Common Shares, $.001 par value
per share
Goldman, Sachs
& Co.,
RBC Capital Markets Corporation,
As Representatives of the several
Underwriters
named
in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Tim Hortons Inc.,
a Delaware corporation (the “Company”) and wholly-owned
subsidiary of Wendy’s International, Inc.
(“Wendy’s”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the “Underwriters”) an
aggregate of 29,000,000 shares of common stock, $.001 par value per
share (“Common Shares”) of the Company (the “Firm
Shares”) and, at the election of the Underwriters, up to
4,350,000 additional Common Shares (the “Optional
Shares”; the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 3 hereof
being collectively called the “Shares”).
1. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A
registration statement on Form S-1 (File No. 333-130035) (the
“Initial Registration Statement”) in respect of the
Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement
and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto, to
you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a
“Rule 462(b) Registration Statement”), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is
hereinafter called a “U.S. Preliminary Prospectus”; the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits
thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with
Section 6(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective, each as amended at
the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statement”; and
such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the “U.S.
Prospectus”; the Preliminary Prospectus relating to Shares
that was included in the Registration Statement immediately prior
to the Applicable Time (as defined in Section 1(c) hereof) is
hereinafter called the “Pricing Prospectus”; and any
“issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Shares is hereinafter
called an “Issuer Free Writing Prospectus”;
(b) A
preliminary base PREP prospectus, an amended and restated
preliminary base PREP prospectus, a second amended and restated
preliminary base PREP prospectus and a final base PREP prospectus,
in each case in the English and French languages and, with respect
to the final base PREP prospectus, omitting the PREP information
(as hereinafter defined) in accordance with the rules and
procedures established pursuant to National Instrument 44-103 for
the pricing of securities after the final receipt for a prospectus
has been obtained (the “PREP Procedures”), have been
filed with the securities regulatory authorities (collectively, the
“Canadian Securities Regulatory Authorities”) in each
of the Provinces and Territories of Canada (collectively, the
“Canadian Qualifying Jurisdictions”) pursuant to
National Policy 43-201 (“NP 43-201”), including with
the Ontario Securities Commission (the “Reviewing
Authority”) which has been notified that it has been selected
as the principal regulator pursuant to NP 43-201, in compliance
with all applicable securities laws of the Canadian Securities
Regulatory Authorities and the respective regulations and rules
made under those securities laws together with all applicable
published policy statements, blanket orders and rulings of the
Canadian Securities Regulatory Authorities and all discretionary
orders or rulings, if any, of the Canadian Securities Regulatory
Authorities made in connection with the transactions contemplated
by this Agreement (collectively, the “Canadian Securities
Laws”); a preliminary decision document under the mutual
reliance review system procedures (“MRRS”) provided for
under NP 43-201, evidencing that preliminary receipts of the
Canadian Securities Regulatory Authorities in each of the Canadian
Qualifying Jurisdictions have been issued in respect of such
preliminary prospectuses, and a final MRRS decision document,
evidencing that final receipts of the Canadian Securities
Regulatory Authorities in each of the Canadian Qualifying
Jurisdictions have been issued in respect of such final prospectus
and any amendment thereto, have been issued by the Reviewing
Authority on behalf of the Canadian Securities Regulatory
Authorities in the form heretofore delivered to you for each of the
Underwriters (together with all documents filed in connection
therewith); no other document with respect to such preliminary base
PREP prospectus, such amended and restated preliminary base PREP
prospectus, such second amended and restated preliminary base PREP
prospectus or such final base PREP prospectus, or amendment
thereto, has heretofore been filed or transmitted for filing with
the Canadian Securities Regulatory Authorities and no order having
the effect of ceasing or suspending the distribution (as
hereinafter defined) of the Shares has been issued by any Canadian
Securities Regulatory Authority and no proceeding for that purpose
has been initiated or, to the best of the Company’s knowledge
(“Company’s knowledge” or “knowledge of the
Company” means the knowledge of the Company and its
Subsidiaries), threatened by any Canadian Securities Regulatory
Authority (the preliminary base PREP prospectus, the amended and
restated preliminary base PREP prospectus and the second amended
