UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
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Securities Exchange Act of 1934
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| Item 8.01 | Other Events. |
The Wendy’s Company (the “Company”) is filing this Current Report on Form 8-K to provide an update on the proposed settlement of the previously-disclosed shareholder derivative action arising out of the criminal cyberattacks that targeted the point of sale systems of certain Wendy’s franchisees in 2015 and 2016 (the “Derivative Lawsuit”).
On February 14, 2019, the Company entered into a Stipulation and Agreement of Settlement (the “Settlement”) to resolve the Derivative Lawsuit. On January 24, 2020, the United States District Court for the Southern District of Ohio (the “Court”) issued an order granting preliminary approval of the Settlement, which consists of certain corporate governance undertakings and the payment of plaintiffs’ attorneys’ fees and expenses up to $950,000. Pursuant to an order issued by the Court on June 3, 2021, a hearing to determine whether the Court should issue a final order approving the Settlement has been scheduled for September 2, 2021. If the Settlement is approved by the Court, the Derivative Lawsuit will be dismissed with prejudice, and the Company expects the monetary terms of the Settlement to be covered by applicable insurance.
Attached as Exhibit 99.1 to this Current Report on Form 8-K is the Summary Notice of Proposed Settlement (the “Summary Notice”), describing, among other things, the background of the claims made in the Derivative Lawsuit, the Settlement and the manner and deadline for stockholders of the Company to make objections, if any. The Summary Notice should be read in conjunction with the Settlement, which has been filed with the Court. Additional notice and the Settlement are also available on the Company’s Investor Relations website at www.irwendys.com.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit No. |
Description | |
| 99.1 | Summary Notice of Proposed Settlement. | |
| 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document). | |
2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| THE WENDY’S COMPANY | ||||||
| Date: June 28, 2021 | By: | /s/ Michael G. Berner | ||||
| Michael G. Berner | ||||||
| Vice President – Corporate & Securities Counsel and Chief Compliance Officer, and Assistant Secretary | ||||||
3
Exhibit 99.1
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
|
IN RE THE WENDY’S COMPANY |
) | CASE NO: 1:16-cv-01153-TSB | ||
| SHAREHOLDER DERIVATIVE | ) | JUDGE TIMOTHY S. BLACK | ||
| ACTION | ) | |||
|
|
) |
| TO: | ALL CURRENT RECORD HOLDERS AND BENEFICIAL OWNERS OF COMMON STOCK OF THE WENDY’S COMPANY (“WENDY’S”) AS OF FEBRUARY 14, 2019 |
PLEASE READ THIS SUMMARY NOTICE CAREFULLY AND IN ITS ENTIRETY AS YOUR RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THE LITIGATION.
YOU ARE HEREBY NOTIFIED that the above-captioned consolidated shareholder derivative action (the “Action”), is being settled on the terms set forth in the Stipulation and Agreement of Settlement dated February 14, 2019 (the “Stipulation”). The Stipulation additionally settles and releases any claims that have been brought or may or could arise out of a Demand on Wendy’s Board arising out of the Data Breach at certain franchisee-owned Wendy’s restaurants. This Summary Notice is provided by order of the United States District Court for the Southern District of Ohio (the “Court”).
The Action alleges claims against each of the Individual Defendants1 for breach of fiduciary duty. Pursuant to the terms of the Settlement set forth in the Stipulation, Wendy’s agrees to adopt and/or maintain certain Measures within thirty (30) days of issuance of the Order and Final Judgment. The Measures shall be maintained for at least three (3) years following the issuance of the Order and Final Judgment, subject to certain terms and conditions set forth in the Stipulation. The Defendants also agreed to cause an award of attorneys’ fees and expenses to be paid to Shareholders’ Counsel in the total amount of $950,000 (the “Fee Award”), subject to approval of the Court. Certain Shareholders in the Action and who made the Demand may petition the Court for an incentive award of up to $2,500 each (the “Incentive Awards”), which, subject to Court approval, shall be paid from the Fee Award. Defendants have denied and continue to deny each and all of the claims and allegations of wrongdoing asserted in the Action. This summary should be read in conjunction with, and is qualified in its entirety by reference to, the text of the Stipulation.2
1 Unless otherwise defined, all capitalized terms used herein shall have the meanings set forth in the Stipulation.
2 A copy of the Stipulation has been filed with the Court and may also be viewed on the Investor Relations portion of the Wendy’s website.
On Thursday, September 2, 2021, 2021, at 10:00 a.m., a hearing (the “Settlement Hearing”) will be conducted virtually by videoconference and teleconference by the United States District Court for the Southern District of Ohio. Counsel of record, and timely objectors, will receive a video conference invite at the email registered in CM/ECF. Non-participants may join the hearing via teleconference by calling: 1 (517) 317-3122; Access Code: 854-573-445. The teleconference dial-in information will be published in the Investor Relations section of the Company’s website www.irwendys.com, at least seven (7) days before the hearing. The Court may, in its discretion, change the date and/or time of the hearing without further notice to you. If you intend to attend the hearing, please consult the above website for any change in date, time, or format of the hearing. This Settlement Hearing is to determine whether the proposed Settlement on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate and should be approved; hear and rule on any objections thereto; determine whether the Order and Final Judgment should be entered; determine the amount of fees and expenses that should be awarded to Shareholders’ Counsel; and determine the amount of any Incentive Award to be paid to Shareholders.3
This Summary Notice provides a condensed overview of certain provisions of the Stipulation and the full Notice of Proposed Settlement (the “Notice”). It is not a complete statement of the events of the Action or the Demand, or the terms set forth in the Stipulation. For additional information about the claims asserted in the Action, the allegations raised in the Demand, and the terms of the proposed Settlement, you may inspect the Stipulation and other papers filed in the Action at the U.S. District Court Clerk’s office at any time during regular business hours. In addition, copies of the Stipulation and the Notice are available on the Investor Relations section of the Company’s website. Inquiries regarding the proposed Settlement also may be made to counsel for the Plaintiff Graham: Nina M. Varindani, Faruqi & Faruqi, LLP, 685 3rd Avenue, 26th Floor, New York, New York 10017, (212) 983-9330; Richard S. Wayne, Strauss Troy, 150 E. Fourth Street, Cincinnati, OH 45202-4018, (513) 621-2120.
You may enter an appearance before the Court, at your own expense, individually or through counsel of your choice. If you want to object at the Settlement Hearing, you must be a Current Wendy’s Stockholder and you must first comply with the procedures for objecting, which are set forth in the Stipulation and its accompanying exhibits, including the Notice. Any objection to any aspect of the Settlement must be filed with the Clerk of the Court no later than August 12, 2021 [21 days before the Settlement Hearing], in accordance with the procedures set forth in the Stipulation and the Notice. Any objection may not exceed twenty-five (25) pages in length. Any Current Wendy’s Stockholder who fails to object in accordance with such procedures will be bound by the Order and Final Judgment of the Court granting final approval to the Settlement and the releases of claims therein, and shall be deemed to have waived the right to object (including the right to appeal) and forever shall be barred, in this proceeding or in any other proceeding, from raising such objection.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK’S OFFICE REGARDING THIS SUMMARY NOTICE.
3 Under the terms of the Stipulation, the maximum amount of aggregate fees and expenses that will be sought by Shareholders’ Counsel is $950,000.
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Document and Entity Information |
Jun. 28, 2021 |
|---|---|
| Cover [Abstract] | |
| Entity Registrant Name | Wendy's Co |
| Amendment Flag | false |
| Entity Central Index Key | 0000030697 |
| Document Type | 8-K |
| Document Period End Date | Jun. 28, 2021 |
| Entity Incorporation State Country Code | DE |
| Entity File Number | 1-2207 |
| Entity Tax Identification Number | 38-0471180 |
| Entity Address, Address Line One | One Dave Thomas Boulevard |
| Entity Address, City or Town | Dublin |
| Entity Address, State or Province | OH |
| Entity Address, Postal Zip Code | 43017 |
| City Area Code | (614) |
| Local Phone Number | 764-3100 |
| Written Communications | false |
| Soliciting Material | false |
| Pre Commencement Tender Offer | false |
| Pre Commencement Issuer Tender Offer | false |
| Security 12b Title | Common Stock, $.10 par value |
| Trading Symbol | WEN |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |