Employment Agreement

Amendment to Employment Agreement

Employment Agreement- Caira

 

 

EX-10.3 8 dex103.htm FORM OF EMPLOYMENT AGREEMENT--HOUSE

EXHIBIT 10.3

Form of Employment Agreement by and among

The TDL Group Corp., the Registrant and Paul D. House

EMPLOYMENT AGREEMENT

Between

THE TDL GROUP CORP.

And

TIM HORTONS INC.

And

PAUL D. HOUSE

An Employment Agreement (the “Prior Agreement”) was made and entered into as of December 5, 2006, by and between The TDL Group Corp., a Nova Scotia unlimited liability company (the “EMPLOYER”), TIM HORTONS INC., a Delaware corporation (“THI USA”) and Paul D. House, an individual (the “EXECUTIVE”). Effective as of September 28, 2009, as a result of a corporate reorganization, TIM HORTONS INC., a corporation incorporated under the Canada Business Corporations Act (“THI”) is the publicly traded ultimate parent company of the EMPLOYER. Effective as of September 28, 2009, this Employment Agreement (“Agreement”) hereby replaces and supersedes the Prior Agreement, in its entirety.

RECITALS

(1) Certain subsidiaries of THI, including the EMPLOYER, are engaged in the business of owning, operating and franchising Tim Hortons retail outlets and carrying on ancillary activities incident thereto (the “Business”).

(2) The EXECUTIVE possesses unique skills, knowledge and experience relating to the Business.

(3) The EXECUTIVE is currently employed by the EMPLOYER, an indirect, wholly-owned subsidiary of THI, and desires to continue to be employed by the EMPLOYER.

(4) The EMPLOYER desires to be assured of the continued services of the EXECUTIVE and to afford him the job security this Agreement provides without, however, increasing the compensation he would otherwise obtain were it not for the occurrence of events foreseen by this Agreement, and the EXECUTIVE desires to be assured that, in the event of a substantial change in the control of THI, the terms, conditions and environment of his employment will not be unreasonably affected.


(5) Except as described in Section 18 to the contrary, this Agreement is intended to be in addition to any other agreements the parties may have entered into prior to the date hereof, or may enter into prior to a CHANGE IN CONTROL as defined herein, regarding the EXECUTIVE’S employment.

(6) THI and EMPLOYER desire to be assured of the objectivity of the EXECUTIVE in evaluating a potential offer, the effect of which would be a change of control of THI, and advising whether or not he believes a potential change of control is in the best interests of THI and its shareholders. THI and EMPLOYER further desire to be assured of the dedication of the EXECUTIVE to maximizing the value to be received by the shareholders of THI in the circumstances of negotiating or otherwise responding to a proposed change of control, and to be assured of the continuity of services of the EXECUTIVE during such time as a proposed change of control is under negotiation or otherwise pending.

(7) The EXECUTIVE acknowledges and agrees that: (a) the agreement of THI to be a party to this Agreement and to assume certain obligations hereunder and the entitlements provided under this Agreement are for the benefit of the EXECUTIVE, and are sufficient additional consideration for the purposes of this Agreement; and (b) this Agreement is made and entered into by THI and EMPLOYER as a replacement of and to supersede, in its entirety, the Prior Agreement, which has terminated as agreed by the EXECUTIVE, as further described in Section 18 hereof.

(8) THI has agreed to enter into this Agreement with the EXECUTIVE for purposes of Sections 3, 4, 5, 6, 8 and 10 through 18 hereof.

In consideration of their mutual covenants expressed herein and for other consideration described herein and as otherwise given by the parties, the parties, intending to be legally bound hereby, agree as follows:

Section 1. EXECUTIVE’S Rights to Continued Employment in the event of a CHANGE IN CONTROL of THI.

For purposes of this Agreement a “CHANGE IN CONTROL” shall mean the occurrence of:

 

 

(a)

An acquisition (other than directly from THI) of any common shares or other voting securities of THI entitled to vote generally for the election of directors (the “Voting Securities”) by any Person (as the term “person” is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act of thirty percent (30%) or more of THI’S then outstanding common shares or the combined voting power of THI’S then outstanding Voting Securities; providedhowever, in determining whether a CHANGE IN CONTROL has occurred, common

 

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shares or Voting Securities which are acquired in a “Non-Control Acquisition” (as hereinafter defined) shall not constitute an acquisition which would cause a CHANGE IN CONTROL. A “Non-Control Acquisition” shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) THI or (B) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by THI (a “Subsidiary”), (ii) THI or its Subsidiaries, or (iii) any Person in connection with a “Non-Control Transaction” (as hereinafter defined);

 

 

(b)

The individuals who, as of September 28, 2009, are members of the Board of THI (the “Incumbent Board”), cease for any reason to constitute at least seventy percent (70%) of the members of the Board; providedhowever, that if the election, or nomination for election by THI shareholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board;provided furtherhowever, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Proxy Contest; or

 

 

(c)

The consummation of:

 

 

(i)

a merger, consolidation, amalgamation or reorganization with or into THI or in which securities of THI are issued (a “Merger”), unless such Merger is a “Non-Control Transaction.” A “Non-Control Transaction” shall mean a Merger where:

 

 

(A)

the shareholders of THI immediately before such Merger own directly or indirectly immediately following such Merger at least seventy percent (70%) of the combined voting power of the outstanding voting securities of the corporation resulting from such Merger (the “Surviving THI”) in substantially the same proportion as their ownership of the Voting Securities immediately before such Merger,

 

 

(B)

the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such Merger constitute at least two-thirds of the members of the board of directors of the Surviving THI, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving THI, and

 

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(C)

no Person other than (i) THI, (ii) any Subsidiary, (iii) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such Merger was maintained by THI or any Subsidiary, or (iv) any Person who, immediately prior to such Merger had Beneficial Ownership of thirty percent (30%) or more of THI’S then outstanding common shares or the combined voting power of THI’S then outstanding Voting Securities, has Beneficial Ownership of thirty percent (30%) or more of the then outstanding common shares of the Surviving THI or the combined voting power of the Surviving THI’S then outstanding voting securities;

 

 

(ii)

A complete liquidation or dissolution of THI; or

 

 

(iii)

The sale or other disposition of all or substantially all of the assets of THI to any Person (other than a transfer to a Subsidiary).

Notwithstanding the foregoing, a CHANGE IN CONTROL shall not be deemed to occur solely because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the then outstanding common shares or Voting Securities as a result of the acquisition of common shares or Voting Securities by THI which, by reducing the number of common shares or Voting Securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Person, provided that if a CHANGE IN CONTROL would occur (but for the operation of this sentence) as a result of the acquisition of common shares or Voting Securities by THI, and after such acquisition by THI, the Subject Person becomes the Beneficial Owner of any additional common shares or Voting Securities which increases the percentage voting power of the then outstanding Voting Securities Beneficially Owned by the Subject Person, then a CHANGE IN CONTROL shall occur.

