Proxy Statement Pursuant to
Section 14(a) of the Securities Exchange Act of 1934
(Amendment
No. )
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Filed
by the Registrant [X]
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Filed
by a Party other than the Registrant [ ]
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Check
the appropriate box:
[X] Preliminary Proxy
Statement
[ ]
Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ]
Definitive Proxy Statement
[ ]
Definitive Additional Materials
[ ]
Soliciting Material under Rule 14a-12
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Wendy’s/Arby’s
Group, Inc.
Name
of the Registrant as Specified In Its Charter
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Payment
of Filing Fee (Check the appropriate box):
[X] No fee
required.
[ ]
Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
0-11.
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1.
Title of each class of securities to which transaction
applies:
........................................................................................
2.
Aggregate number of securities to which transaction applies:
........................................................................................
3.
Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
calculated and state how it was determined):
........................................................................................
4.
Proposed maximum aggregate value of transaction:
........................................................................................
5.
Total fee paid:
........................................................................................
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[ ]
Fee paid previously with preliminary materials.
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[ ]
Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its
filing.
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1.
Amount Previously Paid:
........................................................................................
2.
Form, Schedule or Registration Statement No.:
........................................................................................
3.
Filing Party:
........................................................................................
4.
Date Filed:
........................................................................................
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Roland
C. Smith
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President
and Chief Executive Officer
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(1)
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to
elect twelve directors to hold office until the Company’s next annual
meeting of stockholders;
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(2)
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to
adopt an amendment and restatement of the Company’s certificate of
incorporation (the “Certificate of Incorporation”) to refer to “Class A
Common Stock” as “Common Stock” and make other conforming
changes;
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(3)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
provide that, in the absence of the Chairman of the Board, the alternate
presiding chairman at a meeting of the Company’s stockholders would be, in
order, the Vice Chairman, the Chief Executive Officer or a person
designated by a majority of the Board of
Directors;
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(4)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
change the advance notice procedures for stockholder proposals and
director nominations;
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(5)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
provide that directors may be removed only by the affirmative vote of the
holders of two-thirds of the voting power of the Company’s capital
stock;
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(6)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
repeal Article VI thereof, which imposes super-majority stockholder
approval requirements for certain business combination transactions
between the Company and an interested
stockholder;
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(7)
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to
re-approve the Performance Goal Bonus Awards portion of the Company's 1999
Executive Bonus Plan;
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(8)
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to
ratify the appointment of Deloitte & Touche LLP as the Company’s
independent registered public accountants for 2009;
and
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(9)
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to
transact such other business as may properly come before the meeting or
any adjournment or postponement
thereof.
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By
Order of the Board of Directors
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Nils
H. Okeson
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Secretary
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Your vote is important! Stockholders are
cordially invited to attend the meeting. Whether or not you plan to
attend, please promptly complete and return your proxy card in the
enclosed envelope, or submit your proxy by telephone or by Internet as
described in the instructions included with your proxy card. You may
nevertheless vote in person if you attend the
meeting.
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A:
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Wendy’s/Arby’s
Board of Directors, in connection with the Board’s solicitation of proxies
for use at the Annual Meeting. Certain of our directors, officers and
employees also may solicit proxies on the Board’s behalf by mail,
telephone, email, fax or in person. We have hired Innisfree M&A
Incorporated, 501 Madison Avenue, 20th Floor, New York, NY 10022, to
assist in soliciting proxies from brokers, bank nominees and other
stockholders. We will pay the costs and expenses of the solicitation. Our
directors, officers and employees will not receive additional remuneration
for soliciting proxies. We expect that we will pay Innisfree M&A
Incorporated not more than $15,000, plus reasonable out-of-pocket
expenses, and also will reimburse banks, brokers, custodians, nominees and
fiduciaries for their reasonable costs and expenses to forward our proxy
materials to the beneficial owners of our Class A Common
Stock.
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Q:
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Why
did I receive a notice regarding the availability of proxy materials
rather than the printed proxy statement and annual
report?
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A:
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As
permitted by Securities and Exchange Commission rules, we are making our
proxy materials available electronically via the Internet on the Company’s
website at www.wendysarbys.com.
On April 17, 2009, we began mailing a notice to our stockholders
containing information on how to access these materials and vote online.
If you received that notice, then you will not receive a printed copy of
the proxy materials unless you request it by following the instructions
for requesting such materials contained on the notice. Adopting this
process allows the company to reduce its overall costs and the
environmental impact of printing and mailing these
materials.
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A:
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All
holders of record of the Company’s Class A Common Stock at the close of
business on March 31, 2009 are entitled to vote on all business transacted
at the Annual Meeting.
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A:
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If
your shares are registered directly in your name with American Stock
Transfer & Trust Company, LLC, our stock transfer agent, you are
considered a stockholder of record for those
shares.
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If
your shares are held by a broker or other nominee, you are considered the
beneficial owner of the shares, and your shares are said to be held in
“street name.” Your broker or other nominee does not have authority to
vote your shares on Proposal 7 without instructions from you.
Your broker or other nominee should have enclosed, or should provide, a
notice regarding the availability of proxy materials or a voting
instruction form for you to use in directing it how to vote your
shares.
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A:
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Please
carefully read and consider the information contained in this Proxy
Statement, and then vote your shares as soon as possible to ensure that
your shares will be represented at the Annual Meeting. You may vote your
shares prior to the meeting even if you plan to attend the meeting in
person.
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·
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Visit
the website shown on your proxy card, notice of availability of proxy
materials or voting instruction form to vote via the
Internet;
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·
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Use
the toll-free number shown on your proxy card or voting instruction form;
or
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·
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Complete,
sign, date and return the enclosed proxy card or voting instruction form
in the enclosed postage-paid envelope if you have requested and received
those items by mail..
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Q:
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What does it mean if I receive
more than one proxy card or notice regarding the
availability of proxy materials or voting instruction form?
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A:
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It
means that you have multiple accounts at the transfer agent and/or with
stockbrokers. Please follow the instructions set forth on each proxy card,
notice or voting instruction form to ensure that all your shares are
voted.
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A:
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In
order to be counted, proxies submitted by telephone or the Internet must
be received by 11:59 p.m. on May 27, 2009. Proxies submitted by mail must
be received prior to the start of the Annual
Meeting.
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Q:
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What
constitutes a quorum?
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A:
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At
the close of business on March 31, 2009, the Company had 469,258,779
shares of Class A Common Stock outstanding and entitled to vote at the
Annual Meeting. Each share of Class A Common Stock entitles the holder to
one vote per share. The presence, in person or by proxy, of stockholders
entitled to cast at least a majority of the votes that all stockholders
are entitled to cast will constitute a quorum. Broker “non-votes” and the
shares as to which a stockholder abstains are included for purposes of
determining whether a quorum of shares is present at the Annual
Meeting.
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Q:
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What
are abstentions and broker non-votes and how do they affect
voting?
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A:
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Abstentions – If you
specify on your proxy card that you “abstain” from voting on an item, your
shares will be counted present and entitled to vote for purpose of
establishing a quorum, but are not counted for purpose of determining the
number of votes cast. Abstentions are not included in the tabulation
of voting results on the election of directors (Proposal 1) or items
requiring approval of a majority of the votes cast (Proposal 7), but will
be the equivalent of an “against” vote on items that require the
affirmative vote of a majority or super-majority of the total voting power
of the Company’s outstanding voting shares, or the affirmative vote of a
majority of the voting power present. Therefore, abstentions will count as
votes against Proposals 2-6 and 8.
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Broker Non-Votes -
Under New York Stock Exchange rules, if your shares are held in street
name then your broker has discretion to vote your shares without
instructions from you on certain “routine” items, including the election
of directors, the amendment and restatement of the Certificate of
Incorporation and the ratification of the appointment of the
independent registered public accounting firm. Your broker does not,
however, have such discretion on non-routine items such as the re-approval
of the performance goal bonus awards portion of the Company’s 1999
Executive Bonus Plan (Proposal 7). If you do not provide your broker with
voting instructions for non-routine items, then the broker can not vote on
those items and will report your shares as “non-votes” on those items.
Like abstentions, broker non-votes are counted as present and entitled to
vote for quorum purposes, but are not counted for purpose of determining
the number of votes cast. Broker non-votes are not included in the
tabulation of voting results on non-discretionary or items requiring
approval of a majority of the votes cast such as Proposal 7, but would be
the equivalent of an “against” vote on items that require the affirmative
vote of a majority or super-majority of the total voting power of the
Company’s outstanding voting
shares.
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Q:
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What
am I being asked to vote on?
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(1)
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to
elect twelve directors to hold office until the Company’s next annual
meeting of stockholders (Item 1 on the Company’s proxy
card);
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(2)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
refer to “Class A Common Stock” as “Common Stock” and make other
conforming changes (Item 2 on the Company’s proxy
card);
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(3)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
provide that, in the absence of the Chairman of the Board, the alternate
presiding chairman at a meeting of the Company’s stockholders would be, in
order, the Vice Chairman, the Chief Executive Officer or a person
designated by a majority of the Board of Directors (Item 3 on
the Company’s proxy card);
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(4)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
change the advance notice procedures for stockholder proposals and
director nominations (Item 4 on the Company’s proxy
card);
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(5)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
provide that directors may be removed only by the affirmative vote of the
holders of two-thirds of the voting power of the Company’s capital
stock (Item 5 on the Company’s proxy
card);
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(6)
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to
adopt an amendment and restatement of the Certificate of Incorporation to
repeal Article VI thereof, which imposes super-majority stockholder
approval requirements for certain business combination transactions
between the Company and an interested stockholder (Item 6 on
the Company’s proxy card);
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(7)
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to
re-approve the Performance Goal Bonus Awards portion of the Company's 1999
Executive Bonus Plan (Item 7 on the Company’s proxy
card);
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(8)
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to
ratify the appointment of Deloitte & Touche LLP as the Company’s
independent registered public accountants for 2009 (Item 8 on the
Company’s proxy card); and
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(9)
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to
transact such other business as may properly come before the meeting or
any adjournment or postponement
thereof.
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A:
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The
affirmative vote of a plurality of the total voting power present in
person or represented by proxy is required to elect the twelve nominees as
directors.
