What changed in this filing

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Item 9A. Controls and Procedures

2024-02-26 compared with 2023-03-01 · 53 added, 31 removed, 218 unchanged (28% of the section changed)

1 unchanged sentence

Evaluation of Disclosure Controls and Procedures

The management of the Company, under the supervision and with the participation of the Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of the design and operation of its disclosure controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), as of January 1, 2023.

Based on such evaluations, the Chief Executive Officer and Chief Financial Officer concluded that as of January 1, 2023, the disclosure controls and procedures of the Company were effective at a reasonable assurance level in (1) recording, processing, summarizing and reporting, on a timely basis, information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act and (2) ensuring that information required to be disclosed by the Company in such reports is accumulated and communicated to management, including the Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

Based on such evaluations, the Chief Executive Officer and Chief Financial Officer concluded that as of December 31, 2023, the disclosure controls and procedures of the Company were effective at a reasonable assurance level in (1) recording, processing, summarizing and reporting, on a timely basis, information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act and (2) ensuring that information required to be disclosed by the Company in such reports is accumulated and communicated to management, including the Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

Management’s Report on Internal Control Over Financial Reporting

The management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act).

The management of the Company, under the supervision and with the participation of the Chief Executive Officer and Chief Financial Officer, carried out an assessment of the effectiveness of its internal control over financial reporting for the Company as of January 1, 2023.

The assessment was performed using the criteria for effective internal control reflected in the Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

Based on the assessment of the system of internal control for the Company, the management of the Company believes that as of January 1, 2023, internal control over financial reporting of the Company was effective.

Our independent registered public accounting firm, Deloitte & Touche LLP, has issued an attestation report dated March 1, 2023 on the Company’s internal control over financial reporting.

Based on the assessment of the system of internal control for the Company, the management of the Company believes that as of December 31, 2023, internal control over financial reporting of the Company was effective.

Our independent registered public accounting firm, Deloitte & Touche LLP, has issued an attestation report dated February 26, 2024 on the Company’s internal control over financial reporting.

Changes in Internal Control Over Financial Reporting

9 unchanged sentences

Opinion on Internal Control over Financial Reporting

We have audited the internal control over financial reporting of The Wendy’s Company and subsidiaries (the “Company”) as of January 1, 2023, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of January 1, 2023, based on criteria established in Internal Control - Integrated Framework (2013) issued by COSO.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial statements as of and for the year ended January 1, 2023, of the Company and our report dated March 1, 2023, expressed an unqualified opinion on those financial statements.

We have audited the internal control over financial reporting of The Wendy’s Company and subsidiaries (the “Company”) as of December 31, 2023, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control - Integrated Framework (2013) issued by COSO.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial statements as of and for the year ended December 31, 2023, of the Company and our report dated February 26, 2024, expressed an unqualified opinion on those financial statements.

Basis for Opinion

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Columbus, Ohio

March 1, 2023

February 26, 2024

Other Information.

On February 28, 2023, the Company and Kevin Vasconi, the Company’s Chief Information Officer, entered into an amendment (the “Amendment”) to Mr.

Vasconi’s employment letter to provide that if Mr.

Vasconi resigns before January 31, 2026 due to being required to report directly to an individual other than the current President and Chief Executive Officer by reason of either (i) the Company terminating the employment of the current President and Chief Executive Officer without “Cause” (as defined in an agreement between the Company and the current President and Chief Executive Officer), or (ii) the current President and Chief Executive Officer’s separation from the Company within 12 months following a “Change in Control” (as defined in the Company’s Executive Severance Pay Policy), such resignation will be treated for purposes of the Company’s Executive Severance Pay Policy as a termination by the Company “without Cause.” This summary of the Amendment is not complete and is qualified in its entirety by the actual terms of the Amendment, a copy of which is attached hereto as Exhibit 10.46 and is incorporated herein by reference.

Rule 10b5-1 Trading Plans

During the three months ended December 31, 2023, the following officers and directors (as defined in Rule 16a-1(f) of the Securities Exchange Act of 1934, as amended) of the Company took the following actions regarding trading arrangements with respect to our securities:

On December 6, 2023 , Gunther Plosch , the Company’s Chief Financial Officer , adopted a trading arrangement that is intended to satisfy the affirmative defense of Rule 10b5-1(c) (the “10b5-1 Plan”).

Between March 6, 2024 and February 28, 2025, the 10b5-1 Plan allows for (i) the potential sale of approximately 49,000 shares of the Company’s common stock and (ii) the potential exercise of stock options and the associated sale of up to 606,118 shares of the Company’s common stock.