and restated preliminary base PREP prospectus in the English and
French languages, as the same may have been amended, filed with the
Reviewing Authority being hereinafter called the “Canadian
Preliminary Prospectus” and the final base PREP prospectus in
the English and French languages, as most recently amended, filed
with the Reviewing Authority and for which a final MRRS decision
document has been obtained, being hereinafter called the
“Canadian Prospectus”; provided that, from and after
the time the supplemented Canadian Prospectus (containing the PREP
information) is filed with the Reviewing Authority in accordance
with Section 6(a) hereof, any reference to the Canadian Prospectus
herein shall be deemed to refer to the
2
Canadian
Prospectus as so supplemented; and, notwithstanding the foregoing,
the supplemented Canadian Prospectus in the English and French
languages setting forth the PREP information is hereinafter
referred to as the “supplemented Canadian Prospectus”;
the information included in the supplemented Canadian Prospectus
that is omitted from the Canadian Prospectus but that is deemed
under the PREP Procedures to be incorporated by reference into the
Canadian Prospectus on the date of the supplemented Canadian
Prospectus is referred to as the “PREP information”;
and “distribution” means “distribution” or
“distribution to the public” of the Shares as those
terms are defined under Canadian Securities Laws); the U.S.
Prospectus and the Canadian Prospectus are hereinafter collectively
called the “Prospectuses”;
(c) No order
preventing or suspending the use of any U.S. Preliminary
Prospectus, any Issuer Free Writing Prospectus or any Canadian
Preliminary Prospectus has been issued by the Commission or any
Canadian Securities Regulatory Authority, and each U.S. Preliminary
Prospectus and Canadian Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and the requirements of Canadian Securities
Laws, as applicable, and, in the case of the U.S. Preliminary
Prospectus, did not contain an untrue statement of a material fact
or omit to state a 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 and, in
the case of the Canadian Preliminary Prospectus, was true and
correct in all material respects and contained no misrepresentation
(as that term is defined under Canadian Securities Laws), and
constituted full, true and plain disclosure of all material facts
relating to the Company and its subsidiaries and the Shares and no
material fact or information was omitted therefrom which was
required to be therein or was necessary to make the statements or
information therein not false or misleading in light of the
circumstances in which they were made, within the meaning of the
Canadian Securities Laws; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. or RBC Capital Markets Corporation
expressly for use therein;
(d) For the
purposes of this Agreement, the “Applicable Time” is
___:___m (Eastern time) on the date of this Agreement; the Pricing
Prospectus as supplemented by those Issuer Free Writing
Prospectuses and other documents listed in Schedule II hereto,
taken together (collectively, the “Pricing Disclosure
Package”) as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on
Schedule II hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. or RBC Capital Markets Corporation
expressly for use therein;
(e) The
Registration Statement conforms, and the Prospectuses and any
further amendments or supplements to the Registration Statement and
the Prospectuses will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and the requirements of Canadian Securities
Laws, as applicable; and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the U.S. Prospectus and any
amendment or supplement thereto, contain
3
an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Canadian Prospectus and any amendment
or supplement thereto, as of the applicable filing date, is and
will be true and correct in all material respects and contains no
misrepresentation (as that term is defined under Canadian
Securities Laws), constitutes and will constitute full, true and
plain disclosure of all material facts relating to the Company and
its subsidiaries and the Shares as required by Canadian Securities
Laws and no material fact or information has been omitted therefrom
which is required to be stated therein or is necessary to make the
statements or information therein not false or misleading in light
of the circumstances in which they were made, in each case within
the meaning of Canadian Securities Laws; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Goldman, Sachs & Co. or RBC Capital Markets Corporation
expressly for use therein;
(f) Neither
the Company nor any of its Subsidiaries (“Subsidiary”
of any person or entity means any corporation, limited liability
company, partnership (general or limited), joint venture or other
legal entity of which such person or entity (either alone or
through or together with any other Subsidiary), owns, directly or
indirectly, 50% or more of the stock or other equity interests the
holder of which is generally entitled to vote for the election of
the board of directors or other governing body of such corporation,
limited liability company, partnership, joint venture or other