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Q:
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Why
is the Company proposing to amend and restate its Certificate of
Incorporation?
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A:
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Wendy’s/Arby’s
is restating its Certificate of Incorporation because its Certificate of
Incorporation has been amended several times since its formation in 1994,
and the numerous amendments without a restatement have made the
Certificate of Incorporation cumbersome and difficult to
navigate. In connection with undertaking a restatement of the
Certificate of Incorporation, the Board of Directors formed a committee
comprised solely of independent directors for the purpose of reviewing
potential amendments to the Certificate of Incorporation and
By-Laws. Following the conclusion of its review process, the
committee unanimously recommended the proposed Amended and Restated
Certificate of Incorporation set forth in Annex A to this
Proxy Statement to the Board of Directors and, following such
recommendation, the proposed Amended and Restated Certificate of
Incorporation was unanimously approved and declared advisable by the Board
of Directors.
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The
new amendments set forth in the proposed Amended and Restated Certificate
of Incorporation are intended to make certain conforming changes, resolve
certain inconsistencies and modernize and conform the Certificate of
Incorporation to current practices of peer Delaware corporations. For a
more complete discussion of the Company’s reasons for proposing each of
the new amendments in the proposed Amended and Restated Certificate of
Incorporation see Proposals 2-6 beginning on page
[__].
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The
committee also unanimously recommended, and the board unanimously
approved, an amendment and restatement of the Company’s By-Laws that would
conform Article II, Section 11 of the By-Laws to Proposal 3 with respect
to the determination of the person to preside as chairman of a meeting of
the Wendy’s/Arby’s stockholders in the absence of the Chairman of the
Board of Directors. Wendy’s/Arby’s also intends to conform the
indemnification provisions in its By-Laws to those contained in its
Certificate of Incorporation.
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Q:
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What
amendments to the Certificate of Incorporation are being
proposed?
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A:
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Wendy’s/Arby’s
is proposing to amend and restate its Certificate of Incorporation to give
effect to the following amendments: (a) to refer to “Class A Common Stock”
as “Common Stock” and make other conforming changes, (b) to provide that,
in the absence of the Chairman of the Board, the alternate presiding
chairman at a meeting of the Company’s stockholders would be, in order,
the Vice Chairman, the Chief Executive Officer or a person designated by a
majority of the Board of Directors, (c) to change the advance notice
procedures for stockholder proposals and director nominations, (d) to
provide that directors may be removed only by the affirmative vote of the
holders of two-thirds of the voting power of the Wendy’s/Arby’s capital
stock and (e) to repeal Article VI of the Certificate of Incorporation,
which imposes super-majority stockholder approval requirements for certain
business combination transactions between Wendy’s/Arby’s and an interested
stockholder. In addition, the proposed Amended and Restated
Certificate of Incorporation would incorporate into a unified document the
amendments to the Certificate of Incorporation that have previously been
adopted and become effective.
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For
a more complete discussion of the proposed amendments to the Certificate
of Incorporation, see Proposals 2-6 beginning on page
[__].
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Q:
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What
votes are needed for the proposed Amended and Restated Certificate of
Incorporation to be approved?
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A:
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The
affirmative vote of a majority of the total voting power of the
outstanding voting shares of the Company entitled to vote at the Annual
Meeting or any adjournment or postponement thereof is required for
approval of each of the following amendments to the Certificate of
Incorporation: (a) to refer to “Class A Common Stock” as “Common Stock”
and make other conforming changes, (b) to provide that, in the absence of
the Chairman of the Board, the alternate presiding chairman at a meeting
of the Company’s stockholders would be, in order, the Vice Chairman, the
Chief Executive Officer or a person designated by a majority of the Board
of Directors, (c) to change the advance notice procedures for stockholder
proposals and director nominations and (d) to provide that directors may
be removed only by the affirmative vote of the holders of two-thirds of
the voting power of the Wendy’s/Arby’s capital stock. The affirmative vote
of two-thirds of the total voting power of the outstanding voting shares
of the Company entitled to vote at the Annual Meeting or any adjournment
or postponement thereof is required for approval of the repeal of Article
VI of the Certificate of Incorporation, which imposes super-majority
stockholder approval requirements for certain business combination
transactions between Wendy’s/Arby’s and an interested
stockholder.
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If
you are a Wendy’s/Arby’s stockholder and you fail to respond with a vote
or fail to instruct your broker or other nominee how to vote on the five
proposals relating to the adoption of the Amended and Restated Certificate
of Incorporation, it will have the same effect as a vote against these
proposals.
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Q:
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What
vote is needed to re-approve the Performance Goal Bonus Awards portion of
the Company's 1999 Executive Bonus
Plan?
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A:
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The
Treasury Regulations under Section 162(m) of the Internal Revenue Code
require the affirmative vote of a majority of the votes cast on this item
to approve it.
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Q:
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What
vote is needed to ratify the appointment of Deloitte & Touche LLP as
the Company’s independent registered public accountants for
2009?
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A:
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If
you respond but do not indicate how you want to vote on the proposals,
your proxy will be counted as a vote in accordance with the recommendation
of the Board of Directors FOR
the election of each of the twelve (12) nominees for director and FOR
Proposals 2, 3, 4, 5, 6, 7, and 8.
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A:
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Yes.
You may change your vote at any time before your proxy is voted at the
Annual Meeting.
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A:
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The
Company has been informed that the 101,274,344 shares of Class A Common
Stock beneficially owned as of the record date by Nelson Peltz and Peter
W. May representing, in the aggregate, approximately 22% of votes entitled
to be cast at the Annual Meeting, will be voted in accordance with the
recommendation of the Board of Directors FOR
the election of each of the twelve (12) nominees for director and FOR
Proposals 2, 3, 4, 5, 6, 7, and 8.
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Q:
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Whom
should I call with questions?
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A:
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Please
call Innisfree M&A Incorporated, the Company’s proxy solicitor, at
(877) 750-9498 with any questions about the Annual Meeting. Banks and
brokers can call collect at (212)
750-5833.
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Name
of Director
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Business
Experience During Past
Five
Years, Age and Other Information
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Nelson
Peltz.....................................
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Mr.
Peltz has been a director of the Company since April 1993 and
non-executive Chairman since June 2007. He also served as Chairman and
Chief Executive Officer of the Company and as a director or manager and
officer of certain of the Company’s subsidiaries from April 1993 through
June 2007. Additionally, Mr. Peltz has been Chief Executive Officer and a
founding partner of Trian Fund Management, L.P. (“Trian Partners”), a
management company for various investment funds and accounts, since
November 2005. Mr. Peltz has also been Chairman of the Board of Trian
Acquisition I Corp. since its inception in October 2007. Trian Acquisition
I Corp. is a publicly traded blank check company formed to effect a
business combination. From its formation in January 1989 to April 1993,
Mr. Peltz was Chairman and Chief Executive Officer of Trian Group, Limited
Partnership (“Trian Group”), which provided investment banking and
management services for entities controlled by Mr. Peltz and Mr. May. From
1983 to December 1988, he was Chairman and Chief Executive Officer and a
director of Triangle Industries, Inc. (“Triangle”), which, through
wholly-owned subsidiaries, was, at that time, a manufacturer of packaging
products, copper electrical wire and cable and steel conduit and currency
and coin handling products. Mr. Peltz has also served as a director of
H.J. Heinz Company since September 2006. Mr. Peltz is the father-in-law of
Edward P. Garden. Mr. Peltz is 66 years of
age.
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Peter
W. May...................................
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Mr.
May has been a director of the Company since April 1993 and has served as
non-executive Vice Chairman since June 2007. He served as the President
and Chief Operating Officer of the Company and also as a director or
manager and officer of certain of the Company’s subsidiaries from April
1993 through June 2007. Additionally, Mr. May has been President and a
founding partner of Trian Partners since November 2005. Mr. May has also
been Vice Chairman and a Director of Trian Acquisition I Corp. since its
inception in October 2007. From its formation in January 1989 to April
1993, Mr. May was President and Chief Operating Officer of Trian Group. He
was President and Chief Operating Officer and a director of Triangle from
1983 until December 1988. Mr. May has also served as a director of Tiffany
& Co. since May 2008 and of Deerfield Capital Corp. since December
2007. Mr. May is 66 years of
age.
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Name
of Director
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Business
Experience During Past
Five
Years, Age and Other Information
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Hugh
L. Carey..................................
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Mr.
Carey has been a director of the Company since June 1994. He was an
Executive Vice President of W.R. Grace & Co. (“Grace”) from 1987
through December 1995. From 1993 to December 1995, he served Grace as
director of its Government Relations Division, and from 1987 until 1993,
he ran Grace’s office of environmental policy. Mr. Carey was the Governor
of the State of New York from 1975 until 1983 and a member of Congress
from 1960 until 1975. From 1991 until 1993, he was Chairman of the
National Institute of Former Governors. Mr. Carey is also a director of
Chinatrust Bank (U.S.A.), and a partner of Harris Beach LLP, a law firm.
Mr. Carey is 89 years of age.
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Clive
Chajet......................................
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Mr.
Chajet has been a director of the Company since June 1994. He has been
Chairman of Chajet Consultancy, L.L.C., a consulting firm specializing in
identity and image management, since January 1997. Prior to that time, Mr.
Chajet was Chairman of Lippincott & Margulies Inc., also a consulting
firm specializing in identity and image management, from 1983 to January
1997. Mr. Chajet is 72 years of
age.
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Edward
P. Garden............................
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Mr.
Garden has been a director of the Company since December 2004. He served
as Vice Chairman from December 2004 through June 2007 and Executive Vice
President from August 2003 until December 2004. Additionally, Mr. Garden
has been Vice Chairman and a founding partner of Trian Partners since
November 2005. Mr. Garden has also been President, Chief Executive Officer
and a Director of Trian Acquisition I Corp. since its inception in October
2007. From 1999 to 2003, Mr. Garden was a managing director of Credit
Suisse First Boston, where he served as a senior investment banker in the
Financial Sponsors Group. From 1994 to 1999, he was a managing director at
BT Alex Brown where he was a senior member of the Financial Sponsors Group
and, prior to that, co-head of Equity Capital Markets. Mr. Garden is the
son-in-law of Nelson Peltz. Mr. Garden is 47 years of
age.
