13D Filing: Trian Partners and Wendy’s Co (WEN)

AMENDMENT NO. 52 TO SCHEDULE 13D

This Amendment No. 52 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 (“Amendment 28“), 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 (“Amendment No. 44“), 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, and as amended by Amendment No. 51 dated June 6, 2017 (“Amendment No. 51“) (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 (including, without limitation, to “Item 4. Purpose of Transaction”). As noted in Amendment Nos. 14 through 28, all references in the Statement to “Common Stock” shall, for periods prior to September 29, 2008, the date of the closing of the acquisition of Wendy’s (see Item 4), be deemed to refer to the Class A Common Stock of Triarc.

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. 51, each of Messrs. Peltz, May and M. Peltz, in their capacities as directors of the Company, received 1,090 shares of Common Stock on July 3, 2017, 1117 shares of Common Stock on October 2, 2017 and 1,070 shares of Common Stock on January 2, 2018, in each case from the Company in lieu of Board of Directors retainer fees pursuant to the terms of the Company’s 2010 Omnibus Award Plan.

Mr. Peltz, in his capacity as a director of the Company, received 130 shares of Common Stock on November 2, 2017, Mr. May, in his capacity as a director of the Company, received 169 shares of Common Stock on July 3, 2017, 173 shares of Common Stock on October 2, 2017, 130 shares of Common Stock on November 2, 2017, 138 shares of Common Stock on December 7, 2017 and 166 shares of Common Stock on January 2, 2018, and Mr. M. Peltz, in his capacity as a director of the Company, received 130 shares of Common Stock on November 2, 2017 and 138 shares of Common Stock on December 7, 2017, in each case from the Company in lieu of committee retainer and meeting fees pursuant to the terms of the Company’s 2010 Omnibus Award Plan.

Certain shares of Common Stock held by the Trian Entities are held in the ordinary course of business with other investment securities owned by such Trian Entities in co-mingled margin accounts with a prime broker, which prime broker may, from time to time, extend margin credit to such Trian Entities, subject to applicable federal margin regulations, stock exchange rules and credit policies. Because other securities are held in Trian Entity margin accounts, it is not possible to determine the amounts, if any, of margin used to purchase such shares of Common Stock, and it may not be possible to determine the amounts of margin, if any, that could be used to purchase shares of Common Stock in the future by the Trian Entities or any other funds, accounts or investment vehicles managed by Trian Management.

Item 4. Purpose of Transaction

Item 4 is hereby amended by adding the following:

The sales of Shares by the Filing Persons reported in this Amendment No. 52 resulted in a reduction of their aggregate holdings from approximately 22.4% of the outstanding Common Stock to approximately 20.7% of the outstanding Common Stock (based upon 242,196,738 shares of Common Stock outstanding as of November 2, 2017, as reported in the Company’s Quarterly Report on Form 10-Q filed on November 8, 2017).  None of the Shares that were sold were owned directly by Messrs. Peltz, May, Garden or M. Peltz. Immediately following the consummation of such sales, the Filing Persons will continue to be the Company’s largest stockholder (based on current share ownership information on file with the SEC), with an aggregate beneficial ownership of 50,120,943 shares.

The Filing Persons intend to review alternatives with respect to their investment in the Company on a continuing basis.  Depending on various factors, including, without limitation, the Company’s financial position, results of operations and strategic direction, price levels of the Common Stock, the Filing Persons’ overall investment strategies, liquidity requirements and other portfolio management considerations, other investment opportunities available to the Filing Persons, conditions in the securities and capital markets, and general economic and industry conditions and applicable regulatory and legal constraints, the Filing Persons may, from time to time and at any time in the future, take such actions with respect to their investment in the Company as they deem appropriate, including, without limitation, communicating with the Company’s other stockholders, industry participants and other interested or relevant parties about the Company, purchasing additional securities of the Company, entering into financial instruments or other agreements which increase or decrease the Filing Persons’ economic exposure with respect to their investment in the Company and/or changing the form of ownership of securities of the Company by the Filing Persons, selling some or all of their holdings in the Company and/or otherwise changing their intention with respect to any and all matters referred to in Item 4 of Schedule 13D.  The Filing Persons reserve the right at any time to formulate other plans and/or make other proposals, and take such actions with respect to their investment in the Company and/or change their intention with respect to any and all matters set forth in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

Item 5.  Interest in Securities of the Issuer

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

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 Ms. Peltz was the sole member.  Mr. Peltz may be deemed to beneficially own the shares of Common Stock owned by Ms. 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. M. Peltz and an unrelated person 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 are the beneficial owners of 81,494 shares of Common Stock, including 81,104 shares of Common Stock beneficially owned by certain of Mr. Peltz’ minor children (the “Peltz Minor Children“), and 390 shares of Common Stock beneficially owned by certain of Mr. Peltz’s adult children that live in his household (the “Peltz Adult Children“).  Mr. Peltz may be deemed to beneficially own the shares of Common Stock owned by his children.  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.