legal entity) has sustained since the date of the latest audited
financial statements included in the Pricing Prospectus and the
Canadian Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus and the Canadian
Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Pricing Prospectus
and the Canadian Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any material
adverse change in the capital stock or long-term debt of any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position,
shareholders’ equity or results of operations of the Company
and its Subsidiaries, taken as a whole, in each case otherwise than
as set forth or contemplated in the Pricing Prospectus and the
Canadian Prospectus;
(g) Except as
would not, individually or in the aggregate, have or reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole (a “Material Adverse Effect”): the Company and
its Subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Pricing Prospectus and the Canadian Prospectus or such as do not
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and
its Subsidiaries; any real property and buildings held under lease
by the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries; the buildings, improvements and other structures
located on such real property or held pursuant to such leases, and
the operation and maintenance thereof, as now operated and
maintained, comply with all applicable laws and regulations,
municipal or otherwise, and the Company or its Subsidiaries has
adequate rights of ingress and egress for the operation of the
business of the Company and its Subsidiaries in the ordinary
course; and none of such buildings, improvements or other
structures encroaches upon any land not owned or leased by the
Company or its subsidiaries; and there are no restrictive
covenants, municipal by-laws or other laws or regulations which in
any way restrict or prohibit the use of such real property or the
property subject to such leases or the buildings, improvements or
structures located thereon for the purposes
4
for which they
are presently being used, other than as are described in the
Prospectuses; and there are no expropriation or similar
proceedings, actual or threatened, of which the Company or its
Subsidiaries has received notice against such real property or in
respect of the real property subject to such leases or any part
thereof; and, other than as are described in the Prospectuses, all
buildings, improvements and other structures situated on such real
property or situated on the real property subject to such leases
are in good operating condition and in a state of good maintenance
and repair, are adequate and suitable for the purposes for which
they are currently being used;
(h) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Prospectus and the Canadian Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(i) Each
subsidiary of the Company set forth on Schedule III (which
includes all significant subsidiaries of the Company as such term
is defined in Rule 1-02(w) of Regulation S-X, as
promulgated by the Commission) (each, a “Significant
Subsidiary”) has been duly incorporated or organized and is
validly existing as a corporation, partnership (general or
limited), limited liability company or similar legal entity in good
standing under the laws of its jurisdiction of incorporation or
organization, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Pricing
Prospectus and the Canadian Prospectus, and has been duly qualified
as a foreign entity for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification except for such jurisdictions where the failure to so
qualify or be in good standing would not, individually or in the
aggregate, have or be reasonably expected to have a Material
Adverse Effect;
(j) The
Company has an authorized capitalization as set forth in the
Pricing Prospectus and the Canadian Prospectus, and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable
and conform to the description of the Common Shares contained in
the Pricing Disclosure Package and the Prospectuses; all of the
issued shares of capital stock of each Significant Subsidiary have
been duly and validly authorized and issued, are fully paid and,
other than those of subsidiaries which are unlimited liability
companies, are non-assessable and (except for directors’
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims; and,
except as set forth in each of the Pricing Prospectus and the
Canadian Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, Common
Shares are outstanding;
(k) The
Shares have been approved for listing on the New York Stock
Exchange (the “NYSE”), subject to notice of issuance,
and the Shares have been conditionally approved for listing on the
Toronto Stock Exchange (the “TSX”), subject only to
compliance with minimum distribution requirements and the Company
providing to the TSX certain required routine documentation; the
form and terms of the Common Shares have been approved and adopted
by the board of directors of the Company and do not conflict with
any applicable laws or the rules of the TSX;
(l) This
Agreement has been duly authorized, executed and delivered by the
Company;
(m) The issue
