exv10w1



 








EXHIBIT 10.1




Form of



MASTER SEPARATION AGREEMENT



by and between




WENDY’S INTERNATIONAL, INC.




and




TIM HORTONS INC.




Dated ___, 2006





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Construction
	 	 	8	 
	1.3 Conflicts With Other Separation Agreements
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 2 TIM HORTONS ASSETS
	 	 	8	 
	2.1 Tim Hortons Assets
	 	 	8	 
	2.2 Non-Transferred Assets
	 	 	8	 
	2.3 No Representations or Warranties
	 	 	9	 
	2.4 Shared Contracts
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 3 THE OFFERING
	 	 	10	 
	3.1 Proceeds of the Offering
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 4 MATTERS RELATING TO THE SPIN-OFF
	 	 	10	 
	4.1 Spin-Off
	 	 	10	 
	4.2 Actions Prior to the Spin-Off
	 	 	11	 
	4.3 Stockholder-Related Matters Regarding the Spin-Off
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 5 FINANCIAL REPORTING AND DISCLOSURE COVENANTS
	 	 	13	 
	5.1 Financial and Other Information
	 	 	13	 
	5.2 Other Covenants
	 	 	22	 
	5.3 Covenants Regarding the Incurrence of Indebtedness
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 6 ACCESS TO AND DISCLOSURE OF INFORMATION
	 	 	25	 
	6.1 Restrictions on Disclosure of Information
	 	 	25	 
	6.2 Legally Required Disclosure of Information
	 	 	26	 
	6.3 Access to Information
	 	 	26	 
	6.4 Record Retention
	 	 	27	 
	6.5 Production of Witnesses
	 	 	28	 
	6.6 Reimbursement
	 	 	28	 
	6.7 Other Agreements Regarding Access to Information
	 	 	28	 
	6.8 Acquisition of Tim Hortons by another Person
	 	 	28	 
	 
	 	 		 
	ARTICLE 7 ADDITIONAL COVENANTS
	 	 	29	 
	7.1 Further Assurances
	 	 	29	 
	7.2 Performance
	 	 	29	 
	7.3 Conduct of Tim Hortons Business between Effective Date and Spin-Off
	 	 	29	 
	7.4 Employment Matters
	 	 	30	 
	7.5 Compliance with Legal Policies
	 	 	30	 
	7.6
Covenants Regarding Combination Stores
	 	 	30	 
	7.7
Covenants Regarding Dual-Brand Franchisees
	 	 	31	 
	7.8 Wendy’s Guarantees
	 	 	32	 
	7.9 Original Corporate Records
	 	 	32	 






i









 






	 	 	 	 	 
	 
	 	 	 	 
	ARTICLE 8 INDEMNIFICATION
	 	 	32	 
	8.1 Indemnification by Tim Hortons
	 	 	32	 
	8.2 Indemnification by Wendy’s
	 	 	32	 
	8.3 Claim Procedure
	 	 	33	 
	8.4 Survival; Limitations
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 9 MISCELLANEOUS
	 	 	36	 
	9.1 Assignment
	 	 	36	 
	9.2 Entire Agreement
	 	 	36	 
	9.3 Future Litigation and Other Proceedings
	 	 	37	 
	9.4 Notices
	 	 	37	 
	9.5 Governing Law
	 	 	38	 
	9.6 Severability
	 	 	38	 
	9.7 Amendment
	 	 	39	 
	9.8 Counterparts
	 	 	39	 
	9.9 Authority
	 	 	39	 
	9.10 Jurisdiction
	 	 	39	 
	9.11 Dispute Resolution
	 	 	39	 
	9.12 Binding Effect and Assignment
	 	 	42	 
	9.13 Expenses
	 	 	42	 
	9.14 Waiver
	 	 	42	 
	 
	 	 	 	 
	EXHIBIT A: SHARED CONTRACTS
	 	 	A-1	 







ii









 








MASTER SEPARATION AGREEMENT




     This Master Separation Agreement (this “Agreement”) is made and entered into as of
___, 2006 (the “Effective Date”), by and between Wendy’s International, Inc., an Ohio
corporation (“Wendy’s”), and Tim Hortons Inc., a Delaware corporation (“Tim Hortons”). Tim Hortons
and Wendy’s are sometimes referred to herein separately as a “Party” and together as the “Parties.”



RECITALS




     A. Wendy’s owns 100% of the issued and outstanding common stock of Tim Hortons.



     B. Contemporaneously with the execution and delivery of this Agreement, the Parties are
entering into the other Separation Agreements (defined below), and promptly following the execution
of the Separation Agreements, Tim Hortons shall consummate an initial public offering (the
“Offering”) of its common stock pursuant to a registration statement on Form S-1 under the
Securities Act of 1933.



     C. Immediately following consummation of the Offering, Wendy’s shall own common stock of Tim
Hortons evidencing at least 80.1% of the voting power of the common stock with respect to all
stockholder matters.



     D. Wendy’s and Tim Hortons desire to maintain the ability of Wendy’s (if so determined by the
Wendy’s board of directors) to distribute to holders of Wendy’s common stock the outstanding Tim
Hortons common stock then owned by Wendy’s (a “Spin-Off”) in a manner that qualifies as a
reorganization for U.S. federal income tax purposes and pursuant to which no gain or loss would be
recognized by Wendy’s or its U.S. resident stockholders (and, accordingly, that this Agreement is
intended to be, and is hereby adopted as, a plan of reorganization under Section 368 of the
Internal Revenue Code of 1986, as amended).



     E. The Parties intend in this Agreement and the other Separation Agreements to set forth the
principal arrangements between them regarding the Offering and their operations thereafter.



AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth below, and other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree as follows:



ARTICLE 1

DEFINITIONS




     1.1 Defined Terms. As used in this Agreement, the following terms shall have the following
meanings:



 









 





     “Action” means any suit, arbitration, inquiry, proceeding or investigation by or before any
court, governmental or other regulatory or administrative agency or commission or any arbitration
tribunal asserted by a Person.



     “Affiliate” of any specified Person means any other Person directly or indirectly
“controlling,” “controlled by” or “under common control with” (within the meaning of the Securities
Act), such specified Person; provided, however, that for purposes of the Separation
Agreements, except to the extent expressly provided otherwise, the determination of whether a
Person is an Affiliate of another Person shall be made assuming that no member of the Wendy’s Group
is an Affiliate of any member of the Tim Hortons Group and vice versa.



     “Agreement” is defined in the preamble to this Agreement.



     “Annual Financial Statements” is defined in Section 5.1(a)(v)(A).



     “Assets” means assets, properties and rights (including goodwill and rights arising under
Contracts), wherever located (including in the possession of vendors, other Persons or elsewhere),
whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not
recorded or reflected or required to be recorded or reflected on the books and records or financial
statements of any Person.



     “Business Day” means a day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York; Oakville, Ontario; or Dublin, Ohio are authorized or required by Law
to close.



     “Canadian Authorities” is defined in Section 4.1.



     “Canadian
Combo
Stores”
is defined in Section 7.6.



     “Claimed Amount” is defined in Section 8.3(a).



     “Claim Notice” is defined in Section 8.3(a).



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Combo
Stores”
is defined in Section 7.6.



     “Contract” means any contract, agreement, lease, license, sales order, purchase order,
instrument or other commitment that is binding on any Person or any part of its property under
applicable Law.



     “Controlling Party” is defined in Section 8.3(d)(ii).



     “Designated Purposes” means the purpose or purposes for which any Confidential Information or
Personal Information may be used by any Group member pursuant to this Agreement or any other
Separation Agreement and otherwise in accordance with any directions given by one Party to the
other Party in performance of services under the Shared Services Agreement.



     “Dispute” is defined in Section 9.11.



     “Distribution Agent” is defined in Section 4.3(a).



2









 





     “Dual
Brand Franchisees”
is defined in Section 7.7.



     “Effective Date” is defined in the preamble to this Agreement.



     “Exchange Act” means the Securities Exchange Act of 1934.



     “Existing Tim Hortons Business” means the businesses and operations conducted by the Tim
Hortons Group prior to the Effective Date, including as described in the Prospectus and any
Preliminary Prospectus.



     “Financial Statements” means the Annual Financial Statements and Quarterly Financial
Statements collectively.



     “GAAP” means United States generally accepted accounting principles, consistently applied.



     “Governmental Authority” means any United States federal, state or local or any foreign
government, supranational, governmental, regulatory or administrative authority, instrumentality,
agency or commission, political subdivision, self-regulatory organization or any court, tribunal or
judicial or arbitral body or other governmental authority.



     “Group” means either the Wendy’s Group or the Tim Hortons Group, as the context requires.



     “Indemnified Party” is defined in Section 8.3(a).



     “Indemnified Person” means, as applicable, a Tim Hortons Indemnified Person or a Wendy’s
Indemnified Person.



     “Indemnifying Party” is defined in Section 8.3(a).



     “Information” means information, whether or not patentable or copyrightable, in written, oral,
electronic or other tangible or intangible forms, stored in any medium, including studies, reports,
records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software,
marketing plans, customer names, communications by or to attorneys (including attorney-client
privileged communications), memoranda and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial, employee or business
information or data.



     “Non-Compete
Covenants”
is defined in Section 7.7.



     “Offering” is defined in the recitals to this Agreement.



     “IRS” means the United States Internal Revenue Service.



     “Law” means any law (statutory, common or otherwise), constitution, ordinance, code, rule,
regulation, executive order or other similar authority enacted, adopted, promulgated or applied by
any Governmental Authority, each as amended.



3









 





     “Liability” means any liability or obligation, whether known or unknown, asserted or
unasserted, absolute or contingent, matured or unmatured, conditional or unconditional, latent or
patent, accrued or unaccrued, liquidated or unliquidated or due or to become due.



     “Losses” means all damages, losses, Liabilities, payments, amounts paid in settlement,
obligations, fines, penalties, costs of burdens associated with performing injunctive relief and
other costs (including reasonable fees and expenses of outside attorneys, accountants and other
professional advisors, and of expert witnesses and other costs (excluding the allocable portion of
the relevant Person’s internal costs) of investigation, preparation and litigation in connection
with any action, appeal, petition, plea, charge, complaint, claim, suit, demand, litigation,
arbitration, mediation, hearing, inquiry, investigation or similar matter or proceeding) of any
kind or nature whatsoever, whether known or unknown, contingent or vested, or matured or unmatured.



     “Non-Controlling Party” is defined in Section 8.3(d)(ii).



     “Non-Transferred Asset” is defined in Section 2.2(a).



     “Owning Party” is defined in Section 6.2.



     “Person” means any individual or entity, including any partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization, government (including any
department or agency thereof).



     “Personal Information” means any information about an identifiable individual that is provided
to or obtained by any Group member on behalf of the other Party or any of its respective Group
members.



     “Possessor” is defined in Section 6.3.



     “Preliminary Prospectus” means any preliminary prospectus filed with the SEC pursuant to Rule
424(a) under the Securities Act and deemed to be part of the Registration Statement



     “Prospectus” means the final prospectus filed with the SEC pursuant to Rule 424(b) under the
Securities Act and deemed to be part of the Registration Statement.



     “Quarterly Financial Statements” is defined in Section 5.1(a)(iv)(A).



     “Record Date” means the close of business on the date to be determined by Wendy’s board of
directors as the record date for determining the stockholders of Wendy’s entitled to receive shares
of Tim Hortons Common Stock pursuant to a Spin-Off.



     “Registration Rights Agreement” means the Registration Rights Agreement dated as of the date
hereof between Wendy’s and Tim Hortons.



     “Registration Statement” means the registration statement on Form S-1 (SEC File No.
333-130035) as filed by Tim Hortons with the SEC in connection with the Offering, together with all
amendments and supplements thereto.



4









 





     “Regulation S-K” means Regulation S-K of the General Rules and Regulations promulgated by the
SEC pursuant to the Securities Act.



     “Regulation S-X” means Regulation S-X of the General Rules and Regulations promulgated by the
SEC pursuant to the Securities Act.



     “Representatives” means, with respect to any Person, any of such Person’s directors, officers,
members, managers and employees.



     “Requestor” is defined in Section 6.3.



     “Retention Period” is defined in Section 6.4.



     “SEC” means the United States Securities and Exchange Commission or any successor agency.



     “Separation Agreements” means this Agreement, the Tax Sharing Agreement, the Registration
Rights Agreement and the Shared Services Agreement.



     “Shared Contracts” means the contracts listed on Exhibit A.



     “Securities Act” means the Securities Act of 1933.



     “Shared Services Agreement” means the Shared Services Agreement dated as of the date hereof
between Wendy’s and Tim Hortons.



     “Spin-Off” is defined in the recitals to this Agreement.



     “Spin-Off Date” means the date, if any, on which a Spin-Off occurs or Wendy’s is otherwise no
longer required to consolidate the results of operations and financial position of Tim Hortons or
any other member of the Tim Hortons Group (determined in accordance with GAAP and consistent with
SEC reporting requirements).



     “Tax” and “Taxes” are defined in the Tax Sharing Agreement.



     “Tax Advisor” is defined in the Tax Sharing Agreement.



     “Tax Control” means the definition of “control” set forth in Section 368(c) of the Code.



     “Tax-Free Status” is defined in the Tax Sharing Agreement.



     “Tax Sharing Agreement” means the Tax Sharing Agreement dated as of the date hereof between
Wendy’s and Tim Hortons.



     “Third Party Claim” is defined in Section 8.3(d)(i).



     “Tim Hortons” is defined in the preamble to this Agreement.



5









 





     “Tim Hortons Assets” means any and all Assets that are used exclusively or held for use
exclusively in the Existing Tim Hortons Business (including the interest of the Tim Hortons Group
in Assets that are used or held for use jointly with the Wendy’s Business).