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Janet
Hill...........................................
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Ms.
Hill has been a director of the Company since September 2008. She served
as a director of Wendy’s from 1994 until its merger with a subsidiary of
the Company in September 2008. Ms. Hill is currently Vice President of
Alexander & Associates, Inc., a corporate consulting firm in
Washington, D.C. She provides corporate planning, advice and analysis to
directors, executives and managers in the areas of human resource
planning, corporate responsibility, corporate communications and
government consultation. Ms. Hill also serves as a director of Dean Foods
Company and Sprint Nextel Corporation. Ms. Hill is 61 years of
age.
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Joseph
A. Levato............................
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Mr.
Levato has been a director of the Company since June 1996. Mr. Levato
served as Executive Vice President and Chief Financial Officer of the
Company and certain of its subsidiaries from April 1993 to August 1996. He
was Senior Vice President and Chief Financial Officer of Trian from
January 1992 to April 1993. From 1984 to December 1988, he served as
Senior Vice President and Chief Financial Officer of Triangle. Mr. Levato
is 68 years of age.
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J.
Randolph Lewis...........................
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Mr.
Lewis has been a director of the Company since September 2008. He served
as a director of Wendy’s from 2004 until its merger with a subsidiary of
the Company in September 2008. Mr. Lewis is Senior Vice President,
Distribution and Logistics, Walgreen Co., Deerfield, Illinois. Walgreen
Co. is the nation’s largest drugstore chain. Mr. Lewis joined Walgreen Co.
in March, 1992 as Divisional Vice President, Logistics and Planning. He
was promoted to his current position in 1999. Prior to joining Walgreen
Co. he was a partner in the consulting division of Ernst & Young. Mr.
Lewis is 59 years of age.
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David
E. Schwab II..........................
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Mr.
Schwab has been a director of the Company since October 1994. Mr. Schwab
has been a Senior Counsel of Cowan, Liebowitz & Latman, P.C., a law
firm, since January 1998. Prior to that time, he was a partner of Schwab
Goldberg Price & Dannay, a law firm, for more than five years. Mr.
Schwab also serves as Chair Emeritus of the Board of Trustees and Chair of
the Executive Committee of Bard College. Mr. Schwab is 77 years of
age.
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Name
of Director
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Business
Experience During Past
Five
Years, Age and Other Information
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|
Roland
C. Smith...............................
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Mr.
Smith has been a director and the Chief Executive Officer of the Company
since June 2007, and he has also served as President of the Company and
Chief Executive Officer of Wendy’s since September 2008. Mr. Smith served
as the Chief Executive Officer of Arby’s Restaurant Group, Inc. (“ARG”)
from April 2006 to September 2008. Mr. Smith also served as President of
ARG from April 2006 to June 2006. Mr. Smith served as President and Chief
Executive Officer of American Golf Corporation and National Golf
Properties from February 2003 to November 2005. Prior thereto, Mr. Smith
served as President and Chief Executive Officer of AMF Bowling Worldwide,
Inc. from April 1999 to January 2003. Mr. Smith served as President and
Chief Executive Officer of ARG’s predecessor, Arby’s, Inc., from February
1997 to April 1999. Mr. Smith also serves as a director of Carmike
Cinemas, Inc. Mr. Smith is 54 years of
age.
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Raymond
S. Troubh........................
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Mr.
Troubh has been a director of the Company since June 1994. He has been a
financial consultant since prior to 1989. Mr. Troubh is a director of
Diamond Offshore Drilling, Inc., General American Investors Company and
Gentiva Health Services, Inc. Mr. Troubh is 82 years of
age.
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Jack
G. Wasserman.........................
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Mr.
Wasserman has been a director of the Company since March 2004. Mr.
Wasserman has practiced law as a solo practitioner since September 2001.
Prior to that time, he was a senior partner of Wasserman, Schneider, Babb
& Reed (and its predecessors) from 1966 until September 2001. Mr.
Wasserman serves as a director of Icahn Enterprises G.P., Inc., the
general partner of Icahn Enterprises L.P., and Cadus Inc. Mr. Wasserman is
72 years of age.
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Name
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Age
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Positions
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|||||
Roland
C.
Smith.......................................................................
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54
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Director;
President and Chief Executive Officer
|
|||||
Stephen
E.
Hare.......................................................................
|
55
|
Senior
Vice President and Chief Financial Officer
|
|||||
J.
David
Karam........................................................................
|
50
|
President,
Wendy’s International, Inc.
|
|||||
Thomas
A.
Garrett..................................................................
|
47
|
President
and Chief Executive Officer - Arby’s Restaurant Group,
Inc.
|
|||||
Sharron
L.
Barton....................................................................
|
57
|
Senior
Vice President and Chief Administrative Officer
|
|||||
Nils
H.
Okeson........................................................................
|
43
|
Senior
Vice President, General Counsel and Secretary
|
|||||
John
D.
Barker.........................................................................
|
46
|
Senior
Vice President and Chief Communications Officer
|
|||||
Steven
B.
Graham....................................................................
|
55
|
Senior
Vice President and Chief Accounting
Officer
|
|
•
|
the
director is, or has been within the last three years, an employee of
Wendy’s/Arby’s, or an immediate family member of the director is, or has
been within the last three years, an executive officer of
Wendy’s/Arby’s;
|
|
•
|
the
director has received, or has an immediate family member who has received,
during any twelve-month period within the last three years, more than
$120,000 in direct compensation from Wendy’s/Arby’s as an executive
officer, other than director and committee fees and pension or other forms
of deferred compensation for prior service (provided that such
compensation is not contingent in any way on continued
service);
|
|
•
|
(i)
the director is a current partner or employee of a firm that is
Wendy’s/Arby’s internal or external auditor; (ii) the director has an
immediate family member who is a current partner of such a firm; (iii) the
director has an immediate family member who is a current employee of such
a firm and personally works on Wendy’s/Arby’s audit; or (iv) the director
or an immediate family member of the director was within the last three
years (but is no longer) a partner or employee of such a firm and
personally worked on Wendy’s/Arby’s audit within that
time;
|
|
•
|
the
director or an immediate family member of the director is, or has been
within the last three years, employed as an executive officer of another
company where any of Wendy’s/Arby’s present executive officers at the same
time serves or served on the compensation committee of that company’s
board of directors;
|
|
•
|
the
director is a current employee, or an immediate family member of the
director is a current executive officer, of another company that has made
payments to, or received payments from, Wendy’s/Arby’s for property or
services in an amount that, in any of the last three fiscal years, exceeds
the greater of $1.0 million or 2% of such other company’s consolidated
gross revenues. Both the payments and the consolidated gross revenues to
be measured will be those of such other company’s last completed fiscal
year. Also, the three year “look-back” period referred to above applies
only to the financial relationship between Wendy’s/Arby’s and the
director’s or immediate family member’s current employer (i.e., former
employment of the director or immediate family member need not be
considered); or
|
|
•
|
the
director, or an immediate family member of the director, is employed as an
executive officer of a non-profit organization, foundation or university
to which, within the last three years, Wendy’s/Arby’s has made
discretionary contributions (excluding for this purpose matching funds
paid by Wendy’s/Arby’s as a result of contributions by Wendy’s/Arby’s
directors and employees) that, in any fiscal year of such non-profit
organization, foundation or university, exceeded the greater of $1.0
million or 2% of such entity’s consolidated gross
revenues.
|
Name
and Address
of
Beneficial Owner
|
Amount
and Nature of
Beneficial
Ownership
|
Percentage
of Class
Beneficially
Owned
|
||||
Nelson
Peltz.......................................................................
|
101,070,994
|
(1)(2)(3)(4)
|
21.5%
|
|||
280
Park Avenue
|
||||||
New
York, NY 10017
|
||||||
Peter
W.
May....................................................................
|
100,964,179
|
(1)(2)(3)(4)
|
21.5%
|
|||
280
Park Avenue
|
||||||
New
York, NY 10017
|
||||||
Edward
P.
Garden..............................................................
|
76,827,134
|
(3)(4)
|
16.4%
|
|||
280
Park Avenue
|
||||||
New
York, NY 10017
|
||||||
Trian
Partners,
L.P............................................................
|
76,623,145
|
(4)
|
16.3%
|
|||
280
Park Avenue
|
||||||
New
York, NY 10017
|
||||||
Pershing
Square Capital Management, L.P...................
|
47,044,509
|
(5)
|
10.0%
|
|||
888
Seventh Avenue, 42nd
Floor
|
||||||
New
York, NY 10019
|
||||||
Barclays
Global Investors,
NA.......................................
|
23,993,770
|
(6)
|
5.1%
|
|||
45
Fremont Street, 17th Floor
|
||||||
San
Francisco, CA 94105
|
||||||
Hugh
L.
Carey...................................................................
|
138,744
|
*
|
||||
Clive
Chajet........................................................................
|
125,422
|
(7)
|
*
|
|||
Janet
Hill.............................................................................
|
126,670
|
*
|
||||
Joseph
A.
Levato..............................................................
|
114,905
|
*
|
||||
J.
Randolph
Lewis.............................................................
|
95,225
|
(8)
|
*
|
|||
David
E. Schwab
II...........................................................
|
181,710
|
*
|
||||
Roland
C.
Smith.................................................................
|
521,742
|
(9)
|
*
|
|||
Raymond
S.
Troubh.........................................................
|
168,000
|
*
|
||||
Jack
G.
Wasserman...........................................................
|
89,000
|
*
|
||||
Stephen
E.
Hare.................................................................
|
96,183
|
(10)
|
*
|
|||
Thomas
A.
Garrett............................................................
|
1,250,661
|
(11)
|
*
|
|||
Sharron
L.
Barton..............................................................
|
254,139
|
(12)
|
*
|
|||
Nils
H.
