UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): June 3, 2015 (June 2, 2015)
 
THE WENDY’S COMPANY
(Exact name of registrant as specified in its charter)
 
 
Delaware
 
1-2207
 
38-0471180
(State or other jurisdiction
of incorporation)
 
(Commission
File No.)
 
(IRS Employer
Identification No.)
 
One Dave Thomas Blvd.
Dublin, Ohio 43017
(Address of principal executive offices, including ZIP code)
(614) 764-3100
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) 
 
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Item 1.01                    Entry into a Material Definitive Agreement.
On June 2, 2015, The Wendy’s Company (the “Company”) entered into an agreement (the “Purchase Agreement”) with Nelson Peltz, Peter W. May and Edward P. Garden (who are members of the Company’s Board of Directors) and certain of their family members and affiliates, investment funds managed by Trian Fund Management, L.P. (an investment management firm controlled by Messrs. Peltz, May and Garden, “TFM”), and the general partner of certain of those funds (together with Messrs. Peltz, May and Garden, certain of their family members and affiliates and TFM, the “Trian Group”), who, in the aggregate, owned 90,180,457 shares of the Company’s common stock as of May 29, 2015, representing approximately 24.8% of the Company’s outstanding shares as of May 29, 2015.  Pursuant to the Purchase Agreement, the Trian Group have agreed not to tender or sell any of their shares in a $639.0 million modified “Dutch Auction” tender offer the Company will commence today, June 3, 2015 (the “Offer”), and instead have agreed to sell a pro rata amount of their shares (based on the number of shares the Company purchases in the Offer) to the Company following the completion of the Offer (the “Trian Purchase”).  Specifically, the Trian Group will sell to the Company a number of shares equal to the total number of shares held by the Trian Group as of May 29, 2015, multiplied by the quotient of the total number of shares acquired by the Company in the Offer and the total number of the Company’s outstanding shares as of May 29, 2015, exclusive of shares held by the Trian Group, at a purchase price per share equal to the purchase price paid by the Company in the Offer.  The Purchase Agreement also provides that the Company shall not reduce the price range or aggregate consideration to be paid in the Offer without the Trian Group’s prior written consent.  The Purchase Agreement was approved by the Audit Committee of the Company’s Board of Directors as well as the members of the Company’s Board of Directors determined to be disinterested in the Trian Purchase.  The Trian Purchase is expected to occur on the 11th business day following the completion of the Offer.  The closing of the Trian Purchase is subject to the successful completion of the Offer and other customary conditions set forth in the Purchase Agreement.
The foregoing description of the Purchase Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the Purchase Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated by reference herein.

Item 7.01                    Regulation FD Disclosure.
On June 3, 2015, the Company issued a press release announcing, among other information, the authorization by the Company’s Board of Directors of a $1.4 billion share repurchase program and updates to the Company’s 2015 and long-term outlook.  A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information in this Item 7.01, including the exhibit furnished pursuant to Item 9.01, shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities under that section. Furthermore, the information in this Item 7.01, including the exhibit furnished pursuant to Item 9.01, shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act of 1933.
Item 9.01                   Financial Statements and Exhibits.

(d)              Exhibits .

Exhibit No.
 
Description
     
10.1
 
Stock Purchase Agreement, dated as of June 2, 2015, by and between The Wendy’s Company and the persons listed on Schedule I thereto.
 
99.1
 
Press release issued by The Wendy’s Company on June 3, 2015.


SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report on Form 8-K to be signed on its behalf by the undersigned, hereunto duly authorized.
 
THE WENDY’S COMPANY
 
   
By:
/s/ Dana Klein
Name:
Dana Klein
Title:
Senior Vice President – Corporate and Securities Counsel and Assistant Secretary
Dated: June 3, 2015
 
 
EXHIBIT INDEX


Exhibit No.
 
Description
     
10.1
 
 
99.1
 


 

EXHIBIT 10.1
 

STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the “ Agreement ”), dated as of June 2, 2015, by and between THE WENDY’S COMPANY, a Delaware corporation (the “ Company ”) and the persons listed on Schedule I hereto (collectively, the “ Sellers ”).
R E C I T A L S
WHEREAS, the Company intends, but has not made any public announcement of such intention, to conduct a public modified Dutch auction self-tender offer for up to $639.0 million in consideration (the “ Total Consideration ”) of shares of its common stock, par value $0.10 per share (“ Common Stock ”), at prices ranging from $11.05 to $12.25 per share (the “ Price Range ”), subject to the other terms and conditions thereof which shall be determined by the Company’s board of directors (or a designated committee thereof) (the “ Board of Directors ” and such offer, as it may be adopted or amended from time to time, the “ Tender Offer ”);
WHEREAS, as of May 29, 2015, the Sellers beneficially owned, in the aggregate, 90,180,457 shares of Common Stock, which constitutes approximately 24.8% of the issued and outstanding shares of Common Stock as of May 29, 2015;
WHEREAS, upon the request of the Company, in order to maximize liquidity for other shareholders, not impact the purchase price received by shareholders participating in the Tender Offer and provide full transparency and certainty regarding the Sellers’ participation in the Company’s stock repurchase program, Sellers have determined not to exercise their right to tender any of their shares of Common Stock pursuant to the Tender Offer; and
WHEREAS, the Company wishes to purchase from the Sellers, and the Sellers wish to sell to the Company, the Shares (as hereinafter defined), on the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1
PURCHASE AND SALE OF THE SHARES; THE CLOSING
1.1 Purchase and Sale of Common Stock . Subject to the completion of the Tender Offer and the other terms and conditions of this Agreement, and on the basis of the representations, warranties and covenants set forth herein, the Sellers agree to sell to the Company, and the Company agrees to purchase from the Sellers, such aggregate number of shares of Common Stock (rounded to the nearest whole number of shares) equal to 90,180,457 (representing the outstanding shares of Common Stock beneficially owned by the Sellers as of May 29, 2015) multiplied by a fraction, the numerator of which is the aggregate number of shares of Common Stock purchased by the Company in the Tender Offer and the denominator of which is 273,278,285 (representing the outstanding shares of Common Stock held of record by all stockholders of the Company other than the Sellers, as of May 29, 2015). The shares of Common Stock to be purchased from the Sellers by the Company pursuant to this Section 1.1 is herein referred to as the “ Shares .”  The number of Shares to be sold by each Seller under this Agreement shall be equal to the aggregate number of Shares being sold hereunder multiplied by the percentage set forth next to the Seller’s name on Schedule I hereto (subject to adjustments to eliminate any fractional Shares
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as the Sellers in their discretion shall make), and the Sellers’ obligations under this Section 1 are several and not joint.

