Mail Stop 3720
February 24, 2006
Leon M. McCorkle, Jr.
Executive Vice President,
General Counsel and Secretary
Wendy`s International, Inc.
P.O. Box 256
4288 West Dublin-Granville Road
Dublin, Ohio 43017-0256
Re: Tim Hortons, Inc.
Amendment No. 2 to Form S-1
Filed February 14, 2006
File No. 333-130035
Dear Mr. McCorkle:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
information so we may better understand your disclosure. After
reviewing this information, we may raise additional comments.
General
1. We note your response to our prior comment one and our
discussions
with counsel on February 13 and 14, 2006. Please remove from the
cover page the firms that are not lead underwriters, or tell us in
your response letter why you believe inclusion of the additional
firms is so material under Item 501 of Regulation S-K as to merit
inclusion on the cover page.
Management, page 89
2006 Stock Incentive Plan, page 97
2. We note your response to our prior comment eight and revision
to
the carryover paragraph at the bottom of page 97. Please also
include here your response to us that the Wendy`s compensation
committee makes recommendations to your board and that your entire
board makes the final determinations as to officer and director
compensation under the plan.
Our Relationship with Wendy`s, page 105
General
3. In your descriptions of the agreements, also state the terms of
the agreements and any differing termination dates for material
provisions in the agreements. For example, regarding the shared
services agreement, we note your statement on page 109 that most
of
the services may be provided until the spin-off or until December
31,
2008, "whichever is earlier," but it is not clear to what extent a
particular material service, or even if most of the material
services, will terminate as early as the spin-off. Also, describe
to
what extent you may make amendments to the agreements prior to the
spin-off that amount to material changes to agreement provisions
as
described in the information statement and how you will convey
such
changes to Wendy`s stockholders after circulation of the
information
statement. We may have further comments once you have filed the
agreements as exhibits.
Master Separation Agreement, page 106
4. Please note how Wendy`s and you determined which assets are
"properly owned" by either company for purposes of separating
assets
here.
5. We note your description on page 107 of agreed limitations on
your
incurrence of additional indebtedness. Please mention these
limitations in an appropriate risk factor as well as your
Liquidity
and Capital Resources section concerning your ability or need to
incur additional indebtedness to meet operations, capital or other
business needs. Similarly, discuss in the risk factors the
agreement
limits on your ability to acquire businesses or sell your assets.
Financial Statements
Note 1. Summary of Significant Accounting Policies, page F-12
Note 14. Segment Reporting, page F-29
6. We note your response to our prior comment 17, but do not
believe
your financial statement revisions adequately addressed our prior
comment. Please provide in your notes to your interim financial
statements the revenue and costs associated with franchisor-owned
outlets similar to the disclosure in your response to our prior
comment 17 and your revised note 1 on page F-12 and note 14 on
page
F-29. See paragraph 23 of SFAS No. 45 for guidance. Additionally,
based on your revised disclosure in note 1 and note 14 we note
that
your MD&A does not fully disclose the factors responsible for
fluctuations in "company operated restaurant sales" for the period
between fiscal 2003 and 2004, and for "cost of sales related to
company operated restaurants" between 2003 and 2004. Also your
"sales
from restaurants consolidated under FIN 46R" disclosed in note 14
on
page F-29 of approximately $69.9 million does not agree to the
amount disclosed in your MD&A on page 58. Please revise or advise
accordingly.
Other
7. Please update your financial statements in a future amendment
to
the registration statement in accordance with Article 3-12 of
Regulation S-X.
8. Please note that there are various prior comments included in
our
letter dated December 30, 2005, in which you indicate that
responsive
changes will be made in a future amendment to the registration
statement. Please ensure that the requested disclosures are
provided
in a future amendment prior to the planned effectiveness of your
Form
S-1 registration statement. Please note that we may have further
comment upon our review of your revised disclosures.
* * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its
management are in possession of all facts relating to a company`s
disclosure, they are responsible for the accuracy and adequacy of
the
disclosures they have made.
You may contact Jeffrey Jaramillo, Staff Accountant, at 202-
551-3212, or Linda Cverkel, Accountant Branch Chief, at 202-551-
3813,
if you have questions regarding comments on the financial
statements
and related matters. Please contact Cheryl Grant, Staff Attorney,
at
202-551-3359, Michele M. Anderson, Legal Branch Chief, at 202-551-
3833, or me, at 202-551-3750, with any other questions.
Sincerely,
Max A. Webb
Assistant Director
cc: via facsimile 202-955-7614
J. Steven Patterson, Esq.
Akin Gump Strauss Hauer & Feld LLP
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Mr. McCorkle
Wendy's International, Inc.
February 24, 2006
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