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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 15, 2022
RESTAURANT BRANDS INTERNATIONAL INC.
RESTAURANT BRANDS INTERNATIONAL LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
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| Canada | | 001-36786 | | 98-1202754 |
| Ontario | | 001-36787 | | 98-1206431 |
| (State or other jurisdiction of | | (Commission | | (I.R.S. Employer |
| incorporation) | | File Number) | | Identification No.) |
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| 130 King Street West, Suite 300 | | M5X 1E1 |
| Toronto, | Ontario | | |
| (Address of Principal Executive Offices) | | (Zip Code) |
(905) 845-6511
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
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| Securities registered pursuant to Section 12(b) of the Act: |
| Title of each class | | Trading Symbols | | Name of each exchange on which registered |
| Common Shares, without par value | | QSR | | New York Stock Exchange |
| | | | Toronto Stock Exchange |
| Securities registered pursuant to Section 12(g) of the Act: |
| Title of each class | | Trading Symbols | | Name of each exchange on which registered |
| Class B exchangeable limited partnership units | | QSP | | Toronto Stock Exchange |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark 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. ☐
Item 1.01 Entry into a Material Definitive Agreement
On November 15, 2022, Restaurant Brands International Inc. (“RBI”) and Lodgepole 231 LLC, a Delaware limited liability company of which J. Patrick Doyle is the sole member, entered into a stock purchase agreement for the purchase of 500,000 common shares of RBI in a private placement at a price per share equal to the average closing price on the New York Stock Exchange for the five trading days preceding the agreement. The purchase agreement contains customary representations, warranties and covenants and is expected to close on November 21, 2022, subject to regulatory approval. Mr. Doyle has agreed to directly or indirectly hold the purchased shares for at least five years, subject to certain exceptions. The private placement was approved by the Board of Directors of RBI.
At the time Lodgepole 231 LLC entered into the stock purchase agreement, Mr. Doyle did not hold any direct or indirect beneficial interest in RBI common shares.
The foregoing summary of stock purchase agreement does not purport to be complete and is qualified in its entirety by reference to the complete terms of the agreement filed as Exhibit 10.82 hereto
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(c) On November 16, 2022, RBI announced that the Board of Directors of RBI appointed J. Patrick Doyle to become Executive Chairman of RBI.
Mr. Doyle served as an executive partner focused on the consumer sector of the Carlyle Group, a global diversified investment firm from September 2019 through November 2022. Prior to that he served as the chief executive officer of Domino’s Pizza, from March 2010 to June 2018, having served as president from 2007 to 2010, as executive vice president of Domino’s Team USA from 2004 to 2007 and as executive vice president of Domino’s Pizza International from 1999 to 2004. Mr. Doyle has served on the board of directors of Best Buy Co., Inc. since November 2014 and has been the Chairman of Best Buy’s board since May 2020. Mr. Doyle earned his M.B.A. from The University of Chicago Booth School of Business, and his B.A. from The University of Michigan. Mr. Doyle is 59 years old and resides in Florida, United States.
Effective November 16, 2022, RBI entered into an offer letter with Mr. Doyle, with respect to his employment as Executive Chairman. Mr. Doyle will report to RBI’s Board of Directors and is expected to be appointed to the Board in January 2023 as its Executive Chair. He will not receive any base salary nor be eligible for the annual bonus plan. In lieu of such compensation, he will receive a one-time equity grant as described below on or about November 21, 2022.
In connection with his appointment as Executive Chairman, the Compensation Committee approved the grant of (i) 2,000,000 options with an exercise price of the fair market value on the date of grant that vest after five years and expire after ten years; (ii) 500,000 restricted stock units that vest ratably over five years; and (iii) 750,000 performance share units that vest after five and half years and may be earned from 50% for threshold performance to 200% for maximum performance, based on meeting performance targets tied to the appreciation of the price of RBI common shares, with none of the award being earned if the threshold performance is not met. Target performance for the performance share units will be $97.87, approximately a 10% compound annualized return, with threshold performance earned at $81.32, approximately a 6% compound annualized return, and maximum performance earned at $122.23, approximately a 15% compound annualized return, in each case for RBI’s share price over five years. For the performance award, the target amount can be earned using the volume weighted average price on the NYSE over 30 consecutive trading days (plus cumulative dividends) during the period from two and half years following the grant date until five and half years following the grant date, but if earned prior to the end of such period will be subject to forfeiture based on continued services as further described in the performance award agreement. Any amounts greater than the target amount will be earned based on the price of RBI common shares (plus cumulative dividends) during the last year of the award. Although an employee Executive Chairman, Mr. Doyle may engage in other part-time services that are not competitive with RBI.
There are no arrangements or understandings between Mr. Doyle and any other persons pursuant to which Mr. Doyle was selected as the Executive Chairman of the Company. There are no family relationships between Mr. Doyle and any director or executive officer of the Company. Other than the arms’-length purchase of shares entered into prior to his engagement, Mr. Doyle does not have a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K promulgated under the Securities Exchange Act of 1934, as amended.
The foregoing summary of Mr. Doyle’s offer letter and the award agreements for the options, restricted stock units and performance share units do not purport to be complete and are qualified in their entirety by reference to the complete terms of the offer letter filed as Exhibit 10.83 hereto, the option award agreement filed as Exhibit 10.84, the restricted stock unit award agreement filed as exhibit 10.85 and the performance award agreement filed as Exhibit 10.86, each of which is incorporated herein by reference.
A copy of the press release issued by the Company on November 16, 2022, announcing Mr. Doyle’s appointment as Executive Chairman is attached as Exhibit 99.1 hereto.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
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Exhibit
Number | | Description |
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| 104 | | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document |
SIGNATURES
Pursuant to the requirements 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.
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| | RESTAURANT BRANDS INTERNATIONAL INC.
RESTAURANT BRANDS INTERNATIONAL LIMITED PARTNERSHIP, by its general partner RESTAURANT BRANDS INTERNATIONAL INC. |
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| Date: November 16, 2022 | | /s/ Jill Granat |
| | Name: | Jill Granat |
| | Title: | General Counsel and Corporate Secretary |
EXECUTION VERSION
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this “Agreement”) is dated as of November 15, 2022 by and between Restaurant Brands International Inc., a corporation existing under the laws of Canada (the “Company”), and Lodgepole 231 LLC, a Delaware limited liability company (the “Purchaser”).
RECITALS
Subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) and, where necessary, relying on an exemption from the prospectus requirements of applicable Canadian securities laws, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, common shares, no par value, in the capital of the Company (the “Common Shares”) as more fully described in this Agreement (the “Purchase”).
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and Purchaser hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Press Release dated November 16, 2022.Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms shall have the meanings indicated in this Section 1.1:
“Action” means any action, suit, inquiry, notice of violation, Proceeding (including any partial proceeding such as a deposition) or investigation pending or, to the Company’s Knowledge, threatened against the Company, any Subsidiary or any of their respective properties or any officer, director or employee of the Company acting in his or her capacity as an officer, director or employee before or by any federal, state, provincial, county, local or foreign court, arbitrator, governmental or administrative agency, regulatory authority, stock market, stock exchange or trading facility.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is controlled by or is under common control with such Person, as such terms are used in and construed under Rule 405 under the Securities Act. With respect to Purchaser, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as the Purchaser will be deemed to be an Affiliate of the Purchaser.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except Saturday, Sunday, any day which is a federal legal holiday in the United States or a statutory holiday in the Province of Ontario, Canada or any day
on which banking institutions in the State of New York or the Province of Ontario are authorized or required by law or other governmental Action to close.
“Canadian Filings” has the meaning set forth in Section 3.1(h).
“Closing” means the closing of the purchase and sale of the Purchased Shares on the Closing Date pursuant to Section 2.1.
“Closing Date” means November 21, 2022 or such later Trading Day when all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all of the conditions set forth in Section 2.1, Section 2.2 and Article V are satisfied or waived, as the case may be, or such other date as the parties may agree.
“Commission” or “SEC” means the United States Securities and Exchange Commission.
“Common Shares” has the meaning set forth in the Recitals, and also includes any other class of securities into which the Common Shares may hereafter be reclassified or changed.
“Company’s Knowledge” means with respect to any statement made to the Company’s Knowledge, that the statement is based upon the actual knowledge of the Chief Executive Officer, Chief Financial Officer, the General Counsel or the Co-Chairs of the Board of Directors of the Company, after reasonable internal inquiry of the appropriate senior officers of the Company and its Subsidiaries having responsibility for the matter in question.
“Control” (including the terms “controlling”, “controlled by” or “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Doyle” means J. Patrick Doyle, the managing member and sole owner of Purchaser.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Fundamental Transaction” means any event pursuant to which: (a) the Company effects (i) any merger of the Company with (but not into) another Person, in which shareholders of the Company immediately prior to such transaction own less than a majority of the outstanding shares of the surviving entity; or (ii) any merger or consolidation of the Company into another Person; (b) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions; (c) any take-over bid, tender offer or exchange offer approved or authorized by the Board of Directors is completed pursuant to which holders of at least a majority of the outstanding Common Shares deposit (and have taken up), tender or exchange their shares for other securities, cash or property; or (d) the Company effects any reclassification of the Common Shares or any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property.
“GAAP” means U.S. generally accepted accounting principles, as applied by the Company.
“Lien” means any lien, charge, claim, mortgage, pledge, easement, encumbrance, security interest, right of first refusal, preemptive right or other restrictions of any kind.