If the EXECUTIVE’S employment is terminated by the EMPLOYER without CAUSE prior to the date of a CHANGE IN CONTROL but the EXECUTIVE reasonably demonstrates that the termination (A) was at the request of a third party who has indicated an intention or taken steps reasonably calculated to effect a CHANGE IN CONTROL or (B) otherwise arose in connection with, or in anticipation of, a CHANGE IN CONTROL which has been threatened or proposed, such termination shall be deemed to have occurred after a CHANGE IN CONTROL for purposes of this Agreement provided a CHANGE IN CONTROL shall actually have occurred.

1.1 From and after the date of occurrence of a CHANGE IN CONTROL, the EMPLOYER shall cause the EXECUTIVE to be employed, and the EXECUTIVE shall accept employment, with the duties, nature and place of such employment as described in Section 2 of this Agreement. Solely for purposes of this Agreement, the term of such employment, referred to hereinafter as the “EMPLOYMENT TERM,” shall commence

 

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on the date when the CHANGE IN CONTROL shall have occurred and shall end on the earlier of:

 

 

(a)

the second anniversary of the first to occur of:

 

 

(i)

the date when the occurrence of an event described in subparagraph (a) of Section 1 hereof shall be disclosed in (A) a Schedule 13D or other such similar or successor form promulgated by the Securities and Exchange Commission or Ontario Securities Commission, filed with the Securities and Exchange Commission of Washington, D.C. or (B) an insider report filed with the Ontario Securities Commission in Toronto, Ontario, Canada, and the duplicate of which is actually received by THI, or

 

 

(ii)

the date on which a transaction described in subparagraph (c) of Section 1 of this Agreement (other than a Non-Control Transaction) shall be consummated, or

 

 

(iii)

the first date on which at least thirty percent (30%) of the members of the Board of Directors of THI are not members of the Incumbent Board as described in subparagraph (b) of Section 1 of this Agreement; or

 

 

(b)

the date when the EMPLOYMENT TERM shall be terminated by the EMPLOYER for CAUSE or by the EXECUTIVE without GOOD REASON (as such terms are defined in Section 4 of this Agreement); or

 

 

(c)

the death of the EXECUTIVE.

Section 2. Duties, Nature and Place of Employment. During the EMPLOYMENT TERM, the EXECUTIVE shall provide the EMPLOYER with such executive, financial, administrative, and consulting services in managing and directing the EMPLOYER’S business, which includes the provision of services on behalf of the EMPLOYER to THI or other THI Subsidiaries in respect of the Business, as may be required by the EXECUTIVE’S job description, as attached hereto, or as amended by the agreement of the parties hereafter, or reasonably requested and directed from time to time by action of the EMPLOYER’S Board of Directors. The EXECUTIVE shall at all times faithfully, industriously and to the best of his ability and talent perform all of the duties that may be required or requested of him pursuant to the express terms and conditions of this Agreement. Such duties shall be performed in Oakville, Ontario and, on a periodic basis, at such other place or places as the interests, needs, business and opportunities of EMPLOYER, or THI’S other Subsidiaries, shall reasonably require.

Section 3. Remuneration during the EMPLOYMENT TERM. During the EMPLOYMENT TERM, the EXECUTIVE shall receive from the EMPLOYER, the salary, benefits and perquisites being paid to or afforded him immediately prior to the

 

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date of occurrence of the CHANGE IN CONTROL, subject to annual review in the normal course of business as described in subsections 3.1 herein. Such salary shall be paid to the EXECUTIVE on the same days of each month as the EMPLOYER pays its other employees. The EXECUTIVE shall also be eligible to participate in an annual bonus plan, not less favourable than such plan that EXECUTIVE was eligible for immediately prior to the date of occurrence of the CHANGE IN CONTROL. The EXECUTIVE shall also be entitled to all rights afforded him under the terms of any outstanding stock options granted him by THI and all incentive compensation and deferred compensation programs maintained by the EMPLOYER in which the EXECUTIVE was entitled to participate immediately preceding the CHANGE IN CONTROL, or successors to such programs.

3.1 During the EMPLOYMENT TERM, the THI Board of Directors, or a duly authorized committee thereof shall review annually the performance of the EXECUTIVE, which shall be reported to THI by the EMPLOYER, the results of operations and financial condition of THI, together with prevailing economic conditions and other factors, and consider and determine whether to accept or vary a recommendation of the EMPLOYER:

 

 

(a)

whether the EMPLOYER should increase EXECUTIVE’S salary, and

 

 

(b)

whether the EXECUTIVE should be paid a bonus pursuant to the applicable bonus plan.

3.2 During the EMPLOYMENT TERM, the EMPLOYER shall cause the EXECUTIVE, his spouse and dependent children (in each case, if applicable) to be enrolled in and covered by group life, hospitalization, major medical and disability income insurance coverages under insurance plans and executive physical examination plans not less favourable to the EXECUTIVE than the plans of such description in effect immediately prior to the date of occurrence of the CHANGE IN CONTROL.

3.3 During the EMPLOYMENT TERM, the EMPLOYER shall cause the EXECUTIVE to be a participant in one or more retirement income (pension) plans which afford participation and benefits to the EXECUTIVE on a basis not less favourable to the EXECUTIVE than the plans of such description in effect immediately prior to the date of occurrence of the CHANGE IN CONTROL.

3.4 During the EMPLOYMENT TERM, the EMPLOYER shall cause reimbursement to be paid promptly to the EXECUTIVE for all expenses reasonably incurred by him in connection with performing his duties pursuant hereto.

3.5 During the EMPLOYMENT TERM, in the event that the insurance and physical examination plan benefits required by paragraph 3.2, above, or the retirement income (pension) plan benefits required by paragraph 3.3, above, are not actually available to the EXECUTIVE under the terms of the plan(s) or applicable law, then the EMPLOYER shall make available to the EXECUTIVE an equivalent benefit, or an amount of cash

 

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consideration sufficient to fund or purchase an equivalent benefit, computed as if he had received a full year of service (for vesting and benefit purposes) for each of his years of service with EMPLOYER, or any other affiliate or Subsidiary or THI, including any years for which he is entitled to payment under Section 3 during the EMPLOYMENT TERM.