Okeson..................................................................
|
78,207
|
(13)
|
*
|
|||
Directors
and Executive Officers as a group (19
persons)........................................................................
|
105,053,883
|
22.4%
|
(1)
|
Wendy’s/Arby’s
is informed that: (i) Mr. Peltz has pledged 15,901,582 shares of Class A
Common Stock to a financial institution to secure loans made to him; and
(ii) Mr. May has pledged 8,220,114 shares of Class A Common Stock owned by
him to a financial institution to secure loans made to
him.
|
(2)
|
In
July 2004, Messrs. Peltz and May entered into a voting agreement, pursuant
to which Messrs. Peltz and May agreed not to vote certain shares of Class
A Common Stock held by them or their affiliates without the prior approval
of both parties. Accordingly, the information set forth in the table above
with respect to Messrs. Peltz and May aggregates their respective
ownership interests.
|
(3)
|
Includes
(x) in the case of Mr. Peltz, (i) 70,650 shares of Class A Common Stock
owned by a family limited partnership of which Mr. Peltz is a general
partner, (ii) 600 shares of Class A Common Stock owned by Mr. Peltz’s
minor children, (iii) 238,915 shares of Class A Common Stock owned by the
Peltz Family Foundation and (iv) 76,623,145 shares of Class A Common Stock
owned by the Trian entities identified in note (4) below; (y) in the case
of Mr. May, (i) 203,350 shares of Class A Common Stock owned by the May
Family Foundation and (ii) 76,623,145 shares of Class A Common Stock owned
by those Trian entities; and (z) in the case of Mr. Garden, 76,623,145
shares of Class A Common Stock owned by those Trian
entities. Messrs. Peltz, May and Garden, by virtue of their
relationships to those Trian entities, may be deemed to have shared voting
power and shared dispositive power with regard to, and therefore may be
deemed to beneficially own, the shares of Class A Common Stock owned by
those Trian entities. Each of Messrs. Peltz, May, and Garden disclaims
beneficial ownership of such
shares.
|
(4)
|
The
information set forth herein with respect to Trian Partners, L.P. (“Trian
Onshore”), Trian Partners Master Fund, L.P. (“Trian Master Fund”), Trian
Partners Parallel Fund I, L.P., (“Parallel Fund I”), Trian Partners
Parallel Fund II, L.P. (“Parallel Fund II”), Trian Partners GP, L.P.
(“Trian GP”), Trian Partners General Partner, LLC (“Trian GP LLC”), Trian
Partners Parallel Fund I General Partner, LLC (“Parallel Fund I GP”),
Trian Partners Parallel Fund II GP, L.P. (“Parallel Fund II GP”), Trian
Partners Parallel Fund II General Partner, LLC (“Parallel Fund II LLC”),
Trian Fund Management, L.P. (“Trian Management”), and Trian Fund
Management GP, LLC (“Trian Management GP”) is based solely on information
contained in a Schedule 13D filed with the Securities and Exchange
Commission on April 1, 2009. According to the Schedule 13D,
Trian Onshore directly owns 19,578,427 shares of Class A Common Stock,
Trian Master Fund directly owns 54,673,668 shares of Class A Common Stock,
Parallel Fund I directly owns 1,919,315 shares of Class A Common Stock,
Parallel Fund II directly owns 426,414 shares of Class A Common Stock and
Trian GP directly owns 25,321 shares of Class A Common
Stock.
|
|
Each
of Trian Onshore, Trian Master Fund, Parallel Fund I, Parallel Fund II and
Trian GP beneficially and directly owns and has sole voting power and sole
dispositive power with regard to 19,578,427, 54,673,668, 1,919,315,
426,414 and 25,321 shares of Class A Common Stock, respectively, in each
case except to the extent that other filing persons described in the
Schedule 13D may be deemed to have shared voting power and shared
dispositive power with regard to such
shares.
|
|
Each
of Trian GP, Trian GP LLC, Trian Management, Trian Management GP, and
Messrs. Peltz, May, and Garden, by virtue of their relationships to Trian
Onshore and Trian Master Fund, may be deemed to have shared voting power
and shared dispositive power with regard to, and therefore may be deemed
to beneficially own, all of the shares of Class A Common Stock that Trian
Onshore and Trian Master Fund directly and beneficially
own. Each of Trian GP, Trian GP LLC, Trian Management, Trian
Management GP, and Messrs. Peltz, May and Garden, disclaims beneficial
ownership of such shares for all other purposes. Each of
Parallel Fund I GP, Trian Management, Trian Management GP, and Messrs.
Peltz, May and Garden, by virtue of their relationships to Parallel Fund
I, may be deemed to have shared voting power and shared dispositive power
with regard to, and therefore may be deemed to beneficially own, all of
the shares of Class A Common Stock that Parallel Fund I directly and
beneficially owns. Each of Parallel Fund I GP, Trian
Management, Trian Management GP, and Messrs. Peltz, May, and Garden
disclaims beneficial ownership of such shares for all other
purposes. Each of Parallel Fund II LLC, Parallel Fund II GP,
Trian Management, Trian Management GP, and Messrs. Peltz, May and Garden,
by virtue of their relationships to Parallel Fund II may be deemed to have
shared voting power and shared dispositive power with regard to, and
therefore may be deemed to beneficially own, all of the shares of Class A
Common Stock that Parallel Fund II directly and beneficially
owns. Each of Parallel Fund II LLC, Parallel Fund II GP, Trian
Management, Trian Management GP, and Messrs. Peltz, May and Garden
disclaims beneficial ownership of such shares for all other
purposes. Each of Trian GP LLC, Trian Management, Trian
Management GP, and Messrs. Peltz, May and Garden, by virtue of their
relationships with Trian GP, may be deemed to beneficially own, all of the
shares of Class A Common Stock that Trian GP directly and beneficially
owns. Each of Trian GP LLC, Trian Management, Trian Management
GP, and Messrs. Peltz, May and Garden disclaims beneficial ownership of
such shares for all other purposes.
|
(5)
|
The
information set forth herein with respect to Pershing Square Capital
Management, L.P. (“Pershing Square Capital”), PS Management GP, LLC (“PS
Management”), Pershing Square GP, LLC (“Pershing Square GP”), and William
A. Ackman (“Ackman”) is based solely on information contained in a
Schedule 13G/A filed with the Securities and Exchange Commission on
February 17, 2009. According to the Schedule 13G/A, (a) Pershing Square
Capital serves as investment advisor to Pershing Square, L.P. (“Pershing
Square”), Pershing Square II, L.P. (“Pershing Square II”), and Pershing
Square International, Ltd. (“Pershing Square International”) with respect
to Class A Common Stock directly owned by
Pershing
|
|
Square,
Pershing Square II, and Pershing Square International. Pershing
Square Capital, its general partner, PS Management GP, LLC (“PS
Management”), Pershing Square GP, LLC (“Pershing Square GP”), the general
partner of each of Pershing Square and Pershing Square II, and Ackman, the
managing member of each of PS Management and Pershing Square GP has shared
voting and dispositive power over 47,044,509 shares of Class A Common
Stock, and (b) Pershing Square GP has shared voting and dispositive power
over 16,570,206 shares of Class A Common
Stock.
|
(6)
|
The
information set forth herein with respect to Barclays Global Investors,
N.A. (“Barclays”), and certain other entities listed in a Schedule 13G
filed with the Securities and Exchange Commission on February 5, 2009, is
based solely on information contained in such Schedule 13G. According to
the Schedule 13G, Barclays has sole voting power over 8,475,193 shares of
Class A Common Stock and sole dispositive power over 9,764,051 shares of
Class A Common Stock; Barclays Global Fund Advisors has sole voting power
over 11,015,417 shares of Class A Common Stock and sole dispositive power
over 13,376,057 shares of Class A Common Stock; and Barclays Global
Investors, Ltd. has sole voting power over 568,449 shares of Class A
Common Stock and sole dispositive power over 853,662 shares of Class A
Common Stock.
|
(7)
|
Includes
3,900 shares of Wendy’s/Arby’s Class A common owned by Mr. Chajet’s wife,
as to which shares Mr. Chajet disclaims beneficial
ownership.
|
(8)
|
Includes
11,050 shares of Wendy’s/Arby’s Class A Common Stock owned by a trust, as
to which shares Mr. Lewis disclaims beneficial
ownership.
|
(9)
|
Includes
116,667 restricted shares of Class A Common Stock that may be voted by Mr.
Smith.
|
(10)
|
Includes
20,000 restricted shares of Class A Common Stock that may be voted by Mr.
Hare.
|
(11)
|
Includes
25,000 restricted shares of Class A Common Stock that may be voted by Mr.
Garrett.
|
(12)
|
Includes
8,333 restricted shares of Class A Common Stock that may be voted by Ms.
Barton.
|
(13)
|
Includes
16,666 restricted shares of Class A Common Stock that may be voted by Mr.
Okeson.
|
__________________
|
Name
of
Beneficial
Owner
|
Number
of Shares
Represented
by
Options
|
||
Nelson
Peltz.....................................................................................................
|
0
|
||
Peter
W.
May..................................................................................................
|
0
|
||
Hugh
L.
Carey.................................................................................................
|
99,000
|
||
Clive
Chajet......................................................................................................
|
99,000
|
||
Edward
P.
Garden............................................................................................
|
0
|
||
Janet
Hill...........................................................................................................
|
44,854
|
||
Joseph
A.
Levato............................................................................................
|
99,000
|
||
J.
Randolph
Lewis...........................................................................................
|
44,854
|
||
David
E. Schwab
II.........................................................................................
|
99,000
|
||
Roland
C.
Smith...............................................................................................
|
353,334
|
||
Raymond
S.
Troubh.......................................................................................
|
99,000
|
||
Jack
G.
Wasserman.........................................................................................
|
87,000
|
||
Stephen
E.
Hare...............................................................................................
|
73,334
|
||
Thomas
A.
Garrett..........................................................................................
|
670,993
|
||
Sharron
L.
Barton............................................................................................
|
40,400
|
||
Nils
H.
Okeson................................................................................................
|
59,166
|
||
Directors
and Executive Officers as a group (19
persons).......................
|
2,069,811
|
Legacy
Proxy Peer Group
|
||
AFC
Enterprises Inc.
|
CKE
Restaurants Inc.
|
PF
Chang’s China Bistro Inc.
|
Brinker
International Inc.
|
Darden
Restaurants Inc.
|
Ruby
Tuesday Inc.
|
Burger
King Holdings Inc.
|
Denny’s
Corp.
|
Sonic
Corp.
|
CBRL
Group Inc.
|
Bob
Evans Farms Inc.
|
Starbucks
Corp.
|
CEC
Entertainment Inc.
|
IHOP
Corp.
|
Yum!