“Material Adverse Effect” means a material adverse effect on the results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (a) effects caused by changes or circumstances affecting general market conditions in the U.S., Canada or other applicable economy or which are generally applicable to the industry or industries in which the Company and its Subsidiaries operate, provided that such effects are not borne disproportionately by the Company and its Subsidiaries; (b) effects caused by earthquakes, floods, hurricanes, wildfires or other large-scale natural disasters, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage or terrorism or military actions existing as of the date hereof; or (c) the impact of the ongoing COVID 19 pandemic including any measures implemented or recommended by governmental authorities in response thereto.
“Material Contract” means those contracts listed as exhibits in the Company’s SEC Reports.
“NYSE” means the New York Stock Exchange.
“Per Share Purchase Price” means $60.77.
“Permitted Liens” means (i) security interests granted in connection with, or as permitted by, those financing instruments described or otherwise disclosed in the SEC Reports or Canadian Filings; and (ii) security interests as would not reasonably be expected to have a Material Adverse Effect.
“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.
“Proceeding” means an Action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such rule.
“SEC Reports” has the meaning set forth in Section 3.1(g).
“Significant Subsidiary” shall mean any Subsidiary that as of the date of this Agreement would be deemed a “Significant Subsidiary” under Rule 405 promulgated under the Securities Act of 1933, as amended.
“Subsidiary” means any corporation, limited liability company, partnership, trust or other entity which is then in existence and which is, directly or indirectly, controlled by the Company, and shall, where applicable, include any such entity formed or acquired after the date hereof.
“Trading Day” means a day on which the Common Shares are listed or quoted and traded on NYSE.
“Trading Markets” means the NYSE and the TSX.
“Transaction Documents” means this Agreement, the Lock-Up Agreement and schedules and exhibits attached hereto and thereto.
“Transfer Agent” means Computershare Trust Company, N.A., the current transfer agent for the Common Shares, with a mailing address of 100 University Avenue, 8th Floor, Toronto, Ontario M5J 2Y1, and any successor transfer agent of the Company.
“TSX” means the Toronto Stock Exchange.
Article IInterpretation. In this Agreement, unless the express context otherwise requires: (a) the words “herein,” “hereof” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (b) references to the words “Article” or “Section” refer to the respective Articles and Sections of this Agreement, and references to “Exhibit” refer to the Exhibits annexed hereto; (c) references to a “party” mean a party to this Agreement and include references to such party’s permitted successors and permitted assigns; (d) references to a “third party” mean a Person not a party to this Agreement; (e) the terms “dollars” and “$” means U.S. dollars; and (f) wherever the word “include,” “includes” or “including” is used in this Agreement, it will be deemed to be followed by the words “without limitation.”
Article II
PURCHASE AND SALE
Section 1.1Closing.
(a)Subject to the terms and conditions set forth in this Agreement, at the Closing, the Company shall issue and sell to Purchaser, and Purchaser shall purchase from the Company, 500,000 Common Shares (the “Purchased Shares”), at the Per Share Purchase Price, for an aggregate purchase price of $30,385,000 (the “Purchase Price”).
(b)The Closing of the purchase and sale of the Purchased Shares shall take place on the Closing Date remotely by facsimile transmission or other electronic means as the parties may mutually agree.
(c)Except as may otherwise be agreed to between the Company and the Purchaser, on the Closing Date, the Purchaser shall wire the Purchase Price, in US Dollars and in immediately available funds, to a bank account designated in writing by the Company, and the Company shall irrevocably instruct the Transfer Agent to deliver the Purchased Shares to the Purchaser and provide evidence of the issuance of the Purchased Shares, free and clear of all restrictive and other legends (except as expressly provided in Section 4.1), and a book-entry statement evidencing the issuance of the Purchased Shares.
Section 1.2Closing Deliveries.
(a)On or prior to the Closing, the Company shall issue, deliver or cause to be delivered to the Purchaser the following (the “Company Deliverables”):
(i)the Compliance Certificate referred to in Section 5.1(g);
(ii)a certificate of the Corporate Secretary of the Company, in the form reasonably acceptable to the Purchaser, dated as of the Closing Date: (A) certifying the resolutions adopted by the Board of Directors or a duly authorized committee thereof approving
the transactions contemplated by this Agreement and the issuance of the Purchased Shares; (B) certifying the current versions of the articles of incorporation, as amended, and bylaws, as amended, of the Company; and (C) certifying as to the signatures and authority of Persons or parties signing the Transaction Documents and related documents on behalf of the Company, together with a certificate of status evidencing that the Company is formed under the laws of the Canada and not dissolved as of a date reasonably prior to the Closing Date;
(iii)a copy of the executed irrevocable instruction letter to the Transfer Agent to deliver the Purchased Shares to the Purchaser; and
(iv)the Company shall have obtained all governmental, regulatory or third-party consents and approvals necessary for the sale of the Purchased Shares.
(d)On or prior to the Closing, the Purchaser shall issue, deliver or cause to be delivered to the Company an executed Lock-Up Agreement (the “Lock-Up Agreement”) substantially in the form set forth on Schedule A hereto.
Article III
REPRESENTATIONS AND WARRANTIES
Section 1.1Representations and Warranties of the Company. Except as disclosed in the attached schedules, the SEC Reports or the Canadian Filings, the Company hereby represents and warrants, as of the date hereof and the Closing Date (except for the representations and warranties that speak as of a specific date, which shall be made as of such date), to the Purchaser as follows:
(a)Organization and Qualification. The Company is a corporation existing under the laws of Canada, is current, in all material respects, with all filings required to be made under its incorporating statute, and has the corporate power and capacity to own, lease and operate its properties and to conduct its business as is now carried on by it or proposed to be carried on by it, in each case, as described in the SEC Reports and the Canadian Filings, and to enter into, deliver and perform its obligations under this Agreement, and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required. Except as described in the SEC Reports and the Canadian Filings, there exist no options, warrants, purchase rights, or other contracts or commitments that could require the Company to sell, transfer or otherwise dispose of any capital stock, partnership interests or membership interests of itself or any Significant Subsidiary other than to another Subsidiary of the Company (subject to the enforcement of any Permitted Lien). No act or proceeding has been taken by or, to the Company’s Knowledge, against any Significant Subsidiary in connection with the liquidation, winding-up or bankruptcy of any Significant Subsidiary.
(b)Authorization; Enforcement; Validity. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The Company’s execution and delivery of each of the Transaction Documents to which it is a party and the consummation by it of the transactions contemplated hereby and thereby (including, but not limited to, the sale and delivery of the Purchased Shares) have been duly authorized by all necessary corporate action on the part of the Company, and no further corporate action is required in connection therewith. Each of the Transaction Documents to which it is a party has been (or upon delivery will have been) duly executed by the Company and is, or when delivered in accordance with the terms hereof, will constitute the legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms (assuming the due authorization, execution and delivery thereof by the Purchaser), except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(c)No Conflicts. The execution, delivery and performance by the Company of the Transaction Documents to which it is a party and the consummation by the Company of the transactions contemplated hereby or thereby (including, without limitation, the issuance of the Purchased Shares) do not and will not (i) conflict with or violate any provisions of the Company’s articles of incorporation or bylaws, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would result in a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Significant Subsidiary or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material Contract, or (iii) subject to obtaining the consents, waivers, approvals, authorizations or orders of, and the giving of the notices to, and the filings and registrations with, the governmental authorities or Trading Markets as referred to in Section 3.1(d), conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority or Trading Market to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations and the rules and regulations, assuming the correctness of the representations and warranties made by the Purchaser herein, of any self-regulatory organization to which the Company or its securities are subject, including all applicable Trading Markets), or by which any property or asset of the Company is bound or affected, except in the case of clauses (ii) and (iii) such as would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect or a Material Adverse Effect on the legality, validity or enforceability of any Transaction Document or the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document.
(d)Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, approval, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, holder of outstanding securities of the Company or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents (including the issuance of the Purchased Shares), other than (i) filings required by applicable Canadian and United States state or provincial/territorial securities laws, (ii) the filing of any requisite notices and/or application(s) to the NYSE and the TSX for the issuance and sale of the Purchased Shares and the listing of the Purchased Shares for trading or quotation, as the case may be, thereon in the time and manner required thereby (including as contemplated in Section 4.5 of this Agreement), and receipt of conditional approval therefor from the TSX in connection therewith, and (iii) those that have been made or obtained prior to the date of this Agreement.
(e)Issuance of the Shares. The Purchased Shares have been duly authorized and, when issued and paid for in accordance with the terms of the Transaction Documents, will be duly and validly issued, fully paid and non-assessable and free and clear of all Liens, other than restrictions on transfer provided for in the Transaction Documents or imposed by applicable securities laws, and shall not be subject to preemptive or similar rights of shareholders. Assuming the accuracy of the representations and warranties of the Purchaser in this Agreement, the Purchased Shares will be issued in compliance with all applicable Canadian and United States federal, provincial and state securities laws and Trading Market rules.
(f)Capitalization. The capitalization of the Company is as described in its most recently filed SEC Report on Form 10-Q, except for: (i) issuances of Purchased Shares pursuant to this Agreement, issuances of options and restricted stock units to Purchaser, stock option exercises, restricted stock unit delivery, issuances pursuant to equity incentive plans or exercises of warrants, or issuances of warrants; and (ii) repurchases by the Company pursuant to its normal course issuer bid. The Company has not issued any capital stock since the date of its most recently filed SEC Report other than to reflect (i) restricted stock unit delivery and issuances of restricted stock units that do not, individually or in the aggregate, have a material effect on the issued and outstanding capital stock, options and other securities of the Company and (ii) issuances of options and restricted stock units to Purchaser. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. The issuance and sale of the Purchased Shares will not obligate the Company to issue Common Shares or other securities to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities.