Section 4. Termination of Employment of the EXECUTIVE during the EMPLOYMENT TERM. The EXECUTIVE’S employment hereunder may be terminated during the EMPLOYMENT TERM under the following circumstances:

4.1 Cause. The EMPLOYER may terminate the EXECUTIVE’S employment under this Agreement for “CAUSE.” A termination for CAUSE is a termination by reason of the good faith determination by the EMPLOYER, subject to the approval of the THI Board of Directors, that the EXECUTIVE (a) willfully and continually failed to substantially perform his duties with the EMPLOYER (other than a failure resulting from the EXECUTIVE’S incapacity due to physical or mental illness) after a written demand for substantial performance is delivered to the EXECUTIVE by the EMPLOYER, with the prior approval of the THI Board of Directors, which specifically identifies the manner in which the EMPLOYER believes that the EXECUTIVE has not substantially performed his duties and such failure substantially to perform continues for at least fourteen (14) days, or (b) has willfully engaged in conduct which is demonstrably and materially injurious to the EMPLOYER or THI, monetarily or otherwise, or (c) has otherwise materially breached this Agreement (including, without limitation, a voluntary termination of the EXECUTIVE’S employment by the EXECUTIVE during the EMPLOYMENT TERM). No act, nor failure to act, on the EXECUTIVE’S part, shall be considered “willful” unless he has acted, or failed to act, with an absence of good faith and without a reasonable belief that his action or failure to act was in the best interest of the EMPLOYER and THI. Notwithstanding the foregoing, the EXECUTIVE’S employment shall not be deemed to have been terminated for CAUSE unless and until (1) there shall have been delivered to the EXECUTIVE a copy of a written NOTICE OF TERMINATION (as defined in Section 4.3 below), which, with respect to termination under this Section 4.1 only, sets forth that the EXECUTIVE was guilty of conduct set forth above in clause (a), (b) or (c) of the first sentence of this Section 4.1 and specifies the particulars thereof in detail, and (2) the EXECUTIVE shall have been provided an opportunity to be heard by the Board of Directors of THI (with the assistance of the EXECUTIVE’S counsel).

4.2 (a) Good Reason. The EXECUTIVE may terminate his employment for “GOOD REASON.” For purposes of this Agreement, GOOD REASON shall mean the occurrence after a CHANGE IN CONTROL of any of the events or conditions described in Subsections (1) through (5) hereof without the EXECUTIVE’S express written consent:

 

 

(1)

a change in the EXECUTIVE’S status, title, position or responsibilities (including reporting responsibilities) which, in the EXECUTIVE’S reasonable judgment, does not represent a promotion from his status, title, position or responsibilities as in effect immediately prior thereto; the

 

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assignment to the EXECUTIVE of any duties or responsibilities which, in the EXECUTIVE’S reasonable judgment, are inconsistent with such status, title, position or responsibilities; or any removal of the EXECUTIVE from or failure to reappoint or reelect him to any of such positions, except in connection with the termination of his employment for DISABILITY, CAUSE, as a result of his death, or by the EXECUTIVE other than for GOOD REASON;

 

 

(2)

a reduction by the EMPLOYER in the EXECUTIVE’S base salary as in effect immediately prior to the CHANGE IN CONTROL or as the same may be increased from time to time thereafter;

 

 

(3)

the EMPLOYER requiring the EXECUTIVE to be based at any place outside a 50 kilometre radius from the EXECUTIVE’S business office location immediately prior to the CHANGE IN CONTROL, except for reasonably required travel on THI or the EMPLOYER’S behalf, or on behalf of another Subsidiary of THI (or its successor’s) business (or the business of any successor to THI as the controlling voting shareholder (whether direct or indirect) of the EMPLOYER) which is not materially greater than such travel requirements prior to the CHANGE IN CONTROL;

 

 

(4)

the failure by the EMPLOYER to continue to provide the EXECUTIVE with compensation and benefits substantially similar (in terms of benefit levels and/or reward opportunities) to those provided for under this Agreement and those provided to him under any of the employee benefit plans in which the EXECUTIVE becomes a participant, or the taking of any action by the EMPLOYER which would directly or indirectly materially reduce any of such benefits or deprive the EXECUTIVE of any material fringe benefit enjoyed by him at the time of the CHANGE IN CONTROL; or

 

 

(5)

any material breach by THI or the EMPLOYER of any provision of this Agreement.

(b) The EXECUTIVE’S right to terminate his employment pursuant to this Section 4.2 shall not be affected by his incapacity due to physical or mental illness.

4.3 Notice of Termination. Any purported termination by the EMPLOYER or by the EXECUTIVE shall be communicated by written NOTICE OF TERMINATION to the other. For purposes of this Agreement, a “NOTICE OF TERMINATION” shall mean a notice which indicates the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the EXECUTIVE’S employment under the provision so indicated. If the EXECUTIVE’S employment is terminated by the EMPLOYER for any reason, NOTICE OF TERMINATION must be given at least 30 days prior to the

 

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EXECUTIVE’S TERMINATION DATE (as defined below). For purposes of this Agreement, no such purported termination, other than due to the EXECUTIVE’S death, shall be effective without such NOTICE OF TERMINATION.

4.4 Termination Date, Etc. “TERMINATION DATE” shall mean, (a) the date of the EXECUTIVE’S death or (b) if the EXECUTIVE’S employment is terminated for any reason other than due to death, the date specified in the Notice of Termination.

Section 5. Compensation Upon Termination. Subject to Section 8.5, upon termination of the EXECUTIVE’S employment during the EMPLOYMENT TERM, the EXECUTIVE shall be entitled to the following benefits:

5.1 If the EXECUTIVE’S employment shall be terminated by the EMPLOYER for CAUSE or by the EXECUTIVE other than for GOOD REASON, the EMPLOYER shall pay the EXECUTIVE his full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and THI and the EMPLOYER shall have no further obligations to the EXECUTIVE under this Agreement. The EXECUTIVE’S benefits thereafter shall be determined in accordance with the EMPLOYER’S employee benefit plans and other applicable programs and practices then in effect.

5.2 If the EXECUTIVE’S employment terminates by reason of the EXECUTIVE’S death, the EMPLOYER shall pay the EXECUTIVE’S beneficiaries his full base salary and accrued vacation pay through the TERMINATION DATE, plus any benefits or awards which pursuant to the terms of any compensation or benefit plan have been earned or become payable, but which have not yet been paid to the EXECUTIVE and a pro rata portion of any bonus or incentive award that the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, payable at the same time that such bonuses or awards are payable to other employees of the EMPLOYER. In the case of the EXECUTIVE’S death, the EXECUTIVE’S beneficiaries’ benefits shall be determined in accordance with the EMPLOYER’S employee benefit plans and other applicable programs and practices then in effect.

5.3 If the EXECUTIVE’S employment shall be terminated (i) by the EMPLOYER other than for CAUSE or death, or (ii) by the EXECUTIVE for GOOD REASON, then the EXECUTIVE shall be entitled to the benefits provided below:

 

 

(a)

the EMPLOYER shall pay the EXECUTIVE his full base salary and accrued vacation pay through the TERMINATION DATE, plus the benefits or awards which pursuant to the terms of any of the EMPLOYER’S compensation or benefit plans have been earned or become payable as if all objectives including the completion of the award cycle thereunder had been met, but which have not yet been paid to the EXECUTIVE, and a pro rata portion of any bonus or incentive award that

 

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the EXECUTIVE would have been entitled to receive in respect of the calendar year in which the EXECUTIVE’S TERMINATION DATE occurs had he continued in employment until the end of such calendar year, calculated as if all performance targets under the applicable plan had been fully met at the target level by THI, by the EMPLOYER and/or by the EXECUTIVE, as applicable; provided, however, that the bonus payment provided for in this Section 5.3(a) shall be reduced (but not below zero) by the amount, if any, payable to the EXECUTIVE in respect of the year in which the EXECUTIVE’S TERMINATION DATE occurs under the provisions of any other bonus or incentive plan, as applicable.