Brands Inc.
|
The
Cheesecake Factory Inc.
|
Jack
In The Box Inc.
|
|
Chipotle
Mexican Grill Inc.
|
McDonald’s
Corp.
|
New
Proxy Peer Group
|
||
Brinker
International Inc.
|
Domino’s
Pizza Inc.
|
Papa
John’s International Inc.
|
Burger
King Holdings Inc.
|
Bob
Evans Farms Inc.
|
Ruby
Tuesday Inc.
|
CBRL
Group Inc.
|
Jack
In The Box Inc.
|
Starbucks
Corp.
|
CKE
Restaurants Inc.
|
McDonald’s
Corp.
|
Yum!
Brands Inc.
|
Darden
Restaurants Inc.
|
Panera
Bread Co.
|
Description
|
Chief
Executive Officer
|
Other
Named Executive Officers
|
||
Termination
events triggering severance cash benefits and benefits
continuation:
|
· Involuntary
termination without Cause, other than for death or
disability.
· Termination
by Mr. Smith for a “Triggering Event”.
· Termination
by Mr. Smith in connection with a “Special Termination
Event”.
|
· Involuntary
termination without Cause, other than for death or
disability.
· Termination
by executive officer for a “Triggering
Event”.
|
Severance
cash benefit:
|
(a)
Lump sum payment equal to (i) two times base salary in effect as of the
effective date of termination ($2,300,000) plus (ii) two times target
annual bonus for the year prior to the year of termination
($2,000,000).
(b)
$25,000 (which shall increase to $27,500 in December 2010).
(c)
Pro rata annual bonus based on actual performance, payable in lump sum on
date bonuses are normally paid.
(d)
In the event severance cash benefits are provided pursuant to a Special
Termination Event, Mr. Smith will receive a tax gross up for any excise
tax imposed by Code Section 4999 on any “excess parachute payments”. If a
Special Termination Event had occurred on 12/26/08, Mr. Smith would not
have received a tax gross up because the amount of his benefits would not
have been “excess parachute payments” so as to be taxed under Code Section
4999.
|
(a)
The sum of the base salary in effect as of the effective date of
termination plus the actual annual bonus paid, if any, for the year prior
to the year of termination, paid in semi-monthly installments for a period
of 12 months. Values as of 12/26/08 are as follows: Hare: $986,250;
Garrett: $1,306,250; Barton: $913,250; and Okeson: $847,625.
(b)
Continuation of the base salary in effect as of the effective date of
termination for an additional period of 12 months, paid in semi-annual
installments and offset by compensation earned by the executive officer
during the same period.
(c)
$25,000 (which shall increase to $27,500 in December 2010).
(d)
Pro rata annual bonus based on actual performance, payable in lump sum on
date bonuses are normally paid.
|
||
Executive
must sign release to receive severance benefits:
|
Yes.
|
Yes.
|
||
Health
and welfare benefits continuation:
|
Continued
participation in the Company’s health and welfare plans for 18 months at
Mr. Smith’s election and at full cost to Mr. Smith.
|
Continued
participation in the Company’s health and welfare plans for 18 months at
the executive officer’s election and at full cost to the executive
officer.
|
||
E
Equity treatment:
|
All
unvested stock options and restricted stock shall vest in full upon a
Change in Control, an involuntary termination without Cause; termination
by death or disability; or a termination following a Triggering Event or
Special Termination Event. The estimated value of accelerated options if
such an event occurred on 12/26/08 is $150,000 and the estimated value of
accelerated restricted stock is $158,379.
·
Options remain exercisable for a period ending on the earlier of
the one year anniversary of the termination or the expiration of the
applicable option in the event of an involuntary termination without
Cause; termination by death or disability; or a termination following a
Triggering Event or Special Termination Event.
|
All
unvested stock options that would have vested if the executive officer had
remained employed by the Company through December 18, 2010 shall vest in
full upon an involuntary termination without Cause, other than for death;
a termination for disability; or a termination following a Triggering
Event. In the case of Mr. Garrett, options and restricted stock will be
fully vested. Values as of 12/26/08 are as follows: Hare: $33,333;
Garrett: $60,000 for options and $118,750 for restricted stock; Barton:
$16,668; and Okeson: $16,668.
·
Options remain exercisable for a period ending on the earlier of
the one year anniversary of the termination or the expiration of the
applicable option, except that Mr. Garrett’s replacement options remain
exercisable for a period of 30 days after termination of
employment.
|
||
Outplacement
assistance:
|
No.
|
No.
|
Restrictive
covenants:
|
In
the event of the termination of Mr. Smith’s employment without Cause or
due to a Triggering Event, the restrictive period for the following
covenants shall run for a period of 24 months. In the event of the
termination of Mr. Smith’s employment for cause or other than due to a
Triggering Event, the restrictive period shall be 18 months.
·
Prohibited from soliciting franchisees or suppliers and employees
of the Company.
·
Prohibited from competing with the Company (see details
below).
Mr.
Smith is also subject to certain confidentiality and non-disparagement
covenants.
|
In
the event of the termination of the executive officer’s employment without
Cause or due to a Triggering Event, the restrictive period for the
following covenants shall run for a period of 24 months. In the event of
the termination of the executive officer’s employment for cause or other
than due to a Triggering Event, the restrictive period shall be 12
months.
·
Prohibited from soliciting franchisees or suppliers and employees
of the Company.
·
Prohibited from competing with the Company (see details
below).
The
executive officers are also subject to certain confidentiality and
non-disparagement covenants.
|
||
Non-Renewal
Severance
|
Non-Renewal
by the Company constitutes a Triggering Event- see above for severance
benefits.
|
If
employment is terminated by the Company by 120 day written notice of
expiration, executive officer shall receive:
·
Continuation of the base salary in effect as of the effective date
of termination for at least 8 months (payments to be made in semi-monthly
installments);
·
Pro rata annual bonus, payable in lump sum on date bonuses are
normally paid, based on actual performance, provided the executive officer
remains employed during the 120 day notice
period.
|
Name
and
Principal
Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)(1)
|
Option
Awards
($)(2)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
All
Other
Compensation
($)(3)
|
Total($)
|
||||||||||||||||
Roland
C. Smith...........................
|
2008
|
1,000,000
|
500,000
|
219,565
|
176,898
|
72,013
|
1,968,476
|
|||||||||||||||||
(CEO)
|
2007
|
1,000,000
|
1,000,000
|
495,219
|
264,489
|
—
|
36,574
|
2,796,282
|
||||||||||||||||
2006
|
711,538
|
738,750
|
742,214
|
392,445
|
—
|
172,068
|
2,757,015
|
|||||||||||||||||
Stephen
E. Hare...........................
|
2008
|
515,000
|
200,000
|
26,387
|
38,595
|
20,454
|
800,436
|
|||||||||||||||||
(CFO)
|
2007
|
511,250
|
386,250
|
70,653
|
46,286
|
—
|
20,958
|
1,035,396
|
||||||||||||||||
*
|
||||||||||||||||||||||||
Thomas
A. Garrett.......................
|
2008
|
800,000
|
(4)
|
250,000
|
32,983
|
51,451
|
18,940
|
1,153,374
|
||||||||||||||||
(President
and CEO -
|
2007
|
787,500
|
506,250
|
88,316
|
66,122
|
—
|
21,862
|
1,470,051
|
||||||||||||||||
ARG)
|
*
|
|||||||||||||||||||||||
Sharron
L. Barton........................
|
2008
|
653,250
|
(5)
|
150,000
|
10,994
|
17,683
|
20,453
|
852,380
|
||||||||||||||||
(SVP
and Chief
|
2007
|
659,750
|
(6)
|
263,250
|
29,439
|
19,837
|
—
|
20,531
|
992,806
|
|||||||||||||||
Admin.
Officer)
|
*
|
|||||||||||||||||||||||
Nils
H. Okeson.............................
|
2008
|
483,500
|
(7)
|
200,000
|
21,989
|
24,120
|
18,625
|
748,234
|
||||||||||||||||
(SVP,
GC and
|
2007
|
478,500
|
347,625
|
58,877
|
33,061
|
—
|
20,119
|
938,183
|
||||||||||||||||
Secretary)
|
*
|
*
|
Messrs.
Hare, Garrett and Okeson and Ms. Barton were not executive officers of the
Company in 2006, and therefore compensation information for them is not
provided for that fiscal year.
|
(1)
|
Represents
the compensation expense recorded by the Company under FAS 123(R) in the
year shown with respect to awards of restricted stock of the Company made
to such named executive officer, disregarding any estimates of forfeitures
related to service-based vesting conditions. See Note (16) Share-Based
Compensation to the Company’s consolidated financial statements set forth
in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 28, 2008 (the “2008 Form 10-K”) for the assumptions made in
determining FAS 123(R) values.
|
(2)
|
Represents
the compensation expense recorded by the Company under FAS 123(R) in the
year shown with respect to awards of stock options to the named executive
officer, disregarding any estimates of forfeitures related to
service-based vesting conditions. See Note (16) Share-Based Compensation
to the Company’s consolidated financial statements set forth in the 2008
Form 10-K for the assumptions made in determining FAS 123(R)
values.
|
(3)
|
Includes
with respect to each named executive officer an automobile allowance and
amounts for long-term disability and group term life insurance. Also
includes with respect to Mr. Smith the following expenditures by the
Company in connection with his temporary living arrangements for work at
Wendy’s headquarters in Ohio: (i) $21,600 for the lease of an apartment
for Mr. Smith and his wife in Columbus, Ohio, (ii) renter’s insurance
and utilities costs associated with the apartment, (iii) moving
expenses for personal items, (iv) automobile lease expenses, (v) expenses
relating to his wife’s travel to and from Ohio, and (vi) reimbursement in
the amount of $4,918 for taxes owed for use of corporate
aircraft.
|
(4)
|
Includes
$50,000 paid in lieu of a merit increase in 2007 and
2008.
|
(5)
|
Includes
$3,250, the final quarterly installment of a payment in lieu of a merit
increase in 2007.
|
(6)
|
Includes
$9,750, the first three quarterly installments of a payment in lieu of a
merit increase in 2007.