1.2 Purchase Price . The “ Per Share Purchase Price ” for the Shares shall be equal to the price per share paid by the Company for the shares of Common Stock tendered by the holders of Common Stock in the Tender Offer. The “ Purchase Price ” for each Seller shall equal the Per Share Purchase Price specified in Section 1.2 multiplied by the number of Shares purchased by the Company from each such Seller pursuant to Section 1.1 of this Agreement.
1.3 The Closing . Subject to the terms and conditions hereof, the purchase and sale of the Shares contemplated by this Agreement (the “ Closing ”) will take place at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019 at 10:00 a.m., New York City time on the eleventh business day following the expiration date of the Tender Offer, or at such other later date or place as the parties shall mutually agree. At the Closing, (a) the Sellers will deliver to the Company the Shares to be purchased by the Company (such delivery to be made in such form as reasonably determined by the Company as necessary to effect the transfer of such Shares), and (b) the Company shall deliver the Purchase Price to each Seller by wire transfer of immediately available funds to one or more accounts specified by the Sellers at least one business day prior to the Closing.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF SELLERS
In order to induce the Company to enter into this Agreement, each Seller, severally and not jointly, hereby represents and warrants to the Company as follows:
2.1 Ownership of Shares . As of the date of this Agreement, such Seller owns the number of issued and outstanding shares of Common Stock set forth opposite its name on Schedule I hereto (including options to acquire shares of Common Stock that are currently exercisable, but excluding restricted shares of Common Stock issued by the Company on June 1, 2015 to Nelson Peltz, Peter W. May and Edward P. Garden). At the Closing, such Seller shall own the Shares to be sold to the Company by such Seller and such Shares, when delivered by such Seller to the Company, shall be free and clear of any liens, claims or encumbrances, including rights of first refusal and similar claims, except for restrictions of applicable state and federal securities laws. There are no restrictions on the transfer of the Shares to be sold to the Company by such Seller imposed by any shareholder or similar agreement or any law, regulation or order, other than applicable state and federal securities laws.
2.2 Authorization . Such Seller has full right, power and authority to execute, deliver and perform this Agreement and to sell, assign and deliver the Shares to be sold by it to the Company. This Agreement is the legal, valid and, assuming due execution and delivery by the other parties hereto, binding obligation of such Seller, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to or affecting the rights of creditors or creditors’ rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity).
2.3 No Violation; No Consent . The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by such Seller (a) will not constitute a breach or violation of or default under any judgment, decree or order or any agreement or instrument of such Seller or to which such Seller is subject, (b) will not result in the creation or imposition of any lien upon
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the Shares to be sold by such Seller, and (c) will not require the consent of or notice to any governmental entity or any party to any contract, agreement or arrangement with such Seller.
 
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Sellers to enter into this Agreement, the Company hereby represents and warrants as follows:
3.1 Organization and Corporate Power; Authorization . The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has the requisite power and authority to execute, deliver and perform this Agreement and to acquire the Shares. As of the Closing, the Company will have sufficient capital to purchase the Shares hereunder. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby have been approved by a majority of the disinterested directors on the Board of Directors and have been otherwise duly authorized by all requisite action on the part of the Company. This Agreement and any other agreements, instruments, or documents entered into by the Company pursuant to this Agreement have been duly executed and delivered by the Company and are the legal, valid and, assuming due execution by the other parties hereto, binding obligations of the Company, enforceable against the Company in accordance with their terms except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to or affecting the rights of creditors or creditors’ rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity).
3.2 Capital Stock . The authorized capital stock of the Company consists of (a) 1,500,000,000 shares of Common Stock, of which 363,458,742 shares were issued and outstanding as of May 29, 2015, and (b) 100,000,000 shares of preferred stock, of which none were issued and outstanding as of May 29, 2015.
3.3 No Violation; No Consent . The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by the Company (a) will not constitute a breach or violation of or default under any judgment, decree or order or any agreement or instrument of the Company or to which the Company is subject, and (b) will not require the consent of or notice to any governmental entity or any party to any contract, agreement or arrangement with the Company.
SECTION 4
CONDITIONS TO THE COMPANY’S OBLIGATIONS
The obligations of the Company under Section 1 to purchase the Shares at the Closing from the Sellers are subject to the fulfillment as of the Closing of each of the following conditions unless waived by the Company in accordance with Section 8.9:
4.1 Representations and Warranties . The representations and warranties of the Sellers contained in Section 2 shall be true and correct in all material respects on and as of the date of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing.
 
4.2 Performance . The Sellers shall have performed and complied in all material respects with all agreements, obligations, and conditions contained in this Agreement that are required to be performed or complied with by it on or before the date of the Closing.
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4.3 Tender Offer . The expiration of the Tender Offer shall have occurred and the Company shall have purchased shares of Common Stock pursuant thereto in accordance with the terms thereof.
4.4 Delivery of Shares . The Sellers shall have delivered all of the Shares to be sold by them at the Closing, free and clear of any liens, claims or encumbrances, along with all documents or other instruments necessary for a valid transfer.
4.5 Further Assurances . No governmental authority shall have advised or notified the Company that the consummation of the transactions contemplated hereunder would constitute a material violation of any applicable laws or regulations, which notification or advice shall not have been withdrawn after the exhaustion of the Company’s good faith efforts to cause such withdrawal.
SECTION 5
CONDITIONS TO SELLERS’ OBLIGATIONS
The obligations of the Sellers under Section 1 to sell the Shares at the Closing are subject to the fulfillment as of the Closing of each of the following conditions unless waived by the Sellers in accordance with Section 8.9:
5.1 Representations and Warranties . The representations and warranties of the Company contained in Section 3 shall be true and correct in all material respects as of the date of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing.
5.2 Performance . The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the date of the Closing.
5.3 Tender Offer . (a) The expiration of the Tender Offer shall have occurred and (b) the Company shall have purchased shares of Common Stock pursuant thereto in accordance with the terms thereof.
5.4 Further Assurances . No governmental authority shall have advised or notified the Sellers that the consummation of the transactions contemplated hereunder would constitute a material violation of any applicable laws or regulations, which notification or advice shall not have been withdrawn after the exhaustion of the Sellers’ good faith efforts to cause such withdrawal.
 
