SEC Form SC 13D/A filed by Wendy's Company (Amendment)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 59)*

(Name of Issuer)

(Title of Class of Securities)

(CUSIP Number)

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☐.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See Rule 13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The Information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Company’s Quarterly Report on Form 10-Q for the quarter ended on April 2, 2023 (the “Form 10-Q”).

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

 

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

 

^*  This percentage is calculated based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Form 10-Q.

AMENDMENT NO. 59 TO SCHEDULE 13D

This Amendment No. 59 (“Amendment No. 59”) amends and supplements the Schedule 13D dated October 13, 1992 (the “Original Statement”), as amended and restated by Amendment No. 6 dated May 3, 1993, as amended by Amendment No. 7 dated February 14, 1996, as amended by Amendment No. 8 dated October 13, 1998, as amended by Amendment No. 9 dated March 12, 1999, as amended by Amendment No. 10 dated May 4, 1999, as amended by Amendment No. 11 dated November 12, 2002, as amended by Amendment No. 12 dated April 25, 2003, as amended by Amendment No. 13 dated July 1, 2003, as amended by Amendment No. 14 dated September 24, 2003, as amended by Amendment No. 15 dated December 4, 2003, as amended by Amendment No. 16 dated January 15, 2004, as amended by Amendment No. 17 dated April 20, 2004, as amended by Amendment No. 18 dated June 29, 2004, as amended by Amendment No. 19 dated July 23, 2004, as amended by Amendment No. 20 dated May 23, 2005, as amended by Amendment No. 21 dated January 6, 2006, as amended by Amendment No. 22 dated February 23, 2006, as amended by Amendment No. 23 dated December 26, 2006, as amended by Amendment No. 24 dated April 23, 2008, as amended by Amendment No. 25 dated September 16, 2008, as amended by Amendment No. 26 dated September 23, 2008, as amended by Amendment No. 27 dated September 25, 2008, as amended by Amendment No. 28 dated October 1, 2008, as amended by Amendment No. 29 dated October 8, 2008, as amended by Amendment No. 30 dated November 6, 2008, as amended by Amendment No. 31 dated November 25, 2008, as amended by Amendment No. 32 dated December 5, 2008, as amended by Amendment No. 33 dated December 8, 2008, as amended by Amendment No. 34 dated December 11, 2008, as amended by Amendment 35 dated April 1, 2009, as amended by Amendment 36 dated March 9, 2010, as amended by Amendment 37 dated June 10, 2010, as amended by Amendment 38 dated February 2, 2011, as amended by Amendment 39 dated December 1, 2011 as amended by Amendment No. 40 dated February 6, 2012, as amended by Amendment No. 41 dated January 14, 2014, as amended by Amendment No. 42 dated January 15, 2014, as amended by Amendment No. 43 dated September 18, 2014, as amended by Amendment No. 44 dated June 3, 2015, as amended by Amendment No. 45 dated June 18, 2015, as amended by Amendment No. 46 dated June 25, 2015, as amended by Amendment No. 47 dated July 8, 2015, as amended by Amendment No. 48 dated July 20, 2015, as amended by Amendment No. 49 dated December 15, 2015, as amended by Amendment No. 50 dated December 6, 2016, as amended by Amendment No. 51 dated June 6, 2017, as amended by Amendment No. 52 dated February 27, 2018, as amended by Amendment No. 53 dated May 16, 2018, as amended by Amendment No. 54 dated March 7, 2019, as amended by Amendment No. 55 dated August 16, 2019, as amended by Amendment No. 56 dated May 24, 2022, as amended by Amendment No. 57 dated January 13, 2023, and as amended by Amendment No. 58 (“Amendment No. 58”) dated March 3, 2023 (the Original Statement, as so amended shall be known as the “Statement”), with respect to the (i) the Common Stock, par value $.10 per share (the “Common Stock”), of The Wendy’s Company (the “Company,” formerly known as Wendy’s/Arby’s Group, Inc. and, before that, Triarc Companies, Inc., a Delaware corporation (“Triarc”) and successor by merger to Triarc Companies, Inc., an Ohio corporation formerly named DWG Corporation) for periods commencing on or after May 28, 2009, (ii) the Common Stock, par value $.10 per share, of Triarc (through September 29, 2008, the date of the closing of the acquisition of Wendy’s described in Item 4) and of the Company for the period commencing on September 30, 2008 and ending on May 27, 2009 (the “Class A Common Stock”), and (iii) for periods prior to September 30, 2008, the Class B Common Stock, Series 1, par value $.10 per share, of Triarc (the “Class B Common Stock”).  Unless otherwise indicated, all capitalized terms used herein shall have the same meaning as set forth in the Statement.