(g)SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the 12 months preceding the date hereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis pursuant to the filing requirements for such SEC Reports, except where the failure to file on a timely basis would not have or reasonably be expected to result in a Material Adverse Effect and would not have or reasonably be expected to result in any limitation or prohibition on the Purchaser’s ability to use Rule 144 to resell any Purchased Shares. As of their respective filing dates, or to the extent corrected by a subsequent amendment, the SEC Reports complied in all material respects with the applicable requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h)Canadian Filings. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under applicable Canadian securities laws for the 12 months preceding the date hereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “Canadian Filings”) on a timely basis pursuant to the filing requirements for such Canadian Filings, except where the failure to file on a timely basis would not have or reasonably be expected to result in a Material Adverse Effect. As of their respective filing dates, or to the extent corrected by a subsequent amendment, the Canadian Filings complied in all material respects with the requirements of applicable Canadian securities laws, and none of the Canadian Filings, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i)Financial Statements.
(i)The consolidated financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing (or to the extent corrected by a subsequent amendment). Such consolidated financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods
involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial year-end audit adjustments.
(ii)There is no transaction, arrangement, or other relationship between the Company, any Subsidiary and an unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in the SEC Reports and is not so disclosed and would have or reasonably be expected to result in a Material Adverse Effect.
(j)Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as set forth in the SEC Reports, there has been no event, occurrence or development, other than those contemplated by this Agreement or the other arrangements between Doyle and the Company that has had or that would reasonably be expected to result in a Material Adverse Effect. Except for the issuance of the Common Shares contemplated by this Agreement or the other arrangements between Doyle and the Company, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(k)Litigation. There is no Action which adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Purchased Shares.
(l)Internal Accounting Controls. The Company maintains a system of internal controls over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) 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 GAAP and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any differences.
(m)Disclosure Controls. The Company has established disclosure controls and procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act) for the Company and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports 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. The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by the Company’s most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the Company’s internal control over financial
reporting (as such term is defined in the Exchange Act) that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
(n)Certain Fees. No Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company or the Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Company with respect to the offer and sale of the Purchased Shares. The Purchaser shall have no obligation with respect to any fees or with respect to any claim made by or on behalf of other Persons for fees of a type contemplated in this paragraph (m) pursuant to any agreement to which the Company is a party that may be due in connection with the transactions contemplated by the Transaction Documents.
(o)Private Placement. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2 of this Agreement, no registration under the Securities Act, and no prospectus under applicable Canadian securities laws, is required for the offer and sale of the Purchased Shares by the Company to the Purchaser under the Transaction Documents. The issuance and sale of the Purchased Shares does not contravene the rules and regulations of the Trading Markets.
(p)No General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Common Shares by any form of general solicitation or general advertising. The Company has offered the Common Shares for sale only to the Purchaser.
(q)Listing and Maintenance Requirements. The Common Shares are registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to terminate the registration of the Common Shares under the Exchange Act, nor has the Company received any notification that the Commission is contemplating terminating such registration. The Company is in compliance in all material respects with all listing and maintenance requirements of the NYSE and the TSX on the date hereof, and has not received any notice of noncompliance from the NYSE or the TSX that has not been disclosed in the SEC Reports. The Common Shares are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation.
(r)Foreign Corrupt Practices. Neither the Company nor any of the Significant Subsidiaries, nor to the Company’s Knowledge, any agent or other Person acting on behalf of the Company or any of its Subsidiaries, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Significant Subsidiary (or made by any Person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the United States Foreign Corrupt Practices Act of 1977, as amended.
(s)OFAC Status. Neither the Company nor any of its Subsidiaries is and, to the Company’s Knowledge, no director, officer, agent, employee, Affiliate or Person acting on behalf of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the sale of the Purchased Shares, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other Person or entity, towards any sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or any
other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to any U.S. sanctions administered by OFAC.
(t)Transfer Agent. The Transfer Agent at its offices in Toronto, Ontario has been duly appointed as the registrar and the Transfer Agent for the Common Shares.
Section 1.1Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants, as of the date hereof and as of the Closing Date, to the Company as follows:
(u)Organization; Authority. The Purchaser is an entity duly organized, validly existing and in good standing under the laws of the State of Delaware. Doyle is the sole member of the Purchaser and holds all voting power and dispositive power with respect to any assets held by the Purchaser. The Purchaser has the requisite limited liability corporate power and authority to enter into and to consummate the transactions contemplated by the applicable Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement by the Purchaser and performance by the Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary limited liability company action. Each Transaction Document to which the Purchaser is a party has been duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Purchaser, enforceable against it in accordance with its terms (assuming the due authorization, execution and delivery thereof by the Company), except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application. The Purchaser does not currently have operations in Canada. The Purchaser has negotiated the terms of, and executed, this Agreement outside of Canada.
(e)No Conflicts. The execution, delivery and performance by the Purchaser of this Agreement and the consummation by the Purchaser of the transactions contemplated hereby and thereby, will not: (i) result in a violation of the organizational documents of the Purchaser, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Purchaser is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Purchaser, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the ability of the Purchaser to perform its obligations hereunder.
(f)Investment Intent. The Purchaser understands that the Purchased Shares are: (i) “restricted securities” within the meaning of Rule 144 and have not been registered under the Securities Act or any applicable state securities law; and (ii) not qualified for distribution in any Canadian province or territory and is acquiring the Purchased Shares as principal for its own account and not with a view to, or for distributing or reselling such shares or any part thereof in violation of the Securities Act or any applicable Canadian or state securities laws. The Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any distribution of any of the Purchased Shares to or through any Person. There is no Person acting or purporting to act on behalf of the Purchaser in connection with the transactions contemplated herein who is entitled to any brokerage or finder’s fee.
(g)Purchaser Status. At the time the Purchaser was offered the Purchased Shares, it was, and at the date hereof it is: (i) an “accredited investor” as defined in Rule 501(a) under the Securities Act; and (ii) not an “insider” of the Company (within the meaning of applicable Canadian securities laws). The Purchaser represents that the Purchaser has exercised reasonable care to determine the accuracy of the representation made by the Purchaser in this Section 3.2(d) and agrees to notify the Company if the Purchaser becomes aware of any fact arising prior to the Closing that makes the representation given by the Purchaser in this Section 3.2(d) inaccurate.
(h)General Solicitation. The Purchaser is not purchasing the Purchased Shares as a result of any advertisement, article, notice or other communication regarding the Common Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general advertisement.
(i)Experience of Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Purchased Shares, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the Purchased Shares and, at the present time, is able to afford a complete loss of such investment.
(j)Access to Information. The Purchaser acknowledges that it has been afforded the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Purchased Shares. Neither such inquiries nor any other investigation conducted by or on behalf of the Purchaser or its representatives or counsel shall modify, amend or affect such Purchaser’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained in the Transaction Documents. The Purchaser acknowledges that it has not been provided with a prospectus, an offering memorandum or any other document in connection with its purchase of the Purchased Shares and the decision to purchase the Purchased Shares and execute this Agreement has not been based upon any verbal or written representation made by or on behalf of the Company (except for the representations and warranties of the Company set forth in the Transaction Documents) or any employee or agent of the Company and has been based entirely upon this Agreement and information contained in the SEC Reports and Canadian Filings.
(k)Independent Investment Decision. The Purchaser has independently evaluated the merits of its decision to purchase the Purchased Shares pursuant to the Transaction Documents. The Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Purchaser in connection with the purchase of the Purchased Shares constitutes legal, tax or investment advice. The Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Purchased Shares.
(l)Reliance on Exemptions. The Purchaser understands that the Purchased Shares are being offered and sold to it in reliance on specific exemptions from the prospectus and registration requirements of Canadian and United States federal, provincial and state securities laws, and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Purchased Shares.
(m)No Governmental Review. The Purchaser understands that no Canadian or United States federal, provincial or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Purchased Shares or the fairness or suitability of the investment in the Purchased Shares nor have such authorities passed upon or endorsed the merits of the offering of the Purchased Shares.
(n)Dealer Registration. The Purchaser is not engaged in the business of trading in securities or exchange contracts as a principal or agent and does not hold itself out as engaging in the business of trading in securities or exchange contracts as a principal or agent, or is otherwise exempt from any requirements to be registered as a dealer under National Instrument 31-103 – Registration Requirements, Exemptions and Ongoing Registrant Obligations.
(o)PCMLTFA. To the knowledge of the Purchaser, the funds representing the Purchase Price advanced by the Purchaser (or on behalf of the Purchaser) are not proceeds of crime as defined in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”). To the best of the Purchaser’s knowledge, none of the purchase funds to be provided by the Purchaser (i) have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada or any other applicable jurisdiction, or (ii) are being tendered on behalf of a Person or entity (A) with whom the Company would be prohibited from dealing with under applicable money laundering, terrorist financing, economic sanctions, criminal or other similar laws or regulations or (B) who has not been identified to the Purchaser. The Purchaser acknowledges that the Company may in the future be required to disclose the Purchaser’s name and other information relating to this Agreement and the Purchaser’s purchase hereunder on a confidential basis pursuant to the PCMLTFA or similar laws or regulations, and the Company shall notify the Purchaser if the Company is required to provide such information concerning the Purchaser. The Purchaser shall promptly notify the Company if the Purchaser discovers that the representations set forth in this Section 3.2(l) ceases to be true, and to provide the Company with appropriate information in connection with any such change.
