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As filed with the Securities and Exchange Commission on July 27, 2001
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Wendy's International, Inc.
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(Exact name of registrant as specified in its charter)
Ohio 31-0785108
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 256, 4288 West Dublin-Granville Road
Dublin, Ohio 43017-0256
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(Address of Principal Executive Offices) (Zip Code)
Wendy's WeShare Stock Option Plan
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(Full title of the plan)
Dana Klein, Esq.
P.O. Box 256, 4288 West Dublin-Granville Road
Dublin, Ohio 43017-0256
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(Name and address of agent for service)
(614) 764-3100
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(Telephone number, including area code, of agent for service)
Title of Proposed maximum Proposed maximum
securities to Amount to be offering price aggregate offering Amount of
be registered registered per share (1) price (1) registration fee
------------------------- -------------------- ------------------------ ------------------------ -------------------
Common Shares,
without par value 900,000 (2) $27.69 $24,921,000 $6,230.25
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c); based upon the average of the high and low
prices of Wendy's International, Inc. Common Shares in the consolidated
reporting system on July 23, 2001.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein and any additional securities which may become
issuable pursuant to the anti-dilution provisions of the plan.
(Page 1 of 27 pages; exhibit index on page 9)
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This Registration Statement relates to an amendment to the Wendy's
International, Inc. WeShare Stock Option Plan to increase the number of Common
Shares authorized to be issued thereunder from 6,300,000 to 7,200,000. The
contents of the Registrant's Registration Statements on Form S-8 with respect to
the WeShare Stock Option Plan, Registration No. 33-36603, filed with the
Securities and Exchange Commission (the "Commission") on August 29, 1990,
Registration No. 333-09261, filed with the Commission on July 31, 1996,
Registration No. 333-32675, filed with the Commission on August 1, 1997,
Registration No. 333-60031, filed with the Commission on July 28, 1998,
Registration No. 333-83973 filed with the Commission on July 29, 1999, and
Registration No. 333-42478, filed with the Commission on July 28, 2000, are
hereby incorporated by reference pursuant to Instruction E of Form S-8. Also
pursuant to Instruction E to Form S-8, the filing fee is being paid only with
respect to the 900,000 Common Shares not previously registered.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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Registrant's Annual Report on Form 10-K for the year ended December
31, 2000, and all other reports filed with the Commission pursuant to the
requirements of Section 13(a) or Section 15(d) of the Exchange Act since that
date are hereby incorporated by reference, including the Registrant's Quarterly
Report on Form 10-Q for the quarter ended April 1, 2001.
The description of the Common Shares of Registrant contained in
Registrant's Registration Statement on Form S-3 (No. 33-28411) filed with the
Commission on May 1, 1989, is hereby incorporated by reference.
The description of the Preferred Stock Purchase Rights of
Registrant contained in Registrant's Registration Statement on Form 8-A/A,
Amendment No. 2 (No. 1-8116) filed with the Commission on December 8, 1997, as
amended and supplemented in Item 1 of Registrant's Registration Statement on
Form 8-A/A, Amendment No. 3 (No. 1-8116) filed with the Commission on January
26, 2001, is hereby incorporated by reference.
Any definitive Proxy Statement or Information Statement filed
pursuant to Section 14 of the Exchange Act and all reports which may be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act
subsequent to the date hereof prior to the completion of the offering
contemplated hereby, shall also be deemed to be incorporated herein by reference
and to be made a part hereof from the date of filing such documents.
Item 4. Description of Securities.
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Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
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Dana Klein, Esq., is an employee of Registrant. As of July 26,
2001, Mr. Klein, together with members of his immediate family, owned an
aggregate of 1,319 Common Shares of Registrant and options to purchase an
aggregate of 51,832 Common Shares of Registrant.
Item 6. Indemnification of Directors and Officers.
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Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by a corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, if he had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending, or completed action or suit by or in the right of the corporation to
procure a judgment in its favor, by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's fees,
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any of
the following:
(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his duty to the
corporation unless, and only to the extent that, the court of common pleas or
the court in which such action or suit was brought determines, upon application,
that, despite that adjudication of liability, but in view of all the
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circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability asserted against
a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in division (E)(1) or (2)
of this section, or in defense of any claim, issue, or matter therein, he shall
be indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation only as
authorized in the specific case, upon a determination that indemnification of
the director, trustee, officer, employee, member, manager, or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in division (E)(1) or (2) of this section. Such determination shall be
made as follows:
(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or threatened with
the action, suit or proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of this section
is not obtainable or if a majority vote of a quorum of disinterested directors
so directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been retained
by or who has performed services for the corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (E)(1) or (2) of this section was
brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division (E)(4)(b) of
this section shall be promptly communicated to the person who threatened or
brought the action or suit by or in the right of the corporation under division
(E)(2) of this section, and, within ten days after receipt of such notification,
such person shall have the right to petition the court of common pleas or the
court in which such action or suit was brought to review the reasonableness of
such determination.
