WEN 10-K Annual Report Jan. 1, 2023 | Alphaminr
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WEN 10-K Fiscal year ended Jan. 1, 2023

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WENDY'S CO
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TABLE OF CONTENTS
Part IItem 1. BusinessItem 1A. Risk FactorsItem 1B. Unresolved Staff CommentsItem 2. PropertiesItem 3. Legal ProceedingsItem 4. Mine Safety DisclosuresPart IIItem 5. Market For Registrant S Common Equity, Related Stockholder Matters and Issuer Purchases Of Equity SecuritiesItem 6. [reserved]Item 7. Management S Discussion and Analysis Of Financial Condition and Results Of OperationsItem 7A. Quantitative and Qualitative Disclosures About Market RiskItem 8. Financial Statements and Supplementary DataItem 9. Changes in and Disagreements with Accountants on Accounting and Financial DisclosureItem 9A. Controls and ProceduresItem 9B. Other InformationItem 9C. Disclosure Regarding Foreign Jurisdictions That Prevent InspectionsPart IIIPart IVItem 15. Exhibits and Financial Statement SchedulesItem 16. Form 10-k Summary

Exhibits

2.1 Agreement and Plan of Merger, dated as of April 23, 2008, by and among Triarc Companies, Inc., Green Merger Sub, Inc. and Wendys International, Inc., incorporated herein by reference to Exhibit 2.1 to Triarcs Current Report on Form 8-K dated April 29, 2008 (SEC file no. 001-02207). 2.2 Side Letter Agreement, dated August 14, 2008, by and among Triarc Companies, Inc., Green Merger Sub, Inc. and Wendys International, Inc., incorporated herein by reference to Exhibit 2.3 to Triarcs Registration Statement on Form S-4, Amendment No. 3, filed on August 15, 2008 (Reg. no. and SEC file no. 333-151336). 3.1 Amended and Restated Certificate of Incorporation of The Wendys Company, as filed with the Secretary of State of the State of Delaware on May 26, 2016, incorporated herein by reference to Exhibit 3.1 of The Wendys Company Current Report on Form 8-K filed on May 27, 2016 (SEC file no. 001-02207). 3.2 By-Laws of The Wendys Company (as amended and restated through November 4, 2021), incorporated herein by reference to Exhibit 3.1 of The Wendys Company Current Report on Form 8-K filed on November 8, 2021 (SEC file no. 001-02207). 4.1 Base Indenture, dated as of June 1, 2015, by and between Wendys Funding, LLC, as Master Issuer, and Citibank, N.A., as Trustee and Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendys Company Current Report on Form 8-K filed on June 2, 2015 (SEC file no. 001-02207). 4.2 Series 2018-1 Supplement to Base Indenture, dated as of January 17, 2018, by and between Wendys Funding, LLC, as Master Issuer of the Series 2018-1 fixed rate senior secured notes, Class A-2, and Series 2018-1 variable funding senior notes, Class A-1, and Citibank, N.A., as Trustee and Series 2018-1 Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendys Company Current Report on Form 8-K filed on January 17, 2018 (SEC file no. 001-02207). 4.3 Series2019-1Supplement to Base Indenture, dated as of June26, 2019, by and between Wendys Funding, LLC, as Master Issuer of the Series2019-1fixed rate senior secured notes,ClassA-2,and Series2019-1variable funding senior notes,ClassA-1,and Citibank, N.A., as Trustee and Series2019-1Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendys Company Current Report on Form 8-K filed on June 26, 2019 (SEC file no. 001-02207). 4.4 Series 2021-1 Supplement to Base Indenture, dated as of June 22, 2021, by and between Wendys Funding, LLC, as Master Issuer of the Series 2021-1 fixed rate senior secured notes, Class A-2, and Series 2021-1 variable funding senior notes, Class A-1, and Citibank, N.A., as Trustee and Series 2021-1 Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendys Company Current Report on Form 8-K filed on June 23, 2021 (SEC file no. 001-02207). 