AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

EXECUTION COPY

 

 

AGREEMENT AND PLAN OF MERGER

among

TRIARC COMPANIES, INC.,

GREEN MERGER SUB, INC.

and

WENDY’S INTERNATIONAL, INC.

Dated as of April 23, 2008

 

 

Table of Contents

		Page
ARTICLE I THE MERGER			2
Section 1.1 The Merger			2
Section 1.2 Closing			2
Section 1.3 Effective Time			2
Section 1.4 Effects of the Merger			2
Section 1.5 Articles of Incorporation and Code of Regulations of the Surviving Corporation			3
Section 1.6 Directors			3
Section 1.7 Officers			3
ARTICLE II CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES			3
Section 2.1 Effect of Merger on Capital Stock of Wendy’s and Merger Sub			3
Section 2.2 Exchange of Certificates			5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF WENDY’S			7
Section 3.1 Qualification, Organization, Subsidiaries, etc.			7
Section 3.2 Capital Stock			9
Section 3.3 Corporate Authority; No Violation			10
Section 3.4 Reports and Financial Statements			11
Section 3.5 Internal Controls and Procedures			12
Section 3.6 No Undisclosed Liabilities			12
Section 3.7 Compliance with Law; Permits			13
Section 3.8 Environmental Laws and Regulations			13
Section 3.9 Employee Benefit Plans			14
Section 3.10 Absence of Certain Changes or Events			18
Section 3.11 Investigations; Litigation			18
Section 3.12 Proxy Statement; Other Information			18
Section 3.13 Tax Matters			19
Section 3.14 Employee Relations Matters			22
Section 3.15 Intellectual Property			23
Section 3.16 Real Property			24
Section 3.17 Opinion of Financial Advisor			25
Section 3.18 Required Vote of Wendy’s Shareholders			26

		Page
Section 3.19 Takeover Statutes; Shareholder Rights Plan			26
Section 3.20 Material Contracts			26
Section 3.21 Franchise Matters			27
Section 3.22 Wendy’s Joint Ventures			29
Section 3.23 Finders or Brokers			30
Section 3.24 Insurance			30
Section 3.25 Affiliate Transactions			30
Section 3.26 Unrestricted Cash			30
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF TRIARC AND MERGER SUB			30
Section 4.1 Qualification; Organization, Subsidiaries, etc.			30
Section 4.2 Corporate Authority Relative to This Agreement; No Violation			32
Section 4.3 Capital Stock			33
Section 4.4 Reports and Financial Statements			35
Section 4.5 Internal Controls and Procedures			35
Section 4.6 No Undisclosed Liabilities			36
Section 4.7 Compliance with Law; Permits			36
Section 4.8 Environmental Laws and Regulations			36
Section 4.9 Employee Benefit Plans			37
Section 4.10 Absence of Certain Changes or Events			41
Section 4.11 Investigations; Litigation			41
Section 4.12 Proxy Statement; Other Information			41
Section 4.13 Tax Matters			42
Section 4.14 Employee Relations Matters			44
Section 4.15 Intellectual Property			45
Section 4.16 Real Property			46
Section 4.17 Opinion of Financial Advisor			47
Section 4.18 Intentionally omitted			47
Section 4.19 Vote of Triarc Stockholders			47
Section 4.20 Material Contracts			48
Section 4.21 Franchise Matters			49
Section 4.22 Triarc Joint Ventures			50
Section 4.23 Finders or Brokers			51

		Page
Section 4.24 Lack of Ownership of Common Shares			51
Section 4.25 Insurance			51
Section 4.26 Affiliate Transactions			51
ARTICLE V CERTAIN AGREEMENTS			51
Section 5.1 Conduct of Business by Wendy’s and by Triarc			51
Section 5.2 Investigation			62
Section 5.3 No Solicitation			63
Section 5.4 Filings; Other Actions			68
Section 5.5 Stock Options and Other Share Based Awards; Employee Matters			70
Section 5.6 Reasonable Best Efforts			74
Section 5.7 Takeover Statute			76
Section 5.8 Public Announcements			76
Section 5.9 Indemnification and Insurance			76
Section 5.10 Control of Operations			78
Section 5.11 Intentionally omitted .			78
Section 5.12 No Other Representations or Warranties			78
Section 5.13 Rights Plan			78
Section 5.14 Wendy’s Debt Obligations			79
Section 5.15 Stock Exchange Listing			79
Section 5.16 Tax Matters			79
Section 5.17 Triarc Board; Ticker Symbol			79
Section 5.18 Maintenance of Business Operations			79
Section 5.19 Triarc Transaction Support			79
ARTICLE VI CONDITIONS TO THE MERGER			80
Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger			80
Section 6.2 Conditions to Obligation of Wendy’s to Effect the Merger			81
Section 6.3 Conditions to Obligation of Triarc to Effect the Merger			82
Section 6.4 Frustration of Closing Conditions			83
ARTICLE VII TERMINATION			83
Section 7.1 Termination and Abandonment			83
Section 7.2 Effect of Termination			85
ARTICLE VIII MISCELLANEOUS			85
Section 8.1 No Survival of Representations and Warranties			85

		Page
Section 8.2 Expenses			85
Section 8.3 Counterparts; Effectiveness			85
Section 8.4 Governing Law			85
Section 8.5 Jurisdiction; Enforcement			86
Section 8.6 WAIVER OF JURY TRIAL			86
Section 8.7 Notices			86
Section 8.8 Assignment; Binding Effect			88
Section 8.9 Severability			88
Section 8.10 Entire Agreement; No Third Party Beneficiaries			88
Section 8.11 Amendments; Waivers			88
Section 8.12 Headings			89
Section 8.13 Interpretation			89
Section 8.14 Definitions			90

EXHIBITS

Exhibit A – Form of Triarc Voting Agreement
Exhibit B – Form of Wendy’s Voting Agreement
Exhibit C – Articles of Incorporation of Merger Sub
Exhibit D – Code of Regulations of Merger Sub
Exhibit E – Triarc Charter Amendment
Exhibit F – Triarc Bylaw Amendment

      AGREEMENT AND PLAN OF MERGER , dated as of April 23, 2008 (this “ Agreement ”), among Triarc Companies, Inc., a Delaware corporation (“ Triarc ”), Green Merger Sub, Inc. an Ohio corporation and a direct wholly-owned subsidiary of Triarc (“ Merger Sub ”), and Wendy’s International, Inc., an Ohio corporation (“ Wendy’s ”).

     WHEREAS, pursuant to this Agreement, in accordance with the applicable provisions of the Ohio General Corporation Law (the “ OGCL ”), Merger Sub will be merged with and into Wendy’s, with Wendy’s as the surviving corporation (the “ Merger ,” and as a result of the Merger, Wendy’s will become a direct wholly-owned subsidiary of Triarc;

     WHEREAS, it is intended for federal income tax purposes that the Merger shall qualify as a reorganization described in Section 368(a) of the United States Internal Revenue Code of 1986, as amended (the “ Code ”);

     WHEREAS, concurrently with the execution and delivery of this Agreement and as a condition to Wendy’s willingness to enter into this Agreement, (i) Nelson Peltz and Peter May, certain stockholders of Triarc, have entered into a Voting Agreement, dated as of the date of this Agreement, in the form attached as Exhibit A hereto (the “ Triarc Voting Agreement ”) pursuant to which such stockholders have, among other things, agreed to vote all of the shares of Class A Common Stock and Triarc Class B Common Stock owned by such stockholders at such time in favor of the Triarc Stockholder Approval Matters, and (ii) certain shareholders of Wendy’s have entered into a Voting Agreement, dated as of the date of this Agreement, in the form attached as Exhibit B hereto (the “ Wendy’s Voting Agreement ”) pursuant to which such shareholders have, among other things, agreed to vote all of the Common Shares owned by such shareholders in favor of the adoption of this Agreement and the Merger;

     WHEREAS, the board of directors of Wendy’s (the “ Board of Directors ”), based on the unanimous recommendation of a special committee of disinterested directors of Wendy’s (the “ Special Committee ”), has unanimously (excluding abstensions) (i) determined that it is in the best interests of Wendy’s and its shareholders, and declared it advisable, to enter into this Agreement, (ii) approved this Agreement and authorized the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and (iii) resolved to recommend its adoption by the shareholders of Wendy’s;

     WHEREAS, the board of directors of Triarc (the “ Triarc Board of Directors ”) has unanimously (i) determined that it is in the best interests of Triarc and its stockholders, and declared it advisable, to enter into this Agreement, (ii) declared the Triarc Charter Amendment advisable, (iii) approved this Agreement and authorized the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and (iv) resolved to recommend that the stockholders of Triarc approve the Triarc Stockholder Approval Matters;

     WHEREAS, the board of directors of Merger Sub has unanimously (i) determined that it is in the best interests of Merger Sub and its sole shareholder, and declared it advisable, to enter into this Agreement, (ii) approved this Agreement and authorized the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated

hereby, including the Merger and (iii) resolved to recommend that the sole shareholder of Merger Sub approve the Merger; and

     WHEREAS, Triarc, Merger Sub and Wendy’s desire to make certain representations, warranties and agreements specified in this Agreement in connection with this Agreement.

     NOW, THEREFORE, in consideration of the foregoing and the representations, warranties and agreements contained in this Agreement, and intending to be legally bound hereby, Triarc, Merger Sub and Wendy’s agree as follows:

ARTICLE I THE MERGER

          Section 1.1 The Merger . At the Effective Time (as defined below), upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the applicable provisions of the OGCL, Merger Sub will be merged with and into Wendy’s, whereupon the separate corporate existence of Merger Sub will cease, and Wendy’s will continue as the surviving corporation of the Merger and as a direct wholly-owned subsidiary of Triarc. Wendy’s in its capacity as the surviving corporation of the Merger is sometimes referred to herein as the “ Surviving Corporation ”.

          Section 1.2 Closing . The closing of the Merger (the “ Closing ”) will take place at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019 at 9:00 a.m., local time, on a date to be specified by the parties (the “ Closing Date ”), which shall be the later of (x) the second Business Day after the Dissenters Determination Date and (y) the second Business Day after the satisfaction or waiver (to the extent waiver is permitted by applicable Law) of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver (if legally permissible) of those conditions) or at such other place, date and time as Wendy’s and Triarc may agree in writing.

          Section 1.3 Effective Time . On the Closing Date, immediately after the Closing, the parties shall cause the Merger to be consummated by executing and filing a certificate of merger (the “ Certificate of Merger ”) with the Secretary of State of the State of Ohio and making all other filings or recordings required under the OGCL in connection with the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Ohio, or at such later date as the parties shall agree and as shall be set forth in the Certificate of Merger (the time the Merger becomes effective is referred to herein as the “ Effective Time ”).

          Section 1.4 Effects of the Merger . The effects of the Merger will be as provided in this Agreement and in the applicable provisions of the OGCL. Without limiting the generality of the foregoing, at the Effective Time, all the assets and property of every description, and every interest in the assets and property, wherever located, and the rights, privileges, immunities, powers, franchises and authority of Wendy’s and Merger Sub shall vest in the Surviving Corporation, and all obligations of Wendy’s and Merger Sub shall become the obligations of the Surviving Corporation, all as provided in the OGCL and the other applicable

Laws of the State of Ohio. At and after the Effective Time, the officers and directors of the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of Wendy’s and Merger Sub, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of Wendy’s and Merger Sub, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the properties, assets or rights of Wendy’s and Merger Sub.

          Section 1.5 Articles of Incorporation and Code of Regulations of the Surviving Corporation .

     (a) The articles of incorporation of Merger Sub as in effect immediately prior to the Effective Time, in the form attached hereto as Exhibit C , shall be the articles of incorporation of the Surviving Corporation until thereafter amended in accordance with the provisions thereof and this Agreement and applicable Law.

     (b) The code of regulations of Merger Sub as in effect immediately prior to the Effective Time, in the form attached hereto as Exhibit D , shall be the code of regulations of the Surviving Corporation until thereafter amended in accordance with the provisions thereof and this Agreement and applicable Law.