The 10b5-1 Plan will expire on February 28, 2025 , or upon the earlier completion of all authorized transactions under the plan.

Departure of Executive Officer

On February 20, 2024, Kevin Vasconi, the Company’s Chief Information Officer, informed the Company of his intention to resign from the Company.

Under the terms of his employment letter, because Mr.

Vasconi provided notice of his intention to resign within 30 days of being required to report directly to an individual other than the Company’s former President and Chief Executive Officer, his resignation will be treated as a termination by the Company without “cause” for purposes of the Company’s Executive Severance Pay Policy.

The Company and Mr.

Vasconi have entered into an amendment to his employment letter pursuant to which the parties mutually agreed that Mr.

Vasconi will remain with the Company as Executive Advisor to the President and CEO through May 31, 2024 to support an orderly transition of his duties.

As noted above, Mr.

Vasconi will be entitled to receive compensation and benefits consistent with a termination without “cause” as previously described in the “Employment Arrangements and Potential Payments Upon Termination or Change in Control” section of the Company’s definitive proxy statement on Schedule 14A for its 2023 annual meeting of stockholders filed with the Securities and Exchange Commission on March 30, 2023.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

1 unchanged sentence

Items 10, 11, 12, 13 and 14.

The information required by Items 10 (Directors, Executive Officer and Corporate Governance), 11 (Executive Compensation), 12 (Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters), 13 (Certain Relationships and Related Transactions, and Director Independence) and 14 (Principal Accountant Fees and Services) will be furnished on or prior to May 1, 2023 (and is hereby incorporated by reference) by an amendment hereto or pursuant to a definitive proxy statement involving the election of directors pursuant to Regulation 14A that will contain such information.

The information required by Items 10 (Directors, Executive Officer and Corporate Governance), 11 (Executive Compensation), 12 (Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters), 13 (Certain Relationships and Related Transactions, and Director Independence) and 14 (Principal Accountant Fees and Services) will be furnished on or prior to April 29, 2024 (and is hereby incorporated by reference) by an amendment hereto or pursuant to a definitive proxy statement involving the election of directors pursuant to Regulation 14A that will contain such information.

Notwithstanding the foregoing, information appearing in the sections “Compensation Committee Report” and “Audit Committee Report” shall not be deemed to be incorporated by reference in this Form 10-K.

17 unchanged sentences

3.2 By-Laws of The Wendy’s Company (as amended and restated through November 4, 2021), incorporated herein by reference to Exhibit 3.1 of The Wendy’s Company Current Report on Form 8-K filed on November 8, 2021 (SEC file no.

4.1 Base Indenture, dated as of June 1, 2015, by and between Wendy’s Funding, LLC, as Master Issuer, and Citibank, N.A., as Trustee and Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendy’s Company Current Report on Form 8-K filed on June 2, 2015 (SEC file no.

4.1 Amended and Restated Base Indenture, dated as of April 1, 2022, by and between Wendy’s Funding, LLC, as Master Issuer, and Citibank, N.A., as Trustee and Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendy’s Company Current Report on Form 8-K filed on April 4, 2022 (SEC file no.

4.2 Series 2018-1 Supplement to Base Indenture, dated as of January 17, 2018, by and between Wendy’s Funding, LLC, as Master Issuer of the Series 2018-1 fixed rate senior secured notes, Class A-2, and Series 2018-1 variable funding senior notes, Class A-1, and Citibank, N.A., as Trustee and Series 2018-1 Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendy’s Company Current Report on Form 8-K filed on January 17, 2018 (SEC file no.

2 unchanged sentences

4.5 Series 2022-1 Supplement to Amended and Restated Base Indenture, dated as of April 1, 2022, by and between Wendy’s Funding, LLC, as Master Issuer of the Series 2022-1 fixed rate senior secured notes, Class A-2 and Citibank, N.A., as Trustee and Series 2022-1 Securities Intermediary, incorporated herein by reference to Exhibit 4.2 of The Wendy’s Company Current Report on Form 8-K filed on April 4, 2022 (SEC file no.

4.6 Amended and Restated Base Indenture, dated as of April 1, 2022, by and between Wendy’s Funding, LLC, as Master Issuer, and Citibank, N.A., as Trustee and Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendy’s Company Current Report on Form 8-K filed on April 4, 2022 (SEC file no.

4.6 Description of Securities of the Registrant, incorporated herein by reference to Exhibit 4.13 of The Wendy’s Company Form 10-K for the fiscal year ended January 2, 2022 (SEC file no.