|
(7)
|
Includes
$20,000 paid in lieu of a merit increase in 2007 and
2008.
|
Estimated
Possible Payouts Under Non-Equity Incentive Plan Awards
(1)
|
Estimated Future Payouts Under Equity Incentive Plan Awards |
All Other Stock Awards: Number of Shares of
Stock
|
All Other Option Awards: Number of Securities Underlying |
Exercise or Base Price of
Option
|
Grant Date Fair Value of Stock and
Option
|
|||||||||||||||||
Name |
Grant
Date
|
Threshold
($)
|
Target
($)
|
Maximum
($)
|
Threshold
($)
|
Target
($)
|
Maximum
($)
|
or Units
(#)
(2)
|
Options
(#)
(3)
|
Awards
($/Sh)
|
Awards
($)
(4)
|
|||||||||||
Roland
C. Smith.............
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
100,000
|
676,000
|
|||||||||||||
(CEO)
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
200,000
|
6.77
|
440,000
|
||||||||||||
12/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
1,500,000
|
4.65
|
2,860,050
|
|||||||||||||
3/27/08
|
750,000
|
1,500,000
|
3,000,000
|
|||||||||||||||||||
Stephen
E. Hare.............
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
12,000
|
81,240
|
|||||||||||||
(CFO)
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
35,000
|
6.77
|
69,650
|
||||||||||||
12/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
500,000
|
4.65
|
953,350
|
|||||||||||||
3/27/08
|
289,688
|
579,375
|
1,158,750
|
|||||||||||||||||||
Thomas
A. Garrett.........
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
15,000
|
101,550
|
|||||||||||||
(President
and
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
50,000
|
6.77
|
99,500
|
||||||||||||
CEO
– ARG)
|
12/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
600,000
|
4.65
|
1,144,020
|
||||||||||||
3/27/08
|
506,250
|
1,012,500
|
2,025,000
|
|||||||||||||||||||
Sharron
L. Barton..........
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
5,000
|
33,850
|
|||||||||||||
(SVP
and Chief
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
15,000
|
6.77
|
29,850
|
||||||||||||
Admin.
Officer)
|
12/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
250,000
|
4.65
|
476,675
|
||||||||||||
3/27/08
|
365,625
|
731,250
|
1,462,500
|
|||||||||||||||||||
Nils
H. Okeson...............
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
10,000
|
67,700
|
|||||||||||||
(SVP,
GC and
|
6/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
25,000
|
6.77
|
49,750
|
||||||||||||
Secretary)
|
12/18/08
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
250,000
|
4.65
|
476,675
|
||||||||||||
3/27/08
|
260,718
|
521,437
|
1,042,875
|
(1)
|
Under
the 1999 Executive Bonus Plan, each named executive officer was assigned
to a category providing for a target payout as a percentage of base
salary: 100% for Mr. Smith, 90% for Mr. Garrett and 75% for the other
participants. Threshold, target and maximum achievement of each of the
three designated performance goals was correlated with a percentage of the
executive’s target payout percentage. Based on the target payout
percentages designated for the participants, assuming target performance
for all three metrics, Mr. Smith would have qualified for a bonus payment
of 150% of his base salary ($1.5 million), Mr. Garrett would have
qualified for a bonus payment of 135% of his base salary ($1.012 million),
and the other participants would have qualified for bonus payments of
112.5% of their base salaries (ranging from $521,437 to $731,250). In the
event of maximum performance for all three metrics, Mr. Smith would have
qualified for a bonus payment of 300% of his base salary, Mr. Garrett
would have qualified for a bonus payment of 270% of his base salary, and
the other participants would have qualified for bonus payments of 225% of
their base salaries. If actual performance had fallen between designated
achievement levels, the relevant payout percentage would have been
interpolated. Based on actual operating results for fiscal 2008 and the
performance of the Company’s stock during the applicable period in 2008,
none of the participants were entitled to any payments from these awards.
For more information regarding the 2008 performance targets and possible
bonus payouts, see “Compensation Discussion and Analysis”
above.
|
(2)
|
Consists
of a single restricted stock grant under the 2002 Plan. The shares vest
ratably over three years, subject to continued employment through each of
the anniversary dates.
|
(3)
|
Consists
of two stock option grants under the 2002 Plan, each at an exercise price
equal to the fair market value (i.e., closing price) of the underlying
shares on the grant date and expiring ten years from the grant date. The
options vest and become exercisable ratably over three years, subject to
continued employment through each of the anniversary
dates.
|
(4)
|
The
grant date fair value of an award is determined pursuant to FAS 123(R).
See Note (16) Share-Based Compensation to the Company’s consolidated
financial statements set forth in the 2008 Form 10-K for the assumptions
made in determining FAS 123(R)
values.
|
Option
Awards
|
Stock
Awards
|
|||||||||||||||||||||||||||
Name
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
(1)
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
Equity
Incentive
Plan
Awards:
Number
of
Securities
Underlying
Unexercised
Unearned
Options
(#)
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
Number
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
(#)
|
Market
Value
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
($)
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested (#)
|
Equity
Incentive
Plan
Awards:
Market
or
Payout
Value
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested
($)
|
|||||||||||||||||||
Roland
C. Smith.................
|
146,666
|
73,334
|
—
|
16.49
|
(2)
|
4/13/16
|
33,334
|
(3)
|
158,337
|
|||||||||||||||||||
(CEO)
|
66,667
|
133,333
|
—
|
15.71
|
(2)
|
5/23/17
|
100,000
|
(5)
|
475,000
|
|||||||||||||||||||
200,000
|
—
|
6.77
|
6/18/18
|
|||||||||||||||||||||||||
1,500,000
|
—
|
4.65
|
12/18/18
|
|||||||||||||||||||||||||
Stephen
E. Hare.................
|
50,000
|
25,000
|
—
|
15.88
|
(2)
|
6/07/16
|
8,000
|
(4)
|
38,000
|
|||||||||||||||||||
(CFO)
|
11,667
|
23,333
|
—
|
15.71
|
(2)
|
5/23/17
|
12,000
|
(5)
|
57,000
|
|||||||||||||||||||
35,000
|
—
|
6.77
|
6/18/18
|
|||||||||||||||||||||||||
500,000
|
—
|
4.65
|
12/18/18
|
|||||||||||||||||||||||||
Thomas
A. Garrett............
|
203,328
|
—
|
3.9097
|
(2)
|
7/25/15
|
10,000
|
(4)
|
47,500
|
||||||||||||||||||||
(President
and
|
334,331
|
—
|
6.9864
|
(2)
|
7/25/15
|
15,000
|
(5)
|
71,250
|
||||||||||||||||||||
CEO
– ARG)
|
66,666
|
33,334
|
—
|
16.09
|
(2)
|
4/28/16
|
||||||||||||||||||||||
16,667
|
33,333
|
—
|
15.71
|
(2)
|
5/23/17
|
|||||||||||||||||||||||
50,000
|
—
|
6.77
|
6/18/18
|
|||||||||||||||||||||||||
600,000
|
—
|
4.65
|
12/18/18
|
|||||||||||||||||||||||||
Sharron
L. Barton..............
|
20,266
|
10,134
|
—
|
16.09
|
(2)
|
4/28/16
|
3,333
|
(4)
|
15,832
|
|||||||||||||||||||
(SVP
and Chief
|
5,000
|
10,000
|
—
|
15.71
|
(2)
|
5/23/17
|
5,000
|
(5)
|
23,750
|
|||||||||||||||||||
Admin.
Officer)
|
15,000
|
—
|
6.77
|
6/18/18
|
||||||||||||||||||||||||
250,000
|
—
|
4.65
|
12/18/18
|
|||||||||||||||||||||||||
Nils
H. Okeson..................
|
28,334
|
14,166
|
—
|
16.09
|
(2)
|
4/28/16
|
6,666
|
(4)
|
31,664
|
|||||||||||||||||||
(SVP,
GC and
|
8,333
|
16,667
|
—
|
15.71
|
(2)
|
5/23/17
|
10,000
|
(5)
|
47,500
|
|||||||||||||||||||
Secretary)
|
25,000
|
—
|
6.77
|
6/18/18
|
||||||||||||||||||||||||
250,000
|
—
|
4.65
|
12/18/18
|
(1)
|
All
such options have vested.
|
(2)
|
Reflects
a $0.13 reduction in the exercise price per share of each stock option
outstanding at the time of the special dividend of shares of common stock
of Deerfield Capital Corp. paid to the Company’s stockholders in April
2008 (the “DFR share dividend”). The reduction was effected in
accordance with the Company’s equity participation plans, which provide
for such price adjustments upon occurrence of extraordinary events such as
the DFR share dividend.
|
(3)
|
On
March 26, 2007, the Company granted a total of 100,000 shares of
restricted common stock to Mr. Smith pursuant to the terms of his
employment agreement. Such restricted shares have both time vesting
targets (66,667 shares) and performance vesting targets (33,333 shares).
During 2007, 33,333 of the time-vesting shares vested on the first
anniversary of the date of commencement of Mr. Smith’s employment. During
2008, (i) an additional 16,667 of the time-vesting shares vested on the
second anniversary of the date of commencement of his employment, (ii)
8,333 of the performance-vesting shares vested upon the Performance
Committee’s determination that certain performance targets had been met,
and (iii) 8,333 unvested performance-vesting shares were forfeited as a
result of elimination of a “catch-up” vesting feature in the 2007
grant.
|
(4)
|
On
May 23, 2007, the Company granted certain officers and key employees,
other than Mr. Smith, a total of 159,300 shares of restricted common stock
under the 2002 Plan. These shares vest ratably over three years, subject
to continued employment through each of the anniversary dates. The price
of the Company’s common stock granted to the named executive officers on
the grant date was $15.84 and the resulting grant-date fair value is being
recognized as compensation expense ratably over the vesting
periods.
|
(5)
|
On
June 18, 2008, the Company granted certain officers and key employees a
total of 265,350 shares of restricted common stock under the 2002 Plan.
