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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
☒ ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2020
or
For the transition period from to
Commission file number: 001-36786
RESTAURANT BRANDS INTERNATIONAL INC.
(Exact name of Registrant as Specified in Its Charter)
Canada
(State or Other Jurisdiction of
Incorporation or Organization)
130 King Street West, Suite 300
Toronto, Ontario
(Address of Principal Executive Offices)
98-1202754
(I.R.S. Employer
Identification No.)
M5X 1E1
(Zip Code)
(905) 339-6011
Registrant’s telephone number, including area code
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Shares, without par value
Trading Symbols
QSR
Name of each exchange on which registered
New York Stock Exchange
Toronto Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of
Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such
files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an
emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
Large accelerated filer
Non-accelerated filer
☒
☐
Accelerated filer
Smaller reporting company
Emerging growth company
☐
☐
☐
If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control
over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its
audit report. ☒
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The aggregate market value of the common equity held by non-affiliates of the registrant on June 30, 2020, computed by reference to the closing price for
such stock on the New York Stock Exchange on such date, was $16,357,377,151.
The number of shares outstanding of the registrant’s common shares as of February 15, 2021 was 305,144,809 shares.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the registrant’s definitive proxy statement for the 2021 Annual General Meeting of Shareholders, which is to be filed no later than 120 days after
December 31, 2020, are incorporated by reference into Part III of this Form 10-K.
Table of Contents
RESTAURANT BRANDS INTERNATIONAL INC.
2020 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Item 15.
Item 16.
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosure
PART I
PART II
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Items
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accounting Fees and Services
PART III
PART IV
Exhibits and Financial Statement Schedules
Form 10-K Summary
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Tim Hortons® and Timbits® are trademarks of Tim Hortons Canadian IP Holdings Corporation. Burger King® and BK® are trademarks of Burger
King Corporation. Popeyes®, Popeyes Louisiana Kitchen® and Popeyes Chicken & Biscuits® are trademarks of Popeyes Louisiana Kitchen, Inc. Unless the
context otherwise requires, all references to “we”, “us”, “our” and “Company” refer to Restaurant Brands International Inc. and its subsidiaries.
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Explanatory Note
We are the sole general partner of Restaurant Brands International Limited Partnership (“Partnership”), which is the indirect parent of The TDL Group
Corp. (“Tim Hortons”), Burger King Corporation (“Burger King”) and Popeyes Louisiana Kitchen, Inc. (“Popeyes”). As a result of our controlling interest, we
consolidate the financial results of Partnership and record a noncontrolling interest for the portion of Partnership we do not own in our consolidated financial
statements. Net income (loss) attributable to noncontrolling interests on the consolidated statements of operations presents the portion of earnings or loss
attributable to the economic interest in Partnership owned by the holders of the noncontrolling interests. As sole general partner, we manage all of Partnership’s
operations and activities in accordance with the partnership agreement of Partnership (the “partnership agreement”). We have established a conflicts committee
composed entirely of “independent directors” (as such term is defined in the partnership agreement) in order to consent to, approve or direct various enumerated
actions on behalf of the Company (in its capacity as the general partner of Partnership) in accordance with the terms of the partnership agreement.
Pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), we are a successor issuer to Burger King
Worldwide, Inc. Our common shares trade on the New York Stock Exchange and the Toronto Stock Exchange under the ticker symbol “QSR”. In addition, the
Class B exchangeable limited partnership units of Partnership (the “Partnership exchangeable units”) are deemed to be registered under Section 12(b) of the
Exchange Act, and Partnership is subject to the informational requirements of the Exchange Act and the rules and regulations promulgated thereunder. The
Partnership exchangeable units trade on the Toronto Stock Exchange under the ticker symbol “QSP”.
Each of the Company and Partnership is a reporting issuer in each of the provinces and territories of Canada and, as a result, is subject to Canadian
continuous disclosure and other reporting obligations under applicable Canadian securities laws. This Annual Report on Form 10-K constitutes the Company’s
Annual Information Form for purposes of its Canadian continuous disclosure obligations under National Instrument 51-102 – Continuous Disclosure Obligations
(“NI 51-102”). Pursuant to an application for exemptive relief made in accordance with National Policy 11-203 – Process for Exemptive Relief Applications in
Multiple Jurisdictions, Partnership has received exemptive relief dated October 31, 2014 from the Canadian securities regulators. This exemptive relief exempts
Partnership from the continuous disclosure requirements of NI 51-102, effectively allowing Partnership to satisfy its Canadian continuous disclosure obligations
by relying on the Canadian continuous disclosure documents filed by the Company, for so long as certain conditions are satisfied. Among these conditions is a
requirement that Partnership concurrently send to all holders of the Partnership exchangeable units all disclosure materials that the Company sends to its
shareholders and a requirement that Partnership separately report all material changes in respect of Partnership that are not also material changes in respect of
the Company.
All references to “$” or “dollars” in this report are to the currency of the United States unless otherwise indicated. All references to “Canadian dollars” or
“C$” are to the currency of Canada unless otherwise indicated.
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Item 1. Business
Company Overview
Part I
We are a Canadian corporation that serves as the indirect holding company for Tim Hortons, Burger King and Popeyes and their consolidated subsidiaries.
We are one of the world’s largest quick service restaurant (“QSR”) companies with approximately $31 billion in system-wide sales and approximately 27,000
restaurants in more than 100 countries as of December 31, 2020. Our Tim Hortons®, Burger King® and Popeyes® brands have similar franchise business models
with complementary daypart mixes and product platforms. Our three iconic brands are managed independently while benefiting from global scale and sharing of
best practices. As of December 31, 2020, approximately 100% of total restaurants for each of our brands was franchised and references to "our restaurants" or
"system-wide restaurants" include franchised restaurants and those owned by us ("Company restaurants").
Our business generates revenue from the following sources: (i) franchise revenues, consisting primarily of royalties based on a percentage of sales reported
by franchise restaurants and franchise fees paid by franchisees; (ii) property revenues from properties we lease or sublease to franchisees; and (iii) sales at
Company restaurants. In addition, our Tim Hortons business generates revenue from sales to franchisees related to our supply chain operations, including
manufacturing, procurement, warehousing and distribution, as well as sales to retailers.
Our Tim Hortons® Brand
Founded in 1964, Tim Hortons (“TH”) is one of the largest donut/coffee/tea restaurant chains in North America and the largest in Canada as measured by
total number of restaurants. As of December 31, 2020, we owned or franchised a total of 4,949 TH restaurants. TH restaurants are quick service restaurants with a
menu that includes premium blend coffee, tea, espresso-based hot and cold specialty drinks, fresh baked goods, including donuts, Timbits®, bagels, muffins,
cookies and pastries, grilled paninis, classic sandwiches, wraps, soups and more.
Our Burger King® Brand
Founded in 1954, Burger King (“BK”) is the world’s second largest fast food hamburger restaurant (“FFHR”) chain as measured by total number of
restaurants. As of December 31, 2020, we owned or franchised a total of 18,625 BK restaurants in more than 100 countries. BK restaurants are quick service
restaurants that feature flame-grilled hamburgers, chicken and other specialty sandwiches, french fries, soft drinks and other food items.
Our Popeyes® Brand
Founded in 1972, Popeyes (“PLK”) is the world’s second largest quick service chicken concept as measured by total number of restaurants. As of
December 31, 2020, we owned or franchised a total of 3,451 PLK restaurants. PLK restaurants are quick service restaurants that distinguish themselves with a
unique “Louisiana” style menu featuring fried chicken, chicken tenders, fried shrimp and other seafood, red beans and rice and other regional items.
COVID-19 Response
The global crisis resulting from the spread of coronavirus (“COVID-19”) has had a substantial impact on our global restaurant operations for 2020. During
2020, some TH, BK and PLK restaurants were temporarily closed in certain countries and many of the restaurants that remained open had limited operations, such
as drive-thru, takeout and delivery (where applicable). As a result of the COVID-19 pandemic, we have enhanced our standards regarding hand washing,
sanitization, health and hygiene, and contact-less procedures. Additionally, changes in consumer behavior due to the pandemic increased our focus on the use of
technology to meet our guests’ rapidly-evolving needs through the expansion of the number of restaurants offering delivery, the improvement of our mobile app
guest experience, and the evolution of the Tims Rewards program to increase digital registration and begin extending personalized offers. Our operating results
substantially depend upon our franchisees’ sales volumes, restaurant profitability, and financial stability. The financial impact of COVID-19 has had an adverse
effect on many of our franchisees’ liquidity and we have worked closely with our franchisees to monitor and assist them with access to appropriate sources of
liquidity in order to sustain their businesses throughout this crisis, such as offering rent relief programs for eligible franchisees who lease property from us. We also
provided cash flow support in 2020 by extending loans to eligible BK franchisees in the U.S. and by advancing certain cash payments to eligible TH franchisees in
Canada.
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Our Business Strategy
We believe that we have created a financially strong company built upon a foundation of three thriving, independent brands with significant global growth
potential and the opportunity to be one of the most efficient franchised QSR operators in the world through our focus on the following strategies:
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accelerating net restaurant growth;
enhancing guest service and experience at our restaurants through comprehensive training, improved restaurant operations, reimaged restaurants
and appealing menu options;
increasing restaurant sales and profitability which are critical to the success of our franchise partners and our ability to grow our brands around
the world;
strengthening drive thru and delivery channels to provide guests convenient access to our product offerings;
utilizing technological and digital initiatives, including loyalty programs, to interact with our guests and modernize the operations of our
restaurants;
efficiently managing costs and sharing best practices; and
preserving the rich heritage of each of our brands by managing them and their respective franchisee relationships independently and continuing
to play a prominent role in local communities.
Operating Segments
Our business consists of three operating segments, which are also our reportable segments: (1) TH; (2) BK; and (3) PLK. Additional financial information
about our reportable segments can be found in “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
Restaurant Development
As part of our development approach for our brands in the U.S., we have granted limited development rights in specific areas to franchisees in connection
with area development agreements. We expect to enter into similar arrangements in 2021 and beyond. In Canada, we have not granted exclusive or protected areas
to BK or TH franchisees, with limited exceptions.
As part of our international growth strategy for all of our brands, we have established master franchise and development agreements in a number of markets.
We have also created strategic master franchise joint ventures in which we received a meaningful minority equity stake in each joint venture. We will continue to
evaluate opportunities to accelerate international development of all three of our brands, including through the establishment of master franchises with exclusive
development rights and joint ventures with new and existing franchisees.
Advertising and Promotions
In general, franchisees fund substantially all of the marketing programs for each of our brands by making contributions ranging from 2.0% to 5.0% of gross
sales to advertising funds managed by us or by the franchisees. Advertising contributions are used to pay for expenses relating to marketing, advertising and
promotion, including market research, production, advertising costs, sales promotions, social media campaigns, technology initiatives and other support functions
for the respective brands.
We manage the advertising funds for each of our brands in the U.S. and Canada, as well as in certain other markets for BK. However, in many international
markets, including the markets managed by master franchisees, franchisees make contributions into franchisee-managed advertising funds. As part of our global
marketing strategy, we provide franchisees with advertising support and guidance in order to deliver a consistent global brand message.
Product Development
New product development is a key driver of the long-term success of our brands. We believe the development of new products can drive traffic by expanding
our customer base, allowing restaurants to expand into new dayparts, and continuing to build brand leadership in food quality and taste. Based on guest feedback,
we drive product innovation in order to satisfy the needs of our guests around the world. This strategy will continue to be a focus in 2021 and beyond.
Operations Support
Our operations strategy is designed to deliver best-in-class restaurant operations by our franchisees and to improve friendliness, cleanliness, speed of service
and overall guest satisfaction. Each of our brands has uniform operating standards and specifications relating to product quality, cleanliness and maintenance of the
premises. In addition, our restaurants are required to be operated in accordance with quality assurance and health standards that each brand has established, as well
as standards set by applicable governmental laws and regulations, including new local, provincial and state laws regarding COVID-19 and Center for Disease
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Control and similar health authority guidelines. Each franchisee typically participates in initial and ongoing training programs to learn all aspects of operating a
restaurant in accordance with each brand’s operating standards.
Manufacturing, Supply and Distribution
In general, we approve the manufacturers of the food, packaging, equipment and other products used in restaurants for each of our brands. We have a
comprehensive supplier approval process, which requires all food and packaging products to pass our quality standards and the suppliers’ manufacturing process
and facilities to pass on-site food safety inspections. Our franchisees are required to purchase substantially all food and other products from approved suppliers and
distributors.
TH products are sourced from a combination of third-party suppliers and our own manufacturing facilities. To protect our proprietary blends, we operate two
coffee roasting facilities in Ancaster, Ontario and Rochester, New York, where we blend all of the coffee for our TH restaurants and, where practical, for our take
home, packaged coffee. Our fondant and fills manufacturing facility in Oakville, Ontario produces, and is the primary supplier of, the ready-to-use glaze, fondants,
fills and syrups which are used in a number of TH products. As of December 31, 2020, we have only one or a few suppliers to service each category of products
sold at our restaurants.
We sell most raw materials and supplies, including coffee, sugar, paper goods and other restaurant supplies, to TH restaurants in Canada and the U.S. We
purchase those raw materials from multiple suppliers and generally have alternative sources of supply for each. While we have multiple suppliers for coffee from
various coffee-producing regions, the available supply and price for high-quality coffee beans can fluctuate dramatically. Accordingly, we monitor world market
conditions for green (unroasted) coffee and contract for future supply volumes to obtain expected requirements of high-quality coffee beans at acceptable prices.
Our TH business has significant supply chain operations, including procurement, warehousing and distribution, to supply paper, dry goods, frozen goods and
refrigerated products to a substantial majority of our Canadian restaurants. We act as a distributor to TH restaurants in Canada through nine distribution centers
located in Canada, of which five are company-owned, including three warehouses that were newly built or renovated and opened in 2020, and cover approximately
90% of the volume. We own or lease a significant number of trucks and trailers that regularly deliver to most of our Canadian restaurants. In the U.S., we supply
similar products to restaurants through third-party distributors.
All of the products used in our BK and PLK restaurants are sourced from third-party suppliers. In the U.S. and Canada, there is a purchasing cooperative for
each brand that negotiates the purchase terms for most equipment, food, beverages (other than branded soft drinks which we negotiate separately under long-term
agreements) and other products used in BK and PLK restaurants. The purchasing agent is also authorized to purchase and manage distribution services on behalf of
most of the BK and PLK restaurants in the U.S. and Canada. PLK also utilizes exclusive suppliers for certain of its proprietary products. As of December 31, 2020,
four distributors serviced approximately 92% of BK restaurants in the U.S. and five distributors serviced approximately 92% of PLK restaurants in the U.S.
In 2000, Burger King Corporation entered into long-term exclusive contracts with The Coca-Cola Company and Dr Pepper/Snapple, Inc. to supply BK
restaurants with their products and which obligate restaurants in the U.S. to purchase a specified number of gallons of soft drink syrup. These volume commitments
are not subject to any time limit. As of December 31, 2020, we estimate that it will take approximately 6.6 years to complete the Coca-Cola purchase commitment
and approximately 9.9 years to complete the Dr Pepper/Snapple, Inc. purchase commitment. If these agreements were terminated, we would be obligated to pay an
aggregate amount equal to approximately $343 million as of December 31, 2020 based on an amount per gallon for each gallon of soft drink syrup remaining in the
purchase commitments, interest and certain other costs. We have also entered into long-term beverage supply arrangements with certain major beverage vendors
for the TH and PLK brands in the U.S. and Canada.
Franchise Agreements and Other Arrangements
General. We grant franchisees the right to operate restaurants using our trademarks, trade dress and other intellectual property, uniform operating
procedures, consistent quality of products and services and standard procedures for inventory control and management. For each franchise restaurant, we generally
enter into a franchise agreement covering a standard set of terms and conditions. Recurring fees consist of periodic royalty and advertising payments. Franchisees
report gross sales on a monthly or weekly basis and pay royalties based on gross sales.
Franchise agreements are generally not assignable without our consent. In Canada and the U.S., our TH franchise agreements grant us the right to reacquire a
restaurant under certain circumstances, and our BK and PLK franchise agreements generally provide us a right of first refusal if a franchisee proposes to sell a
restaurant. Defaults (including non-payment of royalties or advertising contributions, or failure to operate in compliance with our standards) can lead to termination
of the franchise agreement.
U.S. and Canada. TH franchisees in the U.S. and Canada operate under several types of license agreements, with a typical term for a standard restaurant of
10 years plus renewal period(s) of 10 years in the aggregate for Canada and a typical term of 20 years for
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the U.S. TH franchisees who lease land and/or buildings from us typically pay a royalty of 3.0% to 4.5% of weekly restaurant gross sales. Our license agreements
contemplate a one-time franchise fee which must be paid in full before the restaurant opens for business and upon the grant of an additional term. Under a separate
lease or sublease, TH franchisees typically pay monthly rent based on the greater of a fixed monthly payment and contingent rental payments based on a percentage
(usually 8.5% to 10.0%) of monthly gross sales or flow through monthly rent based on the terms of an underlying lease. Where the franchisee owns the premises,
leases it from a third party or enters into a flow through lease with TH, the royalty is typically increased. In addition, the royalty rates under license agreements
entered into in connection with non-standard restaurants, including self-serve kiosks and strategic alliances with third parties, may vary from those described above
and are negotiated on a case-by-case basis.
The typical BK and PLK franchise agreement in the U.S. and Canada has a 20-year term and contemplates a one-time franchise fee plus an additional fee
upon renewal. Subject to the incentive programs described below, most new BK franchise restaurants in the U.S. and Canada pay a royalty on gross sales of 4.5%
and most PLK restaurants in the U.S. and Canada pay a royalty on gross sales of 5.0%. BK franchise agreements typically provide for a 20-year renewal term, and
PLK franchise agreements typically provide for two 10-year renewal terms. In addition, PLK franchisees pay a technology fee on all digital sales through our
proprietary technology.
In an effort to improve the image of our BK restaurants in the U.S., we offered U.S. franchisees reduced up-front franchise fees and limited-term royalty and
advertising fund rate reductions to remodel restaurants to our modern image during the past several years and we plan to continue to offer remodel incentives to
U.S. franchisees during 2021. These limited-term incentive programs are expected to negatively impact our effective royalty rate until 2027. However, we expect
this impact to be partially mitigated as incentive programs granted in prior years will expire and we will also be entering into new franchise agreements for BK
restaurants in the U.S. with a 4.5% royalty rate. For PLK, we offer development incentive programs pursuant to which we encourage veterans, women or minorities
to become PLK franchisees and develop and open new restaurants.
International. As part of the international growth strategy for each of our brands, we have entered into master franchise agreements or development
agreements that grant franchisees exclusive or non-exclusive development rights and, in some cases, allow them to sub-franchise or require them to provide support
services to other franchisees in their markets. In 2020, we entered into master franchise agreements for the TH brand in the Middle East, including United Arab
Emirates, Qatar, Kuwait, Bahrain, Oman and Saudi Arabia, and for the BK brand in Switzerland and in Scandinavia, including Norway, Sweden and Denmark. The
franchise fees, royalty rate and advertising contributions, if applicable, paid by master franchisees or developers vary from country to country, depending on the
facts and circumstances of each market. We expect to continue implementing similar arrangements for our brands in 2021 and beyond.
Franchise Restaurant Leases. We leased or subleased 3,586 properties to TH franchisees, 1,449 properties to BK franchisees, and 81 properties to PLK
franchisees as of December 31, 2020 pursuant to separate lease agreements with these franchisees. For properties that we lease from third-party landlords and
sublease to franchisees, our leases generally provide for fixed rental payments and may provide for contingent rental payments based on a restaurant’s annual gross
sales. Franchisees who lease land only or land and building from us do so on a “triple net” basis. Under these triple net leases, the franchisee is obligated to pay all
costs and expenses, including all real property taxes and assessments, repairs and maintenance and insurance.
Intellectual Property
We own valuable intellectual property relating to our brands, including trademarks, service marks, patents, industrial designs, copyrights, trade secrets and
other proprietary information, some of which are of material importance to our TH, BK and PLK businesses. The duration of trademarks and service marks varies
by country, however, trademarks and service marks generally are valid and may be renewed as long as they are in use and/or properly registered. We have
established the standards and specifications for most of the goods and services used in the development, improvement and operation of our restaurants. These
proprietary standards, specifications and restaurant operating procedures are our trade secrets. Additionally, we own certain patents and industrial designs of
varying duration relating to equipment and packaging used in BK and TH restaurants.
Information Systems and Digital Technology
Our corporate financial, human resources and similar systems are fully integrated across our brands and provide a solid foundation for our business. Our
restaurant information systems are provided by a set of approved third-party vendors that provide point of sale software. Depending on the region, these vendors
may also provide labor scheduling, inventory, production management, and cash control services. We have an architecture that enables us to build custom
customer-facing applications and integrate them with our third-party providers, to support mobile ordering, web ordering, and kiosks. As of the end of 2020, we
have deployed this architecture in the U.S., Canada and the U.K., and we plan to deploy it to additional markets in the future.
During 2020, the use of our mobile apps and digital technologies expanded significantly and we were able to provide our guests added convenience by
increasing the number of home market restaurants offering third party and white label delivery. Further, we are modernizing the drive-thru experience with the
rollout of outdoor digital menu boards for all three brands in their home markets. We plan to leverage our technology capabilities to continue to expand the choices
for how customers order, pay and receive their food.
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Although many of our systems are provided through third parties, we have the ability to obtain transaction-level data from most of our franchised restaurants
and from Company restaurants. This allows us to assess how our new and existing products are performing around the world. Additionally, we have been
investing to upgrade our supply chain systems and improve efficiency. We expect to continue to invest in technology capabilities to support and drive our business.
Competition
Each of our brands competes in the U.S., Canada and internationally with many well-established food service companies on the basis of product choice,
quality, affordability, service and location. With few barriers to entry to the restaurant industry, our competitors include a variety of independent local operators, in
addition to well-capitalized regional, national and international restaurant chains and franchises, and new competitors may emerge at any time. We also compete
for consumer dining dollars with national, regional and local (i) quick service restaurants that offer alternative menus, (ii) casual and “fast casual” restaurant chains
(iii) convenience stores and grocery stores, and (iv) new concepts, such as virtual brands and dark kitchens. Furthermore, delivery aggregators and other food
delivery services provide consumers with convenient access to a broad range of competing restaurant chains and food retailers, particularly in urban areas.
Government Regulations and Affairs
General. We and our franchisees are subject to various laws and regulations including (i) licensing and regulation relating to health, food preparation,
sanitation and safety standards and, for our distribution business, traffic and transportation regulations; (ii) information security, privacy and consumer protection
laws; and (iii) other laws regulating the design, accessibility and operation of facilities, such as the Americans with Disabilities Act of 1990, the Accessibility for
Ontarians with Disabilities Act and similar Canadian federal and provincial legislation that can have a significant impact on our franchisees and our performance.
These regulations include food safety regulations, including supervision by the U.S. Food and Drug Administration and its international equivalents, which govern
the manufacture, labeling, packaging and safety of food. In addition, we are or may become subject to legislation or regulation seeking to tax and/or regulate high-
fat, high-calorie and high-sodium foods, particularly in Canada, the U.S., the United Kingdom and Spain. Certain countries, provinces, states and municipalities
have approved menu labeling legislation that requires restaurant chains to provide caloric information on menu boards, and menu labeling legislation has also been
adopted on the U.S. federal level as well as in Ontario.
U.S. and Canada. Our restaurants must comply with licensing requirements and regulations by a number of governmental authorities, which include zoning,
health, safety, sanitation, building and fire agencies in the jurisdiction in which the restaurant is located. We and our franchisees are also subject to various
employment laws, including laws governing union organizing, working conditions, work authorization requirements, health insurance, overtime and wages. In
addition, we and our U.S. franchisees are subject to the Patient Protection and Affordable Care Act.
We are subject to federal franchising laws adopted by the U.S. Federal Trade Commission (the “FTC”) and state and provincial franchising laws. Much of
the legislation and rules adopted have been aimed at providing detailed disclosure to a prospective franchisee, duties of good faith as between the franchisor and the
franchisee, and/or periodic registration by the franchisor with applicable regulatory agencies. Additionally, some U.S. states have enacted or are considering
enacting legislation that governs the termination or non-renewal of a franchise agreement and other aspects of the franchise relationship.
International. Internationally, we and our franchisees are subject to national and local laws and regulations that often are similar in nature to those affecting
us and our franchisees in the U.S. and Canada. We and our franchisees are also subject to a variety of tariffs and regulations on imported commodities and
equipment, and laws regulating foreign investment.
Environmental. Various laws concerning the handling, storage and disposal of hazardous materials and restaurant waste and the operation of restaurants in
environmentally sensitive locations may impact aspects of our operations and the operations of our franchisees; however, we do not believe that compliance with
applicable environmental regulations will have a material effect on our capital expenditures, financial condition, results of operations, or competitive position.
Increased focus by U.S., Canadian and international governmental authorities on environmental matters is likely to lead to new governmental initiatives,
particularly in the area of climate change. While we cannot predict the precise nature of these initiatives, we expect that they may impact our business both directly
and indirectly. There is a possibility that government initiatives, or actual or perceived effect of changes in weather patterns, climate or water resources could have
a direct impact on the operations of our brands in ways that we cannot predict at this time.
Sustainability
We are committed to the simple principle of doing what’s right. Our “Restaurant Brands for Good” plan provides a framework for serving our guests the food
and drinks they love while contributing to a sustainable future and having a positive social impact in the communities we serve. Our ongoing efforts will focus on
three key pillars:
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Food - serving high quality and great tasting food every day with a focus on food safety, improving choice, nutrition, transparency, and
ingredients;
Planet - continuing to reduce our environmental footprint, with a focus on packaging and recycling, green buildings, and responsible sourcing;
and
People & Communities - supporting communities and enhancing livelihoods, with a focus on supporting communities, talent development,
diversity and inclusion, ethics and human rights, and improving supplier livelihoods.
The sustainability section of our corporate website sets forth our initiatives with respect to these pillars and will be updated periodically.
Seasonal Operations
Our restaurant sales are typically higher in the spring and summer months when the weather is warmer and typically lowest during the winter months.
Furthermore, adverse weather conditions can have material adverse effects on restaurant sales. The timing of holidays may also impact restaurant sales. Because
our businesses are moderately seasonal, results for any one quarter are not necessarily indicative of the results that may be achieved for any other quarter or for the
full fiscal year.
Human Capital
As of December 31, 2020, we had approximately 5,200 employees, including approximately 1,400 corporate employees in our restaurant support centers and
serving our franchisees from the field, approximately 1,100 employees in our distribution centers and manufacturing facilities, and approximately 2,700 employees
in Company restaurants. Our franchisees are independent business owners that separately employ more than 500,000 team members in their restaurants.
At RBI, we strive to create a workplace environment where our employees love coming to work each day; a place that is committed to inclusion, respect,
accountability and doing what is right. While our board regularly receives updates from our People team, the compensation committee has oversight of our
compensation program and the audit committee has been tasked with oversight of workforce management risks. Our People team is organized into four pillars that
focus on attracting, retaining, developing and rewarding top talent.
The cycle starts with attracting talent from campus and professional sources, leveraging technology to identify and assess candidates who best fit our roles.
As part of our hiring process, we committed in June 2020 that at least half of all final-round candidates interviewing for roles with our four RBI restaurant support
centers will be from groups that are demonstrably diverse, including gender, race and sexual orientation, based on the composition and requirements of the
applicable jurisdiction. Since our commitment, we have meaningfully exceeded that target, leading to an increase in diverse hires. In 2020, RBI hired
approximately 330 new corporate employees, 3,600 new restaurant employees, and 380 new distribution and manufacturing employees. Our distribution team
worked diligently to open three new or renovated facilities to serve Tim Hortons restaurants in 2020, contributing to the hiring increase amongst that population.
Each population segment has a dedicated onboarding program designed to get employees up to speed quickly, and foster a smooth transition into the workplace.
The retention efforts focus on the work environment, employee engagement and our diversity and inclusion initiatives. We regularly conduct anonymous
surveys to seek feedback from our restaurant support center employees on a variety of topics, including our sustainability and diversity initiatives, implicit bias
training globally, how they are coping working from home during the COVID-19 pandemic, the support they receive from their managers, and what types of
learning and development opportunities they would like to have offered. In 2019, we created a diversity and inclusion steering committee that is creating strategies
for promoting diversity and inclusion. To ensure that the work of the Steering Committee is fully integrated, we have dedicated team members within the people
and legal teams to implement initiatives in this space.
Developing talent includes evaluation, training, career planning and leadership development. We have a rigorous talent assessment process for restaurant
support center employees built on specific competencies that we assess at both the employee and job level. This data allows us to more easily identify potential
successors and illuminate potential opportunities for our employees in a more objective and unbiased way. Additionally, to help our employees and franchisee’s
team members succeed in their roles, we emphasize continuous training and development opportunities. These include, but are not limited to, safety and security
protocols, updates on new products and service offerings and deployment of technologies. In 2020, we piloted a new coaching program for women in our restaurant
support centers to be paired with senior leaders to work on goal setting and building paths to achieve those goals and we expect to continue these initiatives.
Our approach to rewarding talent is through a combination of compensation, recognition, wellness and benefits. We are committed to providing market-
competitive pay and benefits, affirming our pay for performance philosophy while balancing retention risk. Restaurant support center and distribution employees
are eligible for performance-based cash incentive programs. Each incentive
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plan reinforces and rewards individuals for achievement of specific business goals. All employees are also able to access telemedicine with no copay, as well as a
24/7 Employee Assistance Program. For corporate office and field-based employees, we offer a leading parental leave policy.
Underpinning all of these initiatives is a strong reliance on data. We leverage a people analytics team and a newly implemented human capital management
system to assess our achievements in each of our four pillars to identify areas for improvement. A team of experienced People Business Partners work closely with
their client groups to provide counsel on people issues and help roll out people initiatives directly to employees.
While much of the work mentioned above relates to our corporate workforce, we also have adopted employee guidelines and policies applicable to our
restaurant employees and encourage our franchisees to adopt similar guidelines and policies.
Available Information
We make available free of charge on or through the Investor Relations section of our internet website at www.rbi.com, all materials that we file
electronically with the Securities and Exchange Commission (the “SEC”), including this annual report on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K and any amendments to those reports as soon as reasonably practicable after electronically filing or furnishing such material with the SEC and
with the Canadian Securities Administrators. This information is also available at www.sec.gov, an internet site maintained by the SEC that contains reports, proxy
and information statements and other information regarding issuers that file electronically with the SEC, and on the System for Electronic Document Analysis and
Retrieval (“SEDAR”) at www.sedar.com, a website maintained by the Canadian Securities Administrators. The references to our website address, the SEC’s
website address and the website maintained by the Canadian Securities Administrators do not constitute incorporation by reference of the information contained in
these websites and should be not considered part of this document.
A copy of our Corporate Governance Guidelines, Code of Business Ethics and Conduct for Non-Restaurant Employees, Code of Ethics for Executive
Officers, Code of Conduct for Directors and the Charters of the Audit Committee, Compensation Committee, Nominating and Corporate Governance Committee,
Conflicts Committee and Operations and Strategy Committee of our board of directors are posted in the Investor Relations section of our website at www.rbi.com.
Our principal executive offices are located at 130 King Street West, Suite 300, Toronto, Ontario M5X 1E1, Canada. Our telephone number is (905) 339-
6011.
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Item 1A. Risk Factors
Risks Related to Our Business Operations
We face intense competition in our markets, which could negatively impact our business.
The restaurant industry is intensely competitive and we compete with many well-established food service companies on the basis of product choice, quality,
affordability, service and location. With few barriers to entry, our competitors include a variety of independent local operators, in addition to well-capitalized
regional, national and international restaurant chains and franchises, and new competitors, such as virtual brands and dark kitchens, may emerge at any time.
Furthermore, delivery aggregators and food delivery services provide consumers with convenient access to a broad range of competing restaurant chains and food
retailers, particularly in urbanized areas, and may form a closer relationship with our customers and increase costs. Each of our brands also competes for qualified
franchisees, suitable restaurant locations and management and personnel.
Our ability to compete will depend on the success of our plans to effectively respond to consumer preferences, improve existing products, develop and roll-
out new products, and manage the complexity of restaurant operations as well as the impact of our competitors’ actions. In addition, our long-term success will
depend on our ability to strengthen our customers' digital experience through mobile ordering, delivery, loyalty programs, and social interaction. Some of our
competitors have substantially greater financial resources, higher revenues and greater economies of scale than we do. These advantages may allow them to
implement their operational strategies more quickly or effectively than we can or benefit from changes in technologies, which could harm our competitive position.
These competitive advantages may be exacerbated in a difficult economy, thereby permitting our competitors to gain market share. We may be unable to
successfully respond to changing consumer preferences, including with respect to new technologies and alternative methods of delivery. In addition, online
platforms and aggregators may direct potential customers to other options based on paid placements, online reviews or other factors. If we are unable to maintain
our competitive position, we could experience lower demand for products, downward pressure on prices, reduced margins, an inability to take advantage of new
business opportunities, a loss of market share, reduced franchisee profitability and an inability to attract qualified franchisees in the future.
Failure to preserve the value and relevance of our brands could negatively impact our financial results.
We depend in large part on the value of the TH, BK and PLK brands. To be successful in the future, we must preserve, enhance and leverage the value of our
brands. Brand value is based in part on consumer tastes, preferences and perceptions on a variety of factors, including the nutritional content, methods of
production and preparation of our products and our business practices, including with respect to animal welfare, sustainability and other environmental or social
concerns. Consumer acceptance of our products may be influenced by or subject to change for a variety of reasons. For example, adverse publicity associated with
nutritional, health and other scientific studies and conclusions, which constantly evolve and often have contradictory implications, may drive popular opinion
against quick service restaurants in general, which may impact the demand for our products. Moreover, health campaigns against products we offer in favor of
foods that are perceived as healthier may affect consumer perception of our product offerings and impact the value of our brands.
In addition, adverse publicity related to litigation, regulation (including initiatives intended to drive consumer behavior) or incidents involving us, our
franchisees, competitors or suppliers may impact the value of our brands by discouraging customers from buying our products. Perceptions may also be affected by
activist campaigns to promote adverse perceptions of the quick service restaurant industry or our brands and/or our operations, suppliers, franchisees or other
partners such as campaigns aimed at sustainability or living-wage opinions. Consumer demand for our products and our brand equity could diminish if we, our
employees or our franchisees or other business partners fail to preserve the quality of our products, act or are perceived to act as unethical, illegal, racially-biased or
in a socially irresponsible manner, including with respect to the sourcing, content or sale of our products or the use of consumer data for general or direct marketing
or other purposes, fail to comply with laws and regulations, publicly take controversial positions or actions or fail to deliver a consistently positive consumer
experience in each of our markets. If we are unsuccessful in addressing consumer adverse perceptions, our brands and our financial results may suffer.
Economic conditions have and may continue to adversely affect consumer discretionary spending which could negatively impact our business and
operating results.
We believe that our restaurant sales, guest traffic and profitability are strongly correlated to consumer discretionary spending, which is influenced by general
economic conditions, unemployment levels, the availability of discretionary income and, ultimately, consumer confidence. For example, the COVID-19 pandemic
has resulted in significant increases in unemployment and a reduction in discretionary spending. A protracted economic slowdown, increased unemployment and
underemployment of our customer base, decreased salaries and wage rates, inflation, rising interest rates or other industry-wide cost pressures adversely affect
consumer behavior by weakening consumer confidence and decreasing consumer spending for restaurant dining occasions. Governmental or other responses to
economic challenges may be unable to restore or maintain consumer confidence. As a result of these factors, during
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recessionary periods we and our franchisees may experience reduced sales and profitability, which may cause our business and operating results to suffer.
Our results can be adversely affected by unforeseen events, such as adverse weather conditions, natural disasters, terrorist attacks or threats, pandemics,
such as the COVID-19 pandemic, or other catastrophic events.
Unforeseen events, such as adverse weather conditions, natural disasters or catastrophic events, can adversely impact restaurant sales. Natural disasters such
as earthquakes, hurricanes, and severe adverse weather conditions and health pandemics whether occurring in Canada, the United States or abroad, can keep
customers in the affected area from dining out, cause damage to or closure of restaurants and result in lost opportunities for our restaurants.
For example, measures implemented to reduce the spread of COVID-19 have adversely affected workforces, customers, consumer sentiment, economies and
financial markets, and, along with decreased consumer spending, have led to an economic downturn in many of our markets. As a result of COVID-19, we and our
franchisees have experienced significant store closures and instances of reduced store-level operations, including reduced operating hours and dining-room
closures. While many markets have reopened for dine-in guests, the capacity may be limited, and local conditions may lead again to closures or increased
limitations. As a result of COVID-19, restaurant traffic and system-wide sales have been significantly negatively impacted.
We cannot predict the duration or scope of the COVID-19 pandemic or when operations will cease to be affected by it. Furthermore, we cannot predict the
effects that actual or threatened armed conflicts, terrorist attacks, efforts to combat terrorism, or heightened security requirements will have on our future
operations. Because a significant portion of our restaurant operating costs are fixed or semi-fixed in nature, the loss of sales during these periods hurts our and our
franchisees’ operating margins and can result in restaurant operating losses and our loss of royalties. We expect the COVID-19 pandemic to continue to negatively
impact our financial results and based on the duration and scope, such impact could be material.
Our results depend on effective marketing and advertising and the successful development and launch of new products.
Our revenues are heavily influenced by brand marketing and advertising and by our ability to develop and launch new and innovative products. Our
marketing and advertising programs may not be successful, or we may fail to develop commercially successful new products, which may adversely affect our
ability to attract new guests and retain existing guests, and could materially and adversely affect our results of operations. Moreover, because franchisees contribute
to advertising funds based on a percentage of gross sales at their franchise restaurants, advertising fund expenditures are dependent upon sales volumes at system-
wide restaurants. If system-wide sales decline, the amount available for our marketing and advertising programs will be reduced. Also, to the extent that we use
value offerings in our marketing and advertising programs to drive traffic, the low price offerings may condition our guests to resist higher prices in a more
favorable economic environment.
In addition, we continue to focus on transforming the restaurant experience through technology and digital engagement to improve our service model and
strengthen relationships with customers, digital channels, loyalty initiatives, mobile ordering and payment systems and delivery initiatives. These initiatives may
not have the anticipated impact on our franchise sales and therefore we may not fully realize the intended benefits of these significant investments.
The global scope of our business subjects us to risks and costs and may cause our profitability to decline.
Our global operations expose us to risks in managing the differing cultural, regulatory, geopolitical and economic environments in the countries where our
restaurants operate. These risks, which can vary substantially by market and may increase in importance as our franchisees expand operations in international
markets, are described in many of the risk factors discussed in this section and include the following:
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governmental laws, regulations and policies adopted to manage national economic conditions, such as increases in taxes, austerity measures that impact
consumer spending, monetary policies that may impact inflation rates and currency fluctuations;
the imposition of import restrictions or controls;
the effects of legal and regulatory changes and the burdens and costs of our compliance with a variety of foreign laws;
changes in the laws and policies that govern foreign investment and trade in the countries in which we operate;
compliance with U.S., Canadian and other anti-corruption and anti-bribery laws, including compliance by our employees, contractors, licensees or agents
and those of our strategic partners and joint ventures;
risks and costs associated with political and economic instability, corruption, anti-American or anti-Canadian sentiment and social and ethnic unrest in the
countries in which we operate;
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•
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the risks of operating in developing or emerging markets in which there are significant uncertainties regarding the interpretation, application and
enforceability of laws and regulations and the enforceability of contract rights and intellectual property rights;
risks arising from the significant and rapid fluctuations in currency exchange markets and the decisions and positions that we take to hedge such volatility;
changing labor conditions and difficulties experienced by our franchisees in staffing their international operations;
the impact of labor costs on our franchisees’ margins given their labor-intensive business model and the long-term trend toward higher wages in both
mature and developing markets and the potential impact of union organizing efforts on day-to-day operations of our franchisees’ restaurants; and
the effects of increases in the taxes we pay and other changes in applicable tax laws.
Our operations are subject to fluctuations in foreign currency exchange and interest rates.
We report our results in U.S. dollars, which is our reporting currency. The operations of TH, BK, and PLK that are denominated in currencies other than the
U.S. dollar are translated to U.S. dollars for our financial reporting purposes and are therefore impacted by fluctuations in currency exchange rates and changes in
currency regulations. In addition, fluctuations in interest rates may affect our business. Although we attempt to minimize these risks through geographic
diversification and the utilization of derivative financial instruments, our risk management strategies may not be effective and our results of operations could be
adversely affected.
Increases in food and commodity costs or shortages or interruptions in the supply or delivery of our food could harm our operating results and the
results of our franchisees.
Our profitability and the profitability of our franchisees will depend in part on our ability to anticipate and react to changes in food and commodity and
supply costs. With respect to our TH business, volatility in connection with certain key commodities that we purchase in the ordinary course of business can impact
our revenues, costs and margins. If commodity prices rise, franchisees may experience reduced sales due to decreased consumer demand at retail prices that have
been raised to offset increased commodity prices, which may reduce franchisee profitability. In addition, the markets for beef and chicken are subject to significant
price fluctuations due to seasonal shifts, climate conditions, the cost of grain, disease, industry demand, international commodity markets, food safety concerns,
product recalls, government regulation and other factors, all of which are beyond our control and, in many instances unpredictable. Such increases in commodity
costs may materially and adversely affect our business and operating results.
We and our franchisees are dependent on frequent deliveries of fresh food products that meet our specifications. Shortages or interruptions in the supply of
fresh food products caused by unanticipated demand, natural disasters or unforeseen events, such as the COVID-19 pandemic, problems in production or
distribution, inclement weather, delays or restrictions on shipping and/or manufacturing, closures of supplier or distributor facilities or financial distress or
insolvency of suppliers or distributors or other conditions could adversely affect the availability, quality and cost of ingredients, which would adversely affect our
operating results. As of December 31, 2020, we have only a few distributors that service the most of our BK and PLK operations in the U.S., and our operations
could be adversely affected if any of these distributors were unable to fulfill their responsibilities and we were unable to locate a substitute distributor in a timely
manner.
Our supply chain operations subject us to additional risks and may cause our profitability to decline.
We operate a vertically integrated supply chain for our TH business in which we manufacture, warehouse, and distribute certain food and restaurant supplies
to TH restaurants. Risks associated with this vertical integration growth strategy include:
delays and/or difficulties associated with, or liabilities arising from, owning a manufacturing, warehouse and distribution business;
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• maintenance, operations and/or management of the facilities, equipment, employees and inventories;
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limitations on the flexibility of controlling capital expenditures and overhead;
the need for skills and techniques that are outside our traditional core expertise;
increased transportation, shipping, food and other supply costs;
inclement weather or extreme weather events;
shortages or interruptions in the availability or supply of high-quality coffee beans, perishable food products and/or their ingredients;
variations in the quality of food and beverage products and/or their ingredients; and
political, physical, environmental, labor, or technological disruptions in our or our suppliers’ manufacturing and/or warehousing plants, facilities, or
equipment.
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If we do not adequately address the challenges related to these vertically integrated operations or the overall level of utilization or production decreases for
any reason, our results of operations and financial condition may be adversely impacted. Decreased sales from the COVID-19 pandemic may continue to affect
supply chain revenue and profitability. Moreover, interruptions in the availability and delivery of food, beverages and other supplies to our restaurants arising from
shortages or greater than expected demand, may increase costs or reduce revenues. As of December 31, 2020, we have only one or a few suppliers to service each
category of products sold at our TH restaurants, and the loss of any one of these suppliers would likely adversely affect our business.
We and our franchisees may be unable to secure desirable restaurant locations to maintain and effectively grow our restaurant portfolios.
The success of any restaurant depends in substantial part on its location. The current locations of our restaurants may not continue to be attractive as
demographic patterns change. Neighborhood or economic conditions where restaurants are located could decline in the future, thus resulting in potentially reduced
sales in those locations. Competition for restaurant locations can also be intense and there may be delay or cancellation of new site developments by developers and
landlords, which may be exacerbated by factors related to the commercial real estate or credit markets. If franchisees cannot obtain desirable locations for their
restaurants at reasonable prices due to, among other things, higher than anticipated acquisition, construction and/or development costs of new restaurants, difficulty
negotiating leases with acceptable terms, onerous land use or zoning restrictions, or challenges in securing required governmental permits, then their ability to
execute their respective growth strategies may be adversely affected.
The market for retail real estate is highly competitive. Based on their size advantage and/or their greater financial resources, some of our competitors may
have the ability to negotiate more favorable lease terms than we can and some landlords and developers may offer priority or grant exclusivity to some of our
competitors for desirable locations. As a result, we or our franchisees may not be able to obtain new leases or renew existing leases on acceptable terms, if at all,
which could adversely affect our sales and brand-building initiatives.
Our ownership and leasing of significant amounts of real estate exposes us to possible liabilities, losses, and risks.
Many of our Company and franchised restaurants are located on leased premises. As leases underlying these restaurants expire, we or our franchisees may be
unable to negotiate a new lease or lease extension, either on commercially acceptable terms or at all, which could cause us or our franchisees to close restaurants in
desirable locations. As a result, our revenues and our brand-building initiatives could be adversely affected. In general, we cannot cancel existing leases; therefore,
if an existing or future restaurant is not profitable, and we decide to close it, we may still be committed to perform under the applicable lease. In addition, the value
of our owned real estate assets could decrease, and/or our costs could increase, because of changes in the investment climate for real estate, demographic trends,
demand for restaurant sites and other retail properties, and exposure to or liability associated with environmental contamination and reclamation.
Typically, the costs of insurance, taxes, maintenance, utilities, and other property-related costs due under a prime lease with a third-party landlord are passed
through to the franchisee under our sublease. If a franchisee fails to perform the obligations passed through under the sublease, we will be required to perform these
obligations resulting in an increase in our leasing and operational costs and expenses. In addition, the rent a franchisee pays us under the sublease may be based on
a percentage of gross sales. If gross sales at a certain restaurant are less than we project we may pay more rent to a third-party landlord under the prime lease than
we receive from the franchisee under the sublease. These events could result in increased leasing and operational costs to us.
Food safety concerns and concerns about the health risk of fast food may have an adverse effect on our business.
Food safety is a top priority for us and we dedicate substantial resources to ensure that our customers enjoy safe, high-quality food products. However, food-
borne illnesses and other food safety issues have occurred in the food industry in the past and could occur in the future. Also, our reliance on third-party food
suppliers, distributors and food delivery aggregators increases the risk that food-borne illness incidents could be caused by factors outside of our control and that
multiple locations would be affected rather than a single restaurant. Any report or publicity, including through social media, linking us or one of our franchisees or
suppliers to instances of food-borne illness or other food safety issues, including food tampering, adulteration or contamination, could adversely affect our brands
and reputation as well as our sales and profits. Such occurrence at restaurants of competitors could adversely affect sales as a result of negative publicity about the
industry generally. The occurrence of food-borne illnesses or food safety issues could also adversely affect the price and availability of affected ingredients, which
could result in disruptions in our supply chain, significantly increase costs and/or lower margins for us and our franchisees.
Some of our products contain caffeine, dairy products, fats, sugar and other compounds and allergens, the health effects of which are the subject of public
scrutiny, including suggesting that excessive consumption of caffeine, beef, sugar and other compounds can lead to a variety of adverse health effects. An
unfavorable report on the health effects of caffeine or other compounds present in our products, or negative publicity or litigation arising from other health risks
such as obesity, could significantly reduce the
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demand for our beverages and food products. A decrease in customer traffic as a result of these health concerns or negative publicity could materially and
adversely affect our brands and our business.
If we are unable to adequately protect our intellectual property, the value of our brands and our business may be harmed.
Our brands, which represent approximately 45% of the total assets on our balance sheet as of December 31, 2020, are very important to our success and our
competitive position. We rely on a combination of trademarks, copyrights, service marks, trade secrets, patents, industrial designs, and other intellectual property
rights to protect our brands and the respective branded products. While we have registered certain trademarks in Canada, the U.S. and foreign jurisdictions, not all
of the trademarks that our brands currently use have been registered in all of the countries in which we do business, and they may never be registered in all of these
countries. We may not be able to adequately protect our trademarks, and our use of these trademarks may result in liability for trademark infringement, trademark
dilution or unfair competition. The steps we have taken to protect our intellectual property in Canada, the U.S. and in foreign countries may not be adequate and we
may, from time to time, be required to institute litigation to enforce our trademarks or other intellectual property rights or to protect our trade secrets. Further, third
parties may assert or prosecute infringement claims against us. In these cases, our proprietary rights could be challenged, circumvented, infringed or invalidated.
Any such litigation could result in substantial costs and diversion of resources and could negatively affect our revenue, profitability and prospects regardless of
whether we are able to successfully enforce our rights. In addition, the laws of some foreign countries do not protect intellectual property rights to the same extent
as the laws of Canada and the U.S.
Changes in regulations may adversely affect restaurant operations and our financial results.
Our restaurants are subject to licensing and regulation by health, sanitation, safety and other agencies in the state, province and/or municipality in which the
restaurant is located. Federal, state, provincial and local government authorities have enacted and may enact laws, rules or regulations that impact restaurant
operations and may increase the cost of doing business. In developing markets, we face the risks associated with new and untested laws and judicial systems. If we
fail to comply with existing or future laws, we may be subject to governmental fines and sanctions.
We are subject to various provincial, state and foreign laws that govern the offer and sale of a franchise, including in the U.S., to an FTC rule. Various
provincial, state and foreign laws regulate certain aspects of the franchise relationship, including terminations and the refusal to renew franchises. The failure to
comply with these laws and regulations in any jurisdiction or to obtain required government approvals could result in a ban or temporary suspension on future
franchise sales, fines and penalties or require us to make offers of rescission or restitution, any of which could adversely affect our business and operating results.
We could also face lawsuits by franchisees based upon alleged violations of these laws.
Additionally, we, our franchisees and our supply chain are subject to risks and costs arising from the effects of climate change, greenhouse gases, and
diminishing energy and water resources. These risks include the increased public focus, including by governmental and nongovernmental organizations, on these
and other environmental sustainability matters, such as packaging and waste, animal health and welfare, deforestation and land use. Also, we face increased
pressure to make commitments, set targets or establish additional goals and take actions to meet them which could expose us to market, operational and execution
costs or risks. If we are unable to effectively manage the risks associated with our complex regulatory environment, it could have a material adverse effect on our
business and financial condition.
We outsource certain aspects of our business to third-party vendors which subjects us to risks, including disruptions in our business and increased costs.
We have outsourced certain administrative functions for our business, certain information technology support services and benefit plan administration to
third-party service providers. In the future, we may outsource other functions to achieve cost savings and efficiencies. If the service providers to which we
outsource these functions do not perform effectively, we may not be able to achieve the expected cost savings and may have to incur additional costs in connection
with such failure to perform. Depending on the function involved, such failures may also lead to business disruption, transaction errors, processing inefficiencies,
the loss of sales and customers, the loss of or damage to intellectual property through security breach, and the loss of sensitive data through security breach or
otherwise. Any such damage or interruption could have a material adverse effect on our business, cause us to face significant fines, customer notice obligations or
costly litigation, harm our reputation with our customers or prevent us from paying our collective suppliers or employees or receiving payments on a timely basis.
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Risks Related to Our Fully Franchised Business Model
Our fully franchised business model presents a number of disadvantages and risks.
Substantially all of our restaurants are owned and operated by franchisees. Under our fully franchised business model, our future prospects depend on (i) our
ability to attract new franchisees for each of our brands that meet our criteria and (ii) the willingness and ability of franchisees to open restaurants in existing and
new markets. We may be unable to identify franchisees who meet our criteria, or if we identify such franchisees, they may not successfully implement their
expansion plans.
Our fully franchised business model presents a number of other drawbacks, such as limited influence over franchisees, limited ability to facilitate changes in
restaurant ownership, limitations on enforcement of franchise obligations due to bankruptcy or insolvency proceedings and reliance on franchisees to participate in
our strategic initiatives. While we can mandate certain strategic initiatives through enforcement of our franchise agreements, we will need the active support of our
franchisees if the implementation of these initiatives is to be successful. The failure of these franchisees to support our marketing programs and strategic initiatives
could adversely affect our ability to implement our business strategy and could materially harm our business, results of operations and financial condition. On
occasion we have encountered, and may in the future encounter, challenges in receiving specific financial and operational results from our franchisees in a
consistent and timely manner, which can negatively impact our business and operating results.
Our principal competitors that have a significantly higher percentage of company-operated restaurants than we do may have greater influence over their
respective restaurant systems and greater ability to implement operational initiatives and business strategies, including their marketing and advertising programs.
The ability of our franchisees and prospective franchisees to obtain financing for development of new restaurants or reinvestment in existing restaurants
depends in part upon financial and economic conditions which are beyond their control. If our franchisees are unable to obtain financing on acceptable terms to
develop new restaurants or reinvest in existing restaurants, our business and financial results could be adversely affected.
Our franchisees are also dependent upon their ability to attract and retain qualified employees in an intensely competitive employee market. The inability of
our franchisees to recruit and retain qualified individuals or increased costs to do so, including due to increases in legally required wages, may delay the planned
openings of new restaurants by our franchisees and could adversely impact existing franchise restaurants and franchisee profitability, which could slow our growth.
In addition, the risk or perceived risk of contracting COVID-19 could adversely affect the ability, or the cost, of staffing restaurants, which could be exacerbated to
the extent that we or our franchisees have employees who test positive for the virus. Moreover, we may also face liability for employment-related claims of our
franchisees’ employees based on theories of joint employer liability with our franchisees or other theories of vicarious liability, which could materially harm our
results of operations and financial condition.
Our results are closely tied to the success of independent franchisees, and we have limited influence over their operations.
We generate revenues in the form of royalties, fees and other amounts from our franchisees. As a result, our operating results are closely tied to the success
of our franchisees. However, our franchisees are independent operators and we cannot control many factors that impact the profitability of their restaurants. The
impact of COVID-19 has, and is expected to continue to have, an adverse effect on our franchisees’ liquidity. As a result, we provided, where appropriate, cash
flow support to franchisees in the U.S. and Canada by extending loans, advancing cash payments and providing rent relief where we have property control, some of
which is continuing in 2021. These actions have and may continue to adversely affect our cash flow and financial results. In addition to these actions, we may
decide to take additional steps to assist in the financial stabilization of our franchisees, which could impact our liquidity and our financial results. In addition, we
delayed certain capital expenditure obligations of our franchisees relating to new restaurants, remodels and significant equipment deployments, which could
adversely affect our growth once the COVID-19 pandemic has passed.
If sales trends or economic conditions worsen for franchisees, their financial results may deteriorate, which could result in, among other things, restaurant
closures; delayed or reduced payments to us of royalties, advertising contributions, rents and, delayed or reduced payments for TH products and supplies; and an
inability for such franchisees to obtain financing to fund development, restaurant remodels or equipment initiatives on acceptable terms or at all. Also, franchisees
may not be willing or able to renew their franchise agreements with us due to low sales volumes, high real estate costs, or the failure to secure lease renewals. If
our franchisees fail to renew their franchise agreements, our royalty revenues may decrease which in turn could materially and adversely affect our business and
operating results.
Franchisees and sub-franchisees may not successfully operate restaurants in a manner consistent with our established procedures, standards and requirements
or standards set by applicable law, including sanitation and pest control standards. Any operational shortcoming of a franchise or sub-franchise restaurant is likely
to be attributed by guests to the entire brand and may be
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shared widely through social media, thus damaging the brand’s reputation and potentially affecting our revenues and profitability. We may not be able to identify
problems and take effective action quickly enough and, as a result, our image and reputation may suffer, and our franchise revenues and results of operations could
decline.
Our future growth and profitability will depend on our ability to successfully accelerate international development with strategic partners and joint
ventures.
We believe that the future growth and profitability of each of our brands will depend on our ability to successfully accelerate international development with
strategic partners and joint ventures in new and existing international markets. New markets may have different competitive conditions, consumer tastes and
discretionary spending patterns than our existing markets. As a result, new restaurants in those markets may have lower average restaurant sales than restaurants in
existing markets and may take longer than expected to reach target sales and profit levels (or may never do so). We will need to build brand awareness in those new
markets we enter through advertising and promotional activity, and those activities may not promote our brands as effectively as intended, if at all.
We have adopted a master franchise development model for all of our brands, which in markets with strong growth potential may include participating in
strategic joint ventures, to accelerate international growth. These new arrangements may give our joint venture and/or master franchise partners the exclusive right
to develop and manage our restaurants in a specific country or countries, including, in some cases, the right to sub-franchise. A joint venture partnership involves
special risks, including the following: our joint venture partners may have economic, business or legal interests or goals that are inconsistent with those of the joint
venture or us, or our joint venture partners may be unable to meet their economic or other obligations and we may be required to fulfill those obligations alone. Our
master franchise arrangements present similar risks and uncertainties. We cannot control the actions of our joint venture partners or master franchisees, including
any nonperformance, default or bankruptcy of joint venture partners or master franchisees. While sub-franchisees are required to operate their restaurants in
accordance with specified operations, safety and health standards, we are not party to the agreements with the sub-franchisees and are dependent upon our master
franchisees to enforce these standards with respect to sub-franchised restaurants. As a result, the ultimate success and quality of any sub-franchised restaurant rests
with the master franchisee and the sub-franchisee. In addition, the termination of an arrangement with a master franchisee or a lack of expansion by certain master
franchisees has and may in the future result in the delay or discontinuation of the development of franchise restaurants, or an interruption in the operation of our
brand in a particular market or markets. We may not be able to find another operator to resume development activities in such market or markets. Any such delay,
discontinuation or interruption could materially and adversely affect our business and operating results.
Risks Related to our Indebtedness
Our substantial leverage and obligations to service our debt could adversely affect our business.
As of December 31, 2020, we had aggregate outstanding indebtedness of $12,631 million, including senior secured term loan facilities in an aggregate
principal amount of $6,028 million, senior secured first lien notes in an aggregate principal amount of $2,775 million and senior secured second lien notes in an
aggregate principal amount of $3,650 million. Subject to restrictions set forth in these instruments, we may also incur significant additional indebtedness in the
future, some of which may be secured debt. This may have the effect of increasing our total leverage.
Our substantial leverage could have important potential consequences, including, but not limited to:
•
•
•
•
•
•
•
increasing our vulnerability to, and reducing our flexibility to respond to, changes in our business and general adverse economic and industry
conditions;
requiring the dedication of a substantial portion of our cash flow from operations to our debt service, thereby reducing the availability of such cash
flow to fund working capital, capital expenditures, acquisitions, joint ventures, product research, dividends, share repurchases or other corporate
purposes;
increasing our vulnerability to a downgrade of our credit rating, which could adversely affect our cost of funds, liquidity and access to capital markets;
placing us at a competitive disadvantage as compared to certain of our competitors who are not as highly leveraged;
restricting us from making strategic acquisitions or causing us to make non-strategic divestitures;
exposing us to the risk of increased interest rates as borrowings under our credit facilities are subject to variable rates of interest;
the discontinuation of the London Interbank Offered Rate (“LIBOR”) after June 2023 and the replacement with an alternative reference rate may
adversely impact interest rates and our interest rate hedging strategy;
• making it more difficult for us to repay, refinance or satisfy our obligations with respect to our debt;
•
limiting our ability to borrow additional funds in the future and increasing the cost of any such borrowing; and
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•
exposing us to risks related to fluctuations in foreign currency as we earn profits in a variety of currencies around the world and substantially all of our
debt is denominated in U.S. dollars.
If we are unable to generate sufficient cash flow to pay indebtedness and other funding needs or refinance our indebtedness on favorable terms, or at all, our
financial condition may be materially adversely affected.
Our indebtedness limits our ability to take certain actions and could delay or prevent a future change of control.
The terms of our indebtedness include a number of restrictive covenants that, among other things, limit our ability to incur additional indebtedness or
guarantee or prepay indebtedness; pay dividends on, repurchase or make distributions in respect of capital stock; make investments or acquisitions; create liens or
use assets as security in other transactions; consolidate, merge, sell or otherwise dispose of substantially all of our or our subsidiaries’ assets; make intercompany
transactions; and enter into transactions with affiliates. These limitations may hinder our ability to finance future operations and capital needs and our ability to
pursue business opportunities and activities that may be in our interest. In addition, our ability to comply with these covenants and restrictions may be affected by
events beyond our control.
A breach of the covenants under our indebtedness could result in an event of default under the applicable agreement allowing the debt holders to accelerate
repayment of such debt as well as any other debt to which a cross-acceleration or cross-default provision applies. In addition, default under our senior secured
credit facilities would also permit the lenders thereunder to terminate all other commitments to extend additional credit thereunder, including under the revolver.
Similarly, in the event of a change of control, pursuant to the terms of our indebtedness, we may be required to repay our credit facilities, or offer to repurchase the
senior secured first lien and second lien notes as well as future indebtedness. Such current and future terms could have the effect of delaying or preventing a future
change of control or may discourage a potential acquirer from proposing or completing a transaction that may otherwise have presented a premium to our
shareholders.
Following the occurrence of either an event of default or change of control, we may not have sufficient resources to repurchase, repay or redeem our
obligations, as applicable, and we may not be able to obtain additional financing to satisfy these obligations on terms favorable to us or at all. Also, if we were
unable to repay the amounts due under our secured indebtedness, the holders of such indebtedness could proceed against the collateral that secures such
indebtedness. In the event our creditors accelerate the repayment of our secured indebtedness, we and our subsidiaries may not have sufficient assets to repay that
indebtedness.
Risks Related to Taxation
Unanticipated tax liabilities could adversely affect the taxes we pay and our profitability.
We are subject to income and other taxes in Canada, the United States, and numerous foreign jurisdictions. A taxation authority may disagree with certain of
our views, including, for example, the allocation of profits by tax jurisdiction, and the deductibility of our interest expense, and may take the position that material
income tax liabilities, interest, penalties, or other amounts are payable by us, in which case, we expect to contest such assessment. Contesting such an assessment
may be lengthy and costly and if we were unsuccessful, the implications could be materially adverse to us and affect our effective income tax rate or operating
income.
From time to time, we are subject to additional state and local income tax audits, international income tax audits and sales, franchise and value-added tax
audits. Although we believe our tax estimates are reasonable, the final determination of tax audits and any related litigation could be materially different from our
historical income tax provisions and accruals. There can be no assurance that the Canada Revenue Agency (the “CRA”), the U.S. Internal Revenue Service (the
“IRS”) and/or foreign tax authorities will agree with our interpretation of the tax aspects of reorganizations, initiatives, transactions, or any related matters
associated therewith that we have undertaken.
The results of a tax audit or related litigation could result in us not being in a position to take advantage of the effective income tax rates and the level of
benefits that we anticipated to achieve as a result of corporate reorganizations, initiatives and transactions, and the implications could have a material adverse effect
on our effective income tax rate, income tax provision, net income (loss) or cash flows in the period or periods for which that determination is made.
The Company and Partnership may be treated as U.S. corporations for U.S. federal income tax purposes, which could subject us and Partnership to
substantial additional U.S. taxes.
As Canadian entities, the Company and Partnership generally would be classified as foreign entities (and, therefore, non-U.S. tax residents) under general
rules of U.S. federal income taxation. Section 7874 of the Code, however, contains rules that result in a non-U.S. corporation being taxed as a U.S. corporation for
U.S. federal income tax purposes, unless certain tests, applied at the time of
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the acquisition, regarding ownership of such entities (as relevant here, ownership by former Burger King shareholders) or level of business activities (as relevant
here, business activities in Canada by us and our affiliates, including Partnership), were satisfied at such time. The U.S. Treasury Regulations apply these same
rules to non-U.S. publicly traded partnerships, such as Partnership. These statutory and regulatory rules are relatively new, their application is complex and there is
little guidance regarding their application.
If it were determined that we and/or Partnership should be taxed as U.S. corporations for U.S. federal income tax purposes, we and Partnership could be
liable for substantial additional U.S. federal income tax. For Canadian tax purposes, we and Partnership are expected, regardless of any application of Section 7874
of the Code, to be treated as a Canadian resident company and partnership, respectively. Consequently, if we and/or Partnership did not satisfy either of the
applicable tests, we might be liable for both Canadian and U.S. taxes, which could have a material adverse effect on our financial condition and results of
operations.
Future changes to U.S. and non-U.S. tax laws including future regulations and other interpretive guidance of U.S. and Non-U.S. tax laws could
materially affect RBI and/or Partnership, including their status as foreign entities for U.S. federal income tax purposes, and adversely affect their anticipated
financial positions and results.
Changes to the rules in sections 385 and 7874 of the Code or the Treasury Regulations promulgated thereunder, or other changes in law, could adversely
affect our and/or Partnership’s status as a non-U.S. entity for U.S. federal income tax purposes, our effective income tax rate or future planning based on current
law, and any such changes could have prospective or retroactive application to us and/or Partnership. It is presently uncertain whether any such legislative
proposals will be enacted into law and, if so, what impact such legislation would have on us. The timing and substance of any such further action is presently
uncertain. Any such change of law or regulatory action which could apply retroactively or prospectively, could adversely impact our tax position as well as our
financial position and results in a material manner. The precise scope and application of any such regulatory proposals will not be clear until proposed Treasury
Regulations are issued, and, accordingly, until such regulations are promulgated and fully understood, we cannot be certain that there will be no such impact. In
addition, we would be impacted by any changes in tax law in response to corporate tax reforms and other policy initiatives in the U.S. and elsewhere.
Moreover, the U.S. Congress, the Organization for Economic Co-operation and Development ("OECD") and other government agencies in jurisdictions
where the Company and its affiliates do business have had an extended focus on issues related to the taxation of multinational corporations. Specific attention has
been paid to “base erosion and profit shifting” ("BEPS"), where payments are made between affiliates from a jurisdiction with high tax rates to a jurisdiction with
lower tax rates. As a result, the tax laws in the countries in which we do business could change on a prospective or retroactive basis, and any such change could
adversely affect us.
On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”). The
provisions of the Tax Act are complex and continue to be the subject of further regulatory and administrative guidance, which may adversely affect our effective
tax rate and results of operations. Additionally, other jurisdictions have and are considering various tax reform initiatives as well as initiatives related to COVID-19
that may adversely impact us if enacted.
Risks related to Information Technology
The personal information that we collect may be vulnerable to breach, theft, or loss that could adversely affect our reputation, results of operations, and
financial condition.
In the ordinary course of our business, we collect, process, transmit, and retain personal information regarding our employees and their families, our
franchisees, vendors, contractors, and consumers, which can include social security numbers, social insurance numbers, banking and tax identification information,
health care information, and credit card information and our franchisees collect similar information. For example, in 2019 and 2020, we expanded our development
and management of our brands’ mobile apps, online ordering platforms, and in-restaurant kiosks. While our deployment of such technology facilitates our primary
goals of generating both incremental sales at our franchisees’ restaurants as well as additional customer awareness and interest in our brands, such deployment also
means that we are collecting and responsible for additional personal information about our customers. Canadian privacy officials are investigating the use of certain
geolocation data for TH mobile app users and we have been served with several purported class action lawsuits in Canada alleging we violated mobile app users'
privacy rights. While we are fully cooperating with the investigation and vigorously defending the lawsuits, negative publicity regarding these matters could
adversely affect our reputation and our brands. Some of this personal information is also held and managed by our franchisees and certain of our vendors. A third-
party may be able to circumvent the security and business controls we and/or our vendors use to limit access and use of personal information, which could result in
a breach of employee, consumer, or franchisee privacy.
A major breach, theft, or loss of the personal information described above that is held by us or our vendors could adversely affect our reputation and
restaurant operations as well as result in substantial fines, penalties, indemnification claims, and potential litigation against us which could negatively impact our
results of operations and financial condition. For example, under the European
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Union's General Data Protection Regulation (“GDPR”), companies must meet certain requirements regarding the handling of personal data or face penalties of up
to 4% of worldwide revenue. Furthermore, the collection and safeguarding of personal information has increasingly attracted enhanced scrutiny from the general
public in the United States and Canada, which has resulted in additional actual and proposed legislative and regulatory rules at the federal, provincial and state
levels (e.g., the California Consumer Privacy Act of 2018, California's Proposition 24 of 2020, and Canada's Bill C-11). These regulations have been subject to
frequent change, and there may be other jurisdictions that propose or enact new or emerging data privacy requirements in the future. As a result of such legislative
and regulatory rules, we may be required to notify the owners of the personal information of any data breaches, which could harm our reputation and financial
results, as well as subject us to litigation or actions by regulatory authorities. Furthermore, media or other reports of existing or perceived security vulnerabilities in
our systems or those of our franchisees or vendors, or misuse of personal data, even if no breach has been attempted or has occurred, has and in the future may lead
to investigations and litigation and may adversely impact our brand, reputation, and business.
Significant capital investments and other expenditures could be required to remedy a breach and prevent future problems, including costs associated with
additional security technologies, personnel, experts, and credit monitoring services for those whose data has been breached. These costs, which could be material,
could adversely impact our results of operations during the period in which they are incurred. The techniques and sophistication used to conduct cyber-attacks and
breaches, as well as the sources and targets of these attacks, change frequently and are often not recognized until such attacks are launched or have been in place
for a period of time. Accordingly, our expenditures to prevent future cyber-attacks or breaches may not be successful.
Information technology system failures or interruptions or breaches of our network security may interrupt our operations, cause reputational harm,
subject us to increased operating costs and expose us to litigation.
We rely heavily on our computer systems and network infrastructure across operations including, but not limited to, point-of-sale processing at our
restaurants, as well as the systems of our third-party vendors to whom we outsource certain administrative functions. Despite our implementation of security
measures, all of our technology systems are vulnerable to damage, disruption or failures due to physical theft, fire, power loss, telecommunications failure, or other
catastrophic events, as well as from problems with transitioning to upgraded or replacement systems, internal and external security breaches, denial of service
attacks, viruses, worms, and other disruptive problems caused by hackers. If any of our technology systems were to fail and we were unable to recover in a timely
way, we could experience an interruption in our operations. Furthermore, if unauthorized access to or use of our systems were to occur, data related to our
proprietary information could be compromised. The occurrence of any of these incidents could have a material adverse effect on our future financial condition and
results of operations. To the extent that some of our worldwide reporting systems require or rely on manual processes, it could increase the risk of a breach due to
human error.
Further, the standards for systems currently used for transmission and approval of electronic payment transactions, and the technology utilized in electronic
payment themselves, all of which can put electronic payment data at risk, are determined and controlled by the payment card industry, not by us. If someone is able
to circumvent our data security measures or those of third parties with whom we do business, including our franchisees, he or she could destroy or steal valuable
information or disrupt our operations. Any security breach could expose us to risks of data loss, litigation, liability, and could seriously disrupt our operations. Any
resulting negative publicity could significantly harm our reputation and could materially and adversely affect our business and operating results.
Finally, we have expended and may need to continue to expend substantial financial and managerial resources to enhance our existing restaurant
management systems, financial and management controls, information systems and personnel to accurately capture and reflect the financial and operational
activities at our franchise restaurants. On occasion we have encountered, and may in the future encounter, challenges in receiving these results from our franchisees
in a consistent and timely manner as a number of our systems and processes are not fully integrated worldwide. To the extent that we are not able to obtain
transparency into our operations from our systems and manual estimations and effectively manage the information demands associated with significant growth, it
could impair the ability of our management to react quickly to changes in the business or economic environment and our business and operating results could be
negatively impacted.
Risks Related to our Common Shares
3G RBH owns approximately 31% of the combined voting power in the Company, and its interests may conflict with or differ from the interests of the
other shareholders.
3G Restaurant Brands Holdings LP (“3G RBH”) currently owns approximately 31% of the combined voting power in the Company. So long as 3G RBH
continues to directly or indirectly own a significant amount of the voting power, it will continue to be able to strongly influence or effectively control business
decisions of the Company. 3G RBH and its principals may have interests that are different from those of the Company's other shareholders, and 3G RBH may
exercise its voting and other rights in a manner that may be adverse to the interests of such shareholders. In addition, this concentration of ownership could have
the effect of delaying or
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preventing a change in control or otherwise discouraging a potential acquirer from attempting to obtain control of the Company, which could cause the market
price of the Company’s common shares to decline or prevent the Company’s shareholders from realizing a premium over the market price for their common shares
or Partnership exchangeable units.
3G RBH is affiliated with 3G Capital Partners, Ltd. a global investment firm (“3G Capital”). 3G Capital is in the business of making investments in
companies and may from time to time in the future pursue opportunities, acquire or develop controlling interests in businesses engaged in the QSR industry that
complement or directly or indirectly compete with certain portions of our business. As a result, those acquisition opportunities may not be available to us.
Canadian laws may have the effect of delaying or preventing a change in control.
We are a Canadian entity. The Investment Canada Act requires that a “non-Canadian,” as defined therein, file an application for review with the Minister
responsible for the Investment Canada Act and obtain approval of the Minister prior to acquiring control of a Canadian business, where prescribed financial
thresholds are exceeded. This may discourage a potential acquirer from proposing or completing a transaction that may otherwise present a premium to
shareholders.
General Risks
The loss of key management personnel or our inability to attract and retain new qualified personnel could hurt our business.
We are dependent on the efforts and abilities of our senior management, including the executives managing each of our brands, and our success will also
depend on our ability to attract and retain additional qualified employees. Failure to attract personnel sufficiently qualified to execute our strategy, or to retain
existing key personnel, could have a material adverse effect on our business.
We have been, and in the future may be, subject to litigation that could have an adverse effect on our business.
We may from time to time, in the ordinary course of business, be subject to litigation relating to matters including, but not limited to, disputes with
franchisees, suppliers, employees, team members, and customers, as well as disputes over our advertising claims about our food and over our intellectual property.
For example, there have been multiple purported class action lawsuits filed against us regarding the no-poaching provision our franchise agreements for BK in the
U.S. and TH in Canada, regarding certain purported privacy-related concerns with respect to geo-location data and our mobile application in Canada and regarding
certain disclosures to the market, including in connection with secondary offerings of our shares. Active and potential disputes with franchisees could damage our
brand reputation and our relationships with our broader franchise base. Such litigation may be expensive to defend, harm our reputation and divert resources away
from our operations and negatively impact our reported earnings. Also, legal proceedings against a franchisee or its affiliates by third parties, whether in the
ordinary course of business or otherwise, may include claims against us by virtue of our relationship with the franchisee. We, or our business partners, may become
subject to claims for infringement of intellectual property rights and we may be required to indemnify or defend our business partners from such claims. Should
management’s evaluation of our current exposure to legal matters pending against us prove incorrect and such claims are successful, our exposure could exceed
expectations and have a material adverse effect on our business, financial condition and results of operations. Although some losses may be covered by insurance,
if there are significant losses that are not covered, or there is a delay in receiving insurance proceeds, or the proceeds are insufficient to offset our losses fully, our
financial condition or results of operations may be adversely affected.
Item 1B. Unresolved Staff Comments
None.