10 unchanged sentences

001-02207).**

10.5 Form of Long-Term Performance Unit Award Agreement for 2020 under The Wendy’s Company 2010 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Form 10-Q for the quarter ended March 29, 2020 (SEC file no.

001-02207).**

10.5 Form of Restricted Stock Unit Award Agreement under The Wendy’s Company 2010 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.9 of The Wendy’s Company Form 10-K for the fiscal year ended December 29, 2019 (SEC file no.

2 unchanged sentences

001-02207).**

10.8 Form of Nonqualified Stock Option Award Agreement under The Wendy’s Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.2 of The Wendy’s Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no.

10.7 Form of Non-Employee Director Restricted Stock Award Agreement under The Wendy’s Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.5 of The Wendy’s Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no.

001-02207).**

10.9 Form of Restricted Stock Unit Award Agreement under The Wendy’s Company 2020 Omnibus Award Plan (Cliff Vesting), incorporated herein by reference to Exhibit 10.3 of The Wendy’s Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no.

10.8 Form of Long-Term Performance Unit Award Agreement for 2021 under The Wendy’s Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Form 10-Q for the quarter ended April 4, 2021 (SEC file no.

001-02207).**

10.10 Form of Restricted Stock Unit Award Agreement under The Wendy’s 2020 Omnibus Award Plan (Ratable Vesting), incorporated herein by reference to Exhibit 10.4 of The Wendy’s Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no.

10.9 Form of Long-Term Performance Unit Award Agreement for 2022 under The Wendy’s Company 2020 Omnibus Award Plan , incorporated herein by reference to Exhibit 10.3 of The Wendy’s Company Form 10-Q for the quarter ended April 3, 2022 (SEC file no.

001-02207).**

10.11 Form of Non-Employee Director Restricted Stock Award Agreement under The Wendy’s Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.5 of The Wendy’s Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no.

10.10 Amendment to Awards Issued by The Wendy’s Company Under Various Equity Plans, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Current Report on Form 8-K filed on August 9, 2023 (SEC file no.

001-02207).**

10.12 Form of Long-Term Performance Unit Award Agreement for 2021 under The Wendy’s Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Form 10-Q for the quarter ended April 4, 2021 (SEC file no.

10.11 Form of Nonqualified Stock Option Award Agreement under The Wendy’s Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.2 of The Wendy’s Company Current Report on Form 8-K filed on August 9, 2023 (SEC file no.

001-02207).**

10.13 Form of Long-Term Performance Unit Award Agreement for 2022 under The Wendy’s Company 2020 Omnibus Award Plan , incorporated herein by reference to Exhibit 10.

3 of The Wendy’s Company Form 10-Q for the quarter ended April 3 , 202 2 (SEC file no.

10.12 Form of Restricted Stock Unit Award Agreement under The Wendy’s Company 2020 Omnibus Award Plan (Ratable Vesting), incorporated herein by reference to Exhibit 10.3 of The Wendy’s Company Current Report on Form 8-K filed on August 9, 2023 (SEC file no.

001-02207).**

10.14 Wendy’s International, LLC Executive Severance Pay Policy, effective as of December 14, 2015, incorporated herein by reference to Exhibit 10.41 to The Wendy’s Company Form 10-K for the fiscal year ended January 3, 2016 (SEC file no.

10.13 Form of Restricted Stock Unit Award Agreement under The Wendy’s Company 2020 Omnibus Award Plan (Cliff Vesting), incorporated herein by reference to Exhibit 10.4 of The Wendy’s Company Current Report on Form 8-K filed on August 9, 2023 (SEC file no.

001-02207).**

10.14 Form of Long-Term Performance Unit Award Agreement for 2023 under The Wendy’s Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.5 of The Wendy’s Company Current Report on Form 8-K filed on August 9, 2023 (SEC file no.

001-02207).**

10.15 Wendy’s International, LLC Executive Severance Pay Policy, as amended February 16, 2023, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Current Report on Form 8-K filed on January 18, 2024 (SEC file no.

001-02207).**

10.16 Wendy’s International, LLC Deferred Compensation Plan, effective as of January 1, 2017, incorporated herein by reference to Exhibit 10.34 to The Wendy’s Company Form 10-K for the fiscal year ended January 1, 2017 (SEC file no.

19 unchanged sentences

10.24 Class A-1 Note Purchase Agreement, dated as of June 22, 2021, by and among Wendy’s Funding, LLC, as Master Issuer, each of Quality Is Our Recipe, LLC, Wendy’s Properties, LLC and Wendy’s SPV Guarantor, LLC, as Guarantors, Wendy’s International, LLC, as Manager, the conduit investors party thereto, the financial institutions party thereto, certain funding agents, and Coöperatieve Rabobank, U.A., New York Branch, as L/C Provider, Swingline Lender and Administrative Agent, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Current Report on Form 8-K filed on June 23, 2021 (SEC file no.