          Section 1.6 Directors . The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation and shall hold office until their respective successors are duly elected and qualified, or until their earlier death, resignation or removal.

          Section 1.7 Officers . The officers of Wendy’s immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation and shall hold office until their respective successors are duly elected and qualified, or until their earlier death, resignation or removal.

ARTICLE II CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

          Section 2.1 Effect of Merger on Capital Stock of Wendy’s and Merger Sub . At the Effective Time, by virtue of the Merger and without any action on the part of Wendy’s, Merger Sub or the holders of any securities of Wendy’s or Merger Sub:

     (a)  Conversion of Common Shares . Subject to Sections 2.1(b), 2.1(d), 2.1(e), 2.1(f) and 2.2, each common share, without par value, of Wendy’s issued and outstanding immediately prior to the Effective Time (collectively, the “ Common Shares ”, and each, a “ Common Share ” ), including Restricted Shares, shall at the Effective Time, be converted into and shall thereafter represent the right to receive 4.25 (the “ Exchange Ratio ”) fully paid and non-assessable shares of Class A Common Stock (the “ Merger Consideration ”), upon surrender of the certificate(s) representing such Common Shares as provided in this Article II, and all Common Shares that have been converted into the right to receive the Merger Consideration as provided in this Section 2.1 shall be automatically cancelled and shall cease to exist.

     (b)  Cancellation of Treasury Stock and Triarc and Merger Sub-Owned Shares . Each Common Share that is held by Triarc or any Subsidiary of Triarc immediately prior to the Effective Time or held by Wendy’s or any Subsidiary of Wendy’s (as treasury stock or otherwise) immediately prior to the Effective Time (the “ Cancelled Shares ”) shall, by virtue of the Merger and without any action on the part of the holder thereof, be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor or in respect thereof.

     (c)  Conversion of Merger Sub Common Shares . At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each common share, without par value, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and nonassessable common share, without par value, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and those shares of the Surviving Corporation shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing common shares of Merger Sub will for all purposes represent the number of common shares of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.

     (d)  Adjustments . If at any time between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of Wendy’s or Triarc shall occur as a result of any reclassification, recapitalization, share split (including a reverse share split) or combination, exchange or readjustment of shares, or any share dividend or share distribution with a record date during such period (but not as a result of the settlement of any Wendy’s Share-Based Award or the exercise of any outstanding Wendy’s Stock Option or Triarc capital stock-based award or Triarc capital stock options), the Exchange Ratio will be equitably adjusted to reflect such change.

     (e)  Dissenting Shares . Notwithstanding anything in this Agreement to the contrary, to the extent required by the OGCL, Common Shares that are issued and outstanding immediately prior to the Effective Time and that are held by any shareholder who was a record holder of the Common Shares as to which such shareholder seeks relief as of the date fixed for determination of shareholders entitled to notice of the Wendy’s Meeting and who shall not have voted in favor of adoption of this Agreement at the Wendy’s Meeting and who files with Wendy’s within 10 days after such vote at the Wendy’s Meeting (the “ Dissenters Determination Date ”), a written demand to be paid the fair cash value for such Common Shares in accordance with Sections 1701.84 and 1701.85 of the OGCL (“ Dissenting Shares ”) will not be converted into the right to receive the Merger Consideration as provided in Section 2.1(a), unless and until such shareholder fails to demand payment properly or otherwise loses such shareholder’s rights as a dissenting shareholder, if any, under the OGCL. If any such shareholder fails to perfect or loses any such rights as a dissenting shareholder, that shareholder’s Common Shares shall thereupon be deemed to have been converted as of the Effective Time into only the right to receive at the Effective Time the Merger Consideration, without interest. From and after the

Effective Time, each shareholder who has asserted rights as a dissenting shareholder as provided in Sections 1701.84 and 1701.85 of the OGCL shall be entitled only to such rights as are granted under those sections of the OGCL. Wendy’s shall promptly notify Triarc of each shareholder who asserts rights as a dissenting shareholder within three Business Days thereof. Prior to the Effective Time Wendy’s shall not, except with the prior written consent of Triarc, which shall not be unreasonably withheld, conditioned or delayed, make any payment with respect to, or settle or offer to settle, any rights of a dissenting shareholder asserted under Section 1701.85 of the OGCL.

     (f)  No Fractional Shares . Notwithstanding any other provision of this Agreement, neither certificates nor scrip for fractional shares of Class A Common Stock shall be issued in the Merger. Each holder of Common Shares who otherwise would have been entitled to a fraction of a share of Class A Common Stock shall receive in lieu thereof cash (without interest) in an amount determined by multiplying the fractional share interest to which such holder would otherwise be entitled, calculated to the nearest ten thousandth (i.e., four decimal places (.xxxx)) by the closing price of a share of Class A Common Stock on the NYSE on the date the Merger becomes effective. No such holder shall be entitled to dividends, voting rights or any other rights in respect of any fractional share of Class A Common Stock.

          Section 2.2 Exchange of Certificates .

     (a)  Appointment of Exchange Agent . Prior to the mailing of the Proxy Statement (as defined herein), Triarc shall appoint a bank or trust company reasonably acceptable to Wendy’s to act as exchange agent (the “ Exchange Agent ”) for the payment of the Merger Consideration.

     (b)  Letter of Transmittal . As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of a Certificate, a letter of transmittal (which shall be in customary form and shall specify that delivery shall be effectuated, and risk of loss and title to the certificates for the Common Shares (the “ Certificates ”) shall pass only upon proper delivery of the Certificate to the Exchange Agent) and instructions for use in effecting the surrender of the Certificates pursuant to such letter of transmittal. Upon surrender to the Exchange Agent of a Certificate for cancellation, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor: (A) a certificate representing that number of whole shares of Class A Common Stock which such holder has the right to receive with respect to the Common Shares formerly represented by such Certificate after taking into account all Common Shares then held by such holder, and (B) cash in lieu of any fractional shares of Class A Common Stock to which such holder is entitled pursuant to Section 2.1(f) and any dividends or other distributions to which such holder is entitled pursuant to Section 2.2(d) and the Certificate so surrendered shall forthwith be cancelled.

     (c)  Exchange Fund . At or prior to the Effective Time, Triarc shall deposit, or shall cause to be deposited, with the Exchange Agent (pursuant to an agreement in form and substance reasonably acceptable to Triarc and Wendy’s (the “ Exchange Agent Agreement ”)), in trust for the benefit of holders of the Common Shares, (i) cash in U.S. dollars sufficient to make

payments in lieu of any fractional shares pursuant to Section 2.1(f), (ii) certificates representing shares of Class A Common Stock sufficient to issue the Merger Consideration in exchange for all of the Common Shares outstanding immediately prior to the Effective Time (other than the Cancelled Shares), payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Common Shares represented by book-entry (“ Book-Entry Shares ”) pursuant to this Article II (such cash and certificates representing shares of Class A Common Stock, together with any dividends or distributions with respect thereto, referred to in subsections (a)(i) and (a)(ii) being hereinafter referred to as the “ Exchange Fund ”) and (iii) any dividends or distributions to which holders of Certificates may be entitled pursuant to Section 2.2(d); provided that once the Dissenting Shares Amount is determined, such amount will be returned in cash to the Surviving Corporation by the Exchange Agent as soon as reasonably practicable following the Dissenters Determination Date.

     (d)  Distributions with respect to Unsurrendered Certificates . Whenever a dividend or other distribution is declared or made after the date hereof with respect to the Class A Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all shares of Class A Common Stock issuable pursuant to this Agreement. No dividends or other distributions, if any, with a record date after the Effective Time with respect to Class A Common Stock shall be paid to the holder of any unsurrendered Common Share which is being converted into the Merger Consideration pursuant to Section 2.1(a) until such holder shall surrender such Common Share in accordance with this Section 2.2. After the surrender of a Common Share in accordance with this Section 2.2, such holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to whole shares of Class A Common Stock represented by such Common Share.

     (e)  Withholding Rights . Each of Triarc, Wendy’s and the Exchange Agent is entitled to deduct and withhold from the consideration otherwise payable under this Agreement to any holder of Common Shares, such amounts as are required to be withheld or deducted under the Code, or any provision of state, local or foreign Tax Law with respect to the making of such payment. Amounts so withheld or deducted and paid over to the applicable Governmental Entity will be treated for all purposes of this Agreement as having been paid to the holder of the Common Shares in respect of which such deduction and withholding were made.

     (f)  Closing of Transfer Books . At the Effective Time, the share transfer books of Wendy’s will be closed, and there will be no further registration of transfers on the share transfer books of the Surviving Corporation of the Common Shares that were outstanding immediately prior to the Effective Time.

     (g)  Termination of Exchange Fund . Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains undistributed to the former holders of Common Shares on the first anniversary of the Effective Time will be delivered to the Surviving Corporation, and any former holder of Common Shares who has not surrendered its Certificates in accordance with this Section 2.2 shall thereafter look only to the Surviving Corporation for payment of any claim for the Merger Consideration, without any interest thereon, upon due surrender of such Certificates. If outstanding Certificates are not surrendered prior to the sixth anniversary of the Effective Time (or, in any particular case, prior to such

earlier date on which any Merger Consideration issuable or payable upon the surrender of such Certificates would otherwise escheat to or become the property of any governmental unit or agency), the Merger Consideration issuable or payable upon the surrender of such Certificates shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

     (h)  No Liability . Notwithstanding anything herein to the contrary, none of Wendy’s, Triarc, Merger Sub, the Surviving Corporation, the Exchange Agent or any other person will be liable to any former holder of Common Shares for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

     (i)  Investment of Exchange Fund . The Exchange Agent shall invest all cash included in the Exchange Fund as reasonably directed by Triarc; but any investment of such cash must be limited to direct, short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the United States government. Any interest and other income resulting from such investments will be paid to the Surviving Corporation pursuant to the Exchange Agent Agreement.

     (j)  Lost Certificates . Upon the making of an affidavit that any Certificate has been lost, stolen or destroyed by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Exchange Agent, the posting by such person of a bond in customary amount as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate Consideration in the amount required by this Article II.

ARTICLE III REPRESENTATIONS AND WARRANTIES OF WENDY’S

     Except as disclosed in the Filed Wendy’s SEC Documents or in the Wendy’s Disclosure Schedule, in each case, subject to Section 8.13(b), Wendy’s represents and warrants to Triarc and Merger Sub as follows:

          Section 3.1 Qualification, Organization, Subsidiaries, etc.

     (a) Each of Wendy’s and its Subsidiaries is a legal entity validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted.

