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 2, 2015 (June 1, 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 Number) |
(IRS Employer Identification No.) |
| One Dave Thomas Blvd., Dublin, Ohio | 43017 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (614) 764-3100
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 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On June 1, 2015, the stockholders of The Wendy’s Company (the “Company”) approved an amendment (the “Amendment”) to the Company’s 2010 Omnibus Award Plan (the “2010 Plan”) to: (i) increase the number of shares of common stock, par value $0.10 per share, of the Company available for issuance under the 2010 Plan; (ii) impose annual limits on the value of awards that can be issued to non-employee directors under the 2010 Plan for service on the Company’s Board of Directors; and (iii) make certain administrative changes to the 2010 Plan regarding the designation of beneficiaries. Approval of the Amendment also constituted reapproval of the material terms of the performance goals under the 2010 Plan for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended. The Company’s Board of Directors had previously adopted the Amendment on April 10, 2015, subject to and effective upon stockholder approval.
A description of the 2010 Plan (giving effect to the Amendment) was included in the Company’s definitive proxy statement on Schedule 14A for the 2015 Annual Meeting of Stockholders filed with the Securities and Exchange Commission on April 17, 2015 (the “Proxy Statement”) under the caption “Proposal 2 – Approval of an Amendment to the Company’s 2010 Omnibus Award Plan and Reapproval of the Performance Goals under the 2010 Omnibus Award Plan,” which description is incorporated herein by reference. The descriptions of the 2010 Plan (giving effect to the Amendment) contained herein and in the Proxy Statement are qualified in their entirety by reference to the complete text of the 2010 Plan and its amendments, which are included as exhibits to this Current Report on Form 8-K.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
On June 1, 2015, the Company held its 2015 Annual Meeting of Stockholders (the “Annual Meeting”). At the Annual Meeting, the Company’s stockholders: (i) elected each of the ten director nominees; (ii) approved an amendment to the Company’s 2010 Omnibus Award Plan and reapproved the performance goals under the 2010 Omnibus Award Plan; (iii) ratified the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for 2015; and (iv) approved an advisory resolution to approve executive compensation. The Company’s stockholders did not approve a stockholder proposal regarding an independent board chairman. A description of each proposal voted on at the meeting, and the voting results for each such proposal, are set forth below.
2
The proposal to elect each of the ten nominees to serve as a director of the Company until the Company’s next annual meeting of stockholders and until his or her successor is elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal, was approved, with each nominee receiving the affirmative vote of a majority of the votes cast with respect to such nominee’s election. Voting results with respect to each nominee are set forth in the following table. There were 48,125,331 broker non-votes as to this proposal.
|
Nominee |
Votes For | Votes Withheld | ||||||
|
Nelson Peltz |
284,320,640 | 5,370,495 | ||||||
|
Peter W. May |
284,709,846 | 4,981,289 | ||||||
|
Emil J. Brolick |
285,318,364 | 4,372,771 | ||||||
|
Edward P. Garden |
285,113,141 | 4,577,994 | ||||||
|
Janet Hill |
283,611,241 | 6,079,894 | ||||||
|
Joseph A. Levato |
283,499,123 | 6,192,012 | ||||||
|
J. Randolph Lewis |
272,581,600 | 17,109,535 | ||||||
|
Mich J. Mathews-Spradlin |
287,575,322 | 2,115,813 | ||||||
|
Peter H. Rothschild |
272,511,011 | 17,180,124 | ||||||
|
David E. Schwab II |
263,259,485 | 26,431,650 | ||||||
The proposal to amend the Company’s 2010 Omnibus Award Plan and reapprove the performance goals under the 2010 Omnibus Award Plan was approved by the affirmative vote of a majority of the shares of common stock present, in person or by proxy, and entitled to vote at the Annual Meeting. With respect to this proposal, there were 262,863,522 votes for, 25,270,469 votes against, 1,557,144 abstentions and 48,125,331 broker non-votes.
The proposal to ratify the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for 2015 was approved by the affirmative vote of a majority of the shares of common stock present, in person or by proxy, and entitled to vote at the Annual Meeting. With respect to this proposal, there were 334,699,780 votes for, 1,711,387 votes against, 1,405,299 abstentions and no broker non-votes.
The proposal to approve an advisory resolution to approve executive compensation was approved by the affirmative vote of a majority of the shares of common stock present, in person or by proxy, and entitled to vote at the Annual Meeting. With respect to this proposal, there were 247,123,990 votes for, 39,964,232 votes against, 2,602,913 abstentions and 48,125,331 broker non-votes.
