Exhibit
4.1
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 29, 2008
between
TRIARC COMPANIES, INC.,
as Issuer
and
WILMINGTON TRUST COMPANY,
as Trustee
_______________________________
5% Convertible
Notes Due 2023
SECOND SUPPLEMENTAL INDENTURE (this
“Second Supplemental Indenture”), dated as of September
29, 2008, between TRIARC COMPANIES, INC., a Delaware corporation
(the “Company”), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as trustee under the Indenture
referred to below (the “Trustee”).
W I T N E S S E T
H:
WHEREAS, the Company and the Trustee are parties
to that certain Indenture, dated as of May 19, 2003 (the
“Original Indenture”), as supplemented by the First
Supplemental Indenture, dated as of November 21, 2003 (the
“First Supplemental Indenture” and, together with the
Original Indenture and this Second Supplemental Indenture, the
“Indenture”), pursuant to which the Company duly issued
its 5% Convertible Notes due 2023 (the “Notes”) in the
aggregate principal amount of $175 million;
WHEREAS, Section 10.01(f) of the Original
Indenture provides that the Company, when authorized by resolutions
of the Board of Directors certified by the Secretary or Assistant
Secretary of the Company and the Trustee, may enter into
supplemental indentures without the consent of the Noteholders for
the purpose of, among other things, making such other provisions in
regard to matters or questions arising under the Indenture that
shall not materially adversely affect the interests of the holders
of the Notes;
WHEREAS, pursuant to the Agreement and Plan of
Merger, dated as of April 23, 2008 (the “Merger
Agreement”), among the Company, Green Merger Sub, Inc. and
Wendy’s International, Inc. (“Wendy’s”), on
the date hereof Wendy’s shareholders received 4.25 shares of
the Company’s Class A Common Stock, par value $0.10 per share
(“Class A Stock”), for each share of Wendy’s
common stock they own and Wendy’s became a wholly-owned
subsidiary of the Company (the “Wendy’s
Acquisition”);
WHEREAS, pursuant to the Merger Agreement, the
Company adopted an amendment to its certificate of incorporation
which, among other things, converted each issued and outstanding
share of Class B Common Stock, par value $0.10 per share
(“Class B Stock”) into one share of Class A Stock with
the result being that upon the filing of the amendment to the
certificate of incorporation with the Secretary of State of the
State of Delaware the Company has a single class of common stock
(the “Recapitalization”);
WHEREAS, Section 14.06 of the Original Indenture
addresses the consequences of a reclassification or change of the
outstanding shares of Common Stock and a consolidation, merger or
combination of the Company or a sale or conveyance of all or
substantially all of the properties and assets of the Company as a
result of which holders of Common Stock shall be entitled to
receive stock, other securities or other property or assets
(including cash) with respect to or in exchange for such Common
Stock;
WHEREAS, as a result of the Reclassification, in
the reasonable judgment of the Board of Directors, a conversion of
the shares of Reserved Class B Stock into shares of Reserved Common
Stock (as defined below) is necessary to approximate the results
that would be obtained under Section 14.06 with respect to the
Common Stock; and
WHEREAS, the Company and the Trustee wish and
have agreed to execute and deliver this Supplemental Indenture as
herein provided and all conditions and requirements necessary to
make this Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and
fulfilled and the execution and delivery hereof have been in all
respects duly authorized by all necessary parties.
NOW, THEREFORE, for and in consideration of the
promises contained herein, it is mutually covenanted and agreed for
the benefit of all Holders of the Notes as follows:
SECTION 1. Capitalized terms used herein without
definition shall have the meanings assigned to them in the
Indenture.
SECTION 2. The Indenture is hereby amended as
follows:
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(a)
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The following definition is added to
Section 1.01:
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“Reserved Common Stock” means Common
Stock in an amount equal to the number of shares of Class B Stock
which a Noteholder would have received in connection with a
conversion of the Notes if such holder had converted its Notes
immediately prior to the Reclassification.
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(b)
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Section 1.01 is hereby further amended by
changing the definition of “Closing Sale Price” to
read, in its entirety, as follows:
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“Closing Sale Price” of the shares
of Common Stock on any d