     “Tim Hortons Auditors” is defined in Section 5.1(b)(i).



     “Tim Hortons Business” means the businesses and operations conducted by the Tim Hortons Group
at the relevant time.



     “Tim Hortons Capital Stock” means all shares of Tim Hortons Common Stock and all options,
warrants and other rights to acquire Tim Hortons Common Stock.



     “Tim Hortons Common Stock” means the common stock, $0.001 per share, of Tim Hortons.



     “Tim Hortons Group” means Tim Hortons and each Person that Tim Hortons directly or indirectly
controls (within the meaning of the Securities Act).



     “Tim Hortons Indebtedness” means the aggregate principal amount of total liabilities (whether
long-term or short-term) for borrowed money (including guarantees and other contingent
indebtedness, as well as capitalized leases) of the Tim Hortons Group, as determined for purposes
of its Financial Statements prepared in accordance with GAAP.



     “Tim Hortons Indemnified Persons” means each member of the Tim Hortons Group and its
respective Representatives.



     “Tim Hortons Liabilities” means the following:




     (i) any and all Liabilities to the extent arising out of or relating to the Existing
Tim Hortons Business, the Tim Hortons Business or the Tim Hortons Assets, in each case
whether such Liabilities arise or accrue prior to, on or after the Effective Date (other
than Tax-related Liabilities to the extent specifically retained by Wendy’s under the Tax
Sharing Agreement);




     (ii) any and all Liabilities to the extent arising out of or relating to the operation
of any business conducted by any member of the Tim Hortons Group at any time after the
Effective Date;




     (iii) any and all Liabilities that are expressly listed, scheduled or otherwise clearly
described in any other Separation Agreement as Liabilities for which Tim Hortons or any
member of the Tim Hortons Group is to be responsible; and




     (iv) all obligations of the Tim Hortons Group under or pursuant to this Agreement, any
Separation Agreement or any other instrument entered into in connection herewith or
therewith.



     “Tim Hortons Public Documents” is defined in Section 5.1(a)(viii).



6









 





     “Tim Hortons Shared Contract” means any Contract included in the Tim Hortons Assets relating
in part to the Wendy’s Business.



     “Tim Hortons Transfer Agent” means the transfer agent and registrar for the Tim Hortons Common
Stock.



     “Tim Hortons Voting Stock” is defined in Section 5.2.



     “Tim Hortons Auditors” is defined in Section 5.1(b)(i).



     “Underwriters” means the managing underwriters for the Offering as described in the
Prospectus.



     “Underwriting Agreement” means the Underwriting Agreement between Wendy’s, Tim Hortons and the
Underwriters relating to the Offering.



     “Wendy’s” is defined in the preamble to this Agreement.



     “Wendy’s Annual Statements” is defined in Section 5.1(b)(ii).



     “Wendy’s Assets” means any and all Assets of the Wendy’s Group or Tim Hortons Group as of the
Effective Date other than the Tim Hortons Assets.



     “Wendy’s Auditors” is defined in Section 5.1(b)(ii).



     “Wendy’s Business” means the businesses or operations of the Wendy’s Group.



     “Wendy’s Common Shares” means the common shares, $0.10 stated value per share, of Wendy’s.



     “Wendy’s Disclosure Portions” means all material set forth in the Registration Statement, the
Prospectus and the final Preliminary Prospectus to the extent relating exclusively to (i) the
Wendy’s Group, (ii) the Wendy’s Business, (iii) Wendy’s intentions with respect to a Spin-Off, or
(iv) the terms of a Spin-Off, including the form, structure and terms of any transaction(s) and/or
offering(s) to effect the Spin-Off and the timing of and conditions to the consummation of the
Spin-Off.



     “Wendy’s Group” means Wendy’s and each Person that Wendy’s directly or indirectly controls
(within the meaning of the Securities Act), other than any member of the Tim Hortons Group.



     “Wendy’s Indemnified Persons” means each member of the Wendy’s Group and its respective
Representatives.



     “Wendy’s Liabilities” means the Liabilities of the Wendy’s Group (but excludes all Tim Hortons
Liabilities).



     “Wendy’s Public Filings” is defined in Section 5.1(a)(xii).



7









 





     “Wendy’s Auditors” is defined in Section 5.1(b)(ii).



     1.2 Construction. The Parties have participated jointly in the negotiation and drafting of
this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party because of the authorship of any provision of this
Agreement. Any reference to any federal, state, provincial, local or foreign law shall be deemed
also to refer to such law as amended and all rules and regulations promulgated thereunder, unless
the context requires otherwise. Any reference to any contract or agreement (including schedules,
exhibits and other attachments thereto), including this Agreement, shall be deemed also to refer to
such contract or agreement as amended, restated or otherwise modified, unless the context requires
otherwise. The words “include,” “includes” and “including” shall be deemed to be followed by
“without limitation.” Pronouns in masculine, feminine and neuter genders shall be construed to
include any other gender, and words in the singular form shall be construed to include the plural
and vice versa, unless the context requires otherwise. The words “this Agreement,” “herein,”
“hereof,” “hereby,” “hereunder” and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. Where this Agreement states that a
Party “will” or “shall” perform in some manner or otherwise act or omit to act, it means that such
Party is legally obligated to do so in accordance with this Agreement. The captions, titles and
headings included in this Agreement are for convenience only and do not affect this Agreement’s
construction or interpretation. Any reference to an Article, Section or Schedule in this Agreement
shall refer to an Article or Section of, or Schedule to, this Agreement, unless the context
otherwise requires. This Agreement is for the sole benefit of the Parties (and, solely for
purposes of Article 8, Wendy’s Indemnified Persons and Tim Hortons Indemnified Persons) and
does not, and is not intended to, confer any rights or remedies in favor of any Person (including
any employee or shareholder of Wendy’s or Tim Hortons) other than the Parties.



     1.3 Conflicts With Other Separation Agreements. To the extent any portion of this
Agreement conflicts with any other Separation Agreement, this Agreement shall control;
provided, however, that any specific provision in the Tax Sharing Agreement shall
control with respect to any Tax matters.



ARTICLE 2

TIM HORTONS ASSETS




     2.1 Tim Hortons Assets. Each Party intends that the Tim Hortons Assets be owned by the
members of the Tim Hortons Group and not the Wendy’s Group.



     2.2 Non-Transferred Assets.




     (a) If any Party discovers after the Effective Date that a member of the Wendy’s Group
has title to, or an interest in, a Tim Hortons Asset or a member of the Tim Hortons Group
has title to, or an interest in, a Wendy’s Asset (in either case, a “Non-Transferred
Asset”), each Party shall (and shall cause the applicable member(s) of its Group to)
cooperate and use commercially reasonable efforts to promptly transfer such title or
interest to the appropriate Party (or another member of its Group designated by it),



8









 






including obtaining any necessary consents or approvals or taking any other actions
necessary to effect such transfers.




     (b) If an attempted assignment of a Non-Transferred Asset would be ineffective or would
impair the rights of the Party entitled to such asset with respect to such Non-Transferred
Asset so that such Party (or its applicable Group Member) would not receive all such rights,
then the Parties shall use commercially reasonable efforts to provide to, or cause to be
provided to, such Party (or its applicable Group Member), to the extent permitted by Law,
rights related to such Non-Transferred Asset and take such other actions as may reasonably
be requested by such Party in order to place it, insofar as reasonably possible, in the same
position as if such Non-Transferred Asset had been transferred as contemplated hereby. In
connection therewith, (i) the Party with title to or an interest in such asset (or its
applicable Group Member) shall promptly pass along to the Party entitled to such asset (or
its applicable Group Member) when received all benefits derived with respect to any such
Non-Transferred Asset, and (ii) the Party entitled to such asset (or its applicable Group
Member) shall pay, perform and discharge on behalf of the other Party (or its applicable
Group Member) all of the obligations with respect to any such Non-Transferred Asset in a
timely manner and in accordance with the terms thereof. If and when such transfer may be
effected without impairing the rights of the Party entitled to such asset, the Parties shall
take appropriate steps to effect transfer of such Non-Transferred Asset.



     2.3 No Representations or Warranties. Each Party (on behalf of itself and each member of
its Group) acknowledges and agrees that, except as expressly set forth in this Agreement, (a) no
member of the other Group is making any representations or warranties in this Agreement, express or
implied, as to the condition, quality, merchantability or fitness of any asset, whether a
Non-Transferred Asset or otherwise, (b) any Non-Transferred Asset shall be transferred on an “as
is,” “where is” basis (and in the case of any real property, by means of a quitclaim or similar
form deed or conveyance), and (c) the applicable member of such Party’s Group shall bear the
economic and legal risks that any conveyance shall prove to be insufficient to vest in such Person
good and marketable title to any Non-Transferred Asset.



     2.4 Shared Contracts. At the written request of Tim Hortons, Wendy’s shall (and shall
cause other members of the Wendy’s Group to), to the extent permitted by the applicable Shared
Contract and applicable Law, make available to Tim Hortons or applicable members of the Tim Hortons
Group the benefits and rights under the Shared Contracts (except where the benefits or rights under
such Shared Contracts are specifically provided pursuant to a Separation Agreement) that are
substantially equivalent to the benefits and rights enjoyed by the Wendy’s Group under each Shared
Contract for which such request is made by Tim Hortons, to the extent such benefits relate to the
Tim Hortons Business; provided, however, that the applicable members of the Tim
Hortons Group shall assume and discharge (or promptly reimburse Wendy’s for) the obligations and
liabilities under the relevant Shared Contracts associated with the benefits and rights so made
available to them.



     The Parties’ rights and obligations pursuant to this Section 2.4 shall terminate upon
the earliest to occur of (i) the Spin-Off Date and (ii) with respect to any Shared Contract in



9









 







particular, such time that the arrangement pursuant to this Section 2.4 is no longer
permitted thereunder (including the expiration or termination of such Shared Contract).



ARTICLE 3

THE OFFERING




     3.1 Proceeds of the Offering. The Offering shall be a primary offering of Tim Hortons
Common Stock, and the net proceeds of the Offering shall be used as described in the Prospectus in
the section entitled “Use of Proceeds.”



ARTICLE 4

MATTERS RELATING TO THE SPIN-OFF




     4.1 Spin-Off.




     (a) Wendy’s has the right, but not the obligation, following the consummation of the
Offering, to effect a Spin-Off. Wendy’s shall (in its sole and absolute discretion)
determine whether to effect the Spin-Off and, if so, the date of its consummation and all of
its terms, including (a) the form, structure and terms of any transaction(s) and/or
offering(s) to effect the Spin-Off; (b) the timing of and conditions to the consummation of
the Spin-Off; (c) the selection of any investment banker(s) and manager(s); and (d) the
selection of any financial printer, solicitation and/or exchange agent and financial, legal,
accounting and other advisors. In addition, Wendy’s may, at any time and from time to time
until the completion of the Spin-Off, modify or change the terms of the Spin-Off, including
by accelerating or delaying the timing of the consummation of all or part of the Spin-Off.
At the request of Wendy’s, Tim Hortons shall cooperate with Wendy’s in all respects to
accomplish the Spin-Off and shall, at the direction of Wendy’s, promptly take any and all
actions necessary or desirable to effect a Spin-Off, including, to the extent necessary, the
registration under the Securities Act and the Exchange Act of the Tim Hortons Common Stock
distributed by Wendy’s on an appropriate registration form or forms, the filing of all
required documents with Canadian securities regulatory authorities (the “Canadian
Authorities”), including a prospectus prepared in accordance with Canadian legislation and
an application for relief from the Canadian Authorities in respect of prospectus or
registration requirements otherwise applicable, in any case to ensure that the Tim Hortons
Common Stock are not subject to resale restrictions under
Canadian securities legislation (except those restrictions which may be applicable to
control block holders). Nothing in this Agreement shall prohibit Tim Hortons from engaging
(at its own expense) its own financial, legal, accounting and other advisors in connection
with the Spin-Off.




     (b) Without the prior written consent of Tim Hortons, Wendy’s will not effect the
Spin-Off unless Wendy’s has obtained an IRS private letter ruling or an opinion of counsel
(from any one of Davis Polk & Wardwell, Debevoise & Plimpton, LLP, Sullivan & Cromwell LLP,
Skadden, Arps, Slate, Meagher & Flom LLP, Simpson Thacher & Bartlett LLP, or such other firm
agreed to by Wendy’s and Tim Hortons), in either case reasonably acceptable to the board of
directors of Wendy’s, to the effect that (i) Wendy’s will recognize no gain or loss (and no
amount will be included in its income) upon the



10









 






Spin-Off under Section 355 of the Code, and
(ii) no gain or loss will be recognized by (and no amount will otherwise be included in the
income of) the U.S. shareholders of Wendy’s upon their receipt of Tim Hortons Common Stock
pursuant to the Spin-Off.



     4.2 Actions Prior to the Spin-Off. In connection with the Spin-Off, the Parties shall take
the applicable actions set forth in this Section 4.2.




     (a) Wendy’s and Tim Hortons shall prepare and mail, prior to the Spin-Off Date, to the
holders of Wendy’s Common Shares, such information concerning Tim Hortons and the Spin-Off
and such other matters as Wendy’s reasonably determines and as may be required by Law. The
Parties shall prepare, and Tim Hortons shall, to the extent required by applicable Law, file
with the SEC and Canadian Authorities any such documentation that Wendy’s determines is
necessary or desirable to effect the Spin-Off, and each Party shall use commercially
reasonable efforts to obtain all necessary approvals from the SEC and Canadian Authorities
with respect thereto as soon as practicable.




     (b) Tim Hortons shall use commercially reasonable efforts to take all such action as
may be necessary or desirable under applicable state securities and blue sky Laws of the
United States (and any comparable Laws under any foreign jurisdictions) in connection with
the Spin-Off.




