fails to
include the Wendys Recommendation in the proxy statement, (3) recommends or approves any
alternative takeover proposal of Wendys, (4) fails to publicly reaffirm the Wendys
Recommendation following receipt of an alternative takeover proposal or (5) materially breaches its
obligations under the No-Shop Covenants, fails to hold the meeting of the Wendys shareholders or
to use reasonable best efforts to solicit proxies in favor of the adoption of the Merger Agreement
and to obtain the approval of the Wendys shareholders (the termination of the Merger Agreement as
described in subsection (ii), a Triarc Termination).
Wendys may terminate the Merger Agreement under certain circumstances, including if: (i)
prior to receiving the approval of the Wendys shareholders, Wendys board of directors approves a
superior proposal and promptly following such termination, enters into a definitive agreement in
connection with such superior proposal, provided that Wendys shall have complied with its
obligations under the No-Shop Covenants (the Superior Proposal Termination); or (ii) Triarc (1)
withdraws its recommendation (the Triarc Recommendation) to its stockholders to approve the
issuance of the Class A Common Stock required to be issued in the Merger or the amendment to its
certificate of incorporation, (2) fails to include the Triarc Recommendation in the proxy
statement, (3) recommends or approves any alternative takeover proposal of Triarc, (4) fails to
publicly reaffirm the Triarc Recommendation following receipt of an alternative takeover proposal
or (5) materially breaches its obligations under the No-Shop Covenants, fails to hold the meeting
of the Triarc stockholders or to use reasonable best efforts to solicit proxies in favor of the
issuance of the Class A Common Stock to be issued in the Merger or the amendment to Triarcs
certificate of incorporation.
The Merger Agreement further provides that, upon termination of the Merger Agreement pursuant
to a Triarc Termination or a Superior Proposal Termination, Wendys shall be required to reimburse
Triarc and its contemplated financing sources for certain out of pocket fees and expenses in an
amount equal to $10 million.
-4-
The foregoing description of the Merger and the Merger Agreement does not purport to be
complete and is qualified in its entirety by reference to the Merger Agreement, which is filed as
Exhibit 2.1 hereto, and is incorporated herein by reference.
Voting Agreement
Wendys entered into a Voting Agreement, dated as of April 23, 2008 (the Voting Agreement),
with Trian Fund Management, L.P. and certain of its affiliated entities (collectively, the Trian
Entities) in connection with the Merger Agreement. Pursuant to the Voting Agreement, the Trian
Entities have agreed, among other things, to vote their shares of Wendys Common Stock in favor of
the Merger Agreement and the transactions contemplated thereby. The Voting Agreement shall
terminate upon the earlier of (i) the termination of the Merger Agreement in accordance with its
terms and (ii) the consummation of the Merger (the Termination Date). Pursuant to the terms of
the Voting Agreement, the Trian Entities have agreed that until the Termination Date, the Trian
Entities shall be prohibited from, subject to certain exceptions, directly or indirectly, (i)
disposing of any shares of Wendys Common Stock for which they have the right to exercise or direct
the vote (the Subject Shares), (ii) granting proxies or powers of attorney or entering into a
voting agreement or other arrangement with respect to the Subject Shares, (iii) taking any action
that would result in a diminution of the voting power represented by any of such Trian Entities
Subject Shares, or (iv) committing or agreeing to take any of the foregoing actions. If the Merger
Agreement is terminated under certain circumstances, the Trian Entities have further agreed to
certain standstill provisions for a period of three years following the date of such termination.
Additionally, the Voting Agreement provides that Peter Rothschild and Stuart Oran will resign from
the board of directors of Wendys in certain circumstances upon the termination of the Merger
Agreement.
The foregoing description of the Voting Agreement does not purport to be complete and is
qualified in its entirety by reference to the Voting Agreement, which is filed as Exhibit 10.1
hereto, and is incorporated herein by reference.
Amendment to Rights Agreement
The disclosure in Item 3.03 is incorporated by reference into this Item 1.01.