     (b) Each of Wendy’s and its Subsidiaries is qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing, or to have such power or authority has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. As used in this Agreement, “ Wendy’s Material Adverse Effect ” means any change, effect, event, occurrence or state of facts that is materially adverse to the assets, properties, business or financial condition or results of operations of Wendy’s and its Subsidiaries, taken as a whole, but shall not include an effect

arising from facts, circumstances, events or changes, (a) generally affecting the quick service restaurant industry in the United States or the economy or the financial or securities markets in the United States or elsewhere in the world, including regulatory, social or political conditions or developments (including any outbreak or escalation of hostilities or acts of war, whether or not pursuant to the declaration of a national emergency or war, or acts of terrorism) or changes in interest rates or (b) to the extent resulting from (i) the announcement of, or compliance with, this Agreement or the announcement of the transactions contemplated by this Agreement, other than for purposes of Sections 3.2(e), 3.3 and 3.9(g) (and the condition contained in Section 6.3(a) with respect thereto), (ii) any litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to this Agreement or the transactions contemplated by this Agreement, (iii) changes in applicable Law or accounting principles generally accepted in the United States (“ GAAP ”) or interpretation thereof, (iv) changes, solely in and of themselves, in the market price or trading volume of the Common Shares, (v) changes, solely in and of themselves, in any analyst’s recommendations, any financial strength rating or any other recommendations or ratings as to Wendy’s or its Subsidiaries (including, in and of itself, any failure to meet analyst projections), (vi) the loss by Wendy’s or any of its Subsidiaries of any of its customers, suppliers, franchisees or employees as a result of the transactions contemplated by this Agreement, (vii) weather, (viii) the seasonality of the business of Wendy’s and its Subsidiaries, (ix) effects of public perceptions of food safety applicable to the quick service restaurant industry generally or (x) the failure, in and of itself, of Wendy’s to meet any expected or projected financial or operating performance target, but not any underlying cause of such failure, whether internal or published, for any period ending on or after the date of this Agreement as well as any change, in and of itself, by Wendy’s in any expected or projected financial or operating performance target as compared with any target prior to the date of this Agreement; provided , however , that any change, effect, development, event or occurrence described in each of clauses (a), (b)(iii), (b)(vii) and b(ix) above shall not constitute or give rise to a Wendy’s Material Adverse Effect only if and to the extent that such change, effect, development, event or occurrence does not have a materially disproportionate effect on Wendy’s and its Subsidiaries as compared to other persons in the quick service restaurant industry and provided   further that the facts, circumstances or events underlying the change or failure in clauses (b)(iv), (b)(v), and (b)(x) above shall not be excluded to the extent such facts, circumstances or events would otherwise constitute a Wendy’s Material Adverse Effect. For the avoidance of doubt, (a) Wendy’s results of operations for the quarter ended March 30, 2008 and (b) the trend reflected therein shall not constitute a Wendy’s Material Adverse Effect.

     (c) Wendy’s has made available to Triarc prior to the date of this Agreement a true and complete copy of Wendy’s Articles of Incorporation and New Regulations, each as amended through the date of this Agreement (such articles of incorporation, the “ Wendy’s Articles ” and such code of regulations, the “ Wendy’s Regulations ”), and the articles of incorporation and code of regulations or similar organizational documents of each Material Subsidiary, each as amended through the date of this Agreement. The Wendy’s Articles and Wendy’s Regulations are in full force and effect. The articles of incorporation and code of regulations or similar organizational documents of each Material Subsidiary of Wendy’s are in full force and effect. Neither Wendy’s nor any of its Material Subsidiaries is in violation of any provisions of its articles of incorporation or regulations or similar organizational documents, other than such violations as have not had and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. Section 3.1(c) of the

Wendy’s Disclosure Schedules sets forth, as of the date of this Agreement, a complete and accurate list of all of Wendy’s Subsidiaries which are “significant subsidiaries” under Regulation S-X of the Exchange Act (the “ Material Subsidiaries ”).

          Section 3.2 Capital Stock .

     (a) The authorized capital stock of Wendy’s consists of 200,000,000 Common Shares, and 250,000 preferred shares, with $1.00 par value, of which 150,000 shares have been designated as “Series A Preferred Shares” (the “ Wendy’s Preferred Shares ”). As of March 30, 2008, (i) 130,258,588 Common Shares were issued, which number includes (a) 87,414,310 Common Shares issued and outstanding, (b) 104,394 Restricted Shares and (c) 42,844,278 Common Shares held in treasury, (ii) 2,075,635 Common Shares were reserved for issuance upon the exercise of outstanding options under the WeShare Stock Option Plan, 1990 Stock Option Plan, 2003 Stock Incentive Plan and 2007 Stock Incentive Plan (collectively, the “ Wendy’s Share Plans ”), (iii) 998,985 Common Shares were reserved for issuance upon the settlement of outstanding restricted stock units and other Wendy’s Share-Based Awards under the Wendy’s Share Plans and (iv) no Wendy’s Preferred Shares were issued or outstanding. All outstanding Common Shares, and all Common Shares reserved for issuance as noted in the immediately preceding clauses (ii) and (iii), when issued in accordance with the respective terms thereof, are or will be duly authorized, validly issued, fully paid and non-assessable and not issued in violation of any preemptive rights, purchase option, call or right of first refusal rights.

     (b) Except as set forth in subsection (a) above, as of the date of this Agreement, (i) Wendy’s does not have any shares of its capital stock issued or outstanding other than Common Shares that have become outstanding after March 30, 2008, and were reserved for issuance as set forth in subsection (a) above, and (ii) there are no outstanding subscriptions, options, stock appreciation rights, warrants, calls, convertible securities, restricted stock units, performance units, deferred stock units or other similar rights, agreements or commitments relating to the issuance of capital stock or voting securities to which Wendy’s or any of its Subsidiaries is a party obligating Wendy’s or any of its Subsidiaries to (A) issue, transfer or sell any shares of capital stock or other equity interests of Wendy’s or any Subsidiary of Wendy’s or securities convertible into or exchangeable for such shares or equity interests, (B) grant, extend or enter into any such subscription, option, stock appreciation right, warrant, call, convertible securities, restricted stock units, performance units, deferred stock units or other similar right, agreement or arrangement, (C) redeem or otherwise acquire, or vote or dispose of, any such shares of capital stock or other equity interests or (D) provide a material amount of funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of Wendy’s.

     (c) Except as set forth in subsection (a) above, neither Wendy’s nor any of its Subsidiaries has outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the shareholders of Wendy’s on any matter.

     (d) There are no voting trusts or other agreements or understandings to which Wendy’s or any of its Subsidiaries is a party with respect to the voting of the capital stock or other equity interests of Wendy’s or any of its Subsidiaries.

     (e) No consent or approval is required from the holder of any Wendy’s Stock Option, Restricted Share (other than in respect of the right of such shares to vote generally with the Common Shares) or Wendy’s Share-Based Award to effectuate the terms of this Agreement.

     (f) All outstanding shares of capital stock of, or other equity interests in, each Subsidiary of Wendy’s are duly authorized, validly issued, fully paid and nonassessable and were not issued in violation of any preemptive or similar rights, purchase option, call or right of first refusal or similar rights. All outstanding shares of capital stock of, or other equity interests in, each Subsidiary of Wendy’s that are owned by Wendy’s or a Subsidiary of Wendy’s are free and clear of all liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “ Lien ”), other than Permitted Liens. As used in this Agreement “ Permitted Liens ” means, as to any person, any Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) that is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s or other similar lien arising in the ordinary course of business, (C) that is disclosed on the most recent consolidated balance sheet of Wendy’s or notes thereto or securing liabilities reflected on such balance sheet, (D) that was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of such person, (E) with respect to Owned Real Property and Leased Real Property, related to the rights of tenants and subtenants under Real Property Leases and Real Property Subleases, including, without limitation, any right of first offer, right of first refusal or options to purchase, (F) with respect to Owned Real Property and Leased Real Property, that is disclosed by any title commitment, any title policy, survey or other document made available to either Triarc or Wendy’s, as applicable, (G) that is a title exception, defect, encumbrance or other matter, whether or not of record, which does not materially affect the continued use of the property for the purposes for which the property is currently being used by such person or a Subsidiary of such person as of the date of this Agreement or (H) with respect to any Real Property Lease that affects the interest of the landlord thereunder, which does not materially impair the value or use of such Real Property Lease.

          Section 3.3 Corporate Authority; No Violation .

     (a) Wendy’s has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Wendy’s Shareholder Approval, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors and, except for (i) the Wendy’s Shareholder Approval, (ii) the Opt-Out Approval and (iii) the filing of the Certificate of Merger with the Secretary of State of the State of Ohio, no other corporate proceedings on the part of Wendy’s are necessary to authorize this Agreement or the consummation of the transactions contemplated hereby. The Special Committee, at a meeting duly called and held, has by unanimous vote of all its members approved this Agreement, the Merger and the other transactions contemplated by this Agreement to which Wendy’s is a party. The Board of Directors, at a meeting duly called and held, has by unanimous vote of all its members, duly adopted resolutions (i) approving this Agreement, the Merger and the other transactions contemplated by this Agreement to which Wendy’s is a party, (ii) directing that the adoption of this Agreement be submitted to a vote at a meeting of the shareholders of Wendy’s and (iii) recommending that the shareholders of Wendy’s adopt this

Agreement (the item set forth in clause (iii) of this sentence, the “ Recommendation ”). This Agreement has been duly and validly executed and delivered by Wendy’s and, assuming this Agreement constitutes the valid and binding agreement of Triarc and Merger Sub, constitutes the valid and binding agreement of Wendy’s, enforceable against Wendy’s in accordance with its terms.

     (b) Subject to the accuracy of the representations and warranties of Triarc and Merger Sub in Section 4.2(b), no authorization, consent, permit, action or approval of, or filing with, or notification to, any United States federal, state or local, provincial or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “ Governmental Entity ”) is necessary, under applicable Law, for the consummation by Wendy’s and its Subsidiaries of the transactions contemplated by this Agreement, except for such authorizations, consents, permits, actions, approvals, notifications or filings required under (i) the OGCL, (ii) the Securities Act of 1933, as amended (the “ Securities Act ”), (iii) the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), (iv) the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “ HSR Act ”), (v) the Competition Act (Canada) R.S.C. 1985, c. C-34, as amended (the “ Competition Act ” ) and (vi) the items set forth on Section 3.3(b) of the Wendy’s Disclosure Schedule (collectively, the “ Wendy’s Approvals ”), and except for such authorizations, consents, permits, actions, approvals, notifications or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

     (c) The execution and delivery by Wendy’s of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions of this Agreement will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation or acceleration of any material obligation or to the loss of a material benefit under, any Wendy’s Material Contract, (ii) conflict with or result in any violation of any provision of the Wendy’s Articles or the Wendy’s Regulations or any of the Wendy’s Subsidiary Organizational Documents or (iii) assuming the Wendy’s Approvals are obtained, conflict with or violate any applicable Laws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, amendment, cancellation, acceleration, right or loss that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

          Section 3.4 Reports and Financial Statements .

     (a) Wendy’s has filed or furnished all forms, documents and reports required to be filed or furnished since January 2, 2006 by it with the Securities and Exchange Commission (the “ SEC ”) (the “ Wendy’s SEC Documents ”). As of their respective dates, or, if amended, as of the date of the last such amendment (excluding any amendments made after the date of this Agreement), the Wendy’s SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Wendy’s SEC Documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , that , with respect to projected financial

information provided by or on behalf of Wendy’s, Wendy’s represents only that such information was prepared in good faith by management of Wendy’s on the basis of assumptions believed by such management to be reasonable as of the time made. To the knowledge of Wendy’s, none of the Wendy’s SEC Documents is the subject of any outstanding SEC comments or outstanding SEC investigation. No Subsidiary of Wendy’s is required to file any form or report with the SEC.

     (b) The consolidated financial statements (including all related notes and schedules) of Wendy’s included in the Wendy’s SEC Documents fairly present in all material respects the consolidated financial position of Wendy’s and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended (subject, in the case of the unaudited statements, to normal year-end audit adjustments and to any other adjustments described therein, including the notes thereto), in each case in accordance with GAAP (except, in the case of the unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto).

          Section 3.5 Internal Controls and Procedures . Wendy’s has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Wendy’s disclosure controls and procedures are reasonably designed to provide reasonable assurance that all material information required to be disclosed by Wendy’s in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to Wendy’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”). Wendy’s management has completed assessment of the effectiveness of Wendy’s internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the year ended December 30, 2007, and such assessment concluded that such controls were effective. Wendy’s has disclosed, based on its most recent evaluation prior to the date of this Agreement, to Wendy’s auditors and the audit committee of the Board of Directors and to Triarc (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect in any material respect Wendy’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves executive officers or employees who have a significant role in Wendy’s internal controls over financial reporting. As of the date of this Agreement, to the knowledge of Wendy’s, Wendy’s has not identified any significant deficiencies or any material weaknesses in the design or operation of internal controls over financial reporting. There are no outstanding loans made by Wendy’s or any of its Subsidiaries to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Wendy’s.