     (c) Tim Hortons shall prepare, file and use commercially reasonable efforts to seek to
make effective, an application for listing of the Tim Hortons Common Stock to be distributed
in the Spin-Off on the New York Stock Exchange and Toronto Stock Exchange, subject in each
case to official notice of issuance.




     (d) Tim Hortons shall use commercially reasonable efforts to take all actions (or
refrain from any actions) reasonably requested by Wendy’s in connection with the Spin-Off.



     4.3 Stockholder-Related Matters Regarding the Spin-Off. With respect to the Spin-Off and
subject to Section 4.3(d):




     (a) Distribution Agent. On or prior to the Spin-Off Date, Wendy’s shall
deliver to a distribution agent to be appointed by Wendy’s (the “Distribution Agent”) for
the benefit of holders of record of Wendy’s Common Shares on the Record Date, documentation
reasonably required by the Tim Hortons Transfer Agent, representing all of the outstanding
shares of Tim Hortons Common Stock then owned by Wendy’s, and Wendy’s shall instruct the
Distribution Agent to deliver to the Tim Hortons Transfer Agent true, correct and complete
copies of the share and transfer records reflecting the record holders of Wendy’s Common
Shares entitled to receive shares of Tim Hortons Common Stock in connection with the
Spin-Off. Wendy’s shall cause its transfer agent to instruct the Distribution Agent to
distribute on the Spin-Off Date or as soon as reasonably practicable thereafter the
appropriate number of shares of Tim Hortons Common Stock to each such record holder or
designated transferee(s) of such record holder. Wendy’s shall (and shall instruct the
Distribution Agent to) cooperate with



11









 






Tim
Hortons and the Tim Hortons Transfer Agent, and
Tim Hortons shall (and shall instruct the Tim Hortons Transfer Agent to) cooperate with
Wendy’s and the Distribution Agent, in connection with all aspects of the Spin-Off and all
other matters relating to the issuance and delivery of certificates representing, or other
evidence of ownership of, the shares of Tim Hortons Common Stock to be distributed to the
holders of Wendy’s Common Shares in connection with the Spin-Off.




     (b) Number of Spin-Off Shares. Each record holder of Wendy’s Common Shares on
the Record Date (or such record holder’s designated transferee(s)) shall be entitled to
receive in the Spin-Off a number of shares of Tim Hortons Common Shares equal to the number
of Wendy’s Common Shares held by such record holder on the Record Date, multiplied by a
fraction, (i) the numerator of which is the number of shares of Tim Hortons Common Stock to
be distributed by Wendy’s pursuant to Section 4.3(a) and (ii) the denominator of
which is the number of Wendy’s Common Shares outstanding on the Record Date. If the
Spin-Off consists of more than one class of Tim Hortons Common Stock, each record holder of
Wendy’s Common Shares shall receive shares of Tim Hortons Common Stock of each class,
calculated as provided above, except that the calculation shall be performed separately for
each such class.




     (c) Rights of Holders of Spin-Off Shares. After the Spin-Off, until such
shares of Tim Hortons Common Stock are duly transferred in accordance with applicable Law,
Tim Hortons shall regard the Persons entitled to receive such shares of Tim Hortons Common
Stock as record holders of shares of Tim Hortons Common Stock in accordance with the terms
of the Spin-Off without requiring any action on the part of such Persons. Tim Hortons
agrees that, subject to any transfers of such shares of Tim Hortons Common Stock, (i) each
such record holder shall be entitled to receive all dividends payable on, and exercise
voting rights and all other rights and privileges with respect to, the Tim Hortons Common
Stock then held by such record holder, and (ii) each such record holder shall be entitled,
without any action on the part of such record holder, to receive one or more certificates
representing, or other evidence of ownership of, the shares of Tim Hortons Common Stock then
held by such record holder.




     (d) Limitations. Notwithstanding anything to the contrary in this Section
4.3, if the Spin-Off is not effected in the form of a pro rata distribution of shares of
Tim
Hortons Common Stock to holders of Wendy’s Common Shares, this Section 4.3
shall not apply to the Spin-Off.




     (e) Other Transactions. If Wendy’s determines (in its sole discretion) to
effect the separation of Tim Hortons from Wendy’s through a transaction other than a
spin-off (whether by means of a split off, a share exchange or otherwise), Tim Hortons shall
use commercially reasonable efforts to take all actions (or refrain from any actions)
reasonably requested by Wendy’s in connection therewith.



12









 





ARTICLE 5

FINANCIAL REPORTING AND DISCLOSURE COVENANTS




     5.1 Financial and Other Information.




     (a) Financial Information. Tim Hortons agrees that, for so long as Wendy’s is
required to consolidate the results of operations and financial position of Tim Hortons and
any other members of the Tim Hortons Group or (solely with respect to Sections
5.1(a)(iv)-(vii)) to account for its investment in Tim Hortons under the equity method
of accounting (in either case, determined in accordance with GAAP and consistent with SEC
reporting requirements):




     (i) Disclosure of Financial Controls.




     (A) Tim Hortons shall (and shall cause each other member of the Tim
Hortons Group to) maintain effective disclosure controls and procedures and
internal control over financial reporting as defined in Exchange Act Rule
13a-15 promulgated under the Exchange Act and in any similar or successor
rule to the extent applicable to Wendy’s.




     (B) Tim Hortons shall cause each of its principal executive and
principal financial officers to (i) sign and deliver certifications to its
periodic reports and shall include the certifications in its periodic
reports, as and when required pursuant to Exchange Act Rule 13a-14 and Item
601 of Regulation S-K and in any similar or successor rule to the extent
applicable to Wendy’s and (ii) sign and deliver to Wendy’s certification and
representation documents, and orally discuss related matters, with respect
to its periodic reports, in a manner substantially similar to the Parties’
practice in the periods prior to the Effective Date.




     (C) Tim Hortons shall cause its management to evaluate its disclosure
controls and procedures and internal control over financial reporting
(including any change in internal control over financial reporting) as and
when required pursuant to Exchange Act Rule 13a-15 and in any similar or
successor rule to the extent applicable to Wendy’s.




     (D) Tim Hortons shall disclose in its periodic reports filed with the
SEC information concerning its management’s responsibilities for and
evaluation of its disclosure controls and procedures and internal control
over financial reporting (including the annual management report and
attestation report of its independent auditors relating to internal control
over financial reporting) as and when required under Items 307 and 308 of
Regulation S-K and other applicable SEC rules.




     (E) Without limiting the general application of the foregoing, Tim
Hortons shall (and shall cause each other member of the Tim Hortons Group
to) maintain internal systems and procedures which provide reasonable
assurance that (1) the Financial Statements are reliable and timely prepared
in accordance with GAAP and applicable Law, (2) all transactions of members
of the Tim Hortons Group are recorded as necessary to permit the preparation
of the Financial Statements, (3) the receipts and expenditures of members of
the Tim Hortons Group are



13









 






authorized at the appropriate level within Tim
Hortons, and (4) unauthorized use or disposition of the assets of any member
of the Tim Hortons Group that could have material effect on the Financial
Statements is prevented or detected in a timely manner.




     (ii) Fiscal Year. Tim Hortons shall (and shall cause each member of
the Tim Hortons Group to) maintain a fiscal year that commences and ends on the same
calendar days as the fiscal year of Wendy’s commences and ends, and to maintain
monthly accounting periods that commence and end on the same calendar days as the
monthly accounting periods of Wendy’s commence and end.




     (iii) Monthly Financial Reports. No later than 10 Business Days after
the end of the first three monthly accounting periods of Tim Hortons following the
Effective Date, Tim Hortons shall deliver to Wendy’s a consolidated income statement
and balance sheet for Tim Hortons for such period and an income statement and
balance sheet for each of its Affiliates that is included in the consolidated
Financial Statements, as the case may be, in such format and detail as Wendy’s may
request. No later than 12 Business Days after the end of the first three monthly
accounting periods of Tim Hortons following the Effective Date, Tim Hortons shall
deliver to Wendy’s a consolidated statement of cash flows for Tim Hortons for such
period and statement of cash flows for each of its Affiliates that is included in
the consolidated Financial Statements, as the case may be, in such format and detail
as Wendy’s may request. No later than five Business Days after the end of each
monthly accounting period of Tim Hortons thereafter (including its last monthly
accounting period of each fiscal year), Tim Hortons shall deliver to Wendy’s such
information, financial statements and reports as was the Parties’ practice in the
periods prior to the Effective Date and using the reporting system used by the
Parties on the Effective Date.




     (iv) Quarterly Financial Statements.




     (A) As soon as practicable, and in any event no later than the earlier
of (x) 10 Business Days prior to the date on which Tim Hortons is required
to file a Form 10-Q or other document containing its quarterly financial
statements with the SEC for each of the first three fiscal quarters in each
fiscal year of Tim Hortons and (y) five Business Days prior to the date on
which Wendy’s has notified Tim Hortons that Wendy’s intends to file its Form
10-Q or other document containing quarterly financial statements of Wendy’s
with the SEC, Tim Hortons shall deliver to Wendy’s drafts of (A) the
consolidated financial statements of the Tim Hortons Group (and notes
thereto) for such periods and for the period from the beginning of the
then-current fiscal year to the end of such quarter, setting forth in each
case in comparative form for each such fiscal quarter of Tim Hortons the
consolidated figures (and notes thereto) for the corresponding quarter and
periods of the previous fiscal year and all in reasonable detail and
prepared in accordance with Article 10 of Regulation S-X and GAAP and in
accordance with any similar or successor rule to the



14









 






extent applicable to
Wendy’s, and (B) a discussion and analysis by management of the Tim Hortons
Group’s financial condition and results of operations for such fiscal
period, including an explanation of any material period-to-period change and
any off-balance sheet transactions, all in reasonable detail and prepared in
accordance with Item 303(b) of Regulation S-K and in accordance with any
similar or successor rule to the extent applicable to Wendy’s ((A) and (B)
collectively, the “Quarterly Financial Statements”); provided,
however, that Tim Hortons shall deliver such information at such
earlier time upon Wendy’s written request with 30 days’ notice resulting
from Wendy’s determination to accelerate the timing of the filing of its
financial statements with the SEC.




     (B) No later than the earlier of (x) three Business Days prior to the
date Tim Hortons publicly files the Quarterly Financial Statements with the
SEC or otherwise makes such Quarterly Financial Statements publicly
available or (y) three Business Days prior to the date on which Wendy’s has
notified Tim Hortons that Wendy’s intends to file quarterly financial
statements of Wendy’s with the SEC (which notice shall be given at least 21
days prior to such intended filing date), Tim Hortons shall deliver to
Wendy’s the final form of the Quarterly Financial Statements and
certifications thereof by the principal executive and financial officers of
Tim Hortons in substantially the forms required under SEC rules for periodic
reports and in form and substance satisfactory to Wendy’s (provided
that form and substance substantially similar to the Parties’ practice in
the periods prior to the Effective Date shall be deemed satisfactory);
provided, however, that Tim Hortons may continue to revise
such Quarterly Financial Statements prior to the filing thereof in order to
make corrections and non-substantive changes, which corrections and changes
shall be delivered by Tim Hortons to Wendy’s as soon as practicable, and in
any event within eight hours thereafter; provided further,
that Wendy’s and Tim Hortons financial Representatives shall
actively consult with each other regarding any changes (whether or not
substantive) that Tim Hortons may consider making to its Quarterly Financial
Statements and related disclosures during the two Business Days immediately
prior to any anticipated filing with the SEC, with particular focus on any
changes that would have an effect upon the financial statements or related
disclosures of Wendy’s.




     (C) In addition to the foregoing and subject to applicable law, no
Quarterly Financial Statement or any other document that refers to or
contains information not previously publicly disclosed with respect to the
ownership of Tim Hortons by Wendy’s, the Separation Agreements, the
separation of Tim Hortons from Wendy’s or the Spin-Off shall be filed with
the SEC or otherwise made public by any Tim Hortons Group member without the
prior written consent of Wendy’s. Notwithstanding anything to the contrary
in this Section 5.1(a)(iv), Tim Hortons shall file the Quarterly
Financial Statements with the SEC on the same date that



15









 






Wendy’s files the
Wendy’s quarterly financial statements with the SEC unless otherwise
required by applicable law.




     (v) Annual Financial Statements.




     (A) As soon as practicable, and in any event no later than the earlier
of (x) 10 Business Days prior to the date on which Tim Hortons is required
to file a Form 10-K or other document containing its annual financial
statements with the SEC and (y) 10 Business Days prior to the date on which
Wendy’s has notified Tim Hortons that Wendy’s intends to file its Form 10-K
or other document containing annual financial statements of Wendy’s with the
SEC (which notice shall be given at least 28 days prior to such intended
filing date), Tim Hortons shall deliver to Wendy’s drafts of (1) the
consolidated financial statements of the Tim Hortons Group (and notes
thereto) for such year, setting forth in each case in comparative form the
consolidated figures (and notes thereto) for the previous fiscal year and
all in reasonable detail and prepared in accordance with Regulation S-X and
GAAP, and (2) a discussion and analysis by management of the Tim Hortons
Group’s financial condition and results of operations for such year,
including an explanation of any material period-to-period change and any
off-balance sheet transactions, all in reasonable detail and prepared in
accordance with Item 303(a) of Regulation S-K or any similar or successor
rule ((1) and (2) collectively, the “Annual Financial Statements”). Tim
Hortons shall deliver to Wendy’s all revisions to such drafts as soon as any
such revisions are prepared or made.