Except as set forth below, there are no changes to the information set forth in the Statement.

Items 2, 3, 4 and 5 of the Statement are hereby amended as follows:

Item 2.  Identity and Background

Item 2 of the Statement is hereby amended and restated with the following:

The persons filing this Statement are Trian Partners GP, L.P., a Delaware limited partnership (“Trian GP”), Trian Partners General Partner, LLC, a Delaware limited liability company (“Trian GP LLC”), Trian Partners, L.P., a Delaware limited partnership (“Trian Onshore”), Trian Partners Master Fund, L.P., a Cayman Islands limited partnership (“Trian Master Fund”), Trian Partners Parallel Fund I, L.P., a Delaware limited partnership (“Parallel Fund I”), Trian Partners Strategic Fund-G II, L.P., a Delaware limited partnership (“Fund-G II”), Trian Partners Strategic Fund-G III, L.P., a Delaware limited partnership (“Fund-G III”), Trian Partners Strategic Fund-K, L.P., a Delaware limited partnership (“Fund-K”), Trian Fund Management, L.P., a Delaware limited partnership (“Trian Management”), Trian Fund Management GP, LLC, a Delaware limited liability company (“Trian Management GP”, and together with the foregoing, the “Trian Entities”), Nelson Peltz, a citizen of the United States of America, Peter W. May, a citizen of the United States of America, Ed Garden, a citizen of the United States of America, and Matthew Peltz (“M. Peltz”), a citizen of the United States of America (the Trian Entities and Messrs. Peltz, May, Garden, and M. Peltz are sometimes hereinafter referred to collectively as the “Filing Persons”).

The address of the principal office of each of the Trian Entities is 280 Park Avenue, 41st Floor, New York, New York 10017, except that the address of the principal office of Trian Master Fund is c/o DE (Cayman) Limited, Landmark Square, West Bay Road, PO Box 775, Grand Cayman, Cayman Islands, KY1-9006.  The principal business address of each of Messrs. Peltz, May, Garden and M. Peltz is 223 Sunset Avenue, Palm Beach, Florida 33480.

Trian GP LLC is the general partner of Trian GP, which is the general partner of Trian Onshore and Trian Master Fund.  Trian Management GP is the general partner of Trian Management, which serves as the management company for Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, and Fund-K.

Each of Trian Onshore, Trian Master Fund, Trian GP, Parallel Fund I, Fund-G II, Fund-G III, and Fund-K is primarily engaged in the business of investing in securities.  Trian GP LLC is primarily engaged in the business of serving as the general partner of Trian GP.  Trian Management is primarily engaged in the business of serving as a management company for certain of the Trian Entities and other funds, accounts and investment vehicles that it manages.  Trian Management GP is primarily engaged in the business of serving as the general partner of Trian Management.  Nelson Peltz’s present principal occupation or employment is serving as Chief Executive Officer and a founding partner of Trian Management and, as such, managing the investments of Trian GP, Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, and other funds, accounts and investment vehicles managed by Trian Management.  Peter W. May’s present principal occupation or employment is serving as President and a founding partner of Trian Management and, as such, managing the investments of Trian GP, Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, and other funds, accounts and investment vehicles managed by Trian Management.  Matthew Peltz’s present principal occupation or employment is serving as Co-Chief Investment Officer and a partner of Trian Management.  Each of Mr. Peltz, Mr. May, and Mr. M. Peltz, along with other senior Trian Management employees, serve on Trian’s Investment Committee.  Mr. Garden has decided to retire as Trian Management’s Chief Investment Officer and as a Trian Management partner to focus on managing his personal investments through his family office. He will continue as a Senior Advisor to Trian Management.  On June 1, 2023, in connection with Mr. Garden’s retirement, the Filing Persons determined that Mr. Garden, on the one hand, and all of the other Filing Persons, on the other hand, no longer had any agreement to act together with respect to the acquisition, holding, voting or disposition of their respective holdings of Common Stock of the Company.

None of the Filing Persons nor any director, executive officer, general partner or controlling person of any of the Filing Persons, has, during the past five years, (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (b) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or a finding of any violation with respect to such laws.