          Section 3.6 No Undisclosed Liabilities . Except (a) as reflected or reserved against in Wendy’s consolidated balance sheets (or the notes thereto) included in the

Filed Wendy’s SEC Documents, (b) as are incurred after the date of this Agreement and are permitted to be incurred by this Agreement, (c) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 30, 2007 that would not reasonably be expected, individually or in the aggregate, to have a Wendy’s Material Adverse Effect and (d) liabilities or obligations which have been discharged or paid in full in the ordinary course of business, as of the date of this Agreement, neither Wendy’s nor any Subsidiary of Wendy’s has any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, and whether or not required by GAAP to be reflected on a consolidated balance sheet of Wendy’s and its Subsidiaries (or in the notes thereto), other than those that have not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

          Section 3.7 Compliance with Law; Permits .

     (a) Wendy’s and each of its Subsidiaries are, and at all times since January 2, 2006 have been, in compliance with and not in default under or in violation of any applicable federal, state, provincial, municipal, local or foreign law, statute, ordinance, rule, regulation, judgment, order, injunction, decree or agency requirement of any Governmental Entity (collectively, “ Laws ” and each, a “ Law ”), except for any such non-compliance, default or violation that would not, individually or in the aggregate, be material to Wendy’s and its Subsidiaries, taken as a whole. Notwithstanding anything contained in this Section 3.7(a), no representation or warranty is made in this Section 3.7(a) in respect of the matters referenced in Section 3.4 or 3.5, or in respect of environmental, Tax, employee benefits or labor Law matters.

     (b) Wendy’s and its Subsidiaries are in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Entity necessary for Wendy’s and its Subsidiaries to own, lease and operate their properties and assets or to carry on their businesses as they are now being conducted (the “ Wendy’s Permits ”), except for any failure to have any of the Wendy’s Permits that have not had and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. All Wendy’s Permits are in full force and effect, except for any failure to be in full force and effect that has not had and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

          Section 3.8 Environmental Laws and Regulations .

     (a) Except as has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect, (i) Wendy’s and its Subsidiaries have conducted their respective businesses in compliance with all applicable Environmental Laws, (ii) to the knowledge of Wendy’s, none of the properties owned, leased or operated by Wendy’s or any of its Subsidiaries contains any Hazardous Substance in amounts which would reasonably be expected to give rise to liability under Environmental Laws, (iii) since January 2, 2006, neither Wendy’s nor any of its Subsidiaries has received any written notice, demand letter or written request for information from any Governmental Entity indicating that Wendy’s or any of its Subsidiaries or any person whose liability Wendy’s or any of its Subsidiaries has retained or assumed, either contractually or by operation of law, may be in violation of, or liable under, any Environmental Law, (iv) to the

knowledge of Wendy’s, no Hazardous Substance has been disposed of, released or transported in violation of any applicable Environmental Law, or in a manner which has given rise to any liability under Environmental Law, from any properties presently or formerly owned, leased or operated by Wendy’s or any of its Subsidiaries or any other property and (v) neither Wendy’s, its Subsidiaries nor any of their respective properties or any person whose liability Wendy’s or any of its Subsidiaries has retained or assumed, either contractually or by operation of law, is subject to any liabilities relating to any pending or, to the knowledge of Wendy’s, threatened suit, settlement, court order, administrative order, regulatory requirement, judgment or written claim asserted or arising under any Environmental Law. No representation or warranty is made by Wendy’s in respect of environmental matters in any Section of this Agreement other than in this Section 3.8. Wendy’s has made available to Triarc true and complete copies of all material environmental records, reports, notifications, certificates of need, permits, engineering studies, and environmental studies or assessments, in each case as requested by Triarc and in Wendy’s possession, and in each case as amended and in effect.

     (b) As used in this Agreement, “ Environmental Law ” means any Law relating to (i) the protection, preservation or restoration of the environment (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource) or (ii) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Substances.

     (c) As used in this Agreement, “ Hazardous Substance ” means any substance presently listed, defined, designated or classified as hazardous, toxic, radioactive, or dangerous, or otherwise regulated, under any Environmental Law. Hazardous Substance includes any substance to which exposure is regulated by any Governmental Entity or any Environmental Law including any toxic waste, pollutant, contaminant, hazardous substance (including toxic mold), toxic substance, hazardous waste, special waste, industrial substance or petroleum or any derivative or byproduct thereof, radon, radioactive material, asbestos, or asbestos containing material, urea formaldehyde, foam insulation or polychlorinated biphenyls.

          Section 3.9 Employee Benefit Plans .

     (a) Section 3.9(a)(i) of the Wendy’s Disclosure Schedule sets forth a true and complete list of each material employee or director benefit plan, arrangement or agreement, including any material employee welfare benefit plan (including post-retirement health and insurance plan) within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974 (“ ERISA ”), any employee pension benefit plan within the meaning of Section 3(2) of ERISA and any material bonus, incentive, deferred compensation, vacation, share purchase, stock option, equity or equity-based severance, employment, change of control or fringe benefit plan, program agreement or policy (the “ Wendy’s Benefit Plans ”) that is sponsored, maintained or contributed to, or required to be maintained or contributed to, by Wendy’s, or any of its Subsidiaries, to which Wendy’s or any Commonly Controlled Entity has any liability, contingent or otherwise, for the benefit of any current or former director, officer, employee or independent contractor of Wendy’s or any of its Subsidiaries (other than any Wendy’s Benefit Agreement or Wendy’s Foreign Plan). Section 3.9(a)(i) of the Wendy’s Disclosure Schedule also sets forth the “Title IV Plans” (as defined in Section 3.9(d)) or “MultiEmployer Plans” (as defined in

Section 3.9(e)) sponsored, maintained or contributed to, or required to be maintained or contributed to, by any other person or entity that, together with Wendy’s, is treated as a single employer under Section 414 of the Code (each, a “ Commonly Controlled Entity ”) and such plans shall also be referred to herein as Wendy’s Benefit Plans. Section 3.9(a)(ii) of the Wendy’s Disclosure Schedule sets forth a complete and accurate list of each currently effective employment, deferred compensation, severance, change in control, retention, indemnification or other similar material contract between Wendy’s or any of its Subsidiaries, on the one hand, and any current or former director, officer, employee or independent contractor of Wendy’s or any of its Subsidiaries, on the other hand, other than any contract mandated by applicable Law (each, a “ Wendy’s Benefit Agreement ”) (other than any Wendy’s Benefit Plan or Wendy’s Foreign Plan). Schedule 3.9(a)(iii) of the Wendy’s Disclosure Schedule sets forth each Wendy’s Benefit Plan or Wendy’s Benefit Agreement that is maintained outside the jurisdiction of the United States, including any such plan required to be maintained or contributed to by applicable Law, custom or rule of the relevant jurisdiction (each, a “ Wendy’s Foreign Plan ” ).

     (b) With respect to each Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan, Wendy’s has made available to Triarc complete and accurate copies of each of the following documents, as applicable: (i) such written Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan (including all amendments thereto) or a written description of any such Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan that is not otherwise in writing, (ii) the three most recent Annual Reports on IRS Form 5500 Series and accompanying schedules, if any, (iii) the most recent actuarial valuation report required to be filed under ERISA or required pursuant to applicable Laws or the terms of such Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan, (iv) a copy of the most recent summary plan description (“ SPD ”), together with all summaries of material modifications issued with respect to such SPD, if required under ERISA or required pursuant to applicable Laws or the terms of such Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan, and all other material employee communications relating to each Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan, (v) if such Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan is funded through a trust or any other funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof, if any, (vi) all contracts relating to such Wendy’s Benefit Plan, Wendy’s Benefit Agreement or Wendy’s Foreign Plan with respect to which Wendy’s, any of its Subsidiaries or any Commonly Controlled Entity may have any liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements, (vii) the most recent determination letter received from (or determination letter request submitted to) the Internal Revenue Service (“ IRS ”) or the most recent master or prototype opinion letter issued by the IRS with respect to a master or prototype plan adopted by Wendy’s or any Commonly Controlled Entity upon which such sponsor is entitled to rely (if applicable) with respect to any Wendy’s Benefit Plan that is intended to be qualified under Section 401(a) of the Code and (viii) communications (other than routine communications) from the IRS, the Department of Labor (“ DOL ”) or the Pension Benefit Guaranty Corporation or any successor thereto (“ PBGC ”) with respect to any such Wendy’s Benefit Plan.

     (c) Except as has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect:

(i) each of the Wendy’s Benefit Plans, Wendy’s Benefit Agreements and Wendy’s Foreign Plans (and any related trust or other funding vehicle) has been operated and administered in compliance with its terms (except where permitted under applicable Laws) and applicable Laws, including, but not limited to, ERISA and the Code and in each case the regulations thereunder and (ii) each of the Wendy’s Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code is so qualified, and, to the knowledge of Wendy’s there are no existing circumstances or events that have occurred that could reasonably be expected to adversely affect the qualified status of any such plan.

     (d) None of Wendy’s, any of its Subsidiaries or any Commonly Controlled Entity has during the period beginning with the sixth plan year preceding the plan year that includes the Effective Time ever sponsored, maintained, contributed to or been required to maintain or contribute to, or has any actual or contingent liability under any Wendy’s Benefit Plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code other than a MultiEmployer Plan as defined in Section 3.9(e) (a “ Title IV Plan ”).

     (e) No Wendy’s Benefit Plan is a “multiemployer pension plan” (as such term is defined in Section 3(37) of ERISA) (a “ MultiEmployer Plan ”) or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA; and none of Wendy’s, any of its Subsidiaries or any Commonly Controlled Entity has, at any time, incurred liability as a result of a withdrawal from a MultiEmployer Plan in a “complete withdrawal” or “partial withdrawal” as defined in Sections 4203 and 4205 of ERISA, respectively, that has not been satisfied in full. All contributions required to be made by Wendy’s, any of its Subsidiaries or any Commonly Controlled Entity to each MultiEmployer Plan on behalf of one or more current or former employees have been made when due in all material respects. Wendy’s has not received written notice that (i) a MultiEmployer Plan has been terminated or has been in reorganization under ERISA so as to result in any liability of Wendy’s or any Commonly Controlled Entity under Title IV of ERISA or (ii) any proceeding has been initiated by any person (including the PBGC) to terminate any MultiEmployer Plan.

     (f) All contributions or other amounts payable by Wendy’s or its Subsidiaries as of the date of this Agreement with respect to each Wendy’s Benefit Plan in respect of the current or six prior plan years have been paid or, if not yet due have been properly accrued in accordance with GAAP in all material respects. Neither Wendy’s nor any of its Subsidiaries has engaged in a transaction in connection with which Wendy’s or any of its Subsidiaries reasonably could be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code. There are no pending or, to the knowledge of Wendy’s, threatened claims (other than routine claims for benefits) by, on behalf of or against any of the Wendy’s Benefit Plans or any trusts related thereto that could reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

     (g) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event, including termination of employment at or following the Effective Time) will (i) result in any material payment (including, without limitation, severance, unemployment

compensation, change in control, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director, officer, employee or independent contractor of Wendy’s or any of its Subsidiaries from Wendy’s or any Commonly Controlled Entity under any Wendy’s Benefit Plan, Wendy’s Benefit Agreement or otherwise, (ii) materially increase any benefits otherwise payable under any Wendy’s Benefit Plan or Wendy’s Benefit Agreement, (iii) result in any acceleration of the time of payment or vesting of any such benefits, (iv) require the funding of any such benefits or (v) result in any breach or violation of or default under, or limit (except as may be specifically set forth in this Agreement) Wendy’s right to amend, modify or terminate, any collective bargaining agreement, Wendy’s Benefit Plan or Wendy’s Benefit Agreement.

     (h) No amounts payable under any of the Wendy’s Benefit Plans, Wendy’s Benefit Agreements, or any other contract, agreement or arrangement with respect to which Wendy’s or any Commonly Controlled Entity may have liability fails to be deductible for federal income tax purposes by virtue of Section 162(m) or Section 280G of the Code.