 

 

(b)

as severance pay and in lieu of any further salary for periods subsequent to the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount in cash equal to three times the greater of (I) the sum of (A) the EXECUTIVE’S annual base salary at the rate in effect at the time NOTICE OF TERMINATION is given and (B) annual target bonus amount in effect at the time NOTICE OF TERMINATION is given, or (II) the sum of (A) the average of the EXECUTIVE’S annual base salary at the rate in effect at the time NOTICE OF TERMINATION is given and the EXECUTIVE’S annual base salary for each of the two years prior thereto; and (B) the average of the annual target bonus amount in effect at the time NOTICE OF TERMINATION is given and the EXECUTIVE’S annual target bonus amount for each of the two years prior thereto.

 

 

(c)

as additional severance, the EMPLOYER shall pay to the EXECUTIVE in a single payment an amount equal to the present value of the employer contributions the EXECUTIVE would have accrued under the EMPLOYER’S registered pension plan and supplemental plan, if any, if he had remained an employee for three years following the TERMINATION DATE. For purposes of this determination, the base salary of the EXECUTIVE over this period shall be equal to his base salary in effect at the TERMINATION DATE, and the employee contribution rate of the EXECUTIVE under the registered pension plan shall be equal to the contribution rate in effect at the TERMINATION DATE. Present values shall be determined using a discount rate equal to the interest rate recommended by the Canadian Institute of Actuaries for the computation of transfer values from a registered pension plan.

 

 

(d)

for the three years following the TERMINATION DATE, the EMPLOYER shall at its expense continue on behalf of the EXECUTIVE and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the EXECUTIVE at the time NOTICE OF TERMINATION is given. The benefits provided in this Section 5.3(d) shall be no less favourable to the EXECUTIVE, in terms of amounts and deductibles and costs to him, than

 

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the coverage provided the EXECUTIVE under the EMPLOYER’S plans providing such benefits at the time NOTICE OF TERMINATION is given. The EMPLOYER’S obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the EXECUTIVE obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case the EMPLOYER may reduce the coverage of any benefits it is required to provide the EXECUTIVE hereunder as long as the aggregate coverage of the combined benefit plans is no less favourable to the EXECUTIVE in terms of amounts and deductibles and costs to him, than the coverage which would be provided hereunder by the EMPLOYER to the EXECUTIVE at the time the NOTICE OF TERMINATION is given. Except as expressly set forth above, this paragraph (d) shall not be interpreted so as to limit any benefits to which the EXECUTIVE or his dependents may be entitled under any of the EMPLOYER’S employee benefit plans, programs or practices following the EXECUTIVE’S termination of employment. Where such benefits as contemplated in this section 5.3(d) are not available to EXECUTIVE as a result of EXECUTIVE not being employed by the EMPLOYER, the EMPLOYER shall pay, in a lump sum, the present value of the cost of such benefits, had they been available under the same terms and conditions and the EMPLOYER benefit plans, and net of any required contribution by the EXECUTIVE.

 

 

(e)

for the three years following the TERMINATION DATE, the EMPLOYER shall pay to the EXECUTIVE a monthly allowance equal to a pre-determined monthly amount for the car payment, gas, maintenance and insurance for the grade level of the EXECUTIVE, established by the EMPLOYER from time to time, to replace the benefit of the car being used by the EXECUTIVE prior to the TERMINATION DATE. The EXECUTIVE shall return the car being used by such EXECUTIVE to the EMPLOYER upon the TERMINATION DATE.

5.4 The amounts provided for in Sections 5.1, 5.2 and 5.3(a), (b) and (c) shall be paid within ten days after the EXECUTIVE’S TERMINATION DATE.

5.5 The EXECUTIVE shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise and no such payment, except as otherwise set forth in Section 5.3(d) hereof, shall be offset or reduced by the amount of any compensation or benefits provided to the EXECUTIVE in any subsequent employment.

Section 6. Effect of a CHANGE IN CONTROL. Upon the occurrence of any CHANGE IN CONTROL, (a) any options to purchase shares of THI and any stock appreciation rights or restricted stock units, or other equity award granted by THI to the EXECUTIVE, which are not yet fully vested and exercisable, shall become fully vested and exercisable,

 

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and (b) any restrictions remaining at that time on any stock awarded to the EXECUTIVE by THI shall lapse.

Section 7. Fees and Expenses. The EMPLOYER shall pay all reasonable legal fees and related expenses (including the costs of experts, evidence and counsel) incurred in good faith by the EXECUTIVE as a result of (a) the termination of the EXECUTIVE’S employment by the EMPLOYER or by the EXECUTIVE for GOOD REASON (including all such fees and expenses, if any, incurred in contesting, defending or disputing the basis for any such termination of employment), or (b) the EXECUTIVE seeking to obtain or enforce any right or benefit provided by this Agreement or by any other plan or arrangement maintained by the EMPLOYER under which the EXECUTIVE is or may be entitled to receive benefits in accordance with the terms hereof; providedhowever, that such payments by EMPLOYER of reasonable legal fees and related expenses of EXECUTIVE shall be required only to the extent that the EXECUTIVE is determined, by non-appealable order of a court of competent jurisdiction or through a properly conducted arbitration proceeding, to be the prevailing party in any claim, dispute or action relating to matters described in items (a) or (b) above.

Section 8. Protection of Business. Notwithstanding anything to the contrary in this Agreement:

8.1 At all times during the EMPLOYMENT TERM while the EXECUTIVE is employed by the EMPLOYER, the EXECUTIVE will not participate as a partner, joint venturer, officer, director, employee, or representative, or have any direct financial interest in, any business or enterprise conducting a quick service restaurant business in the United States or Canada, other than a business or enterprise engaged in operating restaurants under a franchise granted by the EMPLOYER, or any affiliated person; provided, that the ownership by EXECUTIVE of securities of a public corporation shall not be a violation of this subparagraph so long as (a) the EXECUTIVE does not own, directly or indirectly, more than five percent (5%) of any class of the securities of such corporation, and (b) the value of such securities does not exceed ten percent (10%) of the net worth of the EXECUTIVE; and provided further that ownership by EXECUTIVE of securities of THI or any successor to THI by merger or other form of transaction contemplated by subparagraph (a) or (c) of Section 1 hereof shall not be a violation of this subparagraph.

8.2 The EXECUTIVE will not at any time (during or after the expiration of the EMPLOYMENT TERM) divulge, disclose, reveal or communicate to any person, firm, corporation, partnership, joint venture or other entity, directly or indirectly, any trade secrets or other information which the EXECUTIVE may have obtained during the course of his employment by the EMPLOYER in respect of any matters affecting or relating to the quick service restaurant business and/or, in particular, the businesses of the EMPLOYER and any affiliated person, including, without limitation, any of their plans, policies, business practices, finances, recipes, methods of operation, franchises or other

 

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information known to the EXECUTIVE to be considered by the EMPLOYER, or any affiliated person to be confidential information.

8.3 Notwithstanding anything to the contrary contained in this Agreement, the EXECUTIVE shall be required to pre-clear with the senior attorney in THI’S securities practice group (the “Senior Attorney”), or his/her designee, any trades in the securities of THI of which the EXECUTIVE is the legal or beneficial owner, or any securities of any successor of THI following a CHANGE IN CONTROL, for a period of 12 months following the TERMINATION DATE. The EXECUTIVE may not effectuate trades where the Senior Attorney or his/her designee has not provided a permissive trading recommendation. It is the EXECUTIVE’S obligation and responsibility to comply with all applicable securities laws, including but not limited to insider reporting requirements, for so long as, and to the extent, applicable.

8.4 Notwithstanding anything to the contrary contained in this Agreement, the restrictions on competition and other restrictions imposed upon the EXECUTIVE by this Section 8 may be enforced by the EMPLOYER, THI or any of its Subsidiaries by an action for an injunction, it being agreed (in view of the general practical impossibility of determining by computation or legal proof of the exact amount of damages, if any, resulting to the EMPLOYER, THI or any of its Subsidiaries from a violation by the EXECUTIVE of the provisions of this Section 8) that there would be no adequate remedy at law for any breach by the EXECUTIVE of any such restriction.

8.5 Notwithstanding anything set forth herein to the contrary, the EXECUTIVE acknowledges and agrees that THI’S Recoupment Policy Relating to Performance-Based Compensation originally adopted by the Board of Directors of THI USA on February 19, 2009 and assumed and adopted by the Board of Directors of THI on September 28, 2009 (the “Recoupment Policy”) (a) is binding on the EXECUTIVE, (b) the EXECUTIVE is a “Senior Executive” under such Recoupment Policy, (c) all performance-based compensation awarded to the EXECUTIVE in accordance with the terms and conditions of this Agreement or otherwise under any incentive, bonus or other plan of THI or its Subsidiaries are subject to the Recoupment Policy and (d) the Recoupment Policy is hereby attached as Exhibit A and is made a part of this Agreement.

Section 9. Notices and Payments. All payments required or permitted to be made under the provisions of this Agreement, and all notices and other communications required or permitted to be given or delivered under this Agreement to the EMPLOYER or to the EXECUTIVE, which notices or communications must be in writing, shall be deemed to have been given if delivered by hand, or mailed by first class mail, addressed as follows:

9.1 if to the EMPLOYER, to:

Chief Financial Officer

The TDL Group Corp.

874 Sinclair Road

Oakville, ON L6K 2Y1

 

13


With a copy to:

Secretary

The TDL Group Corp.

874 Sinclair Road

Oakville, ON L6K 2Y1

9.2 if to EXECUTIVE, to:

 

Paul D. House

  

 

  

 

  

The EMPLOYER or the EXECUTIVE may, by notice given to the others from time to time, designate a different address for making payments required to be made, and for the giving of notices or other communications required or permitted to be given, to the party designating such new address. Any payment, notice or other communication required or permitted to be given in accordance with this Agreement shall be deemed to have been given if and when placed in the U.S. or Canadian Mail (as applicable), addressed and mailed as provided above.

Section 10. Payroll Taxes. Any payment required or permitted to be made or given to the EXECUTIVE pursuant to this Agreement shall be subject to the withholding and other requirements of applicable laws, and to the deduction requirements of any benefit plan maintained by the EMPLOYER in which the EXECUTIVE is a participant, and to all reporting, filing and other requirements in respect of such payments, and the EMPLOYER or THI, as applicable, shall promptly satisfy all such requirements.

Section 11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.

Section 12. Duplicate Originals. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken together, shall constitute a single instrument.

Section 13. Captions. The captions contained in this Agreement are included only for convenience of reference and do not define, limit, explain or modify this Agreement or its interpretation, construction or meaning.

Section 14. Severability. If any provision of this Agreement or the application of any provision to any person or any circumstances shall be determined to be invalid or unenforceable, then such determination shall not affect any other provision of this Agreement or the application of said provision to any other person or circumstance, all of which other provisions shall remain in full force and

 

14


effect. It is the intention of THI, the EMPLOYER and the EXECUTIVE that if any provision of this Agreement is susceptible of two or more constructions, one of which would render the provision enforceable and other or others of which would render the provision unenforceable, then the provision shall have the meaning which renders it enforceable.

Section 15. Number and Gender. When used in this Agreement, the number and gender of each pronoun shall be construed to be such number and gender as the context, circumstances or its antecedent may require.

Section 16. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns (including successive, as well as immediate, successors and assigns) of THI and the EMPLOYER; provided, however, that the obligations of this Agreement may not be transferred by THI or the EMPLOYER, except in accordance with the following proviso: provided further, however, that if THI or the EMPLOYER transfers to any other person substantially all of its assets and/or business by merger, amalgamation, consolidation, sale of assets or otherwise, THI or the EMPLOYER, as applicable, must transfer its obligations hereunder to such other person and such other person must accept such transfer and assume the obligations of the EMPLOYER, and of THI, if applicable, imposed hereby, resulting in a permissible assignment and transfer of this Agreement by THI and/or the EMPLOYER, as applicable. THI or the EMPLOYER shall notify the EXECUTIVE in writing within thirty (30) days following any transfer of business and assets that the transferee has accepted the transfer and assumption of the EMPLOYER’S, and of THI’S, if applicable, obligations under this Agreement. This Agreement shall inure to the benefit of and be binding upon the heirs and assigns (including successive, as well as immediate, assigns) of the EXECUTIVE; provided, however, that the rights of the EXECUTIVE under this Agreement may be assigned only to his personal representative or by will or pursuant to applicable laws of descent and distribution.

Section 17. Arbitration. All matters in difference between the parties in relation to this Agreement shall be referred to the arbitration of a single arbitrator if the parties agree upon one, otherwise to three arbitrators, one to be appointed by each party and a third to be chosen by the first two named before they enter upon the business of arbitration. Such arbitration shall take place in the City of Toronto, or as the parties may otherwise agree in writing. The award and determination of the arbitrator or arbitrators or any two of the three arbitrators shall be binding upon the parties and their respective heirs, executors, administrators and assigns. During the pendency of such arbitration proceedings, the EXECUTIVE shall be entitled to the full benefits provided by the Agreement.