10.25 First Amendment to the Class A-1 Note Purchase Agreement, dated as of May 23, 2023, by and among Wendy’s Funding, LLC as Master Issuer, each of Quality Is Our Recipe, LLC, Wendy’s Properties, LLC and Wendy’s SPV Guarantor, LLC, as Guarantors, Wendy’s International, LLC, as Manager, the conduit investors party thereto, the financial institutions party thereto, certain funding agents, and Coöperatieve Rabobank, U.A., New York Branch, as L/C Provider, Swingline Lender and Administrative Agent, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Form 10-Q for the quarter ended Ju ly 2 , 2023 (SEC file no.

10.26 Second Amendment to the Class A-1 Note Purchase Agreement, dated as of September 22, 2023, by and among Wendy’s Funding, LLC as Master Issuer, each of Quality Is Our Recipe, LLC, Wendy’s Properties, LLC and Wendy’s SPV Guarantor, LLC, as Guarantors, Wendy’s International, LLC, as Manager, the conduit investors party thereto, the financial institutions party thereto, certain funding agents, and Coöperatieve Rabobank, U.A., New York Branch, as L/C Provider, Swingline Lender and Administrative Agent, incorporated herein by reference to Exhibit 10.1 of The Wendy’s Company Form 10-Q for the quarter ended October 1, 2023 (SEC file no.

10.27 2022-1 Class A-2 Note Purchase Agreement, dated as of March 23, 2022, by and among The Wendy’s Company, the subsidiaries of The Wendy’s Company party thereto and Barclays Capital Inc.

46 unchanged sentences

10.49 Amendment to Employment Letter between The Wendy’s Company and J.

Kevin Vasconi dated as of February 28, 2023 , incorporated h erein by reference to Exhibit 10.46 of The Wendy ’ s Company Form 10-K for the fi scal year ended January 1, 2023.

10.50 Amendment No.

2 to Employment Letter between The Wendy’s Company and J.

Kevin Vasconi dated as of February 22, 2024.* **

10.51 Employment Letter between The Wendy’s Company and Kirk Tanner dated as of January 18, 2024.* **

10.52 Non-Compete and Confidentiality Agreement between The Wendy’s Company and Abigail Pringle dated as of October 27, 2020, incorporated herein by reference to Exhibit 10.1 to The Wendy’s Company Form 10-Q for the quarter ended September 27, 2020 (SEC file no.

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Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*

101 The following financial information from The Wendy’s Company’s Annual Report on Form 10-K for the year ended January 1, 2023 formatted in Inline eXtensible Business Reporting Language:

97.1 The Wendy’s Company Policy for Recoupment of Incentive Compensation.*

101 The following financial information from The Wendy’s Company’s Annual Report on Form 10-K for the year ended December 31, 2023 formatted in Inline eXtensible Business Reporting Language:

(i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations, (iii) the Consolidated Statements of Comprehensive Income, (iv) the Consolidated Statements of Stockholders’ Equity, (v) the Consolidated Statements of Cash Flows, and (vi) Notes to Consolidated Financial Statements.

104 The cover page from The Wendy’s Company’s Annual Report on Form 10-K for the year ended January 1, 2023, formatted in Inline XBRL and contained in Exhibit 101.

104 The cover page from The Wendy’s Company’s Annual Report on Form 10-K for the year ended December 31, 2023, formatted in Inline XBRL and contained in Exhibit 101.

____________________

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THE WENDY’S COMPANY

March 1, 2023

February 26, 2024

/s/ KIRK TANNER

President and Chief Executive Officer

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below on March 1, 2023 by the following persons on behalf of the registrant and in the capacities indicated.

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below on February 26, 2024 by the following persons on behalf of the registrant and in the capacities indicated.

Signature Titles

PENEGOR President, Chief Executive Officer and Director

Penegor) (Principal Executive Officer)

/s/ KIRK TANNER President, Chief Executive Officer and Director

(Kirk Tanner) (Principal Executive Officer)

/s/ GUNTHER PLOSCH Chief Financial Officer

8 unchanged sentences

PELTZ Vice Chairman and Director

ARLIN Director

/s/ MICHELLE CARUSO-CABRERA Director

(Michelle Caruso-Cabrera)

/s/ KRISTIN A.

13 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures