September 6, 2024
Kirk Tanner
President, Chief Executive Officer and Director
The Wendy's Company
One Dave Thomas Blvd.
Dublin, OH 43017
Re: The Wendy's Company
Definitive Proxy Statement on Schedule 14A
Filed April 4, 2024
File No. 001-02207
Dear Kirk Tanner:
We have limited our review of your most recent definitive proxy statement
to those issues
we have addressed in our comment(s).
Please respond to this letter by providing the requested information
and/or confirming that
you will revise your future proxy disclosures in accordance with the topics
discussed below. If
you do not believe a comment applies to your facts and circumstances, please
tell us why in your
response.
After reviewing your response to this letter, we may have additional
comments.
Definitive Proxy Statement on Schedule 14A
Pay Versus Performance, page 80
1. We note that you have included Adjusted EBITDA, a non-GAAP measure, as
your
Company-Selected Measure pursuant to Item 402(v)(2)(vi) of Regulation
S-K and that
you discuss the measure in footnote (8) to your pay versus performance
table. Please
include within your proxy statement a full description of how the number
is calculated
from your audited financial statements rather than referring to
information in a different
filing. If the disclosure appears in a different part of the definitive
proxy statement, you
may satisfy the disclosure requirement by a cross-reference thereto;
however, it is not
clear whether Adjusted EBITDA is defined solely by reference to Annex A,
since
footnote (8) references your earnings release for the applicable
year.
2. The Company-Selected Measure should, in your assessment, "represent the
most
important financial performance measure (that is not otherwise required
to be disclosed in
the table) used by [you] to link compensation actually paid to [your]
named executive
September 6, 2024
Page 2
officers, for the most recently completed fiscal year, to company
performance. See Item
402(v)(2)(vi) of Regulation S-K. Your tabular and related presentation
should show the
quantified performance for the same measure selected as your
Company-Selected
Measure in each covered fiscal year, using not only the same name, but
also the same
calculation method. Quantified performance derived using different
adjustments from
those used in the most recent fiscal year may not satisfy this
requirement. Please discuss
whether Adjusted EBITDA as calculated for 2020, 2021 and 2022
represents the same
measure as Adjusted EBITDA as calculated in 2023. We note in this
regard your
reference to adjustments contained in different earnings releases and in
tables with
potentially different titles. While Company-Selected Measure disclosure
is not subject to
Regulation G or Item 10(e) of Regulation S-K, you must provide
disclosure as to how the
Company-Selected Measure is calculated from your audited financial
statements. A
reference to non-specific adjustments determined each year likely does
not satisfy this
requirement.
3. Refer to the reconciliation tables in footnotes (2) and (4) to your pay
versus performance
table. It is unclear what amounts are reflected in the rows titled
Year over Year Average
Change in Fair Value of Equity Awards Granted in Prior Years that Vested
in the Year.
Specifically, equity awards granted in prior years that vest during the
relevant year should
be valued as the difference between the fair value as of the end of the
prior fiscal year and
the vesting date, not the year over year change in value. Please
ensure that your table
headings reflect the amounts used to calculate compensation actually
paid. Refer to Item
402(v)(2)(iii)(C)(1)(iv) of Regulation S-K.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please contact Christopher Dunham at 202-551-3783 or Amanda Ravitz at
202-551-3412
with any questions.
Sincerely,
Division of
Corporation Finance
Disclosure Review
Program