 

15


Section 18. Termination of Prior Agreement and Wendy’s Prior Agreement. EXECUTIVE, THI, and the EMPLOYER hereby acknowledge, understand, and agree that (i) this Agreement replaces and supersedes, in its entirety, the Prior Agreement; (ii) the Prior Agreement is terminated and is of no further force and effect as of the date of the corporate reorganization which occurred on September 28, 2009; (iii) in accordance with the terms of the Prior Agreement, the Prior Agreement replaced, superseded and terminated the EXECUTIVE’S prior employment agreement with Wendy’s International (the “Wendy’s Prior Agreement”) and the Wendy’s Prior Agreement was terminated and was of no further force and effect as of the date of the spinoff of THI from Wendy’s on September 29, 2006; and (iv) none of the EXECUTIVE, THI, THI, Wendy’s nor the EMPLOYER shall have any further rights, obligations, responsibilities or duties under the Prior Agreement or the Wendy’s Prior Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed to be effective as of the date first above written.

 

EMPLOYER:

THE TDL GROUP CORP.

By:

 

 

Print Name:

Title:

EXECUTIVE:

 

Paul D. House, an individual

THI:

TIM HORTONS INC.

By:

 

 

Print Name:

Title:

 

16


EXHIBIT A

Tim Hortons Inc.

Recoupment Policy Relating to Performance-Based Compensation

(Effective Date: February 19, 2009)

If the Company’s financial statements are required to be restated for any reason, the Board of Directors (the “Board”) of Tim Hortons Inc. (the “Company”) will review all performance-based compensation awarded to or earned by Senior Executives (as defined below) for all fiscal periods materially affected by the restatement.

If the Board determines that the payment of such performance-based compensation was predicated upon the achievement of certain financial results that were subsequently corrected as part of a restatement and a lower incentive payment or award would have been made to Senior Executives based upon the restated financial results, then, the Board will, to the extent permitted by applicable law, seek recoupment from the Senior Executives for the extent of such performance-based compensation as it deems appropriate, after a review of all relevant facts and circumstances.

Generally, this review would include consideration of:

 

 

 

The Board’s determination of the amount of performance-based compensation that would have been awarded to or earned by the Senior Executive had the financial statements been properly reported in the first instance;

 

 

 

The nature of the events that led to the restatement;

 

 

 

The conduct of the Senior Executive in connection with the events that led to the restatement;

 

 

 

Whether the assertion of recoupment (or a resulting claim) against the Senior Executive could prejudice the Company’s overall interests and whether other penalties or punishments are being imposed on the Senior Executive, including by third parties such as regulators or other authorities; and

 

 

 

Any other facts and circumstances that the Board deems relevant.

For purposes of this Policy, “Senior Executives” means the Company’s executive officers (as defined under the Securities Exchange Act of 1934, as amended), other principal corporate officers (as elected by the Board), and other key employees and former employees who are designated from time to time by the Board or Chief Executive Officer. Nothing contained in this Policy will limit the Company’s ability to seek recoupment, in appropriate circumstances (including circumstances beyond the scope of this Policy), and as permitted by applicable law, of any amounts from any employee, whether or not the


employee is a Senior Executive. For greater clarity, the provisions of this Policy apply to “former” employees of the Company as well to the extent such employees received incentive-based compensation that is subject to recoupment under this Policy.

This Policy is intended to apply to annual incentive compensation (or bonus) awards, long-term incentive performance awards, stock options, stock appreciation rights, restricted stock units (including performance-based restricted stock units), dividend equivalent rights, and any other similar awards or other compensation that the Board determines to be “incentive based” (including but not limited to, at the Board’s discretion, payments made under employment, severance, or change in control agreements), in every case to the extent awarded or paid by the Company on or after the Effective Date. Additional terms, conditions, and procedures providing for greater detail with respect to the implementation of the principles of this Policy may be set forth in the Company’s benefit plans, programs, and/or affected agreements.

Any recoupment under this Policy may be in addition to any other remedies that may be available to the Company under applicable law or in accordance with the terms of affected compensation plans, programs, or agreements, including disciplinary actions up to and including termination of employment.

The Board of Directors may delegate one or more of the duties or powers described in this Policy to one or more Committees of the Board consisting solely of independent directors.

 

2

 

 

 

 

 

EX-10.(G) 2 dex10g.htm FORM OF FIRST AMENDMENT TO EMPLOYMENT AGREEMENT

Exhibit 10(g)

FIRST AMENDMENT TO

EMPLOYMENT AGREEMENT

Between

THE TDL GROUP CORP.

And

TIM HORTONS INC.

And

[Employee]

WHEREAS, The TDL Group Corp., Tim Hortons Inc. (“THI”) and [Employee] (the “Executive”) previously entered into that employment agreement effective as of September 28, 2009 (“Agreement”); and

WHEREAS, the Executive became the direct employee of THI commencing January 4, 2010 and, therefore, The TDL Group Corp. is no longer the Executive’s “Employer”; and

WHEREAS, the parties mutually desire to amend the Agreement as provided herein to be effective on February 24, 2010 (the “Effective Date”).

NOW THEREFORE, in consideration of the foregoing, the past, current and future services to be performed by the Executive, and the Executive’s continued employment with the Employer pursuant to the terms and conditions of the Agreement, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

 

1.

Effective as of January 4, 2010, whenever the defined term “Employer” is used in the Agreement, it shall mean THI, and THI shall have all the rights and benefits owing to “Employer” under the Agreement, and THI shall be required to perform all of the obligations of the “Employer,” as set forth in the Agreement. The TDL Group Corp. is hereby discharged and released from all liabilities and obligations under the Agreement and hereby relinquishes all rights thereunder.

 

 

2.

Section 6 of the Agreement is hereby deleted in its entirety and replaced by the following:

Section 6. Effect of a Change in Control on Equity Awards. If, during the Employment Term, the Executive’s employment shall be terminated (i) by the Employer other than for Cause or death or (ii) by the Executive for Good Reason, (a) any options to purchase shares of THI and any stock appreciation rights or restricted stock units, or other equity awards granted by THI to the Executive, which are not yet fully vested and exercisable, shall become fully vested and exercisable, and (b) any restrictions remaining at that time on any stock award to the Executive by THI shall lapse. If, during the Employment Term, the Executive’s employment is terminated by the Employer for Cause, by the Executive’s death, or by the Executive other than for Good Reason, the treatment of any options to purchase shares of THI, any stock


appreciation rights or restricted stock units, or other equity awards granted by THI to the Executive, or any stock award to the Executive by THI shall be determined pursuant to the terms of the Tim Hortons, Inc. 2006 Stock Incentive Plan, which shall be in effect as of the applicable time.

 

 

3.

The fourth and fifth lines of Section 8.5, are hereby amended by inserting the following after “September 28, 2009” and before “(the “Recoupment Policy”),”:

, as may be amended from time to time thereafter.

 

 

4.

Section 8.5(d) is hereby deleted in its entirety and the following is hereby substituted therefor:

(d) the Executive acknowledges having received a copy of the Recoupment Policy.

IN WITNESS WHEREOF, the parties have executed, or caused their duly authorized representatives to execute, this First Amendment to be effective as of the Effective Date.

 

TIM HORTONS INC.