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Executive Officers of the Registrant
Set forth below is certain information about our executive officers. Ages are as of the date hereof.
Name
José E. Cil
Matthew Dunnigan
Joshua Kobza
Axel Schwan
Christopher Finazzo
Sami Siddiqui
David Shear
Fernando Machado
Jill Granat
Jacqueline Friesner
Position
Age
51
37
34
47
39
36
37
46
55
48
Chief Executive Officer
Chief Financial Officer
Chief Operating Officer
President, Tim Hortons Americas
President, Burger King Americas
President, Popeyes Americas
President, International
Chief Marketing Officer
General Counsel and Corporate Secretary
Controller and Chief Accounting Officer
José E. Cil. Mr. Cil was appointed Chief Executive Officer of the Company in January 2019, and previously served as President, Burger King since
December 2014. Mr. Cil served as Executive Vice President and President of Europe, the Middle East and Africa for Burger King Worldwide and its predecessor
from November 2010 until December 2014. Prior to this role, Mr. Cil was Vice President and Regional General Manager for Wal-Mart Stores, Inc. in Florida from
February 2010 to November 2010. From September 2008 to January 2010, Mr. Cil served as Vice President of Company Operations of Burger King Corporation
and from September 2005 to September 2008, he served as Division Vice President, Mediterranean and NW Europe Divisions, EMEA of a subsidiary of Burger
King Corporation.
Matthew Dunnigan. Mr. Dunnigan was appointed Chief Financial Officer of the Company in January 2018. From October 2014 until January 2018, Mr.
Dunnigan held the position of Treasurer, where he took on increasing responsibilities and successfully led all of the Company's capital markets activities. Before he
joined the Company, Mr. Dunnigan served as Vice President of Crescent Capital Group LP, from September 2013 through October 2014, where he evaluated
investments across the credit markets. Prior to that, Mr. Dunnigan spent three years as a private equity investment professional for H.I.G. Capital.
Joshua Kobza. Mr. Kobza was appointed Chief Operating Officer of the Company in January 2019. Prior to that, Mr. Kobza served as Chief Technology
Officer and Development Officer of the Company from January 2018 to January 2019, and as Chief Financial Officer of the Company from December 2014 to
January 2018. From April 2013 to December 2014, Mr. Kobza served as Executive Vice President and Chief Financial Officer of Burger King Worldwide. Mr.
Kobza joined Burger King Worldwide in June 2012 as Director, Investor Relations, and was promoted to Senior Vice President, Global Finance in December 2012.
From January 2011 until June 2012, Mr. Kobza worked at SIP Capital, a Sao Paulo based private investment firm, where he evaluated investments across a number
of industries and geographies. From July 2008 until December 2010, Mr. Kobza served as an analyst in the corporate private equity area of the Blackstone Group in
New York City.
Axel Schwan. Mr. Schwan was appointed President of Tim Hortons, Americas in October 2019. Mr. Schwan served as Global Chief Marketing Officer of
Tim Hortons from October 2017 to October 2019 and prior to that served as the Chief Marketing Officer of Burger King from January 2014 to October 2017.
Christopher Finazzo. Mr. Finazzo was appointed President of Burger King, Americas in December 2017. Mr. Finazzo served as Head of Marketing, North
America for Burger King from January 2017 to December 2017 and was Head of Development for Burger King from January 2016 to January 2017. Since joining
Burger King in May 2014, he has held various roles in marketing and development. Prior to joining Burger King, Mr. Finazzo was on the strategy team at Macy’s.
Sami Siddiqui. Mr. Siddiqui was appointed President of Popeyes, Americas in September 2020. Prior to that Mr. Siddiqui served as President of Asia Pacific
for RBI from February 2019 to September 2020 and as Chief Financial Officer for Burger King Corporation from October 2018 to February 2019. From September
2016 to September 2018, he was President of Tim Hortons and from April 2015 to September 2016, he was Executive Vice President, Finance for Tim Hortons.
Mr. Siddiqui joined Burger King Corporation in 2013 and served various capacities within the Global Finance groups of Burger King Corporation prior to joining
the Tim Hortons team.
David Shear. Mr. Shear was appointed President International of Restaurant Brands International in January 2021. Mr. Shear previously served as President
EMEA beginning in September 2016. Mr. Shear joined the predecessor of the company in 2011, holding roles of increasing responsibility within the US marketing.
He then held various roles in Asia Pacific, including serving as President of Burger King APAC from 2014 to 2016. Prior to joining Burger King Corporation,
David worked at strategy consulting firm Charles River Associates.
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Fernando Machado. Mr. Machado was appointed Chief Marketing Officer for RBI in January 2019. Mr. Machado served as Chief Marketing Officer of
Burger King beginning July 2019 and prior to that served as Head of Brand Marketing, Burger King from October 2017 through June 2019 and Senior Vice
President, Global Brand Management of Burger King from March 2014 to October 2017. Prior to joining Burger King, Mr. Machado held several brand
development positions at Unilever.
Jill Granat. Ms. Granat was appointed General Counsel and Corporate Secretary of the Company in December 2014. Ms. Granat served as Senior Vice
President, General Counsel and Secretary of Burger King Worldwide and its predecessor since February 2011. Prior to this time, Ms. Granat was Vice President
and Assistant General Counsel of Burger King Corporation from July 2009 until February 2011. Ms. Granat joined Burger King Corporation in 1998 as a member
of the legal department and served in positions of increasing responsibility with Burger King Corporation.
Jacqueline Friesner. Ms. Friesner was appointed Controller and Chief Accounting Officer of the Company in December 2014. Ms. Friesner served as Vice
President, Controller and Chief Accounting Officer of Burger King Worldwide and its predecessor from March 2011 until December 2014. Prior thereto, Ms.
Friesner served in positions of increasing responsibility with Burger King Corporation. Before joining Burger King Corporation in October 2002, she was an audit
manager at Pricewaterhouse Coopers in Miami, Florida.
Item 2. Properties
Our corporate headquarters is located in Toronto, Ontario and consists of approximately 65,000 square feet which we lease. Our U.S. headquarters is located
in Miami, Florida and consists of approximately 150,000 square feet which we lease. We also lease office property in Switzerland and Singapore. Related to the
TH business, we own seven distribution centers, of which two are vacant and are held for sale as of December 31, 2020, and two manufacturing plants throughout
Canada. In addition to our corporate headquarters in Toronto, Ontario, we lease one office in Canada and one manufacturing plant in the U.S. In 2020, we
completed two new distribution centers in Western Canada, to replace two existing distribution centers, and renovated an existing warehouse in Eastern Canada to
facilitate the supply of frozen and refrigerated products in those markets.
As of December 31, 2020, our restaurant footprint was as follows:
(1)
Franchise Restaurants
Sites owned by us and leased to franchisees
Sites leased by us and subleased to franchisees
Sites owned/leased directly by franchisees
Total franchise restaurant sites
Company Restaurants
Sites owned by us
Sites leased by us
Total company restaurant sites
Total system-wide restaurant sites
(1) Includes VIE restaurants.
TH
BK
PLK
Total
761
2,825
1,359
4,945
—
4
4
4,949
662
787
17,124
18,573
16
36
52
18,625
33
48
3,329
3,410
10
31
41
3,451
1,456
3,660
21,812
26,928
26
71
97
27,025
We believe that our existing headquarters and other leased and owned facilities are adequate to meet our current requirements.
Item 3. Legal Proceedings
From time to time, we are involved in legal proceedings arising in the ordinary course of business relating to matters including, but not limited to, disputes
with franchisees, suppliers, employees and customers, as well as disputes over our intellectual property.
See Note 16, “Commitments and Contingencies,” to the accompanying consolidated financial statements included in Part II, Item 8 “Financial Statements
and Supplementary Data” of our Annual Report for more information on certain legal proceedings.
Item 4. Mine Safety Disclosures
Not applicable.
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Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market for Our Common Shares
Part II
Our common shares trade on the New York Stock Exchange (“NYSE”) and Toronto Stock Exchange (“TSX”) under the ticker symbol “QSR”. The Class B
exchangeable limited partnership units of Partnership (the “Partnership exchangeable units”) trade on the TSX under the ticker symbol “QSP”. As of February 15,
2021, there were 21,924 holders of record of our common shares.
Dividend Policy
On February 11, 2021, we announced that the board of directors had declared a cash dividend of $0.53 per common share for the first quarter of 2021. The
dividend will be paid on April 6, 2021 to common shareholders of record on March 23, 2021. Partnership will also make a distribution in respect of each
Partnership exchangeable unit in the amount of $0.53 per Partnership exchangeable unit, and the record date and payment date for distributions on Partnership
exchangeable units are the same as the record date and payment date set forth above.
We are targeting a total of $2.12 in declared dividends per common share and distributions in respect of each Partnership exchangeable unit for 2021.
Although our board of directors declared a cash dividend on our common shares for each quarter of 2020 and for the first quarter of 2021, any future
dividends on our common shares will be determined at the discretion of our board of directors and will depend upon results of operations, financial condition,
contractual restrictions, including the terms of the agreements governing our debt and any future indebtedness we may incur, restrictions imposed by applicable law
and other factors that our board of directors deems relevant. Although we are targeting a total of $2.12 in declared dividends per common share and Partnership
exchangeable unit for 2021, there is no assurance that we will achieve our target total dividend for 2021 and satisfy our debt service and other obligations.
Issuer Purchases of Equity Securities
During 2020, Partnership received exchange notices representing 10,393,861 Partnership exchangeable units, including 7,098,893 during the fourth quarter
of 2020. Pursuant to the terms of the partnership agreement, Partnership satisfied the exchange notices by repurchasing 6,757,692 Partnership exchangeable units
for approximately $380 million in cash and exchanging the remaining Partnership exchangeable units for the same number of our newly issued common shares.
During 2019, Partnership received exchange notices representing 42,016,392 Partnership exchangeable units and satisfied the exchange notices by exchanging the
Partnership exchangeable units for the same number of newly issued common shares. During 2018, Partnership received exchange notices representing 10,185,333
Partnership exchangeable units. Partnership satisfied the exchange notices by repurchasing 10,000,000 Partnership exchangeable units for approximately $561
million in cash and exchanging the remaining Partnership exchangeable units for the same number of our newly issued common shares. Pursuant to the terms of the
partnership agreement, the purchase price for the Partnership exchangeable units was based on the weighted average trading price of our common shares on the
NYSE for the 20 consecutive trading days ending on the last business day prior to the exchange date. Upon the exchange of Partnership exchangeable units, each
such Partnership exchangeable unit was automatically deemed cancelled concurrently with such exchange.
24
Table of Contents
Stock Performance Graph
The following graph shows the Company’s cumulative shareholder returns over the period from December 31, 2015 to December 31, 2020. The graph
depicts the total return to shareholders from December 31, 2015 through December 31, 2020, relative to the performance of the Standard & Poor’s 500 Index and
the Standard & Poor’s Restaurant Index, a peer group. The graph assumes an investment of $100 in the Company's common stock and each index on December 31,
2015 and the reinvestment of dividends paid since that date. The stock price performance shown in the graph is not necessarily indicative of future price
performance.
Restaurant Brands International (NYSE)
S&P 500 Index
S&P Restaurant Index
12/31/2015
12/31/2016
12/31/2017
12/31/2018
12/31/2019
12/31/2020
$
$
$
100
100
100
$
$
$
129
112
103
$
$
$
169
136
130
$
$
$
149
130
143
$
$
$
186 $
171 $
178 $
186
203
210
25
Table of Contents
Item 6. Selected Financial Data
Unless the context otherwise requires, all references to the “Company”, “we”, “us” or “our” refer to Restaurant Brands International Inc. and its
subsidiaries, collectively.
All references to “$” or “dollars” in this report are to the currency of the United States unless otherwise indicated. All references to “Canadian dollars” or
“C$” are to the currency of Canada unless otherwise indicated.
Selected Financial Data
The following tables present our selected historical consolidated financial data as of the dates and for each of the periods indicated. The selected historical
financial data as of December 31, 2020 and December 31, 2019 and for 2020, 2019 and 2018 have been derived from our audited consolidated financial statements
and notes thereto included in this report. The selected historical financial data as of December 31, 2018, December 31, 2017 and December 31, 2016 and for 2017
and 2016 have been derived from our audited consolidated financial statements and notes thereto, which are not included in this report.
Effective January 1, 2019, we adopted the new lease accounting standard ("New Lease Standard"). Our consolidated financial statements for 2020 and 2019
reflect the application of the New Lease Standard, while our consolidated financial statements for periods prior to 2019 were prepared under the guidance of the
previously applicable lease accounting standard. Effective January 1, 2018, we adopted the new revenue recognition accounting standard ("New Revenue
Recognition Standard"). Our consolidated financial statements for 2020, 2019 and 2018 reflect the application of the New Revenue Recognition Standard, while
our consolidated financial statements for periods prior to 2018 were prepared under the guidance of previously applicable accounting standards.
The selected historical consolidated financial data presented below contain all normal recurring adjustments that, in the opinion of management, are
necessary to present fairly our financial position and results of operations as of and for the periods presented. The selected historical consolidated financial data
included below and elsewhere in this report are not necessarily indicative of future results. The information presented in this section should be read in conjunction
with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part II, Item 7 and “Financial Statements and Supplementary
Data” in Part II, Item 8 of this report.
Statement of Operations Data:
Revenues:
Sales
Franchise and property revenues
Total revenues
Income from operations (b)
Net income (b)
Earnings per common share:
Basic (c)
Diluted (c)
Dividends per common share
Other Financial Data:
Net cash provided by operating activities
Net cash provided by (used for) investing activities
Net cash used for financing activities
$
$
$
$
$
2020
2,013 $
2,955
4,968
1,422
750
1.61 $
1.60 $
2.08 $
921 $
(79)
(821)
26
2019
2018
(In millions, except per share data)
2017(a)
2,362 $
3,241
5,603
2,007
1,111
2.40 $
2.37 $
2.00 $
1,476 $
(30)
(842)
2,355 $
3,002
5,357
1,917
1,144
2.46 $
2.42 $
1.80 $
1,165 $
(44)
(1,285)
2,390 $
2,186
4,576
1,735
1,235
2.64 $
2.54 $
0.78 $
1,391 $
(858)
(936)
2016
2,205
1,941
4,146
1,667
956
1.48
1.45
0.62
1,250
27
(591)
Table of Contents
Balance Sheet Data:
Cash and cash equivalents
Total assets
Total debt and finance lease obligations
Total liabilities
Redeemable preferred shares
Total equity
2020
2019
December 31,
2018
(In millions)
2017(a)
2016
$
1,560 $
22,777
12,823
19,056
—
3,721
1,533 $
22,360
12,148
18,101
—
4,259
913 $
20,141
12,140
16,523
—
3,618
1,097 $
21,224
12,123
16,663
—
4,561
1,476
19,125
8,723
12,339
3,297
3,489
(a)
(b)
(c)
On March 27, 2017, we acquired PLK. Statement of operations data and other financial data includes PLK results from the acquisition date through
December 31, 2017. Balance sheet data includes PLK data as of December 31, 2017.
Amount includes $16 million of Corporate restructuring and tax advisory fees for 2020. Amount includes $31 million of Corporate restructuring and tax
advisory fees and $6 million of Office centralization and relocation costs for 2019. Amount includes $10 million of PLK Transaction costs, $25 million of
Corporate restructuring and tax advisory fees and $20 million of Office centralization and relocation costs for 2018. Amount includes $62 million of PLK
Transaction costs and $2 million of Corporate restructuring and tax advisory fees for 2017. Amount includes $16 million of integration costs for 2016 in
connection with the implementation of initiatives to integrate the back-office processes of TH and BK to enhance efficiencies.
The diluted earnings per share calculation assumes conversion of 100% of the Partnership exchangeable units under the “if converted” method. Accordingly,
the numerator is also adjusted to include the earnings allocated to the holders of noncontrolling interests. For 2017, both basic and diluted earnings per share
amount includes a $234 million gain on the redemption of the Company's redeemable preferred shares.
Operating Metrics
We evaluate our restaurants and assess our business based on the following operating metrics:
•
•
•
•
•
System-wide sales growth refers to the percentage change in sales at all franchise restaurants and Company restaurants (referred to as system-
wide sales) in one period from the same period in the prior year.
Comparable sales refers to the percentage change in restaurant sales in one period from the same prior year period for restaurants that have been
open for 13 months or longer for TH and BK and 17 months or longer for PLK. Additionally, if a restaurant is closed for a significant portion of
a month, the restaurant is excluded from the monthly comparable sales calculation.
System-wide sales growth and comparable sales are measured on a constant currency basis, which means the results exclude the effect of foreign
currency translation (“FX Impact”). For system-wide sales growth and comparable sales, we calculate the FX Impact by translating prior year
results at current year monthly average exchange rates.
Unless otherwise stated, system-wide sales growth, system-wide sales and comparable sales are presented on a system-wide basis, which means
they include franchise restaurants and Company restaurants. System-wide results are driven by our franchise restaurants, as approximately 100%
of system-wide restaurants are franchised. Franchise sales represent sales at all franchise restaurants and are revenues to our franchisees. We do
not record franchise sales as revenues; however, our royalty revenues are calculated based on a percentage of franchise sales.
Net restaurant growth refers to the net increase/(decrease) in restaurant count (openings, net of permanent closures) over a trailing twelve month
period, divided by the restaurant count at the beginning of the trailing twelve month period.
These metrics are important indicators of the overall direction of our business, including trends in sales and the effectiveness of each brand’s marketing,
operations and growth initiatives.
27
Table of Contents
The following table presents our operating metrics for each of the periods indicated, which have been derived from our internal records. We evaluate our
restaurants and assess our business based on these operating metrics. These metrics may differ from those used by other companies in our industry who may define
these metrics differently.
System-wide sales growth
Tim Hortons
Burger King
Popeyes
Consolidated
System-wide sales ($ in millions)
Tim Hortons
Burger King
Popeyes
Consolidated
Comparable sales
Tim Hortons
Burger King
Popeyes
Net restaurant growth
Tim Hortons
Burger King
Popeyes
Consolidated
System Restaurant count
Tim Hortons
Burger King
Popeyes
Consolidated
2020
2019
2018
(17.5)%
(11.1)%
17.7 %
(8.6)%
(0.3)%
9.3 %
18.5 %
8.3 %
2.4 %
8.9 %
8.9 %
7.4 %
$
$
$
$
5,488
20,038
5,143
30,669
$
$
$
$
6,716
22,921
4,397
34,034
$
$
$
$
6,869
21,624
3,732
32,225
(1.5)%
3.4 %
12.1 %
1.8 %
5.9 %
6.9 %
5.2 %
4,932
18,838
3,316
27,086
0.6 %
2.0 %
1.6 %
2.1 %
6.1 %
7.3 %
5.5 %
4,846
17,796
3,102
25,744
(15.7)%
(7.9)%
13.8 %
0.3 %
(1.1)%
4.1 %
(0.2)%
4,949
18,625
3,451
27,025
28
Table of Contents
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
You should read the following discussion together with Part II, Item 6 “Selected Financial Data” of this Annual Report for the year ended December 31,
2020 (our “Annual Report”) and our audited Consolidated Financial Statements and the related notes thereto included in Part II, Item 8 “Financial Statements
and Supplementary Data” of our Annual Report.
The following discussion includes information regarding future financial performance and plans, targets, aspirations, expectations, and objectives of
management, which constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and forward-looking
information within the meaning of the Canadian securities laws as described in further detail under “Special Note Regarding Forward-Looking Statements” that is
set forth below. Actual results may differ materially from the results discussed in the forward-looking statements because of a number of risks and uncertainties,
including the matters discussed in the “Special Note Regarding Forward-Looking Statements” below. In addition, please refer to the risks set forth under the
caption “Risk Factors” included in this Annual Report for a further description of risks and uncertainties affecting our business and financial results. Historical
trends should not be taken as indicative of future operations and financial results. Other than as required under the U.S. Federal securities laws or the Canadian
securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances,
changes in expectations or otherwise.
We prepare our financial statements in accordance with accounting principles generally accepted in the United States (“U.S. GAAP” or “GAAP”).
However, this Management’s Discussion and Analysis of Financial Condition and Results of Operations also contains certain non-GAAP financial measures to
assist readers in understanding our performance. Non-GAAP financial measures either exclude or include amounts that are not reflected in the most directly
comparable measure calculated and presented in accordance with GAAP. Where non-GAAP financial measures are used, we have provided the most directly
comparable measures calculated and presented in accordance with U.S. GAAP, a reconciliation to GAAP measures and a discussion of the reasons why
management believes this information is useful to it and may be useful to investors.
Unless the context otherwise requires, all references in this section to the “Company,” “we,” “us,” or “our” are to Restaurant Brands International Inc.
and its subsidiaries, collectively.
Overview
We are a Canadian corporation that serves as the indirect holding company for Tim Hortons, Burger King and Popeyes and their consolidated subsidiaries.
We are one of the world’s largest quick service restaurant (“QSR”) companies with approximately $31 billion in system-wide sales and approximately 27,000
restaurants in more than 100 countries as of December 31, 2020. Our Tim Hortons®, Burger King®, and Popeyes® brands have similar franchise business models
with complementary daypart mixes and product platforms. Our three iconic brands are managed independently while benefiting from global scale and sharing of
best practices.
Tim Hortons restaurants are quick service restaurants with a menu that includes premium blend coffee, tea, espresso-based hot and cold specialty drinks,
fresh baked goods, including donuts, Timbits®, bagels, muffins, cookies and pastries, grilled paninis, classic sandwiches, wraps, soups and more. Burger King
restaurants are quick service restaurants that feature flame-grilled hamburgers, chicken and other specialty sandwiches, french fries, soft drinks and other
affordably-priced food items. Popeyes restaurants are quick service restaurants featuring a unique “Louisiana” style menu that includes fried chicken, chicken
tenders, fried shrimp and other seafood, red beans and rice, and other regional items.
We have three operating and reportable segments: (1) Tim Hortons (“TH”); (2) Burger King (“BK”); and (3) Popeyes Louisiana Kitchen (“PLK”). Our
business generates revenue from the following sources: (i) franchise revenues, consisting primarily of royalties based on a percentage of sales reported by franchise
restaurants and franchise fees paid by franchisees; (ii) property revenues from properties we lease or sublease to franchisees; and (iii) sales at restaurants owned by
us (“Company restaurants”). In addition, our Tim Hortons business generates revenue from sales to franchisees related to our supply chain operations, including
manufacturing, procurement, warehousing and distribution, as well as sales to retailers.
COVID-19
The global crisis resulting from the spread of coronavirus (“COVID-19”) had a substantial impact on our global restaurant operations in 2020. System-wide
sales growth, system-wide sales, comparable sales and net restaurant growth were also negatively impacted for 2020 as a result of the impact of COVID-19. During
2020, substantially all TH, BK and PLK restaurants remained open in North America with limited operations, such as drive-thru, takeout and delivery (where
applicable) and that currently remains the case. While certain markets have opened for dine-in guests, the capacity may be limited, and local conditions may lead to
closures or increased limitations. Some international markets temporarily closed most
29
Table of Contents
or all restaurants and the restaurants that remained open or have reopened may have limited operations. As of the end of December 2020, over 96% of our
restaurants were open worldwide, including substantially all of our restaurants in North America and Asia Pacific and approximately 94% of our restaurants were
open in Europe, Middle East and Africa.
Our operating results substantially depend upon our franchisees’ sales volumes, restaurant profitability, and financial stability. The financial impact of
COVID-19 has had, and is expected to continue to have, an adverse effect on many of our franchisees’ liquidity and we have worked closely with our franchisees
around the world to monitor and assist them with access to appropriate sources of liquidity in order to sustain their businesses throughout this crisis. During 2020,
we offered rent relief programs to eligible TH franchisees in Canada and eligible BK franchisees in the U.S. and Canada who lease property from us. The rent relief
program offered to eligible BK franchisees concluded during the third quarter of 2020 and the rent relief program offered to eligible TH franchisees was extended
through the end of 2021. While in effect, these programs provided working capital support to franchisees and resulted in a reduction in our property revenues. See
Note 9, Leases, to the accompanying audited consolidated financial statements.
We also provided cash flow support by extending loans to eligible BK franchisees in the U.S. during the second and third quarters of 2020, and by advancing
certain cash payments to eligible TH franchisees in Canada during the second quarter of 2020. Additionally, we temporarily deferred franchisee capital investment
commitments for restaurant renovations and new restaurant development globally, based on the individual circumstances of relevant markets and restaurant
owners.
During 2020, we recorded higher bad debt expense than 2019 and 2018. While these receivables remain contractually due and payable to us, the certainty of
the amount and timing of payments has been impacted by the COVID-19 pandemic. Therefore, our bad debt expense during 2020 reflects an adjustment to our
historical collections experience to incorporate an estimate of the impact of current economic conditions resulting from the COVID-19 pandemic. Actual
collections may be materially higher or lower than this estimate reflects since it is reasonably possible the duration and future impact of the COVID-19 pandemic
on our business or our franchisees may differ from our assumptions.
With the pandemic affecting consumer behavior, the importance of digital sales, including delivery, has grown. We expect to continue to support
enhancements of our digital and marketing capabilities. While we do not know the full future impact COVID-19 will have on our business, we expect to see a
continued impact from COVID-19 on our results in 2021.
Recent Events and Factors Affecting Comparability
Transition to New Lease Accounting Standard
We transitioned to Accounting Standards Codification Topic 842, Leases (“ASC 842”), effective January 1, 2019 on a modified retrospective basis using the
effective date transition method. Our consolidated financial statements reflect the application of ASC 842 guidance beginning in 2019, while our consolidated
financial statements for prior periods were prepared under the guidance of a previously applicable accounting standard.
The most significant effect of this transition that affects comparability of our results of operations between 2019 and 2018 includes the recognition of lease
income and lease cost on a gross basis for lessee reimbursements of costs such as property taxes and maintenance when we are the lessor in the lease. Although
there was no net impact to our consolidated statement of operations from this change, the presentation resulted in total increases to both franchise and property
revenues and franchise and property expenses of $130 million ($85 million related to our TH segment, $43 million related to our BK segment and $2 million
related to our PLK segment) during 2019 compared to 2018, when such amounts were recorded on a net basis.
Corporate Restructuring and Tax Advisory Costs
We recorded $16 million, $31 million and $25 million of costs during 2020, 2019 and 2018, respectively, which are classified as selling, general and
administrative expenses in our consolidated statements of operations, arising primarily from professional advisory and consulting services associated with certain
transformational corporate restructuring initiatives that rationalize our structure and optimize cash movement within our structure, including consulting services
related to the interpretation of final and proposed regulations and guidance issued by the U.S. Treasury, the IRS and state tax authorities in their ongoing efforts to
interpret and implement comprehensive tax legislation, commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”) and related state and local tax
implications (“Corporate restructuring and tax advisory fees”).
Popeyes Acquisition and PLK Transaction Costs
On March 27, 2017, we completed the acquisition of Popeyes Louisiana Kitchen, Inc. (the "Popeyes Acquisition"). In connection with the Popeyes
Acquisition, we incurred certain non-recurring fees and expenses (“PLK Transaction costs”)
30
Table of Contents
totaling $10 million during 2018 consisting primarily of professional fees and compensation related expenses, all of which are classified as selling, general and
administrative expenses in the consolidated statements of operations. We did not incur any PLK Transaction costs during 2020 and 2019.
Office Centralization and Relocation Costs
In connection with the centralization and relocation of our Canadian and U.S. restaurant support centers to new offices in Toronto, Ontario, and Miami,
Florida, respectively, we incurred certain non-operational expenses (“Office centralization and relocation costs”) totaling $6 million during 2019 and $20 million
during 2018 consisting primarily of moving costs, relocation-driven compensation expenses, and duplicate rent expenses during 2018, which are classified as
selling, general and administrative expenses in the consolidated statement of operations. We did not incur any Office centralization and relocation costs during
2020.
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Table of Contents
Results of Operations
Tabular amounts in millions of U.S. dollars unless noted otherwise. Segment income may not calculate exactly due to rounding.
Consolidated
2020
2019
2018
Variance
2020 vs. 2019
FX
Impact (a)
Variance
Excluding
FX Impact
Variance
Favorable / (Unfavorable)
2019 vs. 2018
FX
Impact
Variance
Excluding
FX Impact
Revenues:
Sales
Franchise and property revenues
$
Total revenues
Operating costs and expenses:
Cost of sales
Franchise and property expenses
Selling, general and administrative
expenses
(Income) loss from equity method
investments
Other operating expenses (income),
net
Total operating costs and
expenses
Income from operations
Interest expense, net
Loss on early extinguishment of debt
Income before income taxes
Income tax expense
Net income
$
2,013
2,955
4,968
1,610
528
1,264
39
105
3,546
1,422
508
98
816
66
750
$
$
2,362
3,241
5,603
1,813
540
1,264
(11)
(10)
3,596
2,007
532
23
1,452
341
1,111
$
$
2,355
3,002
5,357
1,818
422
1,214
(22)
8
3,440
1,917
535
—
1,382
238
1,144
$
$
$
(349)
(286)
(635)
$
(20)
(29)
(49)
203
12
—
(50)
(115)
50
(585)
24
(75)
(636)
275
(361)
$
15
3
3
—
(1)
20
(29)
—
—
(29)
(3)
(32)
$
(329)
(257)
(586)
188
9
(3)
(50)
(114)
30
(556)
24
(75)
(607)
278
(329)
$
$
7
239
246
5
(118)
(50)
(11)
18
(156)
90
3
(23)
70
(103)
(33)
$
$
$
(44)
(52)
(96)
34
7
10
(3)
(3)
45
(51)
—
—
(51)
12
(39)
$
51
291
342
(29)
(125)
(60)
(8)
21
(201)
141
3
(23)
121
(115)
6
(a) We calculate the FX Impact by translating prior year results at current year monthly average exchange rates. We analyze these results on a constant currency basis as
this helps identify underlying business trends, without distortion from the effects of currency movements.
TH Segment
2020
2019
2018
Variance
2020 vs. 2019
FX
Impact (a)
Variance
Excluding
FX Impact
2019 vs. 2018
Variance
FX
Impact
Variance
Excluding
FX Impact
Favorable / (Unfavorable)
Revenues:
Sales
Franchise and property revenues
$
Total revenues
Cost of sales
Franchise and property expenses
Segment SG&A
Segment depreciation and
amortization (b)
Segment income (c)
1,876 $
934
2,810
1,484
341
284
2,204 $
1,140
3,344
1,677
358
309
113
823
106
1,122
2,201 $
1,091
3,292
1,688
279
314
102
1,127
$
(328)
(206)
(534)
193
17
25
(7)
(299)
$
(20)
(10)
(30)
15
3
3
1
(10)
$
(308)
(196)
(504)
178
14
22
(8)
(289)
$
3
49
52
11
(79)
5
(4)
(5)
$
(44)
(22)
(66)
34
6
6
2
(22)
47
71
118
(23)
(85)
(1)
(6)
17
(b) Segment depreciation and amortization consists of depreciation and amortization included in cost of sales and franchise and property expenses.
(c) TH segment income includes $9 million, $16 million and $15 million of cash distributions received from equity method investments for 2020, 2019 and 2018,
respectively.
32
Table of Contents
BK Segment
2020
2019
2018
Variance
2020 vs. 2019
FX
Impact (a)
Variance
Excluding
FX Impact
2019 vs. 2018
Variance
FX
Impact
Variance
Excluding
FX Impact
Favorable / (Unfavorable)
Revenues:
Sales
Franchise and property revenues
Total revenues
Cost of sales
Franchise and property expenses
Segment SG&A
Segment depreciation and
amortization (b)
Segment income (d)
$
64 $
76 $
75 $
1,538
1,602
65
176
588
49
823
1,701
1,777
71
168
600
49
994
1,576
1,651
67
131
577
48
928
$
(12)
(163)
(175)
6
(8)
12
—
(171)
$
—
(18)
(18)
—
—
1
—
(17)
$
(12)
(145)
(157)
6
(8)
11
—
(154)
$
1
125
126
(4)
(37)
(23)
(1)
66
$
—
(30)
(30)
—
1
3
—
(26)
1
155
156
(4)
(38)
(26)
(1)
92
(d) BK segment income includes $6 million and $5 million of cash distributions received from equity method investments for 2019 and 2018, respectively. No significant
cash distributions were received from equity method investments in 2020.
PLK Segment
2020
2019
2018
Variance
2020 vs. 2019
FX
Impact (a)
Variance
Excluding
FX Impact
Variance
Favorable / (Unfavorable)
2019 vs. 2018
FX
Impact
Variance
Excluding
FX Impact
Revenues:
Sales
Franchise and property revenues
Total revenues
Cost of sales
Franchise and property expenses
Segment SG&A
Segment depreciation and
amortization (b)
Segment income
$
73 $
483
556
61
11
273
8
218
82 $
400
482
65
14
225
11
188
79 $
335
414
63
12
193
10
157
$
(9)
83
74
4
3
(48)
3
30
$
—
(1)
(1)
—
—
—
—
(1)
$
(9)
84
75
4
3
(48)
3
31
$
3
65
68
(2)
(2)
(32)
(1)
31
$
—
(1)
(1)
—
—
—
—
(1)
3
66
69
(2)
(2)
(32)
(1)
32
Comparable Sales
TH comparable sales were (15.7)% during 2020, including Canada comparable sales of (16.5)%.
BK comparable sales were (7.9)% during 2020, including U.S. comparable sales of (5.6)%.
PLK comparable sales were 13.8% during 2020, including U.S. comparable sales of 15.7%.
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Sales and Cost of Sales
Sales include TH supply chain sales and sales from Company restaurants. TH supply chain sales represent sales of products, supplies and restaurant
equipment, as well as sales to retailers. Sales from Company restaurants, including sales by our consolidated TH Restaurant VIEs, represent restaurant-level sales
to our guests.
Cost of sales includes costs associated with the management of our TH supply chain, including cost of goods, direct labor and depreciation, as well as the
cost of products sold to retailers. Cost of sales also includes food, paper and labor costs of Company restaurants.
During 2020, the decrease in sales was driven primarily by a decrease of $308 million in our TH segment, a decrease of $12 million in our BK segment, a
decrease of $9 million in our PLK segment, and an unfavorable FX impact of $20 million. The decrease in our TH segment was driven by a $312 million decrease
in supply chain sales due to the decrease in system-wide sales, net of an increase in sales to retailers. The decrease in supply chain sales was partially offset by an
increase of $4 million in Company restaurant revenue due to an increase in the number of Company restaurants.
During 2019, the increase in sales was driven by an increase of $47 million in our TH segment, primarily as a result of an increase in supply chain sales, an
increase of $3 million in our PLK segment and an increase of $1 million in our BK segment, partially offset by an unfavorable FX Impact of $44 million.
During 2020, the decrease in cost of sales was driven primarily by a decrease of $178 million in our TH segment, a decrease of $6 million in our BK
segment, a decrease of $4 million in our PLK segment and a $15 million favorable FX Impact. The decrease in our TH segment was driven primarily by a decrease
of $185 million in supply chain cost of sales due to the decrease in system-wide sales, net of an increase in sales to retailers. The decrease in supply chain cost of
sales was partially offset by a $7 million increase in Company restaurant cost of sales due to an increase in the number of Company restaurants.
During 2019, the decrease in cost of sales was driven primarily by a $34 million favorable FX Impact, partially offset by an increase of $23 million in our
TH segment, an increase of $4 million in our BK segment and an increase of $2 million in our PLK segment. The increase in our TH segment was driven primarily
by an increase in supply chain cost of sales due to the increase in supply chain sales.
Franchise and Property
Franchise and property revenues consist primarily of royalties earned on franchise sales, rents from real estate leased or subleased to franchisees, franchise
fees, and other revenue. Franchise and property expenses consist primarily of depreciation of properties leased to franchisees, rental expense associated with
properties subleased to franchisees, amortization of franchise agreements, and bad debt expense (recoveries).
During 2020, the decrease in franchise and property revenues was driven by a decrease of $196 million in our TH segment, a decrease of $145 million in our
BK segment, and a $29 million unfavorable FX Impact, partially offset by an increase of $84 million in our PLK segment. The decrease in our TH segment was
primarily driven by decreases in royalties and rent from decreases in system-wide sales and rent relief provided to eligible franchisees during the current period.
The decrease in our BK segment was primarily driven by a decrease in royalties as a result of a decrease in system-wide sales. The increase in our PLK segment
was primarily driven by an increase in royalties as a result of an increase in system-wide sales.
During 2019, the increase in franchise and property revenues was driven by an increase of $155 million in our BK segment, an increase of $71 million in our
TH segment, and an increase of $66 million in our PLK segment, partially offset by a $52 million unfavorable FX Impact. The increases in our BK and PLK
segments were primarily driven by increases in royalties as a result of system-wide sales growth. Additionally, the increase in franchise and property revenues in
all of our segments during 2019 reflected the gross recognition of property income from lessee reimbursements of costs such as property taxes and maintenance
when we are the lessor in the lease as a result of the application of ASC 842 beginning January 1, 2019.
During 2020, the decrease in franchise and property expenses was driven by a decrease of $14 million in our TH segment, a decrease of $3 million in our
PLK segment and a $3 million favorable FX Impact, partially offset by an increase of $8 million in our BK segment. Overall, the decrease was driven by a decrease
in property expenses partially offset by an increase in bad debt expense.
During 2019, the increase in franchise and property expenses was driven by an increase of $85 million in our TH segment, an increase of $38 million in our
BK segment, and an increase of $2 million in our PLK segment, partially offset by a
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$7 million favorable FX Impact. The increase in all of our segments during 2019 was driven by the gross recognition of property expenses for costs such as
property taxes and maintenance paid by us and reimbursed by lessees when we are the lessor in the lease as a result of the application of ASC 842 beginning
January 1, 2019.
Selling, General and Administrative Expenses
Our selling, general and administrative expenses were comprised of the following:
2020
2019
2018
$
%
2020 vs. 2019
2019 vs. 2018
$
%
TH Segment SG&A
BK Segment SG&A
PLK Segment SG&A
Share-based compensation and non-cash incentive
compensation expense
Depreciation and amortization
PLK Transaction costs
Corporate restructuring and tax advisory fees
Office centralization and relocation costs
Selling, general and administrative expenses
$
$
284 $
588
273
84
19
—
16
—
1,264 $
309 $
600
225
74
19
—
31
6
1,264 $
314 $
577
193
55
20
10
25
20
1,214 $
25
12
(48)
(10)
—
—
15
6
—
Favorable / (Unfavorable)
5
(23)
(32)
8.1 % $
2.0 %
(21.3)%
(13.5)%
— %
— %
48.4 %
100.0 %
— % $
(19)
1
10
(6)
14
(50)
1.6 %
(4.0)%
(16.6)%
(34.5)%
5.0 %
100.0 %
(24.0)%
70.0 %
(4.1)%
Segment selling, general and administrative expenses (“Segment SG&A”) include segment selling expenses, which consist primarily of advertising fund
expenses, and segment general and administrative expenses, which are comprised primarily of salary and employee-related costs for non-restaurant employees,
professional fees, information technology systems, and general overhead for our corporate offices. Segment SG&A excludes share-based compensation and non-
cash incentive compensation expense, depreciation and amortization, PLK Transaction costs, Corporate restructuring and tax advisory fees, and Office
centralization and relocation costs.
During 2020, the decrease in Segment SG&A in our TH and BK segments was primarily due to a decrease in advertising fund expenses. During 2020, the
increase in Segment SG&A in our PLK segment was primarily due to an increase in advertising fund expenses resulting from an increase in advertising fund
revenue.
During 2019, the increase in Segment SG&A in our BK and PLK segments is primarily due to an increase in advertising fund expenses.
During 2020 and 2019, the increases in share-based compensation and non-cash incentive compensation expense was primarily due to increases in the
number of equity awards granted during 2020 and 2019, respectively.
(Income) Loss from Equity Method Investments
(Income) loss from equity method investments reflects our share of investee net income or loss, non-cash dilution gains or losses from changes in our
ownership interests in equity method investees, and basis difference amortization.
The change in (income) loss from equity method investments during 2020 was primarily driven by an increase in equity method investment net losses that
we recognized during the current year, driven by the negative impact of the COVID-19 pandemic, and the non-recurrence of an $11 million non-cash dilution gain
during 2019 from the issuance of additional shares in connection with a merger by one of our equity method investees.
The change in (income) loss from equity method investments during 2019 was primarily driven by the recognition of a $20 million non-cash dilution gain
during 2018 on the initial public offering by one of our equity method investees, partially offset by an $11 million non-cash dilution gain during 2019 from the
issuance of additional shares in connection with a merger by one of our equity method investees.
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Other Operating Expenses (Income), net
Our other operating expenses (income), net were comprised of the following:
Net losses (gains) on disposal of assets, restaurant closures and refranchisings
Litigation settlements and reserves, net
Net losses (gains) on foreign exchange
Other, net
Other operating expenses (income), net
2020
2019
2018
$
$
6 $
7
100
(8)
105 $
7 $
2
(15)
(4)
(10) $
19
11
(33)
11
8
Net losses (gains) on disposal of assets, restaurant closures, and refranchisings represent sales of properties and other costs related to restaurant closures and
refranchisings. Gains and losses recognized in the current period may reflect certain costs related to closures and refranchisings that occurred in previous periods.
Litigation settlements and reserves, net primarily reflects accruals and proceeds received in connection with litigation matters.
Net losses (gains) on foreign exchange is primarily related to revaluation of foreign denominated assets and liabilities.
Interest Expense, net
Interest expense, net
Weighted average interest rate on long-term debt
2020
2019
2018
$
$
508
4.4 %
$
532
5.0 %
535
5.0 %
During 2020, interest expense, net decreased primarily due to a decrease in the weighted average interest rate in the current year driven by the decrease in
interest rates, the 2019 refinancing of our senior secured debt and the 2020 refinancing of a portion of our senior notes, partially offset by an increase in long-term
debt.
Interest expense, net for 2019 was consistent with 2018.
Loss on Early Extinguishment of Debt
During 2020, we recorded a $98 million loss on early extinguishment of debt that primarily reflects the payment of premiums and the write-off of
unamortized debt issuance costs in connection with the redemption of the entire outstanding principal balance of $2,800 million of 5.00% second lien secured notes
due October 15, 2025 and the redemption of $725 million of the original outstanding principal balance of $1,500 million of 4.25% first lien notes due May 15,
2024.
During 2019, we recorded a $23 million loss on early extinguishment of debt that primarily reflects the write-off of unamortized debt issuance costs and
discounts and fees incurred in connection with the redemption of the entire outstanding principal balance of $1,250 million of 4.625% first lien secured notes due
January 15, 2022, the partial principal amount prepayments of our existing senior secured term loan and the refinancing of our existing senior secured term loan.
Income Tax Expense
Our effective tax rate was 8.0% in 2020 and 23.5% in 2019. The effective tax rate for the twelve months ended December 31, 2020 reflects a $105 million
increase in deferred tax assets, consisting of $64 million related to the analysis of final guidance regarding a tax attribute carryfoward affected by the Tax Act
received during 2020 and $41 million related to Swiss tax reform. This increase in deferred tax assets reduced the effective tax rate by 12.9% during 2020. The
effective tax rate for 2019 reflects a $37 million income tax expense provision adjustment related to a prior restructuring transaction not applicable to ongoing
operations which increased the effective tax rate by 2.5% during 2019.
Our effective tax rate was 23.5% in 2019 and 17.2% in 2018. The effective tax rate was reduced by 2.2% and 5.0% for 2019 and 2018, respectively, as a
result of benefits from stock option exercises. The comparison between 2019 and 2018 was also unfavorably impacted by 2018 reserve releases and settlements,
which reduced the 2018 effective tax rate by a net 2.8%. Additionally, the effective tax rate for 2019 increased by 1.1% due to the impact of an increase in our tax
provision related to revaluing our Swiss net deferred tax liability due to Swiss tax reform. In 2019, the beneficial impact of internal financing
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arrangements in various jurisdictions was offset by an increase in the provision for unrecognized tax benefits related to a financing arrangement that is not
applicable to ongoing operations.
Net Income
We reported net income of $750 million for 2020 compared to net income of $1,111 million for 2019. The decrease in net income is primarily due to a $299
million decrease in TH segment income, a $171 million decrease in BK segment income, a $115 million unfavorable change in the results from other operating
expenses (income), net, a $75 million increase in the loss on early extinguishment of debt, a $37 million unfavorable change from the impact of equity method
investments, a $10 million increase in share-based compensation and non-cash incentive compensation expense, and a $4 million increase in depreciation and
amortization. These factors were partially offset by a $275 million decrease in income tax expense, a $30 million increase in PLK segment income, a $24 million
decrease in interest expense, net, a $15 million decrease in Corporate restructuring and tax advisory fees, and the non-recurrence of $6 million of Office
centralization and relocation costs. Amounts above include a total unfavorable FX Impact to net income of $32 million.
We reported net income of $1,111 million for 2019 compared to net income of $1,144 million for 2018. The decrease in net income is primarily due to a
$103 million increase in income tax expense, a $23 million loss on early extinguishment of debt in 2019, a $19 million increase in share-based compensation and
non-cash incentive compensation expense, a $14 million unfavorable change from the impact of equity method investments, a $6 million increase in Corporate
restructuring and tax advisory fees, and a $5 million decrease in TH segment income. These factors were partially offset by a $66 million increase in BK segment
income, a $31 million increase in PLK segment income, an $18 million favorable change in the results from other operating expenses (income), net, a $14 million
decrease in Office centralization and relocation costs and the non-recurrence of $10 million of PLK Transaction costs incurred in the prior period. Amounts above
include a total unfavorable FX Impact to net income of $39 million.
Non-GAAP Reconciliations
The table below contains information regarding EBITDA and Adjusted EBITDA, which are non-GAAP measures. These non-GAAP measures do not have a
standardized meaning under U.S. GAAP and may differ from similar captioned measures of other companies in our industry. We believe that these non-GAAP
measures are useful to investors in assessing our operating performance, as they provide them with the same tools that management uses to evaluate our
performance and are responsive to questions we receive from both investors and analysts. By disclosing these non-GAAP measures, we intend to provide investors
with a consistent comparison of our operating results and trends for the periods presented. EBITDA is defined as earnings (net income or loss) before interest
expense, net, loss on early extinguishment of debt, income tax expense, and depreciation and amortization and is used by management to measure operating
performance of the business. Adjusted EBITDA is defined as EBITDA excluding (i) the non-cash impact of share-based compensation and non-cash incentive
compensation expense, (ii) (income) loss from equity method investments, net of cash distributions received from equity method investments, (iii) other operating
expenses (income), net and, (iv) income/expenses from non-recurring projects and non-operating activities. For the periods referenced, this included costs incurred
in connection with the centralization and relocation of our Canadian and U.S. restaurant support centers to new offices in Toronto, Ontario, and Miami, Florida,
respectively, professional advisory and consulting services associated with certain transformational corporate restructuring initiatives that rationalize our structure
and optimize cash movements, including consulting services related to the interpretation of final and proposed regulations and guidance under the Tax Act and
professional fees and compensation related expenses in connection with the Popeyes Acquisition. Management believes that these types of expenses are either not
related to our underlying profitability drivers or not likely to re-occur in the foreseeable future and the varied timing, size and nature of these projects may cause
volatility in our results unrelated to the performance of our core business that does not reflect trends of our core operations.
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Segment income:
TH
BK
PLK
Adjusted EBITDA
Share-based compensation and non-cash incentive compensation
expense
PLK Transaction costs
Corporate restructuring and tax advisory fees
Office centralization and relocation costs
Impact of equity method investments (a)
Other operating expenses (income), net
EBITDA
Depreciation and amortization
Income from operations
Interest expense, net
Loss on early extinguishment of debt
Income tax expense
Net income
2020
2019
2018
2020 vs. 2019
2019 vs. 2018
Favorable / (Unfavorable)
$
$
823 $
823
218
1,864
84
—
16
—
48
105
1,611
189
1,422
508
98
66
750 $
1,122 $
994
188
2,304
74
—
31
6
11
(10)
2,192
185
2,007
532
23
341
1,111 $
1,127 $
928
157
2,212
55
10
25
20
(3)
8
2,097
180
1,917
535
—
238
1,144 $
(299) $
(171)
30
(440)
(10)
—
15
6
(37)
(115)
(581)
(4)
(585)
24
(75)
275
(361) $
(5)
66
31
92
(19)
10
(6)
14
(14)
18
95
(5)
90
3
(23)
(103)
(33)
(a) Represents (i) (income) loss from equity method investments and (ii) cash distributions received from our equity method investments. Cash distributions
received from our equity method investments are included in segment income.
The decrease in Adjusted EBITDA for 2020 reflects the decreases in segment income in our TH and BK segments, partially offset by an increase in segment
income in our PLK segment. Segment income in our TH and BK segments for 2020 includes a decrease of $24 million related to the timing of advertising fund
revenue and expenses.
The increase in Adjusted EBITDA for 2019 reflects the increases in segment income in our BK and PLK segments, partially offset by decreases in our TH
segment.
The decrease in EBITDA for 2020 is primarily due to decreases in segment income in our TH and BK segments and unfavorable results from other operating
expenses (income), net, the impact of equity method investments, and an increase in share-based compensation and non-cash incentive compensation expense,
partially offset by an increase in segment income in our PLK segment, a decrease in Corporate restructuring and tax advisory fees, and the non-recurrence of Office
centralization and relocation costs.
The increase in EBITDA for 2019 is primarily due to an increase in segment income in our BK and PLK segments, favorable results from other operating
expenses (income), net, a decrease in office centralization and relocation costs, and the non-recurrence of PLK Transaction costs, partially offset by an increase in
share-based compensation and non-cash incentive compensation expense, unfavorable results from the impact of equity method investments, an increase in
Corporate restructuring and tax advisory fees, and a decrease in segment income in our TH segment.
Liquidity and Capital Resources
Our primary sources of liquidity are cash on hand, cash generated by operations and borrowings available under our Revolving Credit Facility (as defined
below). We have used, and may in the future use, our liquidity to make required interest and/or principal payments, to repurchase our common shares, to
repurchase Class B exchangeable limited partnership units (“Partnership exchangeable units”), to voluntarily prepay and repurchase our or one of our affiliate’s
outstanding debt, to fund our investing activities and to pay dividends on our common shares and make distributions on the Partnership exchangeable units. As a
result of our borrowings, we are highly leveraged. Our liquidity requirements are significant, primarily due to debt service requirements.
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At December 31, 2020, we had cash and cash equivalents of $1,560 million and working capital of $663 million. In addition, at December 31, 2020, we had
borrowing availability of $998 million under our Revolving Credit Facility (defined below).
During 2020, Partnership received exchange notices representing 10,393,861 Partnership exchangeable units, including 7,098,893 received during the fourth
quarter of 2020. Pursuant to the terms of the partnership agreement, Partnership satisfied the exchange notices by repurchasing 6,757,692 Partnership exchangeable
units on October 2, 2020 for approximately $380 million in cash and exchanging the remaining Partnership exchangeable units for the same number of our newly
issued common shares.
On April 7, 2020, two of our subsidiaries (the “Borrowers”) entered into an indenture (the “2020 5.75% Senior Notes Indenture”) in connection with the
issuance of $500 million of 5.75% first lien notes due April 15, 2025 (the “2020 5.75% Senior Notes”). No principal payments are due until maturity and interest is
paid semi-annually. The net proceeds from the offering of the 2020 5.75% Senior Notes were used for general corporate purposes.
On October 5, 2020, the Borrowers entered into an indenture (the “2020 4.00% Senior Notes Indenture”) in connection with the issuance of $1,400 million of
4.00% second lien notes due October 15, 2030 (the “October 2020 4.00% Senior Notes”). No principal payments are due until maturity and interest is paid semi-
annually. The net proceeds from the offering of the October 2020 4.00% Senior Notes were used to redeem $1,350 million of our existing $2,800 million 2017
5.00% Senior Notes (due October 15, 2025) and pay related redemption premiums, fees and expenses.
On November 2, 2020, the Borrowers issued $1,500 million in aggregate principal amount of 4.00% second lien notes due October 15, 2030 (the "November
2020 4.00% Senior Notes" and together with the October 2020 4.00% Senior Notes, the "2020 4.00% Senior Notes"), which were issued as additional notes under
the 2020 4.00% Senior Notes Indenture. The November 2020 4.00% Senior Notes are treated as a single series with the October 2020 4.00% Senior Notes and have
the same terms for all purposes under the 2020 4.00% Senior Notes Indenture, including waivers, amendments, redemptions and offers to purchase. The net
proceeds from the offering of the November 2020 4.00% Senior Notes were used to redeem the remaining $1,450 million principal amount outstanding of the 2017
5.00% Senior Notes and pay related redemption premiums, fees and expenses.
On November 9, 2020, the Borrowers entered into an indenture (the “2020 3.50% Senior Notes Indenture”) in connection with the issuance of $750 million
in aggregate principal amount of 3.50% first lien notes due February 15, 2029 (the “2020 3.50% Senior Notes”). No principal payments are due until maturity and
interest is paid semi-annually. The net proceeds from the offering of the 2020 3.50% Senior Notes were used to redeem $725 million of our 4.25% first lien notes
due 2024 and pay related redemption premiums, fees and expenses.
Based on our current level of operations and available cash, we believe our cash flow from operations, combined with our availability under our Revolving
Credit Facility, will provide sufficient liquidity to fund our current obligations, debt service requirements and capital spending over the next twelve months.
Our operating results substantially depend upon our franchisees’ sales volumes, restaurant profitability, and financial stability. The financial impact of
COVID-19 has had, and is expected to continue for an uncertain period to have, an adverse effect on our franchisees’ liquidity and we have worked closely with
our franchisees around the world to monitor and assist them with access to appropriate sources of liquidity in order to sustain their businesses throughout this crisis.
We provided cash flow support by extending loans to eligible BK franchisees in the U.S. during the second and third quarters of 2020 and by advancing certain
cash payments to eligible TH franchisees in Canada during the second quarter of 2020. Also, during 2020, we offered a rent relief program for eligible TH
franchisees in Canada and BK franchisees in the U.S. and Canada and temporarily extended payment terms for eligible TH and BK franchisees in Canada and the
U.S. who lease property from us. The rent relief program offered to eligible BK franchisees concluded during the third quarter of 2020 and the rent relief program
offered to eligible TH franchisees was extended through the end of 2021. We also temporarily deferred franchisee capital investment commitments for restaurant
renovations and new restaurant development globally, based on individual circumstances of relevant markets and restaurant owners. These actions are expected to
adversely affect our cash flow and financial results at least through the end of 2021. In addition to these actions, we may decide to take additional steps to assist in
the financial stabilization of our franchisees, which could impact our liquidity and our financial results.
On August 2, 2016, our board of directors approved a share repurchase authorization that allows us to purchase up to $300 million of our common shares
through July 2021. Repurchases under the Company’s authorization will be made in the open market or through privately negotiated transactions. On August 6,
2020, we announced that the Toronto Stock Exchange (the “TSX”) had accepted the notice of our intention to renew the normal course issuer bid. Under this
normal course issuer bid,
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we are permitted to repurchase up to 30,000,015 common shares for the one-year period commencing on August 8, 2020 and ending on August 7, 2021, or earlier
if we complete the repurchases prior to such date. Share repurchases under the normal course issuer bid will be made through the facilities of the TSX, the New
York Stock Exchange (the “NYSE”) and/or other exchanges and alternative Canadian or foreign trading systems, if eligible, or by such other means as may be
permitted by the TSX and/or the NYSE under applicable law. Shareholders may obtain a copy of the prior notice, free of charge, by contacting us.
We provide applicable deferred taxes based on the tax liability or withholding taxes that would be due upon repatriation of unremitted earnings. We will
continue to monitor our plans for foreign earnings but our expectation is to continue to provide taxes on unremitted earnings.
Debt Instruments and Debt Service Requirements
As of December 31, 2020, our long-term debt consists primarily of borrowings under our Credit Facilities, amounts outstanding under our 2017 4.25%
Senior Notes, 2019 3.875% Senior Notes, 2020 5.75% Senior Notes, 2020 3.50% Senior Notes, 2019 4.375% Senior Notes, 2020 4.00% Senior Notes and TH
Facility (each as defined herein), and obligations under finance leases. For further information about our long-term debt, see Note 8 to the accompanying
consolidated financial statements included in Part II, Item 8 "Financial Statements and Supplementary Data” of our Annual Report.
Credit Facilities
As of December 31, 2020, there was $6,028 million outstanding principal amount under our senior secured term loan facilities (the “Term Loan Facilities”)
with a weighted average interest rate of 1.84%. Based on the amounts outstanding under the Term Loan Facilities and LIBOR as of December 31, 2020, subject to
a floor of 0.00%, required debt service for the next twelve months is estimated to be approximately $112 million in interest payments and $72 million in principal
payments. In addition, based on LIBOR as of December 31, 2020, net cash settlements that we expect to pay on our $4,000 million interest rate swaps are
estimated to be approximately $90 million for the next twelve months. The Term Loan A matures on October 7, 2024 and the Term Loan B matures on
November 19, 2026, and we may prepay the Term Loan Facilities in whole or in part at any time. Additionally, subject to certain exceptions, the Term Loan
Facilities may be subject to mandatory prepayments using (i) proceeds from non-ordinary course asset dispositions, (ii) proceeds from certain incurrences of debt
or (iii) a portion of our annual excess cash flows based upon certain leverage ratios.
As of December 31, 2020, we had no amounts outstanding under our secured revolving credit facility (including revolving loans, swingline loans and letters
of credit) (the “Revolving Credit Facility” and together with the Term Loan Facilities, the “Credit Facilities”), had $2 million of letters of credit issued against the
Revolving Credit Facility, and our borrowing availability was $998 million. Funds available under the Revolving Credit Facility may be used to repay other debt,
finance debt or share repurchases, fund acquisitions or capital expenditures, and for other general corporate purposes. We have a $125 million letter of credit
sublimit as part of the Revolving Credit Facility, which reduces our borrowing availability thereunder by the cumulative amount of outstanding letters of credit. We
are also required to pay (i) letters of credit fees on the aggregate face amounts of outstanding letters of credit plus a fronting fee to the issuing bank and (ii)
administration fees. The interest rate applicable to amounts drawn under each letter of credit ranges from 0.75% to 1.50%, depending on our net first lien leverage
ratio.
On April 2, 2020, the Borrowers entered into a fifth amendment (the “Fifth Amendment”) to the credit agreement (the “Credit Agreement”) governing our
Term Loan Facilities and Revolving Credit Facility. The Fifth Amendment provides the Borrowers with the option to comply with a $1,000 million minimum
liquidity covenant in lieu of the 6.50:1.00 net first lien senior secured leverage ratio financial maintenance covenant for the period after June 30, 2020 and prior to
September 30, 2021. Additionally, for the periods ending September 30, 2021 and December 31, 2021, to determine compliance with the net first lien senior
secured leverage ratio, we are permitted to annualize the Adjusted EBITDA (as defined in the Credit Agreement) for the three months ending September 30, 2021
and six months ending December 31, 2021, respectively, in lieu of calculating the ratio based on Adjusted EBITDA for the prior four quarters. There were no other
material changes to the terms of the Credit Agreement.
The interest rate applicable to borrowings under our Term Loan A and Revolving Credit Facility is, at our option, either (i) a base rate, subject to a floor of
1.00%, plus an applicable margin varying from 0.00% to 0.50%, or (ii) a Eurocurrency rate, subject to a floor of 0.00%, plus an applicable margin varying between
0.75% to 1.50%, in each case, determined by reference to a net first lien leverage based pricing grid. The interest rate applicable to borrowings under our Term
Loan B is, at our
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option, either (i) a base rate, subject to a floor of 1.00%, plus an applicable margin of 0.75% or (ii) a Eurocurrency rate, subject to a floor of 0.00%, plus an
applicable margin of 1.75%.
Obligations under the Credit Facilities are guaranteed on a senior secured basis, jointly and severally, by the direct parent company of one of the Borrowers
and substantially all of its Canadian and U.S. subsidiaries, including The TDL Group Corp., Burger King Corporation, Popeyes Louisiana Kitchen, Inc. and
substantially all of their respective Canadian and U.S. subsidiaries (the “Credit Guarantors”). Amounts borrowed under the Credit Facilities are secured on a first
priority basis by a perfected security interest in substantially all of the present and future property (subject to certain exceptions) of each Borrower and Credit
Guarantor.
Senior Notes
In May 2017, the Borrowers entered into an indenture (the “2017 4.25% Senior Notes Indenture”) in connection with the issuance of $1,500 million of
4.25% first lien senior secured notes due May 15, 2024 (the “2017 4.25% Senior Notes”). No principal payments are due until maturity and interest is paid semi-
annually. The net proceeds from the offering of the 2020 3.50% Senior Notes were used to redeem $725 million of our 4.25% first lien notes due 2024 and pay
related redemption premiums, fees and expenses.
On September 24, 2019, the Borrowers entered into an indenture (the "2019 3.875% Senior Notes Indenture") in connection with the issuance of $750
million of 3.875% first lien senior notes due January 15, 2028 (the "2019 3.875% Senior Notes"). No principal payments are due until maturity and interest is paid
semi-annually.
On November 19, 2019, the Borrowers entered into an indenture (the "2019 4.375% Senior Notes Indenture" and together with the above indentures,
including the indentures entered into during 2020, the "Senior Notes Indentures") in connection with the issuance of $750 million of 4.375% second lien senior
notes due January 15, 2028 (the "2019 4.375% Senior Notes"). No principal payments are due until maturity and interest is paid semi-annually.
The Borrowers may redeem a series of senior notes, in whole or in part, at any time prior to May 15, 2020 for the 2017 4.25% Senior Notes, April 15, 2022
for the 2020 5.75% Senior Notes, September 15, 2022 for the 2019 3.875% Senior Notes, November 15, 2022 for the 2019 4.375% Senior Notes, February 15,
2024 for the 2020 3.50% Senior Notes, and October 15, 2025 for the 2020 4.00% Senior Notes at a price equal to 100% of the principal amount redeemed plus a
“make-whole” premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. In addition, the Borrowers may redeem, in whole or in
part, the 2017 4.25% Senior Notes, 2020 5.75% Senior Notes, 2019 3.875% Senior Notes, 2019 4.375% Senior Notes, 2020 3.50% Senior Notes and 2020 4.00%
Senior Notes on or after the applicable date noted above, at the redemption prices set forth in the applicable Senior Notes Indenture. The Senior Notes Indentures
also contain redemption provisions related to tender offers, change of control and equity offerings, among others.
Based on the amounts outstanding at December 31, 2020, required debt service for the next twelve months on all of the Senior Notes outstanding is
approximately $266 million in interest payments.
TH Facility
One of our subsidiaries entered into a non-revolving delayed drawdown term credit facility in a total aggregate principal amount of C$225 million with a
maturity date of October 4, 2025 (the “TH Facility”). The interest rate applicable to the TH Facility is the Canadian Bankers’ Acceptance rate plus an applicable
margin equal to 1.40% or the Prime Rate plus an applicable margin equal to 0.40%, at our option. Obligations under the TH Facility are guaranteed by four of our
subsidiaries, and amounts borrowed under the TH Facility are secured by certain parcels of real estate. As of December 31, 2020, we had outstanding C$222
million under the TH Facility with a weighted average interest rate of 1.86%.
Based on the amounts outstanding under the TH Facility as of December 31, 2020, required debt service for the next twelve months is estimated to be
approximately $3 million in interest payments and $7 million in principal payments.
Restrictions and Covenants
Our Credit Facilities and the Senior Notes Indentures contain a number of customary affirmative and negative covenants that, among other things, limit or
restrict our ability and the ability of certain of our subsidiaries to: incur additional indebtedness; incur liens; engage in mergers, consolidations, liquidations and
dissolutions; sell assets; pay dividends and make other payments in respect of capital stock; make investments, loans and advances; pay or modify the terms of
certain indebtedness; and engage in certain transactions with affiliates. In addition, under the Credit Facilities and subject to the
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provisions of the Fifth Amendment described above, the Borrowers are not permitted to exceed a net first lien senior secured leverage ratio of 6.50 to 1.00 when, as
of the end of any fiscal quarter beginning with the first quarter of 2020, any amounts are outstanding under the Term Loan A and/or outstanding revolving loans,
swingline loans and certain letters of credit exceed 30.0% of the commitments under the Revolving Credit Facility. As indicated above, the Fifth Amendment
provides the Borrowers with the option to comply with a $1,000 million minimum liquidity covenant in lieu of the 6.50:1.00 net first lien senior secured leverage
ratio financial maintenance covenant for the period after June 30, 2020 and prior to September 30, 2021.
The restrictions under the Credit Facilities and the Senior Notes Indentures have resulted in substantially all of our consolidated assets being restricted.
As of December 31, 2020, we were in compliance with all applicable financial debt covenants under the Credit Facilities, the TH Facility, and the Senior
Notes Indentures, and there were no limitations on our ability to draw on the remaining availability under our Revolving Credit Facility.
Cash Dividends
On January 5, 2021, we paid a dividend of $0.52 per common share and Partnership made a distribution in respect of each Partnership exchangeable unit in
the amount of $0.52 per Partnership exchangeable unit.
On February 11, 2021, we announced that the board of directors had declared a quarterly cash dividend of $0.53 per common share for the first quarter of
2020, payable on April 6, 2021 to common shareholders of record on March 23, 2021. Partnership will also make a distribution in respect of each Partnership
exchangeable unit in the amount of $0.53 per Partnership exchangeable unit, and the record date and payment date for distributions on Partnership exchangeable
units are the same as the record date and payment date set forth above.
We are targeting a total of $2.12 in declared dividends per common share and distributions in respect of each Partnership exchangeable unit for 2021.
Because we are a holding company, our ability to pay cash dividends on our common shares may be limited by restrictions under our debt agreements.
Although we do not have a formal dividend policy, our board of directors may, subject to compliance with the covenants contained in our debt agreements and
other considerations, determine to pay dividends in the future.
Outstanding Security Data
As of February 15, 2021, we had outstanding 305,144,809 common shares and one special voting share. The special voting share is held by a trustee,
entitling the trustee to that number of votes on matters on which holders of common shares are entitled to vote equal to the number of Partnership exchangeable
units outstanding. The trustee is required to cast such votes in accordance with voting instructions provided by holders of Partnership exchangeable units. At any
shareholder meeting of the Company, holders of our common shares vote together as a single class with the special voting share except as otherwise provided by
law. For information on our share-based compensation and our outstanding equity awards, see Note 13 to the accompanying consolidated financial statements
included in Part II, Item 8 “Financial Statements and Supplementary Data” of our Annual Report.
There were 155,113,338 Partnership exchangeable units outstanding as of February 15, 2021. Since December 12, 2015, the holders of Partnership
exchangeable units have had the right to require Partnership to exchange all or any portion of such holder’s Partnership exchangeable units for our common shares
at a ratio of one share for each Partnership exchangeable unit, subject to our right as the general partner of Partnership to determine to settle any such exchange for
a cash payment in lieu of our common shares.
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Comparative Cash Flows
Operating Activities
Cash provided by operating activities was $921 million in 2020, compared to $1,476 million in 2019. The decrease in cash provided by operating activities
was driven by a decrease in TH segment income, a decrease in BK segment income, an increase in cash used for working capital and an increase in income tax
payments. These factors were partially offset by a decrease in interest payments, a decrease in tenant inducements paid to franchisees and an increase in PLK
segment income.
Cash provided by operating activities was $1,476 million in 2019, compared to $1,165 million in 2018. The increase in cash provided by operating activities
was driven by a decrease in income tax payments, primarily due to the 2018 payment of accrued income taxes related to the December 2017 redemption of
preferred shares, an increase in BK and PLK segment income and a decrease in cash used for working capital. These factors were partially offset by an increase in
interest payments and a decrease in TH segment income.
Investing Activities
Cash used for investing activities was $79 million in 2020, compared to $30 million in 2019. The change in investing activities was driven by an increase in
capital expenditures during the current period.
Cash used for investing activities was $30 million in 2019, compared to $44 million in 2018. The change in investing activities was driven primarily by a
decrease in capital expenditures.
Financing Activities
Cash used for financing activities was $821 million in 2020, compared to $842 million in 2019. The decrease in cash used for financing activities was driven
primarily by an increase in proceeds from issuance of long-term debt, partially offset by an increase in repayments of long-term debt and finance leases, the
repurchase of Partnership exchangeable units in 2020, payments from derivatives in 2020 compared to proceeds from derivatives in 2019, an increase in RBI
common share dividends and distributions on Partnership exchangeable units, and a decrease in proceeds from stock option exercises.
Cash used for financing activities was $842 million in 2019, compared to $1,285 million in 2018. The change in financing activities was driven primarily by
proceeds from the Term Loan A and the issuances of the 2019 3.875% Senior Notes and the 2019 4.375% Senior Notes during 2019, an increase in proceeds from
stock option exercises, proceeds from derivatives and the non-recurrence of the 2018 payments in connection with the December 2017 redemption of preferred
shares. These factors were partially offset by the redemption of the 2015 4.625% Senior Notes during 2019, Term Loan B prepayments and refinancing during
2019, an increase in RBI common share dividends and distributions on Partnership exchangeable units and payment of financing costs.
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Contractual Obligations and Commitments
Our significant contractual obligations and commitments as of December 31, 2020 are shown in the following table.
Contractual Obligations
Credit Facilities, including interest (a)
Senior Notes, including interest
Other long-term debt
Operating lease obligations (b)
Purchase commitments (c)
Finance lease obligations
Total
Total
Less Than
1 Year
Payment Due by Period
1-3 Years
(In millions)
3-5 Years
More Than
5 Years
$
$
6,654 $
8,445
190
1,677
539
488
17,993 $
186 $
266
10
198
507
50
1,217 $
390 $
532
26
361
30
95
1,434 $
964 $
1,733
154
303
2
86
3,242 $
5,114
5,914
—
815
—
257
12,100
(a) We have estimated our interest payments through the maturity of our Credit Facilities based on LIBOR as of December 31, 2020.
(b) Operating lease payment obligations have not been reduced by the amount of payments due in the future under subleases.
(c)
Includes open purchase orders, as well as commitments to purchase certain food ingredients and advertising expenditures, and obligations related to
information technology and service agreements.
We have not included in the contractual obligations table approximately $620 million of gross liabilities for unrecognized tax benefits relating to various tax
positions we have taken. These liabilities may increase or decrease over time primarily as a result of tax examinations, and given the status of the examinations, we
cannot reliably estimate the period of any cash settlement with the respective taxing authorities. For additional information on unrecognized tax benefits, see Note
10 to the accompanying consolidated financial statements included in Part II, Item 8 “Financial Statements and Supplementary Data” of our Annual Report.
Other Commercial Commitments and Off-Balance Sheet Arrangements
From time to time, we enter into agreements under which we guarantee loans made by third parties to qualified franchisees. As of December 31, 2020, no
material amounts are outstanding under these guarantees.
Critical Accounting Policies and Estimates
This discussion and analysis of financial condition and results of operations is based on our audited consolidated financial statements, which have been
prepared in accordance with U.S. GAAP. The preparation of these financial statements requires our management to make estimates and judgments that affect the
reported amounts of assets, liabilities, revenues, and expenses, as well as related disclosures of contingent assets and liabilities. We evaluate our estimates on an
ongoing basis and we base our estimates on historical experience and various other assumptions we deem reasonable to the situation. These estimates and
assumptions form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. As future
events and their effects cannot be determined with precision, actual results could differ significantly from these estimates. Changes in our estimates could
materially impact our results of operations and financial condition in any particular period.
We consider our critical accounting policies and estimates to be as follows based on the high degree of judgment or complexity in their application:
Goodwill and Intangible Assets Not Subject to Amortization
Goodwill represents the excess of the purchase price over the fair value of assets acquired and liabilities assumed in acquisitions. Our indefinite-lived
intangible assets consist of the Tim Hortons brand, the Burger King brand, and the Popeyes brand (each a “Brand” and together, the “Brands”). Goodwill and the
Brands are tested for impairment at least annually as of October 1 of each year and more often if an event occurs or circumstances change, which indicate
impairment might exist. Our annual impairment tests of goodwill and the Brands may be completed through qualitative assessments. We may elect to bypass
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the qualitative assessment and proceed directly to a quantitative impairment test, for any reporting unit or Brand, in any period. We can resume the qualitative
assessment for any reporting unit or Brand in any subsequent period.
Under a qualitative approach, our impairment review for goodwill consists of an assessment of whether it is more-likely-than-not that a reporting unit’s fair
value is less than its carrying amount. If we elect to bypass the qualitative assessment for any reporting units, or if a qualitative assessment indicates it is more-
likely-than-not that the estimated carrying value of a reporting unit exceeds its fair value, we perform a quantitative goodwill impairment test that requires us to
estimate the fair value of the reporting unit. If the fair value of the reporting unit is less than its carrying amount, we will measure any goodwill impairment loss as
the amount by which the carrying amount of a reporting unit exceeds its fair value, not to exceed the total amount of goodwill allocated to that reporting unit. We
use an income approach and a market approach, when available, to estimate a reporting unit’s fair value, which discounts the reporting unit’s projected cash flows
using a discount rate we determine from a market participant's perspective under the income approach or utilizing similar publicly traded companies as guidelines
for determining fair value under the market approach. We make significant assumptions when estimating a reporting unit’s projected cash flows, including revenue,
driven primarily by net restaurant growth, comparable sales growth and average royalty rates, general and administrative expenses, capital expenditures and
income tax rates.
Under a qualitative approach, our impairment review for the Brands consists of an assessment of whether it is more-likely-than-not that a Brand’s fair value
is less than its carrying amount. If we elect to bypass the qualitative assessment for any of our Brands, or if a qualitative assessment indicates it is more-likely-than-
not that the estimated carrying value of a Brand exceeds its fair value, we estimate the fair value of the Brand and compare it to its carrying amount. If the carrying
amount exceeds fair value, an impairment loss is recognized in an amount equal to that excess. We use an income approach to estimate a Brand’s fair value, which
discounts the projected Brand-related cash flows using a discount rate we determine from a market participant's perspective. We make significant assumptions
when estimating Brand-related cash flows, including system-wide sales, driven by net restaurant growth and comparable sales growth, average royalty rates, brand
maintenance costs and income tax rates.
We completed our impairment reviews for goodwill and the Brands as of October 1, 2020, 2019 and 2018 and no impairment resulted. The estimates and
assumptions we use to estimate fair values when performing quantitative assessments are highly subjective judgments based on our experience and knowledge of
our operations. Significant changes in the assumptions used in our analysis could result in an impairment charge related to goodwill or the Brands. Circumstances
that could result in changes to future estimates and assumptions include, but are not limited to, expectations of lower system-wide sales growth, which can be
caused by a variety of factors, increases in income tax rates and increases in discount rates. Based on the annual impairment tests performed in 2020, the fair values
of all of our reporting units and Brands were substantially in excess of their carrying amounts.
Long-lived Assets
Long-lived assets (including intangible assets subject to amortization and lease right-of-use assets) are tested for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may not be recoverable. Long-lived assets are grouped for recognition and measurement of impairment
at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets.