Each of the Filing Persons is responsible for the completeness and accuracy of the information concerning him or it contained herein, but is not responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate.

As a result of the amendments described above in this Item 2, following this Amendment No. 59, Mr. Garden will no longer be a filing person, and references in this Statement to the “Filing Persons” or the “Trian Entities” will no longer include Mr. Garden. 

Item 3.  Source and Amount of Funds or Other Consideration

Item 3 of the Statement is hereby amended and supplemented by the following:

Since the filing of Amendment No. 58, Nelson Peltz, in his capacity as a director of the Company, was awarded 955 shares of Common Stock on April 4, 2023 and 6,601 shares of Common Stock on May 16, 2023; Mr. May, in his capacity as a director of the Company, was awarded 1,352 shares of Common Stock on April 4, 2023, and 6,601 shares of Common Stock on May 16, 2023; and Matthew Peltz, in his capacity as a director of the Company, was awarded 1,198 shares of Common Stock on April 4, 2023 and 6,601 shares of Common Stock on May 16, 2023.

Item 4. Purpose of Transaction

Item 4 is hereby amended and supplemented as follows:

The sales of Shares by Trian Onshore and Trian Master Fund reported in this Amendment No. 59 were done for portfolio management purposes.  None of the Shares that were sold were owned directly by Messrs. Peltz, May, Garden or M. Peltz.

Item 5.  Interest in Securities of the Issuer

(1)  Part (a) of Item 5 of the Statement is amended by deleting the eleventh through seventeenth paragraphs thereof and replacing them with the following:

Mr. Peltz directly owns and has the sole power to dispose of and the shared power to vote 9,963,804 shares of Common Stock.  Mr. May directly owns and has the sole power to dispose of and the shared power to vote 5,490,002 shares of Common Stock.  Mr. Garden directly owns and has the sole power to dispose of and vote 240,365 shares of Common Stock. Mr. M. Peltz directly owns and has the sole power to dispose of and vote 94,581 shares of Common Stock.

Claudia Peltz, Mr. Peltz’s wife, is the beneficial owner of 44,169 shares of Common Stock.  These shares were previously beneficially owned by the Peltz L.P., the general partner of which was a limited liability company of which Mrs. Peltz was the sole member.  Mr. Peltz may be deemed to beneficially own the shares of Common Stock owned by Mrs. Peltz.  Mr. Peltz disclaims beneficial ownership of such shares.

The Peltz 2009 Family Trust is the beneficial owner of 132,397 shares of Common Stock.  Mrs. Peltz, Mr. Peltz and Mr. M. Peltz serve as the trustees of the Peltz 2009 Family Trust.  The shares held by the Peltz 2009 Family Trust were previously beneficially owned by the NP 2009 GRAT, a trust of which Mr. Peltz was the sole trustee.  Each of Mr. Peltz and Mr. M. Peltz may be deemed to beneficially own the shares of Common Stock owned by the 2009 Family Trust. Each of Mr. Peltz and Mr. M. Peltz disclaims beneficial ownership of such shares.

In addition, certain of Mr. Peltz’s children (the “Peltz Children”) beneficially own 81,104 shares of Common Stock, which Mr. Peltz may be deemed to beneficially own.  Mr. Peltz disclaims beneficial ownership of such shares.

The Peltz Family Foundation is the beneficial owner of 195,430 shares of Common Stock.  Mr. and Mrs. Peltz, Mr. M. Peltz and an unrelated person serve as the trustees of the Peltz Family Foundation.  Each of Mr. Peltz and Mr. M. Peltz may be deemed to beneficially own the shares of Common Stock owned by the Peltz Family Foundation.  Each of Mr. Peltz and Mr. M. Peltz disclaims beneficial ownership of such shares.

The May Family Foundation is the beneficial owner of 32,910 shares of Common Stock. Mr. and Mrs. May and their two adult children serve as the directors of the May Family Foundation.  Mr. May may be deemed to beneficially own the shares of Common Stock owned by the May Family Foundation.  Mr. May disclaims beneficial ownership of such shares.