SECTION 6
COVENANTS
6.1 No Purchase of Common Stock . Until eleven business days following the expiration date of the Tender Offer, the Sellers agree that they and their affiliates will not, directly or indirectly, purchase any shares of Common Stock.
6.2 No Sale of Common Stock in the Tender Offer . The Sellers agree that they, directly or indirectly, will not tender any shares of Common Stock, or sell any shares of Common Stock, in the Tender Offer.
6.3 Tender Offer .  The Company shall not reduce the Price Range or the Total Consideration in the Tender Offer without the prior written consent of the Sellers.
6.4 Closing Conditions . The Sellers and the Company shall use their commercially reasonable
4
efforts to ensure that each of the conditions to Closing is satisfied.
6.5 Withholding .
(a)              The Purchase Price shall be paid to each Seller free and clear of any and all U.S. federal, state, local or foreign income, backup withholding or withholding taxes; provided , (i) such Seller provides a properly completed Internal Revenue Service (“ IRS ”) Form W-9 or an appropriate IRS Form W-8, as applicable, and (ii) in the case of a Seller that is not a United States person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “ Code ”)), such Seller provides documentation substantially in the form of Exhibit A hereto to the Company certifying that such Seller meets at least one of the “complete termination,” “substantially disproportionate” or “not essentially equivalent to a dividend” tests under Section 302 of the Code (the “ Section 302 Certification ”).
(b)               If a Seller that is not a United States person fails to provide the Section 302 Certification at the time the Purchase Price is otherwise to be paid to such Seller hereunder, the Company agrees, pursuant to Treasury Regulations Section 1.1441-3T(d)(1), to hold in escrow 30% of the Purchase Price payable to such Seller, or, if such Seller has provided a properly completed IRS Form W-8IMY, 30% of the portion of the Purchase Price payable to such Seller that is attributable to any beneficial owner that is not a United States person, until the earliest of (i) such Seller delivering the Section 302 Certification, (ii) such Seller notifying the Company that it will be unable to deliver the Section 302 Certification and (iii) December 31, 2015.
(c)              In the event a Seller delivers the Section 302 Certification in accordance with Section 6.5(b)(i), the Company shall promptly pay to such Seller the amount withheld in accordance with Section 6.5(b). In the event that such Seller delivers the notification provided for in Section 6.5(b)(ii), or upon the expiration of the period referred to in Section 6.5(b)(iii), the Company shall pay the required amount to the appropriate taxing authority, and such remittance shall be treated for purposes of this Agreement as a payment of a portion of the Purchase Price to the Sellers. In the event that, as a result of the application of Section 6.5(d) or otherwise, the amount required to be paid to the appropriate taxing authority is less than the full amount withheld pursuant to Section 6.5(b), any excess shall be promptly paid to such Seller at such time.
(d)              If the Company reasonably determines, pursuant to Section 302(d) of the Code, that the sale of Shares by such Seller hereunder is properly treated as a “distribution” subject to Section 301 of the Code, then, subject to the foregoing provisions of this Section 6.5, the Company shall withhold an amount therefrom, such amount to be calculated based on the Company’s reasonable estimate of the Company’s current and accumulated earnings and profits for the year in which the Closing occurs, as determined in accordance with Treasury Regulation Section 1.1441-3(c)(2)(ii); provided that if such Seller certifies as to its eligibility for a reduced rate of withholding pursuant to an income tax treaty on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, provided to the Company by such Seller, any such withholding shall be made at such reduced rate.
(e)              Upon the reasonable request of any Seller, the Company shall promptly provide to such Seller any information that is reasonably required by such Seller to (i) determine the tax consequences of the sale of Shares hereunder, including consequences resulting from other sales of shares of Common Stock which are taken into account in the Section 302 Certification, or (ii) complete the Section 302 Certification, including the number of shares of the Company issued and outstanding at the time of the request or an earlier time.
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SECTION 7
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; LIMITATION ON LIABILITY
7.1 Survival . All representations and warranties hereunder shall survive the Closing except that the representations and warranties in Sections 2.3 and 3.3 shall only survive the Closing until the second anniversary of the Closing.
7.2 Limitation on Liability . Notwithstanding the foregoing, in no event shall any Seller’s liability for breach of the representations, warranties and covenants exceed the Purchase Price to be paid by the Company to such Seller. The obligations of each Seller under this Agreement are several and not joint and no Seller shall have any liability hereunder for the breach of the representations, warranties and covenants of any other Seller hereunder.
SECTION 8
MISCELLANEOUS
8.1 Adjustments . Wherever a particular number is specified herein, including, without limitation, number of shares or price per share, such number shall be adjusted to reflect any stock dividends, stock-splits, reverse stock-splits, combinations or other reclassifications of stock or any similar transactions and appropriate adjustments shall be made with respect to the relevant provisions of this Agreement so as to fairly and equitably preserve, as far as practicable, the original rights and obligations of the Company and the Sellers under this Agreement.
8.2 Successors and Assigns . Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successor and assigns of the parties hereto.
8.3 Entire Agreement; Amendment . This Agreement contains all the terms agreed upon among the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications, whether oral or written with respect to such subject matter. Neither this Agreement nor any provision hereof may be amended, changed or waived other than by a written instrument signed by the party against who enforcement of any such amendment, change or waiver is sought.
8.4 Cooperation . The Company and the Sellers shall, from and after the date hereof, cooperate in a reasonable manner to effect the purposes of this Agreement.
8.5 Termination . The Company or the Sellers may terminate this Agreement if (a) the Tender Offer is not commenced by June 17, 2015, (b) the Tender Offer is terminated without the purchase of any shares of Common Stock or (c) if the Tender Offer is not consummated by August 14, 2015; provided that the Company may not terminate this Agreement under this clause (c) unless the Tender Offer is terminated. Upon termination of this Agreement pursuant to this Section 8.5, none of the parties hereto shall have any liability hereunder except for breaches of such party’s representations, warranties or covenants occurring prior to the date of such termination.
8.6 Notices . All notices and all other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by registered or certified mail, postage prepaid (return receipt requested), sent by facsimile (receipt of which is confirmed) or sent by a nationally recognized overnight courier (receipt of which is confirmed) to a party at the following address (or at such other address for a party as shall be specified by like notice):
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If to the Sellers:

Trian Fund Management, L.P.
280 Park Avenue, 41 st Floor
New York, New York 10017
Attn: Chief Legal Officer
Facsimile: (212) 451-3216
 
If to the Company:
The Wendy’s Company
One Dave Thomas Blvd.
Dublin, Ohio 43017
Attn: General Counsel
Facsimile: (614) 764-3243
Each such notice or other communication shall be effective at the time of receipt if delivered personally or sent by facsimile (with receipt confirmed) or nationally recognized overnight courier (with receipt confirmed), or three (3) business days after being mailed, registered or certified mail, postage prepaid, return receipt requested.
8.7 Severability . If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
8.8 GOVERNING LAW; JURISDICTION . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement will be brought or otherwise commenced in any state or federal court sitting in the Borough of Manhattan of the City of New York. Each party hereto agrees to the entry of an order to enforce any resolution, settlement, order or award made pursuant to this Section 8.8 by the state and federal courts sitting in the Borough of Manhattan of the City of New York and in connection therewith hereby irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the action or proceeding is brought in an inconvenient forum, that the venue of the action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts.
 