The stockholder proposal regarding an independent board chairman was not approved, as it failed to receive the affirmative vote of a majority of the shares of common stock present, in person or by proxy, and entitled to vote at the Annual Meeting. With respect to this proposal, there were 67,236,329 votes for, 220,694,952 votes against, 1,759,854 abstentions and 48,125,331 broker non-votes.
3
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits . |
|
Exhibit
No. |
Description | |
| 10.1 | Wendy’s/Arby’s Group, Inc. 2010 Omnibus Award Plan, incorporated herein by reference to Annex A to the Company’s definitive proxy statement on Schedule 14A filed on April 9, 2010 (SEC file no. 001-02207). | |
| 10.2 | First Amendment to Wendy’s/Arby’s Group, Inc. 2010 Omnibus Award Plan. | |
| 10.3 | Second Amendment to The Wendy’s Company 2010 Omnibus Award Plan. | |
4
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| THE WENDY’S COMPANY | ||||||
| Date: June 2, 2015 | By: |
/s/ Dana Klein |
||||
| Dana Klein | ||||||
| Senior Vice President – Corporate and Securities Counsel, and Assistant Secretary | ||||||
5
EXHIBIT INDEX
|
Exhibit
No. |
Description | |
| 10.1 | Wendy’s/Arby’s Group, Inc. 2010 Omnibus Award Plan, incorporated herein by reference to Annex A to the Company’s definitive proxy statement on Schedule 14A filed on April 9, 2010 (SEC file no. 001-02207). | |
| 10.2 | First Amendment to Wendy’s/Arby’s Group, Inc. 2010 Omnibus Award Plan. | |
| 10.3 | Second Amendment to The Wendy’s Company 2010 Omnibus Award Plan. | |
6
Exhibit 10.2
FIRST AMENDMENT TO
WENDY’S/ARBY’S GROUP, INC. 2010 OMNIBUS AWARD PLAN
This First Amendment (this “ Amendment ”) to the Wendy’s/Arby’s Group, Inc. 2010 Omnibus Award Plan (the “ Plan ”) is effective as of the 10th day of April, 2015.
WHEREAS, The Wendy’s Company (formerly known as Wendy’s/Arby’s Group, Inc., the “ Company ”) has adopted the Plan;
WHEREAS, the Board may amend the Plan pursuant to Section 13(a) of the Plan; and
WHEREAS, the Board has determined that it is in the best interests of the Company and its stockholders to amend the Plan as set forth below.
NOW THEREFORE, BE IT RESOLVED, that
| 1. | All references in the Plan to “Wendy’s/Arby’s Group, Inc.” shall be replaced with “The Wendy’s Company” unless the context clearly requires otherwise. |
| 2. | Section 2(oo) of the Plan is hereby amended and restated in its entirety to read as follows: |
“(oo) “ Plan ” means this The Wendy’s Company 2010 Omnibus Award Plan.”
| 3. | This Amendment shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to contracts made and performed wholly within the State of Delaware, without giving effect to the conflict of laws provisions thereof. |
| 4. | Capitalized terms not otherwise defined in this Amendment shall have the meanings set forth in the Plan. Further, except as expressly modified herein, all terms, provisions and conditions of the Plan shall remain in full force and effect. |
IN WITNESS WHEREOF, the undersigned, being authorized by the Board to execute this Amendment in evidence of the adoption of this Amendment by the Board, has executed this Amendment as of the date first written above.
| THE WENDY’S COMPANY | ||||
| By: |
/s/ R. Scott Toop |
|||
| Name: | R. Scott Toop | |||
| Title: |
Senior Vice President, General Counsel and Secretary |
|||
Exhibit 10.3
SECOND AMENDMENT TO
THE WENDY’S COMPANY 2010 OMNIBUS AWARD PLAN
This Second Amendment (this “ Amendment ”) to the Plan (as defined below) is adopted by the Board as of the 10th day of April, 2015, subject to and effective upon stockholder approval.
WHEREAS, The Wendy’s Company (formerly known as Wendy’s/Arby’s Group, Inc., the “ Company ”) has adopted The Wendy’s Company 2010 Omnibus Award Plan, as amended by the First Amendment dated as of April 10, 2015 (the “ Plan ”);
WHEREAS, the Compensation Committee and the Performance Compensation Subcommittee of the Board have determined that it is advisable and in the best interests of the Company and its stockholders to amend the Plan, and have recommended to the Board that the Board amend the Plan, subject to stockholder approval;
WHEREAS, the Board may amend the Plan pursuant to Section 13(a) of the Plan, provided that stockholder approval is required for certain types of amendments; and
WHEREAS, the Board has determined that it is in the best interests of the Company and its stockholders to amend the Plan as set forth below.