Article IV
OTHER AGREEMENTS OF THE PARTIES
Section 1.2Transfer Restrictions. Notwithstanding any other provision of this Article IV, the Purchaser understands that the Purchased Shares may be disposed of only: (i) pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable state and federal securities laws; or (ii) in compliance with the requirements of applicable Canadian securities laws.
Section 1.3Furnishing of Information. In order to enable the Purchaser to sell the Purchased Shares under Rule 144 (once Rule 144 becomes available for the resale of securities of the Company), until the earlier of (i) the date that the Purchaser is no longer an Affiliate of the Company and has not been an Affiliate of the Company for more than three months and the information requirements of Rule 144(c) no longer apply to sales by Purchaser made in reliance upon Rule 144, or (ii) a Fundamental Transaction pursuant to which the Company is no longer a reporting company under the Exchange Act, the Company shall use its commercially reasonable efforts to timely file pursuant to the applicable filing requirements (or obtain extensions in respect thereof and file within the applicable grace period) all SEC Reports required to be filed by the Company after the date hereof pursuant to the Exchange Act.
Section 1.4Securities Laws Disclosure; Publicity. On or before 9:30 a.m., New York City time, on the Business Day immediately following the date hereof, the Company shall issue a press release or file a Form 8-K (the “Transaction Public Disclosure”) reasonably acceptable to the Purchaser disclosing all material terms of the transactions contemplated hereby and the other arrangements being entered into between the Company and Doyle in his role as Executive Officer.
Section 1.5Use of Proceeds. The Company intends to use the net proceeds of the offering for general corporate purposes.
Section 1.6Listing of Shares. In the time and manner required by the NYSE and the TSX, the Company shall prepare and file with the TSX and NYSE any required notice or listing application covering the Purchased Shares and shall take all commercially reasonable steps necessary to cause all of the Purchased Shares to be approved for listing on the NYSE and the TSX as promptly as possible thereafter.
Section 1.7Blue Sky. The Company, on or before the Closing Date, shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Purchased Shares for sale to the Purchaser at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from such qualification) and shall provide evidence of such actions promptly upon the written request of the Purchaser. Assuming that the representations made by the Purchaser in this Agreement are correct, no filing is required in any province of Canada under applicable securities laws in connection with the execution of this Agreement and the transactions contemplated hereby other than a post-closing trade report under applicable Canadian securities laws.
Section 1.8Confidentiality After the Date Hereof. The Purchaser shall not engage, directly or indirectly, in any transactions in the Company’s securities (other than pursuant to the Transaction Documents or other agreements entered into between Doyle and the Company) during the period from the date hereof until the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.3.
Article V
CONDITIONS PRECEDENT TO CLOSING
Section 1.1Conditions Precedent to the Obligations of the Purchaser to Purchase Shares. The obligation of the Purchaser to acquire the Purchased Shares at the Closing is subject to the fulfillment to the Purchaser’s satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by the Purchaser:
(a)The representations and warranties of the Company contained herein shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date when made and as of the Closing Date, as though made on and as of such date, except for such representations and warranties that speak as of a specific date.
(b)The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by it at or prior to the Closing.
(c)No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction in respect of the Company that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(d)The Company shall have obtained in a timely fashion any and all consents, permits, approvals, registrations, and waivers that are necessary for consummation of the purchase and sale of the Purchased Shares at the Closing, all of which shall be and remain so long as necessary in full force and effect.
(e)The Common Shares (i) shall be conditionally approved for listing on the TSX and the NYSE and (ii) shall not have been suspended, as of the Closing Date, by the Commission, a securities commission or other securities regulatory authority of a jurisdiction of Canada, the TSX or the NYSE from trading on the TSX or the NYSE, nor shall suspension by the Commission, a securities commission or other securities regulatory authority of a jurisdiction of Canada, the TSX or the NYSE have been threatened, as of the Closing Date.
(f)The Company shall have delivered the Company Deliverables in accordance with Section 2.2(a).
(g)The Company shall have delivered to the Purchaser a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or its Chief Financial Officer, certifying to the fulfillment of the conditions specified in Sections 5.1(a), (b) and (e)(i) and, to such officers’ knowledge, the conditions specified in Section 5.1(c), (d), and (e)(ii) (the “Compliance Certificate”).
Section 1.2Conditions Precedent to the Obligations of the Company to sell Shares. The Company’s obligation to sell and issue the Purchased Shares at the Closing to the Purchaser is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any of which may be waived by the Company:
(h)The representations and warranties made by the Purchaser in Section 3.2 hereof shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date when made, and as of the Closing Date as though made on and as of such date, except for representations and warranties that speak as of a specific date.
(i)The Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Purchaser at or prior to the Closing Date.
(j)No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction in respect of the Purchaser that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(k)The Purchaser shall have obtained in a timely fashion any and all consents, permits, approvals, registrations, and waivers that are necessary for consummation of the purchase and sale of the Purchased Shares at the Closing, all of which shall be and remain so long as necessary in full force and effect.
(l)The Purchaser shall have delivered the Purchaser Deliverables in accordance with Section 2.2(b).
Article VI
MISCELLANEOUS
Section 1.1Fees and Expenses. Except as otherwise agreed by the parties in writing, each of the Company and the Purchaser shall pay the fees and expenses of their respective advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party in connection with the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with the sale and issuance of the Purchased Shares to the Purchaser. The Purchaser shall be responsible for all other tax liability that may arise as a result of holding or transferring the Purchased Shares purchased by it.
Section 1.2Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, discussions and representations, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. At or after the Closing, and without further consideration, the Company and the Purchaser will execute and deliver to the other such further documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents.
Section 1.3Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective: (i) if mailed by certified mail, return receipt requested, postage prepaid and properly addressed to the address below, then three (3) Business Days after mailing; or (ii) if mailed by Federal Express, UPS or other overnight courier service that is nationally recognized in the United States or Canada, next business morning delivery, then one (1) Business Day after deposit of same in a regularly maintained receptacle of such overnight courier; or (iii) if hand delivered, then upon hand delivery thereof to the address indicated on or prior to 5:00 p.m., New York time, on a Business Day. Any notice hand delivered after 5:00 p.m., New York time, shall be deemed delivered on the following Business Day. Notwithstanding the foregoing, notice, consents, waivers or other communications referred to in this Agreement may be sent by facsimile, e-mail, or other method of delivery, but shall be deemed to have been delivered only when the sending party has confirmed (by reply e-mail or some other form of written confirmation from the receiving party) that the notice has been received by the other party.
The address for such notices and communications shall be as follows:
If to the Company: Restaurant Brands International
130 King Street West, Suite 300
Toronto, Ontario
Canada M5X 1E1
Attention: Jill Granat, General Counsel
Telephone No.:
Email: granatj@rbi.com
If to the Purchaser: To the last address provided by the Purchaser in writing to the Company.
With a copy to (which shall not constitute notice):
Andrea Rattner, Esq.
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036-8299
(212) 969-3812
arattner@proskauer.com
or such other address as may be designated in writing hereafter, in the same manner, by such Person.
Section 1.4Amendments; Waivers; No Additional Consideration. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.
Section 1.5Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement or any of the Transaction Documents.
Section 1.6Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties and their successors and permitted assigns. This Agreement, or any rights or obligations hereunder, may not be assigned by the Company without the written consent of the Purchaser except to a successor in the event of a Fundamental Transaction. The Purchaser may assign its rights hereunder in whole or in part to any Person to whom the Purchaser assigns or transfers any Purchased Shares in compliance with the Transaction Documents and applicable law, provided that such transferee shall agree in writing to be bound, with respect to the transferred Purchased Shares, by the terms and conditions of this Agreement that apply to the “Purchaser”.
Section 1.7No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
Section 1.8Survival. Subject to applicable statute of limitations, the representations, warranties agreements and covenants contained herein shall survive the Closing and the delivery of the Purchased Shares and continue in full force and effect for a period of one year notwithstanding any subsequent disposition or exchange of the Purchased Shares.
Section 1.9Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that
any signature is delivered by facsimile transmission, or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof.
Section 1.10Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
Section 1.11Replacement of Shares. If any certificate or instrument evidencing any Purchased Shares is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company and the Transfer Agent of such loss, theft or destruction and the execution by the holder thereof of a customary lost certificate affidavit of that fact and an agreement to indemnify and hold harmless the Company and the Transfer Agent for any losses in connection therewith or, if required by the Transfer Agent, a bond in such form and amount as is required by the Transfer Agent. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Purchased Shares. If a replacement certificate or instrument evidencing any Purchased Shares is requested due to a mutilation thereof, the Company may require delivery of such mutilated certificate or instrument as a condition precedent to any issuance of a replacement.
Section 1.12Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agree to waive in any Action for specific performance of any such obligation (other than in connection with any Action for a temporary restraining order) the defense that a remedy at law would be adequate.
Section 1.13Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida, without regard to the principles of conflicts of law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective Affiliates, employees or agents) shall be commenced exclusively in the federal courts of the Eleventh Circuit located in Miami Dade County Florida. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Miami-Dade County, Florida (each a “Florida Court”) for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such Florida Court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
COMPANY:
RESTAURANT BRANDS INTERNATIONAL INC.