 

 

THE TDL GROUP CORP.

By:

 

 

 

 

By:

 

 

Its:

 

 

 

 

Its:

 

 

EXECUTIVE

 

 

 

 

 

 

 

[insert name]

 

 

 

 

 

 

 

EX-10.1 2 d535875dex101.htm EX-10.1

Exhibit 10.1

Marc Caira

Hand-Delivered

Dear Mr. Caira:

Re: Offer of Employment as President and Chief Executive Officer

We are pleased to offer you a permanent, full-time position with Tim Hortons Inc. (the “Company” or “THI”) as President and Chief Executive Officer, reporting to our Board of Directors.

Scope of Employment

As President and Chief Executive Officer, you shall undertake those duties, responsibilities and reporting requirements which are ordinarily expected of a President and Chief Executive Officer of a publicly-listed company, as well as other services as are required from time to time by the Board. You shall perform these services principally from the Head Office of the Company in Oakville, Ontario, although you acknowledge that the performance of these duties and functions may necessitate travel to other places throughout Canada, the United States and Internationally.

As President and Chief Executive Officer, you will have responsibility for managing the overall operations of the Company and its affiliates, subject to the oversight of the Board. It is also anticipated that you will serve as a member of the Board of Directors concurrently with your service as President and Chief Executive Officer. Throughout the term of your employment, you agree to carry out the performance of your duties in compliance with the governing documents of the Company, including all rules, policies and practices now or hereafter established and amended from time to time by the Company.

Employment Conditions

This offer is conditional upon satisfaction of each of the following conditions:

 

 

 

Approval by the Board of Directors of the Company of your appointment as President and Chief Executive Officer, and your compensation;

 

 

 

Execution of this Offer Letter and the attached Employment and Post-Employment Covenants Agreement (the “Covenants Agreement”) in forms satisfactory to the Company; and

 

 

 

Commencement of the provision of full-time employment services to the Company, in accordance with the terms of this Offer Letter and the Covenants Agreement, on or prior to July 2, 2013.


Subject to the satisfaction of the foregoing conditions, your employment with the Company will commence on July 2, 2013, and will be subject to the terms and conditions set forth in the table below. As a result of the Company’s recent reorganization and certain other factors, the Company’s compensation and benefits policies and programs are currently being reviewed and may be substantially amended or revised. Accordingly, the compensation set forth below, including your entitlement to short- and long-term incentives and benefits, apply solely with respect to the 2013 fiscal year, and may be amended, revised and/or cancelled beginning in the 2014 fiscal year. We currently expect that any amendments or revisions to our policies and programs may change the type of compensation offered, but we do not expect them to result in a decrease in the quantum of your overall compensation.

All dollar amounts in this Offer Letter are in Canadian funds. In addition, we have separately provided to you information on the Company’s Group Benefit package and pension plan. The signature below indicates that you have reviewed and read these materials.

 

Provision

  

Employment Terms

  

Commentary

Position

  

•   President & Chief Executive Officer

  

•   Reports to the Board of Directors of the Company.

Effective Date

  

•   No later than July 2, 2013

  

Term of Agreement

  

•   Open-ended employment

  

•   No fixed term.

Base Salary

  

•   $910,000

  

•   Prorated to the portion of the fiscal year that you are employed by the Company.

 

•   Base Salary shall be payable in accordance with Company practices and procedures, as they may exist from time to time.

 

•   Base Salary will be reviewed by the Board on an annual basis, and any future adjustments in Base Salary (if any) will be at the sole discretion of the Board.

Target Annual Incentive (EAPP)

  

•   $1,000,000 at target for 2013 (prorated to start date)

  

•   Awards under the EAPP are entirely discretionary on the part of the Company, and there is no guarantee of an award in any particular year.

 

Page 2.


Provision

  

Employment Terms

  

Commentary

  

  

•   Participation in the EAPP shall be subject to the Company’s practices and procedures as they may exist from time to time including, without limitation, the attainment of performance objectives and other grant conditions.

 

•   2013 award shall be prorated to the portion of the fiscal year that you are employed by the Company.

 

•   For the 2013 target, performance objectives shall be a mix of THI corporate EBIT (70%), Canada BU EBIT (15%) and U.S. BU EBIT (15%).

 

•   Weighting and design subject to change at Board’s discretion.

Target Total Cash Compensation

  

•   $1,910,000 (prorated to start date)

  

•   Actual compensation may vary depending upon the Company’s performance against EAPP goals.

Restricted Share Units (P+RSUs)

  

•   $1,000,000 at target

•   Full 2013 grant in August at same vesting schedule as annual May 2013 grant.

  

•   Grant of awards under the Stock Incentive Plan is entirely discretionary on the part of the Company, and there is no guarantee of an award or grant in any particular year.

 

•   Participation in the Stock Incentive Plan shall be subject to the Company’s practices and procedures as they may exist from time to time including the attainment of performance objectives and other grant conditions.

 

•   P+RSU grant size varies based on previous year’s EBIT performance.

 

•   Cliff vest in November 2015.

 

•   Weighting and design subject to change at Board’s discretion.

 

Page 3.


Provision

  

Employment Terms

  

Commentary

Stock Options/SARs

  

•   $1,000,000

•   Full 2013 grant in August at same vesting schedule as annual May 2013 grant

  

•   Grant of awards under the Stock Incentive Plan is entirely discretionary on the part of the Company, and there is no guarantee of an award or grant in any particular year.

 

•   Participation in the Stock Incentive Plan shall be subject to the Company’s practices and procedures as they may exist from time to time including the attainment of performance objectives and other grant conditions.

 

•   Options/SARs vest annually over 3 years with a 7-year term.

 

•   Weighting and design subject to change at Board’s discretion.

Welcome (Sign-On) Grant

  

•   Welcome Grant of $500,000 of RSUs or Options/SARs, at your election; if no preference, then split 50/50: $250,000 of Options/SARs and $250,000 of RSUs

 

•   Grant to be made in August 2013

  

•   To be granted during the first trading window after employment commences.

 

•   RSUs would cliff after 3 years.

 

•   Options/SARs would vest annually over 3 years with a 7-year term.

Target Total Direct Compensation

  

•   $4,410,000

  

•   Realized value may vary from target, based on performance.

Company Car

  

•   Approximately $20,000 per annum

  

•   Lease, gas, maintenance.

Financial/Tax Counseling

  

•   One-time allowance of $15,000

  

Executive medical

  

•   Approximately $2,000 per annum

  

•   Medcan Assessment.

Pension

  

•   Eligible to participate in existing THI executive pension plan arrangements (defined contribution and savings plan)

  

•   The defined contribution plan includes compulsory employee participation and employer contributions at levels determined by the Company.

 

•   The Company regularly reviews these plans, and accordingly, reserves the right to, at any time, amend or terminate these plans.

 

Page 4.