NOW THEREFORE, BE IT RESOLVED, that
| 1. | Section 5(b) of the Plan is hereby amended and restated in its entirety to read as follows: |
“(b) Awards granted under the Plan shall be subject to the following limitations: (i) subject to Section 12 of the Plan, no more than 95,000,000 shares of Common Stock (the “ Absolute Share Limit ”) shall be available for Awards under the Plan, provided that (x) any shares of Common Stock subject to such Awards other than Options or SARs shall be counted against this limit as 2.5 shares of Common Stock for every one (1) share of Common Stock granted, and (y) any shares of Common Stock subject to such Awards of Options or SARs shall be counted against this limit as one (1) share of Common Stock for every one (1) share of Common Stock granted; (ii) subject to Section 12 of the Plan, grants of Options or SARs under the Plan in respect of no more than 10,000,000 shares of Common Stock may be made to any individual Participant during any single fiscal year of the Company (for this purpose, if a SAR is granted in tandem with an Option (such that the SAR expires with respect to the number of shares of Common Stock for which the Option is exercised), only the shares underlying the Option shall count against this limitation); (iii) subject to Section 12 of the Plan, no more than the number of shares of Common Stock equal to the Absolute Share Limit may be delivered in the aggregate pursuant to the exercise of Incentive Stock Options granted under the Plan; (iv) subject to Section 12 of the Plan, no more than 4,000,000 shares of Common Stock may be delivered in respect of Performance Compensation Awards denominated in shares of Common Stock granted pursuant to Section 11 of the Plan to any individual Participant for a single fiscal year during a Performance Period (or with respect to each single fiscal year in the event a Performance Period extends beyond a single fiscal year), or in the event such Performance Compensation Award is paid in cash, other securities, other Awards or other property, no more than the Fair Market Value of
such shares of Common Stock on the last day of the Performance Period to which such Award relates; (v) the maximum amount that can be paid to any individual Participant for a single fiscal year during a Performance Period (or with respect to each single fiscal year in the event a Performance Period extends beyond a single fiscal year) pursuant to a Performance Compensation Award denominated in cash (described in Section 11(a) of the Plan) shall be $5,000,000 and (vi) subject to Section 12 of the Plan, the aggregate Awards granted to any one Non-Employee Director in respect of any single fiscal year of the Company, solely with respect to his or her service on the Board, may not exceed $350,000 based on (x) the aggregate value of all Awards denominated in Cash and (y) the Fair Market Value of all Awards denominated in Common Stock, in each case as determined on the Date of Grant (provided that with respect to Non-Employee Director fees payable in cash (including annual retainer fees and/or Board or committee meeting attendance fees), if a Non-Employee Director elects to receive such fees in an Award or Awards denominated in Common Stock, then such fees and the Award or Awards received in lieu thereof shall not count against such $350,000 limit).”
| 2. | Section 14(g) of the Plan is hereby amended and restated in its entirety to read as follows: |
(g) Designation and Change of Beneficiary . Each Participant may file with the Company a written designation of one or more persons as the beneficiary(ies) who shall be entitled to receive the amounts payable with respect to an Award, if any, due under the Plan upon his or her death. A Participant may, from time to time, revoke or change his or her beneficiary designation without the consent of any prior beneficiary by filing a new designation with the Company. The last such designation received by the Company shall be controlling; provided, however , that no designation, or change or revocation thereof, shall be effective unless received by the Company prior to the Participant’s death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall be deemed to be his or her estate.
| 3. | This Amendment shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to contracts made and performed wholly within the State of Delaware, without giving effect to the conflict of laws provisions thereof. |
| 4. | Capitalized terms not otherwise defined in this Amendment shall have the meanings set forth in the Plan. Further, except as expressly modified herein, all terms, provisions and conditions of the Plan shall remain in full force and effect. |
IN WITNESS WHEREOF, the undersigned, being authorized by the Board to execute this Amendment in evidence of the adoption of this Amendment by the Board, has executed this Amendment as of the date first written above.
| THE WENDY’S COMPANY | ||||
| By: |
/s/ R. Scott Toop |
|||
| Name: | R. Scott Toop | |||
| Title: | Senior Vice President, | |||
| General Counsel and Secretary | ||||