By: /s/ Jose E. Cil
Name: Jose E. Cil
Title: Chief Executive Officer
PURCHASER:
LODGEPOLE 231 LLC
By: J. Patrick Doyle, Sole Investment Manager
By: /s/ J. Patrick Doyle
Name: J. Patrick Doyle
Title: Sole Investment Manager
ACTIVE 683043365v11
9986/80663-001 CURRENT/134231940v12
Execution Version
OFFER LETTER
November 15, 2022
Personal & Confidential
J. Patrick Doyle
c/o Restaurant Brands International US Services LLC
Dear Patrick:
I am pleased to confirm our offer of employment to you and would like to take this opportunity to congratulate you on this appointment. I am confident that you will make a valuable contribution to the business.
The following terms and conditions will apply to your employment with Restaurant Brands International US Services LLC (the “Company”), subject to our receipt of a signed copy of this offer letter (the “Offer Letter”). By signing this Offer Letter, you acknowledge and accept all the provisions below, and you acknowledge that, other than as set forth in this Offer Letter, no representations or warranties regarding your employment have been made to you.
1.Commencement. Your employment with the Company under the terms and conditions of this Offer Letter will be effective on November 16, 2022 (the “Commencement Date”), provided that a countersigned copy of this Offer Letter is returned to the Company within the Acceptance Period (as defined below). Additionally, subject to approval by the Board of Directors of Restaurant Brands International Inc. (“RBI”), you will be appointed to the RBI Board of Directors, effective no later than January 31, 2023, in the role of Executive Chairman.
2.Position. Effective on the Commencement Date and during your employment with the Company, your job titles will be Executive Chairman of RBI and Executive Chairman of the Company, and you shall have such duties and responsibilities as are customarily assigned to persons serving in such positions and such other duties consistent with your titles and positions as the Company specifies from time to time. You will report solely to the Board of Directors of RBI.
3.Location. Your position will be based in Miami, Florida. However, you may be required to travel in and outside of Miami, Florida as the needs of the Company’s business dictate.
4.Compensation. In consideration of your employment and the covenants included in Section 8 herein you will be compensated as follows:
(a)Base Salary. You will not be paid a base salary (“Base Salary”).
(b)Annual Bonus Plan. You will not be eligible to participate in the Company’s annual bonus plan or any other bonus programs which may be adopted and maintained for employees of the Company.
(c)Long Term Incentive Compensation. Subject to you and/or one or more of your Permitted Transferees (as the term is defined in that certain Stock Purchase Agreement by and between RBI and you, dated as of November 15, 2022 (the “SPA”)) having acquired and continuing to maintain ownership of no less than 500,000 shares of common stock of RBI in accordance with the terms and conditions of the equity award agreements described below in this Section 4(c), the Company will cause RBI, and RBI agrees pursuant to the RBI Joinder
attached hereto, to grant you the following equity awards, each award to be granted on the third (3rd) business day following the announcement of your appointment as Executive Chairman of RBI (which announcement shall be made prior to or on the Commencement Date), which date may be extended as reasonable solely to accommodate any applicable trading window restrictions (the date of the grant being the “Grant Date”):
(i)an award of options to purchase 2,000,000 shares of common stock of RBI (collectively, the “Options” and individually, an “Option”), each Option having an exercise price equal to the fair market value on the Grant Date (as determined in accordance with the RBI Amended and Restated 2014 Omnibus Incentive Plan (the “Equity Plan”)). The Options will be evidenced by an award agreement in the form attached and made a part hereof as Exhibit A and will vest in accordance with the vesting schedule set forth therein.
(ii)an award of 500,000 restricted share units under the Equity Plan, each representing the right when vested to receive one share of common stock of the RBI (collectively, the “RSUs” and individually, an “RSU”). The RSUs will be evidenced by an award agreement in the form attached and made a part hereof as Exhibit B and will vest in accordance with the vesting schedule set forth therein. In the event the number of Related Shares you purchase are less than 500,000 shares of common stock of RBI, your total number of RSUs will adjust on a 1:1 basis and will equal the number of Related Shares you purchased.
(iii)an award of 750,000 performance-based restricted share units under the Equity Plan, each representing the right when vested to receive one share of common stock of RBI (collectively, the “PSUs” and individually, a “PSU”). The PSUs will be evidenced by an award agreement in the form attached and made a part hereof as Exhibit C and will vest in accordance with the vesting schedule set forth therein. In the event the number of Related Shares you purchase are less than 500,000 shares of common stock of RBI, your total number of PSUs will adjust on a 1:1.5 basis and will equal the number of Related Shares you purchased multiplied by 1.5.
(d) Adjustment for Corporate Event. During the period between the signing of this Offer Letter and the date of the grant of the Options, RSUs and PSUs, the Options, RSUs and PSUs shall be adjusted in an appropriate and equitable manner in the event of a Corporate Event described in the Equity Plan, to prevent dilution or enlargement of such awards in accordance with the methodology under the adjustment terms set forth in the Equity Plan.
(e)Any failure to grant any of the equity awards as set forth in this Section 4(c) shall result in the expiration of the forfeiture periods with regard to the Related Shares that are set forth in the equity award agreements attached to this Offer Letter as Exhibits A, B and C.
5.Employee Benefits. Based on the amount of time you and the Company anticipate that you will spend performing the duties of your position, you are not eligible to participate in the employee medical and other health care benefit plans and programs maintained by the Company from time to time for employees at your level.
6.Business Expenses. The Company will reimburse you for reasonable business expenses actually incurred by you during your employment or other service with the Company in the performance of your duties and responsibilities hereunder, but only to the extent and in the manner provided by the Company’s business expense reimbursement policy, as in effect from time to time. All reimbursements made pursuant to this Paragraph 6 shall be made subject to Paragraph 11(b) of this Offer Letter.
7.Termination. Your employment with the Company is on an “at will” basis and may be terminated by the Company or by you at any time for any reason upon written notice, without any obligation owing by the Company, except as provided herein and except as provided in the equity award
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agreements described in Section 4(c) of this Offer Letter. In the event of a termination of your employment, you shall not be eligible to participate in or receive any severance payments or other post-termination payments pursuant to this Offer Letter, whether pursuant to a severance plan that may be maintained by the Company, or otherwise, except (i) approved unreimbursed business expenses that are owed to you as of the date of your termination (which shall be timely paid to you); or (ii) as set forth in award agreements described in Section 4(c) of this Offer Letter. You will not be eligible to participate in or receive any severance payments, whether pursuant to a severance plan that may be maintained by the Company, or otherwise.
8.Employee Covenants.
(a)Restrictive Covenants. You acknowledge that you 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 you to compete unfairly with, the Company and its Affiliates. In addition, you recognize that you 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. You agree that you could cause grave harm to the Company and its Affiliates if you, 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 your 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:
i.Confidentiality. You agree that during your employment with the Company (the “Employment Period”) and thereafter, you will not, directly or indirectly (A) disclose any Confidential Information to any Person (other than, only with respect to the period that you are 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 your 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 your obligations to hold such Confidential Information confidential). The parties agree and understand that this Offer Letter will be publicly disclosed and that there is no duty to treat any portion of this Offer Letter so disclosed as confidential. Further, nothing in this provision is intended to prevent you from providing truthful testimony in any court, administrative agency and/or arbitration proceeding, including your right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the Company, or on the part of the agents or employees of the Company, when you have been required or requested to attend such a proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature or disclosing relevant documents and information in confidence to any attorney, financial advisor, or tax preparer retained
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by either yourself for the purpose of securing professional legal, financial or tax advice, in each case, who need to know such information and have agreed to keep such information confidential.
If you are required or requested by a court or governmental agency to disclose Confidential Information, you must notify the General Counsel of the Company, in writing, of such disclosure obligation or request no later than three (3) business days after you learn of such obligation or request, and permit the Company to take all lawful steps it deems appropriate to prevent or limit the required disclosure.
ii.Non-Competition. The Company and you agree that although you will use your best commercial efforts to devote your skill, knowledge and business time to the conscientious and good faith performance of your duties and responsibilities during the Employment Period, you may also (x) be employed by, render services for, engage in business with and serve as an agent or consultant on a part-time basis to another Person or Persons other than the Company and Affiliates and (y) engage in the following activities during the Employment Period and thereafter, subject in each case of (x) and/or (y) to the restrictions against your involvement in Competitive Activities set forth below in this Section 8(a)(ii) and the following restrictions, and provided that you spend more time actively contributing in your role with the Company than on any other business project for a period of two (2) years following the Commencement Date:
(A)you may continue to serve as independent Chair of the Board of Directors of Best Buy Co., Inc., provided, however, that during the period of such service, you will not serve as chairman of the board of directors of any other public company;
(B)while serving as a member of the Board of Directors of RBI, you are permitted to serve on the board of directors of other public companies except if such service would cause you to be considered “overboarded” by the proxy advisory firms ISS or Glass Lewis;
(C)you may continue to make private investments and only in connection therewith may serve on the board of directors of any such companies that are not public companies, and you may also serve on the board of any schools, religious, political or charitable organizations;
(D)you may not serve as the chief executive officer of another company during your Employment Period except on an emergency, interim basis, for a private company in which you are invested, so long as the duration of such service does not exceed six (6) months;
(E)you may hold interests in, or engage in any type of activity, for an entity engaged in the private equity business which engages in the Restricted Business, provided that, the Restricted Business comprises less than ten percent (10%) of the investments or assets under management of such private equity business, and you do not provide services to, and you are not otherwise involved in the Restricted Business or oversight thereof (collectively, “Permitted PE Activities”); and
(F)each of the foregoing activities in (B), (C), (D) and (E) above is subject to the Company’s prior written confirmation (following notice from you to the Company) that the proposed activity will not adversely impact the reputation or business of RBI or any of its Affiliates, which written confirmation shall not be unreasonably delayed. Any such determination will be made by the Company in its reasonable good faith discretion.