     (B) No later than the earlier of (x) five Business Days prior to the
date on which Tim Hortons publicly files the Annual Financial Statements
with the SEC or otherwise makes such Annual Financial Statements publicly
available and (y) five Business Days prior to the date
on which Wendy’s has notified Tim Hortons that Wendy’s intends to file
the Wendy’s annual financial statements with the SEC, Tim Hortons shall
deliver to Wendy’s the final form of the Annual Financial Statements and
certifications thereof by the principal executive and financial officers of
Tim Hortons in substantially the forms required under SEC rules for periodic
reports and in form and substance satisfactory to Wendy’s (provided
that form and substance substantially similar to the Parties’ practice in
the periods prior to the Effective Date shall be deemed satisfactory);
provided, however, that Tim Hortons may continue to revise
such Annual Financial Statements prior to the filing thereof in order to
make corrections and non-substantive changes, which corrections and changes
shall be delivered by Tim Hortons to Wendy’s as soon as practicable, and in
any event within eight hours thereafter; provided further,
that Wendy’s and Tim Hortons financial Representatives shall actively
consult with each other regarding any changes (whether or not substantive)
that Tim Hortons may consider making to its Annual



16









 






Financial Statements and
related disclosures during the three Business Days immediately prior to any
anticipated filing with the SEC, with particular focus on any changes that
would have an effect upon financial statements or related disclosures of
Wendy’s.




     (C) In addition to the foregoing, no Annual Financial Statement or any
other document that refers to or contains information not previously
publicly disclosed with respect to the ownership of Tim Hortons by Wendy’s,
the Separation Agreements, the separation of Tim Hortons from Wendy’s or the
Spin-Off shall be filed with the SEC or otherwise made public by any Tim
Hortons Group member without the prior written consent of Wendy’s. In any
event, Tim Hortons shall deliver to Wendy’s, no later than three Business
Days prior to the date Wendy’s has notified Tim Hortons that Wendy’s intends
to file the Wendy’s annual financial statements with the SEC (which notice
shall be given at least 28 days prior to such intended filing date), the
final form of the Annual Financial Statements accompanied by an opinion
thereon by the independent certified public accountants of Tim Hortons.
Notwithstanding anything to the contrary in this Section 5.1(a)(v),
Tim Hortons shall file the Annual Financial Statements with the SEC on the
same date that Wendy’s files the Wendy’s annual financial statements with
the SEC unless otherwise required by applicable law.




     (vi) Affiliate Financial Statements. Tim Hortons shall deliver to
Wendy’s all quarterly and annual financial statements of each Affiliate of Tim
Hortons that is itself required to file financial statements with the SEC or
otherwise make such financial statements publicly available, with such financial
statements to be provided in the same manner and detail and on the same time
schedule as those financial statements of Tim Hortons required to be delivered to
Wendy’s pursuant to this Section 5.1.




     (vii) Conformance with Wendy’s Financial Presentation. All information
to be provided by any Tim Hortons Group member to Wendy’s or filed with the SEC
pursuant to Sections 5.1(a)(iii) through (vi) shall be consistent in terms
of format and detail and otherwise with the policies of Wendy’s (except for
differences in presentation consistent with the Parties’ practice in the periods
prior to the Effective Date) with respect to the application of GAAP and practices
with respect to the provision of such financial information by such Tim Hortons
Group member to Wendy’s (and, where appropriate, as presently presented in financial
reports to the Wendy’s board of directors), with such changes therein as may be
requested by Wendy’s from time to time consistent with changes in such accounting
principles and practices; provided, however, that the Parties
acknowledge that Tim Hortons shall report its results in Canadian dollars.




     (viii) Tim Hortons Reports Generally. Each Tim Hortons Group member
that files information with the SEC shall deliver to Wendy’s: (A) preliminary and
substantially final drafts, as soon as the same are prepared, of (x)



17









 






all reports,
notices and proxy and information statements to be sent or made available by such
Tim Hortons Group member to its respective security holders, (y) all regular,
periodic and other reports to be filed or furnished under Sections 13, 14 and 15 of
the Exchange Act (including reports on Forms 10-K, 10-Q and 8-K and Annual Reports
to Shareholders), and (z) all registration statements and prospectuses to be filed
by such Tim Hortons Group member with the SEC or any securities exchange pursuant to
the listed company manual (or similar requirements) of such exchange ((x), (y) and
(z) collectively, the “Tim Hortons Public Documents”), and (B) as soon as
practicable, but in no event later than four Business Days (other than with respect
to 8-Ks) prior to the earliest of the dates on which the same are printed, sent or
filed, current drafts of all such Tim Hortons Public Documents and, with respect to
8-Ks, as soon as practicable, but in no event later than two Business Days prior to
the earliest of the dates on which the same are printed, sent or filed in the case
of planned 8-Ks and as soon as practicable, but in no event less than four hours
(or, for 8-Ks to be filed before noon, in no event later than 5 p.m. Dublin, Ohio,
time on the previous Business Day) in the case of unplanned 8-Ks; provided,
however, that Tim Hortons may continue to revise such Tim Hortons Public
Documents prior to the filing thereof in order to make corrections and
non-substantive changes, which corrections and changes shall be delivered by Tim
Hortons to Wendy’s as soon as practicable, and in any event within eight hours
thereafter; provided further, that Wendy’s and Tim Hortons financial
and/or legal Representatives shall actively consult with each other regarding any
changes (whether or not substantive) Tim Hortons may consider making to any of its
Tim Hortons Public Documents and related disclosures prior to any anticipated filing
with the SEC, with particular focus on any changes that would have an effect upon
the financial statements or related disclosures of Wendy’s. In addition to the
foregoing and subject to applicable law, no Tim Hortons Public Document or any other
document that refers to or contains information not previously publicly disclosed
with respect to the ownership of Tim Hortons by Wendy’s, the Separation Agreements,
the separation of Tim Hortons from Wendy’s or the Spin-Off shall be filed with the
SEC or otherwise made public by any Tim Hortons Group member without the prior
written consent of Wendy’s.




     (ix) Budgets and Financial Projections. Tim Hortons shall, as promptly
as practicable, deliver to Wendy’s copies of all annual and other budgets and
financial projections (consistent in terms of format and detail and as otherwise
required by Wendy’s) relating to Tim Hortons on a consolidated basis and shall
provide Wendy’s an opportunity to meet with management of Tim Hortons to discuss
such budgets and projections.




     (x) Other Information. With reasonable promptness, Tim Hortons shall
deliver to Wendy’s such additional financial and other information and data with
respect to the Tim Hortons Group and their business, properties, financial
positions, results of operations and prospects as from time to time may be
reasonably requested by Wendy’s.



18









 






     (xi) Press Releases and Similar Information. Tim Hortons and Wendy’s
shall consult with each other as to the timing of their annual and quarterly
earnings releases and any interim financial guidance for a current or future period
and shall give each other the opportunity to review the information therein relating
to the Tim Hortons Group and to comment thereon. Wendy’s and Tim Hortons shall make
reasonable efforts to issue their respective annual and quarterly earnings releases
at approximately the same time on the same date. No later than eight hours prior to
the time and date (or, if the same will be published before noon, no later than 5
p.m. Dublin, Ohio, time on the previous Business Day. at which a Party intends to
publish its regular annual or quarterly earnings release or any financial guidance
for a current or future period, such Party shall deliver to the other Party copies
of substantially final drafts of all press releases and other statements to be made
available by any Affiliate of that Party to employees of any Affiliate of that Party
or to the public concerning any matters that could be reasonably likely to have a
material financial impact on the earnings, results of operations, financial
condition or prospects of any Tim Hortons Group member. In addition, prior to the
issuance of any such press release or public statement that meets the criteria set
forth in the preceding two sentences, the issuing Party shall consult with the other
party regarding any changes (other than typographical or other similar minor
changes) to such substantially final drafts. Immediately following the issuance
thereof, the issuing Party shall deliver to the other Party copies of final drafts
of all press releases and other public statements.




     (xii) Cooperation on Wendy’s Filings. Tim Hortons shall cooperate
fully, and shall use commercially reasonable efforts to cause the Tim Hortons
Auditors to cooperate fully, with Wendy’s to the extent reasonably requested by
Wendy’s in the preparation of Wendy’s public earnings or other press releases,
Quarterly Reports on Form 10-Q, Annual Reports to Shareholders, Annual Reports on
Form 10-K, Current Reports on Form 8-K and any other proxy, information and
registration statements, reports, notices, prospectuses and any other filings made
by Wendy’s with the SEC or any national securities exchange
or otherwise made publicly available by or on behalf of Wendy’s (collectively,
the “Wendy’s Public Filings”). Tim Hortons shall provide to Wendy’s all information
Wendy’s reasonably requests in connection with any Wendy’s Public Filings or that,
in the judgment of legal advisors to Wendy’s, is required to be disclosed or
incorporated by reference therein under applicable Law. Tim Hortons shall provide
such information in a timely manner on the dates requested by Wendy’s (which may be
earlier than the dates on which Tim Hortons otherwise would be required hereunder to
have such information available) to enable Wendy’s to prepare, print and release all
Wendy’s Public Filings on such dates as Wendy’s shall determine but in no event
later than as required by applicable Law. Tim Hortons shall use commercially
reasonable efforts to cause the Tim Hortons Auditors to consent to any reference to
them as experts in any Wendy’s Public Filings if required under applicable Law. If
and to the extent requested by Wendy’s, Tim Hortons shall diligently and promptly
review all drafts of such Wendy’s Public Filings and prepare in a diligent and
timely fashion any portion of such Wendy’s Public Filing pertaining to Tim Hortons.
Prior to



19









 






any printing or public release of any Wendy’s Public Filing, an appropriate
executive officer of Tim Hortons shall, if requested by Wendy’s, certify that the
information relating to any Tim Hortons Group member or the Tim Hortons Business in
such Wendy’s Public Filing is accurate, true, complete and correct in all material
respects. Unless required by Law, Tim Hortons shall not publicly release any
financial or other information that conflicts with the information with respect to
any Tim Hortons Group member or the Tim Hortons Business that is included in any
Wendy’s Public Filing without Wendy’s prior written consent. Prior to the release
or filing thereof, Wendy’s shall provide Tim Hortons with a draft of any portion of
a Wendy’s Public Filing containing information relating to the Tim Hortons Group and
shall give Tim Hortons an opportunity to review such information and comment
thereon; provided, however, that Wendy’s shall determine in its sole
and absolute discretion the final form and content of all Wendy’s Public Filings.




     (b) Auditors and Audits; Annual Statements and Accounting. Tim Hortons agrees
that, for so long as Wendy’s is required to consolidate the results of operations and
financial position of any member of the Tim Hortons Group (determined in accordance with
GAAP and consistent with SEC reporting requirements):




     (i) Selection of Tim Hortons Auditors. Unless required by Law, Tim
Hortons shall not select a different accounting firm than PricewaterhouseCoopers LLP
(or its affiliate accounting firms) or change lead audit partners therefrom (unless,
in either case, so directed by Wendy’s in accordance with a change by Wendy’s in its
accounting firm) to serve as its (and its Affiliates’) independent certified public
accountants (the “Tim Hortons Auditors”) without Wendy’s prior written consent
(which shall not be unreasonably withheld); provided, however, that
to the extent any Affiliates of Tim Hortons are currently using a different
accounting firm to serve as their independent certified public accountants, such
Affiliates may continue to use such accounting firm (and the lead audit partner
therefrom) provided such accounting firm remains reasonably satisfactory to
Wendy’s.




     (ii) Audit Timing. Tim Hortons shall use commercially reasonable
efforts to enable the Tim Hortons Auditors to complete their audit such that they
may date their opinion on the Annual Financial Statements on the same date that
Wendy’s independent certified public accountants (the “Wendy’s Auditors”) date their
opinion on Wendy’s audited annual financial statements (the “Wendy’s Annual
Statements”), and to enable Wendy’s to meet its timetable for the printing, filing
and public dissemination of the Wendy’s Annual Statements, all in accordance with
Section 5.1(a) and as required by applicable Law. Tim Hortons shall request
that the Tim Hortons Auditors date their opinion on the Annual Financial Statements
on the same date that the Wendy’s Auditors date their opinion on the Wendy’s Annual
Statements.




     (iii) Information Needed by Wendy’s. Tim Hortons shall provide to
Wendy’s on a timely basis all information Wendy’s reasonably requires to meet



20









 






its
schedule for the preparation, printing, filing and public dissemination of the
Wendy’s Annual Statements in accordance with Section 5.1(a) and as required
by applicable Law. Without limiting the generality of the foregoing, Tim Hortons
shall provide all required financial information with respect to the Tim Hortons
Group to the Tim Hortons Auditors in a sufficient and reasonable time and in
sufficient detail to permit the Tim Hortons Auditors to take all steps and perform
all reviews necessary to provide sufficient assistance to Wendy’s Auditors with
respect to information to be included or contained in the Wendy’s Annual Statements.




     (iv) Access to Tim Hortons Auditors. Tim Hortons shall authorize the
Tim Hortons Auditors to make available to the Wendy’s Auditors both the personnel
who performed, or are performing, the annual audit of Tim Hortons and work papers
related to the annual audit of Tim Hortons, in all cases within a reasonable time
prior to the opinion date for the Tim Hortons Auditors, so that the Wendy’s Auditors
are able to perform the procedures they consider necessary to take responsibility
for the work of the Tim Hortons Auditors as it relates to the report of the Wendy’s
Auditors on the Wendy’s financial statements, all within sufficient time to enable
Wendy’s to meet its timetable for the printing, filing and public dissemination of
the Wendy’s Annual Statements.




     (v) Access to Records. If Wendy’s determines in good faith that there
may be an inaccuracy in a Tim Hortons Group member’s financial statements or
deficiency in a Tim Hortons Group member’s internal accounting controls or
operations that could materially impact Wendy’s financial statements, at the request
of Wendy’s, Tim Hortons shall provide to the Wendy’s internal auditors access to the
Tim Hortons Group member’s books and records so that Wendy’s may conduct reasonable
audits relating to the financial statements provided by Tim Hortons under this
Agreement as well as to the internal accounting controls and operations of the Tim
Hortons Group.