and sale of the Shares and the execution and delivery by the
Company of, and the compliance by the Company with, this Agreement
and the agreements listed in Annex III hereto (the
“Reorganization and Service Agreements”) and the
consummation of the transactions herein
5
and therein
contemplated will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its Significant Subsidiaries is a party or by which the
Company or any of its Significant Subsidiaries is bound or to which
any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, except for such conflicts,
breaches, violations or defaults that would not, individually or in
the aggregate, affect the ability of the Company to consummate the
transactions herein contemplated or reasonably be expected to have
a Material Adverse Effect, (ii) result in any violation of the
provisions of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their
properties or assets, except for such violations that would not,
individually or in the aggregate, affect the ability of the Company
to consummate the transactions herein contemplated or reasonably be
expected to have a Material Adverse Effect; or (iii) result in
any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company or any of its Significant Subsidiaries;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by
this Agreement or the Reorganization and Service Agreements, except
(w) the registration under the Act of the Shares, (x) the
filing of the supplemented Canadian Prospectus with the Canadian
Securities Regulatory Authorities, (y) such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters or to list the Shares on the NYSE or TSX, and
(z) such consents, approvals, authorizations, registrations or
qualifications that would not, individually or in the aggregate,
affect the ability of the Company to consummate the transactions
herein contemplated or reasonably be expected to have a Material
Adverse Effect;
(n) Each of
the Reorganization and Service Agreements has been duly authorized
by the Company and conforms in all material respects to the
description thereof in the Prospectuses and constitutes a valid and
binding obligation of the Company enforceable against it in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights generally and (ii) to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(o) Except as
would not individually or in the aggregate reasonably be expected
to have a Material Adverse Effect, the Company or its Subsidiaries
have, at or prior to the date hereof, acquired (i) all of the
title to the properties and other assets (tangible and intangible)
constituting the Company’s business and assets as described
in the Prospectuses and (ii) all of the capital stock of the
Company’s Significant Subsidiaries, in each case, free and
clear of all liens, charges and encumbrances;
(p) The
Shares have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable and will
conform to the description of the Common Shares contained in the
Prospectuses;
(q) Neither
the Company nor any of its Significant Subsidiaries is (i) in
violation of its Certificate of Incorporation, By-laws or other
organizational documents or (ii) in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound except,
in the case of (ii) above, for such defaults as would not,
individually or in the aggregate, have or be reasonably expected to
have a Material Adverse Effect;
6
(r) The
statements set forth in the Pricing Prospectus and the Prospectuses
under the caption “Description of Capital Stock”,
insofar as they purport to constitute a summary of the terms of the
Common Shares, and under the caption “Certain U.S. Federal
Tax Considerations for Non-U.S. Holders” and
“Underwriting” and, in the case of the Canadian
Prospectus, under the caption “Certain Canadian Federal
Income Tax Consequences, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(s) Other
than as set forth in the Pricing Prospectus and the Canadian
Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its Subsidiaries is a party or of
which any property of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(t) The
Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof, will not be
an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(u) At the
time of filing the Initial Registration Statement the Company was
not, and the Company is not, an “ineligible issuer” as
defined under Rule 405 under the Act;
(v) The
Company does not have any outstanding debt securities that are
rated by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act;
(w) PricewaterhouseCoopers
LLP, who have audited the financial statements of the Company and
its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements included
in the Prospectuses, (i) have been Wendy’s auditors for
the past five years and (ii) are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder and are independent in accordance with
the requirements of the Public Company Accounting oversight Board
(United States) (“PCAOB”), and (iii) there has not
been any disagreement (with the meaning of National Instrument
51-102) with PricewaterhouseCoopers LLP with respect to audits of
the Company;
(x) The
Company and each of its Significant Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S.