     (i) All Wendy’s Stock Options have an exercise price per share that was not less than the “fair market value” of a Common Share on the date of grant, as determined in accordance with the terms of the applicable Wendy’s Share Plans. All Wendy’s Stock Options have been properly accounted for in accordance with GAAP, and no change is expected in respect of any prior financial statements relating to expenses for stock-based compensation. There is no pending audit, investigation or inquiry by any Governmental Entity or by Wendy’s (directly or indirectly) with respect to Wendy’s stock option granting practices or other equity compensation practices. The grant date of each Wendy’s Stock Option is on or after the date on which such grant was authorized by Wendy’s board of directors or the compensation committee thereof.

     (j) Each Wendy’s Benefit Plan and Wendy’s Benefit Agreement that is a “nonqualified deferred compensation plan” (as defined in Code Section 409A(d)(1)) subject to Code Section 409A has been operated since January 1, 2005 in good faith compliance with Code Section 409A, the regulations and guidance promulgated thereunder.

     (k) No Wendy’s Benefit Plan or Wendy’s Benefit Agreement provides benefits, including death or medical, health or other welfare benefits (whether or not insured), with respect to current or former employees of Wendy’s, its Subsidiaries or any Commonly Controlled Entity after retirement or other termination of service other than (i) coverage mandated by applicable Laws (including continuation coverage under Section 4980B of the Code), (ii) death benefits or retirement benefits under any “employee pension benefit plan,” as such term is defined in Section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of Wendy’s, any of its Subsidiaries or a Commonly Controlled Entity or (iv) benefits the full direct cost of which is borne by the current or former employee (or beneficiary thereof), and no circumstances exist that would reasonably be expected to result in Wendy’s, any of its Subsidiaries or a Commonly Controlled Entity becoming obligated to provide any such benefits.

     (l) Without limiting the generality of the other representations in this Section 3.9, with respect to each Wendy’s Foreign Plan: (i) all employer and employee

contributions to each Wendy’s Foreign Plan required by Law or by the terms of such Wendy’s Foreign Plan have been made when due, or, if applicable, properly accrued in accordance with normal accounting practices in all material respects; (ii) the fair market value of the assets of each funded Wendy’s Foreign Plan, the liability of each insurer for any Wendy’s Foreign Plan funded through insurance or the book reserve established for any Wendy’s Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Wendy’s Foreign Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; (iii) each Wendy’s Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; (iv) no Wendy’s Foreign Plan that is subject to the Laws of Canada is a defined benefit pension plan; (v) no insurance policy or any other agreement affecting any Wendy’s Foreign Plan requires or permits a retroactive increase in contributions, premiums or other payments due thereunder; (vi) subject to the requirements of applicable Laws, no provision of any Wendy’s Foreign Plan or of any agreement, and no act or omission of Wendy’s in any way limits, impairs, modifies or otherwise affects the right of Wendy’s or any of its Subsidiaries to unilaterally amend or terminate any Wendy’s Foreign Plan, and no commitments to improve or otherwise amend any Wendy’s Foreign Plan have been made; (vii) none of the Wendy’s Foreign Plans enjoys any special tax status under any Laws, nor have any advance tax rulings been sought or received in respect of any Wendy’s Foreign Plan; and (viii) all employee data necessary to administer each Wendy’s Foreign Plan in accordance with its terms and conditions and all Laws is in possession of Wendy’s and such data is complete, correct in all material respects, and in a form which is sufficient in all material respects for the proper administration of each Wendy’s Foreign Plan.

     (m) No representation or warranty is made by Wendy’s in respect of employee benefits matters in any Section of this Agreement other than in this Section 3.9.

          Section 3.10 Absence of Certain Changes or Events . From and after December 30, 2007, (i) the businesses of Wendy’s and its Subsidiaries have been conducted in all material respects in the ordinary course of business consistent with past practice, (ii) there has not been any change, effect, event, development, occurrence or state of facts that has had, or would reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect and (iii) neither Wendy’s nor any of its Subsidiaries has taken any action or omitted to take any action that if taken or omitted to be taken after the date of this Agreement, would be prohibited by Section 5.1(b).

          Section 3.11 Investigations; Litigation . (a) There is no investigation or review pending (or, to the knowledge of Wendy’s, threatened) by any Governmental Entity with respect to Wendy’s or any of its Subsidiaries and (b) there are no actions, suits, arbitrations, mediations or proceedings pending (or, to the knowledge of Wendy’s, threatened) against Wendy’s or any of its Subsidiaries, or any of their respective properties at law or in equity before, and there are no orders, judgments or decrees of, or before, any Governmental Entity, in the case of each of clause (a) or (b), which has had since December 30, 2007 or would reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

          Section 3.12 Proxy Statement; Other Information . None of the information provided by Wendy’s to be included in (i) the registration statement on Form S-4 to be filed with the SEC by Triarc in connection with the issuance of Class A Common Stock pursuant to the Merger (such registration statement on Form S-4, as amended or supplemented, the “ Form S-4 ”) or the other Transaction SEC Filings will, at the time the Form S-4 or other Transaction SEC Filing is filed with the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided , that , with respect to projected financial information provided by or on behalf of Wendy’s, Wendy’s represents only that such information was prepared in good faith by management of Wendy’s on the basis of assumptions believed by such management to be reasonable as of the time made or (ii) the Proxy Statement will, at the time of the mailing of the Proxy Statement or any amendment or supplement thereto or at the time of the Wendy’s Meeting or the Triarc Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided , that , with respect to projected financial information provided by or on behalf of Wendy’s, Wendy’s represents only that such information was prepared in good faith by management of Wendy’s on the basis of assumptions believed by such management to be reasonable as of the time made. The Proxy Statement, as to information supplied by Wendy’s, will comply as to form in all material respects with the Securities Act and the Exchange Act, as the case may be. The joint letter to shareholders of Wendy’s and stockholders of Triarc, notice of meeting with respect to the Wendy’s Meeting and Triarc Meeting, proxy statement/prospectus, forms of proxy and any other proxy solicitation materials to be filed with the SEC and distributed to shareholders of Wendy’s and stockholders of Triarc in connection with the Merger are collectively referred to herein as the “ Proxy Statement ”. The Form S-4 and the Proxy Statement, together with any other filings required to be made under the Securities Act or the Exchange Act in connection with the transactions contemplated by this Agreement, are collectively referred to herein as the “ Transaction SEC Filings ”. Notwithstanding the foregoing, Wendy’s makes no representation or warranty with respect to the information supplied by Triarc or Merger Sub or any of their respective Representatives that is contained or incorporated by reference in the Transaction SEC Filings.

          Section 3.13 Tax Matters .

     (a) (i) Wendy’s and each of its Subsidiaries have prepared in material compliance with the prescribed manner and filed within the time required by applicable Law (taking into account any extension of time within which to file) all material Tax Returns required to be filed by any of them with all relevant Governmental Entities for all taxation or fiscal periods ending prior to the date hereof, and all such filed Tax Returns are consistent in all material respects with any applicable closing agreements or issue resolution agreements or any other agreements or confirmations executed or entered into or received by Wendy’s or any of its Subsidiaries with or from the IRS in connection with the Compliance Assurance Process (as described in IRS Announcement 2005-87) (the “ CAP ”), (ii) Wendy’s and each of its Subsidiaries have paid all material Taxes shown thereon as owing and all material Taxes otherwise owed by

or with respect to Wendy’s or any of its Subsidiaries within the time required by applicable Law and have paid all material assessments and material reassessments they have received in respect of Taxes, (iii) Wendy’s financial statements reflect full and adequate reserves for all material unpaid Taxes payable by Wendy’s and its Subsidiaries for all taxable periods and portions thereof through the date of such financial statements and neither Wendy’s nor any of its Subsidiaries has incurred any material Tax liability since the date of such financial statements other than for Taxes arising in the ordinary course of business, and (iv) as of the date of this Agreement, there are not pending or, to the knowledge of Wendy’s, threatened, any audits, examinations, assessments, reassessments or other proceedings in respect of Taxes (except, in the case of clause (i), (ii) or (iv) above, with respect to matters contested in good faith and for which adequate reserves have been established in accordance with GAAP).

     (b) There are no outstanding agreements, arrangements, waivers or objections extending the statutory period or providing for an extension of time with respect to the collection, assessment, reassessment or determination of a material amount of Taxes or the filing of any Tax Return by, or any payment of a material amount of Taxes.

     (c) None of Wendy’s or any of its Subsidiaries is a party to any agreement the primary purpose of which is Tax allocation, Tax indemnification or Tax sharing (other than any such agreements solely among Wendy’s and any of its Subsidiaries).

     (d) No claim in writing has been made against Wendy’s or any of its Subsidiaries by any Governmental Entity in a jurisdiction where Wendy’s and its Subsidiaries do not file Tax Returns that Wendy’s or such Subsidiary is or may be subject to taxation by that jurisdiction. All deficiencies for Taxes asserted or assessed in writing against Wendy’s or any of its Subsidiaries have been fully and timely paid, settled or properly reflected in the most recent financial statements contained in the Wendy’s SEC Documents.

     (e) Wendy’s and its Subsidiaries have made available to Triarc correct and complete copies of all material U.S. federal income Tax Returns, state income Tax apportionment data, examination reports and statements of deficiencies, and all such other Tax information available on the Intralinks data site is correct and complete for taxable periods, or transactions consummated, for which the applicable statutory periods of limitations have not yet expired.

     (f) There are no material Liens for Taxes upon any of the assets of Wendy’s or any of its Subsidiaries, except for statutory Liens for current Taxes not yet due.

     (g) Wendy’s and its Subsidiaries have each withheld (or will withhold) from their respective employees, independent contractors, creditors, shareholders and third parties, and timely paid or remitted to the appropriate Governmental Entity, proper and accurate amounts in all material respects for all periods ending on or before the Closing Date in compliance with all Tax withholding and remitting provisions of applicable Law. Wendy’s and its Subsidiaries have each complied in all material respects with all Tax information reporting provisions under applicable Law.

     (h) Neither Wendy’s nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution that could constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.

     (i) Each of the closing agreements under Section 7121 of the Code or any similar provision of state, local or foreign Laws and full acceptance letters (in each case if any) which Wendy’s or any of its Subsidiaries has executed, entered into or received is valid and enforceable in accordance with its terms. Neither Wendy’s nor any of its Subsidiaries has committed fraud, collusion, concealment or malfeasance or made a misrepresentation of material fact in connection with the execution or entering into of any closing agreement with, or the receipt of any full acceptance letter or private letter ruling from (in each case if any), any Governmental Entity.

     (j) Neither Wendy’s nor any of its Subsidiaries will be required to include in a taxable period ending after the Closing Date taxable income attributable to income that accrued in a taxable period prior to the Closing Date but was not recognized for Tax purposes in such prior taxable period (other than as properly reflected in Wendy’s financial statements as reserves) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Section 481 of the Code, a gain recognition agreement (within the meaning of Treasury Regulations Section 1.367(a)-8), any dual consolidated loss (within the meaning of Code Section 1503(d)).

     (k) Neither Wendy’s nor any of its Subsidiaries has ever participated in any listed transaction within the meaning of Treasury Regulations Section 1.6011-4(b) or taken any position on any Tax Return that would subject it to a substantial understatement of Tax penalty under Code Section 6662 which has not been properly disclosed to the IRS as required by the Code and the Treasury Regulations promulgated thereunder.

     (l) Neither Wendy’s nor any of its Subsidiaries has (A) been a “United States real property holding corporation,” as defined in Section 897(c)(2) of the Code, at any time during the past five years or made an election under Section 897(i) of the Code to be treated as a domestic corporation for purposes of Sections 897, 1445 and 6039C of the Code or (B) been a passive foreign investment company within the meaning of Section 1297 of the Code.