     (vi) Notice of Changes. Subject to Section 5.1(a)(vii), Tim
Hortons shall give Wendy’s as much prior notice as reasonably practicable of any
proposed determination of, or any significant changes in, Tim Hortons’ accounting
estimates or accounting principles from those in effect on the date of the Audited
Financial Statements included in the Prospectus. Tim Hortons shall consult with
Wendy’s and, if requested by Wendy’s, Tim Hortons (and the Tim Hortons Auditors, if
requested) shall consult with the Wendy’s Auditors with respect to any such proposed
determination or change. Unless otherwise required by applicable Law, Tim Hortons
shall not make any such determination or changes without the prior written consent
of Wendy’s if such a determination or change would be sufficiently material to be
required to be disclosed in financial statements or other disclosure documents filed
by Tim Hortons or Wendy’s with the SEC.




     (vii) Accounting Changes Requested by Wendy’s. Notwithstanding
Section 5.1(a)(vi), unless prohibited by applicable Law, Tim Hortons shall
make



21









 






any changes in its accounting estimates or accounting principles that are
requested by Wendy’s in order for Tim Hortons’ accounting practices and principles
to be consistent with those of Wendy’s.




     (viii) Special Reports of Deficiencies or Violations. Tim Hortons
shall report in reasonable detail to Wendy’s any of the following events or
circumstances promptly after any executive officer of Tim Hortons or any member of
the Tim Hortons board of directors becomes aware of such matter:




     (A) Any significant deficiency or material weakness in the design or
operation of internal control over financial reporting that is reasonably
likely to adversely affect Tim Hortons’ ability to record, process,
summarize and report financial information;




     (B) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the internal control over
financial reporting of Tim Hortons;




     (C) Any illegal act within the meaning of Section 10A(b) and (f) of the
Exchange Act; and




     (D) Any report of a material violation of law that an attorney
representing any Tim Hortons Group member has formally made to any officers
or directors of Tim Hortons pursuant to the SEC’s attorney conduct rules (17
C.F.R. Part 205).




     (c) Additional Matters. Tim Hortons agrees that, for so long as Wendy’s is
required to account for its investment in Tim Hortons under the equity method of accounting
(determined in accordance with GAAP and consistent with SEC reporting requirements), Tim
Hortons shall provide to Wendy’s on a timely basis all information Wendy’s reasonably
requires to meet its schedule for the preparation, printing, filing and
public dissemination of the Wendy’s Annual Statements in accordance with Section
5.1(a) and as required by applicable Law, and without limiting the generality of the
foregoing, Tim Hortons shall provide all required financial information with respect to the
Tim Hortons Group to the Tim Hortons Auditors in a sufficient and reasonable time and in
sufficient detail to permit the Tim Hortons Auditors to take all steps and perform all
reviews necessary to provide sufficient assistance to Wendy’s Auditors with respect to
information to be included or contained in the Wendy’s Annual Statements.



     5.2 Other Covenants. So long as Wendy’s beneficially owns at least 50% of the total voting
power of all classes of then outstanding capital stock of Tim Hortons entitled to vote generally in
the election of directors (“Tim Hortons Voting Stock”):




     (a) Wendy’s Rights as Stockholder. Tim Hortons shall not, without the prior
written consent of Wendy’s (which Wendy’s may withhold in its sole and absolute discretion),
take, or cause to be taken, directly or indirectly, any action (including making or failing
to make any election under the law of any state or other relevant jurisdiction) that has the
effect, directly or indirectly, of restricting or limiting the ability of Wendy’s



22









 






freely to
sell, transfer, assign, pledge or otherwise dispose of shares of Tim Hortons Common Stock or
would restrict or limit the rights of any transferee of Wendy’s as a holder of shares of Tim
Hortons Common Stock. Without limiting the generality of the foregoing, Tim Hortons shall
not, without the prior written consent of Wendy’s (which Wendy’s may withhold in its sole
and absolute discretion), take any action, or recommend to its stockholders any action,
which would limit the legal rights of, or deny any benefit to, Wendy’s as a Tim Hortons
stockholder either (i) solely as a result of the amount of Tim Hortons Voting Stock owned by
Wendy’s or (ii) in a manner not applicable to holders of Tim Hortons Voting Stock generally.




     (b) Issuance of Additional Equity. Tim Hortons shall not, without the prior
written consent of Wendy’s (which it may withhold in its sole and absolute discretion),
issue any Tim Hortons Capital Stock or any rights, warrants or options to acquire Tim
Hortons Capital Stock (including securities convertible into or exchangeable for Tim Hortons
Capital Stock), if after giving effect to such issuances and considering all of the shares
of Tim Hortons Capital Stock acquirable pursuant to such rights, warrants and options to be
outstanding on the date of such issuance (whether or not then exercisable), (i) if Wendy’s
owned at least 80% of the Tim Hortons Voting Stock prior to such issuance, Wendy’s would own
less than 80% of the Tim Hortons Voting Stock or (ii) if Wendy’s owned less than 80% of the
Tim Hortons Voting Stock prior to such issuance, Wendy’s would own less than 50.1% of the
Tim Hortons Voting Stock.




     (c) Compliance with Wendy’s Contracts. To the extent that Wendy’s is a party
to any contract providing that certain actions or inactions of affiliates of Wendy’s (which
for purposes of such contract includes any member of the Tim Hortons Group) may result in
Wendy’s being in breach of or in default under such contract (provided that Wendy’s
will use commercially reasonable efforts to exclude the actions or inactions of members of
the Tim Hortons Group from any such contract entered into after the
Effective Date), and Wendy’s has advised Tim Hortons of the existence, and has
furnished Tim Hortons with copies, of such contract (or the relevant portions thereof), Tim
Hortons shall not take or fail to take, as applicable, and Tim Hortons shall cause the other
members of the Tim Hortons Group not to take or fail to take, as applicable, any actions
that reasonably could result in Wendy’s being in breach of or in default under such
contract. The Parties acknowledge and agree that Wendy’s may in good faith (and not solely
with the intention of imposing restrictions on Tim Hortons pursuant to this covenant) enter
into additional contracts or amendments to existing contracts providing that certain actions
or inactions of subsidiaries or affiliates of Wendy’s (including, for purposes of such
contracts or amendments, members of the Tim Hortons Group) may result in Wendy’s being in
breach of or in default under such contracts. In such event, provided that Wendy’s has
notified Tim Hortons of such additional contracts or amendments, Tim Hortons shall not
thereafter take or fail to take, as applicable, and Tim Hortons shall cause the other
members of the Tim Hortons Group not to take or fail to take, as applicable, any actions
that reasonably could result in Wendy’s being in breach of or in default under such
additional contracts or amendments. Wendy’s acknowledges and agrees that Tim Hortons shall
not be deemed in breach of this Section 5.2(c) to the extent that, prior to being
notified by Wendy’s of an additional contract or an amendment to an existing Contract
pursuant to this Section 5.2(c), a Tim Hortons Group member



23









 






already has taken or
failed to take one or more actions that would otherwise constitute a breach of this
Section 5.2(c) had such action(s) or inaction(s) occurred after such notification,
provided that Tim Hortons does not, after notification by Wendy’s, take any further action
or fail to take any action that contributes further to such breach or default.



     5.3 Covenants Regarding the Incurrence of Indebtedness.




     (a) Tim Hortons hereby covenants and agrees that, for so long as Wendy’s is required to
consolidate the results of operations and financial position of any member of the Tim
Hortons Group (determined in accordance with GAAP and consistent with SEC reporting
requirements), Tim Hortons shall not, and Tim Hortons shall not permit any other member of
the Tim Hortons Group to, without Wendy’s prior written consent (which Wendy’s may withhold
in its sole and absolute discretion), create, incur, assume or suffer to exist any Tim
Hortons Indebtedness if the incurrence of such Tim Hortons Indebtedness would cause Wendy’s
to be in breach of or in default under any contract the existence of which Wendy’s has
advised Tim Hortons and of which Wendy’s has furnished Tim Hortons a copy pursuant to
Section 5.2(c), or if the incurrence of such Tim Hortons Indebtedness could be
reasonably likely (in the reasonable opinion of Wendy’s) to adversely impact the credit
rating of any of Wendy’s rated indebtedness, or if the incurrence of such Tim Hortons
Indebtedness involves more than $10 million; provided, however, that the
foregoing shall not prohibit any member of the Tim Hortons Group from borrowing or having
outstanding (i) up to an aggregate of C$200 million at any time outstanding under the C$200
million revolving credit facility entered into by members of the Tim Hortons Group prior to
the Effective Date, (ii) up to an aggregate of US$100 million at any time outstanding under
the US$100 million revolving credit facility entered into by members of the Tim Hortons
Group prior to the Effective Date, (iii) up to
an aggregate of C$300 million at any time outstanding under the term loan facility
entered into by members of the Tim Hortons Group prior to the Effective Date and (iv) up to
an aggregate of C$200 million at any time outstanding under a bridge loan entered into by
members of the Tim Hortons Group prior to the Effective Date (or the refinancing of such
C$200 million indebtedness through the private placement or other issuance of debt
securities).




     (b) In order to implement this Section 5.3, Tim Hortons shall notify Wendy’s in
writing at least 45 Business Days prior to the time at which it or any other member of the
Tim Hortons Group contemplates incurring any Tim Hortons Indebtedness (other than draws
under the revolving credit facilities permitted under Section 5.3(a), capital leases
incurred in the ordinary course of business consistent with past practices, and the initial
funding of (but not the subsequent incurrence of debt, liens or contingent liabilities
otherwise permitted by the terms of the credit agreements or other agreements governing) the
term loan and bridge loan (or refinancing thereof) contemplated in Section 5.3(a))
of its intention to do so and shall either (i) demonstrate to Wendy’s satisfaction that this
Section 5.3 shall not be violated by such proposed additional Tim Hortons
Indebtedness or (ii) obtain Wendy’s prior written consent to the incurrence of such proposed
additional Tim Hortons Indebtedness. Any such written notification from Tim Hortons to
Wendy’s shall include documentation of any existing Tim Hortons Indebtedness and estimated
aggregate Tim Hortons Indebtedness after giving effect to such proposed incurrence of



24









 







additional Tim Hortons Indebtedness. Wendy’s shall have the right to verify the accuracy of
such information and Tim Hortons shall cooperate fully with Wendy’s in such effort
(including by providing Wendy’s with access to the working papers and underlying
documentation related to any calculations used in determining such information).



ARTICLE 6

ACCESS TO AND DISCLOSURE OF INFORMATION




     6.1 Restrictions on Disclosure of Information.




     (a) Generally. Without limiting any rights or obligations under any other
existing or future agreement between the Parties and/or any other members of their
respective Group relating to confidentiality, each Party shall, and each Party shall cause
its respective Group members and its Representatives to, hold in strict confidence, with at
least the same degree of care that applies to Wendy’s confidential and proprietary
Information pursuant to policies in effect as of the Effective Date, and use only for the
Designated Purposes, all confidential and proprietary Information concerning the other Group
that is either in its possession as of the Effective Date or furnished by the other Group or
its respective Representatives at any time pursuant to this Agreement, any other Separation
Agreement or the transactions contemplated hereby or thereby (including Information relating
to Employee Welfare Plans, Information relating to Wendy’s Plans, proprietary software and
computer programs, and business records). Notwithstanding the foregoing, each Party, its
respective Group members and each of
their respective Representatives may disclose such Information to the extent that such
Person can demonstrate that such Information is or was (i) in the public domain other than
by the breach of this Agreement or by breach of any other agreement between or among the
Parties and/or any of their respective Group members relating to confidentiality, or (ii)
lawfully acquired from a third Person on a non-confidential basis or independently developed
by, or on behalf of, such Person by Persons who do not have access to, or descriptions of,
any such Information. Each Party shall maintain, and shall cause its respective Group
members and Representatives to maintain, policies and procedures, and develop such further
policies and procedures as shall from time to time become necessary or appropriate, to
ensure compliance with this Section 6.1.




     (b) Disclosure of Third Person Information. Tim Hortons acknowledges that it
and other members of the Tim Hortons Group may have in its or their possession confidential
or proprietary Information of third Persons that was received under a confidentiality or
non-disclosure agreement between a member of the Wendy’s Group and such third Person prior
to the Effective Date. Tim Hortons shall (and shall cause its respective Group members and
Representatives to) hold in strict confidence the confidential and proprietary Information
of third Persons to which any member of the Tim Hortons Group has access, in accordance with
the terms of any agreements entered into prior to the Effective Date between members of the
Wendy’s Group (whether acting through, on behalf of, or in connection with, the Tim Hortons
Business or otherwise) and such third Persons.



25









 






     (c) Disclosure of Third Person Information. Wendy’s acknowledges that it and
other members of the Wendy’s Group may have in its or their possession confidential or
proprietary Information of third Persons that was received under a confidentiality or
non-disclosure agreement between a member of the Tim Hortons Group and such third Person
prior to the Effective Date. Wendy’s shall (and shall cause its respective Group members
and Representatives to) hold in strict confidence the confidential and proprietary
Information of third Persons to which any member of the Wendy’s Group has access, in
accordance with the terms of any agreements entered into prior to the Effective Date between
members of the Tim Hortons Group and such third Persons.




     (d) Disclosure of Confidential Information with a Group. Once confidential
Information has been disclosed to a Group, the members of such Group may disclose it to
their individual employees who are engaged directly in the Designated Purposes. Such Group
members may also disclose such confidential Information to its Representatives. Such Group
members shall advise each recipient of the confidential nature of such confidential
Information, and shall instruct each such recipient to comply with the confidentiality
obligations contained herein; and the Party responsible for such Group member shall be
responsible for the failure of any such recipient to do so. Upon a Party’s request, the
Party receiving confidential Information shall require its recipients of such Information to
sign an agreement of confidentiality and nondisclosure satisfactory to the requesting Party.
The obligations of the receiving Party with respect to such recipient apply regardless of
whether such recipient is an employee of such Party..