Forward-Looking Statements
This Current Report and the exhibits furnished herewith include forward-looking statements
within the meaning of the safe harbor provisions of the United States Private Securities Litigation
Reform Act of 1995. Words such as expect, estimate, project, budget, forecast,
anticipate, intend, plan, may, will, could, should, believes, predicts,
potential, continue, and similar expressions are intended to identify such forward-looking
statements. These forward-looking statements include, without limitation, Triarcs and Wendys
expectations with respect to the synergies, efficiencies, overhead savings, costs and charges and
capitalization, anticipated financial impacts of the merger transaction and related transactions;
approval of the merger transaction and related transactions by shareholders; the satisfaction of
the closing conditions to the merger transaction and related transactions; and the timing of the
completion of the merger transaction and related transactions.
-5-
These forward-looking statements involve significant risks and uncertainties that could cause
the actual results to differ materially from the expected results. Most of these factors are
outside our control and difficult to predict. Factors that may cause such differences include, but
are not limited to, the possibility that the expected synergies will not be realized, or will not
be realized within the expected time period, due to, among other things: (1) changes in the quick
service restaurant industry; (2) prevailing economic, market and business conditions affecting
Triarc and Wendys; (3) conditions beyond Triarcs or Wendys control such as weather, natural
disasters, disease outbreaks, epidemics or pandemics impacting Triarcs and/or Wendys customers or
food supplies or acts of war or terrorism; (4) changes in the interest rate environment; (5)
changes in debt, equity and securities markets; (6) changes in the liquidity of markets in which
Triarc or Wendys participates; (7) the availability of suitable locations and terms for the sites
designated for development; (8) cost and availability of capital; (9) adoption of new, or changes
in, accounting policies and practices; and (10) other factors discussed from time to time in
Triarcs and Wendys news releases, public statements and/or filings with the SEC, especially the
Risk Factors sections of Triarcs and Wendys Annual and Quarterly Reports on Forms 10-K and
10-Q. Other factors include the possibility that the merger does not close, including due to the
failure to receive required stockholder or regulatory approvals, or the failure of other closing
conditions. Triarc cautions that the foregoing list of factors is not exclusive. All subsequent
written and oral forward-looking statements concerning Triarc, Wendys, the merger, the related
transactions or other matters and attributable to Triarc or Wendys or any person acting on their
behalf are expressly qualified in their entirety by the cautionary statements above. Triarc and
Wendys do not undertake any obligation to update any forward-looking statement, whether written or
oral, relating to the matters discussed in this news release.
Additional Information About the Merger and Where to Find It
In connection with the proposed merger, Triarc will file with the SEC a Registration Statement
on Form S-4 that will include a joint proxy statement of Triarc and Wendys and that also
constitutes a prospectus of Triarc. Triarc and Wendys each will mail the proxy
statement/prospectus to its stockholders. Triarc and Wendys urge investors and security holders
to read the proxy statement/prospectus regarding the proposed merger when it becomes available
because it will contain important information. You may obtain copies of all documents filed with
the SEC regarding this transaction, free of charge, at the SECs website (www.sec.gov). You may
also obtain these documents, free of charge, from Triarcs website (www.triarc.com) under the
heading Investor Relations and then under the item SEC Filings and Annual Reports. You may
also obtain these documents, free of charge, from Wendys website (www.wendys.com) under the tab
Investor and then under the heading SEC Filings.
Proxy Solicitation
Triarc, Wendys and their respective directors, executive officers and certain other members
of management and employees may be soliciting proxies from Triarc and Wendys stockholders in favor
of the stockholder approvals required in connection with the merger. Information regarding the
persons who may, under the rules of the SEC, be considered participants in the solicitation of the
Triarc and Wendys stockholders in connection with the
-6-
stockholder approvals required in connection with the proposed merger will be set forth in
the proxy statement/prospectus when it is filed with the SEC. You can find information about
Triarcs executive officers and directors in its Annual Report on Form 10-K, as amended, filed with
the SEC on April 25, 2008. You can find information about Wendys executive officers and directors
in its definitive proxy statement filed with the SEC on March 12, 2007 and its Annual Report on
Form 10-K, as amended, filed with the SEC on April 28, 2008. You can obtain free copies of these
documents from Triarc and Wendys using the contact information above.