4.5 Series 2022-1 Supplement to Amended and Restated Base Indenture, dated as of April 1, 2022, by and between Wendys Funding, LLC, as Master Issuer of the Series 2022-1 fixed rate senior secured notes, Class A-2 and Citibank, N.A., as Trustee and Series 2022-1 Securities Intermediary, incorporated herein by reference to Exhibit 4.2 of The Wendys Company Current Report on Form 8-K filed on April 4, 2022 (SEC file no. 001-02207). 4.6 Amended and Restated Base Indenture, dated as of April 1, 2022, by and between Wendys Funding, LLC, as Master Issuer, and Citibank, N.A., as Trustee and Securities Intermediary, incorporated herein by reference to Exhibit 4.1 of The Wendys Company Current Report on Form 8-K filed on April 4, 2022 (SEC file no. 001-02207). 4.7 Description of Securities of the Registrant, incorporated herein by reference to Exhibit 4.13 of The Wendys Company Form 10-K for the fiscal year ended January 2, 2022 (SEC file no. 001-02207). 10.1 Wendys/Arbys Group, Inc. 2010 Omnibus Award Plan, incorporated herein by reference to Annex A of the Wendys/Arbys Group, Inc. Definitive 2010 Proxy Statement (SEC file no. 001-02207).** 10.2 First Amendment to Wendys/Arbys Group, Inc. 2010 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.2 to The Wendys Company Current Report on Form 8-K filed on June 2, 2015 (SEC file no. 001-02207).** 10.3 Second Amendment to The Wendys Company 2010 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.3 to The Wendys Company Current Report on Form 8-K filed on June 2, 2015 (SEC file no. 001-02207).** 10.4 Form of Nonqualified Stock Option Award Agreement under The Wendys Company 2010 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Form 10-Q for the quarter ended October 1, 2017 (SEC file no. 001-02207).** 10.5 Form of Long-Term Performance Unit Award Agreement for 2020 under The Wendys Company 2010 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Form 10-Q for the quarter ended March 29, 2020 (SEC file no. 001-02207).** 10.6 Form of Restricted Stock Unit Award Agreement under The Wendys Company 2010 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.9 of The Wendys Company Form 10-K for the fiscal year ended December 29, 2019 (SEC file no. 001-02207).** 10.7 The Wendys Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no. 001-02207).** 10.8 Form of Nonqualified Stock Option Award Agreement under The Wendys Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.2 of The Wendys Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no. 001-02207).** 10.9 Form of Restricted Stock Unit Award Agreement under The Wendys Company 2020 Omnibus Award Plan (Cliff Vesting), incorporated herein by reference to Exhibit 10.3 of The Wendys Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no. 001-02207).** 10.10 Form of Restricted Stock Unit Award Agreement under The Wendys 2020 Omnibus Award Plan (Ratable Vesting), incorporated herein by reference to Exhibit 10.4 of The Wendys Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no. 001-02207).** 10.11 Form of Non-Employee Director Restricted Stock Award Agreement under The Wendys Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.5 of The Wendys Company Current Report on Form 8-K filed on May 28, 2020 (SEC file no. 001-02207).** 10.12 Form of Long-Term Performance Unit Award Agreement for 2021 under The Wendys Company 2020 Omnibus Award Plan, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Form 10-Q for the quarter ended April 4, 2021 (SEC file no. 001-02207).** 10.13 Form of Long-Term Performance Unit Award Agreement for 2022 under The Wendys Company 2020 Omnibus Award Plan,incorporated herein by reference to Exhibit 10.3of The Wendys Company Form 10-Q for the quarter ended April3, 2022(SEC file no. 001-02207).** 10.14 Wendys International, LLC Executive Severance Pay Policy, effective as of December 14, 2015, incorporated herein by reference to Exhibit 10.41 to The Wendys Company Form 10-K for the fiscal year ended January 3, 2016 (SEC file no. 001-02207).