SEC Comment Letter 0000000000-23-000960 to Walt Disney Co (DIS) (CIK 0001744489) (DIS)
Walt Disney Co (DIS) (CIK 0001744489)
Date: Jan. 30, 2023 · CIK: 0001744489 · Accession: 0000000000-23-000960
AI Filing Summary & Sentiment
Referenced dates: January 27, 2023
Letter
United States securities and exchange commission logo January 30, 2023 Daniel Marx General Counsel Trian Fund Management, L.P. 280 Park Avenue 41st Floor New York, New York 10017 Re:The Walt Disney Company PRRN14As (2) filed January 27, 2023 Filed by Trian Fund Management, L.P. et al. SEC File No. 0-21392 Dear Daniel Marx: We have reviewed your filings and have the following comments. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure. Please respond to these comments by providing the requested information or advise us as soon as possible when you will respond. If you do not believe our comments apply to your facts and circumstances, please tell us why in your response. After reviewing your response to these comments, we may have additional comments. Page number references below are to the second revised preliminary proxy statement filed on January 27, 2023. Defined terms have the same meaning as in that proxy statement. PRRN14A filed January 27, 2023 Trian Alternate Nominee, page 4 1.We note the disclosure in the revised proxy statements and in your response to our prior comment 2 in your response letter dated January 27, 2023. Please note that in our view, Rule 14a-9 requires you to file and disseminate revised proxy materials promptly if Trian makes a determination to substitute Matthew Peltz for Nelson Peltz. In our view, failure to promptly disclose an actual decision to make a substitution under the circumstances present here would represent a material omission.
FirstName LastNameDaniel Marx Comapany NameTrian Fund Management, L.P. January 30, 2023 Page 2 FirstName LastName Daniel Marx Trian Fund Management, L.P. January 30, 2023 Page 2
Proxy Information, page 24 2.We note the following disclosure which appears in several places in the second proxy statement filed on January 27, 2023:
- "If you sign, do not mark and return a BLUE voting instruction form to Broadridge, Trian believes that Broadridge will not vote your shares so as to create the effect of a 'WITHHOLD' vote on all of the nominees."
- "However, if you vote for more than eleven nominees on a BLUE voting instruction form returned directly to Broadridge, Trian believes that Broadridge may invalidate all your votes on Proposal 1 and your votes on Proposal 1 may not be counted."
The proxy statement should be clear on the treatment of over voted and signed but unmarked voting instruction forms. Please revise to remove the qualifying language above, after discussing with all necessary third parties to ensure accuracy. General 3.We note the various references to Rule 14a-4(c)(1), which would appear to be inappropriate, given that 14a-4(c)(1) relates to the use of discretionary authority by registrants. Please revise, or advise. We remind you that the filing persons are responsible for the accuracy and adequacy of their disclosures, notwithstanding any review, comments, action or absence of action by the staff. Please direct any questions to Christina Chalk at (202) 551-3263. Sincerely, Division of Corporation Finance Office of Mergers & Acquisitions
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United States securities and exchange commission logo
January 30, 2023
Daniel Marx
General Counsel
Trian Fund Management, L.P.
280 Park Avenue
41st Floor
New York, New York 10017
Re:The Walt Disney Company
PRRN14As (2) filed January 27, 2023
Filed by Trian Fund Management, L.P. et al.
SEC File No. 0-21392
Dear Daniel Marx:
We have reviewed your filings and have the following comments. In some of our
comments, we may ask you to provide us with information so we may better understand your
disclosure.
Please respond to these comments by providing the requested information or advise us as
soon as possible when you will respond. If you do not believe our comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have additional comments.
Page number references below are to the second revised preliminary proxy statement filed on
January 27, 2023. Defined terms have the same meaning as in that proxy statement.
PRRN14A filed January 27, 2023
Trian Alternate Nominee, page 4
1.We note the disclosure in the revised proxy statements and in your response to our prior
comment 2 in your response letter dated January 27, 2023. Please note that in our view,
Rule 14a-9 requires you to file and disseminate revised proxy materials promptly if Trian
makes a determination to substitute Matthew Peltz for Nelson Peltz. In our view, failure
to promptly disclose an actual decision to make a substitution under the circumstances
present here would represent a material omission.
FirstName LastNameDaniel Marx
Comapany NameTrian Fund Management, L.P.
January 30, 2023 Page 2
FirstName LastName
Daniel Marx
Trian Fund Management, L.P.
January 30, 2023
Page 2
Proxy Information, page 24
2.We note the following disclosure which appears in several places in the second proxy
statement filed on January 27, 2023:
- "If you sign, do not mark and return a BLUE voting instruction form to
Broadridge, Trian believes that Broadridge will not vote your shares so as to create
the effect of a 'WITHHOLD' vote on all of the nominees."
- "However, if you vote for more than eleven nominees on a BLUE voting instruction
form returned directly to Broadridge, Trian believes that Broadridge may invalidate
all your votes on Proposal 1 and your votes on Proposal 1 may not be counted."
The proxy statement should be clear on the treatment of over voted and signed but
unmarked voting instruction forms. Please revise to remove the qualifying language
above, after discussing with all necessary third parties to ensure accuracy.
General
3.We note the various references to Rule 14a-4(c)(1), which would appear to be
inappropriate, given that 14a-4(c)(1) relates to the use of discretionary authority by
registrants. Please revise, or advise.
We remind you that the filing persons are responsible for the accuracy and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of action by the staff.
Please direct any questions to Christina Chalk at (202) 551-3263.
Sincerely,
Division of Corporation Finance
Office of Mergers & Acquisitions