     (m) As used in this Agreement, (i) “ Taxes ” means (x) any and all domestic or foreign, federal, state, provincial, municipal, local or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, whether disputed or not, including taxes on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, unemployment, social security, workers’ compensation or net worth, and taxes in the nature of excise, withholding, ad valorem or value added, (y) all liability for the payment of any amounts of the type described in clause (x) as a result of successor liability or as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group, and (z) all liability for the payment of any amounts as a result of being a party to any tax sharing

agreement or as a result of any express or implied obligation to indemnify any other person with respect to the payment of any amounts of the type described in clause (x) or (y) and (ii) “ Tax Return ” means any return, report, claim for refund, or similar filing (including the attached schedules) required to be filed with respect to Taxes, including any information return, statement, or declaration of estimated Taxes, and including any amendment thereof.

     (n) No representation or warranty is made by Wendy’s in respect of tax matters in any Section of this Agreement other than in this Section 3.13.

          Section 3.14 Employee Relations Matters .

     (a) Neither Wendy’s nor any of its Subsidiaries is a party to, or bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union, labor organization, trade union or works council. Neither Wendy’s nor any of its Subsidiaries has committed any material unfair labor practice as defined in the National Labor Relations Act or other applicable Laws, except as has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. To the knowledge of Wendy’s, there are no organizational efforts with respect to the formation of a collective bargaining unit or, as of the date of this Agreement, labor union organizing activities being made or threatened involving employees of Wendy’s or any of its Subsidiaries.

     (b) There are no pending or, to the knowledge of Wendy’s, threatened arbitrations, grievances, labor disputes, strikes, lockouts, slowdowns or work stoppages against Wendy’s or any of its Subsidiaries, nor has there been any of the foregoing since December 30, 2007 that has had, or would reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

     (c) Wendy’s and each of its Subsidiaries are and have been in compliance with all applicable Laws respecting employment and employment practices, including all Laws respecting terms and conditions of employment, health and safety, wages and hours, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment insurance, except as has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. Wendy’s and each of its Subsidiaries are not in any material respect delinquent in payments to any employees or former employees for any services or amounts required to be reimbursed or otherwise paid.  Neither Wendy’s nor any of its Subsidiaries is a party to, or otherwise bound by, any order of any Governmental Entity relating to employees or employment practices other than any ordinary course settlement with a Governmental Entity, in each case in an amount not more than $100,000 individually.

     (d) Neither Wendy’s nor any of its Subsidiaries has received notice of (i) any unfair labor practice charge or complaint pending or threatened before the National Labor Relations Board or any other Governmental Entity against it, (ii) any complaints, grievances or arbitrations against it arising out of any collective bargaining agreement, (iii) any charge or complaint with respect to or relating to it pending before the Equal Employment Opportunity

Commission or any other Governmental Entity responsible for the prevention of unlawful employment practices, (iv) the intent of any Governmental Entity responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health Laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress or (v) any complaint, lawsuit or other proceeding pending or, to the knowledge of Wendy’s, threatened in any forum by or on behalf of any present or former employee of such entities, any applicant for employment or classes of the foregoing alleging breach of any express or implied contract of employment, any applicable Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship, in the case of each of clauses (i) through (v), which has had since December 30, 2007 or would reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

     (e) Neither Wendy’s nor any of its Subsidiaries is engaged in any layoffs or employment terminations sufficient in number to trigger application of the Worker Adjustment and Retraining Notification Act, as amended (the “ WARN Act ”) or any similar state, local or foreign Law. During the ninety (90) day period prior to the date of this Agreement, not more than thirty (30) employees of Wendy’s or its Subsidiaries were terminated from any single site of employment.

     (f) As of the date of this Agreement, no Key Employee of Wendy’s or any of its Subsidiaries has given notice terminating employment with Wendy’s or any of its Subsidiaries, which termination will be effective on or after the date of this Agreement. For the purposes hereof (“ Key Employee ”) means the Persons set forth in Section 8.14(a) of the Wendy’s Disclosure Schedule.

     (g) To the knowledge of Wendy’s, as of the date of this Agreement, Wendy’s and its Subsidiaries are not bound by any contracts or agreements with, nor owe any obligations, contingent or otherwise to, any individuals employed by a Franchisee.

     (h) There are no outstanding assessments, penalties, fines, Liens, charges, surcharges, or other amounts due or owing pursuant to any workplace safety and insurance legislation except for any of the foregoing that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect, and neither Wendy’s nor any of its Subsidiaries have been reassessed in any material respect under such legislation since January 1, 2006. To the knowledge of Wendy’s, as of the date of this Agreement, no audits of Wendy’s or its Subsidiaries are currently being performed pursuant to any applicable workplace safety and insurance legislation.

     (i) No representation or warranty is made by Wendy’s in respect of employee relations matters in any Section of this Agreement other than in this Section 3.14.

          Section 3.15 Intellectual Property .

     (a) Section 3.15 of the Wendy’s Disclosure Schedule sets forth, as of the date of the Agreement, a complete and accurate list of all material registered trademarks, service marks, domain names, Internet addresses and other computer identifiers (collectively,

“ Trademarks ”); material registered copyrights (“ Copyrights ”); and all patents, patent applications, inventions, industrial designs, industrial design applications and registrations and improvements (collectively, “ Patents ”) in each case owned by Wendy’s or a Subsidiary of Wendy’s (together, the “ Owned Intellectual Property ”). Wendy’s or a Subsidiary of Wendy’s is the sole beneficial and record owner of the Owned Intellectual Property. All of the Owned Intellectual Property is valid and enforceable and all registrations, issuances, filings and applications therefor are valid, subsisting, in full force and effect and payment of all renewal and maintenance fees in respect thereof, and all filings related thereto, have been duly made. Either Wendy’s or a Subsidiary of Wendy’s owns, or is licensed or otherwise possesses the right to use free and clear of all Liens (other than Permitted Liens) all Trademarks, Copyrights and Patents (collectively, “ Intellectual Property ”) used in and material to their respective businesses as currently conducted. Except for any licenses of Owned Intellectual Property included in the Franchise Agreements or as set forth on Section 3.15 of the Wendy’s Disclosure Schedule, neither Wendy’s nor any Subsidiary thereof has licensed or sublicensed to any person any material Intellectual Property.

     (b) Except as has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect or as set forth on Section 3.15 of the Wendy’s Disclosure Schedule, (a) as of the date of this Agreement, there are no pending or, to the knowledge of Wendy’s, threatened claims by any person alleging infringement or other violation by Wendy’s or any of its Subsidiaries of such person’s Intellectual Property, or seeking to limit, cancel or question the validity of any Owned Intellectual Property, (b) to the knowledge of Wendy’s, the conduct of the business of Wendy’s and its Subsidiaries (including the use of Intellectual Property by Wendy’s, its Subsidiaries, and their respective licensees in the manner authorized under their respective license agreements with Wendy’s and its Subsidiaries) does not infringe or otherwise violate any Intellectual Property rights of any person, and (c) to the knowledge of Wendy’s, no person is infringing or otherwise violating any Intellectual Property of Wendy’s or any of its Subsidiaries and no such claims have been asserted or threatened by Wendy’s or any of its Subsidiaries against any person within the last three years which remain unresolved. Section 3.15 of the Wendy’s Disclosure Schedule sets forth those jurisdictions where, to the knowledge of Wendy’s, the WENDY’S, WENDY’S OLD FASHIONED HAMBURGERS and QUALITY IS OUR RECIPE marks are not available for use and registration by Wendy’s and its Subsidiaries in connection with the operation of restaurants. To the knowledge of Wendy’s, Wendy’s and each of its Subsidiaries has complied with all applicable Laws and Wendy’s own rules, policies and procedures relating to the collection, use, maintenance and processing of personal information, including financial information, collected, used, maintained or processed by Wendy’s or its Subsidiaries, except for any such non-compliance, default or violation that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. No claim is pending or, to the knowledge of Wendy’s, threatened, with respect to the collection, use, maintenance or processing of personal information, including financial information, by Wendy’s or any of its Subsidiaries that has had since December 30, 2007 or would reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

          Section 3.16 Real Property .

     (a) Wendy’s or a Subsidiary of Wendy’s has fee simple title to each real property owned by Wendy’s or a Subsidiary of Wendy’s (each, an “ Owned Real Property ”), free and clear of all Liens and defects in title, other than Permitted Liens. Except as may be granted in any Real Property Leases or Real Property Subleases or disclosed by any title commitment, title policy, survey or other document made available to Triarc, each Owned Real Property is not subject to any rights of purchase, offer or first refusal that are not recorded in the appropriate office of the county in which the property is located.

     (b) Wendy’s or a Subsidiary of Wendy’s has a good leasehold estate in each lease of real property (“ Real Property Leases ”), under which Wendy’s or a Subsidiary of Wendy’s is a tenant or a subtenant (“ Leased Real Property ”), in each case free and clear of all Liens and defects in title, other than Permitted Liens. Neither Wendy’s nor any Subsidiary of Wendy’s is in breach of or default under the terms of any Real Property Lease, except for any such breach or default that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. To the knowledge of Wendy’s, no other party to any Real Property Lease is in breach of or default under the terms of any Real Property Lease, which breach or default has had since December 30, 2007 or would reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. Each Real Property Lease is a valid and binding obligation of Wendy’s or the Subsidiary of Wendy’s which is party thereto and, to the knowledge of Wendy’s, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

     (c) Section 3.16(c) of the Wendy’s Disclosure Schedule sets forth, as of the date of this Agreement, a true and complete list of all leases, subleases or similar agreements under which Wendy’s or a Subsidiary of Wendy’s is the landlord or the sublandlord (such leases, subleases and similar agreements, collectively, the “ Real Property Subleases ”). Neither Wendy’s nor any Subsidiary of Wendy’s is in breach of or default under the terms of any Real Property Sublease, except for any such breach or default that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. To the knowledge of Wendy’s, no other party to any Real Property Sublease is in breach of or default under the terms of any Real Property Sublease except for any such breach or default that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. Each Real Property Sublease is a valid and binding obligation of Wendy’s or the Subsidiary of Wendy’s which is party thereto and, to the knowledge of Wendy’s, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

          Section 3.17 Opinion of Financial Advisor . The Special Committee and the Board of Directors have each received the opinion of Greenhill & Co (the “ Advisor ”) dated the date of this Agreement, to the effect that, as of such date, the Merger Consideration to be received by the holders of the Common Shares is fair to such holders from a financial point of view. An executed copy of each such opinion has been made available to Triarc. As of the date of this Agreement, no such opinion has been withdrawn, revoked or modified.

          Section 3.18 Required Vote of Wendy’s Shareholders . Subject to the accuracy of the representations and warranties of Triarc and Merger Sub in Section 4.24, the affirmative vote of the holders of a majority of the outstanding Common Shares on the record date of the Wendy’s Meeting is the only vote of holders of securities of Wendy’s which is required to adopt this Agreement and the Merger (the “ Wendy’s Shareholder Approval ”); provided, however, that if a Recommendation Withdrawal occurs, the affirmative vote of greater than 75% of the outstanding Common Shares on the record date of the Wendy’s Meeting shall be required to adopt this Agreement and the Merger.

          Section 3.19 Takeover Statutes; Shareholder Rights Plan . The Board of Directors, at a meeting duly called and held, has approved, for purposes of Chapter 1704 of the Ohio Revised Code and for purposes of the Amended and Restated Rights Agreement between Wendy’s and American Stock Transfer and Trust Company, dated December 8, 1997, as amended from time to time (the “ Rights Plan ”), the Merger and the acquisition by Triarc of the common shares of the Surviving Corporation pursuant to the Merger. Without limiting the generality of the foregoing, Wendy’s has taken all necessary action so that (x) neither the execution and delivery of this Agreement nor the consummation of the Merger or the other transactions contemplated hereby will (i) cause the rights granted under the Rights Plan to become exercisable, (ii) cause Triarc or Merger Sub, or any affiliate of Triarc or Merger Sub to become an “Acquiring Person” (as defined in the Rights Plan) or (iii) give rise to a “Distribution Date” (as defined in the Rights Plan) or other triggering event under the Rights Plan and (y) the rights granted under the Rights Plan shall terminate not later than immediately prior to the Effective Time. Assuming the accuracy of the representations and warranties contained in Section 4.24, as of the date of this Agreement, no “fair price,” “business combination,” “moratorium,” “control share acquisition” or other anti-takeover statute or similar statute or regulation enacted by any state will prohibit or impair the consummation of the Merger or the other transactions contemplated by this Agreement.

