As filed with the Securities and Exchange Commission on July 29, 2002
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.
--------------------------------------
(Exact name of registrant as specified in its charter)
Ohio 31-0785108
----------------------------- ------------------------------------
(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
----------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
-------------------------------------------------------------------
Wendy's WeShare Stock Option Plan
-----------------------------
(Full title of the plan)
Dana Klein, Esq.
P.O. Box 256, 4288 West Dublin-Granville Road
Dublin, Ohio 43017-0256
------------------------------------------
(Name and address of agent for service)
(614) 764-3100
--------------------------------------------------
(Telephone number, including area code, of agent for service)
Proposed
maximum
Title of Amount to Proposed maximum aggregate Amount of
securities to be offering price offering registration
be registered registered per share(1) price(1) fee
----------------------------------------------------------------------------
Common Shares,
without par
value 1,000,000(2) $32.78 $32,780,000 $3,015.76
(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 22, 2002.
(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 25 pages; exhibit index on page 9)
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 7,200,000 to 8,200,000. 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,
Registration No. 333-42478, filed with the Commission on July 28, 2000, and
Registration No. 333-65990, filed with the Commission on July 27, 2001, 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 400,000 Common Shares not previously registered.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Registrant's Annual Report on Form 10-K for the year ended December 30,
2001, 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 March 31, 2002.
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.
Not Applicable.
2
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Dana Klein, Esq., is an employee of Registrant. As of July 26, 2002,
Mr. Klein, together with members of his immediate family, owned an aggregate
of 2,319 Common Shares of Registrant and options to purchase an aggregate of
66,895 Common Shares of Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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
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;
3
(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 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:
4
(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).
(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,
5
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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
6
Item 8. EXHIBITS.
See the Exhibit Index attached hereto.
Item 9. UNDERTAKINGS.
Incorporated by reference from the Registrant's previous registration
statement on Form S-8, registration number 33-36603.
SIGNATURES
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 29, 2002.
WENDY'S INTERNATIONAL, INC.
By: /s/ Leon M. McCorkle, Jr.
------------------------------
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 29th day of July, 2001.
SIGNATURE TITLE
/s/ John T. Schuessler * Director, Chairman of the Board,
------------------------------- Chief Executive Officer & President
John T. Schuessler
/s/ Kerrii B. Anderson * Director, Executive Vice President
------------------------------- & Chief Financial Officer
Kerrii B. Anderson
/s/ Lawrence A. Laudick * Chief Accounting Officer,
------------------------------- Senior Vice President & General
Lawrence A. Laudick Controller
/s/ Ernest S. Hayeck * Director
-------------------------------
Ernest S. Hayeck
/s/ Janet Hill * Director
-------------------------------
Janet Hill
7
/s/ Paul D. House * Director
-------------------------------
Paul D. House
/s/ Thomas F. Keller * Director
-------------------------------
Thomas F. Keller
/s/ William E. Kirwan * Director
-------------------------------
William E. Kirwan
/s/ True H. Knowles * Director
-------------------------------
True H. Knowles
/s/ David P. Lauer * Director
-------------------------------
David P. Lauer
/s/ Andrew G. McCaughey * Director
-------------------------------
Andrew G. McCaughey
/s/ James F. Millar * Director
-------------------------------
James F. Millar
/s/ James V. Pickett * Director
-------------------------------
James V. Pickett
/s/ Thekla R. Shackelford * Director
-------------------------------
Thekla R. Shackelford
DATE
*By: /s/ Leon M. McCorkle, Jr. July 29, 2002
-----------------------
Leon M. McCorkle, Jr.
(Attorney-in-Fact)
8
EXHIBIT INDEX
EXHIBIT NO. PAGE
5 Opinion of Dana Klein, Esq. 10
as to legality
23(a) Consent of Independent 11
Accountants
23(b) Consent of Dana Klein, Esq.
(included in Exhibit 5)
24 Powers of Attorney 12 - 25
9