     6.2 Legally Required Disclosure of Information.
If either Party or any of its respective Group members or Representatives becomes legally
required to disclose any Information (the “Disclosing Party”) that it is otherwise obligated to
hold in strict confidence pursuant to Section 6.1, such Party shall promptly notify the
Person that owns or has a duty not to disclose the Information (the “Owning Party”) and shall use
all commercially reasonable efforts to cooperate with the Owning Party so that the Owning Party may
seek a protective order or other appropriate remedy and/or waive compliance with this Section
6.2. All expenses reasonably incurred by the Disclosing Party in seeking a protective order or
other remedy shall be borne by the Owning Party. If such protective order or other remedy is not
obtained, or if the Owning Party waives compliance with this Section 6.2, the Disclosing
Party shall (a) disclose only that portion of the Information that its legal counsel advises it is
compelled to disclose or otherwise stand liable for contempt or suffer other similar significant
corporate censure or penalty, (b) use all commercially reasonable efforts to obtain reliable
assurance requested by the Owning Party that confidential treatment shall be accorded such
Information, and (c) promptly provide the Owning Party with a copy of the Information so disclosed,
in the same form and format so disclosed, together with a list of all Persons to whom such
Information was disclosed.



     6.3 Access to Information. During the Retention Period, each Party shall (and shall cause
its respective Group members and Representatives to) cooperate with and afford to the other Party
reasonable access upon reasonable advance written request to all Information (other than
Information that is (a) protected from disclosure by the attorney-client privilege or work product
doctrine, (b) proprietary in nature, (c) the subject of a confidentiality agreement between such
Party and a third Person that prohibits disclosure to the other Party, or (d) prohibited from
disclosure under applicable Law) owned by such Party or one of its Group members or within



26









 




such
Party’s or any of its respective Group member’s or Representative’s possession that is created
prior to the Spin-Off Date and that relates to the business, assets or liabilities of the
requesting Party (the “Requestor”), and such access is reasonably required by the Requestor (i) to
comply with requirements imposed on the Requestor by any Governmental Authority, (ii) for use in
any proceeding (except for a litigation matter between the Parties or any of their respective Group
members), (iii) to satisfy audit, accounting, Tax or similar requirements, (iv) to obtain
insurance, or (v) to comply with the Requestor’s obligations under this Agreement or any other
Separation Agreement. As used in this Agreement, “access” shall mean the obligation of a Party in
possession of Information (the “Possessor”) requested by the Requestor to exert its commercially
reasonable efforts to locate all requested Information that is owned and/or possessed by Possessor
or any of its respective Group members or Representatives. The Possessor, at its own expense,
shall conduct a diligent search designed to identify all requested Information and shall collect
all such Information for inspection by the Requestor during normal business hours at the
Possessor’s place of business. Subject to such confidentiality and/or security obligations as the
Possessor may reasonably deem necessary, the Requestor may have all requested Information
duplicated at Requestor’s expense. Alternatively, the Possessor may choose to deliver, at the
Requestor’s expense, all requested Information to the Requestor in the form requested by the
Requestor. The Possessor shall notify the Requestor in writing at the time of delivery if such
Information is to be returned to the Possessor. In such case, the Requestor shall return such
Information when no longer needed to the Possessor at the Possessor’s expense. In connection with
providing Information pursuant to this Section 6.3, each party hereto shall, upon the
request of the other party and upon reasonable
advance notice, make available during normal business hours its respective employees (and those
employees of its respective Group members and Representatives, as applicable) to the extent that
they are reasonably necessary to discuss and explain all requested Information with and to the
Requestor.




     6.4 Record Retention. Tim Hortons shall (and shall cause each of its other Group members
to) adopt and comply with a record retention policy with respect to Information owned by or in the
possession of the Tim Hortons Group and created prior to the Spin-Off Date that is no less
stringent than the Wendy’s record retention policy in effect as of the Effective Date or as Wendy’s
may modify such policy between the Effective Date and the Spin-Off Date, provided that Wendy’s
notifies Tim Hortons of any such modifications. Each Party shall, at its sole cost and expense,
preserve and retain all Information in its respective possession or control that the other Party
has the right to access pursuant to Section 6.3 or that it is required to preserve and
retain in accordance with such record retention policy or for any longer period as may be required
by (a) any Governmental Authority, (b) any litigation matter, (c) applicable Law, or (d) any
Separation Agreement (as applicable, the “Retention Period”). If either Party wishes to dispose of
any Information that it is obligated to retain under this Section 6.4 prior to the
expiration of the Retention Period, then that Party shall first provide 45 days’ written notice to
the other Party, and the other Party shall have the right, at its option but at the expense of the
Party that desires to dispose of such Information, upon prior written notice within such 45-day
period, to take possession of such Information within 90 days after the date of the notice provided
pursuant to this Section 6.4. Written notice of intent to dispose of such Information
shall include a description of the Information in detail sufficient to allow the other Party to
reasonably assess its potential need to retain such materials.



27









 





     6.5 Production of Witnesses. For seven years after the Effective Date, each Party shall
(and shall cause each of its respective Group members to) use commercially reasonable efforts to
make available to each other, upon written request, its past and present Representatives as
witnesses to the extent that any such Representatives may reasonably be required (giving
consideration to the business demands upon such Representatives) in connection with any legal,
administrative or other proceedings in which the requesting Party may from time to time be
involved.



     6.6 Reimbursement. Unless otherwise provided in this Article 6, each Party
providing access to Information or witnesses to the other Party pursuant to Sections 6.3,
6.4 or 6.5 shall be entitled to receive from the receiving Party, upon the
presentation of invoices therefor, payment for all reasonable, out-of-pocket costs and expenses
(excluding allocated compensation, salary and overhead expenses) as may be reasonably incurred in
providing such Information or witnesses.



     6.7 Other Agreements Regarding Access to Information. The rights and obligations of the
Parties under this Article 6 are subject to any specific limitations, qualifications or
additional provisions on the sharing, exchange or confidential treatment of Information set forth
in this Agreement or any other Separation Agreement.



     6.8 Acquisition of Tim Hortons by Another Person. If Tim Hortons enters into an agreement
with a third Person to directly or indirectly sell all or any portion of the Tim Hortons Business
(other than in the ordinary course of business consistent with past practice), together with the
Information related thereto, whether pursuant to a stock or asset sale, merger or otherwise,
Wendy’s shall have the right to duplicate any Information held by Tim Hortons that relates to (a)
the Tim Hortons Business as conducted through the Spin-Off Date (or the date of the disposition to
such third Person if the Spin-Off has not occurred), (b) the transactions contemplated by this
Agreement and the other Separation Agreements, and (c) the Financial Statements included in
financial statements of Wendy’s. Tim Hortons shall, in connection with any such disposition (x)
provide Wendy’s not less than 20 days’ written notice prior to the consummation of such
disposition, and (y) not disclose any Information of Wendy’s or relating to the Wendy’s Business to
such third Person without the express written consent of Wendy’s (which may be withheld in its
absolute and sole discretion). In addition, Wendy’s shall have the right, in its sole discretion,
to require Tim Hortons to destroy or return to Wendy’s all or any portion of such Information of or
relating to the Wendy’s Business prior to such disposition. Prior to the Spin-Off Date, Tim
Hortons shall not sell all or any portion of the Tim Hortons Business to any third Person unless
such third Person expressly agrees in writing to be bound by this Section 6.8. If Wendy’s
enters into an agreement with a third Person to sell all or any portion of the Wendy’s Business,
Wendy’s shall not in connection with any such disposition disclose any Information of Tim Hortons
or relating to the Tim Hortons Business to such third Person without the express written consent of
Tim Hortons (which may be withheld in its absolute and sole discretion).



28









 




ARTICLE 7

ADDITIONAL COVENANTS




     7.1 Further Assurances. The Parties shall (or shall cause their appropriate Group members
or Representatives, as appropriate, to) execute and deliver such other agreements, instruments and
documents as may be necessary or desirable in order to effect the transactions contemplated by this
Agreement and the other Separation Agreements. At the request of Tim Hortons, Wendy’s shall (and
shall cause applicable members of the Wendy’s Group to) execute and deliver to Tim Hortons and/or
applicable members of the Tim Hortons Group such other instruments of transfer, conveyance,
assignment, substitution and confirmation and take such other actions as Tim Hortons may reasonably
deem necessary or desirable in order (a) to transfer, convey and assign to Tim Hortons and the
other members of the Tim Hortons Group, as applicable, the Tim Hortons Assets, (b) to put Tim
Hortons and the other members of the Tim Hortons Group, as applicable, in actual possession and
operating control thereof, and (c) to permit Tim Hortons and the other members of the Tim Hortons
Group, as applicable, to exercise all rights with respect thereto. At the request of Wendy’s, Tim
Hortons shall (and shall cause applicable members of the Tim Hortons Group to) execute and deliver
to Wendy’s and/or applicable members of the Wendy’s Group all instruments, assumptions, novations,
undertakings, substitutions or other documents and take such other action as Wendy’s may reasonably
deem necessary or desirable in order to ensure that Tim Hortons and the other members of the Tim
Hortons Group fully and unconditionally assume and discharge the Tim Hortons Liabilities as
contemplated under this
Agreement, the other Separation Agreements or any document in connection herewith or therewith, and
relieve the Wendy’s Group of any Liability with respect thereto and evidence the same to third
Persons. Except as otherwise expressly provided in this Agreement or any other Separation
Agreement, no member of the Wendy’s Group shall be obligated to incur any out-of-pocket costs,
expenses and fees in connection with its obligations under this Section 7.1, including any
attorneys’ fees, recording, assignment or other similar fees.



     7.2 Performance. Wendy’s shall cause to be performed, and hereby guarantees the
performance of, all actions, agreements and obligations set forth in this Agreement or in any
Separation Agreement to be performed by any member of the Wendy’s Group. Tim Hortons shall cause
to be performed, and hereby guarantees the performance of, all actions, agreements and obligations
set forth in this Agreement or in any Separation Agreement to be performed by any member of the Tim
Hortons Group. Each Party further agrees that it shall cause its other Group members not to take
any action or fail to take any action inconsistent with such Party’s obligations under this
Agreement, any other Separation Agreement or the transactions contemplated hereby or thereby.



     7.3 Conduct of Tim Hortons Business between Effective Date and Spin-Off. Subject to any
additional restrictions in the Tax Sharing Agreement, during the period from the Effective Date
through the earliest of (i) the date on which the Spin-Off occurs, (ii) the date that Wendy’s gives
notice to Tim Hortons that it no longer intends to pursue the Spin-Off, and (iii) the date on which
Wendy’s ceases to own 80% of the Tim Hortons Voting Stock, Tim Hortons covenants and agrees that
the Tim Hortons Group as a whole shall not, without Wendy’s prior written consent (which Wendy’s
may withhold in its sole and absolute discretion): (a) acquire any businesses or other Assets
(other than coffee and other inventory items acquired in the



29









 




ordinary course of business in
connection with the Tim Hortons restaurant business), by means of merger, consolidation or
otherwise, of any other Person, with an aggregate value of more than $10 million for all such
acquisitions, (b) dispose of Assets (other than coffee and other
inventory items sold in the ordinary course of business in connection with the Tim Hortons restaurant business) held by the Tim
Hortons Group, by sale or otherwise, with an aggregate value of more than $10 million for all such
dispositions, or (c) acquire any equity or debt securities of any other Person, with an aggregate
value of more than $10 million for all such acquisitions.



     7.4 Employment Matters. For a period of two years following the Effective Date, neither
Party will (and each Party will not permit its respective Group members to), directly or
indirectly, solicit active employees of the other Party’s Group without such other Party’s consent.
A general solicitation of employment not directed towards employees of the other Party shall not
be deemed a violation of this Section 7.4.



     7.5 Compliance with Legal Policies. For so long as Wendy’s is providing legal services
under the Shared Services Agreement, Tim Hortons shall comply with all policies and directives
identified by Wendy’s as critical to legal and regulatory compliance; provided,
however, that nothing contained herein shall require
compliance with policies or directives that, in the opinion of counsel to Tim Hortons, do not
comply with then applicable Law. Until the Spin-Off Date, Tim Hortons shall not adopt policies or
directives relating to legal or regulatory compliance that are inconsistent with the policies and
directives identified by Wendy’s as critical to legal and regulatory compliance; provided,
however, that nothing contained herein shall prevent adoption of policies or directives
that, in the opinion of counsel to Tim Hortons, are necessary or desirable to comply with then
applicable Law.




     7.6  Covenants Regarding Combination Stores. There are certain locations in the
United States and Canada where Tim Hortons franchisees and Wendy’s or Wendy’s franchisees, as
applicable, operate Tim Hortons and Wendy’s restaurants under the same roof (such locations are
referred to herein as “U.S. Combo Stores” and “Canadian Combo Stores”, respectively, and
collectively as “Combo Stores”). The Parties
agree to continue to work together reasonably and in good faith to
resolve any competitive issues relating to franchise restrictions, lease
restrictions and lease renewals for the Combo Stores.