generally accepted accounting principles; (iii) access to
assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences;
(y) Except
for the implementation of new information technology systems at the
Company’s new distribution center in Guelph, Ontario (which
the Company believes will not adversely affect the Company’s
internal controls over financial reporting), since the date of the
latest audited financial statements included in the Pricing
Prospectus and the Canadian Prospectus, there has been no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting;
(z) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information
7
relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and
procedures are effective;
(aa) The
audited consolidated historical financial statements of the Company
included in the Pricing Prospectus, the Prospectuses and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to
form in all material respects with the applicable accounting
requirements of the Act and Canadian Securities Laws, have been
prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); the selected
financial data set forth under the caption “Selected
Historical Consolidated Financial and Other Data” in the
Pricing Prospectus, the Prospectuses and the Registration Statement
fairly present in all material respects, on the basis stated in the
Pricing Prospectus, the Prospectuses and the Registration
Statement, the information included therein; the pro forma
financial statements included in the Pricing Prospectus, the
Prospectuses and the Registration Statement are based on
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to
the historical financial statement amounts in the pro forma
financial statements included in the Pricing Prospectus, the
Prospectuses and the Registration Statement; the pro forma
financial statements included in the Pricing Prospectus, the
Prospectuses and the Registration Statement comply as to form in
all material respects with the applicable accounting requirements
of Regulation S-X under the Act and Canadian Securities Laws
and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those
statements;
(bb) No
material labor dispute with the employees of the Company or any of
its Subsidiaries exists or, to the Company’s knowledge, is
threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its or its Subsidiaries’ principal suppliers, contractors or
distributors, in either case that would reasonably be expected to
have a Material Adverse Effect;
(cc) The
Company has not taken and will not take, directly or indirectly,
any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares;
(dd) There
are no business relationships, related-party transactions or
off-balance sheet transactions involving the Company or any of its
subsidiaries or any other person required to be described in the
Prospectuses which have not been described as required;
(ee) Neither
the Company nor any of its Subsidiaries nor, to the knowledge of
the Company, any director, officer, employee or other person acting
on behalf of the Company or any of its Subsidiaries has
(i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, as amended; or
(iv) made any unlawful payment including any bribe, rebate,
payoff, influence payment or kickback;
(ff) Except
for such matters that would not, individually or in the aggregate,
have a Material Adverse Effect, (i) the operations of the
Company and its subsidiaries are, and have at all times been, in
compliance with any and all applicable statutes, orders,
ordinances, rules, regulations and common law requirements and
standards relating to occupational health and safety, the
environment, hazardous or toxic substances (including, but not
limited to, asbestos), wastes,
8
pollutants or
contaminants (“Environmental Law”); (ii) the
Company and its subsidiaries have all licenses, permits and
authorizations required under Environmental Law for the operation
of their business and are in compliance with all terms and
conditions of such licenses, permits and authorizations;
(iii) neither the Company nor any of its subsidiaries has
authorized or conducted or has knowledge of the transportation,
storage, use, treatment, disposal or release of any hazardous
constituent (including, but not limited to, asbestos), toxic
substance, pollutant, contaminant, petroleum product or chemical
defined or regulated under any Environmental Law on, in or under
any real property leased, owned or controlled by the Company and
its subsidiaries that would reasonably be expected to, individually
or in the aggregate, result in a violation of or liability under
any Environmental Law; (iv) there is no pending or, to the
best knowledge of the Company, threatened claim, litigation notice
or administrative agency proceeding that (A) alleges a
violation of any Environmental Law by the Company or any such
subsidiary, (B) alleges that the Company or any such
subsidiary is a liable party or requires the Company or any such
subsidiary to take action under the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. §9601 et
seq., or any other local, provincial, state or federal
Environmental Law, (C) alleges possible contamination of the
environment relating to any property owned or operated by the
Company or any such subsidiary or (D) alleges liability for
personal injury or property damage relating to the manufacture,
sale or distribution of any product containing any substance
regulated under any Environmental Law; and (v) there are no
other circumstances or conditions known to the Company or any of
its subsidiaries that would reasonably be expected to result in
claims or liability pursuant to any Environmental Law;
(gg) Except
as would not reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect: each employee benefit
plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or
contributed to by the Company or any of its affiliates controlled
by the Company for employees or former employees of the Company and
