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This excerpt taken from the WEN 8-K filed Mar 12, 2009. Change of Control” means the occurrence of any event, transaction or occurrence as a result of which any of the following occurs:
(a) prior to the completion of any initial public offering of the Stock of Ultimate Parent Co-Borrower, Sponsor and Related Persons, shall cease to, directly or indirectly, beneficially own and control in the aggregate (i) more than 50% of the Voting Stock of Ultimate Parent Co-Borrower, on a fully diluted basis, or (ii) at least a percentage of the outstanding Voting Stock of Ultimate Parent Co-Borrower necessary to elect at any time a majority of the Board of Directors (or similar governing body) of Ultimate Parent Co-Borrower; (b) on and after completion of any such initial public offering, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, including any group acting for the purpose of acquiring, holding, voting or disposing of Securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act) other than Sponsor or any Related Person shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act, except that each Person will be deemed to have “beneficial ownership” of all Stock and Stock Equivalents that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than the greater of (x) 30% of the then outstanding Voting Stock of Ultimate Parent Co-Borrower and (y) the Voting Stock of Ultimate Parent Co-Borrower owned, directly or indirectly, by Sponsor and Related Persons in the aggregate; (c) during any period of 12 consecutive calendar months, individuals who, at the beginning of such period, constituted the Board of Directors of Ultimate Parent Co-Borrower (together with any new directors nominated by Ultimate Parent Co-Borrower and directors whose election by the Board of Directors of Ultimate Parent Co-Borrower or whose nomination for election by the members of Ultimate Parent Co-Borrower was approved by a vote of at least a majority of the Board of Directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the Board of Directors then in office; (d) Ultimate Parent Co-Borrower shall cease to own and control, directly or through one or more Wholly-Owned Subsidiaries, all of the economic and voting rights associated with all of the outstanding Stock of Holdco Co-Borrower, Parent, Arby’s Opco Borrower or WII Co-Borrower; or
(e) any “Change of Control” under and as defined in, or any term of similar import under, any Subordinated Debt Document relating to Indebtedness in an aggregate principal amount in excess of $25,000,000. “ This excerpt taken from the WEN 8-K filed Jan 16, 2009. Change in
Control” means any event or series of events by which:
(i) on
or after completion of any initial public offering of the Capital Stock of
Holdings, any “person” or “group” (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended, but excluding (A)
any employee benefit or stock ownership plans of the Borrower, (B) members of
the board of directors and executive officers of Holdings as of the Closing
Date, (C) the families of such members and executive officers, (D) family trusts
established by or for the benefit of any of the foregoing individuals and (E)
Permitted Investors) becomes the “beneficial owner” (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended), directly or indirectly
of more than fifty percent (50%) of the combined voting power of all classes of
common stock of Holdings; or
(ii) during
any period of twelve (12) consecutive calendar months, the board of directors of
Holdings shall cease to have as a majority of its members individuals who either
(A) were directors of Holdings on the first day of such period, or (B) were
elected or nominated for election to the board of directors of Holdings at the
recommendation of or other approval by at least a majority of the directors then
still in office at the time of such election or nomination who were directors of
Holdings on the first day of such period, or whose election or nomination for
election was so approved; or
(iii) prior
to the completion of any initial public offering of the Capital Stock of
Holdings, the Permitted Investors shall cease to own of record and beneficially
an amount of common stock of Holdings equal to at least sixty (60%) of the
amount of common stock of Holdings owned by the Permitted Investors of record
and beneficially as of the Closing Date; or
(iv) Holdings
shall cease to own and control, of record and beneficially, directly, 100% of
each class of outstanding Capital Stock of the Borrower free and clear of all
Liens (except Liens created by the Guarantee and Collateral
Agreement).
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