30









 




     7.7  Covenants Regarding Dual-Brand Franchisees. There are certain instances in the
United States and Canada where Wendy’s franchisees operate stand alone Tim Hortons restaurants and
Tim Hortons franchisees operate stand alone Wendy’s restaurants (such franchisees are referred to
herein as “Dual Brand Franchisees”). Wendy’s and Tim Hortons each have provisions in their
franchise agreements with their respective franchisees which prohibit their franchisees from
engaging in certain businesses or selling certain products which are or may be competitive with the
business of or products sold by them and their respective franchisees, including Sections 16.1,
16.2 and 16.3 of the current form of Wendy’s Unit Franchise Agreement and Sections 13.00,
13.01 and 13.02 of the current form of Tim Hortons
Franchise Agreement. Such provisions and any similar provisions that may be contained in any
Wendy’s or Tim Hortons franchise agreement now or in the future are referred to herein as
“Non-Compete Covenants.” Wendy’s and Tim Hortons acknowledge that the parties’ relationship is
unique because of their common ownership, their growth through common franchisees, the variance in
the product focus/orientation, and other factors, and agree to
continue to work together reasonably and in good faith to resolve any
competitive issues relating to the Non-Complete Covenants as they
relate to existing Dual Brand Franchises.




31








 





     7.8 Wendy’s Guarantees. To the extent that any member of the Wendy’s Group has guaranteed
any Liabilities of any member of the Tim Hortons Group, (a) Tim Hortons will (and will cause its
other Group members to) use commercially reasonable efforts to cause the beneficiaries of such
guarantees to release such Wendy’s Group member therefrom and (b) with respect to any such
guarantee that is not so released, Tim Hortons (for itself and on behalf of all of its Group
members) acknowledges that no Wendy’s Group member will have any obligation after the Effective
Date to agree to any further amendments, restatements, extensions or other modifications of such
guarantee or of any Liability guaranteed thereby. The Parties will work together and use
commercially reasonable efforts to cause the guarantee(s) by Wendy’s of obligations of the Tim
Horton Children’s Foundation to be released and replaced with guarantee(s) by Tim Hortons prior to
the Spin-Off Date. If such release(s) are not obtained by the Spin-Off Date, the Parties will
continue to work together and use commercially reasonable efforts to cause such guarantees to be
released as soon as reasonably practicable.



     7.9 Original Corporate Records. If any member of the Wendy’s Group has possession of
original corporate records of the Tim Hortons Group, Wendy’s will cause such member to promptly
deliver such original corporate records to the Tim Hortons Group upon request.




ARTICLE 8

INDEMNIFICATION




     8.1 Indemnification by Tim Hortons. Subject to Section 8.4, Tim Hortons shall
indemnify and hold harmless each Wendy’s Indemnified Person from and against any and all Losses
incurred by such Wendy’s Indemnified Person arising out of or in connection with the following,
whether such Losses arise or accrue prior to, on or following the Effective Date:




     (a) The failure of Tim Hortons or any other member of the Tim Hortons Group or any
other Person to pay, perform or otherwise properly discharge any of the Tim Hortons
Liabilities in accordance with their respective terms;




     (b) The Existing Tim Hortons Business, the Tim Hortons Business or any Tim Hortons
Liability (including any Tim Hortons Liability, or obligation of the Tim Horton Children’s
Foundation, guaranteed by a member of the Wendy’s Group);




     (c) Any breach by Tim Hortons or any member of the Tim Hortons Group of this Agreement
or any Separation Agreement; and




     (d) With respect to all information contained in the Registration Statement, the
Prospectus and any preliminary prospectus or other materials distributed in connection with
the Offering (other than materials distributed solely by or on behalf of Wendy’s) or the
transactions contemplated in the Separation Agreements, any untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not misleading,
other than with respect to the Wendy’s Disclosure Portions.



     8.2 Indemnification by Wendy’s. Subject to Section 8.4, Wendy’s shall indemnify
and hold harmless each Tim Hortons Indemnified Person from and against any and all Losses incurred
by such Tim Hortons Indemnified Person arising out of or in connection with the following, whether
such Losses arise or accrue prior to, on or following the Effective Date:




     (a) The failure of Wendy’s or any other member of the Wendy’s Group or any other Person
to pay, perform or otherwise properly discharge any of the Wendy’s Liabilities in accordance
with their respective terms;




     (b) The Wendy’s Business or any Wendy’s Liability;




     (c) Any breach by Wendy’s or any member of the Wendy’s Group of this Agreement or any
Separation Agreement; and




     (d) With respect to all information contained in the Wendy’s Disclosure Portions or in
materials distributed solely by or on behalf of Wendy’s, any untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.



32









 





     8.3 Claim Procedure.




     (a) Claim Notice. A Party that seeks indemnity under this Article 8 or
under any other Separation Agreement (an “Indemnified Party”) shall give written notice (a
“Claim Notice”) to the Party from whom indemnification is sought (an “Indemnifying Party”),
whether the Losses sought arise from matters solely between the Parties or from Third Party
Claims. The Claim Notice must contain (i) a description and, if known, estimated amount
(the “Claimed Amount”) of any Losses incurred or reasonably expected to be incurred by the
Indemnified Party, (ii) a reasonable explanation of the
basis for the Claim Notice to the extent of facts then known by the Indemnified Party,
and (iii) a demand for payment of those Losses. No delay or deficiency on the part of the
Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying
Party of any Liability or obligation hereunder except to the extent of any Losses caused by
or arising out of such failure.




     (b) Response to Notice of Claim. Within 30 days after delivery of a Claim
Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response in
which the Indemnifying Party shall either: (i) agree that the Indemnified Party is entitled
to receive all of the Claimed Amount and, in which case, the Indemnifying Party shall pay
the Claimed Amount using a payment method reasonably acceptable to the Indemnified Party; or
(ii) dispute that the Indemnified Party is entitled to receive all or any portion of the
Claimed Amount, in which case, the Parties shall resort to the dispute resolution procedures
set forth in Section 9.11.




     (c) Contested Claims. If the Indemnifying Party disputes that the Indemnified
Party is entitled to receive all or any portion of the Claimed Amount, as soon as
practicable but in no event later than 10 Business Days after the receipt of the notice
referenced in Section 8.3(b), the Parties shall begin the process to resolve the
matter in accordance with the dispute resolution provisions of Section 9.11 hereof.
Upon ultimate resolution thereof, the Parties shall take such actions as are reasonably
necessary to comply with such resolution.




     (d) Third Party Claims.




     (i) If the Indemnified Party receives notice or otherwise learns of the
assertion by a Person who is not a member of either Group of any claim or the
commencement of any Action (in each case, a “Third Party Claim”) with respect to
which the Indemnifying Party may be obligated to provide indemnification under this
Article 8, the Indemnified Party shall give written notification to the
Indemnifying Party of the Third Party Claim. Such notification shall be given
within five Business Days after receipt by the Indemnified Party of notice of such
Third Party Claim, shall be accompanied by reasonable supporting documentation
submitted by such third party (to the extent then in the possession of the
Indemnified Party) and shall describe in reasonable detail (to the extent known by
the Indemnified Party) the facts constituting the basis for such Third Party Claim
and the amount of the claimed Losses; provided, however, that no
delay or deficiency on the part of the Indemnified Party in so notifying the
Indemnifying Party shall relieve the Indemnifying Party of any Liability or
obligation hereunder except to the extent of any Losses caused by or arising out of
such failure. Within



33









 




20 days after delivery of such notification, the Indemnifying
Party may, upon written notice thereof to the Indemnified Party, assume control of
the defense of such Third Party Claim with counsel reasonably satisfactory to the
Indemnified Party. During any period in which the Indemnifying Party has not so
assumed control of such defense, the Indemnified Party shall control such defense.




     (ii) The Party not controlling such defense (the “Non-Controlling Party”) may
participate therein at its own expense; provided, however, that if
the Indemnifying Party assumes control of such defense and the Indemnified Party
concludes, upon the written opinion of counsel, that the Indemnifying Party and the
Indemnified Party have conflicting interests or different defenses available with
respect to such Third Party Claim, the reasonable fees and expenses of separate
counsel to the Indemnified Party shall be considered “Losses” for purposes of this
Agreement; provided, further, that the Indemnifying Party shall not
be responsible for the fees or expenses of more than one legal firm in any single
jurisdiction for all of the Indemnified Parties; provided, however,
that in the event that such legal firm is conflicted amongst the Indemnified
Parties, then the Indemnifying Party shall be responsible for the fees or expenses
of up to two legal firms in any single jurisdiction for all of the Indemnified
Parties.. The Party controlling such defense (the “Controlling Party”) shall keep
the Non-Controlling Party reasonably advised of the status of such Third Party Claim
and the defense thereof and shall consider in good faith recommendations made by the
Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish
the Controlling Party with such Information as it may have with respect to such
Third Party Claim (including copies of any summons, complaint or other pleading that
may have been served on such Party and any written claim, demand, invoice, billing
or other document evidencing or asserting the same) and shall otherwise cooperate
with and assist the Controlling Party in the defense of such Third Party Claim.




     (iii) The Indemnifying Party shall not agree to any settlement of, or the entry
of any judgment arising from, any such Third Party Claim without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably withheld
or delayed; provided, however, that the consent of the Indemnified
Party shall not be required if (A) the Indemnifying Party agrees in writing to pay
any amounts payable pursuant to such settlement or judgment, (B) such settlement or
judgment includes a full, complete and unconditional release of the Indemnified
Party from further Liability and (C) such settlement does not create any financial
or other obligation on the part of the Indemnified Party. The Indemnified Party
shall not agree to any settlement of, or the entry of any judgment arising from, any
such Third Party Claim without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld or delayed.



     8.4 Survival; Limitations.




     (a) Except to the extent expressly set forth in this Agreement or any other Separation
Agreement, all covenants and agreements of the Parties contained in the



34









 






Separation
Agreements shall survive each of the Offering and a Spin-Off until, with respect to any
particular claim to which a statute of limitations is applicable, 90 days after the
expiration of such applicable statute of limitations. The rights and obligations of
Wendy’s, Tim Hortons and each of their respective Indemnified Persons under this
Agreement shall survive the direct or indirect sale, assignment or other transfer by
any Party of any Assets or Liabilities.




     (b) The amount of any Losses for which indemnification is provided under this Agreement
shall be net of any amounts actually recovered by the Indemnified Party from any third
Person (including amounts actually recovered under insurance policies) with respect to such
Losses. Any Indemnifying Party hereunder shall be subrogated to the rights of the
Indemnified Party upon payment in full of the amount of the relevant indemnifiable Losses.
An insurer who would otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto or, solely by virtue of the indemnification provision
hereof, have any subrogation rights with respect thereto. If any Indemnified Party recovers
an amount from a third Person in respect of Losses for which indemnification is provided in
this Agreement after the full amount of such indemnifiable Losses has been paid by an
Indemnifying Party or after an Indemnifying Party has made a partial payment of such
indemnifiable Losses and the amount received from the third Person exceeds the remaining
unpaid balance of such indemnifiable Losses, then the Indemnified Party shall promptly remit
to the Indemnifying Party the excess (if any) of (X) the sum of the amount theretofore paid
by such Indemnifying Party in respect of such indemnifiable Losses plus the amount received
from the third Person in respect thereof, less (Y) the full amount of such indemnifiable
Losses.




     (c) Notwithstanding anything to the contrary in this Article 8, the initial
presumption shall be that there is no insurance coverage for any such Losses, and the
Indemnifying Party shall, upon request by the Indemnified Party, fully indemnify and hold
harmless the Indemnified Party from and against any and all such Losses. Once the
Indemnifying Party has discharged this obligation to the Indemnified Party, the Indemnifying
Party may request that the Indemnified Party pursue insurance coverage from one or more
insurers in connection with such Losses. If so requested, the Indemnified Party shall
pursue insurance coverage, including, if necessary, the filing of coverage litigation, all
of which shall be at the Indemnifying Party’s sole cost and expense. The Indemnifying Party
shall pay directly or promptly reimburse the Indemnified Party for all such costs and
expenses, as directed by the Indemnified Party. The Indemnified Party shall retain full and
exclusive control of all such matters (including the settlement of underlying covered claims
and/or coverage claims against insurers), and the Indemnified Party shall have the right to
select counsel with the concurrence of Indemnifying Party, which concurrence shall not be
withheld unreasonably. The net proceeds of any insurance recovery (after deducting any
costs and expenses that have not yet been paid or reimbursed by the Indemnifying Party)
shall be paid to the Indemnifying Party. At all times, the Indemnifying Party shall
cooperate with the Indemnified Party’s insurers and/or with the Indemnified Party in the
pursuit of insurance coverage, as and when reasonably requested to do so by the Indemnified
Party. It is not the intent of this Section 8.4(c) to absolve the Indemnifying
Party of any responsibility to the Indemnified Party for those Losses in connection with
which the



35









 






Indemnified Party actually secures insurance coverage, but to allocate the costs
of pursuing such coverage to the Indemnifying Party and to provide the Indemnified Party
with a full, interim indemnity from the Indemnifying Party until such time as the extent of
insurance coverage is determined and is obtained. Notwithstanding anything to the
contrary in this Section 8.4(c), if the Indemnified Party (in its absolute and
sole discretion) determines that it is necessary to do so, the Indemnified Party may pursue
insurance coverage for the benefit of the Indemnifying Party before the Indemnifying Party
has fully discharged its obligations to the Indemnified Party under this Agreement. In such
event, the Indemnified Party may unilaterally take any steps it determines are necessary to
preserve such insurance coverage, including tendering the defense of any claim or suit to an
insurer or insurers of the Indemnified Party if the Indemnified Party concludes that such
action may be required by the relevant insurance policy or policies. Any such actions by
the Indemnified Party shall not relieve the Indemnifying Party of any of its obligations to
the Indemnified Party under this Agreement, including the Indemnifying Party’s obligation to
pay directly or reimburse the Indemnified Party for costs and expenses.




     (d) Any indemnification payment made under this Agreement shall be characterized for
Tax purposes as a contribution or distribution or payment of an assumed or retained
liability, as applicable.