          Section 3.20 Material Contracts .

     (a) Except as listed as an exhibit on any Filed Wendy’s SEC Document, as of the date of this Agreement, neither Wendy’s nor any of its Subsidiaries is a party to or bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to Wendy’s and its Subsidiaries, taken as a whole (all contracts of the type described in this Section 3.20(a) being referred to herein as “ Wendy’s Material Contracts ”).

     (b) Neither Wendy’s nor any Subsidiary of Wendy’s is in breach of or default under the terms of any Wendy’s Material Contract, except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a

Wendy’s Material Adverse Effect. To the knowledge of Wendy’s, no other party to any Wendy’s Material Contract is in breach of or default under the terms of any Wendy’s Material Contract except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect. Each Wendy’s Material Contract is a valid and binding obligation of Wendy’s or the Subsidiary of Wendy’s which is party thereto and, to the knowledge of Wendy’s, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

          Section 3.21 Franchise Matters .

     (a) Section 3.21(a) of the Wendy’s Disclosure Schedule sets forth a true and complete list of all franchise agreements, license agreements, subfranchise agreements, sublicense agreements, master franchise agreements, development agreements, market development agreements and reserved area agreements (each a “ Franchise Agreement ” and, collectively, the “ Franchise Agreements ”) that are effective as of the date of this Agreement to which Wendy’s or any of its Subsidiaries is a party or by which Wendy’s or any of its Subsidiaries or its or their properties is bound (other than any such agreements only between Wendy’s and its Subsidiaries or among its Subsidiaries) and which grant or purport to grant to a Franchisee the right to operate or license others to operate or to develop within a specific geographic area or at a specific location any of the following (each a “ Franchise ”):  “Wendy’s” restaurants and “Pasta Pomodoro” restaurants (each a “ Franchised Restaurant ”).  True, correct and complete copies of all forms of Franchise Agreements used by Wendy’s or any of its Subsidiaries have been made available to Triarc.

     (b) All Franchise Agreements comply with all applicable Laws, except for any non-compliance that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect.

     (c) Since January 2, 2007, (i) Wendy’s and its Subsidiaries have prepared and maintained each UFOC in compliance in all material respects with: (A) the UFOC Guidelines; (B) the FTC Rule and (C) applicable Registration Laws; and (ii) Wendy’s and its Subsidiaries have offered and sold each franchise for a Franchised Restaurant to be located in any non-United States Jurisdiction (the “ Foreign Franchises ”), and have prepared and maintained each IFOC, in compliance with applicable Laws, including pre-sale registration and disclosure Laws, in all cases except for any non-compliance that has not had since December 30, 2007, and would not reasonably be expected to have, a Wendy’s Material Adverse Effect.

     (d) Since January 2, 2007, Wendy’s and its Subsidiaries have not, in any UFOC, IFOC, other franchise disclosure document, in applications and/or filings with states under the Registration Laws, or in any applications or filings with any non-United States Jurisdictions, made any untrue statement of a material fact, omitted to state a material fact required to be stated therein, or omitted to state any fact necessary to make the statements made

therein, taken as a whole, not misleading, except to the extent any such matter would not, individually or in the aggregate, have a Wendy’s Material Adverse Effect.

     (e) Wendy’s and its Subsidiaries have not furnished, and have not authorized any Person to furnish:  (i) to prospective franchisees in any United States Jurisdiction any materials or information that could be construed as “earnings claim” information in violation of the requirements specified in Item 19 of the UFOC Guidelines or a “financial performance representation” in violation of § 436.1(e) of the FTC Rule (together, “ Earnings Claim(s) ”), and unless otherwise permitted by applicable Law (including pre-sale registration and disclosure Laws) no Earnings Claim has been made since January 2, 2007 to any prospective Franchisee in any United States Jurisdiction; or (ii) to prospective franchisees in any non-United States Jurisdiction any materials or information from which a specific level or range of actual or potential sales, costs, income or profit from franchised or non-franchised units may be easily ascertained in violation of applicable IFOC requirements or otherwise in violation of applicable Law.

     (f) Section 3.21(f) of the Wendy’s Disclosure Schedule sets forth all Contracts pursuant to which Wendy’s and/or any of its Subsidiaries or affiliates receives Rebates as a result of transactions between the Franchisees and suppliers selling products or services to the Franchisees.  When Wendy’s or any of its Subsidiaries or affiliates buys products, goods and services from a supplier, such supplier charges Wendy’s or its Subsidiaries or affiliates for these items on the same basis as the supplier charges a Franchisee operating a Franchised Restaurant for similar products, goods and services purchased for use in connection with such Franchised Restaurant.  No Contract pursuant to which Wendy’s or its Subsidiaries or affiliates receives a Rebate is (i) prohibited by any Franchise Agreement, (ii) not disclosed in accordance with the UFOC Guidelines and/or the FTC Rule in the relevant UFOC, if applicable or (iii) not disclosed in accordance with applicable Law with respect to Foreign Franchises.

     (g) Section 3.21(g) of the Wendy’s Disclosure Schedule sets forth a true and complete list of the Contracts other than the Franchise Agreements that are in effect as of the date hereof with any formal franchisee association or group of Franchisees regarding any Franchise Agreement or franchise operational matter.

     (h) Section 3.21(h) of the Wendy’s Disclosure Schedule sets forth a true and complete list of the Franchisees, if any, that to the knowledge of Wendy’s are currently the subject of a bankruptcy or similar proceeding.

     (i) Wendy’s has made available to Triarc a true and complete copy of each Current UFOC and Current IFOC.

     (j) For purposes of this Agreement:

     “ Current IFOC ” means the Franchise Offering Circulars in use in connection with the offer or sale of franchises in non-United States Jurisdictions as of the date of this Agreement.

     “ Current UFOC ” means the Uniform Franchise Offering Circular or Franchise Disclosure Document in use in connection with the offer or sale of franchises in a United States

Jurisdiction (or to a person domiciled in a United States Jurisdiction) as of the date of this Agreement.

     “ Franchisee ” means a person other than Wendy’s or any of its Subsidiaries that is granted a right (whether directly by Wendy’s or any of its Subsidiaries or by another Franchisee) to develop or operate, and/or is granted a right to license others to develop or operate a Franchised Restaurant within a specific geographic area or at a specific location.

     “ FTC Rule ” means the Trade Regulation Rule on Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures promulgated by the Federal Trade Commission, 16 CFR Part 436.

     “ IFOC ” means a Franchise Offering Circular for use in connection with the offer or sale of franchises in non-United States Jurisdictions.

     “ Rebates ” means “rebates” as defined for purposes of the UFOC and applicable United States Jurisdiction Law with respect to Franchises in United States Jurisdictions and rebates and similar payments regulated or required to be disclosed under applicable non-United States Jurisdiction Law with respect to non-United States Jurisdictions, as applicable.

     “ Registration Laws ” means any and all Laws of the various states of the United States that require disclosure and/or registration before a company may offer and/or sell franchises or business opportunities.

     “ Relationship Laws ” means any and all Laws of general applicability to the franchise relationship, whether under the Laws of the various states of the United States or outside the United States that, among other things, govern the terms or conditions upon which a franchise may be terminated, assigned, renewed, or that in other respects govern the franchisor-franchisee relationship.

     “ UFOC ” means a Franchise Offering Circular or Franchise Disclosure Document for use in connection with the offer or sale of a franchise in a United States Jurisdiction (or to a person domiciled in a United States Jurisdiction).

     “ UFOC Guidelines ” means the Uniform Franchise Offering Circular Guidelines adopted by the North American Securities Administrators Association on April 25, 1993 or, to the extent permitted under applicable Law, the Interim Guidelines for Filing a Uniform Franchise Registration Application Using the New FTC Franchise Rule After July 1, 2007 adopted by the North American Securities Administrators Association on June 22, 2007.

     “ United States Jurisdictions ” means the United States of America, its territories and possessions.

          Section 3.22 Wendy’s Joint Ventures . Section 3.22 of the Wendy’s Disclosure Schedule sets forth a complete and accurate list of joint ventures in which Wendy’s or any of its Subsidiaries has an equity interest which individually have assets valued at $10 million or more (the “ Wendy’s Joint Ventures ”). The governing instruments of the Wendy’s Joint Ventures are set forth on Section 3.22 of the Wendy’s Disclosure Schedule (such Contracts, the

“ Wendy’s JV Contracts ”). Except as has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Wendy’s Material Adverse Effect, (i) each Wendy’s JV Contract is a valid and binding obligation of Wendy’s or a Subsidiary of Wendy’s (and, to the knowledge of Wendy’s, of the counterparty thereto) and is in full force and effect and enforceable against Wendy’s or any of its Subsidiaries (and, to the knowledge of Wendy’s, against the counterparty thereto) in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium, receivership or similar Laws relating to or affecting creditors’ rights generally and by general principles of equity (whether considered in equity or at law), (ii) neither Wendy’s nor any of its Subsidiaries is in breach of, or default under, any such Wendy’s JV Contract, (iii) to the knowledge of Wendy’s, there are no outstanding and uncured notices of default issued by Wendy’s or any of its Subsidiaries to any counterparty alleging breach of, or default under, any such Wendy’s JV Contract and (iv) to the knowledge of Wendy’s, no event has occurred that would reasonably be expected to result in a breach of, or a default under, any Wendy’s JV Contract. Wendy’s has made available to Triarc copies or summaries of all material Wendy’s JV Contracts.

          Section 3.23 Finders or Brokers . Except for J.P. Morgan Securities Inc., Lehman Brothers Holdings Inc., and Greenhill & Co., neither Wendy’s nor any of its Subsidiaries has employed any investment banker, broker or finder in connection with the transactions contemplated by this Agreement who is entitled to any fee or any commission in connection with or upon consummation of the Merger.

          Section 3.24 Insurance . Wendy’s and its Subsidiaries own or hold policies of insurance in amounts that Wendy’s has determined in good faith provide reasonably adequate coverage for its business and in amounts sufficient to comply with (i) applicable Law and (ii) all Wendy’s Material Contracts to which Wendy’s or any of its Subsidiaries are parties or are otherwise bound.

          Section 3.25 Affiliate Transactions . There are no transactions, agreements or arrangements between (i) Wendy’s or any of its Subsidiaries on the one hand, and (ii) any director, executive officer or affiliate of Wendy’s (other than any of its Subsidiaries) or any of their respective affiliates or immediate family members, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act which have not been so disclosed prior to the date hereof (such transactions referred to herein as “ Affiliate Transactions ”).

          Section 3.26 Unrestricted Cash . As of April 22, 2008, Wendy’s had at least $165 million of unrestricted cash and cash equivalents in bank accounts maintained in the United States.

ARTICLE IV REPRESENTATIONS AND WARRANTIES
OF TRIARC AND MERGER SUB

     Except as disclosed in the Filed Triarc SEC Documents or in the Triarc Disclosure Schedules, in each case, subject to Section 8.13(b), Triarc and Merger Sub represent and warrant to Wendy’s as follows:

          Section 4.1 Qualification; Organization, Subsidiaries, etc.

     (a) Each of Triarc and Merger Sub and their respective Subsidiaries is a legal entity validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing, or to have such power or authority has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Triarc Material Adverse Effect.