8.9 Delays or Omissions . It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement, or any waiver of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in writing, and that all remedies, either under this Agreement, by law or otherwise, shall be cumulative and not alternative.
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8.10 Consents . Any permission, consent, or approval of any kind or character under this Agreement shall be in writing and shall be effective only to the extent specifically set forth in such writing.
8.11 Specific Performance . The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent or cure breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in addition to any other remedy to which they are entitled at law or in equity, and any party sued for breach of this Agreement expressly waives any defense that a remedy in damages would be adequate.
8.12 Payment of Fees and Expenses . Each party shall be responsible for paying its own fees, costs and expenses in connection with this Agreement and the transactions herein contemplated.
8.13 Construction of Agreement . No provision of this Agreement shall be construed against either party as the drafter thereof. The titles of the Sections of this Agreement are for convenience of reference only and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any of its provisions.
8.14 Counterparts . This Agreement may be executed in any number of counterparts, including via facsimile, each of which shall be an original, but all of which together shall constitute one instrument.
[Signatures follow on next page]
 
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IN WITNESS WHEREOF, the parties have caused this Stock Purchase Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first written above.
 

THE WENDY’S COMPANY
 
     
By:
/s/ Todd A. Penegor
 
Name:
Todd A. Penegor
 
Title:
Executive Vice President, Chief Financial Officer and International
 
     
     
NELSON PELTZ
 
     
By:
/s/ Nelson Peltz
 
Name:
Nelson Peltz
 
     
     
NELSON AND CLAUDIA PELTZ FAMILY FOUNDATION
 
     
By:
/s/ Nelson Peltz
 
Name:
Nelson Peltz
 
Title:
Trustee
 
     
By:
/s/ Claudia Peltz
 
Name:
Claudia Peltz
 
Title:
Trustee
 
     
By:
/s/ Mathew Peltz
 
Name:
Mathew Peltz
 
Title:
Trustee
 
     
By:
/s/ Neale Albert
 
Name:
Neale Albert
 
Title:
Trustee
 
     
     
CLAUDIA PELTZ
 
     
By:
/s/ Claudia Peltz
 
Name:
Claudia Peltz
 
     
     
 

[Purchase Agreement]
9
 
CLAUDIA PELTZ, as custodian for DARREN PELTZ, under the New York Uniform Transfers to Minors Act
 
     
By:
/s/ Claudia Peltz
 
Name:
Claudia Peltz
 
Title:
Custodian
 
     
     
CLAUDIA PELTZ, as custodian for NICOLA PELTZ, under the New York Uniform Transfers to Minors Act
 
     
By:
/s/ Claudia Peltz
 
Name:
Claudia Peltz
 
Title:
Custodian
 
     
     
CLAUDIA PELTZ, as custodian for GREGORY PELTZ, under the New York Uniform Transfers to Minors Act
 
     
By:
/s/ Claudia Peltz
 
Name:
Claudia Peltz
 
Title:
Custodian
 
     
     
CLAUDIA PELTZ, as custodian for ZACHARY PELTZ, under the New York Uniform Transfers to Minors Act
 
     
By:
/s/ Claudia Peltz
 
Name:
Claudia Peltz
 
Title:
Custodian
 
     
     
PELTZ 2009 FAMILY TRUST
 
     
By:
/s/ Claudia Peltz
 
Name:
Claudia Peltz
 
Title:
Trustee
 
     
By:
/s/ Mathew Peltz
 
Name:
Mathew Peltz
 
Title:
Trustee
 
     
By:
/s/ Neale Albert
 
Name:
Neale Albert
 
Title:
Trustee
 
     
     
 

[Purchase Agreement]
10
 
PETER W. MAY
 
     
By:
/s/ Peter W. May
 
Name:
Peter W. May
 
     
     
THE LENI & PETER MAY FAMILY FOUNDATION
 
     
By:
/s/ Peter W. May
 
Name:
Peter W. May
 
Title:
Director
 
     
By:
/s/ Leni May
 
Name:
Leni May
 
Title:
Director
 
     
     
EDWARD P. GARDEN
 
     
By:
/s/ Edward P. Garden
 
Name:
Edward P. Garden
 
     
     
TRIAN PARTNERS, L.P.
 
     
By:
Trian Partners GP, L.P.,
its general partner
 
 
 
     
By:
Trian Partners General Partner, LLC,
 
 
its general partner
 
     
By:
/s/ Peter W. May
 
Name:
Peter W. May
 
Title:
Member
 
     
     
TRIAN PARTNERS MASTER FUND, L.P.
 
     
By:
Trian Partners GP, L.P.,
 
 
its general partner
 
     
By:
Trian Partners General Partner, LLC,
 
 
its general partner
 
     
By:
/s/ Peter W. May
 
Name:
Peter W. May
 
Title:
Member
 
     
 

[Purchase Agreement]
11
 
TRIAN PARTNERS PARALLEL FUND I, L.P.
 
     
By:
Trian Partners Parallel Fund I  General Partner, LLC,
 
 
its general partner
 
     
By:
/s/ Peter W. May
 
Name:
Peter W. May
 
Title:
Member
 
     
     
TRIAN PARTNERS GP, L.P.
 
     
By:
Trian Partners General Partner, LLC,
 
 
its general partner
 
     
By:
/s/ Peter W. May
 
Name:
Peter W. May
 
Title:
Member
 
     
     
TRIAN PARTNERS STRATEGIC INVESTMENT FUND, L.P.
 