Provision

  

Employment Terms

  

Commentary

Life Insurance/Other Benefits

  

•   Eligible to participate in the Company’s benefit plans, including medical, dental, vision, life and long-term disability insurance, which are offered to other employees of the Company at the executive officer level.

  

•   The Company regularly reviews the benefit plans, as well as its insurance carriers, and accordingly, reserves the right to amend or discontinue the benefit plans and change its insurance carriers where deemed appropriate.

Vacation

  

•   Entitled to 5 weeks’ vacation

  

Relocation

  

•   Maximum of $50,000

  

Change of Control

  

•   Change of control provisions as appropriate within existing plan documentation, plus benefits under a Change in Control Agreement

  

•   Double trigger Change in Control Agreement.

 

•   Severance, as a result of termination following a change in control, is set forth in the Change in Control Agreement (two times total cash)

Restrictive Covenants

  

•   Confidentiality agreement

 

•   Non-compete clause – 1 year from notice of termination

 

•   Non-solicitation clause – 2 years from notice of termination

 

•   Other covenants as set forth in the Covenants Agreement

  

Policies

  

•   Acknowledgement to comply with applicable Company plans and programs

  

•   Recoupment policy

 

•   Share ownership guidelines (5x base salary)

 

•   Insider trading policy

 

•   Standards of Business Practices

 

•   Governance Guidelines

 

•   All other policies, as applicable to directors and employees

 

Page 5.


Notwithstanding anything that may be construed to the contrary in the Company’s compensation, benefit and pension plans, programs and policies (collectively, the “Plans”), if your employment with the Company terminates for a reason other than a termination with cause, that termination of employment shall be considered a “Retirement” under each of the Plans, on the condition that you have been continuously employed by the Company, on a full-time basis, for a minimum period of three years prior to such termination.

Corporate Plans and Policies

By signing this Offer Letter, you acknowledge and agree that:

 

 

(a)

the Company has provided you with copies of all of the Company’s policies and programs relevant to your employment, including but not limited to those described in the Company’s management information circular dated March 12, 2013 in the sections entitled “Corporate Governance Principles and Practices”, “Compensation Discussion and Analysis” and “Executive and Director Compensation” (collectively, the “Company Policies”);

 

 

(b)

you have read and understood the Company Policies, and agree that your employment, as well as your entitlement to compensation, benefits and incentives, will be governed by the Company Policies;

 

 

(c)

the Company may, from time to time, amend, alter, change or delete policies and programs including, without limitation, the Company Policies, to meet the business needs of the enterprise and that, upon receiving notice of such policies or programs (or any amendments, alternations, changes or deletions thereof), your employment, as well as your entitlement to compensation, benefits and incentives, will be governed by such revised policies and programs; and

 

 

(d)

as noted above, as a result of the Company’s recent reorganization and certain other factors, the Company’s policies and programs including, without limitation, the Company Policies, are currently being reviewed and may be substantially amended or revised in the short- to long-term. Accordingly, your compensation including your entitlement to short- and long-term incentives and benefits, as set forth in this Offer Letter, apply solely to the 2013 fiscal year, and may be amended or revised beginning in the 2014 fiscal year.

In addition, by signing this Offer Letter, you acknowledge and agree that:

 

 

(a)

as an officer of the Company, you will be held to equity ownership guidelines equal to five times your base salary, from time to time (i.e., at your initial annual base salary, this would be $4,550,000), and you have until the end of 2017 to satisfy the guidelines;

 

Page 6.


 

(b)

the Company’s Recoupment Policy Relating to Performance-Based Compensation is binding on you as a “Senior Executive” under such policy, and that all performance-based compensation awarded to you in accordance with the terms and conditions of this Offer Letter or otherwise under any incentive, bonus or other plan of the Company or its affiliates are subject to the Recoupment Policy.

Eligibility to Perform Services

By signing this Offer Letter, you represent, warrant and covenant that:

 

 

(a)

you are legally eligible to work in Canada and will continue to be legally eligible to work in Canada;

 

 

(b)

you are not bound by any agreement or subject to any legal obligations to any third party, including but not limited to any person with whom the Company may be in competition, that would prohibit you from negotiating or accepting employment with the Company or would otherwise conflict with any of your obligations to the Company under this Offer Letter or the Covenants Agreement including but not limited to any confidentiality, non-competition, non-solicitation or non-interference agreement with respect to any third party; and

 

 

(c)

the information provided by you, both verbally and on any resume, application form or questionnaire is complete and accurate in every respect.

You acknowledge that the Company has relied upon the representations outlined above, and you agree to indemnify and hold the Company, its directors, officers, employees, agents and/or consultants harmless against any and all claims, liabilities, losses, damages, costs, fees and/or expenses including reasonable legal fees incurred by the Company, its directors, officers, employees, agents and/or consultants by reason of your violation of any of the representations set forth above.

Privacy Consent

By accepting employment with the Company, you hereby consent to the Company and any affiliate collecting, using and disclosing your personal information to establish, manage, terminate and/or otherwise to administer the employment relationship, including, but not limited to:

 

 

(a)

ensuring that you are properly remunerated for your services to the Company which may include disclosure to third party payroll providers;

 

 

(b)

administering and/or facilitating the provision of any benefits to which you are or may become entitled, including benefits coverage, registered retirement savings plan and incentive plans; this shall include the disclosure of your personal information to the Company’s third party service providers and administrators;

 

Page 7.


 

(c)

ensuring that the Company is able to comply with any regulatory, reporting and withholding requirements relating to your employment;

 

 

(d)

performance and promotion;

 

 

(e)

monitoring your access to and use of the Company’s electronic media services in order to ensure that the use of such services is in compliance with the Company’s policies and procedures and is not in violation of any applicable laws;

 

 

(f)

complying with the Company’s obligations to report improper or illegal conduct by any director, officer, executive or agent of the Company under any applicable securities, criminal or other law;

 

 

(g)

acquiring, selling or transferring any or all of the Company’s business; and

 

 

(h)

complying with all applicable laws relating to public disclosure or otherwise.

You also agree to the terms of the enclosed Covenants Agreement which forms part of this offer of employment, and which expands upon several of the terms and conditions of employment set forth herein. You also agree to the terms of the enclosed Change in Control Agreement, which forms part of this offer of employment. Congratulations on joining the Company. We are confident you will find your new position both challenging and rewarding.

 

Tim Hortons Inc.

Per:

 

/S/ PAUL D. HOUSE

 

Paul D. House

 

Executive Chairman and CEO

The undersigned hereby accepts the above offer of employment upon the terms and conditions set out therein. The undersigned acknowledges that he was given the opportunity to obtain independent legal advice prior to accepting the said offer of employment. The parties hereto shall be entitled to rely on delivery of a facsimile/electronically scanned copy of this executed document and such copy shall be legally effective to create a valid and binding agreement.

 

 

 

 

/S/ MARC CAIRA

Signature

 

 

Marc Caira

 

Dated May 7, 2013, to be effective as of the issuance of the press release regarding the CEO appointment.

 

Page 8.