The impairment test for long-lived assets requires us to assess the recoverability of our long-lived assets by comparing their net carrying value to the sum of
undiscounted estimated future cash flows directly associated with and arising from our use and eventual disposition of the assets. If the net carrying value of a
group of long-lived assets exceeds the sum of related undiscounted estimated future cash flows, we would be required to record an impairment charge equal to the
excess, if any, of net carrying value over fair value.
When assessing the recoverability of our long-lived assets, we make assumptions regarding estimated future cash flows and other factors. Some of these
assumptions involve a high degree of judgment and also bear a significant impact on the assessment conclusions. Included among these assumptions are estimating
undiscounted future cash flows, including the projection of rental income, capital requirements for maintaining property and residual values of asset groups. We
formulate estimates from historical experience and assumptions of future performance, based on business plans and forecasts, recent economic and business trends,
and competitive conditions. In the event that our estimates or related assumptions change in the future, we may be required to record an impairment charge.
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Accounting for Income Taxes
We record income tax liabilities utilizing known obligations and estimates of potential obligations. A deferred tax asset or liability is recognized whenever
there are future tax effects from existing temporary differences and operating loss and tax credit carry-forwards. When considered necessary, we record a valuation
allowance to reduce deferred tax assets to the balance that is more-likely-than-not to be realized. We must make estimates and judgments on future taxable income,
considering feasible tax planning strategies and taking into account existing facts and circumstances, to determine the proper valuation allowance. When we
determine that deferred tax assets could be realized in greater or lesser amounts than recorded, the asset balance and income statement reflect the change in the
period such determination is made. Due to changes in facts and circumstances and the estimates and judgments that are involved in determining the proper
valuation allowance, differences between actual future events and prior estimates and judgments could result in adjustments to this valuation allowance.
We file income tax returns, including returns for our subsidiaries, with federal, provincial, state, local and foreign jurisdictions. We are subject to routine
examination by taxing authorities in these jurisdictions. We apply a two-step approach to recognizing and measuring uncertain tax positions. The first step is to
evaluate available evidence to determine if it appears more-likely-than-not that an uncertain tax position will be sustained on an audit by a taxing authority, based
solely on the technical merits of the tax position. The second step is to measure the tax benefit as the largest amount that is more than 50% likely of being realized
upon settling the uncertain tax position.
Although we believe we have adequately accounted for our uncertain tax positions, from time to time, audits result in proposed assessments where the
ultimate resolution may result in us owing additional taxes. We adjust our uncertain tax positions in light of changing facts and circumstances, such as the
completion of a tax audit, expiration of a statute of limitations, the refinement of an estimate, and interest accruals associated with uncertain tax positions until they
are resolved. We believe that our tax positions comply with applicable tax law and that we have adequately provided for these matters. However, to the extent that
the final tax outcome of these matters is different than the amounts recorded, such differences will impact the provision for income taxes in the period in which
such determination is made.
In prior periods, we provided deferred taxes on certain undistributed foreign earnings. Under our transition to a modified territorial tax system whereby all
previously untaxed undistributed foreign earnings are subject to a transition tax charge at reduced rates and future repatriations of foreign earnings will generally be
exempt from U.S. tax, we wrote off the existing deferred tax liability on undistributed foreign earnings and recorded the impact of the new transition tax charge on
foreign earnings. We will continue to monitor available evidence and our plans for foreign earnings and expect to continue to provide any applicable deferred taxes
based on the tax liability or withholding taxes that would be due upon repatriation of amounts not considered permanently reinvested.
We use an estimate of the annual effective income tax rate at each interim period based on the facts and circumstances available at that time, while the actual
effective income tax rate is calculated at year-end.
See Note 10 to the accompanying consolidated financial statements included in Part II, Item 8 “Financial Statements and Supplementary Data” of our
Annual Report for additional information about accounting for income taxes.
New Accounting Pronouncements
See Note 2, “Significant Accounting Policies – New Accounting Pronouncements,” to the accompanying consolidated financial statements included in Part
II, Item 8 “Financial Statements and Supplementary Data” of our Annual Report for a discussion of new accounting pronouncements.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Market Risk
We are exposed to market risks associated with currency exchange rates, interest rates, commodity prices and inflation. In the normal course of business and
in accordance with our policies, we manage these risks through a variety of strategies, which may include the use of derivative financial instruments to hedge our
underlying exposures. Our policies prohibit the use of derivative instruments for speculative purposes, and we have procedures in place to monitor and control their
use.
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Currency Exchange Risk
We report our results in U.S. dollars, which is our reporting currency. The operations of each of TH, BK, and PLK that are denominated in currencies other
than the U.S. dollar are impacted by fluctuations in currency exchange rates and changes in currency regulations. The majority of TH’s operations, income,
revenues, expenses and cash flows are denominated in Canadian dollars, which we translate to U.S. dollars for financial reporting purposes. Royalty payments from
BK franchisees in our European markets and in certain other countries are denominated in currencies other than U.S. dollars. Furthermore, franchise royalties from
each of TH’s, BK’s, and PLK's international franchisees are calculated based on local currency sales; consequently franchise revenues are still impacted by
fluctuations in currency exchange rates. Each of their respective revenues and expenses are translated using the average rates during the period in which they are
recognized and are impacted by changes in currency exchange rates.
We have numerous investments in our foreign subsidiaries, the net assets of which are exposed to volatility in foreign currency exchange rates. We have
entered into cross-currency rate swaps to hedge a portion of our net investment in such foreign operations against adverse movements in foreign currency exchange
rates. We designated cross-currency rate swaps with a notional value of $5,000 million between Canadian dollar and U.S. dollar and cross-currency rate swaps with
a notional value of $2,100 million between the Euro and U.S. dollar, as net investment hedges of a portion of our equity in foreign operations in those currencies.
The fair value of the cross-currency rate swaps is calculated each period with changes in the fair value of these instruments reported in accumulated other
comprehensive income (loss) (“AOCI”) to economically offset the change in the value of the net investment in these designated foreign operations driven by
changes in foreign currency exchange rates. The net fair value of these derivative instruments was a liability of $434 million as of December 31, 2020. The net
unrealized losses, net of tax, related to these derivative instruments included in AOCI totaled $365 million as of December 31, 2020. Such amounts will remain in
AOCI until the complete or substantially complete liquidation of our investment in the underlying foreign operations.
We use forward currency contracts to manage the impact of foreign exchange fluctuations on U.S. dollar purchases and payments, such as coffee and certain
intercompany purchases, made by our TH Canadian operations. However, for a variety of reasons, we do not hedge our revenue exposure in other currencies.
Therefore, we are exposed to volatility in those other currencies, and this volatility may differ from period to period. As a result, the foreign currency impact on our
operating results for one period may not be indicative of future results.
During 2020, income from operations would have decreased or increased approximately $73 million if all foreign currencies uniformly weakened or
strengthened 10% relative to the U.S. dollar, holding other variables constant, including sales volumes. The effect of a uniform movement of all currencies by 10%
is provided to illustrate a hypothetical scenario and related effect on operating income. Actual results will differ as foreign currencies may move in uniform or
different directions and in different magnitudes.
Interest Rate Risk
We are exposed to changes in interest rates related to our Term Loan Facilities and Revolving Credit Facility, which bear interest at LIBOR plus a spread,
subject to a LIBOR floor. Generally, interest rate changes could impact the amount of our interest paid and, therefore, our future earnings and cash flows, assuming
other factors are held constant. To mitigate the impact of changes in LIBOR on interest expense for a portion of our variable rate debt, we have entered into interest
rate swaps. We account for these derivatives as cash flow hedges, and as such, the unrealized changes in market value are recorded in AOCI and reclassified into
earnings during the period in which the hedged forecasted transaction affects earnings. At December 31, 2020, we had a series of receive-variable, pay-fixed
interest rate swaps to hedge the variability in the interest payments on $4,000 million of our Term Loan Facilities. The total notional value of these interest rate
swaps is $4,000 million, of which $3,500 million expire on November 19, 2026 and $500 million expire on September 30, 2026.
Based on the portion of our variable rate debt balance in excess of the notional amount of the interest rate swaps and LIBOR as of December 31, 2020, a
hypothetical 1.00% increase in LIBOR would increase our annual interest expense by approximately $20 million.
The discontinuation of LIBOR after June 2023 and the replacement with an alternative reference rate may adversely impact interest rates and our interest
expense could increase.
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Commodity Price Risk
We purchase certain products, which are subject to price volatility that is caused by weather, market conditions and other factors that are not considered
predictable or within our control. However, in our TH business, we employ various purchasing and pricing contract techniques, such as setting fixed prices for
periods of up to one year with suppliers, in an effort to minimize volatility of certain of these commodities. Given that we purchase a significant amount of green
coffee, we typically have purchase commitments fixing the price for a minimum of six to twelve months depending upon prevailing market conditions. We also
typically hedge against the risk of foreign exchange on green coffee prices.
We occasionally take forward pricing positions through our suppliers to manage commodity prices. As a result, we purchase commodities and other products
at market prices, which fluctuate on a daily basis and may differ between different geographic regions, where local regulations may affect the volatility of
commodity prices.
We do not make use of financial instruments to hedge commodity prices. As we make purchases beyond our current commitments, we may be subject to
higher commodity prices depending upon prevailing market conditions at such time. Generally, increases and decreases in commodity costs are largely passed
through to franchisee owners, resulting in higher or lower revenues and higher or lower costs of sales from our business. These changes may impact margins as
many of these products are typically priced based on a fixed-dollar mark-up. We and our franchisees have some ability to increase product pricing to offset a rise in
commodity prices, subject to acceptance by franchisees and guests.
Impact of Inflation
We believe that our results of operations are not materially impacted by moderate changes in the inflation rate. Inflation did not have a material impact on
our operations in 2020, 2019 or 2018. However, severe increases in inflation could affect the global, Canadian and U.S. economies and could have an adverse
impact on our business, financial condition and results of operations. If several of the various costs in our business experience inflation at the same time, such as
commodity price increases beyond our ability to control and increased labor costs, we and our franchisees may not be able to adjust prices to sufficiently offset the
effect of the various cost increases without negatively impacting consumer demand.
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Disclosures Regarding Partnership Pursuant to Canadian Exemptive Relief
We are the sole general partner of Partnership. To address certain disclosure conditions to the exemptive relief that Partnership received from the Canadian
securities regulatory authorities, we are providing a summary of certain terms of the Partnership exchangeable units. This summary is not complete and is
qualified in its entirety by the complete text of the Amended and Restated Limited Partnership Agreement, dated December 11, 2014, between the Company,
8997896 Canada Inc. and each person who is admitted as a Limited Partner in accordance with the terms of the agreement (the “partnership agreement”) and the
Voting Trust Agreement, dated December 12, 2014, between the Company, Partnership and Computershare Trust Company of Canada (the “voting trust
agreement”), copies of which are available on SEDAR at www.sedar.com and at www.sec.gov. For a description of our common shares, see Exhibit 4.1 to this
Annual Report.
The Partnership Exchangeable Units
The capital of Partnership consists of three classes of units: the Partnership Class A common units, the Partnership preferred units and the Partnership
exchangeable units. Our interest, as the sole general partner of Partnership, is represented by Class A common units and preferred units. The interests of the limited
partners is represented by the Partnership exchangeable units.
Summary of Economic and Voting Rights
The Partnership exchangeable units are intended to provide economic rights that are substantially equivalent, and voting rights with respect to us that are
equivalent, to the corresponding rights afforded to holders of our common shares. Under the terms of the partnership agreement, the rights, privileges, restrictions
and conditions attaching to the Partnership exchangeable units include the following:
•
•
•
•
•
The Partnership exchangeable units are exchangeable at any time, at the option of the holder (the “exchange right”), on a one-for-one basis for our
common shares (the “exchanged shares”), subject to our right as the general partner (subject to the approval of the conflicts committee in certain
circumstances) to determine to settle any such exchange for a cash payment in lieu of our common shares. If we elect to make a cash payment in lieu
of issuing common shares, the amount of the cash payment will be the weighted average trading price of the common shares on the NYSE for the 20
consecutive trading days ending on the last business day prior to the exchange date (the “exchangeable units cash amount”). Written notice of the
determination of the form of consideration shall be given to the holder of the Partnership exchangeable units exercising the exchange right no later
than ten business days prior to the exchange date.
If a dividend or distribution has been declared and is payable in respect of our common shares, Partnership will make a distribution in respect of each
Partnership exchangeable unit in an amount equal to the dividend or distribution in respect of a common share. The record date and payment date for
distributions on the Partnership exchangeable units will be the same as the relevant record date and payment date for the dividends or distributions on
our common shares.
If we issue any common shares in the form of a dividend or distribution on our common shares, Partnership will issue to each holder of Partnership
exchangeable units, in respect of each exchangeable unit held by such holder, a number of Partnership exchangeable units equal to the number of
common shares issued in respect of each common share.
If we issue or distribute rights, options or warrants or other securities or assets to all or substantially all of the holders of our common shares,
Partnership is required to make a corresponding distribution to holders of the Partnership exchangeable units.
No subdivision or combination of our outstanding common shares is permitted unless a corresponding subdivision or combination of Partnership
exchangeable units is made.
•
• We and our board of directors are prohibited from proposing or recommending an offer for our common shares or for the Partnership exchangeable
units unless the holders of the Partnership exchangeable units and the holders of common shares are entitled to participate to the same extent and on
an equitably equivalent basis.
Upon a dissolution and liquidation of Partnership, if Partnership exchangeable units remain outstanding and have not been exchanged for our common
shares, then the distribution of the assets of Partnership between holders of our common shares and holders of Partnership exchangeable units will be
made on a pro rata basis based on the numbers of common shares and Partnership exchangeable units outstanding. Assets distributable to holders of
Partnership exchangeable units will be distributed directly to such holders. Assets distributable in respect of our common shares will be distributed to
us. Prior to this pro rata distribution, Partnership is required to pay to us sufficient amounts to fund our expenses or other obligations (to the extent
related to our role as the general partner or our business and affairs that are conducted through Partnership or its subsidiaries) to ensure that any
property
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•
•
and cash distributed to us in respect of the common shares will be available for distribution to holders of common shares in an amount per share equal
to distributions in respect of each Partnership exchangeable unit. The terms of the Partnership exchangeable units do not provide for an automatic
exchange of Partnership exchangeable units into our common shares upon a dissolution or liquidation of Partnership or us.
Approval of holders of the Partnership exchangeable units is required for an action (such as an amendment to the partnership agreement) that would
affect the economic rights of a Partnership exchangeable unit relative to a common share.
The holders of Partnership exchangeable units are indirectly entitled to vote in respect of matters on which holders of our common shares are entitled
to vote, including in respect of the election of our directors, through a special voting share of the Company. The special voting share is held by a
trustee, entitling the trustee to that number of votes on matters on which holders of common shares are entitled to vote equal to the number of
Partnership exchangeable units outstanding. The trustee is required to cast such votes in accordance with voting instructions provided by holders of
Partnership exchangeable units. The trustee will exercise each vote attached to the special voting share only as directed by the relevant holder of
Partnership exchangeable units and, in the absence of instructions from a holder of an exchangeable unit as to voting, will not exercise those votes.
Except as otherwise required by the partnership agreement, voting trust agreement or applicable law, the holders of the Partnership exchangeable units
are not directly entitled to receive notice of or to attend any meeting of the unitholders of Partnership or to vote at any such meeting.
Exercise of Optional Exchange Right
In order to exercise the exchange right referred to above, a holder of Partnership exchangeable units must deliver to Partnership’s transfer agent a duly
executed exchange notice together with such additional documents and instruments as the transfer agent and Partnership may reasonably require. The exchange
notice must (i) specify the number of Partnership exchangeable units in respect of which the holder is exercising the exchange right and (ii) state the business day
on which the holder desires to have Partnership exchange the subject units, provided that the exchange date must not be less than 15 business days nor more than
30 business days after the date on which the exchange notice is received by Partnership. If no exchange date is specified in an exchange notice, the exchange date
will be deemed to be the 15th business day after the date on which the exchange notice is received by Partnership. An exercise of the exchange right may be
revoked by the exercising holder by notice in writing given to Partnership before the close of business on the fifth business day immediately preceding the
exchange date. On the exchange date, Partnership will deliver or cause the transfer agent to deliver to the relevant holder, as applicable (i) the applicable number of
exchanged shares, or (ii) a cheque representing the applicable exchangeable units cash amount, in each case, less any amounts withheld on account of tax.
Offers for Units or Shares
The partnership agreement contains provisions to the effect that if a take-over bid is made for all of the outstanding Partnership exchangeable units and not
less than 90% of the Partnership exchangeable units (other than units of Partnership held at the date of the take-over bid by or on behalf of the offeror or its
associates, affiliates or persons acting jointly or in concert with the offeror) are taken up and paid for by the offeror, the offeror will be entitled to acquire the
Partnership exchangeable units held by unitholders who did not accept the offer on the terms offered by the offeror. The partnership agreement further provides that
for so long as Partnership exchangeable units remain outstanding, (i) we will not propose or recommend a formal bid for our common shares, and no such bid will
be effected with the consent or approval of our board of directors, unless holders of Partnership exchangeable units are entitled to participate in the bid to the same
extent and on an equitably equivalent basis as the holders of our common shares, and (ii) we will not propose or recommend a formal bid for Partnership
exchangeable units, and no such bid will be effected with the consent or approval of our board of directors, unless holders of the Company’s common shares are
entitled to participate in the bid to the same extent and on an equitably equivalent basis as the holders of Partnership exchangeable units. Canadian securities
regulatory authorities may intervene in the public interest (either on application by an interested party or by staff of a Canadian securities regulatory authority) to
prevent an offer to holders of our common shares, Preferred Shares or Partnership exchangeable units being made or completed where such offer is abusive of the
holders of one of those security classes that are not subject to that offer.
Merger, Sale or Other Disposition of Assets
As long as any Partnership exchangeable units are outstanding, we cannot consummate a transaction in which all or substantially all of our assets would
become the property of any other person or entity. This does not apply to a transaction if such other person or entity becomes bound by the partnership agreement
and assumes our obligations, as long as the transaction does not impair in any material respect the rights, duties, powers and authorities of other parties to the
partnership agreement.
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Mandatory Exchange
Partnership may cause a mandatory exchange of the outstanding Partnership exchangeable units into our common shares in the event that (1) at any time
there remain outstanding fewer than 5% of the number of Partnership exchangeable units outstanding as of the effective time of the Merger (other than Partnership
exchangeable units held by us and our subsidiaries and as such number of Partnership exchangeable units may be adjusted in accordance with the partnership
agreement); (2) any one of the following occurs: (i) any person, firm or corporation acquires directly or indirectly any voting security of the Company and
immediately after such acquisition, the acquirer has voting securities representing more than 50% of the total voting power of all the then outstanding voting
securities of the Company on a fully diluted basis, (ii) our shareholders shall approve a merger, consolidation, recapitalization or reorganization of the Company,
other than any transaction which would result in the holders of outstanding voting securities of the Company immediately prior to such transaction having at least a
majority of the total voting power represented by the voting securities of the surviving entity outstanding immediately after such transaction, with the voting power
of each such continuing holder relative to other continuing holders not being altered substantially in the transaction; or (iii) our shareholders shall approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition of the Company of all or substantially all of our assets, provided that, in each case,
we, in our capacity as the general partner of Partnership, determine, in good faith and in our sole discretion, that such transaction involves a bona fide third-party
and is not for the primary purpose of causing the exchange of the Partnership exchangeable units in connection with such transaction; or (3) a matter arises in
respect of which applicable law provides holders of Partnership exchangeable units with a vote as holders of units of Partnership in order to approve or disapprove,
as applicable, any change to, or in the rights of the holders of, the Partnership exchangeable units, where the approval or disapproval, as applicable, of such change
would be required to maintain the economic equivalence of the Partnership exchangeable units and our common shares, and the holders of the Partnership
exchangeable units fail to take the necessary action at a meeting or other vote of holders of Partnership exchangeable units to approve or disapprove, as applicable,
such matter in order to maintain economic equivalence of the Partnership exchangeable units and our common shares.
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Special Note Regarding Forward-Looking Statements
Certain information contained in our Annual Report, including information regarding future financial performance and plans, targets, aspirations,
expectations, and objectives of management, constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and
forward-looking information within the meaning of the Canadian securities laws. We refer to all of these as forward-looking statements. Forward-looking
statements are forward-looking in nature and, accordingly, are subject to risks and uncertainties. These forward-looking statements can generally be identified by
the use of words such as “believe”, “anticipate”, “expect”, “intend”, “estimate”, “plan”, “continue”, “will”, “may”, “could”, “would”, “target”, “potential”
and other similar expressions and include, without limitation, statements regarding our expectations or beliefs regarding (i) our ability to become one of the most
efficient franchised QSR operators in the world; (ii) the benefits of our fully franchised business model; (iii) the domestic and international growth opportunities
for the Tim Hortons, Burger King and Popeyes brands, both in existing and new markets; (iv) our ability to accelerate international development through joint
venture structures and master franchise and development agreements and the impact on future growth and profitability of our brands; (v) our continued use of
joint ventures structures and master franchise and development agreements in connection with our domestic and international expansion; (vi) the impact of our
strategies on the growth of our Tim Hortons, Burger King and Popeyes brands and our profitability; (vii) our commitment to technology and innovation and our
plans and strategies with respect to digital sales, our information systems and technology offerings and investments; (viii) the correlation between our sales, guest
traffic and profitability to consumer discretionary spending and the factors that influence spending; (ix) our ability to drive traffic, expand our customer base and
allow restaurants to expand into new dayparts through new product innovation; (x) the benefits accrued from sharing and leveraging best practices among our
Tim Hortons, Burger King and Popeyes brands; (xi) the drivers of the long-term success for and competitive position of each of our brands as well as increased
sales and profitability of our franchisees; (xii) the impact of our cost management initiatives at each of our brands; (xiii) the continued use of certain franchise
incentives and their impact on our financial results; (xiv) the impact of our modern image remodel initiative and our ability to mitigate the negative impact of such
initiative on royalty rates through entry into new BK franchise agreements; (xv) the effects of the COVID-19 pandemic on our results of operations, business,
liquidity and prospects and those of our franchisees; (xvi) our future financial obligations, including annual debt service requirements, capital expenditures and
dividend payments, our ability to meet such obligations and the source of liquidity used to satisfy such obligations; (xvii) our future uses of liquidity, including
dividend payments and share repurchases; (xviii) our efforts to assist restaurant owners in maintaining liquidity and the impact of these programs on our future
cash flow and financial results; (xix) the amount and timing of future Corporate restructuring and tax advisory fees and office centralization and relocation costs;
(xx) our exposure to changes in interest rates and foreign currency exchange rates and the impact of changes in interest rates and foreign currency exchange rates
on the amount of our interest payments, future earnings and cash flows; (xxi) the amount of net cash settlements we expect to pay on our derivative instruments;
(xxii) our tax positions and their compliance with applicable tax laws; (xxiii) certain accounting matters, including the impact of changes in accounting standards;
(xxiv) certain tax matters, including our estimates with respect to tax matters and their impact on future periods; (xxv) the impact of inflation on our results of
operations; (xxvi) the impact of governmental regulation, both domestically and internationally, on our business and financial and operational results; (xxvii) the
adequacy of our facilities to meet our current requirements; (xxviii) our future financial and operational results; (xxix) certain litigation matters; (xxx) our target
total dividend for 2021; and (xxxi) our sustainability initiatives and the impact of government sustainability regulation and initiatives.
These forward looking statements represent management’s expectations as of the date hereof. These forward-looking statements are based on certain
assumptions and analyses that we made in light of our experience and our perception of historical trends, current conditions and expected future developments, as
well as other factors we believe are appropriate in the circumstances. However, these forward-looking statements are subject to a number of risks and
uncertainties and actual results may differ materially from those expressed or implied in such statements. Important factors that could cause actual results, level of
activity, performance or achievements to differ materially from those expressed or implied by these forward-looking statements include, among other things, risks
related to: (1) our substantial indebtedness, which could adversely affect our financial condition and prevent us from fulfilling our obligations; (2) global
economic or other business conditions that may affect the desire or ability of our customers to purchase our products such as the effects of the COVID-19
pandemic, inflationary pressures, high unemployment levels, declines in median income growth, consumer confidence and consumer discretionary spending and
changes in consumer perceptions of dietary health and food safety; (3) our relationship with, and the success of, our franchisees and risks related to our fully
franchised business model; (4) our franchisees' financial stability and their ability to access and maintain the liquidity necessary to operate their businesses; (5)
our supply chain operations; (6) our ownership and leasing of real estate; (7) the effectiveness of our marketing, advertising and digital programs and franchisee
support of these programs; (8) significant and rapid fluctuations in interest rates and in the currency exchange markets and the effectiveness of our hedging
activity; (9) our ability to successfully implement our domestic and international growth strategy for each of our brands and risks related to our international
operations; (10) our reliance on master franchisees and subfranchisees to accelerate restaurant growth; (11) the ability of the counterparties to our credit
facilities’
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and derivatives’ to fulfill their commitments and/or obligations; (12) changes in applicable tax laws or interpretations thereof; and our ability to accurately
interpret and predict the impact of such changes or interpretations on our financial condition and results.
Finally, our future results will depend upon various other risks and uncertainties, including, but not limited to, those detailed in the section entitled “Item 1A
- Risk Factors” of our Annual Report as well as other materials that we from time to time file with, or furnish to, the SEC or file with Canadian securities
regulatory authorities on SEDAR. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the
cautionary statements in this section and elsewhere in this Annual Report. Other than as required under securities laws, we do not assume a duty to update these
forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.
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Item 8. Financial Statements and Supplementary Data
RESTAURANT BRANDS INTERNATIONAL INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Management’s Report on Internal Control Over Financial Reporting
Reports of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Comprehensive Income (Loss)
Consolidated Statements of Shareholders’ Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
54
Page
55
56
59
60
61
62
63
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Management’s Report on Internal Control Over Financial Reporting
Management is responsible for the preparation, integrity and fair presentation of the consolidated financial statements, related notes and other information included
in this annual report. The consolidated financial statements were prepared in accordance with accounting principles generally accepted in the United States of
America and include certain amounts based on management’s estimates and assumptions. Other financial information presented in the annual report is derived
from the consolidated financial statements.
Management is also responsible for establishing and maintaining adequate internal control over financial reporting, and for performing an assessment of the
effectiveness of internal control over financial reporting as of December 31, 2020. Internal control over financial reporting is a process designed to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. Our system of internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of
records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts
and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material
effect on the consolidated financial statements.
Management performed an assessment of the effectiveness of the Company’s internal control over financial reporting as of December 31, 2020 based on criteria
established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
Based on our assessment and those criteria, management determined that the Company’s internal control over financial reporting was effective as of December 31,
2020.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with
the policies or procedures may deteriorate.
The effectiveness of the Company’s internal control over financial reporting as of December 31, 2020 has been audited by KPMG LLP, the Company’s
independent registered public accounting firm, as stated in its report which is included herein.
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Report of Independent Registered Public Accounting Firm
To the Shareholders and Board of Directors
Restaurant Brands International Inc.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Restaurant Brands International Inc. and subsidiaries (the “Company”) as of December 31, 2020
and 2019, the related consolidated statements of operations, comprehensive income (loss), shareholders’ equity, and cash flows for each of the years in the three-
year period ended December 31, 2020, and the related notes (collectively, the “consolidated financial statements”). In our opinion, the consolidated financial
statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of its operations and its
cash flows for each of the years in the three-year period ended December 31, 2020, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the Company’s internal
control over financial reporting as of December 31, 2020, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee
of Sponsoring Organizations of the Treadway Commission, and our report dated February 23, 2021 expressed an unqualified opinion on the effectiveness of the
Company’s internal control over financial reporting.
Changes in Accounting Principle
As discussed in Note 2 to the consolidated financial statements, the Company has changed its method of accounting for leases as of January 1, 2019, due to the
adoption of Accounting Standards Codification Topic 842, Leases.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the
Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing
procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that
respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial
statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall
presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or
required to be communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the consolidated financial statements and (2)
involved our especially challenging, subjective, or complex judgments. The communication of a critical audit matter does not alter in any way our opinion on the
consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical
audit matter or on the accounts or disclosures to which it relates.
Gross unrecognized tax benefits
As discussed in Notes 2 and 10 to the consolidated financial statements, the Company records a liability for unrecognized tax benefits associated with
uncertain tax positions. The Company recognizes tax benefits from tax positions only if there is more than a 50% likelihood that the tax positions will be
sustained upon examination by the taxing authorities, based on the technical merits of the positions. As of December 31, 2020, the Company has recorded
gross unrecognized tax benefits, excluding associated interest and penalties, of $497 million.
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We identified the assessment of gross unrecognized tax benefits resulting from the implementation of certain tax planning strategies as a critical audit
matter. Identifying and determining uncertain tax positions arising from implementing tax planning strategies involved a number of judgments and
assumptions, which included complex considerations of tax law. As a result, subjective and complex auditor judgment, including the involvement of tax
professionals with specialized skills and knowledge, was required to evaluate the Company’s interpretation of tax law and its determination of which tax
positions have more than a 50% likelihood of being sustained upon examination.
The following are the primary procedures we performed to address this critical audit matter. We evaluated the design and tested the operating
effectiveness of certain internal controls over the Company’s gross unrecognized tax benefit process, including controls related to 1) interpreting tax law,
2) identifying significant uncertain tax positions arising from tax planning strategies that were implemented during the year, 3) evaluating the tax
consequences of the related strategies, and 4) evaluating which of the Company’s tax positions may not be sustained upon examination. In addition, we
involved tax professionals with specialized skills and knowledge, who assisted in:
•
•
•
•
obtaining an understanding of the Company’s tax planning strategies
evaluating the Company’s interpretation of the relevant tax laws by developing an independent assessment
evaluating the Company’s identification of uncertain tax positions to assess the tax consequences of these related tax positions
performing an independent assessment of the Company’s tax positions and comparing our assessment to the Company’s assessment.
We have served as the Company's auditor since 1989.
Miami, Florida
February 23, 2021
(signed) KPMG LLP
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Report of Independent Registered Public Accounting Firm
To the Shareholders and Board of Directors
Restaurant Brands International Inc.:
Opinion on Internal Control over Financial Reporting
We have audited Restaurant Brands International Inc. and subsidiaries’ (the “Company”) internal control over financial reporting as of December 31, 2020, based
on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. In
our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on criteria
established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated balance
sheets of the Company as of December 31, 2020 and 2019, the related consolidated statements of operations, comprehensive income (loss), shareholders' equity,
and cash flows for each of the years in the three-year period ended December 31, 2020, and the related notes (collectively, the “consolidated financial statements”),
and our report dated February 23, 2021 expressed an unqualified opinion on those consolidated financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal
control over financial reporting, included in the accompanying Management's Report on Internal Control over Financial Reporting. Our responsibility is to express
an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are
required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the
Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance
about whether effective internal control over financial reporting was maintained in all material respects. Our audit of internal control over financial reporting
included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the
design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered
necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial
reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in
accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with
the policies or procedures may deteriorate.
Miami, Florida
February 23, 2021
(signed) KPMG LLP
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RESTAURANT BRANDS INTERNATIONAL INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(In millions of U.S. dollars, except share data)
ASSETS
Current assets:
Cash and cash equivalents
Accounts and notes receivable, net of allowance of $42 and $13, respectively
Inventories, net
Prepaids and other current assets
Total current assets
Property and equipment, net of accumulated depreciation and amortization of $879 and $746, respectively
Operating lease assets, net
Intangible assets, net
Goodwill
Net investment in property leased to franchisees
Other assets, net
Total assets
Current liabilities:
LIABILITIES AND SHAREHOLDERS’ EQUITY
Accounts and drafts payable
Other accrued liabilities
Gift card liability
Current portion of long-term debt and finance leases
Total current liabilities
Long-term debt, net of current portion
Finance leases, net of current portion
Operating lease liabilities, net of current portion
Other liabilities, net
Deferred income taxes, net
Total liabilities
Commitments and contingencies (Note 16)
Shareholders’ equity:
Common shares, no par value; Unlimited shares authorized at December 31, 2020 and December 31, 2019; 304,718,749
shares issued and outstanding at December 31, 2020; 298,281,081 shares issued and outstanding at December 31, 2019
Retained earnings
Accumulated other comprehensive income (loss)
Total Restaurant Brands International Inc. shareholders’ equity
Noncontrolling interests
Total shareholders’ equity
Total liabilities and shareholders’ equity
As of December 31,
2020
2019
1,560 $
536
96
72
2,264
2,031
1,152
10,701
5,739
66
824
22,777 $
464 $
835
191
111
1,601
12,397
315
1,082
2,236
1,425
19,056
2,399
622
(854)
2,167
1,554
3,721
22,777 $
1,533
527
84
52
2,196
2,007
1,176
10,563
5,651
48
719
22,360
644
790
168
101
1,703
11,759
288
1,089
1,698
1,564
18,101
2,478
775
(763)
2,490
1,769
4,259
22,360
$
$
$
$
See accompanying notes to consolidated financial statements.
Approved on behalf of the Board of Directors:
By:
/s/ Daniel Schwartz
Daniel Schwartz, Co-Chairman
By:
/s/ Ali Hedayat
Ali Hedayat, Director
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RESTAURANT BRANDS INTERNATIONAL INC. AND SUBSIDIARIES
Consolidated Statements of Operations
(In millions of U.S. dollars, except per share data)
Revenues:
Sales
Franchise and property revenues
Total revenues
Operating costs and expenses:
Cost of sales
Franchise and property expenses
Selling, general and administrative expenses
(Income) loss from equity method investments
Other operating expenses (income), net
Total operating costs and expenses
Income from operations
Interest expense, net
Loss on early extinguishment of debt
Income before income taxes
Income tax expense
Net income
Net income attributable to noncontrolling interests (Note 12)
Net income attributable to common shareholders
Earnings per common share:
Basic
Diluted
Weighted average shares outstanding:
Basic
Diluted
2020
2019
2018
$
$
$
$
2,013 $
2,955
4,968
1,610
528
1,264
39
105
3,546
1,422
508
98
816
66
750
264
486 $
1.61 $
1.60 $
302
468
2,362 $
3,241
5,603
1,813
540
1,264
(11)
(10)
3,596
2,007
532
23
1,452
341
1,111
468
643 $
2.40 $
2.37 $
268
469
2,355
3,002
5,357
1,818
422
1,214
(22)
8
3,440
1,917
535
—
1,382
238
1,144
532
612
2.46
2.42
249
473
See accompanying notes to consolidated financial statements.
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Net income
RESTAURANT BRANDS INTERNATIONAL INC. AND SUBSIDIARIES
Consolidated Statements of Comprehensive Income (Loss)
(In millions of U.S. dollars)
Foreign currency translation adjustment
Net change in fair value of net investment hedges, net of tax of $60, $32, and $(101)
Net change in fair value of cash flow hedges, net of tax of $91, $29, and $7
Amounts reclassified to earnings of cash flow hedges, net of tax of $(27), $(6), and $(5)
Gain (loss) recognized on defined benefit pension plans and other items, net of tax of $3, $1, and $0
Other comprehensive income (loss)
Comprehensive income (loss)
Comprehensive income (loss) attributable to noncontrolling interests
Comprehensive income (loss) attributable to common shareholders
2020
2019
2018
$
750 $
1,111 $
1,144
332
(242)
(244)
73
(16)
(97)
653
224
429 $
409
(86)
(77)
15
(2)
259
1,370
571
799 $
(831)
282
(19)
14
1
(553)
591
276
315
$
See accompanying notes to consolidated financial statements.
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RESTAURANT BRANDS INTERNATIONAL INC. AND SUBSIDIARIES
Consolidated Statements of Shareholders’ Equity
(In millions of U.S. dollars, except shares)
Issued Common Shares
Shares
Amount
Retained
Earnings
Accumulated
Other
Comprehensive
Income (Loss)
Noncontrolling
Interests
Total
Balances at December 31, 2017
Cumulative effect adjustment (Note 14)
Stock option exercises
Share-based compensation
Issuance of shares
Dividends declared on common shares ($1.80 per share)
Dividend equivalents declared on restricted stock units
Distributions declared by Partnership on partnership
exchangeable units ($1.80 per unit)
Repurchase of Partnership exchangeable units
Exchange of Partnership exchangeable units for RBI common
shares
Net income
Other comprehensive income (loss)
Balances at December 31, 2018
Cumulative effect adjustment (Note 9)
Stock option exercises
Share-based compensation
Issuance of shares
Dividends declared on common shares ($2.00 per share)
Dividend equivalents declared on restricted stock units
Distributions declared by Partnership on partnership
exchangeable units ($2.00 per units)
Exchange of Partnership exchangeable units for RBI common
shares
Net income
Other comprehensive income (loss)
Balances at December 31, 2019
Stock option exercises
Share-based compensation
Issuance of shares
Dividends declared on common shares ($2.08 per share)
Dividend equivalents declared on restricted stock units
Distributions declared by Partnership on partnership
exchangeable units ($2.08 per unit)
Repurchase of Partnership exchangeable units
Exchange of Partnership exchangeable units for RBI common
shares
Other
Restaurant VIE contributions (distributions)
Net income
Other comprehensive income (loss)
Balances at December 31, 2020
243,899,476
—
7,221,947
—
225,737
—
—
—
—
185,333
—
—
251,532,493
—
4,495,897
—
236,299
—
—
—
42,016,392
—
—
298,281,081
2,447,627
—
469,145
—
—
—
—
3,636,169
(115,273)
—
—
—
304,718,749
$
$
$
$
2,052
—
61
48
7
—
5
—
(438)
2
—
—
1,737
—
102
68
7
—
9
—
555
—
—
2,478
82
74
6
—
8
—
(293)
48
(4)
—
—
—
2,399
$
$
$
$
651
(132)
—
—
—
(452)
(5)
—
—
—
612
—
674
12
—
—
—
(545)
(9)
—
—
643
—
775
—
—
—
(631)
(8)
—
—
—
—
—
486
—
622
$
$
$
$
(476)
—
—
—
—
—
—
—
(26)
(1)
—
(297)
(800)
—
—
—
—
—
—
—
(119)
—
156
(763)
—
—
—
—
—
—
(22)
(12)
—
—
—
(57)
(854)
$
$
$
$
2,334
(118)
—
—
—
—
—
(387)
(97)
(1)
532
(256)
2,007
9
—
—
—
—
—
(382)
(436)
468
103
1,769
—
—
—
—
—
(336)
(65)
(36)
—
(2)
264
(40)
1,554
$
$
$
$
4,561
(250)
61
48
7
(452)
—
(387)
(561)
—
1,144
(553)
3,618
21
102
68
7
(545)
—
(382)
—
1,111
259
4,259
82
74
6
(631)
—
(336)
(380)
—
(4)
(2)
750
(97)
3,721
See accompanying notes to consolidated financial statements.
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RESTAURANT BRANDS INTERNATIONAL INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(In millions of U.S. dollars)
Cash flows from operating activities:
Net income
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation and amortization
Premiums paid and non-cash loss on early extinguishment of debt
Amortization of deferred financing costs and debt issuance discount
(Income) loss from equity method investments
Loss (gain) on remeasurement of foreign denominated transactions
Net (gains) losses on derivatives
Share-based compensation expense
Deferred income taxes
Other
Changes in current assets and liabilities, excluding acquisitions and dispositions:
Accounts and notes receivable
Inventories and prepaids and other current assets
Accounts and drafts payable
Other accrued liabilities and gift card liability
Tenant inducements paid to franchisees
Other long-term assets and liabilities
Net cash provided by operating activities
Cash flows from investing activities:
Payments for property and equipment
Net proceeds from disposal of assets, restaurant closures and refranchisings
Settlement/sale of derivatives, net
Other investing activities, net
Net cash used for investing activities
Cash flows from financing activities:
Proceeds from issuance of long-term debt
Repayments of long-term debt and finance leases
Payment of financing costs
Payment of dividends on common shares and distributions on Partnership exchangeable units
Repurchase of Partnership exchangeable units
Proceeds from stock option exercises
(Payments) proceeds from derivatives
Other financing activities, net
Net cash used for financing activities
Effect of exchange rates on cash and cash equivalents
Increase (decrease) in cash and cash equivalents
Cash and cash equivalents at beginning of period
Cash and cash equivalents at end of period
Supplemental cash flow disclosures:
Interest paid
Income taxes paid
2020
2019
2018
$
750 $
1,111 $
1,144
189
97
26
39
100
32
74
(208)
28
(30)
(10)
(183)
16
(22)
23
921
(117)
12
33
(7)
(79)
185
16
29
(11)
(14)
(49)
68
58
6
(53)
(15)
112
(51)
(54)
138
1,476
(62)
8
24
—
(30)
5,235
(4,708)
(43)
(959)
(380)
82
(46)
(2)
(821)
6
27
1,533
1,560 $
2,250
(2,266)
(50)
(901)
—
102
23
—
(842)
16
620
913
1,533 $
463 $
267 $
584 $
248 $
$
$
$
180
—
29
(22)
(33)
(40)
48
29
5
19
(7)
41
(219)
(52)
43
1,165
(86)
8
17
17
(44)
75
(74)
(3)
(728)
(561)
61
—
(55)
(1,285)
(20)
(184)
1,097
913
561
433
See accompanying notes to consolidated financial statements.
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RESTAURANT BRANDS INTERNATIONAL INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Note 1. Description of Business and Organization
Description of Business
Restaurant Brands International Inc. (the “Company,” “RBI,” “we,” “us” or “our”) is a Canadian corporation that serves as the sole general partner of
Restaurant Brands International Limited Partnership (the “Partnership”). We franchise and operate quick service restaurants serving premium coffee and other
beverage and food products under the Tim Hortons® brand (“Tim Hortons” or “TH”), fast food hamburgers principally under the Burger King® brand (“Burger
King” or “BK”), and chicken under the Popeyes® brand (“Popeyes” or “PLK”). We are one of the world’s largest quick service restaurant, or QSR, companies as
measured by total number of restaurants. As of December 31, 2020, we franchised or owned 4,949 Tim Hortons restaurants, 18,625 Burger King restaurants, and
3,451 Popeyes restaurants, for a total of 27,025 restaurants, and operate in more than 100 countries. Approximately 100% of current system-wide restaurants are
franchised.
All references to “$” or “dollars” are to the currency of the United States unless otherwise indicated. All references to “Canadian dollars” or “C$” are to the
currency of Canada unless otherwise indicated.
COVID-19
The global crisis resulting from the spread of coronavirus (“COVID-19”) has had a substantial impact on our global restaurant operations during 2020.
During 2020, some TH, BK and PLK restaurants were temporarily closed in certain countries and many of the restaurants that remained open had limited
operations, such as drive-thru, takeout and delivery (where applicable) and that currently remains the case.
Our operating results substantially depend upon our franchisees’ sales volumes, restaurant profitability, and financial stability. The financial impact of
COVID-19 has had, and is expected to continue for an uncertain period to have, an adverse effect on many of our franchisees’ liquidity and we have worked
closely with our franchisees to monitor and assist them with access to appropriate sources of liquidity in order to sustain their businesses throughout this crisis,
such as offering rent relief programs for eligible franchisees who lease property from us. See Note 9, Leases, for further information about the rent relief programs.
Additionally, we provided cash flow support by extending loans to eligible BK franchisees in the U.S. during the second and third quarters of 2020, and by
advancing certain cash payments to eligible TH franchisees in Canada during the second quarter of 2020.
During 2020, we recorded bad debt expense of $33 million compared to insignificant bad debt expense during 2019 and 2018. While these receivables remain
contractually due and payable to us, the certainty of the amount and timing of payments has been impacted by the COVID-19 pandemic. Therefore, our bad debt
expense during 2020 reflects an adjustment to our historical collections experience to incorporate an estimate of the impact of current economic conditions
resulting from the COVID-19 pandemic. Actual collections may be materially higher or lower than this estimate reflects since it is reasonably possible the duration
and future impact of the COVID-19 pandemic on our business or our franchisees may differ from our assumptions. Ongoing material adverse effects of the
COVID-19 pandemic on our franchisees for an extended period could negatively affect our operating results, including reductions in revenue and cash flow and
could impact our impairment assessments of accounts receivable, long-lived assets, intangible assets or goodwill.
Note 2. Significant Accounting Policies
Basis of Presentation
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States (“GAAP”) and related
rules and regulations of the U.S. Securities and Exchange Commission requires our management to make estimates and assumptions that affect the reported
amounts of assets, liabilities, revenues and expenses, and the related disclosure of contingent assets and liabilities. Actual results could differ from these estimates.
Principles of Consolidation
The consolidated financial statements (the "Financial Statements") include our accounts and the accounts of entities in which we have a controlling financial
interest, the usual condition of which is ownership of a majority voting interest. All material intercompany balances and transactions have been eliminated in
consolidation. Investments in other affiliates that are owned 50% or less where we have significant influence are accounted for by the equity method.
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We are the sole general partner of Partnership and, as such we have the exclusive right, power and authority to manage, control, administer and operate the
business and affairs and to make decisions regarding the undertaking and business of Partnership, subject to the terms of the partnership agreement of Partnership
(“partnership agreement”) and applicable laws. As a result, we consolidate the results of Partnership and record a noncontrolling interest in our consolidated
balance sheets and statements of operations with respect to the remaining economic interest in Partnership we do not hold.
We also consider for consolidation entities in which we have certain interests, where the controlling financial interest may be achieved through arrangements
that do not involve voting interests. Such an entity, known as a variable interest entity (“VIE”), is required to be consolidated by its primary beneficiary. The
primary beneficiary is the entity that possesses the power to direct the activities of the VIE that most significantly impact its economic performance and has the
obligation to absorb losses or the right to receive benefits from the VIE that are significant to it. Our maximum exposure to loss resulting from involvement with
VIEs is attributable to accounts and notes receivable balances, outstanding loan guarantees and future lease payments, where applicable.
As our franchise and master franchise arrangements provide the franchise and master franchise entities the power to direct the activities that most
significantly impact their economic performance, we do not consider ourselves the primary beneficiary of any such entity that might be a VIE.
Tim Hortons has historically entered into certain arrangements in which an operator acquires the right to operate a restaurant, but Tim Hortons owns the
restaurant’s assets. In these arrangements, Tim Hortons has the ability to determine which operators manage the restaurants and for what duration. We perform an
analysis to determine if the legal entity in which operations are conducted is a VIE and consolidate a VIE entity if we also determine Tim Hortons is the entity’s
primary beneficiary (“Restaurant VIEs”). As of December 31, 2020 and 2019, we determined that we are the primary beneficiary of 38 and 35 Restaurant VIEs,
respectively, and accordingly, have consolidated the results of operations, assets and liabilities, and cash flows of these Restaurant VIEs in our Financial
Statements.
Assets and liabilities related to consolidated VIEs are not significant to our total consolidated assets and liabilities. Liabilities recognized as a result of
consolidating these VIEs do not necessarily represent additional claims on our general assets; rather, they represent claims against the specific assets of the
consolidated VIEs. Conversely, assets recognized as a result of consolidating these VIEs do not represent additional assets that could be used to satisfy claims by
our creditors as they are not legally included within our general assets.
Reclassifications
Certain prior year amounts in the accompanying consolidated financial statements and notes to the consolidated financial statements have been reclassified in
order to be comparable with the current year classifications.
Foreign Currency Translation and Transaction Gains and Losses
Our functional currency is the U.S. dollar, since our term loans and senior secured notes are denominated in U.S. dollars, and the principal market for our
common shares is the U.S. The functional currency of each of our operating subsidiaries is generally the currency of the economic environment in which the
subsidiary primarily does business. Our foreign subsidiaries’ financial statements are translated into U.S. dollars using the foreign exchange rates applicable to the
dates of the financial statements. Assets and liabilities are translated using the end-of-period spot foreign exchange rates. Income, expenses and cash flows are
translated at the average foreign exchange rates for each period. Equity accounts are translated at historical foreign exchange rates. The effects of these translation
adjustments are reported as a component of accumulated other comprehensive income (loss) (“AOCI”) in the consolidated statements of shareholders’ equity.
For any transaction that is denominated in a currency different from the entity’s functional currency, we record a gain or loss based on the difference
between the foreign exchange rate at the transaction date and the foreign exchange rate at the transaction settlement date (or rate at period end, if unsettled) which
is included within other operating expenses (income), net in the consolidated statements of operations.
Cash and Cash Equivalents
All highly liquid investments with original maturities of three months or less and credit card receivables are considered cash equivalents.
Inventories
Inventories are carried at the lower of cost or net realizable value and consist primarily of raw materials such as green coffee beans and finished goods such
as new equipment, parts, paper supplies and restaurant food items. The moving average method is used to determine the cost of raw materials and finished goods
inventories held for sale to Tim Hortons franchisees.
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Property and Equipment, net
We record property and equipment at historical cost less accumulated depreciation and amortization, which is recognized using the straight-line method over
the following estimated useful lives: (i) buildings and improvements – up to 40 years; (ii) restaurant equipment – up to 17 years; (iii) furniture, fixtures and other –
up to 10 years; and (iv) manufacturing equipment – up to 25 years. Leasehold improvements to properties where we are the lessee are amortized over the lesser of
the remaining term of the lease or the estimated useful life of the improvement.
Major improvements are capitalized, while maintenance and repairs are expensed when incurred.
Leases
We transitioned to Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 842, Leases (“ASC 842”), from
ASC Topic 840, Leases (the “Previous Standard”) on January 1, 2019. Our Financial Statements reflect the application of ASC 842 guidance beginning in 2019,
while our Financial Statements for prior periods were prepared under the guidance of the Previous Standard.
In all leases, whether we are the lessor or lessee, we define lease term as the noncancellable term of the lease plus any renewals covered by renewal options
that are reasonably certain of exercise based on our assessment of the economic factors relevant to the lessee. The noncancellable term of the lease commences on
the date the lessor makes the underlying property in the lease available to the lessee, irrespective of when lease payments begin under the contract.
Lessor Accounting
We recognize lease payments for operating leases as property revenue on a straight-line basis over the lease term, and property revenue is presented net of
any related sales tax. Lease incentive payments we make to lessees are amortized as a reduction in property revenue over the lease term. In accordance with ASC
842, we account for reimbursements of maintenance and property tax costs paid to us by lessees as property revenue. These expenses and reimbursements were
presented on a net basis under the Previous Standard.
We also have net investments in properties leased to franchisees, which meet the criteria of sales-type leases under ASC 842 or met the criteria of direct
financing leases under the Previous Standard. Investments in sales-type leases and direct financing leases are recorded on a net basis. Profit or loss on sales-type
leases is recognized at lease commencement and recorded in other operating expenses (income), net. Unearned income on direct financing leases is deferred,
included in the net investment in the lease, and recognized over the lease term yielding a constant periodic rate of return on the net investment in the lease.
We recognize variable lease payment income in the period when changes in facts and circumstances on which the variable lease payments are based occur.
Lessee Accounting
In accordance with ASC 842, in leases where we are the lessee, we recognize a right-of-use (“ROU”) asset and lease liability at lease commencement, which
are measured by discounting lease payments using our incremental borrowing rate as the discount rate. We determine the incremental borrowing rate applicable to
each lease by reference to our outstanding secured borrowings and implied spreads over the risk-free discount rates that correspond to the term of each lease, as
adjusted for the currency of the lease. Subsequent amortization of the ROU asset and accretion of the lease liability for an operating lease is recognized as a single
lease cost, on a straight-line basis, over the lease term. Reductions of the ROU asset and the change in the lease liability are included in changes in Other long-term
assets and liabilities in the Consolidated Statement of Cash Flows.
Under the Previous Standard, we did not recognize assets and liabilities for the rights and obligations created by operating leases and recorded rental expense
for operating leases on a straight-line basis over the lease term, net of any applicable lease incentive amortization.
A finance lease ROU asset is depreciated on a straight-line basis over the lesser of the useful life of the leased asset or lease term. Interest on each finance
lease liability is determined as the amount that results in a constant periodic discount rate on the remaining balance of the liability. Operating lease and finance
lease ROU assets are assessed for impairment in accordance with our long-lived asset impairment policy.
We reassess lease classification and remeasure ROU assets and lease liabilities when a lease is modified and that modification is not accounted for as a
separate contract or upon certain other events that require reassessment in accordance with ASC 842. Maintenance and property tax expenses are accounted for on
an accrual basis as variable lease cost.
We recognize variable lease cost in the period when changes in facts and circumstances on which the variable lease payments are based occur.
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Goodwill and Intangible Assets Not Subject to Amortization
Goodwill represents the excess of the purchase price over the fair value of assets acquired and liabilities assumed in connection with the acquisition of
Popeyes in 2017, the acquisition of Tim Hortons in 2014 and the acquisition of Burger King Holdings, Inc. by 3G Capital Partners Ltd. in 2010. Our indefinite-
lived intangible assets consist of the Tim Hortons brand, the Burger King brand, and the Popeyes brand (each a “Brand” and together, the “Brands”). Goodwill and
the Brands are tested for impairment at least annually as of October 1 of each year and more often if an event occurs or circumstances change which indicate
impairment might exist. Our annual impairment tests of goodwill and the Brands may be completed through qualitative assessments. We may elect to bypass the
qualitative assessment and proceed directly to a quantitative impairment test for any reporting unit or Brand in any period. We can resume the qualitative
assessment for any reporting unit or Brand in any subsequent period.
Under a qualitative approach, our impairment review for goodwill consists of an assessment of whether it is more-likely-than-not that a reporting unit’s fair
value is less than its carrying amount. If we elect to bypass the qualitative assessment for any reporting unit, or if a qualitative assessment indicates it is more-
likely-than-not that the estimated carrying value of a reporting unit exceeds its fair value, we perform a quantitative goodwill impairment test that requires us to
estimate the fair value of the reporting unit. If the fair value of the reporting unit is less than its carrying amount, we will measure any goodwill impairment loss as
the amount by which the carrying amount of a reporting unit exceeds its fair value, not to exceed the total amount of goodwill allocated to that reporting unit.
Under a qualitative approach, our impairment review for the Brands consists of an assessment of whether it is more-likely-than-not that a Brand’s fair value
is less than its carrying amount. If we elect to bypass the qualitative assessment for a Brand, or if a qualitative assessment indicates it is more-likely-than-not that
the estimated carrying value of a Brand exceeds its fair value, we estimate the fair value of the Brand and compare it to its carrying amount. If the carrying amount
exceeds fair value, an impairment loss is recognized in an amount equal to that excess.
We completed our impairment tests for goodwill and the Brands as of October 1, 2020, 2019 and 2018 and no impairment resulted.
Long-Lived Assets
Long-lived assets, such as property and equipment, intangible assets subject to amortization and lease right-of-use assets, are tested for impairment whenever
events or changes in circumstances indicate that the carrying amount of the asset or asset group may not be recoverable. Some of the events or changes in
circumstances that would trigger an impairment review include, but are not limited to, bankruptcy proceedings or other significant financial distress of a lessee;
significant negative industry or economic trends; knowledge of transactions involving the sale of similar property at amounts below the carrying value; or our
expectation to dispose of long-lived assets before the end of their estimated useful lives. The impairment test for long-lived assets requires us to assess the
recoverability of long-lived assets by comparing their net carrying value to the sum of undiscounted estimated future cash flows directly associated with and arising
from use and eventual disposition of the assets or asset group. Long-lived assets are grouped for recognition and measurement of impairment at the lowest level for
which identifiable cash flows are largely independent of the cash flows of other assets. If the net carrying value of a group of long-lived assets exceeds the sum of
related undiscounted estimated future cash flows, we record an impairment charge equal to the excess, if any, of the net carrying value over fair value.
Other Comprehensive Income (Loss)
Other comprehensive income (loss) (“OCI”) refers to revenues, expenses, gains and losses that are included in comprehensive income (loss), but are
excluded from net income (loss) as these amounts are recorded directly as an adjustment to shareholders’ equity, net of tax. Our other comprehensive income (loss)
is primarily comprised of unrealized gains and losses on foreign currency translation adjustments and unrealized gains and losses on hedging activity, net of tax.
Derivative Financial Instruments
We recognize and measure all derivative instruments as either assets or liabilities at fair value in the consolidated balance sheets. We may enter into
derivatives that are not designated as hedging instruments for accounting purposes, but which largely offset the economic impact of certain transactions.
Gains or losses resulting from changes in the fair value of derivatives are recognized in earnings or recorded in other comprehensive income (loss) and
recognized in the consolidated statements of operations when the hedged item affects earnings, depending on the purpose of the derivatives and whether they
qualify for, and we have applied, hedge accounting treatment.
When applying hedge accounting, we designate at a derivative’s inception, the specific assets, liabilities or future commitments being hedged, and assess the
hedge’s effectiveness at inception and on an ongoing basis. We discontinue hedge accounting when: (i) we determine that the cash flow derivative is no longer
effective in offsetting changes in the cash flows of a hedged item; (ii) the derivative expires or is sold, terminated or exercised; (iii) it is no longer probable that the
forecasted transaction will occur; or
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(iv) management determines that designation of the derivatives as a hedge instrument is no longer appropriate. We do not enter into or hold derivatives for
speculative purposes.
Disclosures about Fair Value
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants in
the principal market, or if none exists, the most advantageous market, for the specific asset or liability at the measurement date (the exit price). The fair value is
based on assumptions that market participants would use when pricing the asset or liability. The fair values are assigned a level within the fair value hierarchy,
depending on the source of the inputs into the calculation, as follows:
Level 1 Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets.
Level 2 Inputs other than quoted prices included in Level 1 that are observable for the asset or liability either directly or indirectly.
Level 3 Unobservable inputs reflecting management’s own assumptions about the inputs used in pricing the asset or liability.
The carrying amounts for cash and cash equivalents, accounts and notes receivable and accounts and drafts payable approximate fair value based on the
short-term nature of these amounts.
We carry all of our derivatives at fair value and value them using various pricing models or discounted cash flow analysis that incorporate observable market
parameters, such as interest rate yield curves and currency rates, which are Level 2 inputs. Derivative valuations incorporate credit risk adjustments that are
necessary to reflect the probability of default by the counterparty or us. For disclosures about the fair value measurements of our derivative instruments, see Note
11, Derivative Instruments.
The following table presents the fair value of our variable rate term debt and senior notes, estimated using inputs based on bid and offer prices that are
Level 2 inputs, and principal carrying amount (in millions):
Fair value of our variable term debt and senior notes
Principal carrying amount of our variable term debt and senior notes
As of December 31,
2020
2019
$
12,477 $
12,453
12,075
11,900
The determination of fair values of our reporting units and the determination of the fair value of the Brands for impairment testing using a quantitative
approach during 2020, 2019 and 2018 were based upon Level 3 inputs.
Revenue Recognition
Sales
Sales consist primarily of supply chain sales, which represent sales of products, supplies and restaurant equipment to franchisees, as well as sales to retailers
and are presented net of any related sales tax. Orders placed by customers specify the goods to be delivered and transaction prices for supply chain sales. Revenue
is recognized upon transfer of control over ordered items, generally upon delivery to the customer, which is when the customer obtains physical possession of the
goods, legal title is transferred, the customer has all risks and rewards of ownership and an obligation to pay for the goods is created. Shipping and handling costs
associated with outbound freight for supply chain sales are accounted for as fulfillment costs and classified as cost of sales.
To a much lesser extent, sales also include Company restaurant sales (including Restaurant VIEs), which consist of sales to restaurant guests. Revenue from
Company restaurant sales is recognized at the point of sale. Taxes assessed by a governmental authority that we collect are excluded from revenue.
Franchise revenues
Franchise revenues consist primarily of royalties, advertising fund contributions, initial and renewal franchise fees and upfront fees from development
agreements and master franchise and development agreements (“MFDAs”). Under franchise agreements, we provide franchisees with (i) a franchise license, which
includes a license to use our intellectual property and, in those markets where our subsidiaries manage an advertising fund, advertising and promotion management,
(ii) pre-opening services, such as training and inspections, and (iii) ongoing services, such as development of training materials and menu items and restaurant
monitoring and inspections. The services we provide under franchise agreements are highly interrelated and dependent upon the franchise license and we
concluded the services do not represent individually distinct performance obligations. Consequently, we bundle the franchise
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license performance obligation and promises to provide services into a single performance obligation, which we satisfy by providing a right to use our intellectual
property over the term of each franchise agreement.
Royalties, including franchisee contributions to advertising funds managed by our subsidiaries, are calculated as a percentage of franchise restaurant sales
over the term of the franchise agreement. Under our franchise agreements, advertising contributions paid by franchisees must be spent on advertising, product
development, marketing and related activities. Initial and renewal franchise fees are payable by the franchisee upon a new restaurant opening or renewal of an
existing franchise agreement. Our franchise agreement royalties, inclusive of advertising fund contributions, represent sales-based royalties that are related entirely
to our performance obligation under the franchise agreement and are recognized as franchise sales occur. Additionally, initial and renewal franchise fees are
recognized as revenue on a straight-line basis over the term of the respective agreement. Our performance obligation under development agreements other than
MFDAs generally consists of an obligation to grant exclusive development rights over a stated term. These development rights are not distinct from franchise
agreements, so upfront fees paid by franchisees for exclusive development rights are deferred and apportioned to each franchise restaurant opened by the
franchisee. The pro rata amount apportioned to each restaurant is accounted for as an initial franchise fee.
We have a distinct performance obligation under our MFDAs to grant subfranchising rights over a stated term. Under the terms of MFDAs, we typically
either receive an upfront fee paid in cash and/or receive noncash consideration in the form of an equity interest in the master franchisee or an affiliate of the master
franchisee. We account for noncash consideration as investments in the applicable equity method investee and recognize revenue in an amount equal to the fair
value of the equity interest received. Upfront fees from master franchisees, including the fair value of noncash consideration, are deferred and amortized over the
MFDA term on a straight-line basis. We may recognize unamortized upfront fees when a contract with a franchisee or master franchisee is modified and is
accounted for as a termination of the existing contract.
The portion of gift cards sold to customers which are never redeemed is commonly referred to as gift card breakage. We recognize gift card breakage income
proportionately as each gift card is redeemed using an estimated breakage rate based on our historical experience.
Property revenues
Property revenues consists of rental income from properties we lease or sublease to franchisees. Property revenues are accounted for in accordance with
applicable accounting guidance for leases and are excluded from the scope of revenue recognition guidance.
Advertising and Promotional Costs
Company restaurants and franchise restaurants contribute to advertising funds that our subsidiaries manage in the United States and Canada and certain other
international markets. The advertising funds expense the production costs of advertising when the advertisements are first aired or displayed. All other advertising
and promotional costs are expensed in the period incurred. Under our franchise agreements, advertising contributions received from franchisees must be spent on
advertising, product development, marketing and related activities. Advertising contributions received from franchisees are included in franchise and property
revenues and advertising expenses are included as selling, general and administrative expenses. Advertising expenses included in selling, general and
administrative expenses totaled $857 million for 2020, $858 million for 2019 and $793 million for 2018. The advertising contributions by Company restaurants
(including Restaurant VIEs) are eliminated in consolidation.
Deferred Financing Costs
Deferred financing costs are amortized over the term of the related debt agreement into interest expense using the effective interest method.
Income Taxes
Amounts in the Financial Statements related to income taxes are calculated using the principles of ASC Topic 740, Income Taxes. Under these principles,
deferred tax assets and liabilities reflect the impact of temporary differences between the amounts of assets and liabilities recognized for financial reporting
purposes and the amounts recognized for tax purposes, as well as tax credit carry-forwards and loss carry-forwards. These deferred taxes are measured by applying
currently enacted tax rates. A deferred tax asset is recognized when it is considered more-likely-than-not to be realized. The effects of changes in tax rates on
deferred tax assets and liabilities are recognized in income in the year in which the law is enacted. A valuation allowance reduces deferred tax assets when it is
more-likely-than-not that some portion or all of the deferred tax assets will not be realized.
We recognize positions taken or expected to be taken in a tax return in the Financial Statements when it is more-likely-than-not (i.e., a likelihood of more
than 50%) that the position would be sustained upon examination by tax authorities. A recognized tax position is then measured at the largest amount of benefit
with greater than 50% likelihood of being realized upon ultimate settlement.
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Translation gains and losses resulting from the remeasurement of foreign deferred tax assets or liabilities denominated in a currency other than the functional
currency are classified as other operating expenses (income), net in the consolidated statements of operations.
Share-based Compensation
Compensation expense related to the issuance of share-based awards to our employees is measured at fair value on the grant date. We use the Black-Scholes
option pricing model to value stock options. The compensation expense for awards that vest over a future service period is recognized over the requisite service
period on a straight-line basis, adjusted for estimated forfeitures of awards that are not expected to vest. We use historical data to estimate forfeitures for share-
based awards. Upon the end of the service period, compensation expense is adjusted to account for the actual forfeiture rate. The compensation expense for awards
that contain performance conditions is recognized when it is probable that the performance conditions will be achieved.
New Accounting Pronouncements
Credit Losses – In June 2016, the FASB issued guidance that requires companies to measure and recognize lifetime expected credit losses for certain
financial instruments, including trade accounts receivable and net investments in direct financing and sales-type leases. Expected credit losses are estimated using
relevant information about past events, including historical experience, current conditions, and reasonable and supportable forecasts that affect the collectability of
the reported amount. This amendment was effective commencing in 2020, using a modified retrospective approach. The adoption of this new guidance did not have
a material impact on our Financial Statements.
Simplifying the Accounting for Income Taxes – In December 2019, the FASB issued guidance which simplifies the accounting for income taxes by removing
certain exceptions and by clarifying and amending existing guidance applicable to accounting for income taxes. The amendment is effective commencing in 2021
with early adoption permitted. We do not anticipate the adoption of this new guidance will have a material impact on our Financial Statements.
Accounting Relief for the Transition Away from LIBOR and Certain other Reference Rates – In March 2020 and as clarified in January 2021, the FASB
issued guidance which provides optional expedients and exceptions for applying U.S. GAAP to contracts, hedging relationships, and other transactions that
reference LIBOR or another reference rate expected to be discontinued because of reference rate reform. This amendment is effective as of March 12, 2020 through
December 31, 2022. The expedients and exceptions provided by this new guidance do not apply to contract modifications made and hedging relationships entered
into or evaluated after December 31, 2022, except for hedging relationships existing as of December 31, 2022, that an entity has elected certain optional expedients
for and that are retained through the end of the hedging relationships. We are currently evaluating the impact that the adoption of this new guidance will have on
our Financial Statements and have not adopted any of the transition relief available under the new guidance as of December 31, 2020.
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Note 3. Earnings per Share
An economic interest in Partnership common equity is held by the holders of Class B exchangeable limited partnership units (the “Partnership exchangeable
units”), which is reflected as a noncontrolling interest in our equity. See Note 12, Shareholders’ Equity.
Basic and diluted earnings per share is computed using the weighted average number of shares outstanding for the period. We apply the treasury stock
method to determine the dilutive weighted average common shares represented by outstanding equity awards, unless the effect of their inclusion is anti-dilutive.
The diluted earnings per share calculation assumes conversion of 100% of the Partnership exchangeable units under the “if converted” method. Accordingly, the
numerator is also adjusted to include the earnings allocated to the holders of noncontrolling interests.
The following table summarizes the basic and diluted earnings per share calculations (in millions, except per share amounts):
2020
2019
2018
Numerator:
Net income attributable to common shareholders - basic
Add: Net income attributable to noncontrolling interests
Net income available to common shareholders and noncontrolling interests - diluted
Denominator:
Weighted average common shares - basic
Exchange of noncontrolling interests for common shares (Note 12)
Effect of other dilutive securities
Weighted average common shares - diluted
Basic earnings per share (a)
Diluted earnings per share (a)
Anti-dilutive securities outstanding
(a) Earnings per share may not recalculate exactly as it is calculated based on unrounded numbers.
Note 4. Property and Equipment, net
Property and equipment, net, consist of the following (in millions):
$
$
$
$
486 $
262
748 $
643 $
466
1,109 $
302
162
4
468
1.61 $
1.60 $
6
268
194
7
469
2.40 $
2.37 $
3
Land
Buildings and improvements
Restaurant equipment
Furniture, fixtures, and other
Finance leases
Construction in progress
Accumulated depreciation and amortization
Property and equipment, net
As of December 31,
2020
2019
$
$
1,007 $
1,192
163
242
289
17
2,910
(879)
2,031 $
612
531
1,143
249
216
8
473
2.46
2.42
3
1,006
1,148
109
210
245
35
2,753
(746)
2,007
Depreciation and amortization expense on property and equipment totaled $140 million for 2020, $136 million for 2019 and $148 million for 2018.
Included in our property and equipment, net at December 31, 2020 and 2019 are $238 million and $222 million, respectively, of assets leased under finance
leases (mostly buildings and improvements), net of accumulated depreciation and amortization of $51 million and $23 million, respectively.
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Note 5. Intangible Assets, net and Goodwill
Intangible assets, net and goodwill consist of the following (in millions):
2020
Accumulated
Amortization
Gross
As of December 31,
Net
Gross
2019
Accumulated
Amortization
Identifiable assets subject to amortization:
Franchise agreements
Favorable leases
Subtotal
Indefinite-lived intangible assets:
Tim Hortons brand
Burger King brand
Popeyes brand
Subtotal
Intangible assets, net
Goodwill
Tim Hortons segment
Burger King segment
Popeyes segment
Total
$
$
$
$
735 $
117
852
6,650 $
2,174
1,355
10,179
4,279
614
846
5,739
(264)
(66)
(330)
—
—
—
—
$
$
$
471 $
51
522
6,650 $
2,174
1,355
10,179
10,701
720 $
127
847
6,534 $
2,117
1,355
10,006
(225)
(65)
(290)
—
—
—
—
$
$
$
$
$
4,207
598
846
5,651
Net
495
62
557
6,534
2,117
1,355
10,006
10,563
Amortization expense on intangible assets totaled $43 million for 2020, $44 million for 2019, and $70 million for 2018. The change in the brands and
goodwill balances during 2020 was due to the impact of foreign currency translation.
As of December 31, 2020, the estimated future amortization expense on identifiable assets subject to amortization is as follows (in millions):
Twelve-months ended December 31,
2021
2022
2023
2024
2025
Thereafter
Total
Amount
41
40
38
37
35
331
522
$
$
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Note 6. Equity Method Investments
The aggregate carrying amount of our equity method investments was $205 million and $266 million as of December 31, 2020 and 2019, respectively, and is
included as a component of Other assets, net in our consolidated balance sheets. TH and BK both have equity method investments. PLK did not have any equity
method investments as of December 31, 2020 and 2019.
With respect to our TH business, the most significant equity method investment is our 50.0% joint venture interest with The Wendy’s Company (the
“TIMWEN Partnership”), which jointly holds real estate underlying Canadian combination restaurants. Distributions received from this joint venture were $8
million, $13 million and $13 million during 2020, 2019 and 2018, respectively.
Except for the following equity method investments, no quoted market prices are available for our other equity method investments. The aggregate market
value of our 15.3% equity interest in Carrols Restaurant Group, Inc. (“Carrols”) based on the quoted market price on December 31, 2020 is approximately $59
million. The aggregate market value of our 9.4% equity interest in BK Brasil Operação e Assessoria a Restaurantes S.A. based on the quoted market price on
December 31, 2020 is approximately $47 million. As of December 31, 2020, the fair value of these equity method investments exceeds the carrying amount.
We have equity interests in entities that own or franchise Tim Hortons or Burger King restaurants. Franchise and property revenue recognized from
franchisees that are owned or franchised by entities in which we have an equity interest consist of the following (in millions):
Revenues from affiliates:
Royalties
Property revenues
Franchise fees and other revenue
Total
2020
2019
2018
$
$
289 $
32
14
335 $
345 $
33
10
388 $
310
36
11
357
We recognized rent expense associated with the TIMWEN Partnership of $15 million, $19 million, and $20 million during 2020, 2019 and 2018,
respectively.
At December 31, 2020 and 2019, we had $52 million and $47 million, respectively, of accounts receivable, net from our equity method investments which
were recorded in accounts and notes receivable, net in our consolidated balance sheets.
(Income) loss from equity method investments reflects our share of investee net income or loss, non-cash dilution gains or losses from changes in our
ownership interests in equity method investees and basis difference amortization. We recorded increases to the carrying value of our equity method investment
balances and non-cash dilution gains in the amounts of $11 million and $20 million during 2019 and 2018, respectively. No non-cash dilution gains were recorded
during 2020. The dilution gains resulted from the issuance of capital stock by our equity method investees, which reduced our ownership interests in these equity
method investments. The dilution gains we recorded in connection with the issuance of capital stock reflect adjustments to the differences between the amount of
underlying equity in the net assets of equity method investees before and after their issuance of capital stock.
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Note 7. Other Accrued Liabilities and Other Liabilities
Other accrued liabilities (current) and other liabilities, net (non-current) consist of the following (in millions):
Current:
Dividend payable
Interest payable
Accrued compensation and benefits
Taxes payable
Deferred income
Accrued advertising expenses
Restructuring and other provisions
Current portion of operating lease liabilities
Other
Other accrued liabilities
Non-current:
Taxes payable
Contract liabilities (see Note 14)
Derivatives liabilities
Unfavorable leases
Accrued pension
Deferred income
Other
Other liabilities, net
74
As of December 31,
2020
2019
$
$
$
$
239 $
66
78
122
42
59
12
137
80
835 $
626 $
528
865
81
70
28
38
2,236 $
232
71
57
126
35
40
8
126
95
790
579
541
341
103
65
25
44
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Note 8. Long-Term Debt
Long-term debt consist of the following (in millions):
Term Loan B (due November 19, 2026)
Term Loan A (due October 7, 2024)
2017 4.25% Senior Notes (due May 15, 2024)
2019 3.875% Senior Notes (due January 15, 2028)
2020 5.75% Senior Notes (due April 15, 2025)
2020 3.50% Senior Notes (due February 15, 2029)
2017 5.00% Senior Notes (due October 15, 2025)
2019 4.375% Senior Notes (due January 15, 2028)
2020 4.00% Senior Notes (due October 15, 2030)
TH Facility and other
Less: unamortized deferred financing costs and deferred issuance discount
Total debt, net
Less: current maturities of debt
Total long-term debt
Credit Facilities
As of December 31,
2020
2019
5,297 $
731
775
750
500
750
—
750
2,900
178
(155)
12,476
(79)
12,397 $
5,350
750
1,500
750
—
—
2,800
750
—
81
(148)
11,833
(74)
11,759
$
$
On September 6, 2019, two of our subsidiaries (the "Borrowers") entered into a fourth incremental facility amendment (the "Fourth Incremental
Amendment") to the credit agreement governing our senior secured term loan facilities (the "Term Loan Facilities") and our senior secured revolving credit facility
(including revolving loans, swingline loans and letters of credit) (the "Revolving Credit Facility" and together with the Term Loan Facilities, the "Credit
Facilities"). Under the Fourth Incremental Amendment, (i) we obtained a new term loan in the aggregate principal amount of $750 million (the "Term Loan A")
with a maturity date of October 7, 2024 (subject to earlier maturity in specified circumstances), (ii) the interest rate applicable to the Term Loan A and Revolving
Credit Facility is, at our option, either (a) a base rate, subject to a floor of 1.00%, plus an applicable margin varying from 0.00% to 0.50%, or (b) a Eurocurrency
rate, subject to a floor of 0.00%, plus an applicable margin varying between 0.75% and 1.50%, in each case, determined by reference to a net first lien leverage
based pricing grid, (iii) the aggregate principal amount of the commitments under our Revolving Credit Facility was increased to $1,000 million, (iv) the maturity
date of the Revolving Credit Facility was extended from October 13, 2022 to October 7, 2024 (subject to earlier maturity in specified circumstances), and (v) the
commitment fee on the unused portion of the Revolving Credit Facility was decreased from 0.25% to 0.15%. At December 31, 2020, the interest rate on the Term
Loan A was 1.40%. The principal amount of the Term Loan A amortizes in quarterly installments equal to $5 million until October 7, 2022 and thereafter in
quarterly installments equal to $9 million until maturity, with the balance payable at maturity. The Term Loan A will require compliance with a net first lien
leverage ratio (described below). Except as described herein, the Fourth Incremental Amendment did not materially change the terms of the Credit Facilities. In
connection with the Fourth Incremental Amendment, we capitalized approximately $7 million in debt issuance costs.