     
By:
Trian Partners Strategic Investment Fund GP, L.P.,
 
 
its general partner
 
     
By:
Trian Partners Strategic Investment Fund General Partner, LLC,
 
 
its general partner
 
     
By:
/s/ Peter W. May
 
Name:
Peter W. May
 
Title:
Member
 
     
     


[Purchase Agreement]
12

Schedule I

Name of Seller
Number of Shares of
Common Stock Owned
Percentage of Aggregate Shares
to be Sold by Each Seller
Nelson Peltz
15,674,815
17.38%
Nelson & Claudia Peltz Family Foundation
311,724
0.35%
Claudia Peltz
70,650
0.08%
Darren Peltz
300
0.0003%
Nicola Peltz
300
0.0003%
Gregory Peltz
64,102
0.07%
Zachary Peltz
64,102
0.07%
Peltz 2009 Family Trust
209,611
0.23%
Peter W. May
8,330,940
9.24%
The Leni & Peter May Family Foundation
276,149
0.31%
Edward P. Garden
377,519
0.42%
Trian Partners, L.P.
18,415,979
20.42%
Trian Partners Master Fund, L.P.
39,523,894
43.83%
Trian Partners Parallel Fund I, L.P.
1,861,851
2.06%
Trian Partners GP, L.P.
19,769
0.02%
Trian Partners Strategic Investment Fund, L.P.
4,978,752
5.52%
 
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Exhibit A
 
Redemption Payment – Section 302 Certification

The Wendy’s Company (the “ Company ”) has repurchased for cash, pursuant to the Stock Purchase Agreement, by and among the Company and the sellers thereto, dated as of June 2, 2015 (the “ Stock Repurchase ”), a total of _______________ shares of its stock. The Company, in a related transaction, has repurchased for cash, in a modified “Dutch auction” tender offer that expired on , 2015 (the “ Tender Offer ”), upon the terms and subject to the conditions described in the Offer to Purchase (the “ Offer to Purchase ”), a total of _______________ shares of its stock.

_________________________________________________ (herein “ Investor ”) is a member of the Trian Group (as defined in the Offer to Purchase), and as such has participated in the Stock Repurchase and has also sold stock of the Company in the open market and/or privately negotiated transactions during the pendency of or after consummation of the Stock Repurchase and Tender Offer (such transactions, together the Stock Repurchase and the Tender Offer, the “ Transactions ”) as part of an integrated plan to reduce the Investor’s interest in the Company such that, as to the Investor, the Stock Repurchase is treated as an exchange for U.S. federal, state and local income tax purposes and not a distribution, all as set forth in the Offer to Purchase and Amendment No. 44 to the Schedule 13D filed by certain members of the Trian Group on June 3, 2015.

The Investor understands that the Company may be required to impose withholding tax of up to 30% of the proceeds of the Stock Repurchase paid to the Investor in accordance with applicable U.S. federal income tax provisions unless the Stock Repurchase is treated as an exchange within the meaning of Section 302(b) of the Internal Revenue Code of 1986, as amended (the “ Code ”).

The Investor acknowledges that the Company will rely upon the Investor’s representations in carrying out the Company’s duties under applicable U.S. federal income tax provisions. The Investor hereby represents and certifies that it has independently (or with the advice of a tax advisor) determined the tax treatment of the Stock Repurchase under Section 302 of the Code, taking into account shares considered to be owned by the Investor pursuant to the attribution rules of Section 318 of the Code, as well as the appropriate withholding tax treatment (as stated below). Accordingly, if the box below for representation (A) or (B) is checked, the Investor certifies that, as to the Investor, the Stock Repurchase is an exchange under Section 302 of the Code and therefore the Investor is entitled to receive payment of the full amount of the Stock Repurchase proceeds free of U.S. withholding tax under Sections 1441 and 1442 of the Code.

In addition, the Investor agrees to release, indemnify and hold harmless the Company, all affiliates of the Company, and any and all of the Company’s and its affiliates’ respective successors, assigns, officers, directors, and employees from any and all losses, claims, damages, expenses (including attorneys' fees and expenses) and liabilities directly or indirectly arising from or related to the Company’s payment of the Stock Purchase proceeds to the Investor without collecting U.S. withholding tax due to the Company’s reliance on the Investor’s representations herein.
 
 
14
 
CERTIFICATION OF TREATMENT OF TENDER PAYMENT FROM THE COMPANY

Pursuant to the Stock Repurchase, the undersigned shareholder (the “ Investor ”) received a gross amount $_________ in cash for each share sold by the Investor to the Company (including any amounts withheld by the Company), or $________ in the aggregate (the “ Payment ”). All share ownership amounts and percentages listed below for the Investor take into account the attribution rule of Section 318 of the Code.

CHECK THE APPLICABLE BOX (check one box only and read instructions, attached)
 
A. ☐
Reduction in Proportionate Interest -- Qualifying for Sale or Exchange Treatment
   
The Payment should be treated as a payment in exchange for the Investor's shares because the Investor's proportionate interest in the Company, taking into account shares considered to be owned by the Investor pursuant to the attribution rules of Section 318 of the Code, has been reduced, for the following reasons:
 
   
Step 1 : Immediately before the commencement of the Transactions, the Investor owned _______________ shares of the Company. The Investor's percentage ownership in the Company (based on _______________ shares outstanding as of June 3, 2015) was ________%.
 
   
Step 2: Immediately after the completion of the Transactions, the Investor owned _______________ shares of the Company. The Investor's percentage ownership in the Company (based on _______________ shares outstanding as of  __, 2015) was __________ %.
     
 
 
OR
 
B.
☐
Complete Termination of Interest
   
The Payment should be treated as a payment in exchange for the Investor’s shares because the Investor completely terminated its interest in the Company pursuant to the Transactions.
     
 
 
OR
 
C.
☐
Dividend
   
The Payment should be treated as a dividend.

Under penalties of perjury, I declare that I have examined the herein representations and to the best of my knowledge and belief they are true, correct, and complete in all material respects. I further certify under penalty of perjury that I am the beneficial owner (or authorized to sign for the beneficial owner) of the Payment. Furthermore, I agree to the above release and indemnity.