its affiliates controlled by the Company has been maintained in
compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited
to ERISA and the Internal Revenue Code of 1986, as amended (the
“Code”); no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan, excluding transactions
effected pursuant to a statutory or administrative exemption; and
for each such plan (and plan of an ERISA affiliate under
Section 414 of the Code) that is subject to the funding rules
of Section 412 of the Code or Section 302 of ERISA, no
“accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions;
(hh) Except
as otherwise set forth in the Pricing Prospectus and the Canadian
Prospectus, the Company and its Subsidiaries own or possess valid
licenses or other rights to use all patents, trademarks, service
marks, trade names, copyrights, know-how, trade secrets and other
intellectual property necessary for or used to conduct and carry on
the business, as described in the Prospectuses, of the Company and
its Subsidiaries (the “Intellectual Property Rights”)
except where the failure to own or possess such licenses or other
rights would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and the Company and its
subsidiaries have not received any notice of infringement or
asserted rights of others with respect to any of the foregoing
that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Effect;
(ii) The
Company and each of its Subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders,
approvals, franchises and other authorizations from, and has made
all declarations and filings with, all federal, provincial, state,
local and other governmental
9
authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or
foreign, necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as conducted as
of the date hereof, except where the failure to own, possess or
obtain such licenses, permits, certificates, consents, orders,
approvals, franchises and other authorizations would not,
individually or in the aggregate, have a Material Adverse Effect;
and neither the Company nor any of its Subsidiaries has received
any actual notice or has any knowledge of any existing or, to the
Company’s knowledge, threatened proceeding relating to
revocation or modification of any such license, permit,
certificate, consent, order, approval, franchise or other
authorization; and the Company and each of its Subsidiaries is in
compliance in all material respects with all laws and regulations
relating to the conduct of its business as conducted as of the date
hereof;
(jj) The
Company and its Subsidiaries have paid all federal, provincial,
state, local, foreign and franchise taxes and filed all tax returns
required to be filed through the date hereof; and except as
otherwise set forth in the Pricing Prospectus and the Prospectuses,
there is no tax deficiency that has been asserted or, to the
knowledge of the Company, threatened against the Company or any of
its Subsidiaries or any of their respective properties or assets
that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect;
(kk) No
Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other
Subsidiary of the Company, except as described in the Pricing
Prospectus and the Prospectuses (exclusive of any supplement
thereto);
(ll) The
statistical and market-related data included in the Registration
Statement, the Pricing Prospectus and the Prospectuses are based on
or derived from sources that are believed by the Company to be
reliable in all material respects, including data received from its
franchisees;
(mm) The
Company and each of its Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate
for the conduct of their business and the value of their
properties; and
(nn) Except
as disclosed in the Pricing Prospectus and the Prospectuses, the
Company and its Subsidiaries are in compliance with the applicable
requirements of the Federal Trade Commission rules governing
franchising and applicable provisions of federal, provincial, state
or local laws or regulations governing the business of a franchise
or that are applicable to their business as presently conducted,
except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
2. Wendy’s
represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The
execution and delivery by Wendy’s of, and the compliance by
Wendy’s with, this Agreement and the Reorganization and
Service Agreements and the consummation of the transactions herein
and therein contemplated will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which
Wendy’s or any of its Subsidiaries (other than the Company
and its Subsidiaries) is a party or by which Wendy’s or any
of its Subsidiaries (other than the Company and its Subsidiaries)
is bound or to which any of the property or assets of Wendy’s
or any of its Subsidiaries (other than the Company and its
Subsidiaries) is subject, except for such conflicts, breaches,
violations or defaults that would not, individually or in the
aggregate, affect the ability of Wendy’s to consummate the
transactions contemplated by the
10
Reorganization
and Service Agreements or reasonably be expected to have a Material
Adverse Effect;
(b) Each of
the Reorganization and Service Agreements has been duly authorized
by Wendy’s and constitutes a valid and binding obligation of
Wendy’s, enforceable against Wendy’s in accordance with
its terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights
generally and (ii) to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or
at law);
(c) This
Agreement has been duly authorized, executed and delivered by or on
behalf of Wendy’s;
(d) Wendy’s
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Ohio;
and
(e) To the
best knowledge of Wendy’s and its Subsidiaries (other than
the Company and its Subsidiaries) the representations and
warranties of the Company contained in Sections 1(c), 1(d),
1(e) and 1(o) of this Agreement are true and correct.
3. Subject to
the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Compa
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