Our Credit Facilities also include a senior secured term loan B facility (the "Term Loan B"). In September 2019, we voluntarily prepaid $235 million
principal amount of our Term Loan B and, in connection with this prepayment, we recorded a loss on early extinguishment of debt of $4 million that primarily
reflects the write-off of related unamortized debt issuance costs and discounts.
On November 19, 2019, the Borrowers entered into a fourth amendment (the "Fourth Amendment") to the credit agreement governing our Credit Facilities.
Under the Fourth Amendment, (i) the outstanding aggregate principal amount under our Term Loan B was decreased to $5,350 million as a result of a repayment of
$720 million from a portion of the net proceeds of the 2019 4.375% Senior Notes (defined below), (ii) the interest rate applicable to our Term Loan B was reduced
to, at our option, either (a) a base rate, subject to a floor of 1.00%, plus an applicable margin of 0.75%, or (b) a Eurocurrency rate, subject to a floor of 0.00%, plus
an applicable margin of 1.75%, and (iii) the maturity date of our Term Loan B was extended from February 17, 2024 to November 19, 2026. At December 31,
2020, the interest rate on the Term Loan B was 1.90%. The principal amount of the Term Loan B amortizes in quarterly installments equal to $13 million until
maturity, with the balance payable at maturity. Except as described herein, the Fourth Amendment did not materially change the terms of the Credit Facilities.
In connection with the Fourth Amendment, we capitalized approximately $24 million in debt issuance costs and original issue discount and recorded a loss
on early extinguishment of debt of $16 million that primarily reflects the write-off of related unamortized debt issuance costs and discounts and fees incurred.
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On April 2, 2020, the Borrowers entered into a fifth amendment (the “Fifth Amendment”) to the credit agreement governing our Credit Facilities. The Fifth
Amendment provides the Borrowers with the option to comply with a $1,000 million minimum liquidity covenant in lieu of the 6.50:1.00 net first lien senior
secured leverage ratio financial maintenance covenant for the period after June 30, 2020 and prior to September 30, 2021. Additionally, for the periods ending
September 30, 2021 and December 31, 2021, to determine compliance with the net first lien senior secured leverage ratio, we are permitted to annualize the
Adjusted EBITDA (as defined in the Credit Agreement) for the three months ending September 30, 2021 and six months ending December 31, 2021, respectively,
in lieu of calculating the ratio based on Adjusted EBITDA for the prior four quarters. There were no other material changes to the terms of the Credit Agreement.
Revolving Credit Facility
As of December 31, 2020, we had no amounts outstanding under our Revolving Credit Facility. Funds available under the Revolving Credit Facility may be
used to repay other debt, finance debt or share repurchases, to fund acquisitions or capital expenditures and for other general corporate purposes. We have a $125
million letter of credit sublimit as part of the Revolving Credit Facility, which reduces our borrowing availability thereunder by the cumulative amount of
outstanding letters of credit. Under the Fourth Incremental Amendment, the interest rate applicable to amounts drawn under each letter of credit decreased from a
range of 1.25% to 2.00% to a range of 0.75% to 1.50%, depending on our net first lien leverage ratio. As of December 31, 2020, we had $2 million of letters of
credit issued against the Revolving Credit Facility, and our borrowing availability was $998 million.
Obligations under the Credit Facilities are guaranteed on a senior secured basis, jointly and severally, by the direct parent company of one of the Borrowers
and substantially all of its Canadian and U.S. subsidiaries, including The TDL Group Corp., Burger King Corporation, Popeyes Louisiana Kitchen, Inc. and
substantially all of their respective Canadian and U.S. subsidiaries (the “Credit Guarantors”). Amounts borrowed under the Credit Facilities are secured on a first
priority basis by a perfected security interest in substantially all of the present and future property (subject to certain exceptions) of each Borrower and Credit
Guarantor.
2017 4.25% First Lien Senior Notes
During 2017, the Borrowers entered into an indenture (the “2017 4.25% Senior Notes Indenture”) in connection with the issuance of $1,500 million of 4.25%
first lien senior notes due May 15, 2024 (the “2017 4.25% Senior Notes”). No principal payments are due until maturity and interest is paid semi-annually. The net
proceeds from the offering of the 2017 4.25% Senior Notes, together with other sources of liquidity, were used to redeem all of the outstanding Class A 9.0%
cumulative compounding perpetual voting preferred shares and for other general corporate purposes. In connection with the issuance of the 2017 4.25% Senior
Notes, we capitalized approximately $13 million in debt issuance costs. As detailed below, during 2020 we redeemed $725 million of the 2017 4.25% Senior
Notes.
Obligations under the 2017 4.25% Senior Notes are guaranteed on a senior secured basis, jointly and severally, by the Borrowers and substantially all of the
Borrowers' Canadian and U.S. subsidiaries, including The TDL Group Corp., Burger King Corporation, Popeyes Louisiana Kitchen, Inc. and substantially all of
their respective Canadian and U.S. subsidiaries (the “Note Guarantors”). The 2017 4.25% Senior Notes are first lien senior secured obligations and rank equal in
right of payment with all of the existing and future senior debt of the Borrowers and Note Guarantors, including borrowings and guarantees of the Credit Facilities.
Our 2017 4.25% Senior Notes may be redeemed in whole or in part, on or after May 15, 2020 at the redemption prices set forth in the 2017 4.25% Senior
Notes Indenture, plus accrued and unpaid interest, if any, at the date of redemption. The 2017 4.25% Senior Notes Indenture also contains redemption provisions
related to tender offers, change of control and equity offerings, among others.
2019 3.875% First Lien Senior Notes
On September 24, 2019, the Borrowers entered into an indenture (the "2019 3.875% Senior Notes Indenture") in connection with the issuance of $750
million of 3.875% first lien senior notes due January 15, 2028 (the "2019 3.875% Senior Notes"). No principal payments are due until maturity and interest is paid
semi-annually. The net proceeds from the offering of the 2019 3.875% Senior Notes and a portion of the net proceeds from the Term Loan A were used to redeem
the entire outstanding principal balance of $1,250 million of 4.625% first lien secured notes due January 15, 2022 (the "2015 4.625% Senior Notes") and to pay
related fees and expenses. In connection with the issuance of the 2019 3.875% Senior Notes, we capitalized approximately $10 million in debt issuance costs. In
connection with the redemption of the entire outstanding principal balance of the 2015 4.625% Senior Notes, we recorded a loss on early extinguishment of debt of
$3 million that primarily reflects the write-off of related unamortized debt issuance costs.
Obligations under the 2019 3.875% Senior Notes are guaranteed on a senior secured basis, jointly and severally, by the Note Guarantors. The 2019 3.875%
Senior Notes are first lien senior secured obligations and rank equal in right of payment with all of the existing and future first lien senior debt of the Borrowers
and Note Guarantors, including borrowings and guarantees of the Credit Facilities.
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Our 2019 3.875% Senior Notes may be redeemed in whole or in part, on or after September 15, 2022 at the redemption prices set forth in the 2019 3.875%
Senior Notes Indenture, plus accrued and unpaid interest, if any, at the date of redemption. The 2019 3.875% Senior Notes Indenture also contains redemption
provisions related to tender offers, change of control and equity offerings, among others.
2020 5.75% First Lien Senior Notes
On April 7, 2020, the Borrowers entered into an indenture (the “2020 5.75% Senior Notes Indenture”) in connection with the issuance of $500 million of
5.75% first lien notes due April 15, 2025 (the “2020 5.75% Senior Notes”). No principal payments are due until maturity and interest is paid semi-annually. The net
proceeds from the offering of the 2020 5.75% Senior Notes were used for general corporate purposes. In connection with the issuance of the 2020 5.75% Senior
Notes, we capitalized approximately $10 million in debt issuance costs.
Obligations under the 2020 5.75% Senior Notes are guaranteed on a senior secured basis, jointly and severally, by the Note Guarantors. The 2020 5.75%
Senior Notes are first lien senior secured obligations and rank equal in right of payment with all of the existing and future first lien senior debt of the Borrowers
and Note Guarantors, including borrowings and guarantees of the Credit Facilities.
Our 2020 5.75% Senior Notes may be redeemed in whole or in part, on or after April 15, 2022 at the redemption prices set forth in the 2020 5.75% Senior
Notes Indenture, plus accrued and unpaid interest, if any, at the date of redemption. The 2020 5.75% Senior Notes Indenture also contains optional redemption
provisions related to tender offers, change of control and equity offerings, among others.
2020 3.50% First Lien Senior Notes
On November 9, 2020, the Borrowers entered into an indenture (the “2020 3.50% Senior Notes Indenture”) in connection with the issuance of $750 million
of 3.50% first lien notes due February 15, 2029 (the “2020 3.50% Senior Notes”). No principal payments are due until maturity and interest is paid semi-annually.
The proceeds from the offering of the 2020 3.50% Senior Notes, together with cash on hand, were used to redeem $725 million of the 2017 4.25% Senior Notes
and pay related redemption premiums, fees and expenses. In connection with the issuance of the 2020 3.50% Senior Notes, we capitalized approximately $7
million in debt issuance costs. In connection with the redemption of the 2017 4.25% Senior Notes, we recorded a loss on early extinguishment of debt of $19
million that primarily reflects the payment of premiums to redeem the notes and the write-off of unamortized debt issuance costs.
Obligations under the 2020 3.50% Senior Notes are guaranteed on a senior secured basis, jointly and severally, by the Note Guarantors. The 2020 3.50%
Senior Notes are first lien senior secured obligations and rank equal in right of payment with all of the existing and future first lien senior debt of the Borrowers
and Note Guarantors, including borrowings and guarantees of the Credit Facilities.
Our 2020 3.50% Senior Notes may be redeemed in whole or in part, on or after February 15, 2024 at the redemption prices set forth in the 2020 3.50%
Senior Notes Indenture, plus accrued and unpaid interest, if any, at the date of redemption. The 2020 3.50% Senior Notes Indenture also contains optional
redemption provisions related to tender offers, change of control and equity offerings, among others.
2017 5.00% Second Lien Senior Notes
During 2017, the Borrowers entered into an indenture (the “2017 5.00% Senior Notes Indenture”) in connection with the issuance of $2,800 million of 5.00%
second lien senior notes due October 15, 2025 (the “2017 5.00% Senior Notes”). During 2020, we redeemed the entire outstanding principal balance of $2,800
million of the 2017 5.00% Senior Notes using proceeds from the offering of the 2020 4.00% Senior Notes (defined below).
2019 4.375% Second Lien Senior Notes
On November 19, 2019, the Borrowers entered into an indenture (the “2019 4.375% Senior Notes Indenture”) in connection with the issuance of $750
million of 4.375% second lien senior notes due January 15, 2028 (the “2019 4.375% Senior Notes”). No principal payments are due until maturity and interest is
paid semi-annually. The net proceeds from the offering of the 2019 4.375% Senior Notes, together with cash on hand, were used to repay $720 million of the Term
Loan B outstanding aggregate principal balance and to pay related fees and expenses in connection with the Fourth Amendment. In connection with the issuance of
the 2019 4.375% Senior Notes, we capitalized approximately $6 million in debt issuance costs.
Obligations under the 2019 4.375% Senior Notes are guaranteed on a second priority senior secured basis, jointly and severally, by the Note Guarantors. The
2019 4.375% Senior Notes are second lien senior secured obligations and rank equal in right of payment with all of the existing and future senior debt of the
Borrowers and Note Guarantors, including borrowings and guarantees of the
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Credit Facilities, and effectively subordinated to all of the existing and future first lien senior debt of the Borrowers and Note Guarantors.
Our 2019 4.375% Senior Notes may be redeemed in whole or in part, on or after November 15, 2022 at the redemption prices set forth in the 2019 4.375%
Senior Notes Indenture, plus accrued and unpaid interest, if any, at the date of redemption. The 2019 4.375% Senior Notes Indenture also contains redemption
provisions related to tender offers, change of control and equity offerings, among others.
2020 4.00% Second Lien Senior Notes
During 2020, the Borrowers entered into an indenture (the “2020 4.00% Senior Notes Indenture”) in connection with the issuance of $2,900 million of 4.00%
second lien notes due October 15, 2030 (the “2020 4.00% Senior Notes”). No principal payments are due until maturity and interest is paid semi-annually. The
proceeds from the offering of the 2020 4.00% Senior Notes were used to redeem the entire outstanding principal balance of $2,800 million of the 2017 5.00%
Senior Notes, pay related redemption premiums, fees and expenses. In connection with the issuance of the 2020 4.00% Senior Notes, we capitalized approximately
$26 million in debt issuance costs. In connection with the full redemption of the 2017 5.00% Senior Notes, we recorded a loss on early extinguishment of debt of
$79 million that primarily reflects the payment of premiums to redeem the notes and the write-off of unamortized debt issuance costs.
Obligations under the 2020 4.00% Senior Notes are guaranteed on a second priority senior secured basis, jointly and severally, by the Note Guarantors. The
2020 4.00% Senior Notes are second lien senior secured obligations and rank equal in right of payment will all of the existing and future senior debt of the
Borrowers and Note Guarantors and effectively subordinated to all of the existing and future first lien senior debt of the Borrowers and Note Guarantors.
Our 2020 4.00% Senior Notes may be redeemed in whole or in part, on or after October 15, 2025 at the redemption prices set forth in the 2020 4.00% Senior
Notes Indenture, plus accrued and unpaid interest, if any, at the date of redemption. The 2020 4.00% Senior Notes Indenture also contains optional redemption
provisions related to tender offers, change of control and equity offerings, among others.
Restrictions and Covenants
Our Credit Facilities, as well as the 2017 4.25% Senior Notes Indenture, 2019 3.875% Senior Notes Indenture, 2020 5.75% Senior Notes Indenture, 2020
3.50% Senior Notes Indenture, 2019 4.375% Senior Notes Indenture and 2020 4.00% Senior Notes Indenture (all together the “Senior Notes Indentures”) contain a
number of customary affirmative and negative covenants that, among other things, limit or restrict our ability and the ability of certain of our subsidiaries to: incur
additional indebtedness; incur liens; engage in mergers, consolidations, liquidations and dissolutions; sell assets; pay dividends and make other payments in respect
of capital stock; make investments, loans and advances; pay or modify the terms of certain indebtedness; and engage in certain transactions with affiliates. In
addition, under the Credit Facilities, the Borrowers are not permitted to exceed a first lien senior secured leverage ratio of 6.50 to 1.00 when, as of the end of any
fiscal quarter beginning with the first fiscal quarter of 2020, (1) any amounts are outstanding under the Term Loan A and/or (2) the sum of (i) the amount of letters
of credit outstanding exceeding $50 million (other than those that are cash collateralized); (ii) outstanding amounts under the Revolving Credit Facility and
(iii) outstanding amounts of swing line loans, exceeds 30.0% of the commitments under the Revolving Credit Facility. As indicated above, the Fifth Amendment
provides the Borrowers with the option to comply with a $1,000 million minimum liquidity covenant in lieu of the 6.50:1.00 net first lien senior secured leverage
ratio financial maintenance covenant for the period after June 30, 2020 and prior to September 30, 2021.
The restrictions under the Credit Facilities and the Senior Notes Indentures have resulted in substantially all of our consolidated assets being restricted.
As of December 31, 2020, we were in compliance with applicable financial debt covenants under the Credit Facilities and the Senior Notes Indentures and
there were no limitations on our ability to draw on the remaining availability under our Revolving Credit Facility.
TH Facility
One of our subsidiaries entered into a non-revolving delayed drawdown term credit facility in a total aggregate principal amount of C$225 million with a
maturity date of October 4, 2025 (the “TH Facility”). The interest rate applicable to the TH Facility is the Canadian Bankers’ Acceptance rate plus an applicable
margin equal to 1.40% or the Prime Rate plus an applicable margin equal to 0.40%, at our option. Obligations under the TH Facility are guaranteed by four of our
subsidiaries, and amounts borrowed under the TH Facility are secured by certain parcels of real estate. During 2020, we drew down the remaining availability of
C$125 million under the TH Facility and, as of December 31, 2020, we had outstanding C$222 million under the TH Facility with a weighted average interest rate
of 1.86%.
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Debt Issuance Costs
During 2020 and 2019, we incurred aggregate deferred financing costs of $43 million and $50 million, respectively. No significant deferred financing costs
were incurred in 2018.
Loss on Early Extinguishment of Debt
During 2020, we recorded a $98 million loss on early extinguishment of debt that primarily reflects the payment of premiums and the write-off of
unamortized debt issuance costs in connection with the full redemption of the 2017 5.00% Senior Notes and the partial redemption of the 2017 4.25% Senior
Notes. During 2019, we recorded a $23 million loss on early extinguishment of debt, which primarily reflects the write-off of unamortized debt issuance costs and
discounts in connection with the prepayment and refinancing of the Term Loan B and the redemption of our 2015 4.625% Senior Notes.
Maturities
The aggregate maturities of our long-term debt as of December 31, 2020 are as follows (in millions):
Year Ended December 31,
2021
2022
2023
2024
2025
Thereafter
Total
Interest Expense, net
Principal Amount
79
86
102
1,499
686
10,179
12,631
$
$
Interest expense, net consists of the following (in millions):
Debt (a)
Finance lease obligations
Amortization of deferred financing costs and debt issuance discount
Interest income
Interest expense, net
2020
2019
2018
471 $
20
26
(9)
508 $
503 $
20
29
(20)
532 $
498
23
29
(15)
535
$
$
(a) Amount includes $69 million, $70 million and $60 million benefit during 2020, 2019 and 2018, respectively, related to the amortization of the Excluded
Component as defined in Note 11, Derivatives.
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Note 9. Leases
As of December 31, 2020, we leased or subleased 5,116 restaurant properties to franchisees and 171 non-restaurant properties to third parties under operating
leases, direct financing leases and sales-type leases where we are the lessor. Initial lease terms generally range from 10 to 20 years. Most leases to franchisees
provide for fixed monthly payments and many provide for future rent escalations and renewal options. Certain leases also include provisions for variable rent,
determined as a percentage of sales, generally when annual sales exceed specific levels. Lessees typically bear the cost of maintenance, insurance and property
taxes.
We lease land, buildings, equipment, office space and warehouse space from third parties. Land and building leases generally have an initial term of 10 to 20
years, while land-only lease terms can extend longer, and most leases provide for fixed monthly payments. Many of these leases provide for future rent escalations
and renewal options. Certain leases also include provisions for variable rent payments, determined as a percentage of sales, generally when annual sales exceed
specified levels. Most leases also obligate us to pay, as lessee, variable lease cost related to maintenance, insurance and property taxes.
We transitioned to ASC 842 on January 1, 2019 on a modified retrospective basis using the effective date transition method. Our transition to ASC 842
represents a change in accounting principle. The $21 million cumulative effect of our transition to ASC 842 is reflected as an adjustment to January 1, 2019
Shareholders' equity.
Company as Lessor
Assets leased to franchisees and others under operating leases where we are the lessor and which are included within our property and equipment, net are as
follows (in millions):
Land
Buildings and improvements
Restaurant equipment
Accumulated depreciation and amortization
Property and equipment leased, net
Our net investment in direct financing and sales-type leases is as follows (in millions):
Future rents to be received:
Future minimum lease receipts
Contingent rents (a)
Estimated unguaranteed residual value
Unearned income
Current portion included within accounts receivables
Net investment in property leased to franchisees
As of December 31,
2020
2019
892 $
1,146
19
2,057
(534)
1,523 $
As of December 31,
2020
2019
87 $
12
7
(34)
72
(6)
66 $
905
1,142
18
2,065
(472)
1,593
49
19
15
(26)
57
(9)
48
$
$
$
$
(a) Amounts represent estimated contingent rents recorded in connection with the acquisition method of accounting.
During 2020, we offered rent relief programs for eligible TH and BK franchisees who lease property from us, under which we temporarily converted the rent
structure from a combination of fixed plus variable rent to 100% variable rent (the “rent relief programs”). The rent relief program concluded for BK franchisees
during the three months ended September 30, 2020 and the rent relief program was extended through the end of 2021 for eligible TH franchisees.
In April 2020, the FASB staff issued interpretive guidance that permits entities to make an election to account for lease concessions related to the effects of
the COVID-19 pandemic consistent with how those concessions would be accounted for under ASC 842, as though enforceable rights and obligations for those
concessions existed. We elected to apply this interpretive guidance to the rent relief programs while in effect. As such, reductions in rents arising from the rent
relief programs are recognized as reductions in variable lease payments.
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Property revenues are comprised primarily of rental income from operating leases and earned income on direct financing leases with franchisees as follows
(in millions):
Rental income:
Minimum lease payments
Variable lease payments
Amortization of favorable and unfavorable income lease contracts, net
Subtotal - lease income from operating leases
Earned income on direct financing and sales-type leases
Total property revenues
2020
ASC 842
2019
ASC 842
2018
Previous Standard
$
$
445 $
262
6
713
5
718 $
448 $
370
7
825
8
833 $
454
273
8
735
9
744
Company as Lessee
Lease cost, rent expense and other information associated with these lease commitments is as follows (in millions):
Lease Cost (Income)
Operating lease cost
Operating lease variable lease cost
Finance lease cost:
Amortization of right-of-use assets
Interest on lease liabilities
Sublease income
Total lease cost (income)
Rent Expense
Rental expense:
Minimum
Contingent
Amortization of favorable and unfavorable payable lease contracts, net
Total rental expense (a)
(a)
Amounts include rental expense related to properties subleased to franchisees of $263 million for 2018.
81
2020
ASC 842
2019
ASC 842
199 $
177
29
20
(534)
(109) $
210
198
27
20
(631)
(176)
$
$
2018
Previous Standard
$
$
201
71
9
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Lease Term and Discount Rate as of December 31, 2020 and December 31, 2019
Weighted-average remaining lease term (in years):
Operating leases
Finance leases
Weighted-average discount rate:
Operating leases
Finance leases
Other Information for 2020 and 2019
Cash paid for amounts included in the measurement of lease liabilities:
Operating cash flows from operating leases
Operating cash flows from finance leases
Financing cash flows from finance leases
Supplemental noncash information on lease liabilities arising from obtaining right-of-use assets:
Right-of-use assets obtained in exchange for new finance lease obligations
Right-of-use assets obtained in exchange for new operating lease obligations
As of December 31, 2020, future minimum lease receipts and commitments are as follows (in millions):
As of December 31,
2020
2019
10.5 years
11.3 years
5.9 %
6.5 %
10.9 years
11.2 years
6.2 %
7.1 %
2020
2019
$
$
$
$
$
200 $
20 $
29 $
59 $
118 $
194
20
26
18
163
2021
2022
2023
2024
2025
Thereafter
Total minimum receipts / payments
Less amount representing interest
Present value of minimum lease payments
Current portion of lease obligations
Long-term portion of lease obligations
Lease Receipts
Lease Commitments (a)
Direct
Financing
and Sales-Type
Leases
$
$
8
7
6
6
6
54
87
$
$
Operating
Leases
Finance
Leases
Operating
Leases
419 $
397
373
340
305
1,533
3,367
$
50
49
46
44
42
257
488
(141)
347
(32)
315
$
$
198
188
173
159
144
815
1,677
(458)
1,219
(137)
1,082
(a) Minimum lease payments have not been reduced by minimum sublease rentals of $2,193 million due in the future under non-cancelable subleases.
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Note 10. Income Taxes
Income (loss) before income taxes, classified by source of income (loss), is as follows (in millions):
Canadian
Foreign
Income before income taxes
2020
2019
2018
$
$
200 $
616
816 $
685 $
767
1,452 $
1,111
271
1,382
Income tax (benefit) expense attributable to income from continuing operations consists of the following (in millions):
2020
2019
2018
Current:
Canadian
U.S. Federal
U.S. state, net of federal income tax benefit
Other Foreign
Deferred:
Canadian
U.S. Federal
U.S. state, net of federal income tax benefit
Other Foreign
Income tax expense (benefit)
The statutory rate reconciles to the effective income tax rate as follows:
Statutory rate
Costs and taxes related to foreign operations
Foreign exchange gain (loss)
Foreign tax rate differential
Change in valuation allowance
Change in accrual for tax uncertainties
Intercompany financing
Impact of Tax Act
Swiss Tax Reform
Benefit from stock option exercises
Other
Effective income tax rate
$
$
$
$
$
45 $
125
26
78
274 $
(67) $
(82)
(27)
(32)
(208) $
66 $
47 $
122
20
94
283 $
43 $
8
—
7
58 $
341 $
2020
2019
2018
26.5 %
9.6
0.5
(15.6)
1.2
3.9
(6.1)
(7.8)
(5.1)
(0.3)
1.2
8.0 %
26.5 %
4.7
0.1
(10.8)
0.5
5.0
(2.4)
(0.1)
1.1
(2.2)
1.1
23.5 %
25
95
17
72
209
78
(65)
13
3
29
238
26.5 %
4.2
(0.1)
(6.1)
3.2
0.1
(4.4)
(1.9)
—
(5.0)
0.7
17.2 %
In December 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”) that
significantly revised the U.S. tax code. During 2020, various guidance was issued by the U.S. tax authorities relating to the Tax Act and, after review of such
guidance, we recorded a favorable adjustment to our deferred tax assets of $64 million related to a tax attribute carryforward, which decreased our 2020 effective
tax rate by 7.8%. In 2018, favorable adjustments of $9 million as a result of the remeasurement of net deferred tax liabilities, $3 million related to certain
deductions allowed to be carried forward before the Tax Act, and $15 million related to transitional repatriation tax on unremitted foreign earnings were recorded,
which decreased our 2018 effective tax rate by 1.9%.
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In a referendum held on May 19, 2019, Swiss voters adopted the Federal Act on Tax Reform and AVS Financing (“TRAF”), under which certain long-
standing preferential cantonal tax regimes were abolished effective January 1, 2020, which the canton of Zug formally adopted in November 2019. Company
subsidiaries in the canton of Zug were subjected to TRAF and therefore the TRAF impacted our consolidated results of operations during 2020 and 2019. In 2020,
a deferred tax asset was recorded due to an election made under TRAF by one of our Swiss subsidiaries and, in 2019, our Swiss company subsidiaries remeasured
their deferred tax assets and liabilities based on new future tax rates expected under TRAF. The amounts impacting income tax expense for the effects of the
changes from the TRAF were approximately $41 million in 2020 which decreased our 2020 effective tax rate by approximately 5.1%, and approximately $16
million in 2019 which increased our 2019 effective tax rate by approximately 1.1%.
Companies subject to the Global Intangible Low-Taxed Income provision (GILTI) have the option to account for the GILTI tax as a period cost if and when
incurred, or to recognize deferred taxes for outside basis temporary differences expected to reverse as GILTI. We have elected to account for GILTI as a period
cost.
Income tax (benefit) expense allocated to continuing operations and amounts separately allocated to other items was (in millions):
Income tax (benefit) expense from continuing operations
Cash flow hedge in accumulated other comprehensive income (loss)
Net investment hedge in accumulated other comprehensive income (loss)
Foreign Currency Translation in accumulated other comprehensive income (loss)
Pension liability in accumulated other comprehensive income (loss)
Total
2020
2019
2018
$
$
66 $
(64)
(60)
12
(3)
(49) $
341 $
(23)
(32)
—
(1)
285 $
The significant components of deferred income tax (benefit) expense attributable to income from continuing operations are as follows (in millions):
Deferred income tax (benefit) expense
Change in valuation allowance
Change in effective Canadian income tax rate
Change in effective U.S. federal income tax rate
Change in effective U.S. state income tax rate
Change in effective foreign income tax rate
Total
2020
2019
2018
$
$
(230) $
22
—
—
1
(1)
(208) $
30 $
7
(1)
—
6
16
58 $
84
238
(2)
101
—
—
337
(14)
43
(3)
(8)
15
(4)
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The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and deferred tax liabilities are presented below (in
millions):
Deferred tax assets:
Accounts and notes receivable
Accrued employee benefits
Leases
Operating lease liabilities
Liabilities not currently deductible for tax
Tax loss and credit carryforwards
Derivatives
Other
Total gross deferred tax assets
Valuation allowance
Net deferred tax assets
Less deferred tax liabilities:
Property and equipment, principally due to differences in depreciation
Intangible assets
Leases
Operating lease assets
Statutory impairment
Outside basis difference
Total gross deferred tax liabilities
Net deferred tax liability
As of December 31,
2020
2019
6 $
54
114
323
310
547
225
9
1,588
(364)
1,224
35
1,747
114
311
30
46
2,283
1,059 $
4
48
99
332
198
493
83
3
1,260
(329)
931
40
1,792
88
325
28
42
2,315
1,384
$
$
The valuation allowance had a net increase of $35 million during 2020 primarily due to the change in estimates related to derivatives and the utilization of
foreign tax credits. This increase was partially offset by the utilization of capital losses that had been previously valued.
Changes in the valuation allowance are as follows (in millions):
Beginning balance
Change in estimates recorded to deferred income tax expense
Changes in losses and credits
Additions related to other comprehensive income
Ending balance
2020
2019
2018
$
$
329 $
19
3
13
364 $
325 $
8
(2)
(2)
329 $
282
43
—
—
325
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The gross amount and expiration dates of operating loss and tax credit carry-forwards as of December 31, 2020 are as follows (in millions):
Canadian net operating loss carryforwards
Canadian capital loss carryforwards
U.S. state net operating loss carryforwards
U.S. state net operating loss carryforwards
U.S. foreign tax credits
Other foreign net operating loss carryforwards
Other foreign net operating loss carryforwards
Other foreign capital loss carryforward
Foreign credits
Total
Amount
866
930
639
1
100
212
70
31
5
2,854
$
$
Expiration Date
2036-2040
Indefinite
2021-2043
Indefinite
2021-2030
Indefinite
2021-2039
Indefinite
2023-2039
We are generally permanently reinvested on any potential outside basis differences except for unremitted earnings and profits. A determination of the
deferred tax liability on this amount is not practicable due to the complexities, variables and assumptions inherent in the hypothetical calculations. Thus we have
not provided taxes, including U.S. federal and state income, foreign income, or foreign withholding taxes, for any outside basis differences that we believe are
permanently invested. We will continue to monitor available evidence and our plans for foreign earnings and expect to continue to provide any applicable deferred
taxes based on the tax liability or withholding taxes that would be due upon repatriation of amounts not considered permanently reinvested.
We had $497 million and $506 million of unrecognized tax benefits at December 31, 2020 and December 31, 2019, respectively, which if recognized, would
favorably affect the effective income tax rate. A reconciliation of the beginning and ending amounts of unrecognized tax benefits is as follows (in millions):
Beginning balance
Additions for tax positions related to the current year
Additions for tax positions of prior years
Reductions for tax positions of prior year
Reductions for settlement
Reductions due to statute expiration
Ending balance
2020
2019
2018
$
$
506 $
9
7
(25)
—
—
497 $
441 $
9
56
—
—
—
506 $
461
1
18
(18)
(18)
(3)
441
During the twelve months beginning January 1, 2021, it is reasonably possible we will reduce unrecognized tax benefits by approximately $90 million,
primarily as a result of the expiration of certain statutes of limitations and the resolution of audits in multiple taxing jurisdictions.
We recognize interest and penalties related to unrecognized tax benefits in income tax expense. The total amount of accrued interest and penalties was $123
million and $92 million at December 31, 2020 and 2019, respectively. Potential interest and penalties associated with uncertain tax positions in various
jurisdictions recognized was $31 million during 2020, $41 million during 2019 and $14 million during 2018. To the extent interest and penalties are not assessed
with respect to uncertain tax positions, amounts accrued will be reduced and reflected as a reduction of the overall income tax provision.
We file income tax returns with Canada and its provinces and territories. Generally, we are subject to routine examinations by the Canada Revenue Agency
(“CRA”). The CRA is conducting examinations of the 2014 through 2016 taxation years. Additionally, income tax returns filed with various provincial
jurisdictions are generally open to examination for periods up to six years subsequent to the filing of the respective return.
We also file income tax returns, including returns for our subsidiaries, with U.S. federal, U.S. state, and other foreign jurisdictions. We are subject to routine
examination by taxing authorities in the U.S. jurisdictions, as well as other foreign tax jurisdictions. None of the other foreign jurisdictions have been individually
material. We expect the taxable years 2014, 2015 and 2016 for our U.S. companies for U.S. federal income tax purposes to close in 2021 without material
adjustments. Prior taxable years
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of such U.S. companies are closed for U.S. federal income tax purposes. We have various U.S. state and other foreign income tax returns in the process of
examination. From time to time, these audits result in proposed assessments where the ultimate resolution may result in owing additional taxes. We believe that our
tax positions comply with applicable tax law and that we have adequately provided for these matters.
Note 11. Derivative Instruments
Disclosures about Derivative Instruments and Hedging Activities
We enter into derivative instruments for risk management purposes, including derivatives designated as cash flow hedges, derivatives designated as net
investment hedges and those utilized as economic hedges. We use derivatives to manage our exposure to fluctuations in interest rates and currency exchange rates.
Interest Rate Swaps
At December 31, 2020, we had outstanding receive-variable, pay-fixed interest rate swaps with a total notional value of $3,500 million to hedge the
variability in the interest payments on a portion of our Term Loan Facilities beginning October 31, 2019 through the termination date of November 19, 2026.
Additionally, at December 31, 2020, we also had outstanding receive-variable, pay-fixed interest rate swaps with a total notional value of $500 million to hedge the
variability in the interest payments on a portion of our Term Loan Facilities effective September 30, 2019 through the termination date of September 30, 2026. At
inception, all of these interest rate swaps were designated as cash flow hedges for hedge accounting. The unrealized changes in market value are recorded in AOCI
and reclassified into earnings during the period in which the hedged forecasted transaction affects earnings.
During 2019, we extended the term of our previous $3,500 million receive-variable, pay-fixed interest rate swaps to align the maturity date of the new
interest rate swaps with the maturity date of our Term Loan B under the Fourth Amendment. The extension of the term resulted in a de-designation and re-
designation of the interest rate swaps and the swaps continue to be accounted for as a cash flow hedge for hedge accounting. In connection with the de-designation,
we recognized a net unrealized loss of $213 million in AOCI and this amount gets reclassified into Interest expense, net as the original hedged forecasted
transaction affects earnings. The amount of pre-tax losses in AOCI as of December 31, 2020 that we expect to be reclassified into interest expense within the next
12 months is $50 million.
During 2015, we entered into a series of receive-variable, pay-fixed interest rate swaps with a notional value of $2,500 million to hedge the variability in the
interest payments on a portion of our Term Loan Facilities beginning May 28, 2015. All of these interest rate swaps were settled on April 26, 2018 for an
insignificant cash receipt. At inception, these interest rate swaps were designated as cash flow hedges for hedge accounting. The unrealized changes in market
value were recorded in AOCI and reclassified into earnings during the period in which the hedged forecasted transaction affects earnings.
During 2015, we settled certain interest rate swaps and recognized a net unrealized loss of $85 million in AOCI at the date of settlement. This amount gets
reclassified into Interest expense, net as the original hedged forecasted transaction affects earnings. The amount of pre-tax losses in AOCI as of December 31, 2020
that we expect to be reclassified into interest expense within the next 12 months is $11 million.
Cross-Currency Rate Swaps
To protect the value of our investments in our foreign operations against adverse changes in foreign currency exchange rates, we hedge a portion of our net
investment in one or more of our foreign subsidiaries by using cross-currency rate swaps. At December 31, 2020, we had outstanding cross-currency rate swap
contracts between the Canadian dollar and U.S. dollar and the Euro and U.S. dollar that have been designated as net investment hedges of a portion of our equity in
foreign operations in those currencies. The component of the gains and losses on our net investment in these designated foreign operations driven by changes in
foreign exchange rates are economically partly offset by movements in the fair value of our cross-currency swap contracts. The fair value of the swaps is calculated
each period with changes in fair value reported in AOCI, net of tax. Such amounts will remain in AOCI until the complete or substantially complete liquidation of
our investment in the underlying foreign operations.
At December 31, 2020, we had outstanding fixed-to-fixed cross-currency rate swaps to partially hedge the net investment in our Canadian subsidiaries. At
inception, these cross-currency rate swaps were designated as a hedge and are accounted for as net investment hedges. These swaps are contracts to exchange
quarterly fixed-rate interest payments we make on the Canadian dollar notional amount of C$6,754 million for quarterly fixed-rate interest payments we receive on
the U.S. dollar notional amount of $5,000 million through the maturity date of June 30, 2023.
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At December 31, 2020, we had outstanding cross-currency rate swaps in which we pay quarterly fixed-rate interest payments on the Euro notional amount of
€1,108 million and receive quarterly fixed-rate interest payments on the U.S. dollar notional amount of $1,200 million. At inception, these cross-currency rate
swaps were designated as a hedge and are accounted for as a net investment hedge. During 2018, we extended the term of the swaps from March 31, 2021 to the
maturity date of February 17, 2024. The extension of the term resulted in a re-designation of the hedge and the swaps continue to be accounted for as a net
investment hedge. Additionally, at December 31, 2020, we also had outstanding cross-currency rate swaps in which we receive quarterly fixed-rate interest
payments on the U.S. dollar notional value of $400 million, entered during 2018, and $500 million, entered during 2019, through the maturity date of February 17,
2024. At inception, these cross-currency rate swaps were designated as a hedge and are accounted for as a net investment hedge.
The fixed to fixed cross-currency rate swaps hedging Canadian dollar and Euro net investments utilized the forward method of effectiveness assessment prior
to March 15, 2018. On March 15, 2018, we de-designated and subsequently re-designated the outstanding fixed to fixed cross-currency rate swaps to prospectively
use the spot method of hedge effectiveness assessment. Additionally, as a result of adopting new hedge accounting guidance during 2018, we elected to exclude the
interest component (the "Excluded Component") from the accounting hedge without affecting net investment hedge accounting and elected to amortize the
Excluded Component over the life of the derivative instrument. The amortization of the Excluded Component is recognized in Interest expense, net in the
consolidated statement of operations. The change in fair value that is not related to the Excluded Component is recorded in AOCI and will be reclassified to
earnings when the foreign subsidiaries are sold or substantially liquidated.
Foreign Currency Exchange Contracts
We use foreign exchange derivative instruments to manage the impact of foreign exchange fluctuations on U.S. dollar purchases and payments, such as
coffee purchases made by our Canadian Tim Hortons operations. At December 31, 2020, we had outstanding forward currency contracts to manage this risk in
which we sell Canadian dollars and buy U.S. dollars with a notional value of $122 million with maturities to January 2022. We have designated these instruments
as cash flow hedges, and as such, the unrealized changes in market value of effective hedges are recorded in AOCI and are reclassified into earnings during the
period in which the hedged forecasted transaction affects earnings.
Credit Risk
By entering into derivative contracts, we are exposed to counterparty credit risk. Counterparty credit risk is the failure of the counterparty to perform under
the terms of the derivative contract. When the fair value of a derivative contract is in an asset position, the counterparty has a liability to us, which creates credit
risk for us. We attempt to minimize this risk by selecting counterparties with investment grade credit ratings and regularly monitoring our market position with
each counterparty.
Credit-Risk Related Contingent Features
Our derivative instruments do not contain any credit-risk related contingent features.
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Quantitative Disclosures about Derivative Instruments and Fair Value Measurements
The following tables present the required quantitative disclosures for our derivative instruments, including their estimated fair values (all estimated using
Level 2 inputs) and their location on our consolidated balance sheets (in millions):
Derivatives designated as cash flow hedges
(1)
Interest rate swaps
Forward-currency contracts
Derivatives designated as net investment hedges
Cross-currency rate swaps
Gain or (Loss) Recognized in
Other Comprehensive Income (Loss)
2019
2018
2020
$
$
$
(333)
(2)
(302)
$
$
$
(102)
(4)
(118)
$
$
$
(37)
11
383
(1) We did not exclude any components from the cash flow hedge relationships presented in this table.
Location of Gain or (Loss)
Reclassified from AOCI into
Earnings
Derivatives designated as cash flow hedges
Interest rate swaps
Forward-currency contracts
Interest expense, net
Cost of sales
Derivatives designated as net investment hedges
Cross-currency rate swaps
Interest expense, net
Location of Gain or (Loss)
Recognized in Earnings
$
$
$
Gain or (Loss) Reclassified from AOCI into
Earnings
2019
2018
2020
(102)
2
$
$
(26)
5
$
$
(19)
(1)
Gain or (Loss) Recognized in Earnings (Amount
Excluded from Effectiveness Testing)
2019
2018
2020
69
$
70
$
60
Assets:
Derivatives designated as cash flow hedges
Interest rate
Derivatives designated as net investment hedges
Foreign currency
Total assets at fair value
Liabilities:
Derivatives designated as cash flow hedges
Interest rate
Foreign currency
Derivatives designated as net investment hedges
Foreign currency
Total liabilities at fair value
Fair Value as of
December 31,
2020
2019
Balance Sheet Location
— $
—
— $
430 $
5
434
869 $
7 Other assets, net
22 Other assets, net
29
175 Other liabilities, net
2 Other accrued liabilities
166 Other liabilities, net
343
$
$
$
$
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Note 12. Shareholders’ Equity
Special Voting Share
The holders of the Partnership exchangeable units are indirectly entitled to vote in respect of matters on which holders of the common shares of the Company
are entitled to vote, including in respect of the election of RBI directors, through a special voting share of the Company (the "Special Voting Share"). The Special
Voting Share is held by a trustee, entitling the trustee to that number of votes on matters on which holders of common shares of the Company are entitled to vote
equal to the number of Partnership exchangeable units outstanding. The trustee is required to cast such votes in accordance with voting instructions provided by
holders of Partnership exchangeable units. At any shareholder meeting of the Company, holders of our common shares vote together as a single class with the
Special Voting Share except as otherwise provided by law.
Noncontrolling Interests
We reflect a noncontrolling interest which primarily represents the interests of the holders of Partnership exchangeable units in Partnership that are not held
by RBI. The holders of Partnership exchangeable units held an economic interest of approximately 33.7% and 35.7% in Partnership common equity through the
ownership of 155,113,338 and 165,507,199 Partnership exchangeable units as of December 31, 2020 and 2019, respectively.
Pursuant to the terms of the partnership agreement, each holder of a Partnership exchangeable unit is entitled to distributions from Partnership in an amount
equal to any dividends or distributions that we declare and pay with respect to our common shares. Additionally, each holder of a Partnership exchangeable unit is
entitled to vote in respect of matters on which holders of RBI common shares are entitled to vote through our special voting share. Since December 12, 2015, a
holder of a Partnership exchangeable unit may require Partnership to exchange all or any portion of such holder’s Partnership exchangeable units for our common
shares at a ratio of one common share for each Partnership exchangeable unit, subject to our right as the general partner of Partnership, in our sole discretion, to
deliver a cash payment in lieu of our common shares. If we elect to make a cash payment in lieu of issuing common shares, the amount of the payment will be the
weighted average trading price of the common shares on the New York Stock Exchange for the 20 consecutive trading days ending on the last business day prior to
the exchange date.
During 2020, Partnership exchanged 10,393,861 Partnership exchangeable units, pursuant to exchange notices received. In accordance with the terms of the
partnership agreement, Partnership satisfied the exchange notices by repurchasing 6,757,692 Partnership exchangeable units for approximately $380 million in cash
and exchanging 3,636,169 Partnership exchangeable units for the same number of newly issued RBI common shares. During 2019, Partnership exchanged
42,016,392 Partnership exchangeable units, pursuant to exchange notices received. In accordance with the terms of the partnership agreement, Partnership satisfied
the exchange notices by exchanging 42,016,392 Partnership exchangeable units for the same number of newly issued RBI common shares. During 2018,
Partnership exchanged 10,185,333 Partnership exchangeable units, pursuant to exchange notices received. In accordance with the terms of the partnership
agreement, Partnership satisfied the exchange notices by repurchasing 10,000,000 Partnership exchangeable units for approximately $561 million in cash and
exchanging 185,333 Partnership exchangeable units for the same number of newly issued RBI common shares. The exchanges represented increases in our
ownership interest in Partnership and were accounted for as equity transactions, with no gain or loss recorded in the consolidated statements of operations. Pursuant
to the terms of the partnership agreement, upon the exchange of Partnership exchangeable units, each such Partnership exchangeable unit was cancelled
concurrently with the exchange.
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Accumulated Other Comprehensive Income (Loss)
The following table displays the change in the components of AOCI (in millions):
Balances at December 31, 2017
Foreign currency translation adjustment
Net change in fair value of derivatives, net of tax
Amounts reclassified to earnings of cash flow hedges, net of tax
Pension and post-retirement benefit plans, net of tax
Amounts attributable to noncontrolling interests
Balances at December 31, 2018
Foreign currency translation adjustment
Net change in fair value of derivatives, net of tax
Amounts reclassified to earnings of cash flow hedges, net of tax
Pension and post-retirement benefit plans, net of tax
Amounts attributable to noncontrolling interests
Balances at December 31, 2019
Foreign currency translation adjustment
Net change in fair value of derivatives, net of tax
Amounts reclassified to earnings of cash flow hedges, net of tax
Pension and post-retirement benefit plans, net of tax
Amounts attributable to noncontrolling interests
Balances at December 31, 2020
Note 13. Share-based Compensation
Derivatives
Pensions
Foreign
Currency
Translation
Accumulated
Other
Comprehensive
Income (Loss)
$
$
97
—
263
14
—
(121)
253
—
(163)
15
—
94
199
—
(486)
73
—
145
(69)
$
$
(15)
—
—
—
1
(1)
(15)
—
—
—
(2)
(2)
(19)
—
—
—
(16)
5
(30)
$
$
(558)
(831)
—
—
—
351
(1,038)
409
—
—
—
(314)
(943)
332
—
—
—
(144)
(755)
$
$
(476)
(831)
263
14
1
229
(800)
409
(163)
15
(2)
(222)
(763)
332
(486)
73
(16)
6
(854)
Our Amended and Restated 2014 Omnibus Incentive Plan (the “Omnibus Plan”) provides for the grant of awards to employees, directors, consultants and
other persons who provide services to us and our affiliates. We also have some outstanding awards under legacy plans for BK and TH, that were assumed in
connection with the merger and amalgamation of those entities within the RBI group. No new awards may be granted under these legacy BK plans or legacy TH
plans.
We are currently issuing awards under the Omnibus Plan and the number of shares available for issuance under such plan as of December 31, 2020 was
11,591,247. The Omnibus Plan permits the grant of several types of awards with respect to our common shares, including stock options, time-vested RSUs, and
performance-based RSUs, which may include Company and/or individual performance based-vesting conditions. Under the terms of the Omnibus Plan, RSUs are
entitled to dividend equivalents, unless otherwise noted. Dividend equivalents are not distributed unless the related awards vest. Upon vesting, the amount of the
dividend equivalent, which is distributed in additional RSUs, except in the case of RSUs awarded to non-management members of our board of directors, is equal
to the equivalent of the aggregate dividends declared on common shares during the period from the date of grant of the award compounded until the date the shares
underlying the award are delivered.
Stock option awards are granted with an exercise price or market value equal to the closing price of our common shares on the trading day preceding the date
of grant. We satisfy stock option exercises through the issuance of authorized but previously unissued common shares. New stock option grants generally cliff vest
5 years from the original grant date, provided the employee is continuously employed by us or one of our affiliates, and the stock options expire 10 years following
the grant date. Additionally, if we terminate the employment of a stock option holder without cause prior to the vesting date, or if the employee retires or becomes
disabled, the employee will become vested in the number of stock options as if the stock options vested 20% on each anniversary of the grant date. If the employee
dies, the employee will become vested in the number of stock options as if the stock options vested 20% on the first anniversary of the grant date, 40% on the
second anniversary of the grant date and 100% on the third anniversary of the grant date. If an employee is terminated with cause or resigns before vesting, all
stock options are forfeited. If there is an event such as a return of capital or dividend that is determined to be dilutive, the exercise price of the awards will be
adjusted accordingly.
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Share-based compensation expense consists of the following for the periods presented (in millions):
Stock options and RSUs (a)
Total share-based compensation expense (b)
2020
2019
2018
$
$
74 $
74 $
68 $
68 $
48
48
(a)
(b)
Includes $3 million, $4 million, and $2 million due to modification of awards in 2020, 2019 and 2018, respectively.
Generally classified as selling, general and administrative expenses in the consolidated statements of operations.
As of December 31, 2020, total unrecognized compensation cost related to share-based compensation arrangements was $192 million and is expected to be
recognized over a weighted-average period of approximately 3.3 years.
The following assumptions were used in the Black-Scholes option-pricing model to determine the fair value of stock option awards at the grant date:
Risk-free interest rate
Expected term (in years)
Expected volatility
Expected dividend yield
2020
1.29%
5.88
23.9%
3.14%
2019
1.82%
6.19
25.5%
3.09%
2018
2.13%
6.39
25.2%
3.08%
The risk-free interest rate was based on the U.S. Treasury or Canadian Sovereign bond yield with a remaining term equal to the expected option life assumed
at the date of grant. The expected term was calculated based on the analysis of a five-year vesting period coupled with our expectations of exercise activity.
Expected volatility was based on the historical and implied equity volatility of the Company and a review of the equity volatilities of publicly-traded guideline
companies. The expected dividend yield is based on the annual dividend yield at the time of grant.
The following is a summary of stock option activity under our plans for the year ended December 31, 2020:
Outstanding at January 1, 2020
Granted
Exercised
Forfeited
Outstanding at December 31, 2020
Exercisable at December 31, 2020
Vested or expected to vest at December 31, 2020
Total Number of
Options
(in 000’s)
Weighted
Average
Exercise Price
Aggregate
Intrinsic
Value (a)
(in 000’s)
Weighted
Average
Remaining
Contractual Term
(Years)
9,758
1,626
(2,448)
(734)
8,202
2,281
7,491
$
$
$
$
$
$
$
45.29
66.47
33.57
58.60
51.86 $
39.71 $
51.22 $
88,022
48,816
84,558
6.3
3.8
6.2
(a)
The intrinsic value represents the amount by which the fair value of our stock exceeds the option exercise price at December 31, 2020.
The weighted-average grant date fair value per stock option granted was $10.38, $11.83, and $10.82 during 2020, 2019 and 2018, respectively. The total
intrinsic value of stock options exercised was $55 million during 2020, $200 million during 2019, and $371 million during 2018.
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The fair value of the time-vested RSUs and performance-based RSUs is based on the closing price of the Company’s common shares on the trading day
preceding the date of grant. New grants generally cliff vest five years from the original grant date. The Company has awarded a limited number of time-vested
RSUs and performance-based RSUs that proportionally vest over a period shorter than five years. Time-vested RSUs are expensed over the vesting period.
Performance-based RSUs are expensed over the vesting period, based upon the probability that the performance target will be met. We grant fully vested RSUs,
with dividend equivalent rights that accrue in cash, to non-employee members of our board of directors in lieu of a cash retainer and committee fees. All such
RSUs will settle and common shares of the Company will be issued upon termination of service by the board member.
The time-vested RSUs generally cliff vest five years from December 31 of the year preceding the grant date and performance-based RSUs generally cliff
st
vest five years from the grant date (the starting date for the applicable five year vesting period is referred to as the “Anniversary Date”). If the employee is
terminated for any reason within the first two years of the Anniversary Date, 100% of the time-vested RSUs granted will be forfeited. If we terminate the
employment of a time-vested RSU holder without cause two years after the Anniversary Date, or if the employee retires, the employee will become vested in the
number of time-vested RSUs as if the time-vested RSUs vested 20% for each year after the Anniversary Date. If the employee is terminated for any reason within
the first three years of the Anniversary Date, 100% of the performance-based RSUs granted will be forfeited. If we terminate the employment of a performance-
based RSU holder without cause between three and five years after the Anniversary Date, or if the employee retires, the employee will become vested in 50% of
the performance-based RSUs. An alternate ratable vesting schedule applies to the extent the participant ends employment by reason of death or disability.
The following is a summary of time-vested RSUs and performance-based RSUs activity for the year ended December 31, 2020:
Outstanding at January 1, 2020
Granted
Vested and settled
Dividend equivalents granted
Forfeited
Outstanding at December 31, 2020
Time-vested RSUs
Performance-based RSUs
Total Number of
Shares
(in 000’s)
Weighted Average
Grant Date Fair
Value
Total Number of
Shares
(in 000’s)
Weighted Average
Grant Date Fair
Value
1,752
337
(217)
56
(167)
1,761
$
$
$
$
$
$
46.50
65.20
40.42
—
47.69
49.99
4,066
1,291
(164)
182
(506)
4,869
$
$
$
$
$
$
53.78
62.69
47.32
—
32.91
56.96
The weighted-average grant date fair value of time-vested RSUs granted was $64.82 and $57.68 during 2019 and 2018, respectively. The weighted-average
grant date fair value of performance-based RSUs granted was $65.54 and $58.49 during 2019 and 2018, respectively. The total fair value, determined as of the date
of vesting, of RSUs vested and converted to common shares of the Company during 2020, 2019 and 2018 was $21 million, $8 million and $7 million, respectively.
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Note 14. Revenue Recognition
Revenue from Contracts with Customers
We transitioned to ASC 606 on January 1, 2018 using the modified retrospective transition method. Our transition to ASC 606 represented a change in
accounting principle. The $250 million cumulative effect of our transition to ASC 606 is reflected as an adjustment to January 1, 2018 Shareholders' equity, and
relates primarily to changes in accounting for franchise fees, advertising funds, gift card breakage and related tax effects under ASC 606.
Contract Liabilities
Contract liabilities consist of deferred revenue resulting from initial and renewal franchise fees paid by franchisees, as well as upfront fees paid by master
franchisees, which are generally recognized on a straight-line basis over the term of the underlying agreement. We classify these contract liabilities as Other
liabilities, net in our consolidated balance sheets. The following table reflects the change in contract liabilities by segment and on a consolidated basis between
December 31, 2019 and December 31, 2020 (in millions):
Contract Liabilities
Balance at December 31, 2019
Recognized during period and included in the contract liability
balance at the beginning of the year
Increase, excluding amounts recognized as revenue during the period
Impact of foreign currency translation
Balance at December 31, 2020
$
$
TH
BK
PLK
Consolidated
64
$
449
$
28
$
(10)
7
1
62
$
(62)
25
15
427
$
(2)
13
—
39
$
541
(74)
45
16
528
The following table illustrates estimated revenues expected to be recognized in the future related to performance obligations that are unsatisfied (or partially
unsatisfied) by segment and on a consolidated basis as of December 31, 2020 (in millions):
Contract liabilities expected to be recognized in
2021
2022
2023
2024
2025
Thereafter
Total
Disaggregation of Total Revenues
Total revenues consist of the following (in millions):
Sales
Royalties
Property revenues
Franchise fees and other revenue
Total revenues
TH
BK
PLK
Consolidated
$
$
9
8
8
7
6
24
62
$
$
35
34
33
32
31
262
427
$
$
3
3
3
2
2
26
39
$
$
2020
2019
2018
$
$
2,013
2,161
718
76
4,968
$
$
2,362
2,319
833
89
5,603
$
$
94
47
45
44
41
39
312
528
2,355
2,165
744
93
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Note 15. Other Operating Expenses (Income), net
Other operating expenses (income), net, consist of the following (in millions):
Net losses (gains) on disposal of assets, restaurant closures and refranchisings
Litigation settlements and reserves, net
Net losses (gains) on foreign exchange
Other, net
Other operating expenses (income), net
2020
2019
2018
$
$
6 $
7
100
(8)
105 $
7 $
2
(15)
(4)
(10) $
19
11
(33)
11
8
Net losses (gains) on disposal of assets, restaurant closures, and refranchisings represent sales of properties and other costs related to restaurant closures and
refranchisings. Gains and losses recognized in the current period may reflect certain costs related to closures and refranchisings that occurred in previous periods.
Litigation settlements and reserves, net primarily reflects accruals and payments made and proceeds received in connection with litigation matters.
Net losses (gains) on foreign exchange is primarily related to revaluation of foreign denominated assets and liabilities.
Note 16. Commitments and Contingencies
Letters of Credit
As of December 31, 2020, we had $13 million in irrevocable standby letters of credit outstanding, which were issued primarily to certain insurance carriers
to guarantee payments of deductibles for various insurance programs, such as health and commercial liability insurance. Of these letters of credit outstanding, $2
million are secured by the collateral under our Revolving Credit Facility and the remainder are secured by cash collateral. As of December 31, 2020, no amounts
had been drawn on any of these irrevocable standby letters of credit.
Purchase Commitments
We have arrangements for information technology and telecommunication services with an aggregate contractual obligation of $43 million over the next
three years, some of which have early termination fees. We also enter into commitments to purchase advertising. As of December 31, 2020, these commitments
totaled $186 million and run through 2024.
Litigation
From time to time, we are involved in legal proceedings arising in the ordinary course of business relating to matters including, but not limited to, disputes
with franchisees, suppliers, employees and customers, as well as disputes over our intellectual property.
On October 5, 2018, a class action complaint was filed against Burger King Worldwide, Inc. (“BKW”) and Burger King Corporation (“BKC”) in the U.S.
District Court for the Southern District of Florida by Jarvis Arrington, individually and on behalf of all others similarly situated. On October 18, 2018, a second
class action complaint was filed against RBI, BKW and BKC in the U.S. District Court for the Southern District of Florida by Monique Michel, individually and on
behalf of all others similarly situated. On October 31, 2018, a third class action complaint was filed against BKC and BKW in the U.S. District Court for the
Southern District of Florida by Geneva Blanchard and Tiffany Miller, individually and on behalf of all others similarly situated. On November 2, 2018, a fourth
class action complaint was filed against RBI, BKW and BKC in the U.S. District Court for the Southern District of Florida by Sandra Muster, individually and on
behalf of all others similarly situated. These complaints have been consolidated and allege that the defendants violated Section 1 of the Sherman Act by
incorporating an employee no-solicitation and no-hiring clause in the standard form franchise agreement all Burger King franchisees are required to sign. Each
plaintiff seeks injunctive relief and damages for himself or herself and other members of the class. On March 24, 2020, the Court granted BKC’s motion to dismiss
for failure to state a claim and on April 20, 2020 the plaintiffs filed a motion for leave to amend their complaint. On April 27, 2020, BKC filed a motion opposing
the motion for leave to amend. The court denied the plaintiffs motion for leave to amend their complaint in August 2020 and the plaintiffs are appealing this ruling.
While we currently believe these claims are without merit, we are unable to predict the ultimate outcome of this case or estimate the range of possible loss, if any.
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In July 2019, a class action complaint was filed against The TDL Group Corp. (“TDL”) in the Supreme Court of British Columbia by Samir Latifi,
individually and on behalf of all others similarly situated. The complaint alleges that TDL violated the Canadian Competition Act by incorporating an employee
no-solicitation and no-hiring clause in the standard form franchise agreement all Tim Hortons franchisees are required to sign. The plaintiff seeks damages and
restitution, on behalf of himself and other members of the class. While we currently believe this claim is without merit, we are unable to predict the ultimate
outcome of this case or estimate the range of possible loss, if any.
On June 30, 2020, a class action complaint was filed against Restaurant Brands International Inc., Restaurant Brands International Limited Partnership and
The TDL Group Corp. in the Quebec Superior Court by Steve Holcman, individually and on behalf of all Quebec residents who downloaded the Tim Hortons
mobile application. On July 2, 2020, a Notice of Action related to a second class action complaint was filed against Restaurant Brands International Inc., in the
Ontario Superior Court by Ashley Sitko and Ashley Cadeau, individually and on behalf of all Canadian residents who downloaded the Tim Hortons mobile
application. On August 31, 2020, a notice of claim was filed against Restaurant Brands International Inc. in the Supreme Court of British Columbia by Wai Lam
Jacky Law on behalf of all persons in Canada who downloaded the Tim Hortons mobile application or the Burger King mobile application. On September 30,
2020, a notice of action was filed against Restaurant Brands International Inc., Restaurant Brands International Limited Partnership, The TDL Group Corp., Burger
King Worldwide, Inc. and Popeyes Louisiana Kitchen, Inc. in the Ontario Superior Court of Justice by William Jung on behalf of a to be determined class. All of
the complaints allege that the defendants violated the plaintiff’s privacy rights, the Personal Information Protection and Electronic Documents Act, consumer
protection and competition laws or app-based undertakings to users, in each case in connection with the collection of geolocation data through the Tim Hortons
mobile application, and in certain cases, the Burger King and Popeyes mobile applications. Each plaintiff seeks injunctive relief and monetary damages for himself
or herself and other members of the class. These cases are in preliminary stages and we intend to vigorously defend against these lawsuits, but we are unable to
predict the ultimate outcome of any of these cases or estimate the range of possible loss, if any.
On October 26, 2020, City of Warwick Municipal Employees Pension Fund, a purported stockholder of Restaurant Brands International Inc., individually
and putatively on behalf of all other stockholders similarly situated, filed a lawsuit in the Supreme Court of the State of New York County of New York naming the
Company and certain of its officers, directors and shareholders as defendants alleging violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as
amended, in connection with certain offerings of securities by an affiliate in August and September 2019. The complaint alleges that the shelf registration statement
used in connection with such offering contained certain false and/or misleading statements or omissions. The complaint seeks, among other relief, class
certification of the lawsuit, unspecified compensatory damages, rescission, pre-judgement and post-judgement interest, costs and expenses. On December 18, 2020
the plaintiffs filed an amended complaint and on February 16, 2021 the Company filed a motion to dismiss the complaint. The Company intends to vigorously
defend. While we believe these claims are without merit, we are unable to predict the ultimate outcome of this case or estimate the range of possible loss, if any.
On February 5, 2021, Paul J. Graney, a purported shareholder of Restaurant Brands International, individually and putatively on behalf of all other
stockholders similarly situated, filed a lawsuit in the U.S. District Court for the Southern District of Florida naming the Company and certain of its current or
former officers as defendants. This lawsuit alleges violation of Sections 10 and 20(a) of the Securities Exchange Act of 1934, as amended, in connection with
certain statements made beginning in April 2019. The complaint seeks, among other relief, class certification of the lawsuit, unspecified compensatory damages,
costs, and expenses. The Company intends to vigorously defend. While we believe these claims are without merit, we are unable to predict the ultimate outcome of
this case or estimate the range of possible loss, if any.
Note 17. Segment Reporting and Geographical Information
As stated in Note 1, Description of Business and Organization, we manage three brands. Under the Tim Hortons brand, we operate in the donut/coffee/tea
category of the quick service segment of the restaurant industry. Under the Burger King brand, we operate in the fast food hamburger restaurant category of the
quick service segment of the restaurant industry. Under the Popeyes brand, we operate in the chicken category of the quick service segment of the restaurant
industry. Our business generates revenue from the following sources: (i) franchise revenues, consisting primarily of royalties based on a percentage of sales
reported by franchise restaurants and franchise fees paid by franchisees; (ii) property revenues from properties we lease or sublease to franchisees; and (iii) sales at
restaurants owned by us (“Company restaurants”). In addition, our TH business generates revenue from sales to franchisees related to our supply chain operations,
including manufacturing, procurement, warehousing and distribution, as well as sales to retailers.
Our management structure and financial reporting is organized around our three brands, including the information regularly reviewed by our Chief Executive
Officer, who is our Chief Operating Decision Maker. Therefore, we have three operating segments: (1) TH, which includes all operations of our Tim Hortons
brand, (2) BK, which includes all operations of our Burger King brand, and (3) PLK, which includes all operations of our Popeyes brand. Our three operating
segments represent our reportable segments.
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As stated in Note 9, Leases, we transitioned to ASC 842 from the Previous Standard on January 1, 2019. Our Financial Statements reflect the application of
ASC 842 guidance beginning in 2019, while our Financial Statements for prior periods were prepared under the guidance of the Previous Standard.
The following tables present revenues, by segment and by country, depreciation and amortization, (income) loss from equity method investments, and capital
expenditures by segment (in millions):
Revenues by operating segment:
TH
BK
PLK
Total
Revenues by country (a):
Canada
United States
Other
Total
Depreciation and amortization:
TH
BK
PLK
Total
(Income) loss from equity method investments:
TH
BK
Total
Capital expenditures:
TH
BK
PLK
Total
2020
2019
2018
$
$
$
$
$
$
$
$
$
$
2,810 $
1,602
556
4,968 $
2,546 $
1,889
533
4,968 $
119 $
62
8
189 $
(4) $
43
39 $
92 $
18
7
117 $
3,344 $
1,777
482
5,603 $
3,037 $
1,930
636
5,603 $
112 $
62
11
185 $
(7) $
(4)
(11) $
37 $
20
5
62 $
3,292
1,651
414
5,357
2,984
1,785
588
5,357
108
61
11
180
(6)
(16)
(22)
59
25
2
86
(a)
Only Canada and the United States represented 10% or more of our total revenues in each period presented.
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Total assets by segment, and long-lived assets by segment and country are as follows (in millions):
By operating segment:
TH
BK
PLK
Unallocated
Total
By country:
Canada
United States
Other
Total
Assets
As of December 31,
Long-Lived Assets
As of December 31,
2020
2019
2020
2019
$
$
13,963 $
5,334
2,525
955
22,777 $
13,894 $
5,149
2,490
827
22,360 $
$
$
1,990 $
1,128
131
—
3,249 $
1,685 $
1,539
25
3,249 $
1,972
1,130
129
—
3,231
1,665
1,542
24
3,231
Long-lived assets include property and equipment, net, finance and operating lease right of use assets, net and net investment in property leased to
franchisees. Only Canada and the United States represented 10% or more of our total long-lived assets as of December 31, 2020 and December 31, 2019.
Our measure of segment income is Adjusted EBITDA. Adjusted EBITDA represents earnings (net income or loss) before interest expense, net, loss on early
extinguishment of debt, income tax expense, and depreciation and amortization, adjusted to exclude (i) the non-cash impact of share-based compensation and non-
cash incentive compensation expense, (ii) (income) loss from equity method investments, net of cash distributions received from equity method investments, (iii)
other operating expenses (income), net and, (iv) income/expenses from non-recurring projects and non-operating activities. For the periods referenced, this
included costs incurred in connection with the centralization and relocation of our Canadian and U.S. restaurant support centers to new offices in Toronto, Ontario,
and Miami, Florida, respectively, (“Office centralization and relocation cost”) professional advisory and consulting services associated with certain
transformational corporate restructuring initiatives that rationalize our structure and optimize cash movements, including consulting services related to the
interpretation of final and proposed regulations and guidance under the Tax Cuts and Jobs Act (“Corporate restructuring and tax advisory fees”) and professional
fees and compensation related expenses in connection with the Popeyes Acquisition (“PLK Transaction costs”).
Segment income:
TH
BK
PLK
Adjusted EBITDA
Share-based compensation and non-cash incentive compensation expense
PLK Transaction costs
Corporate restructuring and tax advisory fees
Office centralization and relocation costs
Impact of equity method investments (a)
Other operating expenses (income), net
EBITDA
Depreciation and amortization
Income from operations
Interest expense, net
Loss on early extinguishment of debt
Income tax expense
Net income
98
2020
2019
2018
$
$
823 $
823
218
1,864
84
—
16
—
48
105
1,611
189
1,422
508
98
66
750 $
1,122 $
994
188
2,304
74
—
31
6
11
(10)
2,192
185
2,007
532
23
341
1,111 $
1,127
928
157
2,212
55
10
25
20
(3)
8
2,097
180
1,917
535
—
238
1,144
Table of Contents
(a)
Represents (i) (income) loss from equity method investments and (ii) cash distributions received from our equity method investments. Cash distributions
received from our equity method investments are included in segment income.
Note 18. Quarterly Financial Data (Unaudited)
Summarized unaudited quarterly financial data (in millions, except per share data) was as follows:
Quarters Ended
March 31,
June 30,
September 30,
December 31,
2020
2019
2020
2019
2020
2019
2020
2019
$
$
$
$
$
1,225 $
389 $
224 $
0.48 $
0.48 $
1,266 $
434 $
246 $
0.53 $
0.53 $
1,048 $
243 $
164 $
0.35 $
0.35 $
1,400 $
491 $
257 $
0.56 $
0.55 $
1,337 $
417 $
223 $
0.48 $
0.47 $
1,458 $
571 $
351 $
0.76 $
0.75 $
1,358 $
373 $
139 $
0.30 $
0.30 $
1,479
511
257
0.55
0.54
Total revenues
Income from operations
Net income
Basic earnings per share
Diluted earnings per share
Note 19. Subsequent Events
Dividends
On January 5, 2021, we paid a cash dividend of $0.52 per common share to common shareholders of record on December 21, 2020. On such date,
Partnership also made a distribution in respect of each Partnership exchangeable unit in the amount of $0.52 per exchangeable unit to holders of record on
December 21, 2020.
On February 11, 2021, we announced that the board of directors had declared a cash dividend of $0.53 per common share for the first quarter of 2020. The
dividend will be paid on April 6, 2021 to common shareholders of record on March 23, 2021. Partnership will also make a distribution in respect of each
Partnership exchangeable unit in the amount of $0.53 per Partnership exchangeable unit, and the record date and payment date for distributions on Partnership
exchangeable units are the same as the record date and payment date set forth above.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
*****
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
An evaluation was conducted under the supervision and with the participation of the Company’s management, including the Chief Executive Officer (CEO)
and Chief Financial Officer (CFO), of the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as defined in Rule 13a-
15e under the Exchange Act) as of December 31, 2020. Based on that evaluation, the CEO and CFO concluded that the Company’s disclosure controls and
procedures were effective as of such date.
Internal Control over Financial Reporting
The Company’s management, including the CEO and CFO, confirm that there were no changes in the Company’s internal control over financial reporting
during the fourth quarter of 2020 that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
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Management’s Report on Internal Control over Financial Reporting
Management’s Report on Internal Control Over Financial Reporting and the report of Independent Registered Public Accounting Firm are set forth in Part II,
Item 8 of this Form 10-K.
Item 9B. Other Items
Item 5.02 Departure of Directors or Certain Officers; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
(e)
On December 8, 2020, the Compensation Committee of the Board of Directors (the “Compensation Committee”) modified the 2020 Annual Bonus Swap
Program that had been previously approved to change the vesting of all newly granted matching restricted stock units (“RSUs”) from cliff vesting after five years
to vesting ratably over four years. Pursuant to RBI’s Bonus Swap Program, RBI provides eligible employees, including its named executive officers, or NEOs, the
ability to invest 25% or 50% of their calculated net cash bonus for 2020 (after deducting an amount based on a theoretical tax rate of 40%) into RBI common
shares (“Investment Shares”). Employees who elect to purchase Investment Shares receive matching RSUs. The number of matching RSUs that they receive
depends on their Swap Election Percentage and their level within the organization. All of RBI’s eligible NEOs elected to participate in the 2020 Bonus Swap
Program at the 50% level. The matching RSUs will vest ratably on December 31, 2021, 2022, 2023 and 2024. All unvested matching RSUs will be forfeited if an
NEO’s service (including service on the Board of Directors of RBI) is terminated for any reason.
On December 8, 2020, the Compensation Committee approved the 2021 Bonus Swap Program on substantially the same terms as the 2020 Bonus Swap
Program, except that the compensation committee increased the RSU match at each level.
On December 8, 2020, the Compensation Committee approved modifications to the performance criteria for performance share units (“PSUs”) issued by
RBI in 2019 and 2020. The PSUs issued in 2019 and some of the PSUs issued in 2020 originally would be earned based on meeting a specific compound annual
growth rate for organic Adjusted EBITDA for the three-year period from 2019 through 2021, with a catch-up mechanism that allowed for a reduced payout based
on a target for the four year period including 2022. Other PSUs issued in 2020 originally would be earned based on a two year compound annual growth rate of
comparable sales for Tim Hortons in Canada for 2020 and 2021, with a catch-up mechanism that allowed for reduced payout based on a target for the three -year
period including 2022. Given the effects of the COVID-19 pandemic on our business, the ability to meet these targets is greatly diminished, negatively affecting the
retentive value. This situation is intensified by RBI’s practice of granting larger amounts of PSUs on a periodic basis with several years of grants based on the same
multi-year period, as opposed to a more regular annual grant practice, with rolling performance cycles, that many other companies utilize. Therefore, if a tranche of
PSUs were to lose all value, the individuals holding that tranche may not have other tranches that cover different periods or goals.
In order to preserve the retention value of the PSUs described above, recognize the contributions from our employees to confront the challenges posed by the
pandemic and incentivize continued performance for recovery and a move toward growth in 2021, the Compensation Committee approved a modification of the
performance criteria for all of these awards based on a formula consisting of: 30% based on a comparable sales target, 20% based on a net restaurant growth
(“NRG”) target and 50% based on an organic Adjusted EBITDA target, in each case, the targets are one-year targets based on 2021 budget. Each of these targets
could be earned between a threshold of 50% and a maximum of 200%, provided that the total payout for the awards is capped at 100% of target and subject to a
threshold payout of 50%. The new performance criteria do not contain a catch-up provision and are subject to the same vesting as the original awards. A copy of
the Amended Performance Award Agreement between RBI and each of the NEOs is filed herewith as Exhibit 10.36(c). This summary is qualified in its entirety to
the full text of that award agreement.
Also on December 8, 2020, the Compensation Committee determined to rebalance the mix of base salary and annual incentive compensation for NEOs to be
more competitive. These changes will be effective March 1, 2021. For Mr. Cil, his base salary will increase from $800,000 to $950,000 while his target annual
incentive percentage will decrease from 300% to 230%. For Mr. Dunnigan, his base salary will increase from $550,000 to $600,000 while his target annual
incentive compensation will decrease from 150% to 130%. For Mr. Kobza, his base salary will increase from $650,000 to $800,000 while his target annual
incentive percentage will decrease from 250% to 185%. For Ms. Granat, her base salary will increase from $550,000 to $575,000 while her target annual incentive
percentage will decrease from 150% to 140%.