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Additionally, you agree that during the Employment Period or other period of your service with the Company and for the eighteen (18) month period following the termination of your employment or other service with the Company (irrespective of the cause or manner of termination), you will 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 anywhere in the world, and you 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 that engages in a Restricted Business, including any franchisee of the Company or any if its Affiliates (collectively, the “Competitive Activities”), provided that you shall be permitted to: (i) hold a two percent (2%) or less interest in the equity or debt securities of any publicly traded company; (ii) hold up to a three percent (3%) interest in any such company in which you are invested as of the date of this Offer Letter; and (iii) engage in Permitted PE Activities. Your duties and responsibilities involve, and/or will affect, the strategy, operation and management of the Company on a worldwide basis. You will obtain Confidential Information that will affect the Company’s operations and that of its Affiliates throughout the world. Accordingly, you acknowledge that the Company has legitimate business interests in requiring a worldwide geographic scope and application of this non-compete provision, and agree that this non-compete provision applies on a worldwide basis.
iii.Non-Solicitation. During the Employment Period or other period of your service with the Company and for the two (2) year period following the termination of your employment or other service with the Company (irrespective of the cause or manner of termination), you shall not, directly or indirectly, by yourself or through any third party, whether on your 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 involves Competitive Activities with any Person that is or was (during the last twelve (12) months of your 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, or (C) a franchisee of the Company or any of its Affiliates. Notwithstanding the foregoing, you shall not be restricted from (A) making any general or public solicitation for employment that is not specifically directed at any employee or service provider, or (B) soliciting or hiring any employee or service provider who has ceased employment with the Company or any of its Affiliates (without violation of the foregoing restrictions) for a period of at least nine (9) months.
iv.Franchisee Activities. In addition to, and not by way of limitation of, any of the covenants set forth elsewhere herein, you agree that, during the Employment Period or other period of your service with the Company and for the five (5) year period following the termination of your employment or other service with the Company (irrespective of the cause or manner of termination), you will not, whether on your 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
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layer of negotiations between the Company or any of its Affiliates and their respective franchisees/operators.
(b)Work Product. To the extent permitted by law, you agree that all inventions, discoveries, processes, reports, plans, projections, budgets, software, data, technology, designs, documentation, innovations, and improvements and other work product created, discovered, developed, compiled, or prepared by you (whether created solely or jointly with others) in connection with your employment with the Company (collectively, “Work Product”) 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) for, and shall be and is the sole and exclusive property of, the Company. In the event that any such Work Product is deemed not to be “work made for hire” or does not vest by operation of law as the sole and exclusive property of the Company, you hereby irrevocably assign, transfer and convey to the Company, exclusively and perpetually, all right, title and interest which you may have or acquire in and to such Work Product throughout the world. 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 you shall not have the right to use any such materials, other than within the legitimate scope and purpose of your employment with the Company. You 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 any Work Product and any industrial or intellectual property rights therein (including full cooperation in support of any Company applications for patents and copyright or trademark registrations). Additionally, you agree that you will not share with or disclose to any third party any underlying technology and/or code used to develop the Work Product. Further, you agree that you will not use in any of the Work Product any pre-existing development tools, routines, subroutines or other programs, data or materials that you may have created or learned prior to the commencement of your provision of services to the Company.
(c)Compliance with Company Policies. During the Employment Period, you shall be governed by and be subject to, and you hereby agree to comply with, all Company policies, procedures, rules and regulations applicable to employees generally or to employees at your grade level, including without limitation, the RBI 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”).
(d)Return of Company Property. In the event of termination of your employment for any reason, you shall return to the Company all of the property of the Company and its Affiliates, including without limitation all materials or documents containing or pertaining to Confidential Information. You agree not to retain any copies, duplicates, reproductions or excerpts of material or documents. You acknowledge and agree that any and all Company Property (as defined below) remains the exclusive property of the Company and its Affiliates. Upon Company’s request or in the event of termination of your employment for any reason, you shall promptly return to the Company all Company Property, and you shall (i) not retain, in any format, any Company Property; and (ii) refrain from allowing or otherwise permitting any Company Property to be taken from Company or any of its Affiliates. All physical materials, documents, data, information, keys, computer software and hardware (including, without limitation, laptop computers and mobile devices), manuals, data bases, product samples, tapes, magnetic media, technical notes, and any other equipment or items that the Company or any Affiliate provides to you or that otherwise belongs to the Company or an Affiliate, in each case, shall constitute “Company Property” (to include the original of such items, any copies thereof, any notes derived from such items, and any derivative work of such items). Notwithstanding anything herein to the contrary, you may retain (i) copies of your contacts in your emails or electronic or paper records, and (ii) your personal, financial, tax and accounting records, including those
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pertaining to your employment with the Company, so long as such records do not contain Confidential Information of the Company.
(e)Resignation upon Termination. Except as otherwise agreed to between the parties hereto, effective as of the date of termination of your employment with the Company for any reason, you shall resign, in writing, from all board and board committee memberships and other positions then held by you, or to which you have been appointed, designated or nominated, with the Company and its Affiliates.
(f)Full Effect of Employee Covenants. Your obligations under this Offer Letter, including but not limited to your obligations under this Section 8, are independent of any of the Company’s obligations to you under this Offer Letter or generally by virtue of your employment. The existence of any claim or cause of action by you against the Company shall not constitute a defense to the enforcement by the Company of this Section 8.
9.Equitable Relief with Respect to Covenants. You acknowledge and agree that a breach by you of any of your obligations under Section 8 of this Offer Letter is a material breach of this Offer Letter 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, you agree that the Company may seek the granting of injunctive relief in the Company’s favor in connection with any such breach or violation without proof of irreparable harm. Additionally, you agree that the foregoing is appropriate for any such breach inasmuch as actual damages cannot be readily calculated, such relief is fair and reasonable under the circumstances, and the Company would suffer irreparable harm if any of these Sections were breached. You further agree that any action for such injunctive relief shall be subject to the exclusive jurisdiction of the Federal Courts of the State of Florida, or if such would not have jurisdiction over the matter, then only in a Florida State Court sitting in Miami Dade County. You consent to personal jurisdiction in the Courts of the State of Florida in Miami Dade County for such purpose.
10.Data Protection & Privacy.
(a)You acknowledge that the Company, directly or through its Affiliates, collects, uses, processes and discloses data (including personal sensitive data and information retained in email) relating to you. You hereby consent to such collection, use, processing and disclosure for the purposes described in and further agree to execute the Company’s Employee Consent to Collection and Processing of Personal Information, a copy of which is attached to this Offer Letter as Attachment 1.
(b)To ensure regulatory compliance and for the protection of its employees, customers, suppliers and business, the Company reserves the right to digitally record you, monitor, intercept, review and access at any and all times and by any lawful means, telephone calls and logs, internet usage, voicemail, email and other communication facilities provided by the Company which you may use during your employment with us. The Company will use this right of access reasonably, but it is important that you are aware that all communications and activities on our equipment or premises cannot be presumed to be private and accordingly, you shall have no reasonable expectation of privacy with respect to any such communications or activities.
11.Section 409A.
(a)Section 409A Compliance. The intent of the parties hereto is that payments and benefits under this Offer Letter be exempt from or comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A”) and, accordingly, to the maximum extent permitted, this Offer Letter shall be interpreted to be in compliance therewith.
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(b)Expenses and Reimbursements. All reimbursements and in-kind benefits provided under this Offer Letter are intended to be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A. All expenses or other reimbursements paid pursuant to this Offer Letter that are taxable income to you shall in no event be paid later than the end of the calendar year next following the calendar year in which you incur such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A, (A) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; and (B) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
12.Entire Agreement. This Offer Letter, including any schedules, attachments or addenda, constitutes the entire agreement between you and the Company or any Affiliates of the Company with respect to your employment, and supersedes all prior correspondence, offers, proposals, promises, offer letters, agreements or arrangements relating to the subject matter contained herein. Nothing herein shall impact the SPA, except as provided in Section 4(e) herein.
13.Modification. No provision of this Offer Letter may be modified, waived or discharged unless such modification, waiver or discharge is approved in writing by the Board of Directors of RBI or a Person authorized thereby and is agreed to in writing by the Company and you. 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 Offer Letter 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 Offer Letter 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.
14.Survival. The following Sections shall survive the termination of your employment with the Company and of this Offer Letter: 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 23.
15.Severability. If any provision of this Offer Letter or the application thereof to any circumstance shall be invalid or unenforceable to any extent, the remainder of this Offer Letter and the application of such provisions to other circumstances shall not be affected thereby and shall be enforced to the fullest extent permitted by law. In the event that one or more terms or provisions of this Offer Letter are deemed invalid or unenforceable under applicable law, 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. You agree and acknowledge 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.