These shares vest ratably over three years, subject to continued
employment through each of the anniversary dates. The price of the
Company’s common stock granted to Mr. Smith on the grant date was $6.76
and the price
|
|
of
the Company’s common stock granted to the other named executive officers
on the grant date was $6.77. The resulting grant-date fair values are
being recognized as compensation expense ratably over the vesting
periods.
|
Option
Awards
|
Stock
Awards
|
|||||||||||||||
Name
|
Number
of
Shares
Acquired
on
Exercise
(#)
|
Value
Realized
on
Exercise
($)
|
Number
of
Shares
Acquired
on
Vesting
(#)
|
Value
Realized
on
Vesting
($)(1)
|
||||||||||||
Roland
C. Smith
|
—
|
—
|
25,000
|
175,583
|
||||||||||||
(CEO)
|
||||||||||||||||
Stephen
E. Hare
|
—
|
—
|
4,000
|
27,480
|
||||||||||||
(CFO)
|
||||||||||||||||
Thomas
A. Garrett
|
—
|
—
|
5,000
|
34,350
|
||||||||||||
(President
and CEO - ARG)
|
||||||||||||||||
Sharron
L. Barton
|
—
|
—
|
1,667
|
11,452
|
||||||||||||
(SVP
and Chief Admin. Officer)
|
||||||||||||||||
Nils
H. Okeson
|
—
|
—
|
3,334
|
22,905
|
||||||||||||
(SVP,
GC and Secretary)
|
(1)
|
Based
on the closing price of the shares on the vesting
date.
|
Name
|
Fees
Earned
or
Paid in
Cash
($)
|
Stock
Awards
($)
|
Option
Awards
($)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
Change
in
Pension
Value
and
Nonqualified
Deferred
Compensation
Earnings
($)
|
All
Other
Compensation
($)
|
Total
($)
|
||||||||||||||
Nelson
Peltz............................................
|
—
|
12,465
|
(1)
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
17,845
|
||||||||||||
Peter
W. May.........................................
|
—
|
12,465
|
(1)
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
17,8452
|
||||||||||||
Hugh
L. Carey........................................
|
54,000
|
—
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
59,380
|
|||||||||||||
Clive
Chajet.............................................
|
66,000
|
—
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
71,380
|
|||||||||||||
Edward
P. Garden...................................
|
—
|
9,470
|
(4)
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
14,850
|
||||||||||||
Janet
Hill..................................................
|
12,000
|
18,391
|
(5)(6)
|
—
|
—
|
—
|
30,391
|
||||||||||||||
Joseph
A. Levato...................................
|
88,500
|
—
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
93,380
|
|||||||||||||
J.
Randolph Lewis..................................
|
13,500
|
18,391
|
(5)(6)
|
—
|
—
|
—
|
31,891
|
||||||||||||||
David
E. Schwab II................................
|
58,507
|
26,851
|
(7)
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
63,887
|
||||||||||||
Raymond
S. Troubh..............................
|
69,000
|
—
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
74,380
|
|||||||||||||
Jack
G. Wasserman...............................
|
87,000
|
—
|
5,380
|
(2)(3)
|
—
|
—
|
—
|
92,380
|
(1)
|
Represents
the expense recorded by the Company in 2008 with respect to 3,183 shares
of Class A Common Stock, in the aggregate, issued to each of Messrs. Peltz
and May in lieu of quarterly retainers and meeting attendance
fees.
|
(2)
|
Represents
the expense recorded by the Company in 2008 with respect to the issuance
to such director of options to acquire 4,000 shares of Class A Common
Stock and 8,000 shares of Class B Common Stock upon such director’s
reelection as a director at the Company’s 2008 Annual Meeting of
Stockholders (annual grants under the Company’s previous non-management
director compensation program). The grant date fair value of the options
issued to each of the directors in September 2008 to acquire (i) 4,000
shares of Class A Common Stock was $7,640 and (ii) 8,000 shares of Class B
Common Stock, was $17,520.
|
(3)
|
At
December 28, 2008, each of Messrs. Peltz, May and Garden held options to
acquire 12,000 shares of Class A Common Stock; each of Messrs. Carey,
Chajet, Levato, Schwab and Troubh held options to acquire a total of
117,000 shares of Class A Common Stock; and Mr. Wasserman held options to
acquire a total of 105,000 shares of Class A Common
Stock.
|
(4)
|
Represents
the expense recorded by the Company in 2008 with respect to 2,462 shares
of Class A Common Stock, in the aggregate, issued to Mr. Garden in lieu of
quarterly retainers and meeting attendance
fees.
|
(5)
|
Represents
the expense recorded by the Company in 2008 with respect to the issuance
to such director of options to acquire 45,000 shares of Class A Common
Stock upon such director’s appointment as a director upon the Company’s
merger with Wendy’s (initial grant under the Company’s previous
non-management director compensation program). The grant date fair value
of the options issued to each of the directors in September 2008 to
acquire 45,000 shares of Class A Common Stock was
$85,950.
|
(6)
|
At
December 28, 2008, Ms. Hill and Mr. Lewis each held options to acquire
89,854 shares of Class A Common
Stock.
|
(7)
|
Represents
the expense recorded by the Company in 2008 with respect to 4,422 shares
of Class A common stock issued, in the aggregate, to Mr. Schwab in lieu of
his annual retainer.
|
Plan
Category
|
Number
of Securities to be
Issued
Upon Exercise of
Outstanding
Options,
Warrants
and Rights
|
Weighted-
Average
Exercise
Price
of
Outstanding
Options,
Warrants
and
Rights
|
Number
of
Shares
Remaining
Available
for
Future
Issuance
Under
Equity
Compensation
Plans
(Excluding
Securities
Reflected
in
Column
(a))
|
|||||||
(a)
|
(b)
|
(c)
|
||||||||
Equity
compensation plans approved by security holders(1)
|
200,443
Package Options
|
(2)
|
$
|
23.54
|
4,337,759
|
(3)
|
||||
7,850,182
Class A Options
|
$
|
9.66
|
||||||||
Equity
compensation plans not approved by security holders(4)
|
9,600
Package Options
|
(2)
|
$
|
23.35
|
15,165,124
|
(3)
|
||||
18,242,307
Class A Options
|
(5)
|
$
|
6.72
|
|||||||
Total
|
210,043
Package Options
|
(2)
|
$
|
23.54
|
19,502,883
|
(3)
|
||||
26,092,489
Class A Options
|
$
|
7.60
|
(1)
|
1998
and 2002 Equity Participation
Plans.
|
(2)
|
Each
Package Option is exercisable for three shares of Class A Common
Stock.
|
(3)
|
Includes
securities issuable to directors as fees in lieu of
cash.
|
(4)
|
1997
Equity Participation Plan and Wendy’s legacy equity
plans
|
(5)
|
In
addition to options granted pursuant to our equity participation plans, in
connection with the acquisition of RTM in July 2005 the Company issued
774,066 options to acquire shares of Class B Common Stock to employees of
RTM (who became employees of ARG) to replace then existing options that
they held to purchase shares of RTM (the “Replacement Options”). In
connection with the Wendy’s merger, these Replacement Options were
adjusted so as to become exercisable for shares of Class A Common Stock
instead of Class B Common Stock. These Replacement Options have a weighted
average exercise price of $8.34.
|
Plan
|
Number
of Options to Acquire Class A Common Stock Outstanding
|
Number
of Restricted Shares of Class A Common Stock Outstanding
|
Date
on which Awards may be Granted Expires
|
Wendy’s
2007 Plan
|
15,382,481
|
43,393
|
April
25, 2017
|
Wendy’s
2003 Plan
|
617,167
|
None
|
No
end date stated
|
Wendy’s
1990 Plan
|
766,282
|
Not
applicable
|
No
end date stated
|
Wendy’s
WeShare Plan
|
912,025
|
Not
applicable
|
No
end date stated
|
|
·
|
The
Company entered into a two-year transition services agreement (the
“Services Agreement”) with Trian Partners beginning June 30, 2007 pursuant
to which Trian Partners provides the Company with a range of professional
and strategic services. Under the Services Agreement, the Company paid
Trian Partners $3,000,000 per quarter for the first year of services and
is paying $1,750,000 per quarter for the second year of services. The
Company incurred a total of $9,500,000 of such service fees for
2008. In addition, effective as of December 28, 2007, the Company and
Trian Partners entered into an amendment to the Services Agreement
providing for the payment to Trian Partners in 2008 of additional fees of
$2,750,000, for services rendered during
2007.
|
|
·
|
In
December 2005, the Company invested $75,000,000 in an account (the
“Equities Account”) which is managed by Trian Partners and generally
co-invests on a parallel basis with a series of equity investment funds
managed by Trian Partners or its affiliates. Through June 29, 2007, Trian
Partners had agreed not to charge the Company any management fees with
respect to the Equities Account. In April 2007, in connection with the
Corporate Restructuring, the Company entered into an agreement under which
Trian Partners will continue to manage the Equities Account until at least
December 31, 2010. Effective January 1, 2008, the Company began to pay
management and incentive fees to Trian Partners in an amount customary for
unaffiliated third party investors with similarly sized
investments. The Company incurred a total of $1,882,359 of such fees
for 2008.
|
|
·
|
In
July 2007 and July 2008, the Company entered into agreements under which
Trian Partners is subleasing (the “Subleases”) office space on two of the
floors of the Company’s former New York headquarters. Under the terms of
the Subleases, Trian Partners is paying the Company approximately $113,000
and $153,000, respectively, per month which includes an amount equal to
the rent the Company pays plus a fixed amount reflecting a portion of the
increase in the then fair market value of the Company’s leasehold interest
as well as amounts for property taxes and the other costs related to the
use of the space. Either Trian Partners or the Company may terminate the
Subleases upon sixty days notice. The Company recognized $1,633,000 from
Trian Partners under the Subleases for
2008.
|
|
·
|
In
August 2007, the Company entered into time share agreements whereby
Messrs. Peltz, May and Garden and Trian Partners may use the Company’s
corporate aircraft in exchange for payment of certain incremental flight
and related costs of such aircraft. Such reimbursements for 2008 amounted
to $3,205,000. As of December 28, 2008, the Company was owed $247,000 and
$108,000 by Messrs. Peltz, May and Garden and Trian Partners,
respectively, which amounts were received in 2009. Other costs, such as
pilot and aviation employee salaries, hangar costs, depreciation,
maintenance, the costs of deadhead flights (empty pick-up or return
flights) and insurance on the aircraft are not included in such
reimbursement obligations.