On December 8, 2020, the Compensation Committee approved the 2021 Annual Bonus Program, which has been updated to decrease the amount of
compensation tied to individual metrics and add components based on comparable sales and NRG. For 2021 annual incentive, each of the NEOs will have 25% of
the target based on achievement of individual metrics which may be earned from a threshold of 0% up to 100%; 20% of the target based on comparable sales
achievement which may be earned from a threshold of 50% to a maximum of 200%; 15% of the target based on NRG achievement which may be earned from a
threshold of 50% to a maximum of 200%; and 40% of the target based on organic Adjusted EBITDA achievement which may be earned from a threshold of
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50% to a maximum of 200%. Overall, any annual incentive payout will require (1) achievement of the threshold amount of Adjusted EBITDA, (2) that individual
achievement must also be earned at no less than 50% and (3) that certain general and administrative expense targets must be met. Additionally, annual incentives
will be subject to a 30% reduction if the minimum free cash flow target established for the applicable year is not achieved.
On January 19, 2021, the Compensation Committee approved discretionary awards to Messrs. Cil, Kobza, and Dunnigan and Ms. Granat, which consist of
approximately 1/3 RSUs and 2/3 performance based RSUs at target. The grants were 49,500 RSUs and 100,500 PBRSUs for Mr. Cil, 41,250 RSUs and 83,750
PBRSUs for Mr. Kobza, 16,500 RSUs and 33,500 PBRSUs for Mr. Dunnigan and 9,900 RSUs and 20,100 PBRSUs for Ms. Granat. The RSUs vest ratably on
December 31 of 2021, 2022 and 2023. The performance measure for purposes of determining the number of PBRSUs earned is the relative total shareholder return
of RBI shares on the NYSE compared to the S&P 500 for the period from December 31, 2020 to December 31, 2023. The Compensation Committee established a
target performance level at the 50th percentile, a performance threshold at or above which 50% of target is earned and below which no shares are earned at the 25th
percentile, a performance level to earn 150% of the target at the 75th percentile and a maximum performance level at the 90th percentile at or above which 200%
of the target is earned. Once earned, the PBRSUs will cliff vest on February 19, 2024. In addition, if an executive’s service to RBI is terminated (other than due to
death or disability) prior to February 19, 2023, he or she will forfeit the entire award. A copy of the form of Restricted Stock Unit Awards Agreement between RBI
and each of the NEOs is filed herewith as Exhibit 10.36(d) and a copy of the Performance Award Agreement between RBI and each of the NEOs is filed herewith
as Exhibit 10.36(e). This summary is qualified in its entirety to the full text of those award agreements.
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Table of Contents
Item 10. Directors, Executive Officers and Corporate Governance
Part III
The information required by this Item, other than the information regarding our executive officers set forth under the heading "Executive Officers of the
Registrant" in Part I of this Form 10-K, required by Item 401 of Regulation S-K, is incorporated herein by reference from the Company’s definitive proxy
statement to be filed no later than 120 days after December 31, 2020. We refer to this proxy statement as the Definitive Proxy Statement.
Item 11. Executive Compensation
The information required by this item will be contained in the Definitive Proxy Statement and is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this item, other than the information regarding our equity plans set forth below required by Item 201(d) of Regulation S-K, will
be contained in the Definitive Proxy Statement and is incorporated herein by reference.
Securities Authorized for Issuance under Equity Compensation Plans
Information regarding equity awards outstanding under our compensation plans as of December 31, 2020 was as follows (amounts in thousands, except per
share data):
(a)
(b)
Number of
Securities to be
Issued Upon
Exercise of
Outstanding
Options, Warrants
and Rights
Weighted-Average
Exercise Price of
Outstanding
Options, Warrants
and Rights
(1)
(c)
Number of
Securities
Remaining
Available for
Future Issuance
under Equity
Compensation
Plans (Excluding
Securities Reflected
in Column (a))
14,832
—
14,832
$
$
51.86
—
51.86
11,591
—
11,591
Plan Category
Equity Compensation Plans Approved by Security Holders
Equity Compensation Plans Not Approved by Security Holders
Total
(1) The weighted average exercise price does not take into account the common shares issuable upon outstanding RSUs vesting, which have no exercise price.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this item will be contained in the Definitive Proxy Statement and is incorporated herein by reference.
Item 14. Principal Accounting Fees and Services
The information required by this item will be contained in the Definitive Proxy Statement and is incorporated herein by reference.
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Part IV
Item 15. Exhibits and Financial Statement Schedules
(a)(1) All Financial Statements
Consolidated financial statements filed as part of this report are listed under Part II, Item 8 of this Form 10-K.
(a)(2)
Financial Statement Schedules
No schedules are required because either the required information is not present or is not present in amounts sufficient to require submission of the schedule,
or because the information required is included in the consolidated financial statements or the notes thereto.
(a)(3) Exhibits
The following exhibits are filed as part of this report.
Exhibit
Number
2.3
2.4
2.5
3.1
3.2
4.1
4.2
4.3
4.9
4.10
Description
Incorporated by Reference
Arrangement Agreement and Plan of Merger, dated
August 26, 2014, by and among Burger King Worldwide,
Inc., 1011773 B.C. Unlimited Liability Company, New
Red Canada Partnership, Blue Merger Sub, Inc., 8997900
Canada Inc., and Tim Hortons Inc.
Incorporated herein by reference to Exhibit 2.1 to
the Form 8-K of Burger King Worldwide, Inc. filed on
August 29, 2014.
Plan of Arrangement under Section 192 of the
Canada Business Corporations Act.
Incorporated herein by reference to Exhibit 2.2 to
the Form 8-K of Registrant filed on December 12, 2014.
Agreement and Plan of Merger, dated as of
February 21, 2017, by and among Restaurant Brands
International Inc., Popeyes Louisiana Kitchen, Inc.,
Orange, Inc., and, solely for purposes of Section 9.03 of
the Agreement and Plan of Merger, Restaurant Brands
Holdings Corporation.
Articles of Incorporation of the Registrant, as
amended.
Amended and Restated By-Law 1 of the Registrant.
Description of Share Capital
Incorporated herein by reference to Exhibit 2.1 to
the Form 8-K of Registrant filed on February 22, 2017.
Incorporated herein by reference to Exhibit 3.1 to
the Form 10-K of Registrant filed on March 2, 2015.
Incorporated herein by reference to Exhibit 3.4 to
the Form 8-K of Registrant filed on December 12, 2014.
Incorporated herein by reference to Exhibit 4.1 to
the Form 10-K of Registrant filed on February 21, 2020.
Registration Rights Agreement between Burger
King Worldwide, Inc. and 3G Special Situations Fund II,
L.P.
Incorporated herein by reference to Exhibit 4.3 to
the Form S-8 of Burger King Worldwide, Inc. (File
No. 333-182232).
Registration Rights Agreement between Burger
King Worldwide Inc., Pershing Square, L.P., Pershing
Square II, L.P., Pershing Square International, Ltd. and
William Ackman.
Registration Rights Agreement dated as of
December 12, 2014 by and among Restaurant Brands
International Inc. and National Indemnity Company.
Indenture, dated as of May 17, 2017, by and among
1011778 B.C. Unlimited Liability Company, as issuer,
New Red Finance, Inc., as co-issuer, the guarantors from
time to time party thereto and Wilmington Trust, National
Association, as trustee and as collateral agent.
Incorporated herein by reference to Exhibit 4.4 to
the Form S-8 of Burger King Worldwide, Inc. (File
No. 333-182232).
Incorporated herein by reference to Exhibit 4.9 to
the Form 10-K of Registrant filed on February 26, 2016.
Incorporated herein by reference to Exhibit 4.10 to
the Form 8-K of Registrant filed on May 17, 2017.
4.10(a)
Form of 4.250% First Lien Senior Secured Note
due 2024 (included as Exhibit A to Exhibit 4.10).
Incorporated herein by reference to Exhibit 4.10 to
the Form 8-K of Registrant filed on May 17, 2017.
103
Table of Contents
4.13
4.13(a)
4.14
4.14(a)
4.15
4.15(a)
4.16
4.16(a)
4.17
4.18
4.18(a)
9.1
Indenture, dated as of September 24, 2019, by and
among 1011778 B.C. Unlimited Liability Company, as
issuer, New Red Finance, Inc., as co-issuer, the
guarantors from time to time party thereto and
Wilmington Trust, National Association, as trustee and
as collateral agent.
Incorporated herein by reference to Exhibit 4.13 to
the Form 8-K of Registrant filed on September 24, 2019.
Form of 3.875% First Lien Senior Secured Note
due 2028 (included as Exhibit A to Exhibit 4.13).
Incorporated herein by reference to Exhibit 4.13(a)
to the Form 8-K of Registrant filed on September 24, 2019.
Indenture, dated as of November 19, 2019, by and
among 1011778 B.C. Unlimited Liability Company, as
issuer, New Red Finance, Inc., as co-issuer, the
guarantors from time to time party thereto and
Wilmington Trust, National Association, as trustee and
as collateral agent.
Incorporated herein by reference to Exhibit 4.14 to
the Form 8-K of Registrant filed on November 20, 2019.
Form of 4.375% Second Lien Senior Secured
Note due 2028 (included as Exhibit A to Exhibit 4.14).
Incorporated herein by reference to Exhibit 4.14(a)
to the Form 8-K of Registrant filed on November 20, 2019.
Indenture, dated as of April 7, 2020, by and
among 1011778 B.C. Unlimited Liability Company, as
issuer, New Red Finance, Inc., as co-issuer, the
guarantors from time to time party thereto and
Wilmington Trust, National Association, as trustee and
as collateral agent.
Incorporated by reference to Exhibit 4.15 to the
Form 8-K of Registrant filed on April 7, 2020.
Form of 5.750% First Lien Senior Secured Note
due 2025 (included as Exhibit A to Exhibit 4.15).
Incorporated by reference to Exhibit 4.15(a) to the
Form 8-K of Registrant filed on April 7, 2020.
Indenture, dated as of October 5, 2020, by and
among 1011778 B.C. Unlimited Liability Company, as
issuer, New Red Finance, Inc., as co-issuer, the
guarantors from time to time party thereto and
Wilmington Trust, National Association, as trustee and
collateral agent.
Incorporated by reference to Exhibit 4.16 to the
Form 8-K of Registrant filed on October 13, 2020.
Form of 4.000% Second Lien Senior Secured
Notes due 2030 (included as Exhibit A to Exhibit 4.16)
Incorporated by reference to Exhibit 4.16(a) to the
Form 8-K of Registrant filed on October 13, 2020.
First Supplemental Indenture, dated as of
November 2, 2020, by and among 1011778 B.C.
Unlimited Liability Company, as issuer, New Red
Finance, Inc., as co-issuer, the guarantors party thereto
and Wilmington Trust, National Association, as trustee
and collateral agent.
Indenture, dated as of November 9, 2020, by and
among 1011778 B.C. Unlimited Liability Company, as
issuer, New Red Finance, Inc., as co-issuer, the
guarantors from time to time party thereto and
Wilmington Trust, National Association, as trustee and
collateral agent.
Incorporated by reference to Exhibit 4.18 to the
Form 8-K of Registrant filed on November 2, 2020.
Incorporated by reference to Exhibit 4.18 to the
Form 8-K of Registrant filed on November 9, 2020.
Form of 3.500% First Lien Senior Secured Notes
due 2029 (included as Exhibit A to Exhibit 4.18)
Incorporated by reference to Exhibit 4.18(a) to the
Form 8-K of Registrant filed on November 9, 2020.
Voting Trust Agreement, dated December 12,
2014, between Restaurant Brands International Inc.,
Restaurant Brands International Limited Partnership, and
Computershare Trust Company of Canada.
Incorporated herein by reference to Exhibit 3.6 to
the Form 8-K of Registrant filed on December 12, 2014.
10.1*
Burger King Savings Plan, including all
amendments thereto.
Incorporated herein by reference to Exhibit 10.40 to
the Form S-8 of Burger King Holdings, Inc. (File No. 333-
144592).
10.2(a)*
2011 Omnibus Incentive Plan, as amended
effective December 12, 2014.
Incorporated herein by reference to Exhibit 99.4 to
the Form S-8 of Registrant (File No. 333-200997).
104
Table of Contents
10.2(b)*
10.4(a)*
10.4(b)*
10.4(c)*
10.4(d)*
10.4(e)*
10.4(f)*
10.4(g)*
Form of Option Award Agreement under the
Burger King Worldwide Holdings, Inc. 2011 Omnibus
Incentive Plan.
Incorporated herein by reference to Exhibit 10.77
to the Form 10-Q of Burger King Holdings, Inc. filed on
May 12, 2011.
Amended and Restated 2012 Omnibus Incentive
Plan, as amended effective December 12, 2014.
Incorporated herein by reference to Exhibit 99.2 to
the Form S-8 of Registrant (File No. 333-200997).
Form of Option Award Agreement under the
Burger King Worldwide, Inc. 2012 Omnibus Incentive
Plan.
Form of Matching Option Award Agreement
under the Burger King Worldwide, Inc. 2012 Omnibus
Incentive Plan.
Incorporated herein by reference to Exhibit 10.25
to the Form 10-K of Burger King Worldwide, Inc. filed on
February 22, 2013.
Incorporated herein by reference to Exhibit 10.26
to the Form 10-K of Burger King Worldwide, Inc. filed on
February 22, 2013.
Form of Amendment to Option Award Agreement
under the Burger King Worldwide Holdings, Inc. 2011
Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit 10.28
to the Form 10-Q of Burger King Worldwide, Inc. filed on
April 26, 2013.
Form of Option Award Agreement under the
Burger King Worldwide, Inc. Amended and Restated
2012 Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit 10.29
to the Form 10-Q of Burger King Worldwide, Inc. filed on
July 31, 2013.
Form of Board Member Option Award Agreement
under the Burger King Worldwide, Inc. Amended and
Restated 2012 Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit 10.30
to the Form 10-Q of Burger King Worldwide, Inc. filed on
July 31, 2013.
Form of Option Award Agreement under the
Amended and Restated 2012 Omnibus Incentive Plan.
10.4(h)*
Form of Board Member Option Award Agreement
under the Amended and Restated 2012 Omnibus
Incentive Plan.
Incorporated herein by reference to Exhibit 10.32
to the Form 10-Q of Burger King Worldwide, Inc. filed on
October 28, 2013.
Incorporated herein by reference to Exhibit 10.33
to the Form 10-Q of Burger King Worldwide, Inc. filed on
October 28, 2013.
10.4(i)*
10.4(j)*
10.5
10.7*
10.10(a)
10.10(b)
Form of Board Member Restricted Stock Unit
Award Agreement under the Amended and Restated 2012
Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit 10.35
to the Form 10-K of Burger King Worldwide, Inc. filed on
February 21, 2014.
Form of Matching Option Award Agreement
under the Amended and Restated 2012 Omnibus
Incentive Plan.
Burger King Form of Director Indemnification
Agreement.
Burger King Corporation U.S. Severance Pay Plan.
Credit Agreement, dated October 27, 2014, among
1011778 B.C. Unlimited Liability Company, as the
Parent Borrower, New Red Finance, Inc., as the
Subsidiary Borrower, 1013421 B.C. Unlimited Liability
Company, as Holdings, JPMorgan Chase Bank, N.A., as
Administrative Agent and Collateral Agent, the Lenders
Party thereto, Wells Fargo Bank, National Association, as
Syndication Agent, the Parties listed thereto as Co-
Documentation Agents, J.P. Morgan Securities LLC, and
Wells Fargo Securities LLC, as Joint Lead Arrangers, and
J.P. Morgan Securities LLC, Wells Fargo Securities LLC,
and Merrill Lynch, Pierce, Fenner and Smith,
Incorporated, as Joint Book Runners (the “Credit
Agreement”).
Guaranty, dated December 12, 2014, among
1013421 B.C. Unlimited Liability Company, as
Guarantor, Certain Subsidiaries defined therein, as
Guarantors, and JPMorgan Chase Bank, N.A., as
Collateral Agent.
Incorporated herein by reference to Exhibit 10.36
to the Form 10-K of Burger King Worldwide, Inc. filed on
February 21, 2014.
Incorporated herein by reference to Exhibit 10.1 to
the Form 8-K of Burger King Worldwide, Inc. filed on
June 25, 2012.
Incorporated herein by reference Exhibit 10.31 to
the Form 10-Q of Burger King Worldwide, Inc. filed on
October 28, 2013.
Incorporated herein by reference to Exhibit 4.2 to
the Form S-4 of Registrant (File No. 333-198769).
Incorporated herein by reference to Exhibit 10.2 to
the Form 8-K of Registrant filed on December 12, 2014.
10.10(c)
Amendment No. 1, dated May 22, 2015, to the
Credit Agreement.
Incorporated herein by reference to Exhibit 10.1 to
the Form 8-K of Registrant filed on May 26, 2015.
105
10.10(e)
10.10(f)
10.10(g)
10.10(h)
10.10(i)
10.10(j)
10.10(k)
10.11(a)*
10.11(b)*
10.11(c)*
10.11(d)*
Table of Contents
10.10(d)
Amendment No. 2, dated February 17, 2017, to
the Credit Agreement.
Incorporated herein by reference to Exhibit
10.10(d) to the Form 10-Q of Registrant filed on October
26, 2017.
Incremental Facility Amendment, dated as of
March 27, 2017, to the Credit Agreement.
Incorporated herein by reference to Exhibit
10.10(e) to the Form 10-Q of Registrant filed on October
26, 2017.
Incremental Facility Amendment No. 2, dated as
of May 17, 2017, to the Credit Agreement.
Incorporated herein by reference to Exhibit 10.42
to the Form 8-K of Registrant filed on May 17, 2017.
Incremental Facility Amendment No. 3, dated as
of October 13, 2017, to the Credit Agreement.
Incorporated herein by reference to Exhibit 10.45
to the Form 8-K of Registrant filed on October 16, 2017.
Amendment No. 3, dated October 2, 2018, to the
Credit Agreement.
Incremental Facility Amendment No. 4, dated as
of September 6, 2019, to the Credit Agreement, dated
October 27, 2014, by and among 1011778 B.C.
Unlimited Liability Company, as parent borrower, New
Red Finance, Inc., as subsidiary borrower, 1013421 B.C.
Unlimited Liability Company, the other guarantors party
thereto, JPMorgan Chase Bank, N.A., as administrative
agent, collateral agent and swing line lender, and the
other lenders party thereto.
Amendment No. 4, dated as of November 19,
2019, to the Credit Agreement, dated October 27, 2014,
by and among 1011778 B.C. Unlimited Liability
Company, as parent borrower, New Red Finance, Inc., as
subsidiary borrower, 1013421 B.C. Unlimited Liability
Company, the other guarantors party thereto, JPMorgan
Chase Bank, N.A., as administrative agent, collateral
agent and swing line lender, and the other lenders party
thereto.
Amendment No. 5, dated as of April 2, 2020, to
the Credit Agreement, dated October 27, 2014, by and
among 1011778 B.C. Unlimited Liability Company, as
parent borrower, New Red Finance, Inc., as subsidiary
borrower, 1013421 B.C. Unlimited Liability Company,
the other guarantors party thereto, JPMorgan Chase
Bank, N.A., as administrative agent, collateral agent and
swing line lender, and the other lenders party thereto.
2014 Omnibus Incentive Plan.
Form of Option Award Agreement under the 2014
Omnibus Incentive Plan.
Form of Base Matching Option Award Agreement
under the 2014 Omnibus Incentive Plan.
Form of Additional Matching Option Award
Agreement under the 2014 Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit
10.10(h) to the Form 10-Q of Registrant filed on October
24, 2018.
Incorporated herein by reference to Exhibit 10.66
to the Form 8-K of Registrant filed on September 9, 2019.
Incorporated herein by reference to Exhibit 10.68
to the Form 8-K of Registrant filed on November 20,
2019.
Incorporated herein by reference to Exhibit 10.71
to the Form 8-K of Registrant filed on April 3, 2020.
Incorporated herein by reference to Exhibit 99.1 to
the Form S-8 of Registrant (File No. 333-200997).
Incorporated herein by reference to Exhibit
10.11(b) to the Form 10-K of Registrant filed on March 2,
2015.
Incorporated herein by reference to Exhibit
10.11(c) to the Form 10-K of Registrant filed on March 2,
2015.
Incorporated herein by reference to Exhibit
10.11(d) to the Form 10-K of Registrant filed on March 2,
2015.
Incorporated herein by reference to Exhibit
10.11(e) to the Form 10-K of Registrant filed on March 2,
2015.
Incorporated herein by reference to Exhibit
10.11(f) to the Form 10-K of Registrant filed on March 2,
2015.
10.11(e)*
Form of Board Member Option Award Agreement
under the 2014 Omnibus Incentive Plan.
10.11(f)*
Form of Board Member Restricted Stock Unit
Award Agreement under the 2014 Omnibus Incentive
Plan.
106
Table of Contents
10.12
10.13
10.16(c)*
Amended and Restated Limited Partnership
Agreement, dated December 11, 2014, between
Restaurant Brands International Inc., 8997896 Canada
Inc. and each person who is admitted as a Limited Partner
in accordance with the terms of the agreement.
Incorporated herein by reference to Exhibit 3.5 to
the Form 8-K of Registrant filed on December 12, 2014.
Restaurant Brands International Inc. Form of
Director Indemnification Agreement.
Incorporated herein by reference to Exhibit 10.13
to the Form 10-K of Registrant filed on March 2, 2015.
Tim Hortons Inc. Form of Nonqualified Stock
Option Award Agreement under the 2006 Stock Incentive
Plan (2011 Award).
Incorporated herein by reference to Exhibit 10(b)
to the Form 10-Q of Tim Hortons Inc. filed on August 11,
2011.
10.17(a)*
2012 Stock Incentive Plan, as amended effective
December 12, 2014.
Incorporated herein by reference to Exhibit 99.3 to
the Form S-8 of Registrant (File No. 333-200997).
10.17(b)*
10.17(c)*
10.17(d)*
10.22*
10.23*
10.24*
10.32*
10.33*
10.35(a)*
10.35(b)*
Tim Hortons Inc. Form of Nonqualified Stock
Option Award Agreement under the 2012 Stock Incentive
Plan (2012 Award).
Incorporated herein by reference to Exhibit 10(c)
to the Form 10-Q of Tim Hortons Inc. filed on August 9,
2012.
Tim Hortons Inc. Form of Nonqualified Stock
Option Award Agreement under the 2012 Stock Incentive
Plan (2013 Award).
Incorporated herein by reference to Exhibit 10(c)
to the Form 10-Q of Tim Hortons Inc. filed on May 8,
2013.
Tim Hortons Inc. Form of Nonqualified Stock
Option Award Agreement under the 2012 Stock Incentive
Plan (2014 Award).
Incorporated herein by reference to Exhibit 10(c)
to the Form 10-Q of Tim Hortons Inc. filed on August 6,
2014.
Employment and Post-Covenants Agreement
dated as of February 3, 2015 between Restaurant Brands
International Inc. and Joshua Kobza.
Employment and Post-Covenants Agreement
dated as of February 3, 2015 between Burger King
Corporation and Joshua Kobza.
Employment and Post-Covenants Agreement
dated as of February 3, 2015 between The TDL Group
Corp. and Joshua Kobza.
Form of Non-Compete, Non-Solicitation and
Confidentiality Agreement.
Incorporated herein by reference to Exhibit 10.22
to the Form 10-Q of Registrant filed on May 5, 2015.
Incorporated herein by reference to Exhibit 10.23
to the Form 10-Q of Registrant filed on May 5, 2015.
Incorporated herein by reference to Exhibit 10.24
to the Form 10-Q of Registrant filed on May 5, 2015.
Filed herewith
Restaurant Brands International Inc. 2015
Employee Share Purchase Plan.
Incorporated herein by reference to Exhibit 10.30
to the Form S-8 of Registrant filed on September 1, 2015.
Form of Base Matching Restricted Stock Unit
Award Agreement under the 2014 Omnibus Incentive
Plan.
Form of Additional Matching Restricted Stock
Unit Award Agreement under the 2014 Omnibus
Incentive Plan.
10.35(c)*
Form of Performance Award Agreement under the
2014 Omnibus Incentive Plan
10.35(d)*
Form of Stock Option Award Agreement under
the 2014 Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit
10.35(a) to the Form 10-Q of Registrant filed on
April 29, 2016.
Incorporated herein by reference to Exhibit
10.35(b) to the Form 10-Q of Registrant filed on
April 29, 2016.
Incorporated herein by reference to Exhibit
10.35(c) to the Form 10-Q of Registrant filed on
April 29, 2016.
Incorporated herein by reference to Exhibit
10.35(d) to the Form 10-Q of Registrant filed on
April 29, 2016.
10.36*
10.36(a)*
10.36(b)*
Restaurant Brands International Inc. Amended and
Restated 2014 Omnibus Incentive Plan, as amended.
Incorporated herein by reference to Exhibit 10.36
to the Form 10-Q of Registrant filed on August 1, 2018.
Form of Performance Award Agreement (TH)
under the Amended and Restated 2014 Omnibus Plan
Incorporated herein by reference to Exhibit 10.73
to the Form 10-Q of Registrant filed on May 1, 2020.
Form Matching Restricted Stock Unit Agreement
under the Amended and Restated 2014 Omnibus Plan
Filed herewith
107
Table of Contents
10.36(c)*
10.36(d)*
10.36(e)*
10.37*
10.38*
10.40*
10.41*
10.42*
10.49(a)*
10.49(b)*
10.49(c)*
10.50*
10.51*
10.52*
10.53*
10.54*
10.55*
Form Amended Performance Unit Agreement
under the Amended and Restated 2014 Omnibus Plan
Form Restricted Stock Unit Agreement under the
Amended and Restated 2014 Omnibus Plan
Form Performance Awards Agreement (TSR)
under the Amended and Restated 2014 Omnibus Plan
Filed herewith
Filed herewith
Filed herewith
Form of Restaurant Brands International Inc.
Board Member Stock Option Award Agreement under
the Amended and Restated 2014 Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit 10.37
to the Form 10-Q of Registrant filed on October 24,
2016.
Restaurant Brands International Inc. U.S.
Severance Pay Plan.
Amendment No. 1 to Restaurant Brands
International Inc. Amended and Restated 2014 Omnibus
Incentive Plan.
Form of Base Matching Restricted Stock Unit
Award Agreement under the Amended and Restated 2014
Omnibus Incentive Plan.
Form of Additional Matching Restricted Stock
Unit Award Agreement under the Amended and Restated
2014 Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit 10.38
to the Form 10-K of Registrant filed on February 17,
2017.
Incorporated herein by reference to Exhibit 10.39
to the Form 10-Q of Registrant filed on April 26, 2017.
Incorporated herein by reference to Exhibit 10.40
to the Form 10-Q of Registrant filed on April 26, 2017.
Incorporated herein by reference to Exhibit 10.41
to the Form 10-Q of Registrant filed on April 26, 2017.
Employment and Post-Employment Covenants
Agreement dated as of February 9, 2015 by and between
The TDL Group Corp. and Jill Granat.
Incorporated herein by reference to Exhibit
10.49(a) to the Form 10-Q of Registrant filed April 24,
2018.
Employment and Post-Employment Covenants
Agreement dated as of February 9, 2015 by and between
Restaurant Brands International Inc. and Jill Granat.
Incorporated herein by reference to Exhibit
10.49(b) to the Form 10-Q of Registrant filed April 24,
2018.
Employment and Post-Employment Covenants
Agreement dated as of February 9, 2015 by and between
Burger King Corporation and Jill Granat.
Incorporated herein by reference to Exhibit
10.49(c) to the Form 10-Q of Registrant filed April 24,
2018.
Employment and Post-Employment Covenants
Agreement dated as of January 22, 2018 by and between
The TDL Group Corp. and Matthew Dunnigan.
Employment and Post-Employment Covenants
Agreement dated as of January 22, 2018 by and between
Restaurant Brands International Inc. and Matthew
Dunnigan.
Employment and Post-Employment Covenants
Agreement dated as of January 22, 2018 by and between
Restaurant Brands International U.S. Services LLC and
Matthew Dunnigan.
Employment and Post-Employment Covenants
Agreement dated as of January 23, 2019 by and between
The TDL Group Corp. and Jose E. Cil.
Employment and Post-Employment Covenants
Agreement dated as of January 23, 2019 by and between
Restaurant Brands International Inc. and Jose E. Cil.
Employment and Post-Employment Covenants
Agreement dated as of January 23, 2019 by and between
Burger King Corporation and Jose E. Cil.
108
Incorporated herein by reference to Exhibit 10.50
to the Form 10-Q of Registrant filed on April 29, 2019.
Incorporated herein by reference to Exhibit 10.51
to the Form 10-Q of Registrant filed on April 29, 2019.
Incorporated herein by reference to Exhibit 10.52
to the Form 10-Q of Registrant filed on April 29, 2019.
Incorporated herein by reference to Exhibit 10.53
to the Form 10-Q of Registrant filed on April 29, 2019.
Incorporated herein by reference to Exhibit 10.54
to the Form 10-Q of Registrant filed on April 29, 2019.
Incorporated herein by reference to Exhibit 10.55
to the Form 10-Q of Registrant filed on April 29, 2019.
Table of Contents
10.59*
10.60*
10.61*
10.62*
10.63*
10.64*
10.65*
10.72
10.74
10.75
10.76
21.1
23.1
31.1
31.2
32.1
Amendment dated January 23, 2019 to
Employment and Post-Covenants Agreement dated as of
February 9, 2015 between Restaurant Brands International
Inc. and Joshua Kobza.
Amendment dated January 23, 2019 to
Employment and Post-Covenants Agreement dated as of
February 9, 2015 between Burger King Corporation and
Joshua Kobza.
Amendment dated January 23, 2019 to
Employment and Post-Covenants Agreement dated as of
February 9, 2015 between The TDL Group Corp. and
Joshua Kobza.
Incorporated herein by reference to Exhibit 10.59 to
the Form 10-Q of Registrant filed on April 29, 2019.
Incorporated herein by reference to Exhibit 10.60 to
the Form 10-Q of Registrant filed on April 29, 2019.
Incorporated herein by reference to Exhibit 10.61 to
the Form 10-Q of Registrant filed on April 29, 2019.
Form of Performance Award Agreement under
Amended and Restated 2014 Omnibus Incentive Plan.
Incorporated herein by reference to Exhibit 10.62 to
the Form 10-Q of Registrant filed on April 29, 2019.
Amended and Restated Performance Award
Agreement dated as of May 17, 2019 by and between
Restaurant Brands International Inc. and Daniel Schwartz.
Form of Amended and Restated Base Matching
Restricted Stock Unit Award Agreement dated as of May
17, 2019 by and between Restaurant Brands International
Inc. and Daniel Schwartz.
Form of Amended and Restated Additional
Matching Restricted Stock Unit Award Agreement dated
as of May 17, 2019 by and between Restaurant Brands
International Inc. and Daniel Schwartz.
Purchase Agreement, dated as of April 2, 2020,
among Morgan Stanley & Co. LLC, as representative of
the Initial Purchasers (as defined therein), the Issuers (as
defined therein) and the Guarantors (as defined therein).
Purchase Agreement, dated as of September 16,
2020, among Morgan Stanley & Co. LLC, as
representative of the Initial Purchasers (as defined
therein), the Issuers (as defined therein) and the
Guarantors (as defined therein).
Purchase Agreement, dated as of October 14, 2020,
among Morgan Stanley & Co. LLC, as representative of
the Initial Purchasers (as defined therein), the Issuers (as
defined therein) and the Guarantors (as defined therein).
Purchase Agreement, dated as of October 20, 2020,
among JP Morgan Securities LLC, as representative of the
Initial Purchasers (as defined therein), the Issuers (as
defined therein) and the Guarantors (as defined therein).
List of Subsidiaries of the Registrant.
Consent of KPMG LLP.
Certification of Chief Executive Officer of
Restaurant Brands International Inc. pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer of
Restaurant Brands International Inc. pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer of
Restaurant Brands International Inc. pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
109
Incorporated herein by reference to Exhibit 10.63 to
the Form 10-Q of Registrant filed on August 2, 2019.
Incorporated herein by reference to Exhibit 10.64 to
the Form 10-Q of Registrant filed on August 2, 2019.
Incorporated herein by reference to Exhibit 10.65 to
the Form 10-Q of Registrant filed on August 2, 2019.
Incorporated herein by reference to Exhibit 10.72 to
the Form 10-Q of Registrant filed on May 1, 2020.
Incorporated herein by reference to Exhibit 10.74 to
the Form 10-Q of Registrant filed on October 28, 2020.
Incorporated here by reference to Exhibit 10.75 to
the Form 10-Q of Registrant filed on October 28, 2020.
Filed herewith.
Filed herewith.
Filed herewith.
Filed herewith.
Filed herewith.
Furnished herewith.
Table of Contents
32.2
Certification of Chief Financial Officer of
Restaurant Brands International Inc. pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Furnished herewith.
101.INS
XBRL Instance Document - the instance document
Filed herewith.
does not appear in the Interactive Data File because its
XBRL tags are embedded within the Inline XBRL
document
XBRL Taxonomy Extension Schema Document.
XBRL Taxonomy Extension Calculation Linkbase
Document.
XBRL Taxonomy Extension Definition Linkbase
Document.
XBRL Taxonomy Extension Label Linkbase
Document.
XBRL Taxonomy Extension Presentation Linkbase
Document.
Cover Page Interactive File
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
104
Filed herewith.
Filed herewith.
Filed herewith.
Filed herewith.
Filed herewith.
Formatted as Inline XBRL and contained in
Exhibit 101.
*
Management contract or compensatory plan or arrangement.
Certain instruments relating to long-term borrowings, constituting less than 10 percent of the total assets of the Registrant and its subsidiaries on a consolidated
basis, are not filed as exhibits herewith pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K. The Registrant agrees to furnish copies of such instruments to the
SEC upon request.
110
Table of Contents
Item 16. Form 10-K Summary
None.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Signatures
Restaurant Brands International Inc.
By:
/s/ José E. Cil
Name:
Title:
José E. Cil
Chief Executive Officer
Date: February 23, 2021
111
Table of Contents
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant
and in the capacities and on the dates indicated.
Signature
/s/ José E. Cil
José E. Cil
/s/ Matthew Dunnigan
Matthew Dunnigan
/s/ Jacqueline Friesner
Jacqueline Friesner
/s/ Alexandre Behring
Alexandre Behring
/s/ Daniel Schwartz
Daniel Schwartz
/s/ Maximilien de Limburg Stirum
Maximilien de Limburg Stirum
/s/ Paul J. Fribourg
Paul J. Fribourg
/s/ Neil Golden
Neil Golden
/s/ Ali Hedayat
Ali Hedayat
/s/ Golnar Khosrowshahi
Golnar Khosrowshahi
/s/ Jason Melbourne
Jason Melbourne
/s/ John Prato
John Prato
/s/ Carlos Alberto Sicupira
Carlos Alberto Sicupira
/s/ Joao M. Castro-Neves
Joao M. Castro-Neves
/s/ Roberto Thompson Motta
Roberto Thompson Motta
Title
Chief Executive Officer
(principal executive officer)
Chief Financial Officer
(principal financial officer)
Controller and Chief Accounting Officer
(principal accounting officer)
Date
February 23, 2021
February 23, 2021
February 23, 2021
Co-Chairman
February 23, 2021
Co-Chairman
February 23, 2021
Director
Director
Director
Director
Director
Director
Director
Director
Director
Director
112
February 23, 2021
February 23, 2021
February 23, 2021
February 23, 2021
February 23, 2021
February 23, 2021
February 23, 2021
February 23, 2021
February 23, 2021
February 23, 2021
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
MATCHING RESTRICTED STOCK UNIT AWARD AGREEMENT
EXHIBIT 10.36(b)
Unless defined in this Matching Restricted Stock Unit Award Agreement (the “Award Agreement”), capitalized terms will
have the same meanings ascribed to them in the Restaurant Brands International Inc. Amended and Restated 2014 Omnibus
Incentive Plan (as may be amended from time to time, the “Plan”).
Pursuant to Section 8 of the Plan, you have been granted Restricted Stock Units (the “RSUs”) on the following terms and
subject to the provisions of the Plan, which is incorporated herein by reference. The RSUs are granted in connection with your
purchase of Shares in the Restaurant Brands International, Inc. (the “Company”) 2020 Bonus Swap Program (the “Related
Shares”). In the event of a conflict between the provisions of the Plan and this Award Agreement, the provisions of the Plan will
govern.
Total Number of RSUs: [ ]
Grant Date:
Vesting Dates: 25% of the RSUs will vest on
December 31 of each of ____, ____, ____ and ____, subject to your continued Service
through each such Vesting Date and further subject to the Section entitled
“Termination” in Exhibit A.
By accepting this Award of RSUs and agreeing to this Award Agreement, you and the Company agree that this Award of
RSUs is granted under and governed by the terms and conditions of the Plan, the terms and conditions set forth in the attached
Exhibit A, the additional terms and conditions for employees outside the U.S. set forth in Exhibits B and C. Exhibits A, B and C
constitute part of this Award Agreement.
PARTICIPANT
RESTAURANT BRANDS INTERNATIONAL INC.
____________________________
Name:
By: ______________________________
Name: Jill Granat
Title: General Counsel
1
EXHIBIT A
TERMS AND CONDITIONS OF THE
MATCHING RESTRICTED STOCK UNIT AWARD AGREEMENT
No Payment for Shares.
No payment is required for Shares that you receive under this Award.
Restricted Stock Units.
Each RSU represents a right to receive one Share subject to the terms and conditions of the Plan and this Award Agreement.
Vesting.
The RSUs will vest on the Vesting Dates as set forth in this Award Agreement, subject to your continued Service through
each Vesting Date and to the section below entitled “Termination” and “Forfeiture of Unvested RSUs upon the Transfer of Related
Shares” For the avoidance of doubt, Service during only a portion of the vesting period, but where your Service is terminated prior to
a Vesting Date, does not entitle you to pro-rata vesting of any RSUs.
Adjustment for Certain Events.
If and to the extent that it would not cause a violation of Section 409A of the Code or other applicable law, if any Corporate Event
described in Section 5(d) of the Plan shall occur, the Committee shall make an adjustment as described in such Section 5(d) in such
manner as the Committee may, in its sole discretion, deem appropriate and equitable to prevent substantial dilution or enlargement of
the rights provided under this Award.
Termination.
Upon termination of your Service prior to any Vesting Date, you will forfeit all of your RSUs that are unvested at the time of
termination without any consideration due to you. For the purposes of the Plan and this Award Agreement, your Service will not be
deemed to be terminated in the event that you transfer employment from the Company to any Affiliate or from an Affiliate to the
Company or another Affiliate, as the case may be.
Except in case of your death, your Service terminates on the day you receive written notice of termination or provide notice
of resignation. For greater clarity, the date of termination of your Service will not be extended by any period of notice of termination
of employment, payment in lieu of notice or severance mandated under local law, whether statutory, contractual or at common law
(e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law) regardless of
2
the reason for such termination and whether or not later found to be invalid or in breach of laws in the jurisdiction where you are
rendering Service or the terms of your employment agreement, if any. The Committee shall have the exclusive discretion to
determine the date of termination of your Service for purposes of this Award (including whether you may still be considered to be
providing services while on a leave of absence).
In the event that there is a conflict between the terms of this Award Agreement regarding the effect of a termination of your
Service on this Award and the terms of any employment agreement, the terms of your employment agreement will govern.
Subject to any terms and conditions that the Committee may impose in accordance with Section 13 of the Plan, in the event
that a Change in Control occurs and, within twelve (12) months following the date of such Change in Control, your Service is
terminated by your employer (the “Employer”) Without Cause (as defined herein), this Award shall vest in full upon such
termination. In the event that there is a conflict between the terms of this Award Agreement regarding the effect of a Change in
Control on this Award and the terms of any employment agreement, the terms of this Award Agreement will govern.
For purposes of this Award Agreement, the following terms shall have the following meanings:
“Cause” means (i) a material breach by you of any of your obligations under any written employment agreement with the
Company or any of its Affiliates, (ii) a material violation by you of any of the policies, procedures, rules and regulations of the
Company or any of its Affiliates applicable to employees or other service providers generally or to employees or other service
providers at your payband; (iii) the failure by you to reasonably and substantially perform your duties to the Company or its
Affiliates (other than as a result of physical or mental illness or injury); (iv) your willful misconduct or gross negligence that has
caused or is reasonably expected to result in material injury to the business, reputation or prospects of the Company or any of its
Affiliates; (v) your fraud or misappropriation of funds; or (vi) the commission by you of a felony or other serious crime involving
moral turpitude; provided that if you are a party to an employment agreement at the time of termination of your Service and such
employment agreement contains a different definition of “cause” (or any derivation thereof), the definition in such employment
agreement will control for purposes of this Award Agreement.
If you are terminated Without Cause and, within the twelve (12) month period subsequent to such termination of your
Service, the Company determines that your Service could have been terminated for Cause, subject to anything to the contrary that
may be contained in your employment agreement at the time of termination of your Service, your Service will, at the election of the
Company, be deemed to have been terminated for Cause, effective as of the date the events giving rise to Cause occurred.
3
“Disability” means (i) a physical or mental condition entitling you to benefits under the long-term disability policy of the
company covering you or (ii) in the absence of any such policy, a physical or mental condition rendering you unable to perform your
duties for the Company or any Affiliate for a period of six (6) consecutive months or longer; provided that if you are a party to an
employment agreement at the time of termination of your Service and such employment agreement contains a different definition of
“disability” (or any derivation thereof), the definition in such employment agreement will control for purposes of this Award
Agreement.
“Vesting Date” means December 31 of each of ____, ____, ____and ____, or such earlier vesting date as may be provided in
this Award Agreement.
“Without Cause” means a termination of your Service by you for “Good Reason,” if you have an employment agreement
that defines the term “Good Reason,” or by the Employer other than any such termination by the Employer for Cause or due to your
death or Disability; provided that if you are a party to an employment agreement at the time of termination of your Service and such
employment agreement contains a different definition of “without cause” (or any derivation thereof), the definition in such
employment agreement will control for purposes of this Award Agreement. Notwithstanding the foregoing, if you are a party to an
employment agreement at the time of termination of your Service and such employment agreement provides that a termination of
your Service by you for “Good Reason” constitutes termination of your Service “Without Cause,” such termination for Good Reason
shall not constitute termination Without Cause for purposes of the acceleration of your RSUs following a Change in Control.
Forfeiture of Unvested RSUs upon the Transfer of Related Shares.
If you Transfer (other than pursuant to the laws of descent and distribution) any of the Related Shares or any Shares received
upon vesting under this Award Agreement, net of Shares withheld for Taxes (“Vested Shares”) before any Vesting Date, you will
immediately forfeit all unvested RSUs.
Settlement of RSUs.
The Company shall deliver to you (or your Beneficiary, if applicable) a number of Shares equal to the number of RSUs that vest in
accordance with this Award Agreement as soon as practicable (but in no event more than 60 days) following the applicable Vesting
Date. You will have no rights of a shareholder with respect to the RSUs until such Shares have been delivered to you.
Dividend Equivalents.
During the term of this Award Agreement, you shall be automatically granted additional RSUs with respect to a number of
Shares (rounded to six decimal places)
4
having a Fair Market Value as of the applicable dividend payment date equal to the value of any dividends or other distributions that
would have been distributed to you if each of the Shares to be delivered to you upon settlement of the RSUs instead was an issued
and outstanding Share owned by you (“Dividend Equivalents”). The additional RSUs granted to you as Dividend Equivalents shall
be subject to the same terms and conditions under this Award Agreement as the RSUs to which they relate, and shall vest and be
settled (rounded down to the nearest whole number) in the same manner and at the same times as the RSUs to which they relate.
Each Dividend Equivalent shall be treated as a separate payment for purposes of Section 409A of the Code.
Taxes.
Regardless of any action the Company or your Employer takes with respect to any or all income tax, social security or
insurance, fringe benefits tax, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you
acknowledge that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that the
Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Award, including the grant, vesting or settlement of RSUs, the subsequent sale of Shares acquired
pursuant to such settlement and the receipt of any dividends or Dividend Equivalents; and (ii) do not commit to structure the terms of
the grant or any aspect of this Award to reduce or eliminate your liability for Tax-Related Items.
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory to
the Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the
Employer. In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally
payable by you from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or
in addition, if permissible under local law, the Company may in its sole and absolute discretion (1) sell or arrange for the sale of
Shares that you acquire to meet the withholding obligation for Tax-Related Items (on your behalf pursuant to this authorization
without further consent), and/or (2) withhold the amount of Shares necessary to satisfy the Tax-Related Items.
The Company may withhold or account for Tax-Related Items by considering statutory withholding rates or other
withholding rates, including maximum rates applicable in your jurisdiction. In the event of over-withholding, you may receive a
refund of any over-withheld amount in cash and will have no entitlement to the equivalent in Shares, or if not refunded, you may
seek a refund from the applicable tax authorities. In the event of under-withholding, you may be required to pay additional Tax-
Related Items directly to the applicable tax authorities or to the Company and/or Employer. If the obligation for Tax-Related Items is
satisfied by withholding in Shares, for tax purposes, you are deemed to have been issued the full number of Shares subject to
5
the vested RSU, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, you will pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer
may be required to withhold as a result of your participation in the Plan that cannot be satisfied by the means previously described.
The Company may refuse to deliver the Shares if you fail to comply with your obligations in connection with the Tax-Related Items
as described in this section.
No Guarantee of Continued Service.
You acknowledge and agree that vesting of this Award on the applicable Vesting Dates is earned only by performing
continuing Service (not through the act of being hired or being granted this Award). You further acknowledge and agree that this
Award Agreement, the transactions contemplated hereunder and the Vesting Dates shall not be construed as giving you the right to
be retained in the employ of, or to continue to provide services to, the Company or any Affiliate. Further, the Company or the
applicable Affiliate may at any time dismiss you, free from any liability or any claim under the Plan, unless otherwise expressly
provided in any other agreement binding you, the Company or the applicable Affiliate. The receipt of this Award is not intended to
confer any rights on you except as set forth in this Award Agreement.
Termination for Cause; Restrictive Covenants.
In consideration for the grant of this Award and for other good and valuable consideration, the sufficiency of which is
acknowledged by you, you agree as follows:
Upon (i) a termination of your Service for Cause, (ii) a retroactive termination of your Service for Cause as permitted herein
or under your employment agreement, or (iii) a violation of any post-termination restrictive covenant (including, without limitation,
non-disclosure, non-competition and/or non-solicitation) contained in your employment agreement, or any separation or termination
or similar agreement you may enter into with the Company or one of its Affiliates in connection with termination of your Service,
any Award you hold shall be immediately forfeited and the Company may require that you repay (with interest or appreciation (if
any), as applicable, determined up to the date payment is made), and you shall promptly repay to the Company the Fair Market
Value (in cash or in Shares) of any Shares received upon the settlement of RSUs during the period beginning on the date that is one
year before the date of your termination and ending on the first anniversary of the date of your termination. The Fair Market Value of
any such Shares shall be determined as of the date on which the RSUs were settled.
Company’s Right of Offset.
If you become entitled to a distribution of benefits under this Award, and if at such time you have any outstanding debt,
obligation, or other liability representing an amount owing to the Company or any of its Affiliates, then the Company or its
Affiliates,
6
upon a determination by the Committee, and to the extent permitted by applicable law and not causing a violation of Section 409A of
the Code, may offset such amount so owing against the amount of benefits otherwise distributable. Such determination shall be made
by the Committee.
Acknowledgment of Nature of Award.
In accepting the grant of this Award, you acknowledge that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended,
suspended or terminated by the Company at any time, as provided in the Plan;
(b) the grant of this Award is voluntary, occasional and discretionary and does not create any contractual or other right to
receive future awards of RSUs, or benefits in lieu of RSUs even if RSUs have been awarded in the past;
(c) all decisions with respect to future awards, if any, will be at the sole discretion of the Company;
(d) your participation in the Plan is voluntary;
(e) this Award and any Shares acquired under the Plan, and the income from and value of same, are not part of normal or
expected compensation or salary for any purposes, including, but not limited to, calculation of any severance, resignation,
termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;
(f) the future value of the underlying Shares is unknown and cannot be predicted with certainty;
(g) if you receive Shares, the value of such Shares acquired upon settlement may increase or decrease in value; and
(h) no claim or entitlement to compensation or damages arises from termination of this Award, and no claim or entitlement
to compensation or damages shall arise from any diminution in value of the RSUs or Shares received upon settlement of the RSUs
resulting from termination of your Service, and you irrevocably release the Company and the Employer from any such claim that
may arise.
Securities Laws.
By accepting this Award, you acknowledge that Canadian or other applicable securities laws, including, without limitation, U.S.
securities laws and/or the Company’s policies regarding trading in its securities, may limit or restrict your right to buy or sell Shares,
including, without limitation, sales of Shares acquired in connection with this Award. You agree to comply with all Canadian and
any other applicable securities law
7
requirements, including, without limitation, any U.S. securities law requirements and Company policies, as such laws and policies
are amended from time to time.
Data Privacy Notice and Consent.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your
personal data as described in this Award Agreement by and among, as applicable, the Employer, the Company and its other
Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company, the Employer and/or other Affiliates hold certain personal information about you,
including, but not limited to, your name, home address, email address and telephone number, date of birth, social insurance or
social security number, passport or other identification number, salary, nationality, job title, any shares of stock or directorships
held in the Company, details of all RSUs or any other entitlement to Shares awarded, canceled, vested, unvested or outstanding in
your favor (“Data”), for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that Data will be transferred to Solium Capital or such other third party assisting in the implementation,
administration and management of the Plan, that these recipients may be located in Canada, the United States or elsewhere, and
that the recipient’s country may have different data privacy laws and protections than your country. You understand that, if you
reside in the European Economic Area, you may request a list with the names and addresses of any potential recipients of Data
by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer
Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan.
You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the
Plan. You understand that, if you reside in the European Economic Area, you may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand
that refusal or withdrawal of consent may affect your ability to participate in the Plan. Further, you understand that you are
providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your
employment status or Service with the Employer will not be affected; the only consequence of refusing or withdrawing your
consent is that the Company would not be able to grant you RSUs or other awards or administer or maintain such awards. For
more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact
your local human resources representative.
8
Upon request of the Company or the Employer, you agree to provide a separate executed data privacy consent form (or
any other agreements or consents that may be required by the Company and/or the Employer) that the Company and/or the
Employer may deem necessary to obtain from you for the purpose of administering your participation in the Plan in compliance
with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to
participate in the Plan if you fail to provide any such consent or agreement requested by the Company and/or the Employer.
Limits on Transferability; Beneficiaries.
This Award shall not be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability to any
party, or Transferred, otherwise than by your will or the laws of descent and distribution or to a Beneficiary upon your death, except
that this Award may be Transferred to one or more Beneficiaries or other Transferees during your lifetime with the consent of the
Committee. A Beneficiary, Transferee, or other person claiming any rights under this Award Agreement shall be subject to all terms
and conditions of the Plan and this Award Agreement, except as otherwise determined by the Committee, and to any additional terms
and conditions deemed necessary or appropriate by the Committee.
No Transfer to any executor or administrator of your estate or to any Beneficiary by will or the laws of descent and
distribution of any rights in respect of this Award shall be effective to bind the Company unless the Committee shall have been
furnished with (i) written notice thereof and with a copy of the will and/or such evidence as the Committee may deem necessary to
establish the validity of the Transfer and (ii) the written agreement of the Transferee to comply with all the terms and conditions
applicable to this Award and any Shares received upon settlement of RSUs that are or would have been applicable to you.
Section 409A Compliance.
Neither the Plan, nor this Award Agreement is intended to provide for a deferral of compensation that would subject the
RSUs to taxation prior to the issuance of Shares as a result of Section 409A of the Code. Notwithstanding anything to the contrary in
the Plan, or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or
advisable, in its sole discretion and without your consent, to comply with Section 409A of the Code or to otherwise avoid imposition
of any additional tax or income recognition under Section 409A of the Code prior to the actual payment of Shares pursuant to this
Award.
Notwithstanding the foregoing, the Company does not make any representation to you that this Award is exempt from, or
satisfies, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold
harmless you or any Beneficiary for any tax, additional tax, interest or penalties that you or any Beneficiary may incur in the event
that any provision of this Agreement, or any
9
amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of
Section 409A.
Entire Agreement; Governing Law; Jurisdiction; Waiver of Jury Trial.
The Plan, this Award Agreement and, to the extent applicable, your employment agreement or any separation agreement constitute
the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings,
representations and agreements (whether oral or written) of the Company and you with respect to the subject matter hereof. This
Award Agreement may not be modified in a manner that adversely affects your rights heretofore granted under the Plan, except with
your consent or to comply with applicable law or to the extent permitted under other provisions of the Plan. This Award Agreement
is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its principles
of conflict of laws.
ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO THIS AWARD OR THE
AWARD AGREEMENT MAY BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE PROVINCE OF ONTARIO, AND
YOU IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING. ANY ACTIONS OR PROCEEDINGS TO ENFORCE A JUDGMENT ISSUED BY ONE OF THE FOREGOING
COURTS MAY BE ENFORCED IN ANY JURISDICTION.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, YOU HEREBY
WAIVE, AND COVENANT THAT YOU WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE),
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING
OUT OF THIS AWARD AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE.
By signing this Award Agreement, you acknowledge the receipt of a copy of the Plan and represent that you understand the terms
and conditions of the Plan, and hereby accept this Award subject to all provisions in this Award Agreement and in the Plan. You
hereby agree to accept as final, conclusive and binding all decisions or interpretations of the Committee upon any questions arising
under the Plan or this Award Agreement.
Electronic Delivery and Acceptance.
The Company may, in its sole discretion, decide to deliver any documents related to this Award or future awards that may be
awarded under the Plan by electronic means or request your consent to participate in the Plan by electronic means. You hereby
consent to receive such documents by electronic delivery and agree to participate in the
10
Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the
Company.
Agreement Severable.
In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this
Award Agreement.
Language.
You acknowledge that you are proficient in the English language, or have consulted with an advisor who is sufficiently
proficient in the English language, so as to allow you to understand the content of this Award Agreement and other Plan-related
materials. If you have received this Award Agreement or any other document related to the Plan translated into a language other than
English and if the meaning of the translated version is different than the English version, the English version will control.
Non-U.S. Terms and Conditions.
Notwithstanding any provision in this Award Agreement, if you work and/or reside outside the U.S., this Award shall be
subject to the additional terms and conditions set forth in Exhibits B and C, as applicable. Moreover, if you relocate to one of the
countries or between countries included in Exhibits B or C, the additional terms and conditions for such country will apply to you, to
the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or
administrative reasons. Exhibits B and C constitute part of this Award Agreement.
Waiver.
You acknowledge that a waiver by the Company of breach of any provision of this Award Agreement shall not operate or be
construed as a waiver of any other provision of this Award Agreement, or of any subsequent breach by you or any other Participant.
11
EXHIBIT B
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
ADDITIONAL TERMS AND CONDITIONS TO THE
MATCHING RESTRICTED STOCK UNIT AWARD AGREEMENT FOR PARTICIPANTS OUTSIDE THE U.S.
Certain capitalized terms used but not defined in this Exhibit B have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the “Plan”) and/or the Matching Restricted Stock Unit Award Agreement
(the “Award Agreement”).
TERMS AND CONDITIONS
This Exhibit B includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work outside the U.S., and/or in one of the countries listed below. If you are a citizen or resident of a country other than the one in
which you are currently residing and/or working, transfer employment and/or residency after this Award is granted or are considered
a resident of another country for local law purposes, the Committee shall, in its discretion, determine to what extent the terms and
conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit B also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in the respective countries as of December 2020. Such laws are often complex and change frequently. As a result, the Company
strongly recommends that you not rely on the information in this Exhibit B as the only source of information relating to the
consequences of your participation in the Plan because the information may be out of date at the time you vest in this Award or sell
Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently residing and/or working, transfer
employment and/or residency after this Award is granted or are considered a resident of another country for local law purposes, the
information contained herein may not be applicable to you.
12
GENERAL TERMS AND CONDITIONS FOR PARTICIPANTS OUTSIDE THE U.S.
The following terms and conditions apply if you reside and/or work outside of the U.S. and supplement the entire Award Agreement
generally:
Entire Agreement.
The following provisions replace the first sentence of the Entire Agreement section of Exhibit A:
The Plan and the Award Agreement, including this Exhibit B, constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings, representations and agreements (whether oral or written)
of the Company and you with respect to the subject matter hereof. In no event will any aspect of this Award be determined in
accordance with your employment agreement (or other Service contract).
Taxes.
The following provisions supplement the Taxes section of Exhibit A:
You acknowledge that your liability for Tax-Related Items may exceed the amount withheld by the Company and/or the Employer,
if any.
If you have become subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Limits on Transferability; Beneficiaries.
The following provision supplements the Limits on Transferability; Beneficiaries section of Exhibit A:
This Award may not be Transferred to a designated Beneficiary and may only be Transferred upon your death to your legal heirs in
accordance with applicable laws of descent and distribution. In no case may this Award be Transferred to another individual during
your lifetime.
Acknowledgement of Nature of Award.
13
The following provisions supplement the Acknowledgment of Nature of Award section of Exhibit A:
You acknowledge the following with respect to this Award:
(a) The Award and any Shares acquired under the Plan, and the income from and value of same, are not intended to replace
any pension rights or compensation;
(b) In no event should this Award or any Shares acquired under the Plan, and the income from and value of same, be
considered as compensation for, or relating in any way to, past services for the Company, the Employer or any other Affiliate;
(c) Neither the Company, the Employer nor any other Affiliate shall be liable for any foreign exchange rate fluctuation
between your local currency and the United States Dollar or Canadian Dollar, as applicable, that may affect the value of this Award
or of any amounts due to you pursuant to the settlement of this Award or the subsequent sale of any Shares acquired upon settlement;
(d) Unless otherwise agreed with the Company, this Award and any Shares acquired upon the settlement of this Award, and
the income from and value of same, are not granted as consideration for, or in connection with, any service you may provide as a
director of any Affiliate; and
(e) Unless otherwise provided in the Plan or by the Company in its discretion, this Award and the benefits under the Plan
evidenced by the Award Agreement do not create any entitlement to have this Award or any such benefits transferred to, or assumed
by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the
Shares.
No Advice Regarding Award.
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your
participation in the Plan, or your acquisition or sale of the underlying Shares. You should consult with your own personal tax, legal
and financial advisors regarding your participation in the Plan before taking any action related to the Plan.
Insider Trading Restrictions/Market Abuse Laws.
You acknowledge that, depending on your country or the designated broker’s country, or the countr(ies) in which the Shares are
listed, you may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect your
ability to accept, acquire, sell or attempt to sell or otherwise dispose of the Shares, rights to Shares (e.g., this Award) or rights linked
to the value of Shares, during such times as you are considered to have “inside information” regarding the Company (as defined by
14
the laws or regulations in applicable jurisdictions, including the U.S. and your country). Local insider trading laws and regulations
may prohibit the cancellation or amendment of orders you placed before possessing inside information. Furthermore, you may be
prohibited from (i) disclosing insider information to any third party, including fellow employees (other than on a “need to know”
basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any restrictions under these laws or
regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading
policy. You acknowledge that it is your responsibility to comply with any applicable restrictions, and you should speak to your
personal advisor on this matter.
Foreign Asset/Account Reporting Requirements.
You acknowledge that there may be certain foreign asset and/or account reporting requirements which may affect your ability to
acquire or hold the Shares acquired under the Plan or cash received from participating in the Plan (including from any dividends paid
on the Shares acquired under the Plan) in a brokerage or bank account outside your country. You may be required to report such
accounts, assets or transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or
other funds received as a result of participating in the Plan to your country through a designated bank or broker within a certain time
after receipt. You acknowledge that it is your responsibility to be compliant with such regulations, and you should speak to your
personal advisor on this matter.
Imposition of Other Requirements.
The Company reserves the right to impose other requirements on your participation in the Plan, on this Award and on any Shares
acquired upon settlement of this Award, to the extent the Company determines it is necessary or advisable for legal or administrative
reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
COUNTRY-SPECIFIC TERMS AND CONDITIONS AND NOTIFICATIONS FOR PARTICIPANTS OUTSIDE THE U.S.
AND CANADA
BRAZIL
TERMS AND CONDITIONS
Labor Law Policy and Acknowledgment.
The following provision supplements the Acknowledgment of Nature of Awards section of Exhibit A:
15
In accepting this Award, you acknowledge and agree that (i) you are making an investment decision, and (ii) the value of the
underlying Shares is not fixed and may increase or decrease in value over the vesting period without compensation to you.
Compliance with Law.
In accepting this Award, you agree to comply with applicable Brazilian laws, and to report and pay all Tax-Related Items associated
with the vesting of this Award or the subsequent sale of Shares acquired under the Plan.
NOTIFICATIONS
Exchange Control Information.
If you are a resident or domiciled in Brazil, you will be required to submit an annual declaration of assets and rights held outside of
Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than USD 1,000,000.
Quarterly reporting is required if such amount exceeds USD 100,000,000. Assets and rights that must be reported include Shares
acquired under the Plan and may include the Award.
Tax on Financial Transactions (IOF).
Payments to foreign countries and repatriation of funds into Brazil, and the conversion between BRL and USD associated with such
fund transfers, may be subject to the Tax on Financial Transactions. It is your responsibility to comply with any applicable Tax on
Financial Transactions arising from participation in the Plan. You should consult with your personal tax advisor for additional
details.
SINGAPORE
TERMS AND CONDITIONS
Sale of Shares.
Any sale or offer of Shares shall be made pursuant to one or more exemption under Part XIII Division (1) Subdivision (4) (other than
section 280) of the Securities and Futures Act (Chap. 289, 2006 Ed.) (“SFA”), or pursuant to, and in accordance with the conditions
of, any other applicable provisions of the SFA.
NOTIFICATIONS
Securities Law Information.
The grant of this Award is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA and is not
made with a view to this Award or
16
underlying Shares being subsequently offered for sale to any other party. The Plan has not been lodged or registered as a prospectus
with the Monetary Authority of Singapore.
Director Notification Requirement.
If you are a director, associate director or shadow director of the Company’s Singapore Affiliate, you are subject to certain
notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singapore
Affiliate in writing when you receive an interest (e.g., this Award, Shares) in the Company or Affiliate. In addition, you must notify
the Singapore Affiliate when you sell Shares (including when you sell Shares issued upon settlement of this Award). These
notifications must be made within two business days of acquiring or disposing of any interest in the Company or any Affiliate. In
addition, a notification of your interests in the Company or Affiliate must be made within two business days of becoming a director.
SWITZERLAND
NOTIFICATIONS
Securities Law Information.
Neither this document nor any other materials relating to the offer of this Award (i) constitutes a prospectus according to articles 35
et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (ii) may be publicly distributed or otherwise made publicly
available in Switzerland to any person other than an employee of the Company or any of its Affiliates, or (iii) has been or will be
filed with, approved by or supervised by any Swiss reviewing body according to article 51 FinSA or any Swiss regulatory authority
(e.g., the Swiss Financial Market Supervisory Authority).
URUGUAY
Terms & Conditions
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
You understand that Data will be collected by the Employer and will be transferred to the Company at 130 King Street, Suite 300,
Toronto, Ontario M5X 1E1 Canada and/or 5707 Blue Lagoon Drive, Miami, FL 33126 USA, and/or any financial institutions or
brokers involved in the management and administration of the Plan. You further understand that any of these entities may store Data
for purposes of administering your participation in the Plan.
17
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
RESTAURANT BRANDS INTERNATIONAL INC.
EXHIBIT C
ADDITIONAL TERMS AND CONDITIONS TO THE
MATCHING RESTRICTED STOCK UNIT AWARD AGREEMENT FOR PARTICIPANTS IN CANADA
Certain capitalized terms used but not defined in this Exhibit C have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the “Plan”) and/or the Matching Restricted Stock Unit Award Agreement
(the “Award Agreement”).
TERMS AND CONDITIONS
This Exhibit C includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work in Canada. If you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this
Award is granted or are considered a resident of another country for local law purposes, the Committee shall, in its discretion,
determine to what extent the terms and conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit C also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in Canada as of December 2020. Such laws are often complex and change frequently. As a result, the Company strongly
recommends that you not rely on the information in this Exhibit C as the only source of information relating to the consequences of
your participation in the Plan because the information may be out of date at the time the RSUs subject to this Award vest and settle
or you sell Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in Canada may apply to your situation.
Finally, if you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this Award is
granted or are considered a resident of another country for local law purposes, the information contained herein may not be
applicable to you.
18
TERMS AND CONDITIONS
Termination.
The following provision supplements the Termination section of Exhibit A:
Notwithstanding the foregoing, if applicable employment standards legislation explicitly requires continued vesting during a
statutory notice period, your right to vest in the Award under the Plan, if any, will terminate effective as of the last day of your
minimum statutory notice period.
Taxes.
The following provisions replace the second paragraph under the Taxes section of Exhibit A:
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory to the
Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the Employer.
In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally payable by you
from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or in addition, if
permissible under local law, the Company may in its sole and absolute discretion (1) sell or arrange for the sale of Shares that you
acquire to meet the withholding obligation for Tax-Related Items (on your behalf pursuant to this authorization without further
consent), and/or (2) withhold the amount of Shares necessary to satisfy the Tax-Withholding Items.
The following provisions regarding language consent and data privacy will apply if you are a resident of Quebec:
Language Consent.
The parties acknowledge that it is their express wish that the Award Agreement, as well as all addenda, documents, notices, and legal
proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette Convention, ainsi que de tous documents exécutés, avis donnés
et procédures judiciaries intentées, directement ou indirectement, relativement à ou suite à la présente convention.
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
19
You hereby authorize the Company and the Company’s representatives to discuss and obtain all relevant information from all
personnel, professional or non-professional, involved in the administration of the Plan. You further authorize the Company, its
Affiliates and the Committee to disclose and discuss the Plan with their advisors. You further authorize the Employer, the Company,
and any other Affiliate to record such information and to keep such information in your employee file.
NOTIFICATIONS
Securities Law Information.
You are permitted to sell Shares acquired under the Plan through the designated broker, if any, provided the sale of the Shares
acquired under the Plan takes place through the facilities of a stock exchange on which the Shares are listed (i.e., the New York
Stock Exchange or the Toronto Stock Exchange), subject to applicable laws and Company policies.
Foreign Asset/Account Reporting Information.
You must report annually on Form T1135 (Foreign Income Verification Statement) any foreign specified property you hold
(including any Shares acquired under the Plan, if held outside Canada), if the total value of such foreign specified property exceeds
C$100,000 at any time during the year. The unvested portion of this Award also must be reported (generally at nil cost) on Form
1135 if the C$100,000 threshold is exceeded due to other foreign specified property you hold. If Shares are acquired, the cost
generally is their adjusted cost base (the “ACB”). The ACB would normally equal the Fair Market Value of the Shares at the time of
acquisition, but if you own other Shares, the ACB may have to be averaged with the ACB of the other Shares. The form must be
filed with your annual tax return by April 30 of the following year. You should consult with a personal advisor to ensure you comply
with the applicable reporting obligation.
20
FORM OF RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
PERFORMANCE AWARD AGREEMENT
(as amended and restated effective as of December 31, 2020)
EXHIBIT 10.36(c)
You were granted a Performance Award (the “Award”) pursuant to the terms and conditions of a Performance Award
Agreement (the “Original Award Agreement”) and Sections 8 and 10 of the Restaurant Brands International Inc. Amended and
Restated 2014 Omnibus Incentive Plan (as may be amended from time to time, the “Plan”), which is incorporated herein by
reference.
We have mutually agreed that effective as of the Restatement Date specified below, the Original Award Agreement is hereby
amended and restated in its entirety (and shall be referred to as the “Amended Award Agreement”) to read as follows, so as to
provide for modification of the performance criteria from those provided in the Original Award Agreement. Unless defined in this
Amended Award Agreement, capitalized terms will have the same meanings ascribed to them in the Plan.
Performance Award: Restricted Stock Units (the “Performance Units”) with respect to [ ] Shares if the Performance Target
level of each Performance Measure for the Performance Period is achieved, 50%
of that number of Shares if the Threshold Performance level of each
Performance Measure is achieved,
Grant Date: February 21, 2020/February 22, 2019
Restatement Date: December 31, 2020
A-1
By accepting this Amended Award of Performance Units and agreeing to this Amended Award Agreement, you and the
Company agree that this Award of Performance Units is granted under and governed by the terms and conditions of the Plan and the
terms and conditions set forth in the attached Exhibit A which supersede the provisions of the Original Award Agreement, and the
additional terms and conditions for employees outside the U.S. set forth in Exhibits B and C. Exhibits A, B, and C still constitute part
of this Amended Award Agreement.
PARTICIPANT
RESTAURANT BRANDS INTERNATIONAL INC.
____________________________
Name:
By: ______________________________
Name: Jill Granat
Title: General Counsel
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EXHIBIT A
TERMS AND CONDITIONS OF THE
PERFORMANCE AWARD
Definitions
For purposes of this Amended Award Agreement, the following terms shall have the following meanings:
“Adjusted EBITDA” means earnings (net income or loss) before interest expense, net, (gain) loss on early extinguishment
of debt, income tax (benefit) expense, and depreciation and amortization (“EBITDA”) excluding the impact of share-based
compensation and non-cash incentive compensation expense, (income) loss from equity method investments, net of cash
distributions received from equity method investments, other operating (income) expenses, net, and all other specifically identified
costs associated with non-recurring projects and non-operating activities.
“Cause” means (i) a material breach by you of any of your obligations under any written employment agreement with the
Company or any of its Affiliates, (ii) a material violation by you of any of the policies, procedures, rules and regulations of the
Company or any of its Affiliates applicable to employees or other service providers generally or to employees or other service
providers at your grade level; (iii) the failure by you to reasonably and substantially perform your duties to the Company or its
Affiliates (other than as a result of physical or mental illness or injury); (iv) your willful misconduct or gross negligence that has
caused or is reasonably expected to result in material injury to the business, reputation or prospects of the Company or any of its
Affiliates; (v) your fraud or misappropriation of funds; or (vi) the commission by you of a felony or other serious crime involving
moral turpitude; provided that if you are a party to an employment agreement at the time of termination of your Service and such
employment agreement contains a different definition of “cause” (or any derivation thereof), the definition in such employment
agreement will control for purposes of this Amended Award Agreement.
If you are terminated Without Cause and, within the twelve (12) month period subsequent to such termination of your
Service, the Company determines that your Service could have been terminated for Cause, subject to anything to the contrary that
may be contained in your employment agreement at the time of termination of your Service, your Service will, at the election of the
Company, be deemed to have been terminated for Cause, effective as of the date the events giving rise to Cause occurred.
“Comparable Sales” means the percentage change in restaurant sales in one calendar year from the prior calendar year for
restaurants that have been open for 13 months or longer for TH and BK and 17 months or longer for PLK, measured on a
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constant currency basis. Additionally, if a restaurant is closed for a significant portion of a month, the restaurant is excluded from the
monthly comparable sales calculation.
“Disability” means (i) a physical or mental condition entitling you to benefits under the long-term disability policy of the
company covering you or (ii) in the absence of any such policy, a physical or mental condition rendering you unable to perform your
duties for the Company or any Affiliate for a period of six (6) consecutive months or longer; provided that if you are a party to an
employment agreement at the time of termination of your Service and such employment agreement contains a different definition of
“disability” (or any derivation thereof), the definition in such employment agreement will control for purposes of this Amended
Award Agreement.
“Earned Performance Units” has the meaning set forth in the Section below entitled “Determination of Number of Earned
Performance Units”.
“NRG” means the net increase in restaurant count (openings, net of permanent closures) over a twelve-month period.
“Organic Adjusted EBITDA” means Adjusted EBITDA, excluding the impact of foreign currency exchange rates and
excluding the impact of acquisitions and divestitures.
“Percentage Earned” has the meaning set forth on Schedule 1 hereto.
“Performance Measure” has the meaning set forth on Schedule 1 hereto.
“Performance Period” means the period beginning on January 1, 2021 and ending on December 31, 2021.
“Performance Target” means the Performance Measures at “Target” as stated on Schedule 1.
“Performance Units” means the restricted stock units granted pursuant to this Award.
“Retirement” means a termination of Service by you on or after the later of (i) your 55 birthday and (ii) your completion of
th
five years of Service with the Company and/or one of its Affiliates.
“Target Units” means the number of Performance Units with respect to the number of Shares reflected in this Agreement
that you could receive if each of the applicable Performance Target levels is achieved for the Performance Period. The number of
Target Units is set forth on the cover page of this Amended Award Agreement.
“Vesting Date” means February 21, 2025/February 22, 2024 or such earlier vesting date as may be provided in this Amended
Award Agreement.
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“Without Cause” means a termination of your Service by your employer (the “Employer”) other than any such termination
by your Employer for Cause or due to your death or disability; provided that if you are a party to an employment agreement at the
time of termination of your Service and such employment agreement contains a different definition of “without cause” (or any
derivation thereof), the definition in such employment agreement will control for purposes of this Amended Award Agreement.
Vesting.
The Earned Performance Units will vest on the Vesting Date and will settle in accordance with the section below entitled,
“Settlement of Earned Performance Units”, subject to the Percentage Earned being not less than 50% and subject to your continued
Service through the Vesting Date and to the Sections below entitled “Determination of Number of Earned Performance Units” and
“Termination” below.
No Payment for Shares.
No payment is required for Performance Units or Shares that you receive under this Award.
Nature of Award.
This Award represents the opportunity to receive the number of Shares equal to the Earned Performance Units earned as provided
for below under “Determination of Number of Earned Performance Units,” subject to the section above entitled “Vesting” and to the
sections below entitled “Settlement of Performance Units” and “Termination”.
Determination of Number of Earned Performance Units.
The number of Performance Units earned at the end of the Performance Period (the “Earned Performance Units”), if any, will be
based on the Percentage Earned, as set forth on Schedule 1.
Settlement of Earned Performance Units.
The Company shall deliver to you that number of Shares equal to the aggregate number of Earned Performance Units for the
Performance Period, if any, as determined in accordance with the section entitled “Determination of Number of Earned Performance
Units” above, on or as soon as practicable (but no later than 60 days) after the Vesting Date, subject to the section entitled
“Termination” below. You will have no rights of a shareholder with respect to the Shares until such Shares have been delivered to
you.
Adjustment for Certain Events.
If and to the extent that it would not cause a violation of Section 409A of the Code or other applicable law, if any Corporate Event
described in Section 5(d)(ii) of the
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Plan shall occur, the Committee shall make an adjustment as described in such Section 5(d)(ii) in such manner as the Committee
may, in its sole discretion, deem appropriate and equitable to prevent substantial dilution or enlargement of the rights provided under
this Award.
Termination.