|
|
|
Item 3.03. |
|
Material Modification to Rights of Security Holders |
In connection with the Merger Agreement described in Item 1.01 above, Wendys executed
Amendment No. 2 (the Amendment) to the Amended and Restated Rights Agreement, dated as of
December 8, 1997, by and between Wendys and American Stock Transfer and Trust Company, as rights
agent, as amended by Amendment No. 1 to Amended and Restated Rights Agreement, dated as of January
26, 2001 (as so amended, the Rights Agreement). The Amendment makes the Rights Agreement
inapplicable to the Merger Agreement, the voting agreements entered into in connection therewith,
the Merger and the other transactions contemplated by the Merger Agreement and provides for the
expiration of the Rights (as defined in the Rights Agreement) issued pursuant to the Rights
Agreement immediately prior to the effective time of the Merger if the Rights have not otherwise
expired. Specifically, the Amendment provides, among other things, that none of Triarc, Merger
Sub, any party to a voting agreement entered into in connection with the Merger Agreement, any
person who as of the date of the Amendment had filed a joint Schedule 13D with Triarc with respect
to Wendys, or any of their respective affiliates or associates, shall be deemed an Acquiring
Person (as defined in the Rights Agreement), and no Distribution Date (as defined in the Rights
Agreement), Stock Acquisition Date (as defined in the Rights Agreement), Transaction (as defined in
the Rights Agreement) or adjustment of the Rights pursuant to Section 11(a)(ii) of the Rights
Agreement shall be deemed to have occurred, by virtue of the announcement or disclosure of the
Merger, the Merger Agreement or any of the transactions contemplated by the Merger Agreement
(including, without limitation, the voting agreements entered into in connection therewith), the
execution, delivery or performance of the Merger Agreement or the voting agreements entered into in
connection therewith, or the consummation of the Merger or any of the other transactions
contemplated by the Merger Agreement.
The Rights Agreement was filed as Exhibit 1 to Amendment No. 2 to Wendys registration
statement on Form 8-A, filed with the SEC on December 8, 1997 and is incorporated herein by
reference. Amendment No. 1 to the Rights Agreement was filed as Exhibit 2 to Amendment No. 3 to
Wendys registration statement on Form 8-A/A, filed with the SEC on January 26, 2001 and is
incorporated herein by reference. The foregoing description of the Amendment does not purport to
be complete and is qualified in its entirety by reference to the Amendment, which is filed as
Exhibit 4.1 hereto, and is incorporated herein by reference.
|
|
|
Item 9.01 |
|
Financial Statements and Exhibits. |
(d) Exhibits
-7-
|
|
|
|
|
Exhibit No. |
|
Description |
|
|
|
|
|
|
2.1 |
|
|
Plan of Merger, dated as of April 23, 2008, by and among
Wendys International, Inc., Triarc Companies, Inc., and
Green Merger Sub, Inc. |
|
|
|
|
|
|
4.1 |
|
|
Amendment No. 2 to Amended and Restated Rights Agreement,
dated as of April 23, 2008, by and between Wendys
International, Inc. and American Stock Transfer and Trust
Company. |
|
|
|
|
|
|
10.1 |
|
|
Voting Agreement, dated as of April 23, 2008, by and among
Wendys International, Inc. and the shareholders signatory
thereto. |
-8-
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
|
|
|
|
|
WENDYS INTERNATIONAL, INC. |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Kerrii B. Anderson |
|
|
|
|
|
|
|
|
|
|
|
|
|
Kerrii B. Anderson |
|
|
|
|
|
|
Chief Executive Officer and
President |
|
|
|
|
|
|
|
Date:
|
|
April 29, 2008 |
|
|
|
|
|
|
|
|
|
|
|
Exhibit Index
|
|
|
|
|
Exhibit No. |
|
Description |
|
|
|
|
|
|
2.1 |
|
|
Agreement and Plan of Merger, dated as of April 23, 2008,
by and among Wendys International, Inc., Triarc
Companies, Inc., and Green Merger Sub, Inc. |
|
|
|
|
|
|
4.1 |
|
|
Amendment No. 2 to Amended and Restated Rights Agreement,
dated as of April 23, 2008, by and between Wendys
International, Inc. and American Stock Transfer and Trust
Company. |
|
|
|
|
|
|
10.1 |
|
|
Voting Agreement, dated as of April 23, 2008, by and among
Wendys International, Inc. and the shareholders signatory
thereto. |