** 10.15 Wendys International, LLC Deferred Compensation Plan, effective as of January 1, 2017, incorporated herein by reference to Exhibit 10.34 to The Wendys Company Form 10-K for the fiscal year ended January 1, 2017 (SEC file no. 001-02207).** 10.16 Wendys/Arbys Group, Inc. 2009 Directors Deferred Compensation Plan, effective as of May 28, 2009, incorporated herein by reference to Exhibit 10.6 to Wendys/Arbys Groups Form 10-Q for the quarter ended June 28, 2009 (SEC file no. 001-02207).** 10.17 Amendment No. 1 to the Wendys/Arbys Group, Inc. 2009 Directors Deferred Compensation Plan, effective as of May 27, 2010, incorporated herein by reference to Exhibit 10.9 to Wendys/Arbys Groups Form 10-Q for the quarter ended July4, 2010 (SEC file no. 001-02207).** 10.18 Amendment No. 2 to the Wendys/Arbys Group, Inc. 2009 Directors Deferred Compensation Plan, incorporated herein by reference to Exhibit 10.6 of The Wendys Company Form 10-Q for the quarter ended June 30, 2013 (SEC file no. 001-02207).** 10.19 Amendment No. 3 to the Wendys/Arbys Group, Inc. 2009 Directors Deferred Compensation Plan, incorporated herein by reference to Exhibit 10.7 to The Wendys Company Form 10-Q for the quarter ended June 28, 2020 (SEC file no. 001-02207).** 10.20 2018-1 Class A-2 Note Purchase Agreement, dated as of December 6, 2017, by and among The Wendys Company, the subsidiaries of The Wendys Company party thereto and Guggenheim Securities, LLC and Citigroup Global Markets Inc., each acting on behalf of itself and as the representatives of the initial purchasers, incorporated herein by reference by Exhibit 10.1 of The Wendys Company Current Report on Form 8-K filed on December 6, 2017 (SEC file no. 001-02207). 10.21 2019-1 Class A-2 Note Purchase Agreement, dated as of June 13, 2019, by and among The Wendys Company, the subsidiaries of The Wendys Company party thereto and Guggenheim Securities, LLC and Citigroup Global Markets Inc., each acting on behalf of itself and as the representatives of the initial purchasers, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Current Report on Form 8-K filed on June 13, 2019 (SEC file no. 001-02207). 10.22 2021-1 Class A-2 Note Purchase Agreement, dated as of June 15, 2021, by and among The Wendys Company, the subsidiaries of The Wendys Company party thereto and Guggenheim Securities, LLC and Jefferies LLC, each acting on behalf of itself and as the representatives of the initial purchasers, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Current Report on Form 8-K filed on June 16, 2021 (SEC file no. 001-02207). 10.23 Class A-1 Note Purchase Agreement, dated as of June 22, 2021, by and among Wendys Funding, LLC, as Master Issuer, each of Quality Is Our Recipe, LLC, Wendys Properties, LLC and Wendys SPV Guarantor, LLC, as Guarantors, Wendys International, LLC, as Manager, the conduit investors party thereto, the financial institutions party thereto, certain funding agents, and Coperatieve Rabobank, U.A., New York Branch, as L/C Provider, Swingline Lender and Administrative Agent, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Current Report on Form 8-K filed on June 23, 2021 (SEC file no. 001-02207). 10.24 2022-1 Class A-2 Note Purchase Agreement, dated as of March 23, 2022, by and among The Wendys Company, the subsidiaries of The Wendys Company party thereto and Barclays Capital Inc. and Jefferies LLC, each acting on behalf of itself and as a representative of the initial purchasers, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Current Report on Form 8-K filed on March 24 , 2022 (SEC file no. 001-02207). 10.25 Guarantee and Collateral Agreement, dated as of June 1, 2015, by and among Quality Is Our Recipe, LLC, Wendys Properties, LLC, Wendys SPV Guarantor, LLC, each as a Guarantor, in favor of Citibank, N.A., as Trustee, incorporated herein by reference to Exhibit 10.2 to The Wendys Company Current Report on Form 8-K filed on June 2, 2015 (SEC file no. 001-02207). 