     (b) As used in this Agreement, “ Triarc Material Adverse Effect ” means any change, effect, event, occurrence or state of facts that is materially adverse to the assets, properties, business or financial condition or results of operations of Triarc and its Subsidiaries, taken as a whole, but shall not include an effect arising from facts, circumstances, events or changes, (a) generally affecting the quick service restaurant industry in the United States or the economy or the financial or securities markets in the United States or elsewhere in the world, including regulatory, social or political conditions or developments (including any outbreak or escalation of hostilities or acts of war, whether or not pursuant to the declaration of a national emergency or war, or acts of terrorism) or changes in interest rates or (b) to the extent resulting from (i) the announcement of, or compliance with, this Agreement or the announcement of the transactions contemplated by this Agreement other than for purposes of Section 4.2 and 4.9(g) (and the condition contained in Section 6.2(a) with respect thereto), (ii) any litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to this Agreement or the transactions contemplated by this Agreement, (iii) changes in applicable Law or GAAP or interpretation thereof, (iv) changes, solely in and of themselves, in the market price or trading volume of the Class A Common Stock or the Triarc Class B Common Stock, (v) changes, solely in and of themselves, in any analyst’s recommendations, any financial strength rating or any other recommendations or ratings as to Triarc or its Subsidiaries (including, in and of itself, any failure to meet analyst projections), (vi) the loss by Triarc or any of its Subsidiaries of any of its customers, suppliers, franchisees or employees as a result of the transactions contemplated by this Agreement, (vii) weather, (viii) the seasonality of the business of Triarc and its Subsidiaries, (ix) effects of public perceptions of food safety applicable to the quick service restaurant industry generally or (x) the failure, in and of itself, of Triarc to meet any expected or projected financial or operating performance target, but not any underlying cause of such failures, whether internal or published, for any period ending on or after the date of this Agreement as well as any change, in and of itself, by Triarc in any expected or projected financial or operating performance target as compared with any target prior to the date of this Agreement; provided , however , that any change, effect, development, event or occurrence described in each of clauses (a), (b)(iii), (b)(vii) and (b)(ix) above shall not constitute or give rise to a Triarc Material Adverse Effect only if and to the extent that such change, effect, development, event or occurrence does not have a materially disproportionate effect on Triarc and its Subsidiaries as compared to other persons in the quick service restaurant industry and provided further that the facts, circumstances or events underlying the change or failure in clauses (b)(iv), (b)(v) and (b)(x) above shall not be excluded to the extent such facts, circumstances or events would otherwise constitute a Triarc Material Adverse Effect. For the

avoidance of doubt, (a) Triarc’s results of operations for the quarter ended March 30, 2008 and (b) the trend reflected therein shall not constitute a Triarc Material Adverse Effect.

     (c) Triarc has made available to Wendy’s prior to the date of this Agreement a true and complete copy of the certificate of incorporation and bylaws or other equivalent organizational documents of Triarc and Merger Sub and each of their respective Triarc Material Subsidiaries, each as amended through the date of this Agreement. The certificate of incorporation and bylaws or similar organizational documents of Triarc and Merger Sub and each of their respective Triarc Material Subsidiaries are in full force and effect. None of Triarc, Merger Sub or any of their respective Triarc Material Subsidiaries is in violation of any provisions of its certificate of incorporation or bylaws or similar organizational documents, other than such violations as have not had and would not reasonably be expected to have, individually or in the aggregate, a Triarc Material Adverse Effect.

          Section 4.2 Corporate Authority Relative to This Agreement; No Violation .

     (a) Each of Triarc and Merger Sub has the requisite corporate power and authority to enter into this Agreement and, subject to the Triarc Stockholder Approval, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by (a) the boards of directors of Triarc and Merger Sub, and except for (i) the Triarc Stockholder Approval, and the adoption (which Triarc shall cause to occur immediately following the execution and delivery of this Agreement) of this Agreement by Triarc, in its capacity as the sole stockholder of Merger Sub, (ii) the filing of the Triarc Charter Amendment with the Secretary of State of the State of Delaware, (iii) the designation of the Newly Authorized Stock as Class A Common Stock by Triarc’s board of directors, (iv) the filing of the Certificate of Merger with the Secretary of State of the State of Ohio in respect of the Merger and (v) any consents, authorizations, approvals, filings or exceptions in connections with compliance with the rules of the New York Stock Exchange with respect to the Class A Common Stock to be issued in the Merger, no other corporate proceedings on the part of Triarc and Merger Sub are necessary to authorize the consummation of the transactions contemplated hereby. The Triarc Board of Directors, at a meeting duly called and held, has duly adopted resolutions (1) approving this Agreement and the other transactions contemplated by this Agreement, (2) declaring that (x) it is in the best interests of the stockholders of Triarc and advisable that Triarc enter into this Agreement and consummate the transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein and (y) the Triarc Charter Amendment is advisable, (3) directing that the Triarc Stockholder Approval Matters be submitted to a vote at a meeting of the stockholders of Triarc and (4) recommending that the stockholders of Triarc approve the Triarc Stockholder Approval Matters (the item set forth in clause (4) of this sentence, the “ Triarc Recommendation ”). This Agreement has been duly and validly executed and delivered by Triarc and Merger Sub and, assuming this Agreement constitutes the valid and binding agreement of Wendy’s, this Agreement constitutes the valid and binding agreement of Triarc and Merger Sub, enforceable against each of Triarc and Merger Sub in accordance with its terms.

     (b) Subject to the accuracy of the representations and warranties of Wendy’s in Section 3.3(b), no authorization, consent, permit, action or approval of, or filing with, or notification to, any Governmental Entity is necessary, under applicable Law, for the consummation by Triarc or Merger Sub or any of their respective Subsidiaries of the transactions contemplated by this Agreement, except for such authorizations, consents, permits, actions, approvals, notifications and filings required under (i) the OGCL and the DGCL, (ii) the Securities Act, (iii) the Exchange Act, (iv) the HSR Act, (v) the Competition Act and (vi) the items set forth on Section 4.2(b) of the Triarc Disclosure Schedule (collectively, the “ Triarc Approvals ”), and except for such authorizations, consents, permits, actions, approvals, notifications or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Triarc Material Adverse Effect.

     (c) The execution and delivery by Triarc and Merger Sub of this Agreement do not, and the consummation of the transactions contemplated hereby and compliance with the provisions of this Agreement will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation or acceleration of any obligation or to the loss of a benefit under, any Triarc Material Contract, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or bylaws or other equivalent organizational document, in each case as amended, of Triarc or Merger Sub or (iii) conflict with or violate any applicable Laws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, amendment, cancellation, acceleration, right or loss that has not had since December 30, 2007 and would not reasonably be expected to have, individually or in the aggregate, a Triarc Material Adverse Effect.

          Section 4.3 Capital Stock .

     (a) As of the date hereof, the authorized capital stock of Triarc consists of (i) 100,000,000 shares of Class A Common Stock, par value $0.10 per share (the “ Class A Common Stock ”), (ii) 150,000,000 shares of Class B Common Stock, par value $0.10 per share (the “ Class B Common Stock ”), of which 100,000,000 shares have been designated as Triarc Class B Common Stock, Series 1 (the “Triarc Class B Common Stock”) and (iii) 100,000,000 shares of Preferred Stock, par value $0.10 per share (“ Triarc Preferred Stock ”). As of the Effective Time, and following the effectiveness of the Triarc Charter Amendment, the authorized capital stock of Triarc will consist of (i) 1,500,000,000 shares of Class A Common Stock, and (ii) 100,000,000 shares of Preferred Stock, par value $0.10 per share ( the “ Preferred Stock ”). The shares of Class A Common Stock to be issued in the Merger will be duly authorized by all necessary corporate action on the part of Triarc and when issued in accordance with the terms hereof will be validly issued, fully paid, non-assessable and free of preemptive rights. As of the close of business on April 15, 2008, (i) 29,550,924 shares of Class A Common Stock and 64,106,190 shares of Triarc Class B Common Stock were issued and outstanding, (ii) 639,899 shares of Class A Common Stock and 187,692 shares of Triarc Class B Common Stock were held in treasury by Triarc, (iii) 450,086 shares of Class A Common Stock and 4,745,388 shares of Triarc Class B Common Stock were reserved for issuance upon the exercise of outstanding options under Triarc’s stock plans set forth in Section 4.3(a) of the Triarc Disclosure Schedule (the “ Triarc Option Plans ”), (iv) 52,419 shares of Class A Common Stock and 106,774 shares of Triarc Class B Common Stock were reserved for issuance upon conversion of

outstanding 5% Convertible Notes due 2023 of Triarc (the “ Triarc Convertible Notes ”) and (v) no shares of Triarc Preferred Stock were issued or outstanding. All outstanding shares of Class A Common Stock and Triarc Class B Common Stock, and all shares reserved for issuance as noted in the immediately preceding clause (iii), when issued in accordance with the respective terms thereof, are or will be duly authorized, validly issued, fully paid and non-assessable and not issued in violation of any preemptive rights, purchase option, call or right of first refusal rights.

     (b) As of the date hereof, the authorized capital stock of Merger Sub consists of 1000 shares of common stock, par value $0.01 per share, of which 100 are validly issued and outstanding and all of the issued and outstanding capital stock of Merger Sub is, and until the Effective Time will be owned by Triarc. Merger Sub will not have outstanding any option, warrant, right, or any other agreement pursuant to which any person may acquire any equity security of Merger Sub. Merger Sub has not conducted any business prior to the date of this Agreement and prior to the Effective Time, will have, no assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the Merger and the other transactions contemplated by this Agreement.

     (c) Except as set forth in subsection (a) above, as of the date of this Agreement, (i) Triarc does not have any shares of its capital stock issued or outstanding other than shares of Class A Common Stock and Triarc Class B Common Stock that have become outstanding after April 15, 2008, and were reserved for issuance as set forth in subsection (a) above and (ii) there are no outstanding subscriptions, options, stock appreciation rights, warrants, calls, convertible securities, restricted stock units, performance units, deferred stock units or other similar rights, agreements or commitments relating to the issuance of capital stock or voting securities to which Triarc or any of its Subsidiaries is a party obligating Triarc or any of its Subsidiaries to (A) issue, transfer or sell any shares of capital stock or other equity interests of Triarc or any Subsidiary of Triarc or securities convertible into or exchangeable for such shares or equity interests, (B) grant, extend or enter into any such subscription, option, stock appreciation right, warrant, call, convertible securities, restricted stock units, performance units, deferred stock units or other similar right, agreement or arrangement, (C) redeem or otherwise acquire, or vote or dispose of, any such shares of capital stock or other equity interests or (D) provide a material amount of funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of Triarc.

     (d) Except as set forth in subsection (a) above, neither Triarc nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with stockholders of Triarc on any matter.

     (e) There are no voting trusts, proxies or other agreements or understandings to which Triarc or any of its Subsidiaries is a party with respect to the voting of the capital stock or other equity interests of Triarc or any of its Subsidiaries.

     (f) All outstanding shares of capital stock of, or other equity interests in, each Subsidiary of Triarc are duly authorized, validly issued, fully paid and nonassessable and were not issued in violation of any preemptive rights, purchase option, call or right of first refusal

rights. All the outstanding shares of capital stock of, or other equity interests in, each Subsidiary of Triarc that are owned by Triarc or a Subsidiary of Triarc are free and clear of all Liens other than Permitted Liens.

          Section 4.4 Reports and Financial Statements .

     (a) Triarc has filed or furnished all forms, documents and reports required to be filed or furnished since January 2, 2006 by it with the SEC (the “ Triarc SEC Documents ”). As of their respective dates, or, if amended, as of the date of the last such amendment (excluding any amendments made after the date of this Agreement), the Triarc SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Triarc SEC Documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the knowledge of Triarc, none of the Triarc SEC Documents is the subject of any outstanding SEC comments or outstanding SEC investigation. No Subsidiary of Triarc is required to file any form or report with the SEC.

     (b) The consolidated financial statements (including all related notes and schedules) of Triarc included in Triarc SEC Documents fairly present in all material respects the consolidated financial position of Triarc and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended (subject, in the case of the unaudited statements, to normal year-end audit adjustments and to any other adjustments described therein, including the notes thereto) in each case in accordance with GAAP (except, in the case of the unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto).

          Section 4.5 Internal Controls and Procedures . Triarc has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Triarc’s disclosure controls and procedures are reasonably designed to provide reasonable assurance that all material information required to be disclosed by Triarc in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to Triarc’s management as appropriate to allow timely decisions regarding required discl