     (e) Notwithstanding anything to the contrary in Section 8.1 or Section
8.2, indemnification with respect to Taxes shall be governed exclusively by the Tax
Sharing Agreement.




     (f) Notwithstanding anything in this Agreement to the contrary, in no event shall any
Party be liable to the other Party or any other Person under this Agreement or any other
Separation Agreement for, and each Party (on behalf of itself, its Affiliates and other
Indemnified Persons) hereby releases the other Party from all claims for, special, indirect,
consequential, incidental or punitive damages (including lost profits or savings), even if
advised of their possible existence, except that a Party may recover from the other Party
special, indirect, consequential, incidental or punitive damages owed to a third party in
settlement or satisfaction of claims for which such Party has a right to recover from such
other Party under this Agreement or any other Separation Agreement.



ARTICLE 9

MISCELLANEOUS




     9.1 Assignment. Neither Party shall assign, transfer or otherwise alienate any or all of
its rights or interest under this Agreement without the express prior written consent of the other
Party, which consent may be granted or withheld in such other Party’s sole discretion. Any
attempted transfer in violation of the previous sentence shall be invalid and ineffective ab
initio.



     9.2 Entire Agreement. This Agreement and the other Separation Agreements constitute
the entire agreement between the Parties with respect to the subject matter hereof and thereof and
supersede (a) all prior oral or written proposals or agreements, (b) all



36









 







contemporaneous oral
proposals or agreements and (c) all previous negotiations and all other communications or
understandings
between the Parties, in each case with respect to the subject matter hereof and thereof;
provided, however, that, except to the extent expressly set forth in a Separation
Agreement, the provisions of the Separation Agreements shall not modify or supersede the provisions
of any written agreement between the Parties or their affiliates with respect to the lease of real
property or otherwise with respect to real property.



     9.3 Future Litigation and Other Proceedings. If any member of the Tim Hortons Group (or
any of its Representatives) or any member of the Wendy’s Group (or any of its Representatives) at
any time after the Effective Date initiates or becomes subject to any Action with respect to which
the Parties have no prior agreements (as to indemnification or otherwise), upon reasonable notice
(a) the Party (and its Group members and its and their respective Representatives) that has not
initiated and is not subject to such Action shall comply, at the other Party’s expense, with any
reasonable requests by the other Party for assistance in connection with such Action (including by
way of provision of information and making available of Representatives as witnesses) and (b) each
Party (and its Representatives) shall, at its own expense, coordinate with the other Party its
strategies and actions with respect to such Action to the extent such coordination would not be
detrimental to its interests and shall comply, at the expense of the requesting Party, with any
reasonable requests of the other Party for assistance in connection therewith (including by way of
provision of information and making available of Representatives as witnesses).



     9.4 Notices. Any notice, instruction, direction or demand under the terms of this
Agreement required to be in writing shall be duly given upon delivery, if delivered by hand,
facsimile transmission or mail (with postage prepaid), to the following addresses:




     (a) If to Tim Hortons, to:


Corporate Secretary

Tim Hortons Inc.

c/o Corporate Secretary

Wendy’s International, Inc.

4288 West Dublin-Granville Road

P.O. Box 256

Dublin, OH 43017-0256

Fax: (614) 764-3243




37









 




With a copy to (which shall not constitute notice):



General Counsel

Tim Hortons Inc.

874 Sinclair Road

Oakville, Ontario L6K 2Y1

Canada

Fax: (905) 845-1458





     (b) If to Wendy’s, to:


Corporate Secretary

Wendy’s International, Inc.

4288 West Dublin-Granville Road

P.O. Box 256

Dublin, OH 43017-0256

Fax: (614) 764-3243



With a copy to (which shall not constitute notice):



General Counsel

Wendy’s International, Inc.

4288 West Dublin-Granville Road

P.O. Box 256

Dublin, OH 43017-0256

Fax: (614) 764-3243



or to such other addresses or telecopy numbers as may be specified by like notice to the other
Party.




     9.5 Governing Law. This Agreement shall be construed in accordance with and governed by
the substantive internal laws of the State of Ohio, excluding its conflict of laws rules.



     9.6 Severability. If any terms or other provision of this Agreement shall be determined by
a court, administrative agency or arbitrator to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not render the entire Agreement invalid. Rather,
this Agreement shall be construed as if not containing the particular invalid, illegal or
unenforceable provision, and all other provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to either Party. Upon such determination
that any term
or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the Parties as closely as



38









 







possible
in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the
fullest extent permitted under applicable Law.



     9.7 Amendment. This Agreement may only be amended by a written agreement executed by both
Parties.



     9.8 Counterparts. This Agreement may be executed in separate counterparts, each of which
shall be deemed an original and all of which, when taken together, shall constitute one and the
same agreement.



     9.9 Authority. Each Party represents to the other Party that (a) it has the corporate
power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary corporate or other
actions, (c) it has duly and validly executed and delivered this Agreement and (d) this Agreement
is its legal, valid and binding obligation, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights generally and general equity principles.



     9.10 Jurisdiction. If any Dispute arises out of or in connection with this Agreement or
any other Separation Agreement, except as expressly contemplated by another provision of this
Agreement or any Separation Agreement, the Parties irrevocably (and the Parties shall cause each
other member of their respective Group to irrevocably) (a) consent and submit to the exclusive
jurisdiction of the U.S. District Court for the Southern Division of Ohio and state courts located
in Ohio, (b) waive any objection to that choice of forum based on venue or to the effect that the
forum is not convenient, and (c) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR
ADJUDICATION BY JURY.



     9.11 Dispute Resolution. Any controversy or claim, whether based on contract, tort,
statute or other legal or equitable theory (including any claim of fraud, misrepresentation or
fraudulent inducement or any question of validity or effect of this Agreement, including this
Section 9.11) (in each such case, a “Dispute”) arising out of or related to this Agreement,
the Shared Services Agreement or the Registration Rights Agreement, or the breach or termination
thereof, shall be resolved exclusively in accordance with this Section 9.11.




     (a) Direct Negotiation. First, the Disputing Parties shall promptly meet
(whether by phone or in person) in a good faith attempt to resolve the Dispute. Second, if
the Dispute is still unresolved after ten Business Days following the commencement of such
good faith attempt, then the chief financial officer (or another designee with full
authority to resolve such dispute) of each Party shall meet (whether by phone or in
person) in a good faith attempt to resolve the Dispute. Third, if the Dispute is still
unresolved after ten Business Days following the commencement of such second negotiations,
then such Dispute shall be submitted to mediation in accordance with Section
9.11(b).




     (b) Mediation. If the Dispute is to be submitted to mediation in accordance
with Section 9.11(a), the mediator will be selected by mutual agreement of the
Parties, which agreement shall be reached in good faith and on a timely basis. If they are
unable



39









 






to agree on a mediator, each Party will select one third party representative, each
of whom shall be mediator qualified to mediate such Dispute, which two representatives shall
mutually select a mediator for such Dispute (and each Party shall in good faith instruct its
representative to work in good faith with the other Party’s representative to select such
mediator).




     (i) Mediation Procedure. The mediation will be conducted pursuant to
the rules generally used by the mediator in the mediator’s practice, subject to the
following:




     (A) The mediator will act as an advocate for resolution and will use
his or her best efforts to assist the parties in reaching a mutually
acceptable settlement. The mediator may suggest ways of resolving the
Dispute, but may not impose his or her own judgment on the issues or that of
the Parties. The mediator will not have the authority to decide any issue
for the parties, but will attempt to facilitate the voluntary resolution of
the Dispute by the Parties.




     (B) Each Person participating in the mediation will have authority to
settle, and all Persons necessary to the decision to settle will be present
during the entire mediation session or sessions.




     (C) The mediation will take place at a time and convenient location
agreeable to the mediator and the Parties, as the mediator will determine,
but such mediation will take place no later than 20 Business Days after the
commencement of the second negotiations under Section 9.11(a) and
will take place over two consecutive days.




     (D) Mediation sessions will be private, and only the Parties and their
representatives may attend the mediation sessions. Other Persons may attend
the mediation sessions only with the written permissions of the Parties and
with the consent of the mediator.




     (E) There will be no stenographic record of the mediation process, and
no Person will tape record any portion of the mediation sessions.




     (F) No subpoenas, summons, complaints, citations, writs, or other
process may be served at or away from the site of any mediation
session upon any Person who then is entering, on the way to, in
attendance or leaving the session.




     (G) The Parties will participate in the mediation proceeding in good
faith with the intention to settle.




     (H) No later than five days prior to the mediation, each Party will
deliver to the mediator all information reasonably required for the mediator
to understand the issues presented and a confidential



40









 






memorandum (not to
exceed five pages with normal type size and margins) setting forth the
following:




     i. identification of the matters in dispute;




     ii. concise statement of points (factual, legal, practical) that
such Party believes enhances its chance of achieving a favorable outcome
of the Dispute;




     iii. history of settlement discussions and outstanding offers of
settlement; and




     iv. the above rules may be modified or amended with the Parties’
written consent.




     (ii) Release. The mediator will not be a necessary or proper party in
any Action relating to the mediation. Neither the mediator, the Person employing the
mediator, nor the Person providing the mediator will be liable to any Party for any
acts or omissions in connection with any mediation conducted pursuant to this
Section 9.11.




     (iii) Compromise Negotiation. The mediation is a compromise
negotiation for purposes of the applicable rules of evidence and is an alternative
dispute resolution procedure subject to Law chosen to govern this Agreement. The
entire procedure is and will be confidential. All conduct, statements, promises,
offers, views and opinions, whether oral or written, made in the course of the
mediation by any of the Parties, their agents, employees or other representatives
and by the mediator, who is the Parties’ joint agent for purposes of these
compromise negotiations, are confidential and will, in addition where appropriate,
be deemed to be work product and privileged. Such conduct, statements, promises,
offers, views and opinions will not be discoverable or admissible for any purposes,
including impeachment, if any litigation or other proceedings involve the Parties
and will not be disclosed to anyone not an agent, employee, expert or other
representative for any of the Parties. Evidence otherwise discoverable or admissible
is not excluded from discovery or admission as a result of its use in the mediation.
Confidential Information disclosed to the mediator by the Parties or by witnesses in
the course of the mediation will not be divulged by the mediator. All records,
reports or other documents received by the mediator while serving in that capacity
will be confidential. The mediator will not
be compelled to divulge such records or to testify with regard to the mediation
in any adversary proceeding or judicial forum.




     (iv) Costs of Mediation. The Parties will bear their respective costs
incurred in connection with the mediation described in this Section 9.11,
except that the Parties will share equally the fees and expenses of the mediator,
the costs of obtaining the facility for the mediation, and the fees and expenses of
any experts employed at the mediator’s request.



41









 






     (v) Termination of Mediation. The mediation will be terminated upon the
first to occur of the following:




     (A) by the execution of a settlement agreement resolving the dispute by
the Parties;




     (B) by a written declaration of the mediator to the effect that further
efforts at mediation are no longer worthwhile; or




     (C) after the completion of two full days of mediation sessions, by
written declaration of a Party or Parties to the effect that mediation
proceedings are terminated.




     (c) Litigation. Neither Party may bring (or have brought) any Action in any
forum with respect to any Dispute arising out of or related to this Agreement, the Shared
Services Agreement or the Registration Rights Agreement, or the breach or termination
thereof, until such Party has fully complied with Sections 9.11(a) and (b)
with respect to such Dispute.



     9.12 Binding Effect and Assignment. This Agreement and each other Separation Agreement
binds and benefits the Parties and their respective successors and permitted assigns. Other than
those Persons entitled to indemnity under Article 8
and as otherwise expressly provided in Section 7.6 and 7.7, there are no third party beneficiaries
having rights under or with respect to this Agreement.



     9.13 Expenses. Tim Hortons shall be responsible for the payment of all costs, fees and
expenses relating to the Offering and each Party shall be responsible for the payment of all of its
costs, fees and expenses relating to the Spin-Off (or any other divestiture transaction employed by
Wendy’s).



     9.14 Waiver. A provision of this Agreement or any other Separation Agreement may be waived
only by a writing signed by the Party intended to be bound by the waiver. A Party is not prevented
from enforcing any right, remedy or condition in the Party’s favor because of any failure or delay
in exercising any right or remedy or in requiring satisfaction of any condition, except to the
extent that the Party specifically waives the same in writing. A written waiver given for one
matter or
occasion is effective only in that instance and only for the purpose stated. A waiver once given
is not to be construed as a waiver for any other matter or occasion. Any enumeration of a Party’s
rights and remedies in this Agreement or any other Separation Agreement is not intended to be
exclusive, and a Party’s rights and remedies are intended to be cumulative to the extent permitted
by Law and include any rights and remedies authorized in Law or in equity.



[The next page is the signature page.]



42









 





     IN WITNESS WHEREOF, the Parties have caused this Master Separation Agreement to be signed by
their duly authorized representatives.



	 	 	 	 	 
	 	TIM HORTONS INC.

 	 
	 	By:  	 	 
	 	 	Paul D. House 	 
	 	 	Chief Executive Officer and President 	 
	 
	 	WENDY’S INTERNATIONAL, INC.

 	 
	 	By:  	 	 
	 	 	John T. Schuessler 	 
	 	 	Chief Executive Officer and President 	 
	 




 









 








Exhibit A: Shared Contracts





	 	1)	 	Expesite contract
	 
	 	2)	 	PeopleSoft contract
	 
	 	3)	 	UBS contract (re Equity Plan Administrator work)
	 
	 	4)	 	Sponsorship Agreement between COLHOL Limited Partnership DBF and the Columbus
Blue Jackets and Wendy’s International Inc.
	 
	 	5)	 	Ethics and Compliance Hotline Program between the Network and Wendy’s
International Inc.
	 
	 	6)	 	Runzeimer contract re: cost of living calculation services






A-1