Name of Investor:
           
             
             
Sign Here:
           
 
Signature of beneficial owner ( or person authorized to sign for beneficial owner)
 
Date
 
Capacity in which   acting
 
 
 
15
 
EXHIBIT 99.1


 
THE WENDY’S COMPANY ANNOUNCES $1.4 BILLION SHARE REPURCHASE PROGRAM,
SALE OF BAKERY OPERATIONS AND UPDATES 2015 AND LONG-TERM OUTLOOK

Dublin, Ohio (June 3, 2015) – The Wendy’s Company (NASDAQ: WEN) today announced that its Board of Directors has authorized a new $1.4 billion share repurchase program. The Company also updated its 2015 and long-term outlook to reflect the anticipated impact of the repurchase program, its recently completed refinancing and the sale of its bakery operations.

“Our recent operating results, along with the shareholder-value enhancing initiatives and updated outlook announced today demonstrate continued progress with our brand transformation,” President and Chief Executive Officer Emil Brolick said. “The growth reflected in our long-term outlook, especially our expectations for steadily increasing Adjusted EBITDA margins, demonstrates the higher quality of earnings we are generating as a result of our system optimization initiative, which remains on track for completion in 2016. The enhanced earnings stream includes increased royalties and rental income from the 674 properties we own.”

Board authorizes a $1.4 billion share repurchase program; Company to commence $850 million share repurchase program today, June 3 
The Company's Board of Directors authorized a new share repurchase program for up to $1.4 billion of the Company's common stock (or approximately 30 percent of the Company's market capitalization as of May 29, 2015) through the end of 2016.

The Company intends to repurchase shares with existing cash on its balance sheet, cash flow from operations, net proceeds of approximately $925 million from its recently completed securitization refinancing, expected pretax proceeds of approximately $400 to $475 million (approximately $350 million after tax) from the third phase of its system optimization initiative and after-tax proceeds of approximately $50 million from the sale of its bakery operations.

As part of the new authorization, the Company will commence an $850 million share repurchase program today, June 3, including a modified “Dutch Auction” tender offer to repurchase up to $639 million of its common stock at a price range between $11.05 and $12.25 per share. The terms and conditions of the tender offer are available in an Offer to Purchase and the related Letter of Transmittal that the Company will file today with the Securities and Exchange Commission. 

The tender offer is part of an $850 million stock buyback program, which also includes a separate purchase of up to $211 million of the Company’s common stock from the Company’s largest shareholder, the Trian Group. At the Company’s request, to maximize liquidity for other shareholders, avoid impacting the purchase price received by shareholders participating in the tender offer, and provide certainty regarding Trian’s participation in the stock buyback program, Trian has agreed, under a purchase agreement with the Company, not to tender or sell any of its shares in the tender offer. Under the same agreement, the Company has agreed, following the completion of the tender offer, to purchase from Trian a pro rata amount of its shares (based on the number of shares the Company purchases in the tender offer) at the same price received by shareholders who participate in the tender offer.

The Company expects to use the remaining $550 million of its $1.4 billion share repurchase authorization before the end of 2016, as funds become available from the Company’s system optimization initiative. The Company plans to announce its intentions regarding the timing and mechanism(s) for future share repurchases at a later date.
 
 
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Trian, which owns an aggregate of approximately 24.8 percent of the Company’s outstanding common stock, intends over the next few months to reduce its ownership position in the Company to between 17 and 19.68 percent through the sale to the Company pursuant to the purchase agreement, and through additional sales in the open market and / or privately negotiated transactions. Investors should refer to the Offer to Purchase for additional details regarding Trian’s intentions regarding its position in the Company’s stock.

Nelson Peltz, Chairman of the Board of the Company and Chief Executive Officer and a founding partner of Trian Fund Management, said the planned sales are the result of adjustments Trian is making to its portfolio. “We are very pleased with Wendy’s on-going transformation and outlook,” Peltz said. “Immediately following the sales, Trian will still be the Company’s largest stockholder, based on current ownership information, and we look forward to continuing to work closely with other members of the board, along with Emil Brolick and his leadership team.”

During the third quarter of 2014, the Company’s Board of Directors authorized a share repurchase program for up to $100 million of the Company’s common stock through the end of 2015. Through May 29, 2015, the Company had repurchased 8.6 million shares for $85.5 million at an average price of $9.90 per share. As of May 29, 2015, approximately $14.5 million remains under this share repurchase authorization. The Company expects to use the full amount of the authorization before it expires at the end of 2015.

“Our recent dividend increases and share repurchases, together with our new $1.4 billion share repurchase authorization, are important elements of our financial management strategy,” Chief Financial Officer Todd Penegor said. “We are confident our strong balance sheet, financial flexibility and cash flow will enable us to comfortably fund our growth initiatives while returning significant capital to shareholders. In addition, we reaffirm our commitment to growing our dividend in line with Adjusted Earnings Per Share growth, which we now expect to exceed 20 percent beginning in 2018, primarily as a result of our new share repurchase authorization.”

Company completes $2.275 billion securitized financing facility
The Company has completed its $2.275 billion securitized financing facility within its target leverage ratio, at approximately six times net debt to 2014 Adjusted EBITDA of $370.8 million. The Company plans to use the net proceeds from the sale of the Notes for general corporate purposes, including the return of cash to shareholders.

The new facility consists of $875 million of 3.371 percent Fixed Rate Senior Secured Notes, $900 million of 4.080 percent Fixed Rate Senior Secured Notes, and $500 million of 4.497 percent Fixed Rate Senior Secured Notes in a privately placed whole business securitization transaction. The anticipated repayment dates of the Notes are 4.25, 7 and 10 years, respectively.

The Company also entered into a purchase agreement for the issuance of $150 million in Variable Funding Notes, which will allow the Company to issue letters of credit and borrow from time to time on a revolving basis.

 “We have successfully completed the securitization at an attractive fixed interest rate for an extended period,” Penegor said . “The new debt structure provides for increased financial flexibility and leverages our ability to generate consistent, stable free cash flow.”

Company closes on sale of bakery operations
The Company has closed on the previously announced sale of its bakery operations. The Company’s updated outlook reflects the impact of this divestiture, as well as the impact of its recent debt refinancing and newly authorized $1.4 billion share repurchase program. The Company expects to report the gain on this sale as well as the results from its bakery operations in Discontinued Operations in its financials.
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Company issues updated 2015 outlook
The Company reaffirmed that its business trends remain on track to achieve the 2015 outlook issued in its first-quarter earnings release on May 6. The updates to the Company’s 2015 outlook listed below reflect the impact of its recently completed refinancing, sale of its bakery operations and the newly authorized $1.4 billion share repurchase program.

The Company’s 2015 outlook includes the benefit of a 53 rd operating week. The Company expects that the impact of the Affordable Care Act will partly offset this benefit.