As a result, Mr. Peltz may be deemed to beneficially own an aggregate of 49,815,853 shares of Common Stock (including shares of Common Stock beneficially owned by Mr. May, Ms. Peltz, the Peltz 2009 Family Trust, Mr. Peltz’s children (including the Peltz Adult Children), the Peltz Family Foundation, Trian Onshore, Trian Master Fund, Trian GP, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, Fund-C and Trian GP, but excluding shares beneficially owned by the May Family Foundation), representing approximately 20.57% of the outstanding shares of Common Stock.  In addition, Mr. May may be deemed to beneficially own an aggregate of 49,608,774 shares of Common Stock (including shares of Common Stock beneficially owned by the May Family Foundation, Mr. Peltz, Trian Onshore, Trian Master Fund, Trian GP, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, Fund-C and Trian GP, but excluding shares beneficially owned by Ms. Peltz, the Peltz Adult Children and the Peltz Family Foundation), representing approximately 20.48% of the outstanding shares of Common Stock.  Mr. Garden may be deemed to beneficially own an aggregate of 34,276,286 shares of Common Stock (including shares of Common Stock beneficially owned by Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K, Fund-C and Trian GP), representing approximately 14.15% 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. 51 and replacing them with the following:

(a)  As of 4:00 p.m., New York City time, on February 26, 2018, the Filing Persons beneficially owned, in the aggregate, 50,120,943 shares of Common Stock, representing approximately 20.69% of the outstanding Common Stock (based upon 242,196,738 shares of Common Stock outstanding as of November 2, 2017, as reported in the Company’s Quarterly Report on Form 10-Q, filed on November 8, 2017).

(b)  Each of Trian Onshore, Trian Master Fund, Parallel Fund I, Trian GP, Fund-G II, Fund-G III, Fund-K and Fund-C beneficially and directly owns and has sole voting power and sole dispositive power with regard to 10,520,951, 18,585,919, 1,172,869, 12,798, 663,203, 162,088, 1,620,803, and 1,297,290 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, Peter W. May and Edward P. Garden, by virtue of their relationships to Trian Onshore, Trian Master Fund, Parallel Fund I, Fund-G II, Fund-G III, Fund-K and Fund-C (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, Fund-K and Fund-C directly and beneficially own.  Each of Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden disclaims beneficial ownership of such shares for all other purposes.  Each of Trian GP LLC, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden, by virtue of their relationships to Trian GP (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, Peter W. May and Edward P. Garden disclaims beneficial ownership of such shares for all other purposes.  Each of Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden, by virtue of their relationships to Trian GP LLC (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 LLC directly and beneficially owns.  Each of Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden 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:

Each of Messrs. Peltz, May and M. Peltz, in their capacities as directors of the Company, received 1,090 shares of Common Stock on July 3, 2017, 1117 shares of Common Stock on October 2, 2017 and 1,070 shares of Common Stock on January 2, 2018, in each case from the Company in lieu of Board of Directors retainer fees pursuant to the terms of the Company’s 2010 Omnibus Award Plan.

Mr. Peltz, in his capacity as a director of the Company, received 130 shares of Common Stock on November 2, 2017, Mr. May, in his capacity as a director of the Company, received 169 shares of Common Stock on July 3, 2017, 173 shares of Common Stock on October 2, 2017, 130 shares of Common Stock on November 2, 2017, 138 shares of Common Stock on December 7, 2017 and 166 shares of Common Stock on January 2, 2018, and Mr. M. Peltz, in his capacity as a director of the Company, received 130 shares of Common Stock on November 2, 2017 and 138 shares of Common Stock on December 7, 2017, in each case from the Company in lieu of committee retainer and meeting fees pursuant to the terms of the Company’s 2010 Omnibus Award Plan.

Except as set forth in the preceding paragraph, the following table sets forth all transactions by any of the Filing Persons with respect to the shares of Common Stock effected during the past sixty (60) days, inclusive of the transactions effected through 4:00 p.m., New York City time, on February 26, 2018.  All such transactions were effected in a privately negotiated transaction.  The prices set forth in the table do not include commissions.

Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The disclosures in Item 3 are incorporated herein by reference.