10.26 Management Agreement, dated as of June 1, 2015, by and among Wendys Funding, LLC, Quality Is Our Recipe, LLC, Wendys Properties, LLC, Wendys SPV Guarantor, LLC, Wendys International, LLC, as Manager, and Citibank, N.A., as Trustee, incorporated herein by reference to Exhibit 10.3 to The Wendys Company Current Report on Form 8-K filed on June 2, 2015 (SEC file no. 001-02207). 10.27 Management Agreement Amendment, dated as of January 17, 2018, by and among Wendys Funding, LLC, as Master Issuer, certain subsidiaries of Wendys Funding, LLC party thereto, Wendys International, LLC, as Manager, and Citibank, N.A., as Trustee, incorporated herein by reference to Exhibit 10.2 of The Wendys Company Current Report on Form 8-K filed on January 17, 2018 (SEC file no. 001-02207). 10.28 Second Amendment to the Management Agreement, dated as of June 26, 2019, by and among Wendys Funding, LLC, as Master Issuer, certain subsidiaries of Wendys Funding, LLC party thereto, Wendys International, LLC, as Manager, and Citibank, N.A., as Trustee, incorporated herein by reference to Exhibit 10.2 of The Wendys Company Current Report on Form 8-K filed on June 26, 2019 (SEC file no. 001-02207). 10.29 Third Amendment to the Management Agreement, dated as of January 3, 2021, by and among Wendys Funding, LLC, as Master Issuer, certain subsidiaries of Wendys Funding, LLC party thereto, Wendys International, LLC, as Manager, and Citibank, N.A., as Trustee, incorporated herein by reference to Exhibit 10.31 of The Wendy's Company Form 10-K for the fiscal year ended January 3, 2021 (SEC file no. 001-02207). 10.30 Fourth Amendment to the Management Agreement, dated as of June 22, 2021, by and among Wendys Funding, LLC, as Master Issuer, certain subsidiaries of Wendys Funding, LLC party thereto, Wendys International, LLC, as Manager, and Citibank, N.A., as Trustee, incorporated herein by reference to Exhibit 10.2 of The Wendys Company Current Report on Form 8-K filed on June 23, 2021 (SEC file no. 001-02207). 10.31 Fifth Amendment to the Management Agreement, dated as of April 1, 2022, by and among Wendys Funding, LLC, as Master Issuer, certain subsidiaries of Wendys Funding, LLC party thereto, Wendys International, LLC, as Manager, and Citibank, N.A., as Trustee, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Current Report on Form 8-K filed on April 4, 2022 (SEC file no. 001-02207). 10.35 Letter Agreement dated as of December 28, 2007, between Triarc Companies, Inc. and Nelson Peltz., incorporated herein by reference to Exhibit 10.2 to Triarcs Current Report on Form 8-K filed on January 4, 2008 (SEC file no. 001-02207).** 10.37 Letter Agreement dated as of December 28, 2007, between Triarc Companies, Inc. and Peter W. May, incorporated herein by reference to Exhibit 10.3 to Triarcs Current Report on Form 8-K filed on January 4, 2008 (SEC file no. 001-02207).** 10.38 Registration Rights Agreement dated as of April 23, 1993, between DWG Corporation and DWG Acquisition Group, L.P., incorporated herein by reference to Exhibit 10.36 to Wendys/Arbys Groups Annual Report on Form 10-K for the fiscal year ended December 28, 2008 (SEC file no. 001-02207). 10.39 Agreement dated December 1, 2011 by and between The Wendys Company and Trian Partners, L.P., Trian Partners Master Fund, L.P., Trian Partners Parallel Fund I, L.P., Trian Partners GP, L.P., Trian Fund Management, L.P., the general partner of which is Trian Fund Management GP, LLC, Nelson Peltz, Peter W. May and Edward P. Garden, who, together with Nelson Peltz and Peter W. May, are the controlling members of Trian GP, Trian Partners Strategic Investment Fund, L.P. and Trian Partners Strategic Investment Fund-A, L.P., incorporated herein by reference to Exhibit 10.1 to The Wendys Company Current Report on Form 8-K filed on December 2, 2011 (SEC file no. 001-02207). 10.40 Employment Letter between The Wendys Company and Todd Penegor dated as of May 8, 2013, incorporated herein by reference to Exhibit 10.9 of The Wendys Company Form 10-Q for the quarter ended June 30, 2013 (SEC file no. 001-02207).