16.Governing Law. The terms of this Offer Letter shall be governed by and construed in accordance with the laws of the State of Florida without reference to principles of conflicts of laws. Any dispute or controversy regarding the enforceability of our dispute resolution agreement as detailed in Section 17 and/or actions for enforcement of any arbitration award issued under Section 17 (to the extent such actions are permitted under this Offer Letter and applicable law) shall be subject to the exclusive jurisdiction of the Federal Courts of the State of Florida, or if such would not have jurisdiction over the matter, then only in a Florida State Court sitting in Miami Dade County. You consent to personal jurisdiction in the Courts of the State of Florida in Miami Dade County for such purpose. Except as otherwise provided in Section 9, all other disputes or controversies arising under or in connection with this Offer Letter shall be conducted as set forth in Section 17 hereof.
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17.Dispute Resolution. Except as expressly provided in Sections 9 and 16, the Company and you agree that any dispute or controversy arising under or in connection with this Offer Letter or your employment with the Company (e.g., including but not limited to claims for discrimination, wages, or any statutory or common law claims) 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. The arbitration shall not impair either party’s right to request injunctive or other equitable relief in accordance with Section 9 of this Offer Letter. Nothing herein limits either party’s right to file or participate (including providing any documents regardless of any provision in this Offer Letter to the contrary) in any proceeding with any federal, state, or local government agency: e.g., the EEOC, SEC, etc. If this agreement to arbitrate is held to be unenforceable, both parties agree to the maximum extent permitted by law to waive their right to a jury trial.
18.Voluntary Agreement; No Conflicts. You represent that you are entering into this Offer Letter voluntarily and that your employment with the Company and compliance with the terms and conditions of this Offer Letter will not conflict with or result in the breach by you of any agreement to which you are a party or by which you or your properties or assets may be bound.
19.Counterparts; Electronic Copy. This Offer Letter may be executed you and the Company in counterparts (including by electronic copy), each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
20.Indemnification Obligation. Subject to your satisfaction of the Standard of Conduct (provided that the Standard of Conduct is required to be met by all non-employee members of the RBI Board of Directors and/or applicable law) and during the Employment Period or other period of your service with the Company and thereafter for as long as potential liability exists (but no less than six (6) years after any such termination of employment or other service), the Company shall indemnify, defend and hold you harmless, to the fullest extent permitted or required by applicable laws in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted indemnification, against any and all Indemnifiable Claims and Indemnifiable Losses; provided, however, that, except as provided in the Company’s articles of incorporation or by-laws, or otherwise as required by applicable laws, you shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by you against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. The Company acknowledges that the foregoing obligation is substantially broader than that now required by applicable laws and the Company’s articles of incorporation or by-laws and intends that it be interpreted consistently with this Section.
Additionally, you shall have the right to advancement by the Company prior to the final disposition of any Indemnifiable Claim of any and all Expenses relating to, arising out of or resulting from any Indemnifiable Claim paid or incurred by you or which you determine in good faith are reasonably likely to be paid or incurred by you and as to which your counsel provides supporting documentation; provided, however, that you shall repay, without interest, any such amount of Expenses (or portion thereof) actually advanced to you in respect of which it shall have been determined, following the final disposition of the Indemnifiable Claim to which the advance related, were in excess of amounts paid or payable by you in respect of Expenses relating to, arising out of or resulting from such Indemnifiable Claim, or otherwise that you are not entitled to indemnification hereunder, including by a determination that you have not satisfied the Standard of Conduct, as determined by (i) a majority of the Disinterested Directors, (ii) a committee of Disinterested Directors, or (iii) if there are no Disinterested Directors or a majority of Disinterested
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Directors so direct, by independent counsel in a written opinion addressed to the Board of Directors.
Without limiting the generality or effect of any other provision hereof, your right to such advancement is not subject to any prior determination that you have satisfied the Standard of Conduct. Without limiting the generality or effect of the foregoing, within five business days after any request by you that is accompanied by supporting documentation for specific Expenses to be reimbursed or advanced, the Company shall, in accordance with such request (but without duplication), (a) pay such Expenses on your behalf, (b) advance to you funds in an amount sufficient to pay such Expenses, or (c) reimburse you for such Expenses.
In connection with any such payment, advancement or reimbursement, at the request of the Company, you shall execute and deliver to the Company an undertaking, which need not be secured and shall be accepted without reference to your ability to repay the Expenses, by you or on your behalf, to repay any amounts paid, advanced or reimbursed by the Company in respect of Expenses relating to, arising out of or resulting from any Indemnifiable Claim in respect of which it shall have been determined, following the final disposition of such Indemnifiable Claim, that you are not entitled to indemnification hereunder.
21.Liability Insurance. For the duration of your Employment Period or other period of your service with the Company and thereafter for as long as potential liability exists (but no less than six (6) years after any such termination of employment or other service), the Company shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors’ and officers’ liability insurance providing coverage for you that is reasonable in scope and amount to those provided by similarly situated companies, subject to the cost of premium limitation set forth below in this Section 21. In all policies of directors’ and officers’ liability insurance obtained by the Company, you shall be named as an insured in such a manner as to provide you the same rights and benefits, subject to the same limitations, as are accorded to the Company’s directors and officers most favorably insured by such policy. Notwithstanding the foregoing, (i) the Company may, but shall not be required to, create a trust fund, grant a security interest or use other means, including a letter of credit, to ensure the payment of such amounts as may be necessary to satisfy its obligations to indemnify pursuant to this Agreement and (ii) in renewing or seeking to renew any insurance hereunder, the Company will not be required to expend more than 1.5 times the premium amount of the immediately preceding policy period (equitably adjusted if necessary to reflect differences in policy periods).
22.Reimbursement for Attorneys’ Fees. The Company agrees to pay on your behalf the attorneys’ fees and costs incurred by you through the Commencement Date in connection with negotiating, drafting and advising with respect to this Offer Letter, the equity award agreements described in Section 4(c) of this Offer Letter and the purchase of the Related Shares, in an amount to be agreed by the Company and you. The Company shall promptly make payment of such amount to your legal counsel upon invoicing.
23.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.
“Claim” means (i) any threatened, asserted, pending, ongoing or completed claim, demand, action, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other, and whether made pursuant to federal, provincial, state or other law; and (ii) any inquiry or investigation, whether made, instituted or conducted, by the Company or any other Person, including any federal, provincial, state or other governmental agency, that Indemnitee determines might lead to the institution of any such claim, demand, action, suit or proceeding. For the
Restaurants Brands International US Services LLC | 5707 Blue Lagoon Drive | Miami, FL 33126
Offer Letter – Doyle – 11.13.22
avoidance of doubt, subject to applicable laws, the Company intends indemnity to be provided hereunder in respect of acts or failure to act prior to, on or after the date hereof.
“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.
“Disinterested Director” means a director of the Company who is not and was not a party to the Claim in respect of which indemnification is sought by you.
“Expenses” means all costs and expenses (including reasonable attorneys’ and experts’ fees and expenses) paid or payable in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in (including on appeal), any Claim.
“Indemnifiable Claim” means any Claim based upon, arising out of or resulting from the following: (i) any actual, alleged or suspected act or failure to act by you in your capacity as a director or officer of the Company or as a director or officer (or individual serving in a similar capacity) of any other corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise, whether or not for profit, as to which you are or were serving at the request of the Company; (ii) any actual, alleged or suspected act or failure to act by you in respect of any business, transaction, communication, filing, disclosure or other activity of the Company or any other entity or enterprise referred to in clause (i) of this sentence; or (iii) your status as a current or former director or officer of the Company or as a current or former director or officer (or individual serving in a similar capacity) of any other entity or enterprise referred to in clause (i) of this sentence or any actual, alleged or suspected act or failure to act by you in connection with any obligation or restriction imposed upon you by reason of such status.
“Indemnifiable Losses” means any and all losses relating to, arising out of or resulting from you being, or being threatened to be made, a party to, or a participant in, any Indemnifiable Claim; provided, however, that Indemnifiable Losses shall not include losses incurred by you in respect of any Indemnifiable Claim (or any matter or issue therein) as to which you shall have been adjudged liable to the Company, unless and only to the extent that the court in which such Indemnifiable Claim was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, you are fairly and reasonably entitled to indemnification for such losses as the court shall deem proper.
“Person”: any natural person, firm, partnership, limited liability company, association, corporation, company, trust, business trust, governmental authority or other entity.
“Restricted Business” means any quick serve restaurant business anywhere in the world where the combined sales of the following product categories constitute twenty-five percent (25%) or more of a Person’s overall food and beverage sales and/or total menu items: chicken, hamburgers, coffee, submarine sandwiches or other categories added by the Company during the Employment Period.
“Standard of Conduct” means the standard for conduct by you that is a condition precedent to indemnification of you hereunder against Indemnifiable Losses relating to, arising out of or resulting from an Indemnifiable Claim. The Standard of Conduct is (i) that you acted honestly and in good faith with a view to the best interests of the Company or, as the case may be, to the best interests of the other entity for which you acted as director or officer (or in a similar capacity) at the Company’s request or deemed request, and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, you had reasonable grounds for believing that your conduct was lawful.
Restaurants Brands International US Services LLC | 5707 Blue Lagoon Drive | Miami, FL 33126
Offer Letter – Doyle – 11.13.22
“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.
If you wish to accept employment with the Company on the basis set out in this Offer Letter, please sign below and return a countersigned copy of this Offer Letter to Jill Granat at jgranat@rbi.com within seven (7) days of the date of this Offer Letter (the “Acceptance Period”). If a countersigned copy is not received by the Company within the Acceptance Period, this offer will be withdrawn and any acceptance by you will be null and void.
