Mail Stop 3720
March 16, 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. 5 to Form S-1
Filed March 13, 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.
Unaudited Pro Forma Consolidated Financial Information, page 38
1. Reference is made to your fifth bullet point of the second
paragraph in your pro forma introductory summary on page 38.
Please
change $621.1 million to $638 million as reflected in your
disclosure
on page 43.
Notes to the Unaudited Pro Forma Consolidated Financial Statements
Balance Sheet, page 43
2. We note your response to our prior comments 12 and 13. Based
on
your response and revised disclosure, it appears that the other
offering related costs of $3.9 million represents a pro forma
balance
sheet adjustment directly attributable to the offering
transaction,
regardless of whether the above mentioned costs have a continuing
impact or are nonrecurring. Although these costs are not
capitalizable into the net proceeds, you should reflect a pro
forma
balance sheet adjustment to retained earnings reflecting the
expense
treatment for these costs. Please also include appropriate
footnote
disclosure, which clearly explain the assumptions involved. Refer
to
the guidance in Rule 11-02(b) (6) of Regulation S-X. Please
revise
accordingly.
Management`s Discussion and Analysis, page 44
3. We note your response to our prior comment 14. Please also
disclose the amount of expense that you expect to incur on an
annual
basis under the terms of the shared services agreement if the
expected annual amount is materially greater than the $10.2
million
fixed price and $4 million minimum variable rate billings you have
stated on page 45.
4. We note your response to our prior comment 15. Please qualify
your statement at the bottom of page 63 that "[you] believe [you]
could borrow additional funds" in light of the limitations imposed
by
your indebtedness, such as the debt covenants in your credit
facilities.
Management, page 93
5. We note your response to our prior comment 17. It appears that
the proposed $210,000 monthly payment, in which two of your
directors
as Wendy`s CEO and CFO will have an interest, is required to be
described in the prospectus according to Item 404 of Regulation S-
K.
Please disclose the information in the prospectus, or tell us in
your
response letter why you believe the proposed payment is not
required
to be disclosed under Item 404.
Index to Consolidated Financial Statements
Note 17. Subsequent Events (Unaudited), page F-37
6. We note from your penultimate paragraph in note 17 that on
February 28, 2006 you adopted a stock rights agreement under which
you will issue one preferred share purchase right for each
outstanding share of your common stock. In this regard, please
disclose in your MD&A and Note 17 the future impact that this
transaction will have on your statement of operations on an annual
and aggregate basis. Additionally, please provide us with a
detailed
explanation of the accounting and the associated accounting
literature applied to this transaction.
7. We also note from your disclosure that under certain
circumstances, all right holders, except the person or company
holding 15% or more of the company`s common stock, will be
entitled
to purchase common stock with a market value of twice the then
applicable exercise price, based on the market price of the common
stock prior to such acquisition. In this regard, please disclose
under what certain circumstances the right holders can be entitled
to
purchase common stock rather than your series A junior
participating
preferred stock, and disclose how the applicable exercise price of
each right to purchase a common stock will be determined. Also
disclose the number of shares of common stock that a right holder
is
entitled to purchase for every right held.
* * *
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.
March 16, 2006
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