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WEN » Topics » PROPOSAL 4. AMENDMENT AND RESTATEMENT OF THE COMPANYS CERTIFICATE OF INCORPORATION TO CHANGE THE ADVANCE NOTICE PROCEDURES FOR STOCKHOLDER PROPOSALS AND DIRECTOR NOMINATIONS

This excerpt taken from the WEN DEF 14A filed Apr 14, 2009.

PROPOSAL 4.
AMENDMENT AND RESTATEMENT OF THE COMPANY’S CERTIFICATE OF
INCORPORATION TO CHANGE THE ADVANCE NOTICE PROCEDURES FOR
STOCKHOLDER PROPOSALS AND DIRECTOR NOMINATIONS

(Item 4 on the Company’s Proxy Card)

The Company’s stockholders are being asked to approve an amendment and restatement of the Certificate of Incorporation that will change the advance notice procedures for stockholders to submit proposals and director nominations for an annual meeting of stockholders.

The Certificate of Incorporation currently contains provisions regarding the manner by which stockholders may nominate directors and present proposals of business at an annual meeting of stockholders. If adopted, the proposed Amended and Restated Certificate of Incorporation will generally, among other things:

 

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change the window within which stockholders must submit proposals of business and director nominations for the Company’s annual stockholders meeting from 45 to 60 days prior to the meeting to 90 to 120 days prior to the first anniversary of the date of the prior year’s annual stockholders meeting;

 

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require that, in addition to disclosing their name, record address and beneficial ownership of the Company’s securities, any stockholder nominating directors or proposing business disclose the name, record address and beneficial ownership of any such stockholder’s “associated persons” (which includes any other beneficial owner of the shares of the Company’s stock beneficially owned by such stockholder, and any person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such stockholder or beneficial owner);

 

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require that such stockholder also make certain disclosures about it and any of its associated persons’ relationships, including

 

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any agreement, arrangement or understanding, direct or indirect, relating to the proposed business or the director nomination,

 

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its and any of its associated persons’ derivative positions or hedging transactions with respect to the Company’s securities,

 

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any proxy, contract, arrangement, understanding or other relationship pursuant to which such stockholder or any associated person has the right to vote any shares of the Company,

 

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any rights to dividends on the Company’s stock owned beneficially by such stockholder or any associated person that are separated or separable from the Company’s underlying stock,

 

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any proportionate interest in the Company’s stock or derivatives in respect thereof held, directly or indirectly, by a general or limited partnership in which the stockholder or any associated person is a general partner or, directly or indirectly, owns an interest in a general partner, and

 

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any performance-related fees (other than an asset-based fee) that such stockholder or any associated person is entitled to based on any increase or decrease in the value of the Company’s stock or derivatives in respect thereof; and

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impose additional information requirements for director nominees, including a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such stockholder, any of its associated persons or their respective associates, or others acting in concert therewith (including a description of the nominee’s interest in such agreement, arrangement or understanding and the approximate dollar value thereof); and separately state the provisions pertaining to nomination of directors on the one hand, and those pertaining to the proposed conduct of other business, on the other hand.

The Company believes that the proposed Amended and Restated Certificate of Incorporation establishes more detailed procedures for the notification of business which is to be presented at annual meetings of stockholders, which will enable the Board of Directors to better plan for such meetings, inform stockholders if necessary or desirable prior to the meeting of the business to be conducted, and to provide more orderly procedures for conducting the meeting. Furthermore, the requirement that stockholders disclose their derivative positions and other forms of indirect ownership of Wendy’s/Arby’s securities will enable the Board of Directors to better analyze stockholder proposals and potential director nominees, assess the interests of the stockholder proponent and assist the Board of Directors in making a recommendation or statement of its position. In turn, stockholders will be provided with better information in order to determine whether they desire to attend the meeting or grant a proxy to Wendy’s/Arby’s as to the disposition of any such business.

The proposed Amended and Restated Certificate of Incorporation does not give the Board any power to approve or disapprove the business that stockholders desire to be conducted at the meeting, but it does provide for a more orderly procedure for conducting the meeting. However, stockholders should be aware that the proposed Amended and Restated Certificate of Incorporation will preclude the conduct of business at a particular meeting if the advance notice procedures are not followed correctly. As a result, a stockholder nomination or proposal that is not made in compliance with the proposed Amended and Restated Certificate of Incorporation could be delayed to a subsequent meeting. The proposed Amended and Restated Certificate of Incorporation will require stockholders to plan further in advance to initiate discussion at a stockholders’ meeting.

This Proposal 4 is not conditioned on the approval of any other Proposal.

A committee comprised solely of independent directors recommended the amendments to the Certificate of Incorporation reflected in Proposals 2, 3, 4, 5 and 6 to the Board of Directors, and, following such recommendation, the Board of Directors approved and declared advisable the proposed Amended and Restated Certificate of Incorporation, subject to stockholder approval.

The Amended and Restated Certificate of Incorporation reflecting the amendments to the Certificate of Incorporation described in Proposals 2, 3, 4, 5 and 6 is set forth in Annex A to this proxy statement, with deletions indicated by strikeout and additions indicated by underline. The description of the proposed Amended and Restated Certificate of Incorporation is only a summary of the material terms and is qualified by reference to the actual text as set forth in Annex A.

If this Proposal is approved by the stockholders, the Company will file the proposed Amended and Restated Certificate of Incorporation with the Delaware Secretary of State promptly after the Annual Meeting to effect the proposed amendments.

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