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This excerpt taken from the WEN DEF 14A filed Apr 14, 2009. Summary of Business Combination Provision Article VI of the Certificate of Incorporation provides that the approval of the holders of shares representing at least 75% of the voting power of the voting shares is required in order to approve certain business combinations if an “interested stockholder” or its affiliates or associates is a party to the transaction or its percentage equity interest in Wendy’s/Arby’s or any of its subsidiaries would be increased by the transaction. The required 75% approval of any business combination must include the affirmative vote of the holders of shares representing at least a majority of the voting power of all of the then outstanding voting shares exclusive of those shares beneficially owned by any interested stockholder. The voting requirements outlined above will not apply, however, if: 64
immediately prior to the time the business combination is consummated, Wendy’s/Arby’s is the “beneficial owner” (defined below) of a majority of each class of the outstanding equity securities of the interested stockholder; (ii) the business combination was approved by at least a majority of the Board of Directors (even though not the entire Board of Directors), but only if a majority of the directors acting favorably upon such matter are continuing directors; or (iii) the consideration to be received by the holders of each class of Wendy’s/Arby’s outstanding voting shares acquired by the interested stockholder is at least equal to the greater of the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers’ fees and with
appropriate adjustments for recapitalizations, stock splits, reverse stock splits and stock dividends) paid by the interested stockholder for any shares of such class
(1)
within the two-year period immediately prior to the first public announcement of the proposal of the business combination or (2) in the transaction in which it became an interested stockholder, and is in cash or in the same form of consideration as the interested stockholder paid to acquire the largest number of voting shares previously acquired by it. If either the ownership or form of consideration requirements set forth in clauses (i) and (iii) above are satisfied, the business combination will require the approval of the holders of at least two-thirds of the votes entitled to be cast by the holders of all the then outstanding voting shares, which Wendy’s/Arby’s
refers to as the ratification percentage (and the additional majority vote described in the previous paragraph). If the Board of Directors approves a business combination in accordance with the requirements set forth in clause (ii) above, the Board of Directors may, again in accordance with the voting provisions of such clause (ii), determine to require a vote of stockholders. If a stockholder vote is required for such
business combination under applicable law (such as, for example, in the case of certain mergers or a liquidation), the Board of Directors will require the affirmative vote of the then outstanding voting shares equal to the higher of:
(i)
the ratification percentage (such affirmative vote shall not require the additional majority vote), and (ii) such other percentage as is required by law. If a stockholder vote is not required for such business combination under law, the Board of Directors may, in its discretion, either decide not to require a stockholder vote to approve the business combination or require the affirmative vote of the outstanding voting shares equal to (A) the ratification percentage
(such affirmative vote shall not require the additional majority vote) or (B) such other percentage as it so determines. An “interested stockholder” generally is defined under the Certificate of Incorporation as the beneficial owner of 10% or more of the voting power of the outstanding voting shares (other than Wendy’s/Arby’s, its pension, profit sharing, employee stock ownership or other employee benefit plans, or its
subsidiaries of which it owns a majority of each class or series of equity securities). A “business combination” includes: 65
(i)
any merger or consolidation of Wendy’s/Arby’s or any of its subsidiaries with or into (a) any interested stockholder or an affiliate or associate of an interested stockholder, or an affiliate thereof, or (b) any other corporation, which, after such merger or consolidation, would be an affiliate or associate
of an interested stockholder or an affiliate thereof; (ii) any sale, lease or other disposition (in one or a series of transactions) of a “substantial part” (as defined in the Certificate of Incorporation) of Wendy’s/Arby’s assets or the assets of any of its subsidiaries to an interested stockholder or an affiliate or associate of any interested stockholder, or an
affiliate thereof; (iii) any sale, lease or other disposition (in one or a series of transactions) to Wendy’s/Arby’s or any of its subsidiaries of any assets (excluding any voting shares, but including without limitation any securities whether outstanding, authorized but unissued or in treasury, issued by an interested stockholder,
or by an affiliate or associate of an interested stockholder or by an affiliate thereof) of (a) any interested stockholder or (b) an affiliate or associate of an interested stockholder, or an affiliate thereof, if the amount paid therefor constitutes a substantial part of the assets of Wendy’s/Arby’s or any
subsidiary; or (iv) an issuance or transfer (or a related series of issuances or transfers) of Wendy’s/Arby’s securities or the securities of any of its subsidiaries (except upon conversion of convertible securities as a result of a pro rata stock dividend or stock split) to an interested stockholder or an affiliate or associate of
an interested stockholder or an affiliate thereof, for consideration having an aggregate value of $5,000,000 or more; (v) a liquidation, dissolution, spin-off, split up or split off of Wendy’s/Arby’s (if as of the record date for the determination of stockholders entitled to vote with respect thereto or, if no vote would otherwise be required, the date the transaction is planned to be consummated, any person is an interested
stockholder); (vi) a reclassification of securities (including, without limitation, any combination of shares or reverse stock split) or recapitalization of Wendy’s/Arby’s or a reorganization, merger or consolidation of Wendy’s/Arby’s with any of its subsidiaries, or any similar transaction, in any case having the effect,
directly or indirectly, of increasing the percentage interest of an interested stockholder in any class of equity securities of Wendy’s/Arby’s or such subsidiary; and (vii) any agreement, contract or other arrangement providing for any of the transactions described in this definition of business combination. A “continuing director” is defined as one serving as a director whose election or appointment or recommendation by the Board of Directors for election by its stockholders was approved by at least a majority of the continuing directors then on its Board of Directors. This Proposal 5 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 66
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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