Upon termination of your Service (other than as set forth below) prior to the Vesting Date, you will forfeit all of your
Performance Units (including your Earned Performance Units) without any consideration due to you. For the purposes of the Plan
and this Amended Award Agreement, your Service will not be deemed to be terminated in the event that you transfer employment
from the Company to any Affiliate or from an Affiliate to the Company or another Affiliate, as the case may be.
If your Service terminates on or after February 21, 2023/February 22, 2022 Without Cause or by reason of your Retirement,
you shall be vested in the number of Earned Performance Units, as determined in accordance with the section entitled “Number of
Earned Performance Units” above, as if the Earned Performance Units subject to this Award vested 50% on February 21,
2023/February 22, 2022 and 100% on February 21, 2025/February 22, 2024, and you shall be entitled to receive a number of Shares
equal to the number of vested Earned Performance Units in accordance with the section entitled “Settlement of Performance Units”.
For example, if the number of Earned Performance Units (expressed as a percentage of Target Units) is 100%, and your Service
terminates Without Cause or by reason of your Retirement on March 31, 2023/March 31, 2022, you would be entitled to receive 50%
of the Target Units in settlement of your Earned Performance Units. For the avoidance of doubt, if your Service terminates prior to
February 21, 2023/February 22, 2022 Without Cause or by reason of your Retirement, you will forfeit all of your Performance Units
(including your Earned Performance Units) without any consideration due for you.
If your Service terminates prior to the Vesting Date by reason of Disability, you shall be vested in the number of Earned
Performance Units, as determined in accordance with the section entitled “Determination of Number of Earned Performance”,
above, as if the Earned Performance Units subject to this Award vested 20% on each of February 21, 2021/ February 22, 2020,
February 21, 2022/ February 22, 2021, February 21, 2023/ February 22, 2022, February 21, 2024/ February 22, 2023, and February
21, 2025 February 22, 2024, respectively, and you shall be entitled to receive a number of Shares equal to the number of vested
Earned Performance Units in accordance with the section entitled “Settlement of Earned Performance Units”. Notwithstanding the
foregoing, if your Service terminates on or before the last day of the Performance Period by reason of your Disability, then for
purposes of determining the number of Shares to be delivered to you by reason of your Disability, your Earned Performance Units
shall be equal to the Target Units, multiplied by the applicable vesting percentage in the preceding sentence.
If your Service terminates prior to the Vesting Date by reason of your death, your Beneficiary shall be vested in the number
of Earned Performance Units, as determined in
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accordance with the section entitled “Determination of Number of Earned Performance Units”, as if the Earned Performance Units
subject to this Award vested 20% on February 21, 2021/ February 22, 2020, 40% on February 21, 2022/ February 22, 2021 and
100% on February 21, 2023/ February 22, 2022. In such event, your Beneficiary shall be entitled to receive a number of Shares equal
to the number of Earned Performance Units vested on the date of your death in accordance with the section entitled “Settlement of
Performance Units”. Notwithstanding the foregoing, if your Service terminates on or before the last day of the Performance Period
by reason of your death, then for purposes of determining the number of Shares to be delivered to your Beneficiary by reason of your
death, your Earned Performance Units shall be equal to the Target Units, multiplied by the applicable vesting percentage in the
preceding sentence.
In all other circumstances, your Service terminates on the day you receive written notice of termination or provide notice of
resignation. For greater clarity, the date of termination of your Service will not be extended by any period of notice of termination of
employment, payment in lieu of notice or severance mandated under local law, whether statutory, contractual or at common law
(e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law) regardless of the
reason for such termination and whether or not later found to be invalid or in breach of laws in the jurisdiction where you are
rendering Service or the terms of your Employment Agreement, if any. The Committee shall have the exclusive discretion to
determine the date of termination of your Service for purposes of this Award.
In the event that there is a conflict between the terms of this Amended Award Agreement regarding the effect of a
termination of your Service on this Award and the terms of any Employment Agreement, the terms of your Employment Agreement
will govern.
Subject to any terms and conditions that the Committee may impose in accordance with Section 13 of the Plan, in the event
that a Change in Control occurs and, within twelve (12) months following the date of such Change in Control, your Service is
terminated by the Company Without Cause, your Earned Performance Units shall vest in full upon such termination. In such event,
the number of your Earned Performance Units, and thus the number of Shares that you would be entitled to receive, shall be
calculated in accordance with the sections entitled “Determination of Number of Earned Performance Units”, and “Settlement of
Earned Performance Units”; provided, however, that if the Change in Control occurs prior to the expiration of the Performance
Period, then for purposes of determining the number of Shares to be delivered to you by reason of your termination, your Earned
Performance Units shall be equal to the Target Units. In the event that there is a conflict between the terms of this Amended Award
Agreement regarding the effect of a Change in Control on this Award and the terms of any Employment Agreement, the terms of this
Amended Award Agreement will govern.
In the event that any Earned Performance Units (or any Performance Units that are deemed to be Earned Performance Units)
become vested pursuant to the foregoing
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provisions upon termination of your Service by reason of your death, Disability, termination Without Cause or by reason of your
Retirement, settlement of such Earned Performance Units or deemed Earned Performance Units shall be made on or as soon as
practicable (but no later than 60 days) after the date of such termination of your Service; provided, however, that in the event of any
such termination for a reason of your death, settlement shall be no later than 2 1/2 months after the last day of the year in which your
death occurs. Notwithstanding the foregoing, if your Performance Units constitute “nonqualified deferred compensation” (within the
meaning of Section 409A of the Code) that is subject to the requirements of Section 409A of the Code, and you are a “specified
employee’ (as defined under Section 409A of the Code), then if and to the extent required to comply with Section 409A of the Code,
settlement shall be delayed for the first 6 months following your separation from service (within the meaning of Section 409A), or if
earlier the date of your death, and instead shall be made upon expiration of such delay period.
Taxes.
Regardless of any action the Company or your Employer takes with respect to any or all income tax, social security or
insurance, government sponsored pension plan, unemployment insurance, fringe benefits tax, payroll tax, payment on account or
other tax-related withholding (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items legally
due by you is and remains your responsibility and that the Company and/or the Employer (i) make no representations or
undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant,
vesting or settlement of Performance Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any
dividends or Dividend Equivalents; and (ii) do not commit to structure the terms of the grant or any aspect of this Award to reduce or
eliminate your liability for Tax-Related Items.
If you are a U.S. taxpayer and you are or become eligible for Retirement prior to date on which your Award is settled, the
value of your Award will be subject to FICA and Medicare taxes in the U.S. upon the earlier of (1) the last day of the Performance
Period for which you have Earned Performance Units or (2) the date on which you first become eligible for Retirement, rather than
when the Units are settled. The Company may elect, however, pursuant to a rule of administrative convenience, to delay the date on
which the FICA and Medicare taxes for Participants eligible for Retirement are determined and withheld until any later date that is
within the same calendar year.
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory
to the Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the
Employer. In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally
payable by you from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or
in addition, if permissible under local law, the Company may in its sole and absolute
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discretion (1) sell or arrange for the sale of Shares that you acquire to meet the withholding obligation for Tax-Related Items (on
your behalf pursuant to this authorization without further consent), and/or (2) withhold the amount of Shares necessary to satisfy the
Tax-Related Items;.
The Company may withhold or account for Tax-Related Items by considering statutory withholding rates or other
withholding rates, including maximum rates applicable in your jurisdiction, in which case you may receive a refund of any over-
withheld amount in cash and will have no entitlement to the Shares equivalent. If the obligation for Tax-Related Items is satisfied by
withholding in Shares, for tax purposes, you are deemed to have been issued the full number of Shares subject to the vested
Performance Unit, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, you will pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer
may be required to withhold as a result of your participation in the Plan that cannot be satisfied by the means previously described.
The Company may refuse to deliver the Shares if you fail to comply with your obligations in connection with the Tax-Related Items
as described in this section.
Dividend Equivalents.
During the Performance Period, you shall be credited with additional Performance Units (based on the Target Units) with
respect to the number of Shares having a Fair Market Value as of the applicable dividend payment date equal to the value of any
dividends or other distributions that would have been distributed to you if each of the Shares to be delivered to you upon settlement
of the Performance Units instead was an issued and outstanding Share owned by you (“Dividend Equivalents”). After the expiration
of the Performance Period, the Target Units and the relevant accrued number of Dividend Equivalents shall be collectively adjusted
based on the Percentage Earned and rounded to six decimal places. Thereafter, for the remainder of the term of this Amended Award
Agreement, you shall be credited with Dividend Equivalents based on the number of Earned Performance Units. The additional
Performance Units credited to you as Dividend Equivalents shall be subject to the same terms and conditions under this Amended
Award Agreement as the Performance Units to which they relate, and shall vest and be earned and settled (rounded down to the
nearest whole number) in the same manner and at the same times as Performance Units to which they relate. Each Dividend
Equivalent shall be treated as a separate payment for purposes of Section 409A of the Code.
No Guarantee of Continued Service.
You acknowledge and agree that the vesting of this Award on the Vesting Date is earned only by performing continuing
Service (not through the act of being hired or being granted this Award). You further acknowledge and agree that this Amended
Award Agreement, the transactions contemplated hereunder and the Vesting Date shall not be
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construed as giving you the right to be retained in the employ of, or to continue to provide services to, the Company or any Affiliate.
Further, the Company or the applicable Affiliate may at any time dismiss you, free from any liability, or any claim under the Plan,
unless otherwise expressly provided in any other agreement binding you, the Company or the applicable Affiliate. The receipt of this
Award is not intended to confer any rights on you except as set forth in this Amended Award Agreement.
Termination for Cause; Restrictive Covenants.
In consideration for the grant of this Award and for other good and valuable consideration, the sufficiency of which is
acknowledged by you, you agree as follows:
Upon (i) a termination of your Service for Cause, (ii) a retroactive termination of your Service for Cause as permitted herein
or under your employment agreement, or (iii) a violation of any post-termination restrictive covenant (including, without limitation,
non-disclosure, non-competition and/or non-solicitation) contained in your employment agreement, or any separation or termination
or similar agreement you may enter into with the Company or one of its Affiliates in connection with termination of your Service,
any Award you hold shall be immediately forfeited and the Company may require that you repay (with interest or appreciation (if
any), as applicable, determined up to the date payment is made), and you shall promptly repay to the Company, the Fair Market
Value (in cash or in Shares) of any Shares received upon the settlement of Performance Units during the period beginning on the
date that is one year before the date of your termination and ending on the first anniversary of the date of your termination. The Fair
Market Value of any such Shares shall be determined as of the date on which the Performance Units were settled.
Company’s Right of Offset.
If you become entitled to a distribution of benefits under this Award, and if at such time you have any outstanding debt,
obligation, or other liability representing an amount owing to the Company or any of its Affiliates, then the Company or its
Affiliates, upon a determination by the Committee, and to the extent permitted by applicable law and not causing a violation of
Section 409A of the Code, may offset such amount so owing against the amount of benefits otherwise distributable. Such
determination shall be made by the Committee.
Acknowledgment of Nature of Award.
In accepting the grant of this Award, you acknowledge that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended,
suspended or terminated by the Company at any time, as provided in the Plan;
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(b) the grant of this Award is voluntary, occasional and discretionary and does not create any contractual or other right to
receive future awards of Performance Units, or benefits in lieu of Performance Units even if Performance Units have been awarded
in the past, whether or not repeatedly;
(c) all decisions with respect to future awards, if any, will be at the sole discretion of the Company;
(d) your participation in the Plan is voluntary;
(e) this Award and any Shares acquired under the Plan, and the income from and value of same, are not part of normal or
expected compensation or salary for any purposes, including, but not limited to, calculation of any severance, resignation,
termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;
(f) the future value of the underlying Shares is unknown and cannot be predicted with certainty;
(g) if you receive Shares, the value of such Shares acquired upon settlement may increase or decrease in value; and
(h) no claim or entitlement to compensation or damages arises from termination of this Award, and no claim or entitlement
to compensation or damages shall arise from any diminution in value of the Performance Units or Shares received upon settlement of
Performance Units resulting from termination of your Service and you irrevocably release the Company, the Employer and their
respective Affiliates from any such claim that may arise.
Securities Laws.
By accepting this Award, you acknowledge that Canadian or other applicable securities laws, including, without limitation, U.S.
securities laws, and/or the Company’s policies regarding trading in its securities may limit or restrict your right to buy or sell Shares,
including, without limitation, sales of Shares acquired in connection with this Award. You agree to comply with all Canadian and
any other applicable securities law requirements, including, without limitation, any U.S. securities law requirements, and Company
policies, as such laws and policies are amended from time to time.
Data Privacy Notice and Consent.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your
personal data as described in this Amended Award Agreement by and among, as applicable, the Employer, the Company and its
other Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
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You understand that the Company, the Employer and/or other Affiliates may hold certain personal information about
you, including, but not limited to, your name, home address, email address and telephone number, date of birth, social insurance
or social security number, passport or other identification number, salary, nationality, job title, any shares of stock or
directorships held in the Company, details of all Performance Units or any other entitlement to Shares awarded, canceled, vested,
unvested or outstanding in your favor (“Data”), for the exclusive purpose of implementing, administering and managing your
participation in the Plan.
You understand that Data will be transferred to Solium Capital or such other third party assisting in the implementation,
administration and management of the Plan, that these recipients may be located in Canada, the United States or elsewhere, and
that the recipient’s country may have different data privacy laws and protections than your country. You understand that, if you
reside in the European Economic Area, you may request a list with the names and addresses of any potential recipients of Data
by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer
Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan.
You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the
Plan. You understand that, if you reside in the European Economic Area, you may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand
that refusal or withdrawal of consent may affect your ability to participate in the Plan. Further, you understand that you are
providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your
employment status or Service with the Employer will not be affected; the only consequence of refusing or withdrawing your
consent is that the Company would not be able to grant you Performance Units or other awards or administer or maintain such
awards. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you
may contact your local human resources representative.
Upon request of the Company or the Employer, you agree to provide a separate executed data privacy consent form (or
any other agreements or consents that may be required by the Company and/or the Employer) that the Company and/or the
Employer may deem necessary to obtain from you for the purpose of administering your participation in the Plan in compliance
with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to
participate in the Plan if you fail to provide any such consent or agreement requested by the Company and/or the Employer.
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Limits on Transferability; Beneficiaries.
This Award shall not be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability to any
party, or Transferred, otherwise than by your will or the laws of descent and distribution or to a Beneficiary upon your death, except
that this Award may be Transferred to one or more Beneficiaries or other Transferees during your lifetime with the consent of the
Committee. A Beneficiary, Transferee, or other person claiming any rights under this Amended Award Agreement shall be subject to
all terms and conditions of the Plan and this Amended Award Agreement, except as otherwise determined by the Committee, and to
any additional terms and conditions deemed necessary or appropriate by the Committee.
No Transfer to any executor or administrator of your estate or to any Beneficiary by will or the laws of descent and
distribution of any rights in respect of this Award shall be effective to bind the Company unless the Committee shall have been
furnished with (i) written notice thereof and with a copy of the will and/or such evidence as the Committee may deem necessary to
establish the validity of the Transfer and (ii) the written agreement of the Transferee to comply with all the terms and conditions
applicable to this Award and any Shares received upon settlement of Performance Units that are or would have been applicable to
you.
Section 409A Compliance.
Neither the Plan, nor this Amended Award Agreement is intended to provide for a deferral of compensation that would
subject the Performance Units to taxation prior to the issuance of Shares as a result of Section 409A of the Code. Notwithstanding
anything to the contrary in the Plan, or this Amended Award Agreement, the Company reserves the right to revise this Amended
Award Agreement as it deems necessary or advisable, in its sole discretion and without your consent, to comply with Section 409A
of the Code or to otherwise avoid imposition of any additional tax or income recognition under Section 409A of the Code prior to the
actual payment of Shares pursuant to this Award.
Notwithstanding the foregoing, the Company does not make any representation to you that the Performance Units awarded
pursuant to this Agreement are exempt from, or satisfy, the requirements of Section 409A, and the Company shall have no liability
or other obligation to indemnify or hold harmless you or any Beneficiary for any tax, additional tax, interest or penalties that you or
any Beneficiary may incur in the event that any provision of this Agreement, or any amendment or modification thereof or any other
action taken with respect thereto, is deemed to violate any of the requirements of Section 409A.
Entire Agreement; Governing Law; Jurisdiction; Waiver of Jury Trial.
The Plan, this Amended Award Agreement and, to the extent applicable, your employment agreement or any separation agreement
constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all
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prior undertakings, representations and agreements (whether oral or written) of the Company and you with respect to the subject
matter hereof. This Amended Award Agreement may not be modified in a manner that adversely affects your rights heretofore
granted under the Plan, except with your consent or to comply with applicable law or to the extent permitted under other provisions
of the Plan. This Amended Award Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada
applicable therein, without regard to its principles of conflict of laws.
ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO THIS AWARD OR THE
AWARD AGREEMENT MAY BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE PROVINCE OF ONTARIO, AND
YOU IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING. ANY ACTIONS OR PROCEEDINGS TO ENFORCE A JUDGMENT ISSUED BY ONE OF THE FOREGOING
COURTS MAY BE ENFORCED IN ANY JURISDICTION.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, YOU HEREBY
WAIVE, AND COVENANT THAT YOU WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE),
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING
OUT OF THIS AWARD AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE.
By signing this Amended Award Agreement, you acknowledge receipt of a copy of the Plan and represent that you understand the
terms and conditions of the Plan, and hereby accept this Award subject to all provisions in this Amended Award Agreement and in
the Plan. You hereby agree to accept as final, conclusive and binding all decisions or interpretations of the Committee upon any
questions arising under the Plan or this Amended Award Agreement.
Electronic Delivery and Acceptance.
The Company may, in its sole discretion, decide to deliver any documents related to this Award or future awards that may be
awarded under the Plan by electronic means or request your consent to participate in the Plan by electronic means. You hereby
consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system
established and maintained by the Company or a third party designated by the Company.
Agreement Severable.
In the event that any provision in this Amended Award Agreement will be held invalid or unenforceable, such provision will
be severable from, and such invalidity or
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unenforceability will not be construed to have any effect on, the remaining provisions of this Amended Award Agreement.
Language.
You acknowledge that you are proficient in the English language or have consulted with an advisor who is sufficiently
proficient in the English language, so as to allow you to understand the content of this Amended Award Agreement and other Plan-
related materials. If you have received this Amended Award Agreement or any other document related to the Plan translated into a
language other than English and if the meaning of the translated version is different than the English version, the English version will
control.
Non-U.S. Terms and Conditions.
Notwithstanding any provision in this Amended Award Agreement, if you work and/or reside outside the U.S., this Award shall
be subject to the additional terms and conditions set forth in Exhibits B and C, as applicable. Moreover, if you relocate to one of the
countries or between countries included in Exhibits B or C, the special terms and conditions for such country will apply to you, to
the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or
administrative reasons. Exhibits B and C constitute part of this Amended Award Agreement.
Waiver.
You acknowledge that a waiver by the Company of breach of any provision of this Amended Award Agreement shall not
operate or be construed as a waiver of any other provision of this Amended Award Agreement, or of any subsequent breach by you
or any other Participant.
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The number of Performance Units that become Earned Units is determined based on the level of achievement during the
Performance Period based on the following Performance Measures:
Schedule 1
% of Award
Performance Measure
Threshold
(50% of Target)
Target
(100% of Target)
Maximum
(200% of Target)
50% Organic Adjusted EBITDA (millions)
20% NRG
30% Comparable Sales
*Amounts between Threshold and Target and Target and Maximum will be based on linear interpolation to determine the Percentage
Earned. Organic Adjusted EBITDA shall exclude franchisor contributions to advertising funds.
The “Percentage Earned” equals the sum of: for each Performance Measure, the product of the percentage of Target earned for each
Performance Measure multiplied by the percentage of Award that is applicable to such Performance Measure.
The number of Earned Units equals the Percentage Earned multiplied by the number of Performance Units (including any Dividend
Equivalents); provided that (1) if the Percentage Earned is less than 50% then the number of Earned Units will be zero and (2) if the
Percentage Earned is greater than 100% then the number of Earned Units will equal 100% of the Performance Units (including any
Dividend Equivalents).
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EXHIBIT B
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
ADDITIONAL TERMS AND CONDITIONS OF THE
PERFORMANCE AWARD AGREEMENT FOR PARTICIPANTS
OUTSIDE THE U.S.
Certain capitalized terms used but not defined in this Exhibit B have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the "Plan") and/or the Performance Amended Award Agreement (the
"Amended Award Agreement").
TERMS AND CONDITIONS
This Exhibit B includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work outside the U.S. and Canada and/or in one of the countries listed below. If you are a citizen or resident of a country other than
the one in which you are currently residing and/or working, transfer employment and/or residency after this Award is granted or are
considered a resident of another country for local law purposes, the Committee shall, in its discretion, determine to what extent the
terms and conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit B also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in the respective countries as of January 2020. Such laws are often complex and change frequently. As a result, the Company
strongly recommends that you not rely on the information in this Exhibit B as the only source of information relating to the
consequences of your participation in the Plan because the information may be out of date at the time you vest in this Award or sell
Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently residing and/or working, transfer
employment and/or residency after this Award is granted or are considered a resident of another country for local law purposes, the
information contained herein may not be applicable to you.
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GENERAL TERMS AND CONDITIONS FOR PARTICIPANTS OUTSIDE THE U.S.
The following terms and conditions apply if you reside and/or work outside of the U.S. and supplement the entire Amended Award
Agreement generally:
Entire Agreement.
The following provisions replace the first sentence of the Entire Agreement section of Exhibit A:
The Plan and the Amended Award Agreement, including this Exhibit B, constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior undertakings, representations and agreements (whether oral or
written) of the Company and you with respect to the subject matter hereof. In no event will any aspect of this Award be determined
in accordance with your employment agreement (or other Service contract).
Retirement.
Notwithstanding the favorable treatment that is potentially available upon a termination due to Retirement (as set forth in the
Termination section of the Amended Award Agreement), if the Company receives an opinion of counsel that there has been a legal
judgment and/or legal development in your jurisdiction that would likely result in this favorable treatment upon termination due to
Retirement being deemed unlawful and/or discriminatory, then the favorable Retirement treatment will not apply at the time your
Service terminates and the Award will be forfeited if your Service ends before the Vesting Date for any reason other than as set forth
in the Termination section of the Amended Award Agreement.
Taxes.
The following provisions supplement the Taxes section of Exhibit A:
You acknowledge that your liability for Tax-Related Items may exceed the amount withheld by the Company and/or the Employer,
if any.
If you have become subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
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Limits on Transferability; Beneficiaries.
The following provision supplements the Limits on Transferability; Beneficiaries section of Exhibit A:
This Award may not be Transferred to a designated Beneficiary and may only be Transferred upon your death to your legal heirs in
accordance with applicable laws of descent and distribution. In no case may this Award be Transferred to another individual during
your lifetime.
Acknowledgement of Nature of Award.
The following provisions supplement the Acknowledgment of Nature of Award section of Exhibit A:
You acknowledge the following with respect to this Award:
(a) The Award and any Shares acquired under the Plan, and the income from and value of same, are not intended to replace
any pension rights or compensation;
(b) In no event should this Award or any Shares acquired under the Plan, and the income from and value of same, be
considered as compensation for, or relating in any way to, past services for the Company, the Employer or any other Affiliate;
(c) Neither the Company, the Employer nor any other Affiliate shall be liable for any foreign exchange rate fluctuation
between your local currency and the United States Dollar or Canadian Dollar, as applicable, that may affect the value of this Award
or of any amounts due to you pursuant to the settlement of this Award or the subsequent sale of any Shares acquired upon settlement;
(d) Unless otherwise agreed with the Company, this Award and any Shares acquired upon the settlement of this Award, and
the income from and value of same, are not granted as consideration for, or in connection with, any service you may provide as a
director of any Affiliate; and
(e) Unless otherwise provided in the Plan or by the Company in its discretion, this Award and the benefits under the Plan
evidenced by the Amended Award Agreement do not create any entitlement to have this Award or any such benefits transferred to,
or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction
affecting the Shares.
No Advice Regarding Award.
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your
participation in the Plan, or your
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acquisition or sale of the underlying Shares. You should consult with your own personal tax, legal and financial advisors regarding
your participation in the Plan before taking any action related to the Plan.
Insider Trading Restrictions/Market Abuse Laws.
You acknowledge that, depending on your country or the designated broker’s country, or the countr(ies) in which the Shares are
listed, you may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect your
ability to accept, acquire, sell or attempt to sell or otherwise dispose of the Shares, rights to Shares (e.g., this Award) or rights linked
to the value of Shares, during such times as you are considered to have “inside information” regarding the Company (as defined by
the laws or regulations in applicable jurisdictions, including the U.S. and your country). Local insider trading laws and regulations
may prohibit the cancellation or amendment of orders you placed before possessing inside information. Furthermore, you may be
prohibited from (i) disclosing insider information to any third party, including fellow employees (other than on a “need to know”
basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any restrictions under these laws or
regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading
policy. You acknowledge that it is your responsibility to comply with any applicable restrictions, and you should speak to your
personal advisor on this matter.
Foreign Asset/Account Reporting Requirements.
You acknowledge that there may be certain foreign asset and/or account reporting requirements which may affect your ability to
acquire or hold the Shares acquired under the Plan or cash received from participating in the Plan (including from any dividends paid
on the Shares acquired under the Plan) in a brokerage or bank account outside your country. You may be required to report such
accounts, assets or transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or
other funds received as a result of participating in the Plan to your country through a designated bank or broker within a certain time
after receipt. You acknowledge that it is your responsibility to be compliant with such regulations, and you should speak to your
personal advisor on this matter.
Imposition of Other Requirements.
The Company reserves the right to impose other requirements on your participation in the Plan, on this Award and on any Shares
acquired upon settlement of this Award, to the extent the Company determines it is necessary or advisable for legal or administrative
reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
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SPECIAL TERMS AND CONDITIONS AND NOTIFICATIONS FOR PARTICIPANTS OUTSIDE THE U.S. AND
CANADA
BRAZIL
TERMS AND CONDITIONS
Labor Law Policy and Acknowledgment.
The following provision supplements the Acknowledgment of Nature of Awards section of Exhibit A:
In accepting this Award, you acknowledge and agree that (i) you are making an investment decision, (ii) the Shares will be issued to
you only if the vesting conditions are met and any necessary services are rendered by you over the vesting period, and (iii) the value
of the underlying Shares is not fixed and may increase or decrease in value over the vesting period without compensation to you.
Compliance with Law.
In accepting this Award, you agree to comply with applicable Brazilian laws, and to report and pay all Tax-Related Items associated
with the vesting of this Award or the subsequent sale of Shares acquired under the Plan.
NOTIFICATIONS
Exchange Control Information.
If you are a resident or domiciled in Brazil, you will be required to submit an annual declaration of assets and rights held outside of
Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than USD 100,000.
Quarterly reporting is required if such amount exceeds USD 100,000,000. Assets and rights that must be reported include Shares
acquired under the Plan and may include the Award.
Tax on Financial Transactions (IOF).
Payments to foreign countries and repatriation of funds into Brazil, and the conversion between BRL and USD associated with such
fund transfers, may be subject to the Tax on Financial Transactions. It is your responsibility to comply with any applicable Tax on
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Financial Transactions arising from participation in the Plan. You should consult with your personal tax advisor for additional
details.
SINGAPORE
TERMS AND CONDITIONS
Sale of Shares.
Any sale or offer of Shares shall be made pursuant to one or more exemptions under Part XIII Division (1) Subdivision (4) (other
than section 280) of the Securities and Futures Act (Chap. 289, 2006 Ed.) (“SFA”), or pursuant to, and in accordance with the
conditions of, any other applicable provisions of the SFA.
NOTIFICATIONS
Securities Law Information.
The grant of this Award is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA and is not
made with a view to this Award or underlying Shares being subsequently offered for sale to any other party. The Plan has not been
lodged or registered as a prospectus with the Monetary Authority of Singapore.
Director Notification Requirement.
If you are a director, associate director or shadow director of the Company’s Singapore Affiliate, you are subject to certain
notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singapore
Affiliate in writing when you receive an interest (e.g., this Award, Shares) in the Company or Affiliate. In addition, you must notify
the Singapore Affiliate when you sell Shares (including when you sell Shares issued upon settlement of this Award). These
notifications must be made within two business days of acquiring or disposing of any interest in the Company or any Affiliate. In
addition, a notification of your interests in the Company or Affiliate must be made within two business days of becoming a director.
SWITZERLAND
NOTIFICATIONS
Securities Law Information.
Neither this document nor any other materials relating to the offer of this Award (i) constitutes a prospectus according to articles 35
et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (ii) may be publicly distributed or otherwise made publicly
available in Switzerland to any person other than an employee of the Company or any of its Affiliates, or (iii) has been or will be
filed with, approved by or supervised by any
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Swiss reviewing body according to article 51 FinSA or any Swiss regulatory authority (e.g., the Swiss Financial Market Supervisory
Authority).
URUGUAY
Terms & Conditions
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
You understand that Data will be collected by the Employer and will be transferred to the Company at 130 King Street, Suite 300,
Toronto, Ontario M5X 1E1 Canada and/or 5707 Blue Lagoon Drive, Miami, FL 33126 USA, and/or any financial institutions or
brokers involved in the management and administration of the Plan. You further understand that any of these entities may store Data
for purposes of administering your participation in the Plan.
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EXHIBIT C
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
ADDITIONAL TERMS AND CONDITIONS TO THE
PERFORMANCE AWARD AGREEMENT FOR PARTICIPANTS IN CANADA
Certain capitalized terms used but not defined in this Exhibit C have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the “Plan”) and/or the Performance Amended Award Agreement (the
“Amended Award Agreement”).
TERMS AND CONDITIONS
This Exhibit C includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work in Canada. If you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this
Award is granted or are considered a resident of another country for local law purposes, the Committee shall, in its discretion,
determine to what extent the terms and conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit C also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in Canada as of January 2020. Such laws are often complex and change frequently. As a result, the Company strongly recommends
that you not rely on the information in this Exhibit C as the only source of information relating to the consequences of your
participation in the Plan because the information may be out of date at the time the Performance Units subject to this Award vest and
settle or you sell Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in Canada may apply to your situation.
Finally, if you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this Award is
granted or are considered a resident of another country for local law purposes, the information contained herein may not be
applicable to you.
TERMS AND CONDITIONS
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Termination.
The following provision supplements the Termination section of Exhibit A:
Notwithstanding the foregoing, if applicable employment standards legislation explicitly requires continued vesting during a
statutory notice period, your right to vest in the Award under the Plan, if any, will terminate effective as of the last day of your
minimum statutory notice period.
Taxes.
The following provisions replace the third paragraph under the Taxes section of Exhibit A:
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory to the
Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the Employer.
In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally payable by you
from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or in addition, if
permissible under local law, the Company may in its sole and absolute discretion (1) sell or arrange for the sale of Shares that you
acquire to meet the withholding obligation for Tax-Related Items (on your behalf pursuant to this authorization without further
consent), and/or (2) withhold the amount of Shares necessary to satisfy the Tax-Withholding Items.
The following provisions regarding language consent and data privacy will apply if you are a resident of Quebec:
Language Consent.
The parties acknowledge that it is their express wish that the Amended Award Agreement, as well as all addenda, documents,
notices, and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in
English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette Convention, ainsi que de tous documents exécutés, avis donnés
et procédures judiciaries intentées, directement ou indirectement, relativement à ou suite à la présente convention.
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
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You hereby authorize the Company and the Company’s representatives to discuss and obtain all relevant information from all
personnel, professional or non-professional, involved in the administration of the Plan. You further authorize the Company, its
Affiliates and the Committee to disclose and discuss the Plan with their advisors. You further authorize the Employer, the Company,
and any other Affiliate to record such information and to keep such information in your employee file.
NOTIFICATIONS
Securities Law Information.
You are permitted to sell Shares acquired under the Plan through the designated broker, if any, provided the sale of the Shares
acquired under the Plan takes place through the facilities of a stock exchange on which the Shares are listed (i.e., the New York
Stock Exchange or the Toronto Stock Exchange).
Foreign Asset/Account Reporting Information.
You must report annually on Form T1135 (Foreign Income Verification Statement) any foreign specified property you hold
(including any Shares acquired under the Plan, if held outside Canada), if the total value of such foreign specified property exceeds
C$100,000 at any time during the year. The unvested portion of this Award also must be reported (generally at nil cost) on Form
1135 if the C$100,000 threshold is exceeded due to other foreign specified property you hold. If Shares are acquired, the cost
generally is their adjusted cost base (the “ACB”). The ACB would normally equal the Fair Market Value of the Shares at the time of
acquisition, but if you own other Shares, the ACB may have to be averaged with the ACB of the other Shares. The form must be
filed with your annual tax return by April 30 of the following year. You should consult with a personal advisor to ensure you comply
with the applicable reporting obligation.
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FORM OF RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
EXHIBIT 10.36(d)
Unless defined in this Restricted Stock Unit Award Agreement (the “Award Agreement”), capitalized terms will have the
same meanings ascribed to them in the Restaurant Brands International Inc. Amended and Restated 2014 Omnibus Incentive Plan (as
may be amended from time to time, the “Plan”).
Pursuant to Section 8 of the Plan, you have been granted Restricted Stock Units (the “RSUs”) on the following terms and
subject to the provisions of the Plan, which is incorporated herein by reference.
Total Number of RSUs: [ ]
Grant Date:
Vesting Dates: the RSUs will vest as follows:
1/3 on December 31, ____,
1/3 on December 31, ____, and
1/3 on December 31, ____, in each case subject to your continued Service
through such Vesting Date and further subject to the Section entitled
“Termination” in Exhibit A.
By accepting this Award of RSUs and agreeing to this Award Agreement, you and the Company agree that this Award of
RSUs is granted under and governed by the terms and conditions of the Plan, the terms and conditions set forth in the attached
Exhibit A, the additional terms and conditions for employees outside the U.S. set forth in Exhibits B and C. Exhibits A, B and C
constitute part of this Award Agreement.
PARTICIPANT
RESTAURANT BRANDS INTERNATIONAL INC.
____________________________
Name:
By: ______________________________
Name: Jill Granat
Title: General Counsel
1
EXHIBIT A
TERMS AND CONDITIONS OF THE
RESTRICTED STOCK UNIT AWARD AGREEMENT
No Payment for Shares.
No payment is required for Shares that you receive under this Award.
Restricted Stock Units.
Each RSU represents a right to receive one Share subject to the terms and conditions of the Plan and this Award Agreement.
Vesting.
The RSUs will vest on the Vesting Dates as set forth in this Award Agreement, subject to your continued Service through
each Vesting Date and to the sections below entitled “Termination”.
Adjustment for Certain Events.
If and to the extent that it would not cause a violation of Section 409A of the Code or other applicable law, if any Corporate Event
described in Section 5(d) of the Plan shall occur, the Committee shall make an adjustment as described in such Section 5(d) in such
manner as the Committee may, in its sole discretion, deem appropriate and equitable to prevent substantial dilution or enlargement of
the rights provided under this Award.
Termination.
Upon termination of your Service prior to any Vesting Date, you will forfeit all of your RSUs that are unvested at the time of
termination without any consideration due to you. For the purposes of the Plan and this Award Agreement, your Service will not be
deemed to be terminated in the event that you transfer employment from the Company to any Affiliate or from an Affiliate to the
Company or another Affiliate, as the case may be.
Except in case of your death, your Service terminates on the day you receive written notice of termination or provide notice
of resignation. For greater clarity, the date of termination of your Service will not be extended by any period of notice of termination
of employment, payment in lieu of notice or severance mandated under local law, whether statutory, contractual or at common law
(e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law) regardless of the
reason for such termination and whether or not later found to be invalid or in breach of laws in the jurisdiction where you are
rendering Service or the terms of your employment agreement, if any. The Committee shall have the exclusive discretion to
2
determine the date of termination of your Service for purposes of this Award (including whether you may still be considered to be
providing services while on a leave of absence).
In the event that there is a conflict between the terms of this Award Agreement regarding the effect of a termination of your
Service on this Award and the terms of any employment agreement, the terms of your employment agreement will govern.
Subject to any terms and conditions that the Committee may impose in accordance with Section 13 of the Plan, in the event
that a Change in Control occurs and, within twelve (12) months following the date of such Change in Control, your Service is
terminated by your employer (the “Employer”) Without Cause (as defined herein), this Award shall vest in full upon such
termination. In the event that there is a conflict between the terms of this Award Agreement regarding the effect of a Change in
Control on this Award and the terms of any employment agreement, the terms of this Award Agreement will govern.
For purposes of this Award Agreement, the following terms shall have the following meanings:
“Cause” means (i) a material breach by you of any of your obligations under any written employment agreement with the
Company or any of its Affiliates, (ii) a material violation by you of any of the policies, procedures, rules and regulations of the
Company or any of its Affiliates applicable to employees or other service providers generally or to employees or other service
providers at your payband; (iii) the failure by you to reasonably and substantially perform your duties to the Company or its
Affiliates (other than as a result of physical or mental illness or injury); (iv) your willful misconduct or gross negligence that has
caused or is reasonably expected to result in material injury to the business, reputation or prospects of the Company or any of its
Affiliates; (v) your fraud or misappropriation of funds; or (vi) the commission by you of a felony or other serious crime involving
moral turpitude; provided that if you are a party to an employment agreement at the time of termination of your Service and such
employment agreement contains a different definition of “cause” (or any derivation thereof), the definition in such employment
agreement will control for purposes of this Award Agreement.
If you are terminated Without Cause and, within the twelve (12) month period subsequent to such termination of your
Service, the Company determines that your Service could have been terminated for Cause, subject to anything to the contrary that
may be contained in your employment agreement at the time of termination of your Service, your Service will, at the election of the
Company, be deemed to have been terminated for Cause, effective as of the date the events giving rise to Cause occurred.
“Disability” means (i) a physical or mental condition entitling you to benefits under the long-term disability policy of the
company covering you or (ii) in the absence of any such policy, a physical or mental condition rendering you unable to perform your
3
duties for the Company or any Affiliate for a period of six (6) consecutive months or longer; provided that if you are a party to an
employment agreement at the time of termination of your Service and such employment agreement contains a different definition of
“disability” (or any derivation thereof), the definition in such employment agreement will control for purposes of this Award
Agreement.
“Vesting Date” means December 31, ____, ____ and ____ or such earlier vesting date as may be provided in this Award
Agreement.
“Without Cause” means a termination of your Service by you for “Good Reason,” if you have an employment agreement
that defines the term “Good Reason,” or by the Employer other than any such termination by the Employer for Cause or due to your
death or Disability; provided that if you are a party to an employment agreement at the time of termination of your Service and such
employment agreement contains a different definition of “without cause” (or any derivation thereof), the definition in such
employment agreement will control for purposes of this Award Agreement. Notwithstanding the foregoing, if you are a party to an
employment agreement at the time of termination of your Service and such employment agreement provides that a termination of
your Service by you for “Good Reason” constitutes termination of your Service “Without Cause,” such termination for Good Reason
shall not constitute termination Without Cause for purposes of the acceleration of your RSUs following a Change in Control.
Settlement of RSUs.
The Company shall deliver to you (or your Beneficiary, if applicable) a number of Shares equal to the number of RSUs that vest in
accordance with this Award Agreement as soon as practicable (but in no event more than 60 days) following the applicable Vesting
Date. You will have no rights of a shareholder with respect to the RSUs until such Shares have been delivered to you.
Dividend Equivalents.
During the term of this Award Agreement, you shall be automatically granted additional RSUs with respect to a number of
Shares (rounded to six decimal places) having a Fair Market Value as of the applicable dividend payment date equal to the value of
any dividends or other distributions that would have been distributed to you if each of the Shares to be delivered to you upon
settlement of the RSUs instead was an issued and outstanding Share owned by you (“Dividend Equivalents”). The additional RSUs
granted to you as Dividend Equivalents shall be subject to the same terms and conditions under this Award Agreement as the RSUs
to which they relate, and shall vest and be settled (rounded down to the nearest whole number) in the same manner and at the same
times as the RSUs to which they relate. Each Dividend Equivalent shall be treated as a separate payment for purposes of Section
409A of the Code.
4
Taxes.
Regardless of any action the Company or your Employer takes with respect to any or all income tax, social security or
insurance, fringe benefits tax, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you
acknowledge that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that the
Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Award, including the grant, vesting or settlement of RSUs, the subsequent sale of Shares acquired
pursuant to such settlement and the receipt of any dividends or Dividend Equivalents; and (ii) do not commit to structure the terms of
the grant or any aspect of this Award to reduce or eliminate your liability for Tax-Related Items.
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory to
the Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the
Employer. In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally
payable by you from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or
in addition, if permissible under local law, the Company may in its sole and absolute discretion (1) sell or arrange for the sale of
Shares that you acquire to meet the withholding obligation for Tax-Related Items (on your behalf pursuant to this authorization
without further consent), and/or (2) withhold the amount of Shares necessary to satisfy the Tax-Related Items.
The Company may withhold or account for Tax-Related Items by considering statutory withholding rates or other
withholding rates, including maximum rates applicable in your jurisdiction. In the event of over-withholding, you may receive a
refund of any over-withheld amount in cash and will have no entitlement to the equivalent in Shares, or if not refunded, you may
seek a refund from the applicable tax authorities. In the event of under-withholding, you may be required to pay additional Tax-
Related Items directly to the applicable tax authorities or to the Company and/or Employer. If the obligation for Tax-Related Items is
satisfied by withholding in Shares, for tax purposes, you are deemed to have been issued the full number of Shares subject to the
vested RSU, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, you will pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer
may be required to withhold as a result of your participation in the Plan that cannot be satisfied by the means previously described.
The Company may refuse to deliver the Shares if you fail to comply with your obligations in connection with the Tax-Related Items
as described in this section.
5
No Guarantee of Continued Service.
You acknowledge and agree that vesting of this Award on the applicable Vesting Dates is earned only by performing
continuing Service (not through the act of being hired or being granted this Award). You further acknowledge and agree that this
Award Agreement, the transactions contemplated hereunder and the Vesting Dates shall not be construed as giving you the right to
be retained in the employ of, or to continue to provide services to, the Company or any Affiliate. Further, the Company or the
applicable Affiliate may at any time dismiss you, free from any liability or any claim under the Plan, unless otherwise expressly
provided in any other agreement binding you, the Company or the applicable Affiliate. The receipt of this Award is not intended to
confer any rights on you except as set forth in this Award Agreement.
Termination for Cause; Restrictive Covenants.
In consideration for the grant of this Award and for other good and valuable consideration, the sufficiency of which is
acknowledged by you, you agree as follows:
Upon (i) a termination of your Service for Cause, (ii) a retroactive termination of your Service for Cause as permitted herein
or under your employment agreement, or (iii) a violation of any post-termination restrictive covenant (including, without limitation,
non-disclosure, non-competition and/or non-solicitation) contained in your employment agreement, or any separation or termination
or similar agreement you may enter into with the Company or one of its Affiliates in connection with termination of your Service,
any Award you hold shall be immediately forfeited and the Company may require that you repay (with interest or appreciation (if
any), as applicable, determined up to the date payment is made), and you shall promptly repay to the Company the Fair Market
Value (in cash or in Shares) of any Shares received upon the settlement of RSUs during the period beginning on the date that is one
year before the date of your termination and ending on the first anniversary of the date of your termination. The Fair Market Value of
any such Shares shall be determined as of the date on which the RSUs were settled.
Company’s Right of Offset.
If you become entitled to a distribution of benefits under this Award, and if at such time you have any outstanding debt,
obligation, or other liability representing an amount owing to the Company or any of its Affiliates, then the Company or its
Affiliates, upon a determination by the Committee, and to the extent permitted by applicable law and not causing a violation of
Section 409A of the Code, may offset such amount so owing against the amount of benefits otherwise distributable. Such
determination shall be made by the Committee.
Acknowledgment of Nature of Award.
In accepting the grant of this Award, you acknowledge that:
6
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended,
suspended or terminated by the Company at any time, as provided in the Plan;
(b) the grant of this Award is voluntary, occasional and discretionary and does not create any contractual or other right to
receive future awards of RSUs, or benefits in lieu of RSUs even if RSUs have been awarded in the past;
(c) all decisions with respect to future awards, if any, will be at the sole discretion of the Company;
(d) your participation in the Plan is voluntary;
(e) this Award and any Shares acquired under the Plan, and the income from and value of same, are not part of normal or
expected compensation or salary for any purposes, including, but not limited to, calculation of any severance, resignation,
termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;
(f) the future value of the underlying Shares is unknown and cannot be predicted with certainty;
(g) if you receive Shares, the value of such Shares acquired upon settlement may increase or decrease in value; and
(h) no claim or entitlement to compensation or damages arises from termination of this Award, and no claim or entitlement
to compensation or damages shall arise from any diminution in value of the RSUs or Shares received upon settlement of the RSUs
resulting from termination of your Service, and you irrevocably release the Company and the Employer from any such claim that
may arise.
Securities Laws.
By accepting this Award, you acknowledge that Canadian or other applicable securities laws, including, without limitation, U.S.
securities laws and/or the Company’s policies regarding trading in its securities, may limit or restrict your right to buy or sell Shares,
including, without limitation, sales of Shares acquired in connection with this Award. You agree to comply with all Canadian and
any other applicable securities law requirements, including, without limitation, any U.S. securities law requirements and Company
policies, as such laws and policies are amended from time to time.
Data Privacy Notice and Consent.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your
personal data as described in this Award Agreement by and among, as applicable, the Employer, the Company and its other
7
Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company, the Employer and/or other Affiliates hold certain personal information about you,
including, but not limited to, your name, home address, email address and telephone number, date of birth, social insurance or
social security number, passport or other identification number, salary, nationality, job title, any shares of stock or directorships
held in the Company, details of all RSUs or any other entitlement to Shares awarded, canceled, vested, unvested or outstanding in
your favor (“Data”), for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that Data will be transferred to Solium Capital or such other third party assisting in the implementation,
administration and management of the Plan, that these recipients may be located in Canada, the United States or elsewhere, and
that the recipient’s country may have different data privacy laws and protections than your country. You understand that, if you
reside in the European Economic Area, you may request a list with the names and addresses of any potential recipients of Data
by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer
Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan.
You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the
Plan. You understand that, if you reside in the European Economic Area, you may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand
that refusal or withdrawal of consent may affect your ability to participate in the Plan. Further, you understand that you are
providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your
employment status or Service with the Employer will not be affected; the only consequence of refusing or withdrawing your
consent is that the Company would not be able to grant you RSUs or other awards or administer or maintain such awards. For
more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact
your local human resources representative.
Upon request of the Company or the Employer, you agree to provide a separate executed data privacy consent form (or
any other agreements or consents that may be required by the Company and/or the Employer) that the Company and/or the
Employer may deem necessary to obtain from you for the purpose of administering your participation in the Plan in compliance
with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to
participate in the Plan if you fail to provide any such consent or agreement requested by the Company and/or the Employer.
8
Limits on Transferability; Beneficiaries.
This Award shall not be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability to any
party, or Transferred, otherwise than by your will or the laws of descent and distribution or to a Beneficiary upon your death, except
that this Award may be Transferred to one or more Beneficiaries or other Transferees during your lifetime with the consent of the
Committee. A Beneficiary, Transferee, or other person claiming any rights under this Award Agreement shall be subject to all terms
and conditions of the Plan and this Award Agreement, except as otherwise determined by the Committee, and to any additional terms
and conditions deemed necessary or appropriate by the Committee.
No Transfer to any executor or administrator of your estate or to any Beneficiary by will or the laws of descent and
distribution of any rights in respect of this Award shall be effective to bind the Company unless the Committee shall have been
furnished with (i) written notice thereof and with a copy of the will and/or such evidence as the Committee may deem necessary to
establish the validity of the Transfer and (ii) the written agreement of the Transferee to comply with all the terms and conditions
applicable to this Award and any Shares received upon settlement of RSUs that are or would have been applicable to you.
Section 409A Compliance.
Neither the Plan, nor this Award Agreement is intended to provide for a deferral of compensation that would subject the
RSUs to taxation prior to the issuance of Shares as a result of Section 409A of the Code. Notwithstanding anything to the contrary in
the Plan, or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or
advisable, in its sole discretion and without your consent, to comply with Section 409A of the Code or to otherwise avoid imposition
of any additional tax or income recognition under Section 409A of the Code prior to the actual payment of Shares pursuant to this
Award.
Notwithstanding the foregoing, the Company does not make any representation to you that this Award is exempt from, or
satisfies, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold
harmless you or any Beneficiary for any tax, additional tax, interest or penalties that you or any Beneficiary may incur in the event
that any provision of this Agreement, or any amendment or modification thereof or any other action taken with respect thereto, is
deemed to violate any of the requirements of Section 409A.
Entire Agreement; Governing Law; Jurisdiction; Waiver of Jury Trial.
The Plan, this Award Agreement and, to the extent applicable, your employment agreement or any separation agreement constitute
the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings,
representations and agreements (whether oral or written) of the Company and you with
9
respect to the subject matter hereof. This Award Agreement may not be modified in a manner that adversely affects your rights
heretofore granted under the Plan, except with your consent or to comply with applicable law or to the extent permitted under other
provisions of the Plan. This Award Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada
applicable therein, without regard to its principles of conflict of laws.
ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO THIS AWARD OR THE
AWARD AGREEMENT MAY BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE PROVINCE OF ONTARIO, AND
YOU IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING. ANY ACTIONS OR PROCEEDINGS TO ENFORCE A JUDGMENT ISSUED BY ONE OF THE FOREGOING
COURTS MAY BE ENFORCED IN ANY JURISDICTION.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, YOU HEREBY
WAIVE, AND COVENANT THAT YOU WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE),
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING
OUT OF THIS AWARD AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE.
By signing this Award Agreement, you acknowledge the receipt of a copy of the Plan and represent that you understand the terms
and conditions of the Plan, and hereby accept this Award subject to all provisions in this Award Agreement and in the Plan. You
hereby agree to accept as final, conclusive and binding all decisions or interpretations of the Committee upon any questions arising
under the Plan or this Award Agreement.
Electronic Delivery and Acceptance.
The Company may, in its sole discretion, decide to deliver any documents related to this Award or future awards that may be
awarded under the Plan by electronic means or request your consent to participate in the Plan by electronic means. You hereby
consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system
established and maintained by the Company or a third party designated by the Company.
Agreement Severable.
In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this
Award Agreement.
10
Language.
You acknowledge that you are proficient in the English language, or have consulted with an advisor who is sufficiently
proficient in the English language, so as to allow you to understand the content of this Award Agreement and other Plan-related
materials. If you have received this Award Agreement or any other document related to the Plan translated into a language other than
English and if the meaning of the translated version is different than the English version, the English version will control.
Non-U.S. Terms and Conditions.
Notwithstanding any provision in this Award Agreement, if you work and/or reside outside the U.S., this Award shall be
subject to the additional terms and conditions set forth in Exhibits B and C, as applicable. Moreover, if you relocate to one of the
countries or between countries included in Exhibits B or C, the additional terms and conditions for such country will apply to you, to
the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or
administrative reasons. Exhibits B and C constitute part of this Award Agreement.
Waiver.
You acknowledge that a waiver by the Company of breach of any provision of this Award Agreement shall not operate or be
construed as a waiver of any other provision of this Award Agreement, or of any subsequent breach by you or any other Participant.
11
EXHIBIT B
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
ADDITIONAL TERMS AND CONDITIONS TO THE
RESTRICTED STOCK UNIT AWARD AGREEMENT FOR PARTICIPANTS OUTSIDE THE U.S.
Certain capitalized terms used but not defined in this Exhibit B have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the “Plan”) and/or the Restricted Stock Unit Award Agreement (the
“Award Agreement”).
TERMS AND CONDITIONS
This Exhibit B includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work outside the U.S., and/or in one of the countries listed below. If you are a citizen or resident of a country other than the one in
which you are currently residing and/or working, transfer employment and/or residency after this Award is granted or are considered
a resident of another country for local law purposes, the Committee shall, in its discretion, determine to what extent the terms and
conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit B also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in the respective countries as of December 2020. Such laws are often complex and change frequently. As a result, the Company
strongly recommends that you not rely on the information in this Exhibit B as the only source of information relating to the
consequences of your participation in the Plan because the information may be out of date at the time you vest in this Award or sell
Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently residing and/or working, transfer
employment and/or residency after this Award is granted or are considered a resident of another country for local law purposes, the
information contained herein may not be applicable to you.
12
GENERAL TERMS AND CONDITIONS FOR PARTICIPANTS OUTSIDE THE U.S.
The following terms and conditions apply if you reside and/or work outside of the U.S. and supplement the entire Award Agreement
generally:
Entire Agreement.
The following provisions replace the first sentence of the Entire Agreement section of Exhibit A:
The Plan and the Award Agreement, including this Exhibit B, constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings, representations and agreements (whether oral or written)
of the Company and you with respect to the subject matter hereof. In no event will any aspect of this Award be determined in
accordance with your employment agreement (or other Service contract).
Taxes.
The following provisions supplement the Taxes section of Exhibit A:
You acknowledge that your liability for Tax-Related Items may exceed the amount withheld by the Company and/or the Employer,
if any.
If you have become subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Limits on Transferability; Beneficiaries.
The following provision supplements the Limits on Transferability; Beneficiaries section of Exhibit A:
This Award may not be Transferred to a designated Beneficiary and may only be Transferred upon your death to your legal heirs in
accordance with applicable laws of descent and distribution. In no case may this Award be Transferred to another individual during
your lifetime.
13
Acknowledgement of Nature of Award.
The following provisions supplement the Acknowledgment of Nature of Award section of Exhibit A:
You acknowledge the following with respect to this Award:
(a) The Award and any Shares acquired under the Plan, and the income from and value of same, are not intended to replace
any pension rights or compensation;
(b) In no event should this Award or any Shares acquired under the Plan, and the income from and value of same, be
considered as compensation for, or relating in any way to, past services for the Company, the Employer or any other Affiliate;
(c) Neither the Company, the Employer nor any other Affiliate shall be liable for any foreign exchange rate fluctuation
between your local currency and the United States Dollar or Canadian Dollar, as applicable, that may affect the value of this Award
or of any amounts due to you pursuant to the settlement of this Award or the subsequent sale of any Shares acquired upon settlement;
(d) Unless otherwise agreed with the Company, this Award and any Shares acquired upon the settlement of this Award, and
the income from and value of same, are not granted as consideration for, or in connection with, any service you may provide as a
director of any Affiliate; and
(e) Unless otherwise provided in the Plan or by the Company in its discretion, this Award and the benefits under the Plan
evidenced by the Award Agreement do not create any entitlement to have this Award or any such benefits transferred to, or assumed
by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the
Shares.
No Advice Regarding Award.
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your
participation in the Plan, or your acquisition or sale of the underlying Shares. You should consult with your own personal tax, legal
and financial advisors regarding your participation in the Plan before taking any action related to the Plan.
Insider Trading Restrictions/Market Abuse Laws.
You acknowledge that, depending on your country or the designated broker’s country, or the countr(ies) in which the Shares are
listed, you may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect your
14
ability to accept, acquire, sell or attempt to sell or otherwise dispose of the Shares, rights to Shares (e.g., this Award) or rights linked
to the value of Shares, during such times as you are considered to have “inside information” regarding the Company (as defined by
the laws or regulations in applicable jurisdictions, including the U.S. and your country). Local insider trading laws and regulations
may prohibit the cancellation or amendment of orders you placed before possessing inside information. Furthermore, you may be
prohibited from (i) disclosing insider information to any third party, including fellow employees (other than on a “need to know”
basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any restrictions under these laws or
regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading
policy. You acknowledge that it is your responsibility to comply with any applicable restrictions, and you should speak to your
personal advisor on this matter.
Foreign Asset/Account Reporting Requirements.
You acknowledge that there may be certain foreign asset and/or account reporting requirements which may affect your ability to
acquire or hold the Shares acquired under the Plan or cash received from participating in the Plan (including from any dividends paid
on the Shares acquired under the Plan) in a brokerage or bank account outside your country. You may be required to report such
accounts, assets or transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or
other funds received as a result of participating in the Plan to your country through a designated bank or broker within a certain time
after receipt. You acknowledge that it is your responsibility to be compliant with such regulations, and you should speak to your
personal advisor on this matter.
Imposition of Other Requirements.
The Company reserves the right to impose other requirements on your participation in the Plan, on this Award and on any Shares
acquired upon settlement of this Award, to the extent the Company determines it is necessary or advisable for legal or administrative
reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
15
COUNTRY-SPECIFIC TERMS AND CONDITIONS AND NOTIFICATIONS FOR PARTICIPANTS OUTSIDE THE U.S.
AND CANADA
BRAZIL
TERMS AND CONDITIONS
Labor Law Policy and Acknowledgment.
The following provision supplements the Acknowledgment of Nature of Awards section of Exhibit A:
In accepting this Award, you acknowledge and agree that (i) you are making an investment decision, and (ii) the value of the
underlying Shares is not fixed and may increase or decrease in value over the vesting period without compensation to you.
Compliance with Law.
In accepting this Award, you agree to comply with applicable Brazilian laws, and to report and pay all Tax-Related Items associated
with the vesting of this Award or the subsequent sale of Shares acquired under the Plan.
NOTIFICATIONS
Exchange Control Information.
If you are a resident or domiciled in Brazil, you will be required to submit an annual declaration of assets and rights held outside of
Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than USD 1,000,000.
Quarterly reporting is required if such amount exceeds USD 100,000,000. Assets and rights that must be reported include Shares
acquired under the Plan and may include the Award.
Tax on Financial Transactions (IOF).
Payments to foreign countries and repatriation of funds into Brazil, and the conversion between BRL and USD associated with such
fund transfers, may be subject to the Tax on Financial Transactions. It is your responsibility to comply with any applicable Tax on
16
Financial Transactions arising from participation in the Plan. You should consult with your personal tax advisor for additional
details.
SINGAPORE
TERMS AND CONDITIONS
Sale of Shares.
Any sale or offer of Shares shall be made pursuant to one or more exemption under Part XIII Division (1) Subdivision (4) (other than
section 280) of the Securities and Futures Act (Chap. 289, 2006 Ed.) (“SFA”), or pursuant to, and in accordance with the conditions
of, any other applicable provisions of the SFA.
NOTIFICATIONS
Securities Law Information.
The grant of this Award is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA and is not
made with a view to this Award or underlying Shares being subsequently offered for sale to any other party. The Plan has not been
lodged or registered as a prospectus with the Monetary Authority of Singapore.
Director Notification Requirement.
If you are a director, associate director or shadow director of the Company’s Singapore Affiliate, you are subject to certain
notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singapore
Affiliate in writing when you receive an interest (e.g., this Award, Shares) in the Company or Affiliate. In addition, you must notify
the Singapore Affiliate when you sell Shares (including when you sell Shares issued upon settlement of this Award). These
notifications must be made within two business days of acquiring or disposing of any interest in the Company or any Affiliate. In
addition, a notification of your interests in the Company or Affiliate must be made within two business days of becoming a director.
SWITZERLAND
NOTIFICATIONS
Securities Law Information.
Neither this document nor any other materials relating to the offer of this Award (i) constitutes a prospectus according to articles 35
et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (ii) may be publicly distributed or otherwise made publicly
available in Switzerland to any person other than an employee of the Company or any of
17
its Affiliates, or (iii) has been or will be filed with, approved by or supervised by any Swiss reviewing body according to article 51
FinSA or any Swiss regulatory authority (e.g., the Swiss Financial Market Supervisory Authority).
URUGUAY
Terms & Conditions
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
You understand that Data will be collected by the Employer and will be transferred to the Company at 130 King Street, Suite 300,
Toronto, Ontario M5X 1E1 Canada and/or 5707 Blue Lagoon Drive, Miami, FL 33126 USA, and/or any financial institutions or
brokers involved in the management and administration of the Plan. You further understand that any of these entities may store Data
for purposes of administering your participation in the Plan.
18
EXHIBIT C
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
ADDITIONAL TERMS AND CONDITIONS TO THE
RESTRICTED STOCK UNIT AWARD AGREEMENT FOR PARTICIPANTS IN CANADA
Certain capitalized terms used but not defined in this Exhibit C have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the “Plan”) and/or the Restricted Stock Unit Award Agreement (the
“Award Agreement”).
TERMS AND CONDITIONS
This Exhibit C includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work in Canada. If you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this
Award is granted or are considered a resident of another country for local law purposes, the Committee shall, in its discretion,
determine to what extent the terms and conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit C also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in Canada as of December 2020. Such laws are often complex and change frequently. As a result, the Company strongly
recommends that you not rely on the information in this Exhibit C as the only source of information relating to the consequences of
your participation in the Plan because the information may be out of date at the time the RSUs subject to this Award vest and settle
or you sell Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in Canada may apply to your situation.
Finally, if you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this Award is
granted or are considered a resident of another country for local law purposes, the information contained herein may not be
applicable to you.
19
TERMS AND CONDITIONS
Termination.
The following provision supplements the Termination section of Exhibit A:
Notwithstanding the foregoing, if applicable employment standards legislation explicitly requires continued vesting during a
statutory notice period, your right to vest in the Award under the Plan, if any, will terminate effective as of the last day of your
minimum statutory notice period.
Taxes.
The following provisions replace the second paragraph under the Taxes section of Exhibit A:
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory to the
Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the Employer.
In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally payable by you
from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or in addition, if
permissible under local law, the Company may in its sole and absolute discretion (1) sell or arrange for the sale of Shares that you
acquire to meet the withholding obligation for Tax-Related Items (on your behalf pursuant to this authorization without further
consent), and/or (2) withhold the amount of Shares necessary to satisfy the Tax-Withholding Items.
The following provisions regarding language consent and data privacy will apply if you are a resident of Quebec:
Language Consent.
The parties acknowledge that it is their express wish that the Award Agreement, as well as all addenda, documents, notices, and legal
proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette Convention, ainsi que de tous documents exécutés, avis donnés
et procédures judiciaries intentées, directement ou indirectement, relativement à ou suite à la présente convention.
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
20
You hereby authorize the Company and the Company’s representatives to discuss and obtain all relevant information from all
personnel, professional or non-professional, involved in the administration of the Plan. You further authorize the Company, its
Affiliates and the Committee to disclose and discuss the Plan with their advisors. You further authorize the Employer, the Company,
and any other Affiliate to record such information and to keep such information in your employee file.
NOTIFICATIONS
Securities Law Information.
You are permitted to sell Shares acquired under the Plan through the designated broker, if any, provided the sale of the Shares
acquired under the Plan takes place through the facilities of a stock exchange on which the Shares are listed (i.e., the New York
Stock Exchange or the Toronto Stock Exchange), subject to applicable laws and Company policies.
Foreign Asset/Account Reporting Information.
You must report annually on Form T1135 (Foreign Income Verification Statement) any foreign specified property you hold
(including any Shares acquired under the Plan, if held outside Canada), if the total value of such foreign specified property exceeds
C$100,000 at any time during the year. The unvested portion of this Award also must be reported (generally at nil cost) on Form
1135 if the C$100,000 threshold is exceeded due to other foreign specified property you hold. If Shares are acquired, the cost
generally is their adjusted cost base (the “ACB”). The ACB would normally equal the Fair Market Value of the Shares at the time of
acquisition, but if you own other Shares, the ACB may have to be averaged with the ACB of the other Shares. The form must be
filed with your annual tax return by April 30 of the following year. You should consult with a personal advisor to ensure you comply
with the applicable reporting obligation.
21
FORM OF
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
PERFORMANCE AWARD AGREEMENT
EXHIBIT 10.36(e)
Unless defined in this Performance Award Agreement (the “Award Agreement”), capitalized terms will have the same
meanings ascribed to them in the Restaurant Brands International Inc. Amended and Restated 2014 Omnibus Incentive Plan (as may
be amended from time to time, the “Plan”).
Pursuant to the terms and conditions of Sections 8 and 10 of the Plan, you have been granted a Performance Award (the
“Award”) on the following terms and subject to the provisions of the Plan, which is incorporated herein by reference. Unless
defined in this Award Agreement, capitalized terms will have the same meanings ascribed to them in the Plan.
Performance Award: Restricted Stock Units (the “Performance Units”) with respect to [ ] Shares if the Performance Target for
the Performance Period is achieved, 50% of that number of Shares if the
Threshold Performance level is achieved and up to 200% of that number of
shares is at least the Maximum level is achieved,
Grant Date:
By accepting this Award of Performance Units and agreeing to this Award Agreement, you and the Company agree that this
Award of Performance Units is granted under and governed by the terms and conditions of the Plan and the terms and conditions set
forth in the attached Exhibit A, and the additional terms and conditions for employees outside the U.S. set forth in Exhibits B and C.
Exhibits A, B, and C still constitute part of this Award Agreement.
PARTICIPANT
RESTAURANT BRANDS INTERNATIONAL INC.
____________________________
Name:
By: ______________________________
Name: Jill Granat
Title: General Counsel
A-1
EXHIBIT A
TERMS AND CONDITIONS OF THE
PERFORMANCE AWARD
Definitions
For purposes of this Award Agreement, the following terms shall have the following meanings:
“Cause” means (i) a material breach by you of any of your obligations under any written employment agreement with the
Company or any of its Affiliates, (ii) a material violation by you of any of the policies, procedures, rules and regulations of the
Company or any of its Affiliates applicable to employees or other service providers generally or to employees or other service
providers at your grade level; (iii) the failure by you to reasonably and substantially perform your duties to the Company or its
Affiliates (other than as a result of physical or mental illness or injury); (iv) your willful misconduct or gross negligence that has
caused or is reasonably expected to result in material injury to the business, reputation or prospects of the Company or any of its
Affiliates; (v) your fraud or misappropriation of funds; or (vi) the commission by you of a felony or other serious crime involving
moral turpitude; provided that if you are a party to an employment agreement at the time of termination of your Service and such
employment agreement contains a different definition of “cause” (or any derivation thereof), the definition in such employment
agreement will control for purposes of this Award Agreement.
If you are terminated Without Cause and, within the twelve (12) month period subsequent to such termination of your
Service, the Company determines that your Service could have been terminated for Cause, subject to anything to the contrary that
may be contained in your employment agreement at the time of termination of your Service, your Service will, at the election of the
Company, be deemed to have been terminated for Cause, effective as of the date the events giving rise to Cause occurred.
“Closing Stock Price” means the closing quotation on the New York Stock Exchange for the applicable date (or an
applicable substitute exchange system determined by the Committee if the Company’s common shares are no longer traded on the
NYSE).
“Disability” means (i) a physical or mental condition entitling you to benefits under the long-term disability policy of the
company covering you or (ii) in the absence of any such policy, a physical or mental condition rendering you unable to perform your
duties for the Company or any Affiliate for a period of six (6) consecutive months or longer; provided that if you are a party to an
employment agreement at the time of termination of your Service and such employment agreement contains a different definition of
“disability” (or any derivation thereof), the definition in such employment agreement will control for purposes of this Award
Agreement.
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Earned Performance Units” has the meaning set forth in the Section below entitled “Determination of Number of Earned
Performance Units”.
“Percentage Earned” has the meaning set forth on Schedule 1 hereto.
“Performance Period” means the period set forth in Schedule 1 unless earlier terminated due to an Acquisition Event.
“Performance Target” means the TSR Percentile that results in a Percentage Earned of 100% TSR as stated on Schedule 1.
“Performance Units” means the restricted stock units granted pursuant to this Award.
“Retirement” means a termination of Service by you on or after the later of (i) your 55 birthday and (ii) your completion of
th
five years of Service with the Company and/or one of its Affiliates.
“Target Units” means the number of Performance Units with respect to the number of Shares reflected in this Agreement
that you could receive if the Performance Target level is achieved for the Performance Period. The number of Target Units is set
forth on the cover page of this Award Agreement.
“TSR” means the appreciation of the per share common stock price of the respective entity for the Performance Period
including the impact of dividends paid on one share of the common stock of such entity during the Performance Period, assuming
reinvestment of such dividends in such stock (based on the Closing Stock Price of such stock on the ex-dividend date). The
appreciation shall be calculated based on (i) the sum of (A) the ending price (equaling the average Closing Stock Price for the last
month of the Performance Period) plus (B) reinvested dividend amounts, divided by (ii) the initial price (equaling the average
Closing Stock Price for the month ending on the first day of the Performance Period) and then subtracting the number one as
follows:
1
Average last month price + reinvested dividends _
Average initial month price
“TSR Percentile Ranking” means the percentage that is determined by dividing (a) the number of entities in the Standard &
Poor’s 500 Index (the “S&P 500”) at the beginning of the Performance Period that had a TSR for the Performance Period less than
the Company’s TSR for the Performance Period, by (b) the total number of entities in the S&P 500 at the beginning of the
Performance Period; provided, however, (i) any entity that is not trading during the last month of the Performance Period due to
being acquired or going private shall be excluded from the calculation; and (ii) any entity that is not trading during the last month of
the Performance Period due to bankruptcy, insolvency, delisting from the applicable exchange or, at the discretion of the Committee,
the
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acquisition of the entity as the result of financial distress, will be deemed to have a TSR at the bottom of the TSR Percentile Ranking
calculation.
“Vesting Date” means _____________ or such earlier vesting date as may be provided in this Award Agreement.
“Without Cause” means a termination of your Service by your employer (the “Employer”) other than any such termination
by your Employer for Cause or due to your death or disability; provided that if you are a party to an employment agreement at the
time of termination of your Service and such employment agreement contains a different definition of “without cause” (or any
derivation thereof), the definition in such employment agreement will control for purposes of this Award Agreement.
Vesting.
The Earned Performance Units will vest on the Vesting Date and will settle in accordance with the section below entitled,
“Settlement of Earned Performance Units”, subject to the Percentage Earned being not less than 50% and subject to your continued
Service through the Vesting Date and to the Sections below entitled “Determination of Number of Earned Performance Units” and
“Termination” below.
No Payment for Shares.
No payment is required for Performance Units or Shares that you receive under this Award.
Nature of Award.
This Award represents the opportunity to receive the number of Shares equal to the Earned Performance Units earned as provided
for below under “Determination of Number of Earned Performance Units,” subject to the section above entitled “Vesting” and to the
sections below entitled “Settlement of Performance Units” and “Termination”.
Determination of Number of Earned Performance Units.
The number of Performance Units earned at the end of the Performance Period (the “Earned Performance Units”), if any, will be
based on the Percentage Earned, as set forth on Schedule 1.
Settlement of Earned Performance Units.
The Company shall deliver to you that number of Shares equal to the aggregate number of Earned Performance Units for the
Performance Period, if any, as determined in accordance with the section entitled “Determination of Number of Earned Performance
Units” above, on or as soon as practicable (but no later than 60 days) after the Vesting
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Date, subject to the section entitled “Termination” below. You will have no rights of a shareholder with respect to the Shares until
such Shares have been delivered to you.
Adjustment for Certain Events.
If and to the extent that it would not cause a violation of Section 409A of the Code or other applicable law, if any Corporate Event
described in Section 5(d)(ii) of the Plan shall occur, the Committee shall make an adjustment as described in such Section 5(d)(ii) in
such manner as the Committee may, in its sole discretion, deem appropriate and equitable to prevent substantial dilution or
enlargement of the rights provided under this Award.
Acquisition Event
In the event of an Acquisition Event, the Committee shall determine the Performance Level achieved in accordance with
Schedule 1 except that the Performance Period shall be deemed to have ended on the last day prior to the Acquisition Event.
Termination.
Upon termination of your Service (other than as set forth below) prior to the Vesting Date, you will forfeit all of your
Performance Units (including your Earned Performance Units) without any consideration due to you. For the purposes of the Plan
and this Award Agreement, your Service will not be deemed to be terminated in the event that you transfer employment from the
Company to any Affiliate or from an Affiliate to the Company or another Affiliate, as the case may be.
If your Service terminates on or after February 19, 2023 but prior to the Vesting Date Without Cause or by reason of your
Retirement, you shall be vested on the Vesting Date in the number of Earned Performance Units, as determined in accordance with
the section entitled “Number of Earned Performance Units” above, as if the Earned Performance Units subject to this Award vested
67% on February 21, 2023, and you shall be entitled to receive a number of Shares equal to the number of vested Earned
Performance Units in accordance with the section entitled “Settlement of Performance Units”. For example, if the number of Earned
Performance Units (expressed as a percentage of Target Units) is 100%, and your Service terminates Without Cause or by reason of
your Retirement on March 31, 2023, you would be entitled to receive 67% of the Target Units in settlement of your Earned
Performance Units. For the avoidance of doubt, if your Service terminates prior to February 19, 2023 Without Cause or by reason of
your Retirement, you will forfeit all of your Performance Units (including your Earned Performance Units) without any
consideration due for you.
If your Service terminates prior to the Vesting Date by reason of death or Disability, you shall be vested in the number of
Earned Performance Units, as if the Earned Performance Units subject to this Award vested 1/3 on each of February 21, 2022,
February 21, 2023, and February 21, 2024, respectively, and you shall be entitled to
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receive a number of Shares equal to the number of vested Earned Performance Units in accordance with the section entitled
“Settlement of Earned Performance Units”. Notwithstanding the foregoing, if your Service terminates on or before the last day of the
Performance Period by reason of your death or Disability, then for purposes of determining the number of Shares to be delivered to
your Beneficiary or you, your Earned Performance Units shall be equal to the Target Units, based on the applicable vesting
percentage in the preceding sentence.
In all other circumstances, your Service terminates on the day you receive written notice of termination or provide notice of
resignation. For greater clarity, the date of termination of your Service will not be extended by any period of notice of termination of
employment, payment in lieu of notice or severance mandated under local law, whether statutory, contractual or at common law
(e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law) regardless of the
reason for such termination and whether or not later found to be invalid or in breach of laws in the jurisdiction where you are
rendering Service or the terms of your Employment Agreement, if any. The Committee shall have the exclusive discretion to
determine the date of termination of your Service for purposes of this Award.
In the event that there is a conflict between the terms of this Award Agreement regarding the effect of a termination of your
Service on this Award and the terms of any Employment Agreement, the terms of your Employment Agreement will govern.
Subject to any terms and conditions that the Committee may impose in accordance with Section 13 of the Plan, in the event
that a Change in Control occurs and, within twelve (12) months following the date of such Change in Control, your Service is
terminated by the Company Without Cause, your Earned Performance Units shall vest in full upon such termination. In such event,
the number of your Earned Performance Units, and thus the number of Shares that you would be entitled to receive, shall be
calculated in accordance with the sections entitled “Determination of Number of Earned Performance Units”, and “Settlement of
Earned Performance Units”; provided, however, that if the Change in Control occurs prior to the expiration of the Performance
Period, then for purposes of determining the number of Shares to be delivered to you by reason of your termination, your Earned
Performance Units shall be equal to the Target Units. In the event that there is a conflict between the terms of this Award Agreement
regarding the effect of a Change in Control on this Award and the terms of any Employment Agreement, the terms of this Award
Agreement will govern.