(5)(a) Unless at the time of a director's act or omission that is
the subject of an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section, the articles or the regulations of a corporation state, by
specific reference to this division, that the provisions of this division do not
apply to the corporation and unless the only liability asserted against a
director in an action, suit or proceeding referred to in division (E)(1) or (2)
of this section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney's fees, incurred by a director
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in defending the action, suit or proceeding shall be paid by the corporation as
they are incurred, in advance of the final disposition of the action, suit, or
proceeding, upon receipt of an undertaking by or on behalf of the director in
which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the corporation or undertaken with reckless disregard for the best interests of
the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit or proceeding referred to in division (E)(1) or (2) of this section, may be
paid by the corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be indemnified
by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under the articles, the regulations, any agreement, a
vote of shareholders or disinterested directors, or otherwise, both as to action
in their official capacities and as to action in another capacity while holding
their offices or positions, and shall continue as to a person who has ceased to
be a director, trustee, officer, employee, member, manager, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit, or self-insurance, on behalf of or for any person who is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section. Insurance may be purchased from or maintained
with a person in which the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant to
division (E)(1) or (2) of this section does not limit the payment of expenses as
they are incurred, indemnification, insurance, or other protection that may be
provided pursuant to divisions (E)(5), (6) and (7) of this section. Divisions
(E)(1) and (2) of this section do not create any obligation to repay or return
payments made by the corporation pursuant to division (E)(5), (6), or (7).
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(9) As used in division (E) of this section, "corporation" includes
all constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as he would
if he had served the new or surviving corporation in the same capacity.
Section 5.01 of the Registrant's Regulations governs
indemnification by Registrant and provides as follows:
Section 5.01. Indemnification. The corporation shall
indemnify each director and officer, each former director and
officer, and each person who may have served at its request as an
officer, and each person who may have served at its request as a
director, trustee, or officer of any other corporation,
partnership, joint venture, trust or other enterprise, to the
greatest extent permitted by Ohio law, with respect to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, to which
such person was or is a party by reason of the fact that he is or
was a director or officer of the corporation or is or was serving
at its request as aforesaid. Indemnification hereunder shall
include all expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement if actually and reasonably incurred
by him in connection with such action, suit or proceeding. Such
expenses shall be paid in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the
corporation. In addition, the corporation may indemnify or agree to
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was an employee
or agent of the corporation or is or was serving as an employee or
agent of another enterprise at the request of the corporation;
subject, however, to the limitations imposed by Ohio law. The
indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking
indemnification may be entitled under the Articles or any
agreement, vote of shareholders, or disinterested directors or
otherwise (including, without limitation, any insurance), both as
to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, trustee, officer, employee
or agent and shall inure to the benefit of the heirs, executors,
administrators and successors of such a person.
In addition, Registrant has purchased insurance coverage under
policies issued by The Chubb Group of Insurance Companies, National Union
Insurance Company, CNA Insurance Companies and Royal and Sun Alliance which
insure directors and officers against certain liabilities which might be
incurred by them in such capacity.
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Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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See the Exhibit Index attached hereto.
Item 9. Undertakings.
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Incorporated by reference from the Registrant's previous
registration statement on Form S-8, registration number 33-36603.
SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dublin, State of Ohio, on July 27, 2001.
WENDY'S INTERNATIONAL, INC.
By: /s/ Leon M. McCorkle, Jr.
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Leon M. McCorkle, Jr.
Executive Vice President,
General Counsel & Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 27th day of July, 2001.
Signature Title
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/s/ R. David Thomas * Director, Senior Chairman of the Board
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R. David Thomas
/s/ John T. Schuessler * Director, Chairman of the Board &
------------------------------------ Chief Executive Officer
John T. Schuessler
/s/ Kerrii B. Anderson * Director, Executive Vice President &
------------------------------------ Chief Financial Officer
Kerrii B. Anderson
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/s/ Ronald E. Musick * Director, Executive Vice President
-------------------------------------- (Principal Financial Officer)
Ronald E. Musick
/s/ Lawrence A. Laudick * Chief Accounting Officer,
-------------------------------------- Senior Vice President & General
Lawrence A. Laudick Controller
/s/ Ernest S. Hayeck * Director
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Ernest S. Hayeck
/s/ Janet Hill * Director
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Janet Hill
/s/ Paul D. House * Director
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Paul D. House
/s/ Ronald V. Joyce * Director
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Ronald V. Joyce
/s/ Thomas F. Keller * Director
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Thomas F. Keller
/s/ William E. Kirwan * Director
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William E. Kirwan
/s/ True H. Knowles * Director
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True H. Knowles
/s/ David P. Lauer * Director
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David P. Lauer
/s/ Andrew G. McCaughey * Director
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Andrew G. McCaughey
/s/ James V. Pickett * Director
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James V. Pickett
/s/ Thekla R. Shackelford * Director
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Thekla R. Shackelford
Date
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*By: /s/ Leon M. McCorkle, Jr. July 27, 2001
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Leon M. McCorkle, Jr.
(Attorney-in-Fact)
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EXHIBIT INDEX
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Exhibit No. Page
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5 Opinion of Dana Klein, Esq. as to legality 10
23(a) Consent of Accountants 11
23(b) Consent of Dana Klein, Esq. (included in Exhibit 5)
24 Powers of Attorney 12 - 27
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