The Company now expects 2015 Adjusted EBITDA of approximately $375 million to $385 million. This represents an increase of 5 to 8 percent compared to the Company’s 2014 Adjusted EBITDA results, excluding about $16 million of EBITDA attributable to the Company’s bakery operations.

The Company now expects 2015 Adjusted Earnings Per Share of approximately $0.31 to $0.33. This represents an increase of 10 to 17 percent compared to the Company’s 2014 Adjusted EPS results, excluding approximately $0.02 per share of earnings attributable to its bakery operations.

The Company remains on target for general and administrative expense of approximately $250 million in 2015.

Based on its results and current trends in the year to date, the Company continues to expect:
§ Same-restaurant sales growth of 2.5 to 3.0 percent at Company-operated restaurants.
§ Company-operated restaurant margin of 16.5 to 17.0 percent, an improvement of approximately 70 to 120 basis points compared to 15.8 percent in 2014. This estimate includes the benefit of same-restaurant sales increases, partly offset by an increase in commodity costs of approximately 1.5 percent (or 40 basis points), driven primarily by higher costs for fresh beef.
§ A reported tax rate of approximately 41 to 42 percent. The increase compared to the 2014 reported tax rate of 39.7 percent is primarily due to goodwill disposed of in connection with the sale of Company-operated restaurants which is non-deductible for income tax purposes.

The Company now expects capital expenditures of approximately $240 to $250 million, due primarily to the sale of the Company’s bakery operations.

The Company continues to expect its total 2015 depreciation and amortization expense to approximate its 2014 levels, including the impact of accelerated depreciation in both years.

The Company’s 2015 outlook assumes the ownership of approximately 380 fewer restaurants at year end 2015 compared to 957 Company-operated restaurants at year-end 2014.

The Company’s expected year-end restaurant count contemplates the anticipated sale of approximately 100 restaurants from its Canadian system optimization initiative , in addition to the planned sale of approximately 280 of the 540 additional domestic restaurants the Company intends to sell by the middle of 2016.

Company issues updated long-term outlook
The Company reaffirmed that its business trends remain on track to achieve the long-term outlook issued in its first-quarter earnings release on May 6. The updates to the Company’s long-term outlook listed below reflect the impact of its recently completed securitization refinancing, sale of its bakery operations and the newly authorized $1.4 billion share repurchase program.

The Company’s expected restaurant count for its long-term outlook contemplates the anticipated sale of approximately 100 restaurants from its Canadian system optimization initiative, in addition to the planned sale of approximately 540 additional domestic restaurants that the Company intends to sell by the middle of 2016 as part of its system optimization initiative.
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The Company expects high single-digit Adjusted Earnings Per Share growth in 2016 and Adjusted Earnings Per Share growth in the high teens in 2017. Due primarily to the expected benefit of the Company’s share repurchase plans announced today, the Company now expects Adjusted Earnings Per Share growth of greater than 20 percent beginning in 2018.

The Company continues to expect flattish Adjusted EBITDA in 2016, followed by low-single digit Adjusted EBITDA growth in 2017 and high single-digit Adjusted EBITDA growth in 2018.

The Company continues to expect significantly lower annual capital expenditure requirements, beginning in 2016, primarily as a result of the Company’s system optimization initiative. Due primarily to the sale of its bakery operations, the Company now expects capital expenditures of approximately $130 to $140 million in 2016, followed by approximately $75 to $85 million in 2017 and approximately $70 million in 2018.

The Company’s long-term outlook includes the expectation for average annual Systemwide same-restaurant sales growth of approximately 2.25 to 3.0 percent beginning in 2016.

In addition, the Company continues to expect Adjusted EBITDA margins as follows:
· In 2015: 20 to 22 percent
· In 2016: 28 to 30 percent
· In 2017: 32 to 34 percent
· In 2018: approximately 35 percent

The Company also continues to expect to achieve the following system goals by the end of 2020:
· Average unit sales volumes of $2.0 million
· Restaurant margins of 20 percent
· A sales-to-investment ratio of 1.3 times for new restaurants
· Restaurant development growth of 1,000 new restaurants (excluding closures)
· The reimaging of 60 percent of Wendy’s North America Systemwide restaurants

The Company expects to maintain a long-term leverage ratio of approximately five to six times net debt to trailing twelve-month Adjusted EBITDA.

Conference call and webcast scheduled for 9 a.m. today, June 3
The Company will host a conference call today at 9 a.m. ET, with a simultaneous webcast from the Investors section of the Company's website at www.aboutwendys.com . The live conference call will be available at (877) 572-6014 or, for international callers, at (281) 913-8524. An archived webcast will be available on the Company’s website at www.aboutwendys.com .

Forward-looking statements
This news release contains certain statements that are not historical facts, including, most importantly, information concerning possible or assumed future results of operations of The Wendy’s Company and its subsidiaries (collectively, the “Company”). Those statements, as well as statements preceded by, followed by, or that include the words “may,” “believes,” “plans,” “expects,” “anticipates,” or the negation thereof, or similar expressions, constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 (the “Reform Act”). In addition, all statements that address future operating, financial or business performance; strategies, initiatives or expectations; future synergies, efficiencies or overhead savings; anticipated costs or charges; future capitalization; and anticipated financial impacts of recent or pending transactions are forward-looking statements within the meaning of the Reform Act. The forward-looking statements are based on the Company’s expectations at the time, speak only as of the dates they are made and are susceptible to a number of risks, uncertainties and other factors. The Company’s actual results, performance and achievements may differ materially from any future results, performance or achievements expressed in or implied by the forward-looking statements. 
4