In the event that any Earned Performance Units (or any Performance Units that are deemed to be Earned Performance Units)
become vested pursuant to the foregoing provisions upon termination of your Service by reason of your death or Disability,
settlement of such Earned Performance Units or deemed Earned Performance Units shall be made on or as soon as practicable (but
no later than 60 days) after the date of such termination of your Service; provided, however, that in the event of any such termination
for a reason of your death, settlement shall be no later than 2 1/2 months after the last
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day of the year in which your death occurs. Notwithstanding the foregoing, if your Performance Units constitute “nonqualified
deferred compensation” (within the meaning of Section 409A of the Code) that is subject to the requirements of Section 409A of the
Code, and you are a “specified employee’ (as defined under Section 409A of the Code), then if and to the extent required to comply
with Section 409A of the Code, settlement shall be delayed for the first 6 months following your separation from service (within the
meaning of Section 409A), or if earlier the date of your death, and instead shall be made upon expiration of such delay period.
Taxes.
Regardless of any action the Company or your Employer takes with respect to any or all income tax, social security or
insurance, government sponsored pension plan, unemployment insurance, fringe benefits tax, payroll tax, payment on account or
other tax-related withholding (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items legally
due by you is and remains your responsibility and that the Company and/or the Employer (i) make no representations or
undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant,
vesting or settlement of Performance Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any
dividends or Dividend Equivalents; and (ii) do not commit to structure the terms of the grant or any aspect of this Award to reduce or
eliminate your liability for Tax-Related Items.
If you are a U.S. taxpayer and you are or become eligible for Retirement prior to date on which your Award is settled, the
value of your Award will be subject to FICA and Medicare taxes in the U.S. upon the earlier of (1) the last day of the Performance
Period for which you have Earned Performance Units or (2) the date on which you first become eligible for Retirement, rather than
when the Units are settled. The Company may elect, however, pursuant to a rule of administrative convenience, to delay the date on
which the FICA and Medicare taxes for Participants eligible for Retirement are determined and withheld until any later date that is
within the same calendar year.
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory
to the Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the
Employer. In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally
payable by you from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or
in addition, if permissible under local law, the Company may in its sole and absolute discretion (1) sell or arrange for the sale of
Shares that you acquire to meet the withholding obligation for Tax-Related Items (on your behalf pursuant to this authorization
without further consent), and/or (2) withhold the amount of Shares necessary to satisfy the Tax-Related Items;.
The Company may withhold or account for Tax-Related Items by considering statutory withholding rates or other
withholding rates, including maximum rates
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applicable in your jurisdiction, in which case you may receive a refund of any over-withheld amount in cash and will have no
entitlement to the Shares equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes,
you are deemed to have been issued the full number of Shares subject to the vested Performance Unit, notwithstanding that a number
of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, you will pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer
may be required to withhold as a result of your participation in the Plan that cannot be satisfied by the means previously described.
The Company may refuse to deliver the Shares if you fail to comply with your obligations in connection with the Tax-Related Items
as described in this section.
Dividend Equivalents.
During the Performance Period, you shall be credited with additional Performance Units (based on the Target Units) with
respect to the number of Shares having a Fair Market Value as of the applicable dividend payment date equal to the value of any
dividends or other distributions that would have been distributed to you if each of the Shares to be delivered to you upon settlement
of the Performance Units instead was an issued and outstanding Share owned by you (“Dividend Equivalents”). After the expiration
of the Performance Period, the Target Units and the relevant accrued number of Dividend Equivalents shall be collectively adjusted
based on the Percentage Earned and rounded to six decimal places. Thereafter, for the remainder of the term of this Award
Agreement, you shall be credited with Dividend Equivalents based on the number of Earned Performance Units. The additional
Performance Units credited to you as Dividend Equivalents shall be subject to the same terms and conditions under this Award
Agreement as the Performance Units to which they relate, and shall vest and be earned and settled (rounded down to the nearest
whole number) in the same manner and at the same times as Performance Units to which they relate. Each Dividend Equivalent shall
be treated as a separate payment for purposes of Section 409A of the Code.
No Guarantee of Continued Service.
You acknowledge and agree that the vesting of this Award on the Vesting Date is earned only by performing continuing
Service (not through the act of being hired or being granted this Award). You further acknowledge and agree that this Award
Agreement, the transactions contemplated hereunder and the Vesting Date shall not be construed as giving you the right to be
retained in the employ of, or to continue to provide services to, the Company or any Affiliate. Further, the Company or the
applicable Affiliate may at any time dismiss you, free from any liability, or any claim under the Plan, unless otherwise expressly
provided in any other agreement binding you, the Company or the applicable Affiliate. The receipt of this Award is not intended to
confer any rights on you except as set forth in this Award Agreement.
Termination for Cause; Restrictive Covenants.
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In consideration for the grant of this Award and for other good and valuable consideration, the sufficiency of which is
acknowledged by you, you agree as follows:
Upon (i) a termination of your Service for Cause, (ii) a retroactive termination of your Service for Cause as permitted herein
or under your employment agreement, or (iii) a violation of any post-termination restrictive covenant (including, without limitation,
non-disclosure, non-competition and/or non-solicitation) contained in your employment agreement, or any separation or termination
or similar agreement you may enter into with the Company or one of its Affiliates in connection with termination of your Service,
any Award you hold shall be immediately forfeited and the Company may require that you repay (with interest or appreciation (if
any), as applicable, determined up to the date payment is made), and you shall promptly repay to the Company, the Fair Market
Value (in cash or in Shares) of any Shares received upon the settlement of Performance Units during the period beginning on the
date that is one year before the date of your termination and ending on the first anniversary of the date of your termination. The Fair
Market Value of any such Shares shall be determined as of the date on which the Performance Units were settled.
Company’s Right of Offset.
If you become entitled to a distribution of benefits under this Award, and if at such time you have any outstanding debt,
obligation, or other liability representing an amount owing to the Company or any of its Affiliates, then the Company or its
Affiliates, upon a determination by the Committee, and to the extent permitted by applicable law and not causing a violation of
Section 409A of the Code, may offset such amount so owing against the amount of benefits otherwise distributable. Such
determination shall be made by the Committee.
Acknowledgment of Nature of Award.
In accepting the grant of this Award, you acknowledge that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended,
suspended or terminated by the Company at any time, as provided in the Plan;
(b) the grant of this Award is voluntary, occasional and discretionary and does not create any contractual or other right to
receive future awards of Performance Units, or benefits in lieu of Performance Units even if Performance Units have been awarded
in the past, whether or not repeatedly;
(c) all decisions with respect to future awards, if any, will be at the sole discretion of the Company;
(d) your participation in the Plan is voluntary;
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(e) this Award and any Shares acquired under the Plan, and the income from and value of same, are not part of normal or
expected compensation or salary for any purposes, including, but not limited to, calculation of any severance, resignation,
termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;
(f) the future value of the underlying Shares is unknown and cannot be predicted with certainty;
(g) if you receive Shares, the value of such Shares acquired upon settlement may increase or decrease in value; and
(h) no claim or entitlement to compensation or damages arises from termination of this Award, and no claim or entitlement
to compensation or damages shall arise from any diminution in value of the Performance Units or Shares received upon settlement of
Performance Units resulting from termination of your Service and you irrevocably release the Company, the Employer and their
respective Affiliates from any such claim that may arise.
Securities Laws.
By accepting this Award, you acknowledge that Canadian or other applicable securities laws, including, without limitation, U.S.
securities laws, and/or the Company’s policies regarding trading in its securities may limit or restrict your right to buy or sell Shares,
including, without limitation, sales of Shares acquired in connection with this Award. You agree to comply with all Canadian and
any other applicable securities law requirements, including, without limitation, any U.S. securities law requirements, and Company
policies, as such laws and policies are amended from time to time.
Data Privacy Notice and Consent.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your
personal data as described in this Award Agreement by and among, as applicable, the Employer, the Company and its other
Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company, the Employer and/or other Affiliates may hold certain personal information about
you, including, but not limited to, your name, home address, email address and telephone number, date of birth, social insurance
or social security number, passport or other identification number, salary, nationality, job title, any shares of stock or
directorships held in the Company, details of all Performance Units or any other entitlement to Shares awarded, canceled, vested,
unvested or outstanding in your favor (“Data”), for the exclusive purpose of implementing, administering and managing your
participation in the Plan.
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You understand that Data will be transferred to Solium Capital or such other third party assisting in the implementation,
administration and management of the Plan, that these recipients may be located in Canada, the United States or elsewhere, and
that the recipient’s country may have different data privacy laws and protections than your country. You understand that, if you
reside in the European Economic Area, you may request a list with the names and addresses of any potential recipients of Data
by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer
Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan.
You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the
Plan. You understand that, if you reside in the European Economic Area, you may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand
that refusal or withdrawal of consent may affect your ability to participate in the Plan. Further, you understand that you are
providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your
employment status or Service with the Employer will not be affected; the only consequence of refusing or withdrawing your
consent is that the Company would not be able to grant you Performance Units or other awards or administer or maintain such
awards. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you
may contact your local human resources representative.
Upon request of the Company or the Employer, you agree to provide a separate executed data privacy consent form (or
any other agreements or consents that may be required by the Company and/or the Employer) that the Company and/or the
Employer may deem necessary to obtain from you for the purpose of administering your participation in the Plan in compliance
with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to
participate in the Plan if you fail to provide any such consent or agreement requested by the Company and/or the Employer.
Limits on Transferability; Beneficiaries.
This Award shall not be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability to any
party, or Transferred, otherwise than by your will or the laws of descent and distribution or to a Beneficiary upon your death, except
that this Award may be Transferred to one or more Beneficiaries or other Transferees during your lifetime with the consent of the
Committee. A Beneficiary, Transferee, or other person claiming any rights under this Award Agreement shall be subject to all terms
and conditions of the Plan and this Award Agreement, except as otherwise determined by the Committee, and to any additional terms
and conditions deemed necessary or appropriate by the Committee.
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No Transfer to any executor or administrator of your estate or to any Beneficiary by will or the laws of descent and
distribution of any rights in respect of this Award shall be effective to bind the Company unless the Committee shall have been
furnished with (i) written notice thereof and with a copy of the will and/or such evidence as the Committee may deem necessary to
establish the validity of the Transfer and (ii) the written agreement of the Transferee to comply with all the terms and conditions
applicable to this Award and any Shares received upon settlement of Performance Units that are or would have been applicable to
you.
Section 409A Compliance.
Neither the Plan, nor this Award Agreement is intended to provide for a deferral of compensation that would subject the
Performance Units to taxation prior to the issuance of Shares as a result of Section 409A of the Code. Notwithstanding anything to
the contrary in the Plan, or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems
necessary or advisable, in its sole discretion and without your consent, to comply with Section 409A of the Code or to otherwise
avoid imposition of any additional tax or income recognition under Section 409A of the Code prior to the actual payment of Shares
pursuant to this Award.
Notwithstanding the foregoing, the Company does not make any representation to you that the Performance Units awarded
pursuant to this Agreement are exempt from, or satisfy, the requirements of Section 409A, and the Company shall have no liability
or other obligation to indemnify or hold harmless you or any Beneficiary for any tax, additional tax, interest or penalties that you or
any Beneficiary may incur in the event that any provision of this Agreement, or any amendment or modification thereof or any other
action taken with respect thereto, is deemed to violate any of the requirements of Section 409A.
Entire Agreement; Governing Law; Jurisdiction; Waiver of Jury Trial.
The Plan, this Award Agreement and, to the extent applicable, your employment agreement or any separation agreement constitute
the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings,
representations and agreements (whether oral or written) of the Company and you with respect to the subject matter hereof. This
Award Agreement may not be modified in a manner that adversely affects your rights heretofore granted under the Plan, except with
your consent or to comply with applicable law or to the extent permitted under other provisions of the Plan. This Award Agreement
is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its principles
of conflict of laws.
ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO THIS AWARD OR THE
AWARD AGREEMENT MAY BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE PROVINCE OF ONTARIO, AND
YOU IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS
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IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. ANY ACTIONS OR PROCEEDINGS TO ENFORCE A
JUDGMENT ISSUED BY ONE OF THE FOREGOING COURTS MAY BE ENFORCED IN ANY JURISDICTION.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, YOU HEREBY
WAIVE, AND COVENANT THAT YOU WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE),
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING
OUT OF THIS AWARD AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE.
By signing this Award Agreement, you acknowledge receipt of a copy of the Plan and represent that you understand the terms and
conditions of the Plan, and hereby accept this Award subject to all provisions in this Award Agreement and in the Plan. You hereby
agree to accept as final, conclusive and binding all decisions or interpretations of the Committee upon any questions arising under
the Plan or this Award Agreement.
Electronic Delivery and Acceptance.
The Company may, in its sole discretion, decide to deliver any documents related to this Award or future awards that may be
awarded under the Plan by electronic means or request your consent to participate in the Plan by electronic means. You hereby
consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system
established and maintained by the Company or a third party designated by the Company.
Agreement Severable.
In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this
Award Agreement.
Language.
You acknowledge that you are proficient in the English language or have consulted with an advisor who is sufficiently
proficient in the English language, so as to allow you to understand the content of this Award Agreement and other Plan-related
materials. If you have received this Award Agreement or any other document related to the Plan translated into a language other than
English and if the meaning of the translated version is different than the English version, the English version will control.
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Non-U.S. Terms and Conditions.
Notwithstanding any provision in this Award Agreement, if you work and/or reside outside the U.S., this Award shall be subject to
the additional terms and conditions set forth in Exhibits B and C, as applicable. Moreover, if you relocate to one of the countries or
between countries included in Exhibits B or C, the special terms and conditions for such country will apply to you, to the extent the
Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons.
Exhibits B and C constitute part of this Award Agreement.
Waiver.
You acknowledge that a waiver by the Company of breach of any provision of this Award Agreement shall not operate or be
construed as a waiver of any other provision of this Award Agreement, or of any subsequent breach by you or any other Participant.
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“Performance Period” means the period beginning December 31, 2020 and ending December 31, 2023.
The number of Performance Units that become Earned Units is determined based on the level of achievement during the
Performance Period based on the TSR Percentile Ranking.
Schedule 1
The “Percentage Earned” is determined as follows:
Performance Level
Percentage Earned
(% of Target)
th
90 Percentile
th
75 Percentile
th
50 Percentile
th
25 Percentile
<25 Percentile
th
200%
150%
100%
50%
0%
*Percentage Earned between listed Performance Levels will be at the Payout for the highest Performance Level exceeded.
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EXHIBIT B
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
ADDITIONAL TERMS AND CONDITIONS OF THE
PERFORMANCE AWARD AGREEMENT FOR PARTICIPANTS
OUTSIDE THE U.S.
Certain capitalized terms used but not defined in this Exhibit B have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the "Plan") and/or the Performance Award Agreement (the "Award
Agreement").
TERMS AND CONDITIONS
This Exhibit B includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work outside the U.S. and Canada and/or in one of the countries listed below. If you are a citizen or resident of a country other than
the one in which you are currently residing and/or working, transfer employment and/or residency after this Award is granted or are
considered a resident of another country for local law purposes, the Committee shall, in its discretion, determine to what extent the
terms and conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit B also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in the respective countries as of January 2020. Such laws are often complex and change frequently. As a result, the Company
strongly recommends that you not rely on the information in this Exhibit B as the only source of information relating to the
consequences of your participation in the Plan because the information may be out of date at the time you vest in this Award or sell
Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently residing and/or working, transfer
employment and/or residency after this Award is granted or are considered a resident of another country for local law purposes, the
information contained herein may not be applicable to you.
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GENERAL TERMS AND CONDITIONS FOR PARTICIPANTS OUTSIDE THE U.S.
The following terms and conditions apply if you reside and/or work outside of the U.S. and supplement the entire Award Agreement
generally:
Entire Agreement.
The following provisions replace the first sentence of the Entire Agreement section of Exhibit A:
The Plan and the Award Agreement, including this Exhibit B, constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings, representations and agreements (whether oral or written)
of the Company and you with respect to the subject matter hereof. In no event will any aspect of this Award be determined in
accordance with your employment agreement (or other Service contract).
Retirement.
Notwithstanding the favorable treatment that is potentially available upon a termination due to Retirement (as set forth in the
Termination section of the Award Agreement), if the Company receives an opinion of counsel that there has been a legal judgment
and/or legal development in your jurisdiction that would likely result in this favorable treatment upon termination due to Retirement
being deemed unlawful and/or discriminatory, then the favorable Retirement treatment will not apply at the time your Service
terminates and the Award will be forfeited if your Service ends before the Vesting Date for any reason other than as set forth in the
Termination section of the Award Agreement.
Taxes.
The following provisions supplement the Taxes section of Exhibit A:
You acknowledge that your liability for Tax-Related Items may exceed the amount withheld by the Company and/or the Employer,
if any.
If you have become subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
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Limits on Transferability; Beneficiaries.
The following provision supplements the Limits on Transferability; Beneficiaries section of Exhibit A:
This Award may not be Transferred to a designated Beneficiary and may only be Transferred upon your death to your legal heirs in
accordance with applicable laws of descent and distribution. In no case may this Award be Transferred to another individual during
your lifetime.
Acknowledgement of Nature of Award.
The following provisions supplement the Acknowledgment of Nature of Award section of Exhibit A:
You acknowledge the following with respect to this Award:
(a) The Award and any Shares acquired under the Plan, and the income from and value of same, are not intended to replace
any pension rights or compensation;
(b) In no event should this Award or any Shares acquired under the Plan, and the income from and value of same, be
considered as compensation for, or relating in any way to, past services for the Company, the Employer or any other Affiliate;
(c) Neither the Company, the Employer nor any other Affiliate shall be liable for any foreign exchange rate fluctuation
between your local currency and the United States Dollar or Canadian Dollar, as applicable, that may affect the value of this Award
or of any amounts due to you pursuant to the settlement of this Award or the subsequent sale of any Shares acquired upon settlement;
(d) Unless otherwise agreed with the Company, this Award and any Shares acquired upon the settlement of this Award, and
the income from and value of same, are not granted as consideration for, or in connection with, any service you may provide as a
director of any Affiliate; and
(e) Unless otherwise provided in the Plan or by the Company in its discretion, this Award and the benefits under the Plan
evidenced by the Award Agreement do not create any entitlement to have this Award or any such benefits transferred to, or assumed
by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the
Shares.
No Advice Regarding Award.
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your
participation in the Plan, or your
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acquisition or sale of the underlying Shares. You should consult with your own personal tax, legal and financial advisors regarding
your participation in the Plan before taking any action related to the Plan.
Insider Trading Restrictions/Market Abuse Laws.
You acknowledge that, depending on your country or the designated broker’s country, or the countr(ies) in which the Shares are
listed, you may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect your
ability to accept, acquire, sell or attempt to sell or otherwise dispose of the Shares, rights to Shares (e.g., this Award) or rights linked
to the value of Shares, during such times as you are considered to have “inside information” regarding the Company (as defined by
the laws or regulations in applicable jurisdictions, including the U.S. and your country). Local insider trading laws and regulations
may prohibit the cancellation or amendment of orders you placed before possessing inside information. Furthermore, you may be
prohibited from (i) disclosing insider information to any third party, including fellow employees (other than on a “need to know”
basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any restrictions under these laws or
regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading
policy. You acknowledge that it is your responsibility to comply with any applicable restrictions, and you should speak to your
personal advisor on this matter.
Foreign Asset/Account Reporting Requirements.
You acknowledge that there may be certain foreign asset and/or account reporting requirements which may affect your ability to
acquire or hold the Shares acquired under the Plan or cash received from participating in the Plan (including from any dividends paid
on the Shares acquired under the Plan) in a brokerage or bank account outside your country. You may be required to report such
accounts, assets or transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or
other funds received as a result of participating in the Plan to your country through a designated bank or broker within a certain time
after receipt. You acknowledge that it is your responsibility to be compliant with such regulations, and you should speak to your
personal advisor on this matter.
Imposition of Other Requirements.
The Company reserves the right to impose other requirements on your participation in the Plan, on this Award and on any Shares
acquired upon settlement of this Award, to the extent the Company determines it is necessary or advisable for legal or administrative
reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
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SPECIAL TERMS AND CONDITIONS AND NOTIFICATIONS FOR PARTICIPANTS OUTSIDE THE U.S. AND
CANADA
BRAZIL
TERMS AND CONDITIONS
Labor Law Policy and Acknowledgment.
The following provision supplements the Acknowledgment of Nature of Awards section of Exhibit A:
In accepting this Award, you acknowledge and agree that (i) you are making an investment decision, (ii) the Shares will be issued to
you only if the vesting conditions are met and any necessary services are rendered by you over the vesting period, and (iii) the value
of the underlying Shares is not fixed and may increase or decrease in value over the vesting period without compensation to you.
Compliance with Law.
In accepting this Award, you agree to comply with applicable Brazilian laws, and to report and pay all Tax-Related Items associated
with the vesting of this Award or the subsequent sale of Shares acquired under the Plan.
NOTIFICATIONS
Exchange Control Information.
If you are a resident or domiciled in Brazil, you will be required to submit an annual declaration of assets and rights held outside of
Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than USD 100,000.
Quarterly reporting is required if such amount exceeds USD 100,000,000. Assets and rights that must be reported include Shares
acquired under the Plan and may include the Award.
Tax on Financial Transactions (IOF).
Payments to foreign countries and repatriation of funds into Brazil, and the conversion between BRL and USD associated with such
fund transfers, may be subject to the Tax on Financial Transactions. It is your responsibility to comply with any applicable Tax on
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Financial Transactions arising from participation in the Plan. You should consult with your personal tax advisor for additional
details.
SINGAPORE
TERMS AND CONDITIONS
Sale of Shares.
Any sale or offer of Shares shall be made pursuant to one or more exemptions under Part XIII Division (1) Subdivision (4) (other
than section 280) of the Securities and Futures Act (Chap. 289, 2006 Ed.) (“SFA”), or pursuant to, and in accordance with the
conditions of, any other applicable provisions of the SFA.
NOTIFICATIONS
Securities Law Information.
The grant of this Award is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA and is not
made with a view to this Award or underlying Shares being subsequently offered for sale to any other party. The Plan has not been
lodged or registered as a prospectus with the Monetary Authority of Singapore.
Director Notification Requirement.
If you are a director, associate director or shadow director of the Company’s Singapore Affiliate, you are subject to certain
notification requirements under the Singapore Companies Act. Among these requirements is an obligation to notify the Singapore
Affiliate in writing when you receive an interest (e.g., this Award, Shares) in the Company or Affiliate. In addition, you must notify
the Singapore Affiliate when you sell Shares (including when you sell Shares issued upon settlement of this Award). These
notifications must be made within two business days of acquiring or disposing of any interest in the Company or any Affiliate. In
addition, a notification of your interests in the Company or Affiliate must be made within two business days of becoming a director.
SWITZERLAND
NOTIFICATIONS
Securities Law Information.
Neither this document nor any other materials relating to the offer of this Award (i) constitutes a prospectus according to articles 35
et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (ii) may be publicly distributed or otherwise made publicly
available in Switzerland to any person other than an employee of the Company or any of its Affiliates, or (iii) has been or will be
filed with, approved by or supervised by any
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Swiss reviewing body according to article 51 FinSA or any Swiss regulatory authority (e.g., the Swiss Financial Market Supervisory
Authority).
URUGUAY
Terms & Conditions
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
You understand that Data will be collected by the Employer and will be transferred to the Company at 130 King Street, Suite 300,
Toronto, Ontario M5X 1E1 Canada and/or 5707 Blue Lagoon Drive, Miami, FL 33126 USA, and/or any financial institutions or
brokers involved in the management and administration of the Plan. You further understand that any of these entities may store Data
for purposes of administering your participation in the Plan.
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EXHIBIT C
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
ADDITIONAL TERMS AND CONDITIONS TO THE
PERFORMANCE AWARD AGREEMENT FOR PARTICIPANTS IN CANADA
Certain capitalized terms used but not defined in this Exhibit C have the meanings set forth in the Restaurant Brands International
Inc. Amended and Restated 2014 Omnibus Incentive Plan (the “Plan”) and/or the Performance Award Agreement (the “Award
Agreement”).
TERMS AND CONDITIONS
This Exhibit C includes additional terms and conditions that govern this Award granted to you under the Plan if you reside and/or
work in Canada. If you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this
Award is granted or are considered a resident of another country for local law purposes, the Committee shall, in its discretion,
determine to what extent the terms and conditions contained herein shall apply to you.
NOTIFICATIONS
This Exhibit C also includes information regarding securities, exchange controls, tax and certain other issues of which you should be
aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect
in Canada as of January 2020. Such laws are often complex and change frequently. As a result, the Company strongly recommends
that you not rely on the information in this Exhibit C as the only source of information relating to the consequences of your
participation in the Plan because the information may be out of date at the time the Performance Units subject to this Award vest and
settle or you sell Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is
not in a position to assure you of a particular result. Accordingly, you should seek appropriate professional advice as to how the
relevant laws in Canada may apply to your situation.
Finally, if you are a citizen or resident of a country other than Canada, transfer employment and/or residency after this Award is
granted or are considered a resident of another country for local law purposes, the information contained herein may not be
applicable to you.
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TERMS AND CONDITIONS
Termination.
The following provision supplements the Termination section of Exhibit A:
Notwithstanding the foregoing, if applicable employment standards legislation explicitly requires continued vesting during a
statutory notice period, your right to vest in the Award under the Plan, if any, will terminate effective as of the last day of your
minimum statutory notice period.
Taxes.
The following provisions replace the third paragraph under the Taxes section of Exhibit A:
Prior to the relevant taxable or tax withholding event, as applicable, you will pay or make adequate arrangements satisfactory to the
Company and/or the Employer to satisfy all withholding and payment on account obligations of the Company and/or the Employer.
In this regard, you authorize the Company and/or the Employer to withhold all applicable Tax-Related Items legally payable by you
from your wages or other cash compensation payable to you by the Company and/or the Employer. Alternatively, or in addition, if
permissible under local law, the Company may in its sole and absolute discretion (1) sell or arrange for the sale of Shares that you
acquire to meet the withholding obligation for Tax-Related Items (on your behalf pursuant to this authorization without further
consent), and/or (2) withhold the amount of Shares necessary to satisfy the Tax-Withholding Items.
The following provisions regarding language consent and data privacy will apply if you are a resident of Quebec:
Language Consent.
The parties acknowledge that it is their express wish that the Award Agreement, as well as all addenda, documents, notices, and legal
proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette Convention, ainsi que de tous documents exécutés, avis donnés
et procédures judiciaries intentées, directement ou indirectement, relativement à ou suite à la présente convention.
Data Privacy Notice and Consent.
The following provision supplements the Data Privacy Notice and Consent section of Exhibit A:
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You hereby authorize the Company and the Company’s representatives to discuss and obtain all relevant information from all
personnel, professional or non-professional, involved in the administration of the Plan. You further authorize the Company, its
Affiliates and the Committee to disclose and discuss the Plan with their advisors. You further authorize the Employer, the Company,
and any other Affiliate to record such information and to keep such information in your employee file.
NOTIFICATIONS
Securities Law Information.
You are permitted to sell Shares acquired under the Plan through the designated broker, if any, provided the sale of the Shares
acquired under the Plan takes place through the facilities of a stock exchange on which the Shares are listed (i.e., the New York
Stock Exchange or the Toronto Stock Exchange).
Foreign Asset/Account Reporting Information.
You must report annually on Form T1135 (Foreign Income Verification Statement) any foreign specified property you hold
(including any Shares acquired under the Plan, if held outside Canada), if the total value of such foreign specified property exceeds
C$100,000 at any time during the year. The unvested portion of this Award also must be reported (generally at nil cost) on Form
1135 if the C$100,000 threshold is exceeded due to other foreign specified property you hold. If Shares are acquired, the cost
generally is their adjusted cost base (the “ACB”). The ACB would normally equal the Fair Market Value of the Shares at the time of
acquisition, but if you own other Shares, the ACB may have to be averaged with the ACB of the other Shares. The form must be
filed with your annual tax return by April 30 of the following year. You should consult with a personal advisor to ensure you comply
with the applicable reporting obligation.
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EXHIBIT 10.32
FORM OF
NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT
This NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of [insert
date] by and between [insert name of employer], a [insert state of incorporation] (together with any Successor thereto, the “Company”), and
[insert name] (“Executive”).
WHEREAS, Executive commenced employment with the Company on [insert date];
WITNESSETH:
WHEREAS, during the term of Executive’s employment with the Company, Executive has received and will continue to receive access to
competitively sensitive, confidential, proprietary and trade secret information relating to the current and planned business of the Company;
WHEREAS, the Company and Executive desire to make certain arrangements to protect the value of such information to the Company during
Executive’s employment and following the termination of Executive’s employment with the Company; and
WHEREAS, Executive currently is a party to an employment agreement with the Company dated as of [insert date], as such agreement may
have been amended from time to time, that governs the terms and conditions of Executive’s employment (as so amended, the “Original
Agreement”) and Executive and the Company desire to have the Original Agreement superseded by the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises contained herein and for other good and
valuable consideration, the Company and Executive hereby agree as follows:
1. Employment; Amendment and Restatement of Original Agreement. Executive acknowledges and agrees that nothing herein shall
be construed as a guarantee of continued employment for a specific period or under particular terms or otherwise as having altered
Executive’s employment-at-will status with the Company. Additionally, Executive acknowledges and agrees that this Agreement shall serve
as a complete amendment and restatement of the Original Agreement. All terms of the Original Agreement shall be superseded by the terms
of this Agreement and, upon execution of this Agreement, the Original Agreement shall be of no further force and effect.
2. Restrictive Covenants. Each of the Company and Executive agrees that the Executive will have a prominent role in the
management of the business, and the development of the goodwill of the Company and its Affiliates, and will establish and develop relations
and contacts with the franchisees, customers and suppliers of the Company and its Affiliates throughout the world, all of which constitute
valuable goodwill of, and could be used by Executive to compete unfairly with, the Company and its Affiliates. In addition, Executive
recognizes that he/she will have access to and become familiar with or be exposed to Confidential Information (as such term is defined
below), in particular, trade secrets, proprietary information, customer lists, recipes and formulations, and other valuable business information
of the Company and its Affiliates pertaining or related to the quick service restaurant business. Executive agrees that Executive could cause
grave harm to the Company and its Affiliates if he/she, among other things, worked for the Company’s competitors, solicited the Company’s
employees or those of its Affiliates away from the Company or its Affiliates or solicited the Company’s franchisees or those of its
Affiliates upon the termination of Executive’s employment with the Company or misappropriated or divulged Confidential Information, and
that as such, the Company has legitimate business interests in protecting its goodwill and Confidential Information, and these legitimate
business interests therefore justify the following restrictive covenants:
(a) Confidentiality. Executive agrees that during his/her employment with the Company and thereafter, Executive will not, directly or
indirectly (A) disclose any Confidential Information to any Person (other than, only with respect to the period that Executive is employed by
the Company, to an employee or outside advisor of the Company who requires such information to perform his or her duties for the
Company), or (B) use any Confidential Information for Executive’s own benefit or the benefit of any third party. “Confidential Information”
means confidential, proprietary or commercially sensitive information relating to (Y) the Company or its Affiliates, or members of their
respective management or boards or (Z) any third parties who do business with the Company or its Affiliates, including franchisees and
suppliers. Confidential Information includes, without limitation, marketing plans, business plans, financial information and records, operation
methods, recipes and formulations, personnel information, drawings, designs, information regarding product development, other commercial
or business information and any other information not available to the public generally. The foregoing obligation shall not apply to any
Confidential Information that has been previously disclosed to the public or is in the public domain (other than by reason of a breach of
Executive’s obligations to hold such Confidential Information confidential). If Executive is required or requested by a court or governmental
agency to disclose Confidential Information, Executive must notify the General Counsel of the Company of such disclosure obligation or
request no later than three (3) business days after Executive learns of such obligation or request, and permit the Company to take all lawful
steps it deems appropriate to prevent or limit the required disclosure.
(b) Non-Competition. Executive agrees that during his/her employment with the Company (the “Employment Period”), Executive
shall devote all of his/her skill, knowledge, commercial efforts and business time to the conscientious and good faith performance of his/her
duties and responsibilities to the Company to the best of his/her ability and Executive shall not, directly or indirectly, be employed by, render
services for, engage in business with or serve as an agent or consultant to any Person other than the Company. Executive further agrees that
during the Employment Period and for the one (1) year period following Executive’s termination of employment with the Company
(irrespective of the cause or manner of termination), Executive shall not directly or indirectly engage in any activities that are competitive
with the quick service restaurant business conducted by the Company or any of its Affiliates, and Executive shall not, directly or indirectly,
become employed by, render services for, engage in business with, serve as an agent or consultant to, or become a partner, member, principal,
stockholder or other owner of, any Person or entity that engages in the quick serve restaurant business anywhere in the world, including any
franchisee of the Company or any if its Affiliates, provided that Executive shall be permitted to hold a one percent (1%) or less interest in the
equity or debt securities of any publicly traded company. Executive’s duties and responsibilities involve, and/or will affect, the operation and
management of the Company on a worldwide basis. Executive will obtain Confidential Information that will affect the Company’s operations
and that of its Affiliates throughout the world. Accordingly, Executive acknowledges that the Company has legitimate business interests in
requiring a worldwide geographic scope and application of this non-compete provision, and agrees that this non-compete provision applies on
a worldwide basis.
(c) Non-Solicitation. During Employment Period and for the one (1) year period following Executive’s termination of employment
with the Company (irrespective of the cause or manner of termination), Executive shall not, directly or indirectly, by him/herself or through
any third party, whether on Executive’s own behalf or on behalf of any other Person or entity, (i) solicit or induce or endeavor to solicit or
induce, divert, employ or retain, (ii) interfere with the relationship of the Company or any of its
Affiliates with, or (iii) attempt to establish a business relationship of a nature that is competitive with the business of the Company or any of
its Affiliates with any Person that is or was (during the last twelve (12) months of Executive’s employment with the Company): (A) an
employee of the Company or any of its Affiliates, (B) engaged to provide services to the Company or any of its Affiliates, including vendors
who provide or have provided advertising, marketing or other services to the Company or any of its Affiliates, or (C) a franchisee of the
Company or any of its Affiliates.
(d) Franchisee Activities. In addition to, and not by way of limitation of, any of the covenants set forth elsewhere herein, Executive
agrees that, during his/her employment with the Company and for an indefinite period following the termination of his/her employment
(irrespective of the cause or manner of termination), Executive will not, whether on Executive’s own behalf or in conjunction with or on
behalf of any other Person, directly or indirectly, solicit, or assist in soliciting, offer, or entice, consult, provide advice to, or otherwise be
involved with, a franchisee of (or an operator under an operating/license agreement with) the Company or any of its Affiliates to engage in
any act or activity, whether individually or collectively with other franchisees, operators, or persons, that is adverse or contrary to the direct or
indirect interests of the Company or its Affiliate’s business, financial, or general relationship with such franchisees and operators. Such
prohibited activities include but are not limited to the organization or facilitation of, or provision of management services to, an association or
organization of franchisees/operators with respect to the business or any other relationship that such franchisees/operators have with the
Company or any of its Affiliates, including but not limited to any such organization or association that would act as an additional layer of
negotiations between the Company or its Affiliates and its franchisees/operators.
3. Work Product. Executive agrees that all of Executive’s work product (created solely or jointly with others, and including any
intellectual property or moral rights in such work product), given, disclosed, created, developed or prepared in connection with Executive’s
employment with the Company, whether ensuing during or after the Employment Period (“Work Product”) shall exclusively vest in and be
the sole and exclusive property of the Company and shall constitute “work made for hire” (as that term is defined under Section 101 of the
U.S. Copyright Act, 17 U.S.C. § 101) with the Company being the person for whom the work was prepared. In the event that any such Work
Product is deemed not to be a “work made for hire” or does not vest by operation of law in the Company, Executive hereby irrevocably
assigns, transfers and conveys to the Company, exclusively and perpetually, all right, title and interest which Executive may have or acquire
in and to such Work Product throughout the world, including without limitation any copyrights and patents, and the right to secure
registrations, renewals, reissues, and extensions thereof. The Company and its Affiliates or their designees shall have the exclusive right to
make full and complete use of, and make changes to all Work Product without restrictions or liabilities of any kind, and Executive shall not
have the right to use any such materials, other than within the legitimate scope and purpose of Executive’s employment with the Company.
Executive shall promptly disclose to the Company the creation or existence of any Work Product and shall take whatever additional lawful
action may be necessary, and sign whatever documents the Company may require, in order to secure and vest in the Company or its designee
all right, title and interest in and to all Work Product and any intellectual property rights therein (including full cooperation in support of any
Company applications for patents and copyright or trademark registrations). Additionally, Executive agrees that Executive will not share with
or disclose to any third party the underlying technology or code used to develop the Work Product, if any. Further, Executive agrees that
Executive will not use in any of the Work Product any pre-existing development tools, routines, subroutines or other programs, data or
materials that Executive may have created or learned prior to the commencement of your provision of services to the Company.
4. Compliance With Company Policies. During the Employment Period, Executive shall be governed by and be subject to, and
Executive hereby agrees to comply with, all Company policies, procedures, rules and regulations applicable to employees generally or to
employees at Executive’s grade
level, including without limitation, the Restaurant Brands International Inc. Code of Business Ethics and Conduct, in each case, as they may
be amended from time to time in the Company’s sole discretion (collectively, the “Policies”).
5. Data Protection & Privacy.
(a) Executive acknowledges that the Company, directly or through its Affiliates, collects and processes data (including personal
sensitive data and information retained in email) relating to Executive. Executive hereby agrees to such collection and processing and further
agrees to execute the Company’s Employee Consent to Collection and Processing of Personal Information, a copy of which is attached to this
Agreement as Attachment 1.
(b) To ensure regulatory compliance and for the protection of its workers, customers, suppliers and business, the Company reserves
the right to monitor, intercept, review and access telephone logs, internet usage, voicemail, email and other communication facilities provided
by the Company which Executive may use during his/her employment with the Company. Executive hereby acknowledges that all
communications and activities on Company equipment or premises cannot be presumed to be private.
6. Injunctive Relief with Respect to Covenants; Forum, Venue and Jurisdiction. Executive acknowledges and agrees that a breach by
Executive of any of Section 2, 3, 4 or 5 is a material breach of this Agreement and that remedies at law may be inadequate to protect the
Company and its Affiliates in the event of such breach, and, without prejudice to any other rights and remedies otherwise available to the
Company, Executive agrees to the granting of injunctive relief in the Company’s favor in connection with any such breach or violation
without proof of irreparable harm, plus attorneys’ fees and costs to enforce these provisions. Executive further agrees that the foregoing is
appropriate for any such breach inasmuch as actual damages cannot be readily calculated, the amount is fair and reasonable under the
circumstances, and the Company would suffer irreparable harm if any of these Sections were breached. All disputes not relating to any
request or application for injunctive relief in accordance with this Section 6 shall be resolved by arbitration in accordance with Section 9(b).
7. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter
hereof. All prior correspondence and proposals (including but not limited to summaries of proposed terms) and all prior promises,
representations, understandings, arrangements and agreements relating to such subject matter (including but not limited to those made to or
with Executive by any other Person and those contained in any prior employment, consulting or similar agreement, including the Original
Agreement, entered into by Executive and the Company or any predecessor thereto or Affiliate thereof) are merged herein and superseded
hereby. For the avoidance of doubt, this Agreement shall not merge with, supersede or otherwise impact any agreements currently in place
between any Affiliates of the Company and Executive with respect to the grant of options to purchase common stock of Restaurant Brands
International Inc.
8. Survival. The following Sections shall survive the termination of Executive’s employment with the Company and of this
Agreement: 2, 3, 5, 6, 7, 8 and 9.
9. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding on and inure to the benefit of the Company and its Successors and
permitted assigns. This Agreement shall also be binding on and inure to the benefit of Executive and his/her heirs, executors, administrators
and legal representatives. This Agreement shall not be assignable by any party hereto without the prior written consent of the other parties
hereto, provided, however, that the Company may effect such an assignment without prior written
approval of Executive upon the transfer of all or substantially all of its business and/or assets (by whatever means).
(b) Arbitration. The Company and Executive agree that any dispute or controversy arising under or in connection with this Agreement
shall be resolved by final and binding arbitration before the American Arbitration Association (“AAA”). The arbitration shall be conducted in
accordance with AAA’s National Rules for the Resolution of Employment Disputes then in effect at the time of the arbitration. The
arbitration shall be held in Miami, Florida. The dispute shall be heard and determined by one arbitrator selected from a list of arbitrators who
are members of AAA’s Regional Employment Dispute Resolution roster. If the parties cannot agree upon a mutually acceptable arbitrator
from the list, each party shall number the names in order of preference and return the list to AAA within ten (10) days from the date of the
list. A party may strike a name from the list only for good cause. The arbitrator receiving the highest ranking by the parties shall be selected.
Depositions, if permitted by the arbitrator, shall be limited to a maximum of two (2) per party and to a maximum of four (4) hours in duration.
The arbitration shall not impair either party’s right to request injunctive or other equitable relief in accordance with Section 6 of this
Agreement.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without
reference to principles of conflicts of laws.
(d) Amendments. No provision of this Agreement may be modified, waived or discharged unless such modification, waiver or
discharge is approved in writing by the Board or a Person authorized thereby and is agreed to in writing by Executive. No waiver by any party
hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No waiver of any provision of this Agreement shall be implied from any course of dealing between or among the parties
hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or series of occasions.
(e) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected
thereby. In the event that one or more terms or provisions of this Agreement are deemed invalid or unenforceable by the laws of Florida or
any other state or jurisdiction in which it is to be enforced, by reason of being vague or unreasonable as to duration or geographic scope of
activities restricted, or for any other reason, the provision in question shall be immediately amended or reformed to the extent necessary to
make it valid and enforceable by the court of such jurisdiction charged with interpreting and/or enforcing such provision. Executive agrees
and acknowledges that the provision in question, as so amended or reformed, shall be valid and enforceable as though the invalid or
unenforceable portion had never been included herein.
(f) Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, by courier service or by certified or registered mail, first-class postage prepaid and return receipt requested, (iii) deemed
to have been received on the date of delivery or, if mailed, on the third business day after the mailing thereof, and (iv) addressed as follows
(or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):
(A) If to the Company, to it at: with a copy to: General Counsel
[insert name of employer] [insert name of employer]
5707 Blue Lagoon Drive 5707 Blue Lagoon Drive
Miami, Florida 33126-2029 Miami, Florida 33126-2029
Attention: Chief People Officer
(B) if to Executive, to his/her residential address as currently on file with the Company.
(g) Voluntary Agreement; No Conflicts. Executive represents that he/she is entering into this Agreement voluntarily and that
Executive’s employment hereunder and compliance with the terms and conditions of this Agreement will not conflict with or result in the
breach by Executive of any agreement to which he/she is a party or by which he/she or his/her properties or assets may be bound.
(h) Counterparts/Facsimile. This Agreement may be executed in counterparts (including by facsimile), each of which shall be deemed
an original and all of which together shall constitute one and the same instrument.
(i) Headings. The section and other headings contained in this Agreement are for the convenience of the parties only and are not
intended to be a part hereof or to affect the meaning or interpretation hereof.
(j) Employment Agreement. For the avoidance of doubt, this Agreement will constitute an “employment agreement” as such term
may be defined in any equity award agreement issued in connection with the common stock of Restaurant Brands International Inc. or any of
its Affiliates.
(k) Certain other Definitions.
“Affiliate”: with respect to any Person, means any other Person that, directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with the first Person, including but not limited to a Subsidiary of any such Person.
“Control”: (including, with correlative meanings, the terms “Controlling”, “Controlled by” and “under common Control
with”): with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Person”: any natural person, firm, partnership, limited liability company, association, corporation, company, trust, business
trust, governmental authority or other entity.
“Subsidiary”: with respect to any Person, each corporation or other Person in which the first Person owns or Controls, directly
or indirectly, capital stock or other ownership interests representing fifty percent (50%) or more of the combined voting power of the
outstanding voting stock or other ownership interests of such corporation or other Person.
“Successor”: of a Person means a Person that succeeds to the first Person’s assets and liabilities by merger, liquidation,
dissolution or otherwise by operation of law, or a Person to which all or substantially all the assets and/or business of the first Person are
transferred.
IN WITNESS WHEREOF, the Company has duly executed this Agreement by its authorized representatives, and Executive has hereunto set
his/her hand, in each case effective as of the date first above written.
[INSERT NAME OF EMPLOYER]
By: _______________________________
Name: [insert name]
Title: [insert title]
Executive:
_______________________________
[insert name]
ATTACHMENT 1
[INSERT NAME OF EMPLOYER]
EMPLOYEE CONSENT TO COLLECTION
AND PROCESSING OF PERSONAL INFORMATION
[insert name of employer] (“the Company”) has informed me that the Company, on behalf of itself and its affiliates, including those operating
restaurants under the BURGER KING®, TIM HORTONS® and POPEYES® brands (collectively, the “Affiliates”), collects, retains,
processes, uses, transfers and discloses by employees, consultants and/or services providers of Company my personal information only for
human resource and business purposes such as payroll administration, background checks, fulfilment of employment positions, fulfilment of
your direct requests, maintaining accurate records, compliance with applicable law and meeting governmental reporting requirements,
compiling internal reports, including diversity and distribution metrics, security, health, benefits, and safety management, performance
assessment and management, provision of services, company network access and authentication. I understand the Company will treat my
personal data as confidential and will not permit unauthorized access to this personal data. I HEREBY CONSENT to the Company collection,
retention, processing, use, transfer and disclosure of my personal information for such purposes described in this statement.
I understand and consent to the transfer and storage of my personal data for the purposes described in this statement to the corporate offices of
the Company and its Affiliates (currently located in Toronto, Ontario, Canada; Miami, Florida, United States of America; Mexico City,
Mexico; Singapore, and Baar, Switzerland), and to other third parties, agents, processors and representatives who may be located in countries
outside my home country or the country in which I work, including countries where data protection laws may differ from those of my home
country.
I further understand the Company and its Affiliates may from time-to-time disclose, transfer and store my personal information to or with a
third party consultant, processor or service provider acting on the behalf of Company or its Affiliates or at the Company’s direction. These
third parties will be required to use appropriate measures to protect the confidentiality and security of personal information.
To the extent the personal information I provide the Company contains details of my: racial or ethnic origin, physical or mental health or
condition, job evaluations or educations records, commission (or alleged commission) of an offence or related proceedings, political opinions
or beliefs, religious beliefs, sex life, membership in a trade union or political party, I expressly authorize the Company and its Affiliates to
handle such details for the sole human resource and business reasons set forth in this statement.
The Company also may disclose personal information about me in order to: (1) protect the legal rights, privacy, safety or property of the
Company, its Affiliates, or its employees, agents, contractors, customers or the public; (2) protect the safety and security of guests to our
digital and physical properties; (3) protect against fraud or other illegal activity or for risk management purposes; (4) respond to inquiries or
requests from public or legal authorities, including to meet national security or law enforcement requirements; (5) permit the Company to
pursue available remedies or limit the damages that we may sustain; (6) respond to an emergency; (7) comply with the law or legal process;
(8) effect a license, sale or transfer of all or a portion of the business or assets (including in connection with any bankruptcy or similar
proceedings); or (9) manage or arrange for acquisitions, mergers and re-organizations.
The provision of my personal information is voluntary. Please note, however, that the failure to provide sufficient information may results in
the Company being unable to perform necessary human resource and business actions.
The Company commits to resolve complaints about my privacy and its collection or use of my personal information. If I have concerns or
complaints about the use of my personal information, or if I choose to exercise my right to withdraw your consent set forth in this statement,
please contact us at the following email address: privacy@rbi.com or contacting the Company at:
[insert name of employer]
Address: 5707 Blue Lagoon Drive, Miami, FL, 33126
Attn: Legal Department – Privacy Office
__________________________
[print name]
Date:
1011778 B.C. Unlimited Liability Company
NEW RED FINANCE, INC.
$750,000,000
3.500% First Lien Senior Secured Notes due 2029
Purchase Agreement
EXHIBIT 10.76
October 20, 2020
J.P. Morgan Securities LLC
as Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
1011778 B.C. Unlimited Liability Company, an unlimited liability company organized under the laws of British Columbia (the
“Company”), and New Red Finance, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Company (the “Co-Issuer”
and, together with the Company, the “Issuers” and each, individually, an “Issuer”), propose, subject to the terms and conditions stated herein,
to issue and sell to the several initial purchasers listed in Schedule 1 hereto (the “Initial Purchasers”), for whom you are acting as
representative (the “Representative”), $750,000,000 aggregate principal amount of their 3.500% First Lien Senior Secured Notes due 2029
(the “Securities”). The Securities will be issued pursuant to an Indenture to be dated as of the Closing Date (as defined in Section 2 hereof)
(the “Indenture”) among the Issuers, certain subsidiaries of the Issuers listed on Schedule 2 hereto (the “Guarantors”) and Wilmington Trust,
National Association, as trustee (in such capacity, the “Trustee”) and as collateral agent (in such capacity, the “Collateral Agent”), and will be
guaranteed on a senior secured first priority basis by each of the Guarantors (the “Guarantees”).
The Securities and the Guarantees will be secured by a first-priority lien (which will be pari passu in right of payment and security
with the liens securing obligations in respect of the Credit Agreement (as defined below) and the Existing First Lien Notes (as defined
below)), subject to certain Permitted Liens (as defined below), on substantially all of the tangible and intangible assets of the Issuers and the
Guarantors, now owned or hereafter acquired by either of the Issuers or any Guarantor, that secure borrowings under the Credit Agreement on
a pari passu first-priority basis, subject to certain exceptions described in the Time of Sale Information and the Offering Memorandum (each
as defined below) (the “Collateral”). The Collateral shall be described in (a) with respect to fee-owned real property that constitutes
Collateral, the mortgages, debentures, hypothecs, deeds of trust or deeds to secure debt (collectively, the “Mortgages”) pursuant to the terms
of Schedule 3 hereto, (b) with respect to personal property that constitutes Collateral, that certain U.S. security agreement, dated as of the
Closing Date (as defined below) (as amended, supplemented or otherwise modified from time to time, the “U.S. Security Agreement”), by
and among the Co-Issuer, the Guarantors party thereto and the Collateral Agent, that certain Canadian security agreement, dated as of the
Closing Date (as amended, supplemented or otherwise modified from time to time, the “Canadian Security Agreement”), by and among the
Company, the Guarantors party thereto and the Collateral Agent, and that certain deed of hypothec (Quebec), dated,
subject to Schedule 3, as of or prior to the Closing Date (as amended, supplemented or otherwise modified from time to time, the “Deed of
Hypothec” and, together with the Canadian Security Agreement and the U.S. Security Agreement, the “Security Agreements”) by and among
the Guarantors party thereto and the Collateral Agent, and (c) with respect to the grants of security interest in registrations and/or applications
for trademarks, patents and copyrights (and exclusive licenses in any of the foregoing) in the Intellectual Property Security Agreements (as
defined below), granting a first-priority security interest in the Collateral, subject to Permitted Liens, for the benefit of the Collateral Agent,
the Trustee and each holder of the Securities and the successors and assigns of the foregoing (collectively, the “Secured Parties”). The term
“Collateral Documents” as used herein shall mean the Mortgages, the Security Agreements, the Intellectual Property Security Agreements
and the Intercreditor Agreements (as defined below).
The rights of the holders of the Securities with respect to the Collateral shall be further governed by:
(i) that certain Intercreditor Agreement, dated as of December 12, 2014, between Wilmington Trust, National Association, as
collateral agent for the holders of the Issuers’ (redeemed) $2,250,000,000 6.00% Second Lien Senior Secured Notes due 2022, and the Credit
Facilities Agent (as defined below), as supplemented by (q) that certain Joinder No. 1, dated as of May 22, 2015, between the Credit Facilities
Agent, as First Priority Designated Agent (as defined therein), and Wilmington Trust, National Association, as trustee and collateral agent
(the “2022 First Lien Notes Collateral Agent”) for the holders of the Issuers’ (redeemed) $1,250,000,000 4.625% First Lien Senior Secured
Notes due 2022, (r) that certain Joinder No. 2, dated as of May 17, 2017, between the Credit Facilities Agent, as First Priority Designated
Agent (as defined therein), and Wilmington Trust, National Association, as collateral agent (the “2024 First Lien Notes Collateral Agent”) for
the holders of the Issuers’ $1,500,000,000 aggregate principal amount of 4.250% First Lien Senior Secured Notes due 2024 (the “2024 First
Lien Notes”), (s) that certain Joinder No. 3, dated as of August 28, 2017, between the Credit Facilities Agent, as First Priority Designated
Agent (as defined therein), and Wilmington Trust, National Association, as collateral agent for the holders of the Issuers’ $1,300,000,000
aggregate principal amount of 5.000% Second Lien Senior Secured Notes due 2025 (the “2025 Second Lien Notes”), (t) that certain Joinder
No. 4, dated as of October 4, 2017, between the Credit Facilities Agent, as First Priority Designated Agent (as defined therein), and
Wilmington Trust, National Association, as collateral agent for the holders of the Issuers’ $1,500,000,000 aggregate principal amount of
5.000% Second Lien Senior Secured Notes due 2025 (the “Additional 2025 Second Lien Notes”), (u) that certain Joinder No. 5, dated as of
September 24, 2019, between the Credit Facilities Agent, as First Priority Designated Agent (as defined therein), and Wilmington Trust,
National Association, as collateral agent (the “2028 First Lien Notes Collateral Agent”) for the holders of the Issuers’ $750,000,000 aggregate
principal amount of 3.875% First Lien Senior Secured Notes due 2028 (the “2028 First Lien Notes”), (v) that certain Joinder No. 6, dated as
of November 19, 2019, between the Credit Facilities Agent, as First Priority Designated Agent (as defined therein), and Wilmington Trust,
National Association, as collateral agent for the holders of the Issuers’ $750,000,000 aggregate principal amount of 4.375% Second Lien
Senior Secured Notes due 2028 (the “2028 Second Lien Notes”), (w) that certain Joinder No. 7, dated as of April 7, 2020, between the Credit
Facilities Agent, as First Priority Designated Agent (as defined therein), and Wilmington Trust, National Association, as collateral agent (the
“2025 First Lien Notes Collateral Agent”) for the holders of the Issuers’ $500,000,000 aggregate principal amount of 5.750% First Lien
Senior Secured Notes due 2025 (the “2025 First Lien Notes” and, together with the 2024 First Lien Notes and the 2028 First Lien Notes, the
“Existing First Lien Notes”), (x) that certain Joinder No. 8, dated as of October 5, 2020, between the Credit Facilities Agent, as First Priority
Designated Agent (as defined therein), and Wilmington Trust, National Association, as collateral agent for the holders of the Issuers’
$1,400,000,000 aggregate principal amount of 4.000% Second Lien Senior Secured Notes due 2030 (the “2030 Second Lien Notes”), (y) that
certain Joinder No. 9, to be dated as of November 2, 2020, between the Credit Facilities
Agent, as First Priority Designated Agent (as defined therein), and Wilmington Trust, National Association, as collateral agent for the holders
of the Issuers’ $1,500,000,000 aggregate principal amount of 4.000% Second Lien Senior Secured Notes due 2030 (the “Additional 2030
Second Lien Notes”, and, together with the 2025 Second Lien Notes, the Additional 2025 Second Lien Notes, and the 2030 Second Lien
Notes, the “Second Lien Notes”), and (z) that certain Joinder No. 10 (the “First Lien-Second Lien Intercreditor Agreement Joinder No. 10”),
to be dated as of the Closing Date, between the Credit Facilities Agent, as First Priority Designated Agent (as defined therein), and the
Collateral Agent (collectively, the “First Lien-Second Lien Intercreditor Agreement”),
(ii) that certain Intercreditor Agreement, dated as of May 22, 2015, between the 2022 First Lien Notes Collateral Agent and the Credit
Facilities Agent and acknowledged by the Issuers and the Guarantors (the “Existing First Lien Intercreditor Agreement”), as supplemented by
(w) that certain Joinder No. 1, dated as of May 17, 2017, by the 2024 First Lien Notes Collateral Agent and acknowledged by the Credit
Facilities Agent, as Applicable Authorized Representative (as defined therein), the Issuers and the Guarantors (the “First Lien Intercreditor
Agreement Joinder No. 1”), (x) that certain Joinder No. 2, dated as of September 24, 2019, by the 2028 First Lien Notes Collateral Agent and
acknowledged by the Credit Facilities Agent, as Applicable Authorized Representative (as defined therein), the Issuers and the Guarantors
(the “First Lien Intercreditor Agreement Joinder No. 2”), (y) that certain Joinder No. 3, dated as of April 7, 2020, by the 2025 First Lien
Notes Collateral Agent and acknowledged by the Credit Facilities Agent, as Applicable Authorized Representative (as defined therein), the
Issuers and the Guarantors (the “First Lien Intercreditor Agreement Joinder No. 3”), and (z) that certain Joinder No. 4 to be dated as of the
Closing Date by the Collateral Agent and acknowledged by the Credit Facilities Agent, as Applicable Authorized Representative (as defined
therein), the Issuers and the Guarantors (the “First Lien Intercreditor Agreement Joinder No. 4” and, together with the Existing First Lien
Intercreditor Agreement, the First Lien Intercreditor Agreement Joinder No. 1, the First Lien Intercreditor Agreement Joinder No. 2 and the
First Lien Intercreditor Agreement Joinder No. 3, the “First Lien Intercreditor Agreement”), and
(iii) that certain Fifth Amended and Restated Intercreditor Agreement to be dated as of the Closing Date, among the Collateral Agent,
the 2024 First Lien Notes Collateral Agent, the 2028 First Lien Notes Collateral Agent, the 2025 First Lien Notes Collateral Agent, the Credit
Facilities Agent, The TDL Group Corp. (as successor in interest to Tim Hortons Inc.) (“TDL”) and BNY Trust Company of Canada, in its
capacity as collateral agent (the “Existing THI Notes Agent”) for the holders under that certain Trust Indenture, dated as of June 1, 2010 (as
amended, modified or supplemented to the date hereof, the “Existing THI Notes Indenture”), governing the 4.52% Senior Unsecured Notes,
Series 2, due December 1, 2023 (the “Existing THI Notes”) of TDL (the “THI Notes Intercreditor Agreement” and together with the First
Lien-Second Lien Intercreditor Agreement and the First Lien Intercreditor Agreement, the “Intercreditor Agreements”).
As described in the Time of Sale Information and the Offering Memorandum under the caption “Use of proceeds,” the Issuers expect
to use the net proceeds of the offering of the Securities to redeem a portion of the 2024 First Lien Notes and to pay related fees and expenses.
The issuance and sale of the Securities and the use of proceeds therefrom as described above and the execution and delivery of this
Agreement, the Indenture (including each Guarantee set forth therein), the Securities and the Collateral Documents (such documents,
collectively, the “Transaction Documents”), in each case including the transactions contemplated thereby, are herein collectively referred to
as the “Transactions.”
The Securities will be sold to the Initial Purchasers who may resell all or a portion of the Securities to purchasers (“Subsequent
Purchasers”) without being registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption
therefrom and without the filing of a prospectus with any securities commission or other securities regulatory authority in any province or
territory of Canada under the applicable securities laws of each of the provinces and territories of Canada and the respective regulations and
rules made thereunder together with all applicable published policy statements, notices, blanket orders and rulings of each such jurisdiction’s
securities regulatory authorities (collectively, the “Canadian Securities Laws”). A portion of the Securities may be offered and sold in the
provinces of British Columbia, Alberta, Ontario and Quebec (collectively, the “Offering Provinces”) on a private placement basis to
“accredited investors”, as defined in National Instrument 45-106 – Prospectus Exemptions (“NI 45-106”) or, in Ontario, as defined in Section
73.3(1) of the Securities Act (Ontario) (except, in each case, for the criteria set out in paragraph (j), (k) or (l) of such definition in NI 45-106)
that are also “permitted clients”, as defined in Section 1.1 of National Instrument 31-103 – Registration Requirements, Exemptions and
Ongoing Registrant Obligations (“NI 31-103”), in reliance upon the “accredited investor” exemption from the prospectus requirements of the
applicable Canadian Securities Laws provided for in section 2.3 of NI 45-106 or, in Ontario, subsection 73.3(2) of the Securities Act
(Ontario) (such offer and sale, the “Canadian Private Placement”). The Issuers and the Guarantors have prepared a preliminary offering
memorandum dated October 20, 2020 (the “Preliminary Offering Memorandum”) and will prepare an offering memorandum dated the date
hereof (the “Offering Memorandum”) setting forth information concerning the Issuers, the Guarantors (including each of their respective
subsidiaries), the Securities and the Guarantees. Copies of the Preliminary Offering Memorandum have been, and copies of the Offering
Memorandum will be, delivered by the Issuers to the Initial Purchasers pursuant to the terms of this Purchase Agreement (this “Agreement”).
The Issuers hereby jointly and severally represent that they have authorized the use of the Preliminary Offering Memorandum, the other Time
of Sale Information (as defined below) and the Offering Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in the manner contemplated by this Agreement. Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Time of Sale Information. References herein to the Preliminary Offering Memorandum, the Time of Sale
Information and the Offering Memorandum shall be deemed to refer to and include any document incorporated by reference therein and any
reference to “amend,” “amendment” or “supplement” with respect to the Preliminary Offering Memorandum or the Offering Memorandum
shall be deemed to refer to and include any documents filed after such date and incorporated by reference therein.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the Issuers shall have prepared the following
information (collectively, the “Time of Sale Information”): the Preliminary Offering Memorandum, as supplemented and amended by the
written communications listed on Annex A hereto.
Each of the Issuers and the Guarantors hereby jointly and severally agrees with the several Initial Purchasers concerning the purchase
and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements set forth herein, the Issuers
jointly agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser,
on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Issuers the respective principal amount of the Securities set forth opposite such Initial
Purchaser’s name in Schedule 1 hereto at a price equal to 99.385% of the principal amount thereof plus accrued interest, if any, from
November 9, 2020 to the Closing Date. The Issuers will not be obligated to deliver any of the Securities except upon payment for all
the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Time of Sale
Information. Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
i.
ii.
it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “QIB”) and an
accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
neither it nor any person engaged by it has solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of
the Securities Act; and
iii.
neither it nor any person engaged by it has solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Securities as part of their initial offering except:
(A) to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the
Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable steps to
ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; or
(B) in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Issuers and, for purposes of the “no registration” opinions (and equivalent
exempt distribution opinions in respect of the Canadian Private Placement) to be delivered to the Initial Purchasers pursuant to Section 6(f)(i)
and Section 6(f)(ii) and Section 6(g), counsel for the Issuers and counsel for the Initial Purchasers, respectively, may rely upon the accuracy
of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in
paragraph (b) above (including Annex C hereto) and Section 5, and each Initial Purchaser hereby consents to such reliance.
(d) Each Issuer and each of the Guarantors acknowledge and agree that the Initial Purchasers may offer and sell Securities to or
through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial
Purchaser; provided that such offers and sales shall be made in accordance with the provisions of this Agreement (including Annex C hereto).
(e) The Issuers and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s-
length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or agent of, the Issuers, the Guarantors or
any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other
person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with
their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the
transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to
the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors,
any other person and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any
other person. The Issuers and the Guarantors agree that they will not claim that the Initial Purchasers, or any of them, have rendered services
of any nature, or
owe a fiduciary or similar duty to the Issuers or the Guarantors, in connection with the purchase and sale of the Securities pursuant to this
Agreement or the process leading thereto.
2. Payment and Delivery. (a) Payment for and delivery of the Securities will be made at the offices of Cahill Gordon & Reindel llp at
10:00 a.m., New York City time, on November 9, 2020, or at such other time or place on the same or such other date as the
Representative and the Issuers may agree upon in writing not later than the fifth business day thereafter. The time and date of such
payment and delivery is referred to herein as the “Closing Date.”
(b) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Issuers
to the Representative against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Initial Purchasers, of
one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer and other stamp, excise or similar
taxes payable in connection with the sale of the Securities duly paid by the Issuers. The Global Note will be made available for inspection by
the Representative not later than 1:00 p.m., New York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors hereby jointly and severally
represents and warrants to each Initial Purchaser that:
a. Preliminary Offering Memorandum, Time of Sale Information and Offering Memorandum. The Preliminary Offering
Memorandum, as of its date, did not, the Time of Sale Information, at the Time of Sale, did not, and at the Closing Date, will
not, and the Offering Memorandum, at the time first used by the Initial Purchasers to confirm sales of the Securities and as of
the Closing Date, will not, contain any Misrepresentation; provided that the Issuers and the Guarantors make no
representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Issuers or the Guarantors in writing by or on behalf of such
Initial Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum, the Time of Sale
Information or the Offering Memorandum. For the purposes of this Agreement, “Misrepresentation” means an untrue
statement of a material fact or an omission to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
b. Additional Written Communications. Neither the Issuers nor the Guarantors (including their respective agents and
representatives, other than the Initial Purchasers in their capacity as such) have prepared, used, authorized or approved, nor
will they prepare, use, authorize or approve, any written communication that constitutes an offer to sell or solicitation of an
offer to buy the Securities (each such communication by an Issuer, the Guarantors or their respective agents and
representatives (other than a communication referred to in clauses (i), (ii) and (iii) below), an “Issuer Written
Communication”) other than (i) the Preliminary Offering Memorandum, (ii) the Offering Memorandum, (iii) the documents
listed on Annex A hereto, including a term sheet substantially in the form of Annex B hereto, which constitute part of the
Time of Sale Information, and (iv) any electronic road show or other written communications, in each case used in
accordance with Section 4(c) hereof. Each such Issuer Written Communication, when taken together with the Time of Sale
Information at the Time of Sale, did not, and at the Closing Date will not, contain any Misrepresentation; provided that the
Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each
such Issuer Written Communication in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Issuers or the Guarantors in writing by or on behalf of such
Initial Purchaser through the Representative expressly for use in any Issuer Written Communication.
c.
Incorporated Documents. The documents incorporated by reference in each of the Time of Sale Information and the Offering
Memorandum, when filed with the Securities and Exchange Commission (the “Commission”), conformed or will conform, as
the case may be, in all material respects to the requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder, and did not and will not contain any Misrepresentation.
d. Financial Statements. The consolidated financial statements and the related notes thereto of Restaurant Brands International
Inc. (“Parent”) and its subsidiaries and Restaurant Brands International Limited Partnership (the “Partnership”) and its
subsidiaries included or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum
present fairly in all material respects the consolidated financial position of Parent and its subsidiaries and the Partnership and
its subsidiaries, respectively, as of the dates indicated and the results of their operations and the changes in their cash flows
for the periods specified; and such financial statements have been prepared in conformity with U.S. generally accepted
accounting principles, applied on a consistent basis throughout the periods covered thereby (except with respect to FASB
Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with Customers and ASC Topic 842,
Leases); the other financial information included or incorporated by reference in each of the Time of Sale Information and the
Offering Memorandum has been derived from the accounting records of Parent and its subsidiaries and the Partnership and its
subsidiaries, as applicable, and present fairly in all material respects the information shown thereby. The interactive data in
eXtensible Business Reporting Language incorporated by reference in each of the Time of Sale Information and the Offering
Memorandum fairly presents the information called for in all material respects and is prepared in accordance with the
Commission’s rules and guidelines applicable thereto.
e. No Material Adverse Change. Since the date of the most recent financial statements of Parent and its subsidiaries included or
incorporated by reference in each of the Time of Sale Information and the Offering Memorandum except as disclosed in such
financial statements, (i) other than as described in the Time of Sale Information and the Offering Memorandum, there has not
been any change in the capital stock or long-term debt of the Company, the Co-Issuer or any of their respective subsidiaries,
or any dividend or distribution of any kind, other than internal cash distributions, declared, set aside for payment, paid or
made by either Issuer, Parent or the Partnership on any class of capital stock, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the business, assets, management, financial
position or results of operations of the Issuers and their respective subsidiaries taken as a whole; (ii) none of the Company, the
Co-Issuer nor any of their respective subsidiaries has entered into any transaction or agreement that is material to the Issuers
and their respective subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material
to the Issuers and their respective subsidiaries taken as a whole; and (iii) none of the Company, the Co-Issuer nor any of their
respective subsidiaries has sustained any loss or interference with its business that is material to the Company, the Co-Issuer
or any of their respective subsidiaries taken as a whole and that is either from fire, explosion, flood or other calamity, whether
or not covered by
insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in respect of clauses (i), (ii) and (iii) above as otherwise disclosed in each of the Time of Sale
Information and the Offering Memorandum.
f. Organization and Good Standing. The Issuers and each of their respective subsidiaries have been duly organized or formed
and are validly existing and in good standing (if such designation exists in the jurisdiction of organization or formation for
such entity) under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good
standing (if such designation exists in the jurisdiction of organization or formation for such entity) in each jurisdiction in
which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification,
and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to be so qualified, in good standing (if such designation exists in the jurisdiction of
organization or formation for such entity) or have such power or authority would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business, assets, properties, financial position or results of
operations of the Issuers and their respective subsidiaries, taken as a whole, or on the performance by the Issuers and the
Guarantors of their respective obligations under this Agreement, the Securities and the Guarantees (a “Material Adverse
Effect”).
g. Capitalization. At June 30, 2020, on a consolidated basis, after giving pro forma effect to the Transactions, Parent would have
had the capitalization as set forth in each of the Time of Sale Information and the Offering Memorandum under the heading
“Capitalization” and all the outstanding shares of capital stock or other equity interests of Parent and each subsidiary of
Parent, have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign
subsidiary, for directors’ qualifying shares) and, with respect to the subsidiaries, are owned directly or indirectly by Parent
free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any
third party, except in each case pursuant to (i) the Credit Agreement, dated as of October 27, 2014, as amended on May 22,
2015, February 17, 2017, March 27, 2017, May 17, 2017, October 13, 2017, October 2, 2018, September 6, 2019, November
19, 2019 and April 2, 2020, by and among 1013421 B.C. Unlimited Liability Company, an unlimited liability company
organized under the laws of British Columbia, the Issuers, as the borrowers thereunder, JPMorgan Chase Bank, N.A., as
administrative agent and collateral agent (the “Credit Facilities Agent”), and each other party from time to time party thereto
(the “Credit Agreement” and, together with any other documents, agreements or instruments delivered in connection
therewith, collectively, the “Credit Facilities Documentation”), (ii) the documentation governing the Existing First Lien
Notes, (iii) the documentation governing the Second Lien Notes, (iv) the documentation governing the Existing THI Notes or
(v) as disclosed in the Time of Sale Information and the Offering Memorandum.
h. Due Authorization. Each of the Issuers and the Guarantors has, had or will have (as of the date on which it executed and
delivered such document or will execute and deliver such document) full right, power and authority to execute and deliver, in
each case, to the extent a party thereto, this Agreement and each of the other Transaction Documents, and to perform their
respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization,
execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated thereby has been or will be duly and validly
taken on or prior to the Closing Date.
i. The Indenture. The Indenture has been or prior to the Closing Date will be duly authorized by the Issuers and each of the
Guarantors and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Issuers and each of the Guarantors enforceable against the Issuers and each of the
Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, fraudulent
conveyance, reorganization, moratorium, insolvency or similar laws affecting the enforcement of creditors’ rights generally or
by equitable principles (whether considered in a proceeding in equity or law) relating to enforceability (collectively, the
“Enforceability Exceptions”).
j. The Securities and the Guarantees. The Securities have been or prior to the Closing Date will be duly authorized by each
Issuer and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, the Securities will be duly and validly issued and outstanding and will constitute valid and legally binding obligations
of each Issuer enforceable against each Issuer in accordance with their terms, subject to the Enforceability Exceptions, and
will be entitled to the benefits of the Indenture. The Guarantees have been duly authorized by each of the Guarantors and,
when the Securities have been duly executed, authenticated, issued and delivered by the Issuers as provided in the Indenture
and paid for as provided herein, the Guarantees will be valid and legally binding obligations of each of the Guarantors,
enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will
be entitled to the benefits of the Indenture.
k. Purchase Agreement. This Agreement has been duly authorized, executed and delivered by the Issuers and each of the
Guarantors.
l. Collateral Documents. Each of the Collateral Documents has been or prior to the Closing Date will be duly authorized by
each Issuer and each of the Guarantors, to the extent a party thereto, and, subject to Schedule 3, on the Closing Date, each of
the Collateral Documents will be duly executed and delivered in accordance with its terms by each Issuer and each of the
Guarantors, to the extent a party thereto, and, when duly executed and delivered in accordance with its terms by each of the
parties thereto, each of the Collateral Documents will constitute a valid and legally binding agreement of each Issuer and each
of the Guarantors, to the extent a party thereto, enforceable against each Issuer and each of the Guarantors, to the extent a
party thereto, in accordance with its terms, subject to the Enforceability Exceptions.
m. Collateral Documents, Financing Statements and Collateral.
(i) Upon execution and delivery, the Mortgages will be effective to grant a legal, valid and enforceable
mortgage lien, charge and security interest on all of the mortgagor’s right, title and interest in the real property (including fixtures) that
constitutes Collateral (each, a “Mortgaged Property” and, collectively, the “Mortgaged Properties”). When the Mortgages are duly recorded
or registered in the proper recording or Land Registry offices or appropriate public records and the mortgage recording fees and taxes in
respect thereof are paid and compliance is otherwise had with the formal requirements of state, provincial or local law, applicable to the
recording or registration of real estate mortgages generally, each such Mortgage shall constitute a validly perfected and enforceable first-
priority lien, charge and security interest in the related Mortgaged Property constituting Collateral for the benefit
of the Collateral Agent, the Trustee and the holders of the Securities, subject only to Permitted Liens (as defined below) or liens and
encumbrances expressly set forth as an exception to the policies of title insurance, if any, obtained to insure the lien of each Mortgage with
respect to each of the Mortgaged Properties (such encumbrances and exceptions, the “Permitted Exceptions”), and to the Enforceability
Exceptions;
(ii) Upon execution and delivery, the Security Agreements will be effective to grant a legal, valid and enforceable lien
and security interest in all of the grantor’s right, title and interest in the Collateral (other than the Mortgaged Properties) (the “Personal
Property Collateral”) to the Collateral Agent for the benefit of the Secured Parties to secure the obligations under the Indenture and the
Securities;
(iii) Upon due and timely filing and/or recording of the financing statements and the short form intellectual property
security agreements (the “Intellectual Property Security Agreements”), as applicable, with respect to the Personal Property Collateral, the
security interests granted by the Security Agreements will constitute valid, perfected first-priority liens and security interests in the Personal
Property Collateral, to the extent such liens and security interests can be perfected by the filing and/or recording, as applicable, of financing
statements and the Intellectual Property Security Agreements in favor of the Collateral Agent for the benefit of the Secured Parties, and such
security interests will be enforceable in accordance with the terms contained therein against all creditors of any grantor and subject only to
liens expressly permitted to be incurred or exist on the Collateral under the Indenture (which, for the avoidance of doubt, includes, without
limitation, liens granted under the TH Facility (as defined below)) or Permitted Exceptions, and to the Enforceability Exceptions (“Permitted
Liens”); and
collaterally assign rights in the Collateral, free and clear of any liens other than the Permitted Exceptions and the Permitted Liens.