|
|
|
|
(1)
within the two-year period immediately prior to the first public
announcement of the proposal of the business combination
or
|
|
(2)
in the transaction in which it became an interested stockholder, and is in
cash or in the same form of consideration as the interested stockholder
paid to acquire the largest number of voting shares previously acquired by
it.
|
1
|
Part
I of the 1999 Executive Bonus Plan, which provided for “Formula Bonus
Awards,” is no longer available since the only two executives eligible for
such awards are no longer employed by the Company. Although
this proposal refers to approval of the “Performance Goal Awards” portion
of the 1999 Executive Bonus Plan, there are no other operative portions of
the plan providing for awards of Formula Bonus
Awards.
|
|
(1)
|
earnings
per share;
|
|
(2)
|
market
share;
|
|
(3)
|
margins
(limited to gross margin, Adjusted EBITDA (as defined below) margin, and
Adjusted EBITDA (as defined below but excluding clause (1) of such
definition) margin);
|
|
(4)
|
productivity
improvement;
|
|
(5)
|
costs
or expenses;
|
|
(6)
|
successful
completion of acquisitions, dispositions, recapitalizations, financings or
refinancings;
|
|
(7)
|
total
return on investment portfolio;
|
|
(8)
|
pre-tax
net realized capital gains;
|
|
(9)
|
stock
price;
|
|
(10)
|
net
investment income;
|
|
(11)
|
consolidated
net income, plus (without duplication and only to the extent such amount
was deducted in calculating such consolidated net income) interest
expense, income taxes, depreciation expense and amortization expense;
and
|
|
(12)
|
aggregate
consolidated net income for the applicable fiscal year determined in
accordance with United States generally accepted accounting principles as
in effect from time to time (“GAAP”), applied on a basis consistent with
past practice, modified as follows (as so modified “Modified
EBITDA”):
|
(1)
|
depreciation
and amortization expenses;
|
(2)
|
any
amounts accrued pursuant to management bonus plans including, but not
limited to, the 1999 Executive Bonus Plan, and related employer payroll
taxes for the applicable period;
|
(3)
|
any
discretionary or matching contributions to the Company’s 401(k) Plan and
other deferred compensation plans for the applicable
period;
|
(4)
|
all
items of gain, loss or expense determined to be extraordinary or unusual
in nature or infrequent in occurrence or related to the disposal of a
segment of a business or related to a change in accounting principles, all
as determined in accordance with standards established by Opinion No. 30
of the Accounting Principles Board (“APB Opinion
No. 30”);
|
(5)
|
all
items of gain, loss or expense related to restructuring charges of
subsidiaries whose operations are not included in operating income for the
applicable period;
|
(6)
|
all
items of gain, loss or expense related to discontinued operations that do
not qualify as a segment of a business as defined under APB Opinion No.
30;
|
(7)
|
any
profit or loss attributable to the business operations of any entity
acquired by the Company or any consolidated subsidiary during the
applicable period;
|
(8)
|
the
reduction in carrying value of long-lived assets, in accordance with
Financial Accounting Standards Board (“FASB”) Pronouncement No. 121;
and
|
(9)
|
all
items of expense related to equity-based compensation determined in
accordance with the standards established by Opinion No. 25 of the
Accounting Principles Board or FASB Pronouncement No.
123.
|
|
|
By: |
|
President
|
WENDY'S/ARBY'S GROUP,
INC.
1155 PERIMETER CENTER
WEST
ATLANTA, GA
30338
|
VOTE
BY INTERNET - www.proxyvote.com
Use
the Internet to transmit your voting instructions and for electronic
delivery
of
information up until 11:59 P.M. Eastern Time the day before the cut-off
date or meeting date. Have your proxy card in
hand when you access the web site and follow the
instructions to obtain your records and to
create an electronic voting instruction form.
ELECTRONIC
DELIVERY OF FUTURE PROXY MATERIALS
If
you would like to reduce the costs incurred by our company in mailing
proxy
materials,
you can consent to receiving all future proxy
statements, proxy cards
and annual reports electronically
via e-mail or the Internet. To sign
up for
electronic delivery,
please follow the instructions above to vote using the
Internet and, when prompted, indicate that you
agree to receive or access proxy materials
electronically in future years.
VOTE
BY PHONE - 1-800-690-6903
Use
any touch-tone telephone to
transmit your voting instructions up
until
11:59 P.M.
Eastern T ime the day
before the cut-off date or
meeting date.
Have
your proxy card in hand when you call and then follow the
instructions.
VOTE
BY MAIL
Mark,
sign and date your proxy card and return it in the
postage-paid envelope we have provided or return it
to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood,
NY 11717.
|
WENDY’S/ARBY’S
GROUP, INC.
|
||||||||||
THIS
PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
|
||||||||||
The
Board of Directors recommends a vote “FOR” the election of the nominees
listed and “FOR” each proposal
|
For
All
|
Withhold
All
|
For
All
Except
|
To
withhold authority to vote for any individual nominee(s), mark “For All
Except” and write the number(s) of the nominee(s) on the line
below.
|
||||||
1.
To elect twelve (12) directors to hold office as specified in the
Company’s Proxy Statement
|
0
|
0
|
0
|
____________________________________________________________________________
|
||||||
Nominees:
01) Nelson
Peltz 07)
Joseph L. Levato
02) Peter
W.
May 08) J.
Randolph Lewis
03) Hugh
L.
Carey 09) David
E. Schwab, II
04) Clive
Chajet
10) Roland C. Smith
05) Edward
P. Garden 11) Raymond S. Troubh
06) Janet
Hill 12) Jack
G. Wasserman
|
||||||||||
For
|
Against
|
Abstain
|
For
|
Against
|
Abstain
|
|||||
2.
To adopt an amendment and restatement of the
Company's Certificate of Incorporation (the
Certificate of Incorporation) to refer to Class A Common Stock
as Common Stock and make other
conforming changes.
|
0
|
0
|
0
|
6. To
adopt an amendment and restatement of the Certificate of Incorporation to
repeal Article VI thereof, which imposes super-majority stockholder
approval requirements for certain business combination transactions
between the Company and an interested stockholder.
|
0
|
0
|
0
|
|||
3.
To adopt an amendment and restatement of the
Certificate of Incorporation to provide that, in
the absence of the Chairman of the Board, the
alternate presiding chairman at a meeting of the
Company's stockholders would be, in order, the Vice Chairman,
the Chief Executive Officer or a person designated by a
majority of the Board of Directors.
|
0
|
0
|
0
|
7.
To re-approve the Performance Goal Bonus Awards portion of the Company's
1999 Executive Bonus Plan.
|
0
|
0
|
0
|
|||
4.
To adopt an amendment and restatement of the Certificate of
Incorporation to change the advance notice procedures for stockholder
proposals and director nominations
|
0
|
0
|
0
|
8.
To ratify the appointment of Deloitte & Touche LLP as the
Company's independent registered public accountants for
2009.
|
0
|
0
|
0
|
|||
5.
To adopt an amendment and restatement of the Certificate of
Incorporation to provide that directors may
be removed only by the affirmative vote of the
holders of two-thirds of the voting power of the Company's capital
stock.
|
0
|
0
|
0
|
9.
To transact such other business as may properly come before the meeting or
any adjournment or postponement thereof.
|
0
|
0
|
0
|
|||
If
you have included comments or a chance in address on the account, please
check this box. Please note that changes to the registered
name(s) on the account may not be submitted via this
method.
|
0
|
|||||||||
Please
indicate if you plan to attend this meeting
|
0
Yes
|
0
No
|
|
|||||||
Please
sign exactly as your name(s) appear(s) hereon. When signing as
attorney, executor, administrator, or
other fiduciary, please give full title as such. Joint owners should each
sign personally. All holders must sign. If a corporation or
partnership, please sign in full corporate or
partnership name, by
authorized officer
|
||||||||||
__________________________________________
|
__________________________________________________
|
|||||||||
Signature [PLEASE
SIGN ON LINE]
|
Date
|
Signature [PLEASE
SIGN ON LINE]
|
Date
|
Annual
Meeting Admission Ticket
(and meeting information)
2009 Annual Meeting of
Stockholders
11:00 a.m (EDT), Thursday, May 28,
2009
W New York
541 Lexington Avenue
New York, NY
10022
|
||
1155 Perimeter Center West
Atlanta, GA 30338
|
Please present this admission ticket to gain
admittance to the meeting. This
ticket admits only the stockholder listed
on the reverse side and is
not transferable.
|
WENDY'S/ARBY'S
GROUP,
INC.
1155
Perimeter Center West
Atlanta,
GA 30338
THE
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS FOR
THE
ANNUAL MEETING ON MAY 28, 2009.
The
undersigned hereby appoints Roland C. Smith and Stephen E. Hare, and each
of them, with the full power of substitution, as proxies, to vote all the
shares of stock of Wendy's/Arby's Group, Inc. (the "Company") that the
undersigned is entitled to vote at the 2009 Annual Meeting of Stockholders
of the Company to be held at the W New York, 541 Lexington Avenue, New
York, NY 10022 on May 28, 2009, and any adjournment thereof, upon the
matters set forth herein, and in their discretion upon such other matters
as may properly come before the meeting.
This
Proxy, if signed and returned, will be voted as specified. If this card is signed and returned
without
specifications,
the
shares
shall
be
voted
FOR
the
election
of
the
nominees
listed on the
reverse side for the Board of Directors and FOR each proposal. A
majority of said proxies, or any substitutes, who shall be present and act
at the meeting (or if only one shall be present and act, then that one)
shall have all the powers of said proxies
hereunder.
IMPORTANT
- This Proxy must be signed and dated on the reverse side.
If
you vote by telephone or the Internet, please DO NOT mail back this proxy
card.
Proxies
submitted by telephone or the Internet must be received by 11:59 p.m.
(EDT) on
May
27, 2009.
THANK YOU FOR VOTING
|
||
|
||
Address Changes/Comments:
________________________________________________________________________________________________
________________________________________________________________________________________________________________________
|
||
(If
you noted any Address
Changes/Comments above, please mark
corresponding box on the reverse
side.)
|