For all forward-looking statements, the Company claims the protection of the safe harbor for forward-looking statements contained in the Reform Act. Many important factors could affect future results and could cause those results to differ materially from those expressed in or implied by the forward-looking statements. Such factors, all of which are difficult or impossible to predict accurately, and many of which are beyond the Company’s control, include, but are not limited to:
(1) changes in the quick-service restaurant industry, such as consumer trends toward value-oriented products and promotions or toward consuming fewer meals away from home;
(2) prevailing economic, market and business conditions affecting the Company, including competition from other food service providers, high unemployment and decreased consumer spending levels;
(3) the ability to effectively manage the acquisition and disposition of restaurants;
(4) cost and availability of capital;
(5) cost fluctuations associated with food, supplies, energy, fuel, distribution or labor;
(6) the financial condition of the Company’s franchisees;
(7) food safety events, including instances of food-borne illness involving the Company or its supply chain;
(8) conditions beyond the Company’s control such as weather, natural disasters, disease outbreaks, epidemics or pandemics impacting the Company’s customers or food supplies, or acts of war or terrorism, or security breaches of the Company’s computer systems;
(9) the effects of negative publicity that can occur from increased use of social media;
(10) the availability of suitable locations and terms for the development of new restaurants;
(11) risks associated with the Image Activation program;
(12) adoption of new, or changes in, laws, regulations or accounting policies and practices;
(13) changes in debt, equity and securities markets;
(14) goodwill and long-lived asset impairments;
(15) changes in interest rates;
(16) the difficulty in predicting the ultimate costs associated with the sale of Company-operated restaurants to franchisees, employee termination costs, the timing of payments made and received, the results of negotiations with landlords, the impact of the sale of restaurants on ongoing operations, any tax impact from the sale of restaurants and the future impact to the Company’s earnings, restaurant operating margins, cash flow and depreciation;
(17) the difficulty in predicting the ultimate costs that will be incurred in connection with the Company’s plan to reduce its general and administrative expense, and the future impact on the Company’s earnings;
(18) risks associated with the Company’s recent securitization financing and recapitalization, including the ability to generate sufficient cash flow to meet increased debt service obligations, compliance with operational and financial covenants, and restrictions on the Company’s ability to raise additional capital;
(19) risks relating to stock repurchase programs approved by the Board of Directors, including the program announced on June 3, 2015 to repurchase up to $1.4 billion in aggregate purchase price of our outstanding common stock through the end of 2016; and
(20) other factors cited in the Company’s news releases, public statements and/or filings with the Securities and Exchange Commission, including those identified in the “Risk Factors” sections of the Company’s Forms 10-K and 10-Q.

The Company’s franchisees are independent third parties that the Company does not control.  Numerous factors beyond the control of the Company and its franchisees may affect new restaurant openings. Accordingly, there can be no assurance that commitments under development agreements with franchisees will result in new restaurant openings. In addition, numerous factors beyond the control of the Company and its franchisees may affect franchisees’ ability to reimage existing restaurants in accordance with the Company’s expectations. All future written and oral forward-looking statements attributable to the Company or any person acting on its behalf are expressly qualified in their entirety by the cautionary statements contained or referred to above. New risks and uncertainties arise from time to time, and it is impossible for the Company to predict these events or their impact.
 
5

The Company assumes no obligation to update forward-looking statements as a result of new information, future events or developments, except as required by federal securities laws. The Company does not endorse any projections regarding future performance that may be made by third parties .

Disclosure regarding non-GAAP financial measures
Adjusted EBITDA, Adjusted EBITDA margin (calculated as Adjusted EBITDA divided by total revenues) and Adjusted Earnings Per Share , which exclude certain expenses, net of certain benefits, are used by the Company as performance measures for benchmarking against the Company’s peers and competitors, and as internal measures of business operating performance. The Company believes Adjusted EBITDA, Adjusted EBITDA margin and Adjusted Earnings Per Share provide a meaningful perspective of the underlying operating performance of the Company’s current business. Adjusted EBITDA, Adjusted EBITDA margin and Adjusted Earnings Per Share are not recognized terms under U.S. Generally Accepted Accounting Principles (“GAAP”). Because all companies do not calculate Adjusted EBITDA, Adjusted EBITDA margin and Adjusted Earnings Per Share (and similarly titled financial measures) in the same way, those measures as used by other companies may not be consistent with the way The Wendy’s Company calculates such measures and should not be considered as alternative measures of net income, operating profit margin or earnings per share .

Because certain income statement items needed to calculate net income and operating profit margin vary from quarter to quarter, the Company is unable to provide projections of net income, operating profit margin or earnings per share, or a reconciliation of projected Adjusted EBITDA to projected net income, projected Adjusted EBITDA margin to projected operating profit margin, or projected Adjusted Earnings Per Share to projected earnings per share. The Company’s presentation of Adjusted EBITDA, Adjusted EBITDA margin and Adjusted Earnings Per Share does not replace the presentation of the Company’s financial results in accordance with GAAP.

Changes to presentation in statement of operations
Prior to fiscal 2015, the Company reported its system optimization initiative as a discrete event and separately included the related gain or loss on sales of restaurants, impairment losses and other associated costs along with other restructuring initiatives, in “Facilities action (income) charges, net.”  As a result of the Company’s plans to reduce its ongoing company-owned restaurant ownership to approximately 5 percent of the total system, commencing with the first quarter of 2015, all gains and losses on dispositions are included on a separate line in our statements of operations, “System optimization losses (gains), net” and impairment losses recorded in connection with the sale or anticipated sale of restaurants are reclassified to “Impairment of long-lived assets.” In addition, the Company retitled the line, “Facilities action (income) charges, net” to “Reorganization and realignment costs” in its statements of operations to better describe the current and historical initiatives included given the reclassifications described above. The Company believes the new presentation will aid users in understanding its results. The Company has provided reclassified quarterly 2014 statements of operations and updated reconciliations of non-GAAP measures on the Investors section of its website under “Non-GAAP Financial Measures.” 

Important information regarding the anticipated tender offer
This press release is for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any shares of the Company’s common stock. The anticipated tender offer described in this press release has not yet commenced, and there can be no assurances that the Company will commence the tender offer on the terms described in this press release or at all. If the Company commences the offer, the offer will be made solely by an Offer to Purchase and the related Letter of Transmittal, as they may be amended or supplemented. Stockholders and investors are urged to read the Company’s commencement tender offer statement on Schedule TO anticipated to be filed with the SEC in connection with the offer, which will include as exhibits the Offer to Purchase, the related Letter of Transmittal and other offer materials, as well as any amendments or supplements to the Schedule TO when they become available, because they will contain important information.
 
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If the Company commences the offer, each of these documents will be filed with the SEC, and, when available, investors may obtain them for free from the SEC at its website (www.sec.gov) or from the Company’s information agent in connection with the offer.

About The Wendy’s Company
The Wendy's Company is the world's third-largest quick-service hamburger company. The Wendy's system includes approximately 6,500 franchise and Company-operated restaurants in the United States and 28 countries and U.S. territories worldwide. For more information, visit www.aboutwendys.com.

Investor contact:
David D. Poplar, Vice President of Investor Relations
(614) 764-3311
david.poplar@wendys.com

Media contact:
Bob Bertini
(614) 764-3327
bob.bertini@wendys.com
 
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