(iv) The Issuers and their respective subsidiaries collectively own, have rights in or have the power and authority to
n. Descriptions of the Transaction Documents. Each of the Transaction Documents conforms in all material respects to the
description thereof contained in each of the Time of Sale Information and the Offering Memorandum (to the extent described
therein).
o. No Violation or Default. None of the Issuers nor any of their respective subsidiaries is (i) in violation of its articles, charter or
by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuers or any of their
respective subsidiaries is a party or by which the Issuers or any of their respective subsidiaries is bound or to which any of the
property or assets of the Issuers or any of their respective subsidiaries is subject; or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case
of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
p. No Conflicts. The execution, delivery and performance by each Issuer and each of the Guarantors of each of the Transaction
Documents to which each is a party (including but not limited to, the issuance and sale of the Securities (including the
Guarantees)), and compliance by each Issuer and each of the Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Issuers or any of their respective subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuers or any of their
respective subsidiaries is a party or by which the Issuers or any of their respective subsidiaries is bound or to which any of the
property or assets of the Issuers or any of their respective subsidiaries is subject (other than any lien, charge or encumbrance
created or imposed pursuant to the Transaction Documents), (ii) result in any violation of the provisions of the articles,
charter or by-laws or similar organizational documents of the Issuers or any of their respective subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien,
charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
q. No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by each Issuer and
each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities
(including the Guarantees) and compliance by each Issuer and each of the Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals,
authorizations, orders and registrations or qualifications (A) as may be required (i) under applicable state securities laws and
Canadian Securities Laws in connection with the purchase and resale of the Securities by the Initial Purchasers, (ii) with
respect to perfection of security interests on the Collateral as required under the Transaction Documents and (iii) that if not
obtained or made would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (B)
as have been obtained or made prior to the Closing Date.
r. Legal Proceedings. Except as described in each of the Time of Sale Information and the Offering Memorandum, there are no
legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Issuers or any of their
respective subsidiaries is or may be a party or to which any property of the Issuers or any of their respective subsidiaries is or
may be the subject that, individually or in the aggregate, if determined adversely to the Issuers or any of their respective
subsidiaries, could reasonably be expected to have a Material Adverse Effect, and no order, ruling or determination having
the effect of suspending the sale or ceasing the trading of any securities of either Issuer or any of the Guarantors has been
issued or made by any court, securities regulatory authority or stock exchange or any other regulatory authority and is
continuing in effect; and no such investigations, actions, suits or proceedings are, to the knowledge of each Issuer and each of
the Guarantors, threatened or contemplated by any governmental or regulatory authority or by others.
Independent Auditors. KPMG LLP (“KPMG”), who has certified certain financial statements of Parent and its subsidiaries
and the Partnership and its subsidiaries, is an independent registered public accounting firm with respect to Parent and its
subsidiaries and the Partnership and its subsidiaries within the applicable rules and regulations
s.
adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the
Securities Act.
t. Title to Real and Personal Property. The Issuers and their respective subsidiaries have good and marketable title (in the
case of real property, in fee simple) to, or have valid rights to lease or otherwise use, all items of real and personal property
that are material to the respective businesses of the Issuers and their respective subsidiaries, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title except for those that (i) would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, (ii) are created pursuant to the Transaction Documents
or the Credit Facilities Documentation or (iii) are created pursuant to the documentation governing the Existing First Lien
Notes, the Second Lien Notes, the Existing THI Notes or the Amended and Restated Credit Agreement, dated as of May 24,
2019 (the “TH Facility”), among The TDL Group Corp./Groupe TDL Corporation, Bank of Montreal, as Administrative
Agent, and the lenders referred to therein, as amended, modified, supplemented or replaced from time to time.
u.
Intellectual Property. Except as otherwise disclosed in the Time of Sale Information and the Offering Memorandum, the
Issuers and their respective subsidiaries own or possess adequate rights to use all material patents, trademarks, service marks,
trade names, trademark registrations, service mark registrations and other indicia of origin, copyrights, works of authorship,
all applications and registrations for the foregoing, domain names and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of
their respective businesses as currently conducted, free of liens (other than liens created pursuant to the Transaction
Documents, the Credit Facilities Documentation and the documentation governing the Existing First Lien Notes, the Second
Lien Notes or the Existing THI Notes); to the knowledge of the Issuers and the Guarantors, the conduct of their respective
businesses does not infringe or otherwise violate any such rights of others (except for such infringements or other violations
as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect); to the
knowledge of each Issuer and each of the Guarantors, no third party violates or infringes the intellectual property owned by
the Issuers or any of their respective subsidiaries except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and none of the Issuers or their respective subsidiaries have received any written
notice of any claim of infringement or other violation of any such rights of others that, if determined in a manner adverse to
the Issuers or their respective subsidiaries, would, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
v. No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Issuers and any of their
respective subsidiaries, on the one hand, and the directors, officers, stockholders or other affiliates of the Issuers or any of
their respective subsidiaries, on the other, that is required by the Securities Act to be described in a registration statement to
be filed with the Commission and that is not so described in each of the Time of Sale Information and the Offering
Memorandum.
w. Investment Company Act. None of the Issuers nor any of the Guarantors is, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in each of the Time of Sale Information and the
Offering
Memorandum, none of them will be required to be registered as an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
x. Taxes.
A. The Issuers and each of their respective subsidiaries have paid all federal, provincial, state, local and foreign
taxes (including any related interest, penalties and additions to tax) due and payable by them (including in
their capacity as withholding agent) and have filed all tax returns required to be filed (taking into account any
validly-obtained extension of the time within which to file) except for (i) items being contested in good faith
and by appropriate proceedings for which adequate reserves for taxes have been established in accordance
with generally accepted accounting principles or (ii) where failure to pay or file, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect; and except as otherwise
disclosed in each of the Time of Sale Information and the Offering Memorandum, there is no tax audit,
assessment, deficiency or other claim that has been, or could reasonably be expected to be, asserted against
either Issuer or any of their respective subsidiaries or any of their respective properties or assets, except as
would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
B. Except to the extent that any such payments are made in respect of services physically performed in Canada,
no withholding tax imposed under the Income Tax Act (Canada) (the “Canadian Tax Act”) will be payable in
respect of any payments under this Agreement to an Initial Purchaser other than withholding tax imposed as a
result of the Initial Purchaser (i) carrying on business in Canada for the purposes of the Canadian Tax Act; (ii)
not dealing at arm’s-length with each of the Issuers for the purposes of the Canadian Tax Act and (iii) being a
“specified shareholder” of the Company or not dealing at arm’s length with a “specified shareholder” of the
Company (as defined in the Canadian Tax Act).
y. Licenses and Permits. The Issuers and their respective subsidiaries possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the appropriate federal, provincial, state, local or
foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in each of the Time of Sale Information and the Offering
Memorandum, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; and none of the Issuers nor any of their respective subsidiaries has received
notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe
that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except where such
modification or failure to renew, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
z. No Labor Disputes. No labor disturbance by or dispute with employees of either Issuer or any of their respective subsidiaries
exists or, to the knowledge of the Issuers and each
of the Guarantors, is contemplated or threatened, and none of the Issuers nor any Guarantor is aware of any existing or
imminent labor disturbance by, or dispute with, the employees of any of the Issuers’ or any of their respective subsidiaries’
principal suppliers, contractors or customers, except as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
aa. Compliance with Environmental Laws. (i) The Issuers and their respective subsidiaries (x) are, and were during the applicable
statute of limitations, in compliance with any and all applicable federal, provincial, state, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the protection of human health or safety, the environment, natural
resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”), (y) have
received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them
under applicable Environmental Laws to conduct their respective businesses as currently conducted, and (z) have not received
written notice of any actual or potential liability under or relating to any Environmental Laws, including for the investigation
or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no
knowledge of any event or condition that would reasonably be expected to result in any such notice, that would with respect
to subclause (x), (y) or (z) of this clause (i), individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Issuers or
their respective subsidiaries, except in the case of each of (i) and (ii) above, for any such failure to comply, or failure to
receive required permits, licenses or approvals, written notice, or cost or liability, as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) (x) there are no proceedings that are pending,
or that are to the Issuers’ or the Guarantors’ knowledge contemplated, against the Issuers or any of their respective
subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) none of the Issuers
nor any of the Guarantors has knowledge of any issues regarding compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants,
that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (z) none of the
Issuers and their respective subsidiaries anticipates material capital expenditures relating to any Environmental Laws that
would, individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
bb. Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), for which the Issuers or any member of their respective “Controlled Group” (defined
as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance with
its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the
Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with
respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is
subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no failure to satisfy the minimum funding standard
under Section 412 of the Code or Section 302 of ERISA, whether or not waived, has
occurred or is reasonably expected to occur; (iv) except as otherwise disclosed in the Time of Sale Information and the Offering
Memorandum, the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan); (v) except as otherwise disclosed in the Time of Sale Information
and the Offering Memorandum, each pension plan within the meaning of Section 3(2) of ERISA that is maintained outside the
jurisdiction of the United States satisfies the minimum funding requirements to the extent required by applicable law; (vi) no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vii) none
of the Issuers nor any member of their respective Controlled Group has incurred, nor reasonably expects to incur, any liability under
Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in
respect of a Plan (including a “multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA), and except for where
failure to comply with any of the clauses (i) through (vii) of this paragraph would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
cc. Disclosure Controls. Each of Parent and its subsidiaries and the Partnership and its subsidiaries maintains a system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be
disclosed by Parent or the Partnership, as the case may be, in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to Parent’s or the Partnership’s, as the case
may be, management as appropriate to allow timely decisions regarding required disclosure. Each of Parent and its subsidiaries and
the Partnership and its subsidiaries has carried out evaluations of the effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
dd. Accounting Controls. Each of Parent and its subsidiaries and the Partnership and its subsidiaries maintains systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act and in National Instrument 52-109 – Certification
of Disclosure in Issuers’ Annual and Interim Filings) that comply with the requirements of the Exchange Act and Canadian Securities
Laws and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Each of Parent
and its subsidiaries and the Partnership and its subsidiaries maintains internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific
authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language incorporated by
reference in each of the Preliminary Offering Memorandum, the Time of Sale Information and the Offering Memorandum is prepared
in accordance with the Commission's rules and guidelines applicable thereto. There are no material weaknesses in each of Parent’s
and its subsidiaries’ and the Partnership’s and its subsidiaries’ internal controls.
ee. Insurance. The Issuers and their respective subsidiaries have insurance covering their respective properties, operations, personnel
and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as
the Issuers and their respective subsidiaries believe are adequate to protect their respective businesses; and none of the Issuers or any
of their respective subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
ff. No Unlawful Payments. None of either Issuer or any of their respective subsidiaries, nor any director, officer or employee of either
Issuer or any of their respective subsidiaries nor, to the knowledge of either Issuer or any of the Guarantors, any agent, affiliate or
other person associated with or acting on behalf of either Issuer or any of their respective subsidiaries has (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in
furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic
government official or employee, including of any government-owned or controlled entity or of a public international organization, or
any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate
for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, the
Corruption of Foreign Public Officials Act (Canada) or any applicable law or regulation implementing the OECD Convention on
Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act
2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law of any other relevant jurisdiction; or (iv)
made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without
limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Issuers and their
respective subsidiaries have instituted, maintain and enforce policies and procedures designed to promote and ensure compliance with
all applicable anti-bribery and anti-corruption laws.
gg. Compliance with Money Laundering Laws. The operations of the Issuers and their respective subsidiaries are and have been
conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements
including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act (Canada), the money laundering statutes of all jurisdictions where each Issuer or any of
their respective subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving either Issuer or
any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of either Issuer or any
of the Guarantors, threatened.
hh. Compliance with Sanctions Laws. None of the Issuers nor any of their respective subsidiaries, directors, officers or employees,
nor, to the knowledge of the Issuers or any of the Guarantors, any agent, affiliate or other person associated with or acting on behalf
of the Issuers or any of their respective subsidiaries is currently the subject or the target of any comprehensive sanctions administered
or enforced by the U.S. government (including, without limitation, the
Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without
limitation, the designation as a “specially designated national” or “blocked person”), the Government of Canada, the United Nations
Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor is
any Issuer or any of their respective subsidiaries located, organized or resident in a country or territory that is the subject or target of
comprehensive Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”);
and the Issuers will not, to the extent required to comply with the Sanctions, directly or knowingly, indirectly use the proceeds of the
offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding
or facilitation, is the subject or target of comprehensive Sanctions, (ii) to fund or facilitate any activities of or business in any
Sanctioned Country unless otherwise authorized by law or (iii) in any other manner that will result in a violation by any person
(including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of
comprehensive Sanctions.
ii. Solvency. On and immediately after the consummation of the Transactions, the Issuers and the Guarantors on a consolidated basis
(after giving effect to the issuance of the Securities, the Transactions and the other transactions related thereto as described in each of
the Time of Sale Information and the Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means,
with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the
Issuers and the Guarantors is not less than the total amount required to pay the liabilities of the Issuers and the Guarantors on their
combined total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Issuers and
the Guarantors are able to realize upon their assets and pay their debts and other liabilities, contingent obligations and commitments
as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as
contemplated by this Agreement and the use of proceeds therefrom as described in the Time of Sale Information and the Offering
Memorandum, the Issuers and the Guarantors are not incurring debts or liabilities beyond their ability to pay as such debts and
liabilities mature; (iv) the Issuers and the Guarantors are not engaged in any business or transaction, and do not propose to engage in
any business or transaction, for which their property would constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which the Issuers and their respective subsidiaries are engaged; and (v) the Issuers and the
Guarantors are not defendants in any civil action that would result in a judgment that the Issuers and the Guarantors are or would
become unable to satisfy.
jj. No Restrictions on Subsidiaries. On the Closing Date and assuming consummation of the Transactions, no subsidiary of the Issuers
will be prohibited, directly or indirectly, under any agreement or other instrument to which it is as of the Closing Date (assuming
consummation of the Transactions) a party or will be subject, from paying any dividends to the Issuers, from making any other
distribution on such subsidiary’s capital stock or similar ownership interests, from repaying to the Issuers any loans or advances to
such subsidiary from the Issuers or such other subsidiary or from transferring any of such subsidiary’s properties or assets to the
Issuers or any other subsidiary of the Issuers, except (i) to the extent such restriction or prohibition would constitute a Permitted Lien
under and as defined in the Indenture, the other Transaction Documents, the Credit Facilities Documentation or the documentation
governing the Existing First Lien Notes, the Second Lien Notes, the Existing THI Notes or the TH Facility or (ii) as disclosed in the
Time of Sale Information and the Offering Memorandum or as created under the
Transaction Documents, the Credit Facilities Documentation or the documentation governing the Existing First Lien Notes, the
Second Lien Notes, the Existing THI Notes or the TH Facility.
kk. No Broker’s Fees. None of either Issuer nor any of their respective subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Initial
Purchaser for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
ll. Rule 144A Eligibility. On the Closing Date, the Securities will not be of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in an automated inter-dealer quotation system; and each of the
Preliminary Offering Memorandum and the Offering Memorandum, as of its respective date, contains or will contain all the
information that, if requested by a prospective purchaser of the Securities, would be required to be provided to such prospective
purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
mm. No Integration. None of the Issuers, the Guarantors nor any of their respective affiliates (as defined in Rule 501(b) of Regulation
D) has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security
(as defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
nn. No General Solicitation or Directed Selling Efforts. None of the Issuers, the Guarantors nor any of their respective affiliates or
any other person acting on its or their behalf (other than the Initial Purchasers, as to which no representation is made) has (i) solicited
offers for, or offered or sold, the Securities by means of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act
or (ii) engaged in any directed selling efforts within the meaning of Regulation S under the Securities Act (“Regulation S”), and all
such persons have complied with the offering restrictions requirement of Regulation S.
oo. Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in
Section 1(b) (including Annex C hereto) and Section 5 and their compliance with their agreements set forth therein, it is not
necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery of the
Securities by the Initial Purchasers to Subsequent Purchasers in the manner contemplated by this Agreement, the Time of Sale
Information and the Offering Memorandum, to register the Securities under the Securities Act nor to file a prospectus under Canadian
Securities Laws to qualify the distribution of the Securities or to qualify the Indenture under the Trust Indenture Act of 1939, as
amended.
pp. No Stabilization. None of the Issuers nor any of the Guarantors has taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
qq. Margin Rules. Neither the issuance, sale and delivery of the Securities, nor the consummation of the Transactions or the
application of the proceeds thereof by the Issuers as described in each of the Time of Sale Information and the Offering Memorandum
will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of
Governors.
rr. Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained or incorporated by reference in any of the Time of Sale Information or the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
ss. Statistical and Market Data. Nothing has come to the attention of either Issuer or any Guarantor that has caused such entity to
believe that the statistical and market-related data included or incorporated by reference in each of the Time of Sale Information and
the Offering Memorandum is not based on or derived from sources that are reliable and accurate in all material respects.
tt. Sarbanes-Oxley Act. To the extent applicable, there is and has been no failure on the part of Parent or any of its subsidiaries or the
Partnership or any of its subsidiaries or any of their respective directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
uu. Cybersecurity. Except as disclosed in the Time of Sale Information and the Offering Memorandum, to the knowledge of the
Issuers, the Issuers’ and their respective subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are reasonably believed by the Issuers to be
adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the
Issuers and their respective subsidiaries as currently conducted, and, to the Issuers’ knowledge, are free and clear of all material bugs,
errors, defects, Trojan horses, time bombs, malware and other corruptants. Except as disclosed in the Time of Sale Information and
the Offering Memorandum, to the knowledge of the Issuers, the Issuers and their respective subsidiaries have used reasonable efforts
to establish, implement and maintain commercially reasonable controls, policies, procedures, and safeguards to maintain and protect
their material confidential information and the integrity, continuous operation, redundancy and security of all material IT Systems and
data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection
with their businesses, and except as disclosed in the Time of Sale Information and the Offering Memorandum, to the knowledge of
the Issuers, there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have
been remedied without material cost or liability or the duty to notify any other person, nor are there any known incidents under
internal review or investigation relating to the same. Except as disclosed in the Time of Sale Information and the Offering
Memorandum, to the knowledge of the Issuers, the Issuers and their respective subsidiaries are presently in compliance in all material
respects with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal
Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
4. Further Agreements of the Issuers and the Guarantors. Each of the Issuers and each Guarantor hereby jointly and severally, covenants
and agrees with each Initial Purchaser that:
a. Delivery of Copies. The Issuers will deliver, without charge, to the Initial Purchasers as many copies of the Preliminary
Offering Memorandum, any other Time of Sale
Information, any Issuer Written Communication and the Offering Memorandum (including all amendments and supplements
thereto) as the Representative may reasonably request.
b. Offering Memorandum, Amendments or Supplements. Before finalizing the Offering Memorandum or making or distributing
any amendment or supplement to any of the Time of Sale Information or the Offering Memorandum or filing with the
Commission any document that will be incorporated by reference therein, the Issuers will furnish to the Representative and
counsel for the Initial Purchasers a copy of the proposed Offering Memorandum or such amendment or supplement or
document to be incorporated by reference therein for review, and will not distribute any such proposed Offering
Memorandum, amendment or supplement or file any such document with the Commission to which the Representative
reasonably objects.
c. Additional Written Communications. Before using, authorizing, approving or referring to any Issuer Written Communication
(other than those listed on Annex A), the Issuers will furnish to the Representative and counsel for the Initial Purchasers a
copy of such written communication for review and will not use, authorize, approve or refer to any such written
communication to which the Representative reasonably objects.
d. Notice to the Representative. The Issuers will advise the Representative promptly, and confirm such advice in writing, (i) of
the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the Time of
Sale Information, any Issuer Written Communication or the Offering Memorandum or the initiation or threatening of any
proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the completion of the initial offering of the
Securities by the Initial Purchasers as a result of which any of the Time of Sale Information, any Issuer Written
Communication or the Offering Memorandum as then amended or supplemented would include any Misrepresentation when
such Time of Sale Information, Issuer Written Communication or the Offering Memorandum is delivered to a purchaser; and
(iii) of the receipt by any Issuer of any notice with respect to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and each of the Issuers will use its
reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any of the Time of Sale
Information, any Issuer Written Communication or the Offering Memorandum or suspending any such qualification of the
Securities and, if any such order is issued, will use reasonable best efforts to obtain as soon as possible the withdrawal
thereof.
e. Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result
of which any of the Time of Sale Information as then amended or supplemented would include any Misrepresentation or (ii) it
is necessary to amend or supplement any of the Time of Sale Information to comply with law, the Issuers will promptly notify
the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers such
amendments or supplements to any of the Time of Sale Information (or any document to be filed with the Commission and
incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so
amended or supplemented (including such documents to be incorporated by reference therein) will not contain any
Misrepresentation or so that any of the Time of Sale Information will comply with law.
f. Ongoing Compliance of the Offering Memorandum. If at any time prior to the completion of the initial offering of the
Securities (i) any event shall occur or condition shall exist as a result of which the Offering Memorandum as then amended or
supplemented would include any Misrepresentation when the Offering Memorandum is delivered to a purchaser or (ii) it is
necessary to amend or supplement the Offering Memorandum to comply with law, the Issuers will promptly notify the Initial
Purchasers thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers such
amendments or supplements to the Offering Memorandum as may be necessary so that the statements in the Offering
Memorandum (or any document to be filed with the Commission and incorporated by reference therein) as so amended or
supplemented (including such document to be incorporated by reference therein) will not contain any Misrepresentation when
the Offering Memorandum is delivered to a purchaser or so that the Offering Memorandum will comply with law.
g. Blue Sky Compliance. The Issuers will qualify the Securities for offer and sale under the securities or “blue sky” laws of such
jurisdictions as the Representative shall reasonably request (or, in the case of any offer and sale of the Securities in the
Offering Provinces, rely on applicable exemptions from the prospectus requirements of applicable Canadian Securities Laws
for purposes of the Canadian Private Placement) and will continue such qualifications in effect so long as required for the
offering and resale to Subsequent Purchasers of the Securities; provided that none of the Issuers or any of the Guarantors shall
be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it
would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction, (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise so subject or (iv) file, or obtain a receipt for, a
prospectus with and from any Canadian securities regulator to qualify such offer, sale or delivery of the Securities under any
Canadian Securities Laws.
h. Clear Market. During the period from the date hereof through and including the date that is 60 days after the Closing Date,
each Issuer and each of the Guarantors will not, without the prior written consent of the Representative, offer, sell, contract to
sell, pledge or otherwise dispose of any debt securities issued or guaranteed by either Issuer or any of the Guarantors and
having a term of more than one year (other than the Securities).
i. Use of Proceeds. The Issuers will apply the net proceeds from the sale of the Securities in the manner described in each of the
Time of Sale Information and the Offering Memorandum under the heading “Use of proceeds.”
j.
Supplying Information. While the Securities remain outstanding and are “restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act, each Issuer and each of the Guarantors will, during any period in which the Issuers are not
subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities and
prospective purchasers of the Securities designated by such holders, upon the request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
k. DTC. The Issuers will assist the Initial Purchasers in arranging for the Securities to be eligible for clearance and settlement
through DTC.
l. No Resales by the Issuers, Parent and the Partnership. Until the first anniversary of the Closing Date, each of the Issuers will
not, and will not permit Parent, the Partnership or any of the Issuers’ respective controlled affiliates (as defined in Rule 144
under the
Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased by an
Issuer or any of their respective affiliates and (i) resold in a transaction registered under the Securities Act or (ii) resold in a
transaction exempt from registration under the Securities Act, provided that any Securities transferred under this clause (ii)
must bear the restrictive legend set forth in the Offering Memorandum for at least one year following such resale.
m. No Integration. None of the Issuers nor any of their respective affiliates (as defined in Rule 501(b) of Regulation D) will,
directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as
defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
n. No General Solicitation or Directed Selling Efforts. None of the Issuers nor any of their respective affiliates or any other
person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers
for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the
Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will
comply with the offering restrictions requirement of Regulation S.
o. No Stabilization. None of the Issuers nor any of the Guarantors will take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
p. Perfection of Security Interests. The Issuers and each Guarantor (i) shall complete on or prior to the Closing Date all filings
and other similar actions required in connection with the perfection of first-priority security interests in the Collateral as and
to the extent contemplated by the Indenture and the Collateral Documents and (ii) shall take all actions necessary to maintain
such security interests and to perfect security interests in any Collateral acquired after the Closing Date, in each case as and to
the extent contemplated by the Indenture and the Collateral Documents; provided that the Issuers and the Guarantors may
deliver, furnish and/or cause to be furnished all of the obligations set forth on Schedule 3 hereto within the time periods set
forth therein.
5. Certain Agreements of the Initial Purchasers. Each Initial Purchaser hereby severally and not jointly represents and agrees that it has
not and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an
offer to sell or the solicitation of an offer to buy the Securities other than (i) the Preliminary Offering Memorandum and the Offering
Memorandum, (ii) a written communication that contains either (a) no “issuer information” (as defined in Rule 433(h)(2) under the
Securities Act) or (b) “issuer information” that was included (including through incorporation by reference) in the Time of Sale
Information or the Offering Memorandum, (iii) any written communication listed on Annex A or prepared by the Issuers pursuant to
Section 4(c) above (including any electronic road show), (iv) any written communication prepared by such Initial Purchaser and
approved by the Issuers in advance in writing or (v) any written communication that only contains the terms of the Securities and/or
other information that was included (including through incorporation by reference) or will be included in the Time of Sale
Information or the Offering Memorandum.
6. Conditions of Initial Purchasers’ Obligations. The obligation of each Initial Purchaser to purchase Securities on the Closing Date as
provided herein is subject to the performance by each Issuer and each of the Guarantors of their respective covenants and other
obligations hereunder and to the following additional conditions:
a. Representations and Warranties. The representations and warranties of the Issuers and the Guarantors contained herein shall
be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Issuers, the Guarantors and
their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of
the Closing Date.
b. No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or
guaranteed by any Issuer, Parent, the Partnership or any of their respective subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange
Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by
any Issuer, Parent, the Partnership or any of their respective subsidiaries (other than an announcement with positive
implications of a possible upgrading).
c. No Material Adverse Change. No event or condition described in Section 3(e) hereof shall have occurred or shall exist, which
event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto)
and the Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of
the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the
terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum.
d. Officer’s Certificate. The Representative shall have received on and as of the Closing Date a certificate of an executive
officer of the Company and of each Guarantor who has specific knowledge of the Company’s or such Guarantor’s financial
matters and is satisfactory to the Representative (i) confirming that such officer has carefully reviewed the Time of Sale
Information and the Offering Memorandum and, to the knowledge of such officer, the representations set forth in Sections
3(a), 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Issuers and
the Guarantors in this Agreement are true and correct and that the Issuers and the Guarantors have complied in all material
respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the
Closing Date and (iii) to the effect set forth in paragraphs (b) and (c) above.
e. Comfort Letters. On the date of this Agreement and on the Closing Date, KPMG shall have furnished to the Representative, at
the request of Parent and the Partnership, letters, dated the respective dates of delivery thereof and addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the Representative, containing statements and information of the
type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in each of the Time of Sale Information and the
Offering Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three
business days prior to the Closing Date.
f. Opinion and 10b-5 Statement of Counsel for the Issuers and the Guarantors. (i) Kirkland & Ellis LLP, U.S. counsel for the
Issuers and the Guarantors, shall have furnished to the Representative, at the request of the Issuers, its written opinions and
10b-5 statement, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory
to the Initial Purchasers, (ii) Stikeman Elliott LLP, Canadian counsel for the Issuers and the Guarantors, shall have furnished
to the Representative, at the request of the Issuers, its written opinions, dated the Closing Date and addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and (iii) Greenberg Traurig, P.A., Florida
and Minnesota counsel for the Guarantors, shall have furnished to the Representative, at the request of the Issuers, its written
opinion, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the
Initial Purchasers.
g. Opinion and 10b-5 Statement of Counsel for the Initial Purchasers. The Representative shall have received on and as of the
Closing Date (x) an opinion and 10b-5 statement of Cahill Gordon & Reindel llp, counsel for the Initial Purchasers, and (y) an
opinion of Blake, Cassels & Graydon LLP, Canadian counsel for the Initial Purchasers, in each case with respect to such
matters as the Representative may reasonably request, and such counsel shall have received such documents and information
as they may reasonably request to enable them to pass upon such matters.
h. No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any federal, provincial, state or foreign governmental or regulatory authority that would, as of
the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of
any federal, provincial, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance
or sale of the Securities or the issuance of the Guarantees.
i. Good Standing. The Representative shall have received on and as of the Closing Date satisfactory evidence of the existence or
good standing of each Issuer and each of the Guarantors in their respective jurisdictions of organization and their good
standing in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form
of telecommunication, from the appropriate governmental authorities of such jurisdictions.
j.
Indenture and Securities. The Indenture shall have been duly executed and delivered by a duly authorized officer of each of
the Issuers, each of the Guarantors, the Trustee and the Collateral Agent, and the Securities shall have been duly executed and
delivered by a duly authorized officer of each Issuer and duly authenticated by the Trustee.
k. DTC. The Securities shall be eligible for clearance and settlement through DTC.
l. Collateral Documents. On the Closing Date (or as otherwise permitted by Schedule 3 hereto), the Initial Purchasers shall have
received a counterpart of each Collateral Document (other than the Mortgages and the First Lien Intercreditor Agreement),
including the First Lien-Second Lien Intercreditor Agreement Joinder No. 10, the First Lien Intercreditor Agreement Joinder
No. 4 and the THI Notes Intercreditor Agreement,
that shall have been executed and delivered by the applicable parties thereto and each of such documents shall be in full force
and effect in accordance with their terms.
m. Security Filings. On the Closing Date, except as otherwise contemplated by the Collateral Documents (other than the
Mortgages and as otherwise permitted by Schedule 3 hereto), each document (including any Uniform Commercial Code
financing statement or equivalent filing in the provinces of British Columbia, Ontario and Quebec) required by the Collateral
Documents (other than the Mortgages), or under law or reasonably requested by the Representative, in each case, to be filed,
registered or recorded, or delivered for filing on or prior to the Closing Date, including filings in the U.S. Patent and
Trademark Office and the U.S. Copyright Office in order to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a perfected first-priority lien and security interest (subject to Permitted Liens) in the Collateral that can be
perfected by the making of such filings, registrations or recordations, prior and superior to the right of any other person (other
than Permitted Liens), shall be executed and in proper form for filing, registration or recordation. All Canadian intellectual
property security agreements required to be filed pursuant to the Canadian Security Agreement shall be executed and in
proper form for filing, registration or recordation and the Initial Purchasers shall have received counterparts thereof on the
Closing Date.
n. Chief Financial Officer’s Certificate. On the date hereof and the Closing Date, the Initial Purchasers shall have received a
certificate of Parent’s Chief Financial Officer or similar officer in form and substance satisfactory to the Initial Purchasers
relating to certain financial information included in the Time of Sale Information and the Offering Memorandum under the
heading “Summary—Recent Developments—Preliminary Estimated Financial Information.”
o. Refinancing. The Issuers (or their direct or indirect parent) have delivered notice of partial redemption to the existing
noteholders of the 2024 First Lien Notes in accordance with the terms of the indenture governing the 2024 First Lien Notes.
p. Additional Documents. On or prior to the Closing Date, the Issuers and the Guarantors shall have furnished to the
Representative such further certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
7.
Indemnification and Contribution. (a) Indemnification of the Initial Purchasers. Each of the Issuers and each of the Guarantors jointly
and severally agrees to indemnify and hold harmless each Initial Purchaser, its affiliates, directors and officers and each person, if
any, who controls such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, any Misrepresentation or alleged Misrepresentation contained in the Preliminary
Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication or the Offering Memorandum
(or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, a
Misrepresentation or alleged Misrepresentation made in reliance upon and in conformity with any information relating to any Initial
Purchaser furnished to the Issuers in writing by such Initial Purchaser through the Representative expressly for use therein.
(b) Indemnification of the Issuers and the Guarantors. Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold
harmless each Issuer, each of the Guarantors, their respective directors and officers and each person who controls each Issuer or any of the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such
Initial Purchaser furnished to the Issuers in writing by such Initial Purchaser through the Representative expressly for use in the Preliminary
Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication or the Offering Memorandum (or any
amendment or supplement thereto), it being understood and agreed that the only such information consists of the following: the fourth
paragraph, the third and fourth sentences of the seventh paragraph, and the ninth paragraph, in each case, found under the heading “Plan of
distribution.”
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b)
above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it
may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the
Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the
Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person;
or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and the Indemnified Person shall have reasonably concluded that representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for any Initial Purchaser, its affiliates, directors and officers and any control persons of such Initial
Purchaser shall be designated in writing by J.P. Morgan Securities LLC and any such separate firm for the Issuers, the Guarantors, their
respective directors and officers and any control persons of the Issuers and the Guarantors shall be designated in
writing by the Issuers. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x)
includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person,
from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Guarantors on the one hand and the Initial Purchasers on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Issuers and the Guarantors on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the Guarantors on the one hand and the Initial Purchasers on the other shall
be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Issuers from the sale of
the Securities and the total discounts and commissions received by the Initial Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Securities. The relative fault of the Issuers and the Guarantors on the one hand and the
Initial Purchasers on the other shall be determined by reference to, among other things, whether the Misrepresentation or alleged
Misrepresentation relates to information supplied by any Issuer or any Guarantor or by the Initial Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission. For the avoidance of doubt, until the
Issuers, the Guarantors or their respective directors, officers and control persons are entitled to indemnification from the Initial Purchasers
under Section 7(b) above, they are not entitled to contribution under this Section 7(d).
(e) Limitation on Liability. The Issuers, the Guarantors and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified
Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Initial Purchaser be
required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Initial Purchaser
with respect to the offering of the Securities exceeds the amount of any damages that such Initial Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial
Purchasers’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder
and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies
that may otherwise be available to any Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion of the Representative, by notice to the Issuers, if after the
execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed
by Parent, the Partnership, any Issuer or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State
authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the judgment of the Representative is material and adverse and
makes it impracticable or inadvisable to proceed with the offering, sale or delivery, of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum.
9. Defaulting Initial Purchaser. (a) If, on the Closing Date, any Initial Purchaser defaults on its obligation to purchase the Securities that
it has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in their discretion arrange for the purchase of such
Securities by other persons satisfactory to the Issuers on the terms contained in this Agreement. If, within 36 hours after any such
default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such Securities, then the
Issuers shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Initial
Purchasers to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a
defaulting Initial Purchaser, either the non-defaulting Initial Purchasers or the Issuers may postpone the Closing Date for up to five
full business days in order to effect any changes that in the opinion of counsel for the Issuers or counsel for the Initial Purchasers may
be necessary in the Time of Sale Information, the Offering Memorandum or in any other document or arrangement, and the Issuers
agree to promptly prepare any amendment or supplement to the Time of Sale Information or the Offering Memorandum that effects
any such changes. As used in this Agreement, the term “Initial Purchaser” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a
defaulting Initial Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial Purchasers
by the non-defaulting Initial Purchasers and the Issuers as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Issuers shall have the
right to require each non-defaulting Initial Purchaser to purchase the principal amount of Securities that such Initial Purchaser agreed to
purchase hereunder plus such Initial Purchaser’s pro rata share (based on the principal amount of Securities that such Initial Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Initial Purchaser or Initial Purchasers for which such arrangements have not been
made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial Purchasers
by the non-defaulting Initial Purchasers and the Issuers as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Issuers shall not exercise the right described in paragraph (b) above, then this
Agreement shall terminate without liability on the part of the non-defaulting Initial Purchasers. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of the Issuers or the Guarantors, except that each Issuer and each of the Guarantors will
continue to be jointly and severally liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of
Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it may have to the Issuers, the Guarantors or
any non-defaulting Initial Purchaser for damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is
terminated, each Issuer and each of the Guarantors jointly and severally agrees to pay or cause to be paid all costs and expenses
incident to the performance of their respective obligations hereunder (including any goods and services, harmonized sales, sales,
transfer, stamp, excise and other similar taxes payable in connection therewith), including without limitation, (i) the costs incident to
the authorization, issuance, sale, preparation and delivery of the Securities; (ii) the costs incident to the preparation and printing of the
Preliminary Offering Memorandum, any other Time of Sale Information, any Issuer Written Communication and the Offering
Memorandum (including any amendment or supplement thereto) and the distribution thereof; (iii) the costs of reproducing and
distributing each of the Transaction Documents; (iv) the fees and expenses of the Issuers’ and the Guarantors’ counsel and
independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such jurisdictions as the Representative may designate and the
preparation, printing and distribution of a “blue sky” memorandum (including the related fees and expenses of counsel for the Initial
Purchasers); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee, the Collateral
Agent and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and fees incurred
in connection with the approval of the Securities for book-entry transfer by DTC; (ix) all expenses incurred by the Issuers in
connection with any “road show” presentation to potential investors; and (x) the fees and expenses incurred in connection with
creating, documenting and perfecting the security interests in the Collateral as contemplated by the Collateral Documents (including
the reasonable related fees and expenses of counsel for the Initial Purchasers for all periods prior to and after the Closing Date).
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the Issuers for any reason fail to tender the Securities for delivery to
the Initial Purchasers or (iii) the Initial Purchasers decline to purchase the Securities for any reason permitted under this Agreement, each
Issuer and each of the Guarantors jointly and severally agrees to reimburse the Initial Purchasers for all out-of-pocket costs and expenses
(including the fees and expenses of their counsel) reasonably incurred by the Initial Purchasers in connection with this Agreement and the
offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and any controlling persons referred to herein, and the affiliates, officers and directors of each Initial
Purchaser referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Securities from any Initial Purchaser shall be deemed to be a successor merely by reason
of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Issuers, the Guarantors
and the Initial Purchasers contained in this Agreement or made by or on behalf of the Issuers, the Guarantors or the Initial Purchasers
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities
and shall remain in full force and effect, regardless of any subsequent disposition by the Initial Purchasers of the Securities, any
termination of this Agreement or any investigation made by or on behalf of the Issuers, the Guarantors or the Initial Purchasers.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the
meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks
are permitted or required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the
Securities Act; (d) the term “Exchange Act” means the Securities Exchange Act of 1934, as amended; and (e) the term “written
communication” has the meaning set forth in Rule 405 under the Securities Act.
14. Compliance with USA Patriot Act. In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Initial Purchasers are required to obtain, verify and record information that identifies their
respective clients, including the Issuers and the Guarantors, which information may include the name and address of their respective
clients, as well as other information that will allow the Initial Purchasers to properly identify their respective clients.
15. Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Initial Purchaser that is a Covered Entity (as defined
below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Initial
Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the
transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In the event that any Initial Purchaser that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Initial Purchaser
becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may
be exercised against such Initial Purchaser are permitted to be exercised to no greater extent than such Default Rights could be exercised
under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section 15, (i) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be
interpreted in accordance with, 12 U.S.C. § 1841(k); (ii) “Covered Entity” means any of the following: (x) a “covered entity” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (y) a “covered bank” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 47.3(b), or a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
(iii) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable; and (iv) “U.S. Special Resolution Regime” means each of (x) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (y) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder.
16. Miscellaneous. (a) Authority of the Representative. Any action by the Initial Purchasers hereunder may be taken by J.P. Morgan
Securities LLC on behalf of the Initial Purchasers, and any such action taken by J.P. Morgan Securities LLC shall be binding upon the
Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Initial Purchasers shall be given to the
Representative c/o J.P. Morgan Securities LLC , 383 Madison Avenue, New York, New York 10179 (Attention: Chris Lingenfelter). Notices
to the Issuers and the Guarantors shall be given to them at 1011778 B.C. Unlimited Liability Company, c/o Restaurant Brands International,
130 King Street West, Suite 300, Toronto, Ontario, Canada M5X 1E1, Attention: Jill Granat. A copy of any notice sent to the Issuers shall
also be sent to: Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022 (fax: (212) 446-4900), Attn: Joshua N. Korff and
Michael Kim.
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
(d) Waiver of Jury Trial. The Issuers, the Guarantors and each of the Initial Purchasers hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
(e) Consent to Jurisdiction. The Issuers and each of the Guarantors hereby submit to the non-exclusive jurisdiction of any U.S. federal
or state court located in the Borough of Manhattan, the City and County of New York in any action, suit or proceeding arising out of or
relating to or based upon this Agreement or any of the transactions contemplated hereby, and the Issuers and each of the Guarantors
irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding in any such court arising out of
or relating to this Agreement or the transactions contemplated hereby and irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum. The Company and each
Guarantor domiciled in Canada hereby appoints the Corporation Service Company, 1180 Avenue of the Americas, Suite 210, New York, NY
10036-8401, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out
of or based upon this Agreement or the transactions contemplated herein that may be instituted in any state or U.S. federal court in The City
of New York and County of New York, by any Initial Purchaser, the directors, officers, employees, affiliates and agents of any Initial
Purchaser, or by any person who controls any Initial Purchaser, and expressly accepts the non-exclusive jurisdiction of any such court in
respect of any such suit, action or proceeding. The Company and each Guarantor domiciled in Canada hereby represents and warrants that the
Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company and each
Guarantor domiciled in Canada agrees to take any and all action, including the filing of any and all documents that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every
respect, effective service of process upon the Company and each Guarantor domiciled in Canada.
(f) Waiver of Immunity. To the extent that the Issuers or any Guarantor has or hereafter may acquire any immunity (sovereign or
otherwise) from jurisdiction of any court of (i) Canada, or any political subdivision thereof, (ii) the United States or the State of New York,
(iii) any jurisdiction in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect
to themselves or their respective property and assets or this Agreement, the Issuers and each Guarantor hereby irrevocably waive such
immunity in respect of its obligations under this Agreement to the fullest extent permitted by applicable law.
(g) Judgment Currency. Each of the Issuers and each Guarantor jointly and severally agrees to indemnify each Initial Purchaser, its
directors, officers, affiliates and each person, if any, who controls such Initial Purchaser within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any loss incurred by such Initial Purchaser as a result of any judgment or order being given or
made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment currency”) other than
U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment
currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person is able to purchase U.S.
dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing indemnity shall constitute a
separate and independent obligation of each of the Issuers and each Guarantor and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
(h) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of
telecommunication, including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act,
the Electronic Signatures and Records Act or other applicable law, e.g. www.docusign.com), each of which shall be an original and all of
which together shall constitute one and the same instrument.
(i) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any
departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(j) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
[Remainder of page intentionally left blank]
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space
provided below.
1011778 B.C. UNLIMITED LIABILITY COMPANY
By: /s/ Jill Granat____________________
Name: Jill Granat
Title: Secretary
NEW RED FINANCE, INC.
By: /s/ Jill Granat______________________
Name: Jill Granat
Title: Assistant Secretary
BK ACQUISITION, INC.
BK WHOPPER BAR, LLC
BURGER KING CAPITAL FINANCE, INC.
BURGER KING CORPORATION
BURGER KING HOLDINGS, INC.
BURGER KING INTERAMERICA, LLC
BURGER KING WORLDWIDE, INC.
By: /s/ Jill Granat______________________
Name: Jill Granat
Title: Assistant Secretary
1014369 B.C. UNLIMITED LIABILITY COMPANY
1019334 B.C. UNLIMITED LIABILITY COMPANY
1024670 B.C. UNLIMITED LIABILITY COMPANY
1028539 B.C. UNLIMITED LIABILITY COMPANY
1029261 B.C. UNLIMITED LIABILITY COMPANY
1057639 B.C. UNLIMITED LIABILITY COMPANY
1057772 B.C. UNLIMITED LIABILITY COMPANY
1057837 B.C. UNLIMITED LIABILITY COMPANY
BK CANADA SERVICE ULC
BLUE HOLDCO 1, LLC
BLUE HOLDCO 2, LLC
BLUE HOLDCO 3, LLC
BLUE HOLDCO 440, LLC
BURGER KING CANADA HOLDINGS INC./
PLACEMENTS BURGER KING CANADA INC.
GPAIR LIMITED
GRANGE CASTLE HOLDINGS LIMITED
LLCXOX, LLC
ORANGE GROUP, INC.
ORANGE INTERMEDIATE, LLC
PLK ENTERPRISES OF CANADA, INC.
POPEYES LOUISIANA KITCHEN, INC.
RESTAURANT BRANDS HOLDINGS CORPORATION
RESTAURANT BRANDS INTERNATIONAL US
SERVICES LLC
SBFD HOLDING CO.
TDLDD HOLDINGS ULC
TDLRR HOLDINGS ULC
THE TDL GROUP CORP./GROUPE TDL
CORPORATION
TIM DONUT U.S. LIMITED, INC.
TIM HORTONS (NEW ENGLAND), INC.
TIM HORTONS CANADIAN IP HOLDINGS
CORPORATION
TIM HORTONS USA INC.
By: /s/ Jill Granat______________________
Name: Jill Granat
Title: Secretary
1112090 B.C. UNLIMITED LIABILITY COMPANY
1112097 B.C. UNLIMITED LIABILITY COMPANY
1112100 B.C. UNLIMITED LIABILITY COMPANY
1112104 B.C. UNLIMITED LIABILITY COMPANY
1112106 B.C. UNLIMITED LIABILITY COMPANY
BC12SUB- ORANGE HOLDINGS ULC
BCP-SUB, LLC
BLUE HOLDCO AKA7, LLC
BLUE HOLDCO AKA8, LLC
BLUE HOLDCO 300, LLC
LAX HOLDINGS ULC
LLC-QZ, LLC
ORANGE GROUP INTERNATIONAL, INC.
PBB HOLDINGS ULC
RB CRISPY CHICKEN HOLDINGS ULC
RB OCS HOLDINGS ULC
RB TIMBIT HOLDINGS ULC
SBFD BETA, LLC
SBFD SUBCO ULC
SBFD, LLC
ZN1 HOLDINGS ULC
ZN19TDL HOLDINGS ULC
ZN3 HOLDINGS ULC
ZN4 HOLDINGS ULC
ZN5 HOLDINGS ULC
ZN6 HOLDINGS ULC
ZN7 HOLDINGS ULC
ZN8 HOLDINGS ULC
ZN9 HOLDINGS ULC
SOCIÉTÉ EN COMMANDITE TARTE 3/ PIE 3
LIMITED PARTNERSHIP, by 1011778 B.C.
UNLIMITED LIABILITY COMPANY, its general
partner
SOCIÉTÉ EN COMMANDITE TARTE 4/ PIE 4
LIMITED PARTNERSHIP, by 12-2019 HOLDINGS
ULC, its general partner
SOCIÉTÉ EN COMMANDITE P2019/P2019 LIMITED
PARTNERSHIP, by 1011778 B.C. UNLIMITED
LIABILITY COMPANY, its general partner
By: /s/ Jill Granat______________________
Name: Jill Granat
Title: Secretary
12-2019 HOLDINGS ULC
12KR HOLDINGS ULC
12KRR HOLDINGS ULC
12ZZ HOLDINGS ULC
2097A HOLDINGS ULC
2097AA HOLDINGS ULC
2097B HOLDINGS ULC
BC3-A, LLC
BKC-IP, LLC
BKHS-A, LLC
KR1 HOLDINGS ULC
KR19TDL HOLDINGS ULC
KR2 HOLDINGS ULC
KR3 HOLDINGS ULC
KR4 HOLDINGS ULC
KR5 HOLDINGS ULC
KR6 HOLDINGS ULC
KR7 HOLDINGS ULC
KR8 HOLDINGS ULC
KR9 HOLDINGS ULC
IPCOA HOLDINGS ULC
IPCOAA HOLDINGS ULC
IPCOB HOLDINGS ULC
LDTA HOLDINGS ULC
LDTAA HOLDINGS ULC
LDTC HOLDINGS ULC
LLC440-A, LLC
LLC-K4, LLC
LLC-K5, LLC
LLC-QQ, LLC
RBHZZ HOLDINGS ULC
SOCIÉTÉ EN COMMANDITE BC12/ BC12 LIMITED
PARTNERSHIP, by 12-2019 HOLDINGS ULC, its
general partner
By: /s/ Jill Granat______________________
Name: Jill Granat
Title: Secretary
SOCIÉTÉ EN COMMANDITE BC12P/ BC12P
LIMITED PARTNERSHIP, by 12-2019 HOLDINGS
ULC, its general partner
SOCIÉTÉ EN COMMANDITE 2097P / 2097P LIMITED
PARTNERSHIP, by 1112097 B.C. UNLIMITED
LIABILITY COMPANY and ZN3 HOLDINGS ULC,
in their capacities as general partners
SOCIÉTÉ EN COMMANDITE LDTB / LDTB LIMITED
PARTNERSHIP, by THE TDL GROUP CORP./
GROUPE TDL CORPORATION, its general partner
SOCIÉTÉ EN COMMANDITE IPCO / IPCO
LIMITED PARTNERSHIP, by KR2 HOLDINGS
ULC, its general partner
By: /s/ Jill Granat______________________
Name: Jill Granat
Title: Secretary
Accepted on the date first written above:
J.P. MORGAN SECURITIES LLC
For itself and on behalf of the several
Initial Purchasers listed in Schedule 1 hereto.
By: /s/ Brandon Mallette
Name: Brandon Mallette
Title: Vice President
Initial Purchaser
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
BofA Securities, Inc.
Wells Fargo Securities, LLC
Barclays Capital Inc.
RBC Capital Markets, LLC
Capital One Securities, Inc.
Goldman Sachs & Co. LLC
BMO Capital Markets Corp.
MUFG Securities Americas Inc.
Fifth Third Securities, Inc.
Citigroup Global Markets Inc.
Scotia Capital (USA) Inc.
BNP Paribas Securities Corp.
Truist Securities, Inc.
Rabo Securities USA, Inc.
Total
Schedule 1
Principal Amount
85,366,000
85,366,000
85,366,000
60,976,000
60,976,000
60,976,000
36,585,000
30,488,000
30,488,000
30,488,000
30,488,000
30,488,000
30,488,000
30,487,000
30,487,000
30,487,000
750,000,000
$
$
Guarantors
Schedule 2
1. BK Whopper Bar, LLC, a Florida limited liability company
2. BK Acquisition, Inc., a Delaware corporation
3. Orange Intermediate, LLC, a Delaware limited liability company
4. Orange Group, Inc., a Delaware corporation
5. LLCxox, LLC, a Delaware limited liability company
6. Blue Holdco 1, LLC, a Delaware limited liability company
7. Blue Holdco 2, LLC, a Delaware limited liability company
8. Blue Holdco 3, LLC, a Delaware limited liability company
9. SBFD Holding Co., a Delaware corporation
10. Tim Hortons USA Inc., a Florida corporation
11. Tim Hortons (New England), Inc., a Delaware corporation
12. Burger King Worldwide, Inc., a Delaware corporation
13. Burger King Capital Finance, Inc., a Delaware corporation
14. Burger King Holdings, Inc., a Delaware corporation
15. Blue Holdco 440, LLC, a Delaware limited liability company
16. Tim Donut U.S. Limited, Inc., a Florida corporation
17. Burger King Corporation, a Florida corporation
18. Burger King Interamerica, LLC, a Florida limited liability company
19. 1014369 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
20. 1019334 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
21. Grange Castle Holdings Limited, a Canada corporation
22. GPAir Limited, an Ontario corporation
23. The TDL Group Corp./Groupe TDL Corporation, a British Columbia limited company
24. Burger King Canada Holdings Inc./Placements Burger King Canada Inc., an Ontario corporation
25. 1024670 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
26. 1028539 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
27. 1029261 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
28. 1057837 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
29. 1057772 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
30. 1057639 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
31. TDLdd Holdings ULC, a British Columbia unlimited liability company
32. TDLrr Holdings ULC, a British Columbia unlimited liability company
33. BK Canada Service ULC, a British Columbia unlimited liability company
34. Restaurant Brands Holdings Corporation, an Ontario corporation
35. Tim Hortons Canadian IP Holdings Corporation, an Ontario corporation
36. Restaurant Brands International US Services LLC, a Florida limited liability company
37. PLK Enterprises of Canada, Inc., a British Columbia corporation
38. Popeyes Louisiana Kitchen, Inc., a Minnesota corporation
39. 1112097 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
40. 1112104 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
41. 1112106 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
42. 1112090 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
43. 1112100 B.C. Unlimited Liability Company, a British Columbia unlimited liability company
44. BC12sub- Orange Holdings ULC, a British Columbia unlimited liability company
45. SBFD Subco ULC, a British Columbia unlimited liability company
46. LAX Holdings ULC, a British Columbia unlimited liability company
47. Orange Group International, Inc., an Ontario corporation
48. Blue Holdco aka8, llc, a Delaware limited liability company
49. Blue Holdco aka7, llc, a Delaware limited liability company
50. BCP-Sub, LLC, a Delaware limited liability company
51. SBFD, LLC, a Delaware limited liability company
52. SBFD Beta, LLC, a Delaware limited liability company
53. RB Timbit Holdings ULC, a British Columbia unlimited liability company
54. RB OCS Holdings ULC, a British Columbia unlimited liability company
55. RB Crispy Chicken Holdings ULC, a British Columbia unlimited liability company
56. PBB Holdings ULC, a British Columbia unlimited liability company
57. ZN1 Holdings ULC, a British Columbia unlimited liability company
58. ZN3 Holdings ULC, a British Columbia unlimited liability company
59. ZN4 Holdings ULC, a British Columbia unlimited liability company
60. ZN5 Holdings ULC, a British Columbia unlimited liability company
61. ZN6 Holdings ULC, a British Columbia unlimited liability company
62. ZN7 Holdings ULC, a British Columbia unlimited liability company
63. ZN8 Holdings ULC, a British Columbia unlimited liability company
64. ZN9 Holdings ULC, a British Columbia unlimited liability company
65. ZN19TDL Holdings ULC, a British Columbia unlimited liability company
66. LLC-QZ, LLC, a Delaware limited liability company
67. Société en commandite Tarte 3/ Pie 3 Limited Partnership, a Quebec limited partnership
68. Société en commandite Tarte 4/ Pie 4 Limited Partnership, a Quebec limited partnership
69. Société en commandite P2019/P2019 Limited Partnership, a Quebec limited partnership
70. LLC-K4, LLC, a Delaware limited liability company
71. LLC-QQ, LLC, a Delaware limited liability company
72. 12-2019 Holdings ULC, a British Columbia unlimited liability company
73. 12zz Holdings ULC, a British Columbia unlimited liability company
74. RBHzz Holdings ULC, a British Columbia unlimited liability company
75. Société en commandite BC12/ BC12 Limited Partnership, a Quebec limited partnership
76. 12Kr Holdings ULC, a British Columbia unlimited liability company
77. 12Krr Holdings ULC, a British Columbia unlimited liability company
78. KR1 Holdings ULC, a British Columbia unlimited liability company
79. KR2 Holdings ULC, a British Columbia unlimited liability company
80. KR3 Holdings ULC, a British Columbia unlimited liability company
81. KR4 Holdings ULC, a British Columbia unlimited liability company
82. KR5 Holdings ULC, a British Columbia unlimited liability company
83. KR6 Holdings ULC, a British Columbia unlimited liability company
84. KR7 Holdings ULC, a British Columbia unlimited liability company
85. KR8 Holdings ULC, a British Columbia unlimited liability company
86. KR9 Holdings ULC, a British Columbia unlimited liability company
87. KR19TDL Holdings ULC, a British Columbia unlimited liability company
88. Société en commandite BC12p/ BC12p Limited Partnership, a Quebec limited partnership
89. 2097A Holdings ULC, a British Columbia unlimited liability company
90. 2097AA Holdings ULC, a British Columbia unlimited liability company
91. LDTA Holdings ULC, a British Columbia unlimited liability company
92. LDTAA Holdings ULC, a British Columbia unlimited liability company
93. LDTC Holdings ULC, a British Columbia unlimited liability company
94. 2097B HOLDINGS ULC, a British Columbia unlimited liability company
95. Société en commandite 2097P/ 2097P Limited Partnership, a Quebec limited partnership
96. Société en commandite LDTb/ LDTb Limited Partnership, a Quebec limited partnership
97. BC3-A, LLC, a Delaware limited liability company
98. LLC440-A, LLC, a Delaware limited liability company
99. BKHS-A, LLC, a Delaware limited liability company
100.
101.
102.
103.
104.
105.
106.
BKC-IP, LLC, a Delaware limited liability company
LLC-K5, LLC, a Delaware limited liability company
Blue Holdco 300, LLC, a Delaware limited liability company
IPCOA Holdings ULC, a British Columbia unlimited liability company
IPCOAA Holdings ULC, a British Columbia unlimited liability company
IPCOB Holdings ULC, a British Columbia unlimited liability company
Société en commandite IPCO/IPCO Limited Partnership, a Quebec limited partnership
Post-Closing Collateral Requirements
Schedule 3
Within 90 days following the Closing Date, the Collateral Agent shall have received each of the following, in each case, in form and
substance as shall be reasonably satisfactory to the Collateral Agent and its counsel:
(i) with respect to each Mortgaged Property, a Mortgage granted by the registered and beneficial (if not the same) owner of the applicable
Mortgaged Property in favor of the Collateral Agent for its benefit and for the benefit of the Secured Parties encumbering each such party’s
fee interest in such Mortgaged Property, duly executed and acknowledged by such party in form for registration or recording in the
appropriate recording or Land Registry office of the political subdivision where such Mortgaged Property is situated, together with such
certificates, affidavits, questionnaires or returns as shall be required in connection with the registration, recording or filing thereof and such
financing statements and other similar statements in respect of each such Mortgage, and any other instruments necessary to grant the interests
purported to be granted by each such Mortgage (and to register or record such Mortgage in the appropriate recording or Land Registry
offices) under the laws of any applicable jurisdiction, which Mortgage, financing statements and other instruments shall be in form and
substance substantially similar to the mortgages, financing statements and other instruments delivered to the Credit Facilities Agent under the
Senior Secured Credit Facilities and effective to create a valid and enforceable first-priority lien on such Mortgaged Property in favor of the
Collateral Agent for the benefit of the Secured Parties, subject to no liens other than Permitted Liens, Permitted Exceptions, and the
Enforceability Exceptions;
(ii) with respect to each Mortgage encumbering any Mortgaged Property, a policy of title insurance (or irrevocable commitment to issue such
a policy) insuring (or irrevocably committing to insure) the lien of such Mortgage as a valid and enforceable first-priority mortgage or
mortgage deed lien, as applicable, on the real property and fixtures described therein, in favor of the Collateral Agent for the benefit of the
Secured Parties, securing the obligations of the Issuers and the Guarantors under the Indenture, the Securities and the Collateral Documents,
in an amount equal to the proportionate amount allocated to such Mortgaged Property in connection with the mortgagee’s policy of title
insurance covering the mortgage lien securing the obligations under the Senior Secured Credit Facilities and which policy (or irrevocable
commitment) shall (a) be issued by a title insurance company reasonably acceptable to the Collateral Agent (the “Title Company”), (b) be in
form and substance substantially similar to the applicable mortgaged policy delivered to the Credit Facilities Agent under the Senior Secured
Credit Facilities and (d) contain no defects, liens or encumbrances other than Permitted Liens, Permitted Exceptions, and the Enforceability
Exceptions (individually, a “Mortgaged Policy,” and, collectively, “Mortgaged Policies”);
(iii) with respect to each Mortgaged Property, (a) a survey of the Mortgaged Property certified by the surveyor (in a manner reasonably
acceptable to the Collateral Agent) to the Collateral Agent and the Title Company or (b) an existing survey with an “affidavit of no change”
satisfactory to the Title Company in order to obtain survey coverage under the applicable Mortgaged Policy, in each case, in form and
substance substantially similar to the applicable survey delivered to the Credit Facilities Agent under the Senior Secured Credit Facilities;
(iv) policies or certificates of insurance covering the Mortgaged Properties, and any other assets of the Issuers and the Guarantors as required
by the Indenture and the Collateral Documents, which policies or certificates name the Collateral Agent, for the benefit of the Secured Parties,
as additional insured and loss payee and mortgagee, as applicable and appropriate, and shall otherwise be in form and substance substantially
similar to the policies or certificates of insurance delivered to the Credit Facilities Agent under the Senior Secured Credit Facilities;
(v) such affidavits, certificates and instruments of indemnification and other items (including a so-called “gap” indemnification) as shall be
reasonably required to induce the Title Company
to issue the Mortgaged Policies with respect to each Mortgaged Property, provided that such affidavits, certificates and instruments of
indemnification and other items shall be in form and substance substantially similar to those delivered to the Credit Facilities Agent under the
Senior Secured Credit Facilities;
(vi) checks or wire transfers to the Title Company in respect of amounts in payment of required recording cost and taxes due in respect of the
execution, delivery or recording of the Mortgages, fixture filings and related documents, together with a check or wire transfer for the Title
Company in payment of its premium, search and examination charges, applicable survey costs and any other amounts then due in connection
with the issuance of the Mortgaged Policies;
(vii) with respect to each Mortgaged Property, opinions, addressed to the Collateral Agent and the Trustee regarding the due execution and
delivery and enforceability of each such Mortgage, the corporate formation, existence and good standing of the applicable mortgagor, and
such other matters as may be reasonably requested by the Collateral Agent, each in form and substance reasonably satisfactory to the
Collateral Agent, provided that such opinions shall be in form and substance substantially similar to the opinions delivered to the Credit
Facilities Agent under the Senior Secured Credit Facilities;
(viii) such further information, certificates and documents evidencing or relating to the Collateral or required to effect the foregoing as the
Collateral Agent may reasonably request including, without limitation, such information, certificates and documents substantially similar in
form and substance to those delivered to the Credit Facilities Agent under the Senior Secured Credit Facilities.
Notwithstanding anything herein to the contrary, it is understood that, to the extent any security interest in any Collateral is not or cannot be
provided and/or perfected on the Closing Date including, without limitation, as a result of the occurrence of the COVID-19 pandemic
(including without limitation, as a result of any notary services being unavailable in the Province of Quebec) after your use of commercially
reasonable efforts to do so or without undue burden or expense or risk to human health (other than the pledge and perfection of the security
interest in the equity interests of the Issuers and each of its direct wholly owned domestic restricted subsidiaries and other assets pursuant to
which a lien may be perfected by the filing of a financing statement (or equivalent instrument) under the Uniform Commercial Code, the
Personal Property Security Act (Ontario) or the equivalent legislation in any other jurisdiction of Canada (including under the Civil Code of
Quebec) in which the Collateral is situated (other than for the inability to file any such financing statement or equivalent as a result of the
occurrence of the COVID-19 pandemic, including as a result of any applicable registration system or related service not being available)),
then the provision and/or perfection of a security interest in such Collateral shall be required to be delivered as soon as is reasonably
practicable after the Closing Date.
Additional Time of Sale Information
1. Pricing term sheet containing the terms of the Securities, substantially in the form of Annex B.
ANNEX A
Pricing Term Sheet
See attached
ANNEX B
Restrictions on Offers and Sales Outside the United States
ANNEX C
In connection with offers and sales of Securities outside the United States:
(a) Each Initial Purchaser acknowledges that the Securities have not been registered under the Securities Act and may not be offered
or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions
not subject to, the registration requirements of the Securities Act. Each Initial Purchaser acknowledges that the distribution of the Securities is
being made in the Offering Provinces on a private placement basis, exempt from the prospectus requirements of applicable Canadian
Securities Laws, and that the Securities have not been and will not be qualified for distribution (or distribution to the public, as applicable) by
prospectus under applicable Canadian Securities Laws.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing Date, only in
accordance with
Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in
any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions
requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, such Initial Purchaser will have sent to
each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchases Securities from it during the
distribution compliance period a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities Act of
1933, as amended (the “Securities Act”), and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms used above have the
meanings given to them by Regulation S.”
(iv) Such Initial Purchaser has not and will not enter into any contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the prior written consent of the Issuers.
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in this Agreement have the meanings given to them by
Regulation S.
(c) Each Initial Purchaser acknowledges that no action has been or will be taken by the Issuers that would permit a public offering of
the Securities, or possession or distribution of any of the Time of Sale Information, the Offering Memorandum, any Issuer Written
Communication or any other
offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required.
(d) Each Initial Purchaser and its respective affiliates severally agrees that it will offer and sell the Securities to Subsequent
Purchasers in Canada in compliance with the requirements of applicable Canadian Securities Laws and only make offers and sales of the
Securities in Canada in the Offering Provinces and in such a manner that the sale of the Securities will be exempt from the prospectus
requirements of applicable Canadian Securities Laws. For greater certainty, each Initial Purchaser severally agrees that it has not made and
will not make an offer of the Securities to any person or company in Canada other than a person or company that is both:
(i) an “accredited investor” within the meaning of NI 45-106 or, in Ontario, as
defined in Section 73.3(1) of the Securities Act (Ontario) (except, in each case, for the criteria set
out in paragraph (j), (k) or (l) of such definition in NI 45-106) that is either purchasing the
Securities as principal for its own account, or is deemed to be purchasing the Securities as
principal for its own account in accordance with Canadian Securities Laws, and that is entitled
under Canadian Securities Laws to purchase such Securities without the benefit of a prospectus
qualified under such laws; and
(ii) a “permitted client” as defined in section 1.1 of NI 31-103.
(e) Each Initial Purchaser, severally and not jointly, covenants and agrees that it will provide to the Issuers forthwith upon request all
such information regarding each purchaser of Securities from it in Canada, including the paragraph number in the definition of “accredited
investor” in Section 1.1 of NI 45-106 that applies to each purchaser, as the Issuers may reasonably request in good faith for the purpose of
preparing and filing Schedule 1 to a report of exempt distribution on Form 45-106F1 (“Form 45-106F1”) and filed with all applicable
Canadian securities regulators in connection with the issuance and sale of the Securities, provided it is acknowledged and agreed that the
Initial Purchasers need not provide any information to the Issuers regarding whether any Canadian purchaser is an insider of the Issuers.
(f) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the United Kingdom Financial Services and Markets
Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Issuers or the
Guarantors; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Securities in, from or otherwise involving the
United Kingdom.
(g) Each Initial Purchaser severally agrees that it has not offered, sold or otherwise made available to and will not offer, sell or
otherwise make available the Securities to any retail investor in the European Economic Area or the United Kingdom. For these purposes, a
retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as
amended, “MiFID II”); (ii) a customer within the meaning of EU Directive 2016/97 (as amended or superseded, the “Insurance Distribution
Directive”), where that customer would not qualify as a
professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Regulation (EU)
2017/1129 (as amended or superseded, the “Prospectus Regulation”).
RESTAURANT BRANDS INTERNATIONAL INC.
List of Subsidiaries
EXHIBIT 21.1
Canada
1011778 B.C. Unlimited Liability Company
1013414 B.C. Unlimited Liability Company
1013421 B.C. Unlimited Liability Company
1014369 B.C. Unlimited Liability Company
1019334 B.C. Unlimited Liability Company
1024670 B.C. Unlimited Liability Company
1028539 B.C. Unlimited Liability Company
1029261 B.C. Unlimited Liability Company
1057639 B.C. Unlimited Liability Company
1057772 B.C. Unlimited Liability Company
1057837 B.C. Unlimited Liability Company
1112090 B.C. Unlimited Liability Company
1112097 B.C. Unlimited Liability Company
1112100 B.C. Unlimited Liability Company
1112104 B.C. Unlimited Liability Company
1112106 B.C. Unlimited Liability Company
12-2019 Holdings ULC
12KR Holdings ULC
12KRR Holdings ULC
12ZZ Holdings ULC
2097A Holdings ULC
2097AA Holdings ULC
2097B Holdings ULC
2097P Limited Partnership
8997896 Canada Inc.
BC12 Limited Partnership
BC12P Limited Partnership
BC12Sub-Orange Holdings ULC
BK Canada Service ULC
Burger King Canada Holdings Inc.
GPAir Limited
Grange Castle Holdings Limited
IPCO Limited Partnership
IPCOA Holdings ULC
IPCOAA Holdings ULC
IPCOB Holdings ULC
KR1 Holdings ULC
KR3 Holdings ULC
KR4 Holdings ULC
KR5 Holdings ULC
KR6 Holdings ULC
KR7 Holdings ULC
KR8 Holdings ULC
KR9 Holdings ULC
KR19TDL Holdings ULC
Lax Holdings ULC
LDTA Holdings ULC
LDTAA Holdings ULC
LDTB Limited Partnership
LDTC Holdings ULC
Orange Group International, Inc.
P2019 Limited Partnership
PBB Holdings ULC
Pie 1 Limited Partnership
Pie 2 Limited Partnership
Pie 3 Limited Partnership
Pie 4 Limited Partnership
PLK Enterprises of Canada, Inc.
RB Crispy Chicken Holdings ULC
RB Iced Capp Holdings ULC
RB OCS Holdings ULC
RB Timbit Holdings ULC
RBHZZ Holdings ULC
RBIZZ Holdings ULC
RBIZZZ Holdings ULC
Restaurant Brands Holdings Corporation
Restaurant Brands International Limited Partnership
SBFD Subco ULC
TDLDD Holdings ULC
TDLRR Holdings ULC
The TDL Group Corp.
Tim Hortons Advertising and Promotion Fund (Canada) Inc.
Tim Hortons Canadian IP Holdings Corporation
ZN1 Holdings ULC
ZN3 Holdings ULC
ZN4 Holdings ULC
ZN5 Holdings ULC
ZN6 Holdings ULC
ZN7 Holdings ULC
ZN8 Holdings ULC
ZN9 Holdings ULC
ZN19TDL Holdings ULC
ZNA Holdings ULC
ZNRBI Limited Partnership
Argentina
BK Argentina Servicios, S.A.
Brazil
Burger King do Brasil Assessoria a Restaurantes Ltda.
China
BK (Shanghai) Business Information Consulting Co., Ltd.
Burger King (Shanghai) Commercial Consulting Co. Ltd.
Germany
Burger King Beteiligungs GmbH
Luxembourg
Burger King (Luxembourg) S.a.r.l.
Burger King (Luxembourg) 2 S.a.r.l.
Burger King (Luxembourg) 3 S.a.r.l.
Orange Lux S.a.r.l.
TH Luxembourg S.a.r.l.
Restaurant Brands Lux S.a.r.l.
Mexico
Adminstracion de Comidas Rapidas, SA de CV
BK Comida Rapida, S. de R.L. de C.V.
BK Servicios de Comida Rapida, S. de R.L. de C.V.
Netherlands
Burger King Nederland Services B.V.
Singapore
BK AsiaPac, Pte. Ltd.
PLK APAC Pte. Ltd.
Tim Hortons Asia Pacific Pte. Ltd.
South Africa
Burger King South Africa Holdings (Pty) Ltd.
Switzerland
Burger King Europe GmbH
PLK Europe GmbH
Tim Hortons Restaurants International GmbH
Restaurant Brands Switzerland GmbH
United Kingdom
BK (UK) Company Limited
BurgerKing Ltd.
Burger King (United Kingdom) Ltd.
Huckleberry’s Ltd.
Uruguay
Jolick Trading, S.A.
U.S.A.
BC3-A, LLC
BCp-sub, LLC
BK Acquisition, Inc.
BK Whopper Bar, LLC
BKC-IP, LLC
BKHS-A, LLC
Blue Holdco 1, LLC
Blue Holdco 2, LLC
Blue Holdco 3, LLC
Blue Holdco 300, LLC
Blue Holdco 440, LLC
Blue Holdco AKA7, LLC
Blue Holdco AKA8, LLC
Burger King Capital Finance, Inc.
Burger King Corporation
Burger King Holdings, Inc.
Burger King Interamerica, LLC
Burger King Worldwide, Inc.
LLC440-A, LLC
LLC-K4, LLC
LLC-K5, LLC
LLC-KZZ, LLC
LLC-QQ, LLC
LLC-QZ, LLC
LLCXOX, LLC
New Red Finance Inc.
Orange Group, Inc.
Orange Intermediate, LLC
Popeyes Louisiana Kitchen, Inc.
Restaurant Brands International US Services LLC
SBFD Beta, LLC
SBFD Holding Co.
SBFD, LLC
The Tim’s National Advertising Program, Inc.
Tim Donut U.S. Limited, Inc.
Tim Hortons (New England), Inc.
Tim Hortons USA Inc.
Consent of Independent Registered Public Accounting Firm
EXHIBIT 23.1
The Board of Directors
Restaurant Brands International Inc.:
We consent to the incorporation by reference in the registration statements (Nos. 333-214217, 333-206712, 333-200997 and 333-
226499) on Form S-8 and the registration statement (No. 333-233123) on Form S-3 of Restaurant Brands International Inc. of our
reports dated February 23, 2021, with respect to the consolidated balance sheets of Restaurant Brands International Inc. and
subsidiaries as of December 31, 2020 and 2019, the related consolidated statements of operations, comprehensive income (loss),
shareholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2020, and the related notes
(collectively, the consolidated financial statements), and the effectiveness of internal control over financial reporting as of December
31, 2020, which reports appear in the December 31, 2020 annual report on Form 10-K of Restaurant Brands International Inc.
Our report on the consolidated financial statements refers to a change in the method of accounting for leases as of January 1, 2019
due to the adoption of Accounting Standards Codification (ASC) Topic 842, Leases.
(signed) KPMG LLP
Miami, Florida
February 23, 2021
I, José E. Cil, certify that:
CERTIFICATION
1
I have reviewed this annual report on Form 10-K of Restaurant Brands International Inc.:
EXHIBIT 31.1
2 Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3 Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4 The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-
15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial reporting; and
5 The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Dated: February 23, 2021
/s/ José E. Cil
José E. Cil
Chief Executive Officer
I, Matthew Dunnigan, certify that:
CERTIFICATION
1
I have reviewed this annual report on Form 10-K of Restaurant Brands International Inc.:
EXHIBIT 31.2
2 Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3 Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4 The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-
15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial reporting; and
5 The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Dated: February 23, 2021
/s/ Matthew Dunnigan
Matthew Dunnigan
Chief Financial Officer
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
EXHIBIT 32.1
In connection with the Annual Report on Form 10-K of Restaurant Brands International Inc. (the “Company”) for the year ended December 31, 2020 as filed with
the Securities and Exchange Commission on the date hereof (the “Report”), I, José E. Cil, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C.
§1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:
1
2
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: February 23, 2021
/s/ José E. Cil
José E. Cil
Chief Executive Officer
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
EXHIBIT 32.2
In connection with the Annual Report on Form 10-K of Restaurant Brands International Inc. (the “Company”) for the year ended December 31, 2020 as filed with
the Securities and Exchange Commission on the date hereof (the “Report”), I, Matthew Dunnigan, Chief Financial Officer of the Company, certify, pursuant to 18
U.S.C. §1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:
1
2
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: February 23, 2021
/s/ Matthew Dunnigan
Matthew Dunnigan
Chief Financial Officer