Pursuant to the Voting Agreement, Mr. Peltz may also be deemed to share voting power (but has no dispositive power) with respect to 5,490,002 shares of the Common Stock beneficially owned by Mr. May (excluding shares beneficially owned by the May Family Foundation), and Mr. May may also be deemed to share voting power (but has no dispositive power) with respect to 10,177,305 shares of the Common Stock beneficially owned by Mr. Peltz (excluding shares beneficially owned by Ms. Peltz and the Peltz Family Foundation).  Accordingly, Mr. Peltz may be deemed to beneficially own such shares of Common Stock beneficially owned by Mr. May, and Mr. May may be deemed to beneficially own such shares of Common Stock beneficially owned by Mr. Peltz.

Trian Onshore directly owns 7,052,125 shares of Common Stock, Trian Master Fund directly owns 10,048,742 shares of Common Stock, Parallel Fund I directly owns 1,172,869 shares of Common Stock, Trian GP directly owns 12,798 shares of Common Stock, Fund-G II directly owns 663,203 shares of Common Stock, Fund-G III directly owns 162,088 shares of Common Stock and Fund-K directly owns 1,620,803 shares of Common Stock. Mr. Peltz and Mr. May, by virtue of their relationships to Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, Trian GP, Trian GP LLC, Trian Management and Trian Management GP (as discussed in Item 2 above), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own the shares of Common Stock directly owned by Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K and Trian GP.  Each of Mr. Peltz and Mr. May disclaim beneficial ownership of such shares for all other purposes.

As a result, Mr. Peltz may be deemed to beneficially own an aggregate of 36,639,534 shares of Common Stock (including shares of Common Stock beneficially owned by Mr. May, Ms. Peltz, the Peltz 2009 Family Trust, the Peltz Children, the Peltz Family Foundation, Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, and Trian GP, but excluding shares beneficially owned by the May Family Foundation), representing approximately 17.39% of the outstanding shares of Common Stock.  In addition, Mr. May may be deemed to beneficially own an aggregate of 36,432,845 shares of Common Stock (including shares of Common Stock beneficially owned by the May Family Foundation, Mr. Peltz, Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, and Trian GP, but excluding shares beneficially owned by Ms. Peltz, and the Peltz Family Foundation), representing approximately 17.29% of the outstanding shares of Common Stock.

 

(2)  Item 5 of the Statement is hereby amended and supplemented by deleting Part (a) and the first and second paragraphs of Part (b) of Item 5 of Amendment No. 58 and replacing them with the following:

(a)  As of 4:00 p.m., New York City time, on June 2, 2023, the Filing Persons beneficially owned, in the aggregate, 37,007,390 shares of Common Stock, representing approximately 17.56% of the outstanding Common Stock (based upon 210,736,503 shares of Common Stock outstanding as of May 3, 2023, as reported in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended on April 2, 2023).

(b)  Each of Trian Onshore, Trian Master Fund, Parallel Fund I, Trian GP, Fund-G II, Fund-G III and Fund-K beneficially and directly owns and has sole voting power and sole dispositive power with regard to 7,052,125, 10,048,742, 1,172,869, 12,798, 663,203, 162,088 and 1,620,803 shares of Common Stock, respectively, in each case except to the extent that other Filing Persons as described in the Statement may be deemed to have shared voting power and shared dispositive power with regard to such shares.

Each of Trian Management, Trian Management GP, Nelson Peltz, and Peter W. May, by virtue of their relationships to Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III and Fund-K (as discussed in Item 2), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act), all of the shares of Common Stock that Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III and Fund-K directly and beneficially own.  Each of Trian Management, Trian Management GP, Nelson Peltz, and Peter W. May disclaims beneficial ownership of such shares for all other purposes.  Each of Trian GP LLC, Trian Management, Trian Management GP, Nelson Peltz, and Peter W. May, by virtue of their relationships to Trian GP (as discussed in Item 2), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act), all of the shares of Common Stock that Trian GP directly and beneficially owns.  Each of Trian GP LLC, Trian Management, Trian Management GP, Nelson Peltz, and Peter W. May disclaims beneficial ownership of such shares for all other purposes.

(3)  Part (c) of Item 5 of the Statement is amended and supplemented by the following:

The following table sets forth all transactions by any of the Filing Persons with respect to the shares of Common Stock effected since Amendment No. 58 was filed, inclusive of the transactions effected through 4:00 p.m., New York City time, on June 2, 2023.  All such transactions in the table were effected in the open market.  The prices set forth in the table do not include commissions.

SIGNATURE

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: June 2, 2023

EXHIBIT INDEX