** 10.41 Employment Letter between The Wendys Company and Liliana Esposito dated as of May 8, 2014, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Form 10-Q for the quarter ended June 29, 2014 (SEC file no. 001-02207).** 10.42 Employment Letter between The Wendys Company and Kurt Kane dated as of March 27, 2015, incorporated herein by reference to Exhibit 10.8 of The Wendys Company Form 10-Q for the quarter ended June 28, 2015 (SEC file no. 001-02207).** 10.43 Employment Letter between The Wendys Company and Gunther Plosch dated as of April 7, 2016, incorporated herein by reference to Exhibit 10.2 of The Wendys Company Form 10-Q for the quarter ended April 3, 2016 (SEC file no. 001-02207).** 10.44 Employment Letter between The Wendys Company and E. J. Wunsch dated as of September 6, 2016, incorporated herein by reference to Exhibit 10.1 of The Wendys Company Form 10-Q for the quarter ended October 2, 2016 (SEC file no. 001-02207).** 10.45 Employment Letter between The Wendys Company and J. Kevin Vasconi dated as of September 28, 2020, incorporated herein by reference to Exhibit 10.45 of The Wendy's Company Form 10-K for the fiscal year ended January 3, 2021 (SEC file no. 001-02207).** 10.46 Amendment to Employment Letter between The Wendys Company and J. Kevin Vasconi dated as of February 28, 2023.* ** 10.47 Non-Compete and Confidentiality Agreement between The Wendys Company and Abigail Pringle dated as of October 27, 2020, incorporated herein by reference to Exhibit 10.1 to The Wendys Company Form 10-Q for the quarter ended September 27, 2020 (SEC file no. 001-02207).** 10.48 Non-Compete and Confidentiality Agreement between The Wendys Company and M. Coley OBrien dated as of October 27, 2020, incorporated herein by reference to Exhibit 10.2 to The Wendys Company Form 10-Q for the quarter ended September 27, 2020 (SEC file no. 001-02207).** 10.49 Non-Compete and Confidentiality Agreement between The Wendys Company and Leigh Burnside dated as of October 27, 2020, incorporated herein by reference to Exhibit 10.3 to The Wendys Company Form 10-Q for the quarter ended September 27, 2020 (SEC file no. 001-02207).** 10.50 Form of Indemnification Agreement for officers and employees of Wendys International, Inc. and its subsidiaries, incorporated herein by reference to Exhibit 10 of the Wendys International, Inc. Current Report on Form 8-K filed on July 12, 2005 (SEC file no. 001-08116).** 10.51 Form of First Amendment to Indemnification Agreement between Wendys International, Inc. and its directors and certain officers and employees, incorporated herein by reference to Exhibit 10(b) of the Wendys International, Inc. Form 10-Q for the quarter ended June 29, 2008 (SEC file no. 001-08116).** 10.52 Form of Indemnification Agreement between Arbys Restaurant Group, Inc. and certain directors, officers and employees thereof, incorporated herein by reference to Exhibit 10.40 to Triarcs Annual Report on Form 10-K for the fiscal year ended December 30, 2007 (SEC file no. 001-02207).** 10.53 Form of Indemnification Agreement, between Wendys/Arbys Group, Inc. and certain officers, directors, and employees thereof, incorporated herein by reference to Exhibit 10.47 to Wendys/Arbys Groups Annual Report on Form 10-K for the fiscal year ended December 28, 2008 (SEC file no. 001-02207).** 10.54 Form of Indemnification Agreement of The Wendys Company, incorporated herein by reference to Exhibit 10.5 of The Wendys Company and Wendys Restaurants, LLC Form 10-Q for the quarter ended October 2, 2011 (SEC file nos. 001-02207 and 333-161613, respectively).** 21.1 Subsidiaries of the Registrant.* 23.1 Consent of Deloitte & Touche LLP.* 31.1 Certification of the Chief Executive Officer of The Wendys Company, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.* 31.2 Certification of the Chief Financial Officer of The Wendys Company, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.* 32.1 Certifications of the Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.*