Patrick, I would like to offer my personal congratulations on this exciting opportunity. I am confident that you will be instrumental in driving the success of the Company. Should you have any questions on any of the above, please do not hesitate to contact me.
Yours sincerely,
Restaurant Brands International US Services LLC
/s/ Jill Granat
Jill Granat
General Counsel
Agreed to and accepted by:
__/s/ J. Patrick Doyle_______________
J. Patrick Doyle
_____11/15/22___________________
Date
Restaurants Brands International US Services LLC | 5707 Blue Lagoon Drive | Miami, FL 33126
Offer Letter – Doyle – 11.13.22
RBI JOINDER
RBI hereby executes this Offer Letter for the sole purposes of evidencing its agreement to (1) the issuance of the equity award agreements set forth in Section 4(c) of the Offer Letter, in each case, in accordance with the terms and conditions of the Offer Letter and the equity award agreements attached to the Offer Letter as Exhibits A, B and C, and (2) the indemnification obligations set forth in Section 20 of the Offer Letter.
Restaurant Brands International Inc.
By: ___/s/ Jill Granat_____________
Jill Granat
General Counsel
Restaurants Brands International US Services LLC | 5707 Blue Lagoon Drive | Miami, FL 33126
Offer Letter – Doyle – 11.13.22
ATTACHMENT 1
RESTAURANT BRANDS INTERNATIONAL US SERVICES LLC
EMPLOYEE CONSENT TO COLLECTION AND PROCESSING OF PERSONAL INFORMATION
Restaurant Brands International US Services LLC (the “Company”) has informed me that the Company, on behalf of itself and its related and affiliated entities, including those operating restaurants under the BURGER KING®, TIM HORTONS®, POPEYES® and FIREHOUSE SUBS® brands (collectively, the “Affiliates”), collects, retains, processes, uses, and transfers my personal information (and also discloses my personal information to the Company’s employees, consultants and services providers) only for human resource and business purposes such as payroll administration, background checks, fulfilment of employment positions, fulfilment of my 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; Jacksonville, Florida, United States of America; Mexico City, Mexico; Singapore, and Zug, 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 that I provide the Company details of my racial or ethnic origin, physical or mental health or condition, job evaluations or educations records, commission (or alleged commission) of an offense or related proceedings, military or veteran status, or gender identity, I expressly authorize the Company and its Affiliates to handle such details for the purposes set forth in this statement.
I understand that the Company also may disclose personal information about me solely to the extent necessary 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 the Company’s 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 it 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.
I understand that the provision of my personal information is voluntary.
I have been advised that the Company is committed to resolving complaints about my privacy and its collection, use or disclosure 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 my consent set forth in this consent statement, I understand that I can contact the Company at the following email address: privacy@rbi.com or at the mailing address below:
Restaurant Brands International US Services LLC
Address: 5707 Blue Lagoon Drive, Miami FL 33126
Attn: Legal Department – Privacy Office
__________________________
(Employee’s Signature)
__________________________
(Employee’s Name – Please Print)
Date:
Restaurants Brands International US Services LLC | 5707 Blue Lagoon Drive | Miami, FL 33126
Offer Letter – Doyle – 11.13.22
Exhibit 10.84 Draft 11/13/2022
RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
OPTION AWARD AGREEMENT
Unless defined in this Option Award Agreement (this “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 6 of the Plan, you have been granted a Non-Qualified Stock Option (the “Option”) on the following terms and subject to the provisions of the Plan, which is incorporated herein by reference.
Total Number of Option Shares: 2,000,000 Option Shares
Exercise Price per Share: $[ ] per Share
Grant Date: November __, 2022
Expiration Date: November __, 2032
Vesting Date: November __, 2027, subject to your continued Service through the Vesting Date and further subject to the Section entitled “Termination” in Exhibit A.
By accepting this Option and agreeing to this Award Agreement, you and the Company agree that this Option 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 constitutes part of this Award Agreement.
| | | | | |
| PARTICIPANT | RESTAURANT BRANDS INTERNATIONAL INC. |
____________________________ |
By: ______________________________ |
| Name: J. Patrick Doyle | Name: Jill Granat
Title: General Counsel |
2848/80663-001 CURRENT/134206663v6
Exhibit 10.84 Draft 11/13/2022
EXHIBIT A
TERMS AND CONDITIONS OF THE
OPTION AWARD AGREEMENT
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 or consulting 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 that has caused or is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates or material and demonstrable injury to the business of the Company or any of its Affiliates or prospects that involve significant projects in process of the Company or any of its Affiliates; (iii) your willful misconduct or gross negligence that has caused or is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates or material and demonstrable injury to the business of the Company or any of its Affiliates or prospects that involve significant projects in process of the Company or any of its Affiliates; (iv) your fraud or misappropriation of funds; or (v) your conviction of, or plea of guilty or nolo contendere to, a felony (excluding (I) any traffic violations other than those involving driving under the influence and/or vehicular homicide and (II) felonies based on vicarious liability involving actions or inactions of other persons or entities that are imputed to you due to your position with the Company), other serious crime involving fraud, or other serious crime of an extremely reckless, intentional, or vicious nature that is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates. Notwithstanding the foregoing, “Cause” shall not exist under sub-clauses (i), (ii), (iii) or (iv) hereunder unless you have first received written notice from the Company identifying in reasonable detail such violation or breach (such notice to be provided within ninety (90) calendar days after the Company’s initial discovery of such violation or breach) and, to the extent curable, you fail to cure such violation or breach to the Company’s reasonable satisfaction within thirty (30) calendar days after receiving such written notice. Termination of your Service under clauses (i) through (iv) shall be deemed not to be for Cause unless, prior to termination, you are given a reasonable opportunity, together with counsel, to be heard before the Board in good faith; provided, that, you shall not participate in such process in your capacity as a member of the Board.
“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.
“Employment Agreement” means the Offer Letter between Restaurant Brands International US Services LLC and you, dated November 15, 2022, or any written offer letter or employment agreement between you and the Company or any of its Affiliates, as
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such agreement may be modified or amended from time to time in accordance with the terms thereof.
“Employer” means your employer if you are an employee of the Company or any of its Affiliates; the Board of Directors of the Company if you are a member of the Board of Directors of the Company; the Company or any Affiliate that has entered into a consulting agreement with you, and/or any combination of the foregoing if you are an employee or Consultant of the Company or any of its Affiliates and/or a member of the Board of Directors of the Company.
“Good Reason” means your voluntary resignation from the Company or any of its Affiliates after the occurrence of any of the following after the Grant Date without your consent: (i) a change in reporting structure such that you no longer report directly to the Board of Directors; (ii) a significant diminution by the Company in your authority, duties, or responsibilities, or any diminution in your position or title as the executive chairman of the Company; (iii) any material breach by the Company of this Agreement, your Employment Agreement or any other Award Agreement between you and the Company or any Affiliate; (iv) the Company requiring you to be based at any office location that is more than fifty (50) miles farther from your primary work location as of the Commencement Date, except for business travel on behalf of the Company for bona fide business purposes; (v) you are not elected and appointed as Executive Chairman of the Board effective January 31, 2023; or (vi) you are not re-elected to the Board, other than due to your voluntary resignation, death or Disability or due to your being considered “overboarded” by the proxy advisory firms Institutional Shareholder Services or Glass Lewis; provided, however, that, in order for a resignation to constitute a resignation for “Good Reason”, (I) you shall give the Company written notice of your intention to resign with Good Reason within thirty (30) days after first learning of the occurrence of the circumstances that purportedly gave rise to Good Reason, which written notice shall describe such circumstances in reasonable detail, (II) the Company shall have a period of thirty (30) days following receipt of such written notice to cure such circumstances; and (III) if the Company fails or refuses to cure such circumstances, you must resign within sixty (60) days following the end of such cure period.
“Immediate Family Member” shall mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships.
“Option Shares” means the Shares underlying this Option.
“Permitted Transferee” means you, any of your Immediate Family Members, any trust where all the beneficiaries are any combination of you and/or any one or more of your Immediate Family Members (a “Permitted Trust”), or any entity where all the economic interests are held by any combination of you, any one or more of your Immediate Family Members, and/or any one or more Permitted Trusts, including, for the avoidance of doubt, any grantor retained annuity trust established by you as grantor and any revocable or irrevocable trust created by you; provided, that you (1) continue to have the voting and dispositive power over the Related Shares and (2) continue to report a direct or indirect interest in the Related Shares on your Form 4s following the Transfer.
“Related Shares” means the 500,000 Shares in the Company that you have directly or indirectly (including, without limitation, through a limited liability company owned and controlled by you) purchased pursuant to the Stock Purchase Agreement by and between RBI and you, dated as of November 15, 2022 (the “SPA”), and all Shares
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Exhibit 10.84 Draft 11/13/2022
received by you upon settlement of the RSUs evidenced by that RSU Award Agreement between the Company and you, dated of even date herewith, less those sold or withheld by the Company or an Affiliate to pay applicable taxes due upon such settlement and/or upon your making an election under Code Section 83(b) in respect of such Shares, as applicable.
“Service” means the active performance of services for the Company or an Affiliate by you as an employee, a director or a consultant of the Company or an Affiliate. Notwithstanding the foregoing, if this Award is characterized as “nonqualified deferred compensation” within the meaning of Section 409A of the Code, an event shall not be considered to be a termination of your “Service” for purposes of payment of this Award unless such event is also a “separation from service” within the meaning of Section 409A of the Code.
“Vesting Date” means November __, 2027 or such earlier vesting date as may be provided in this Award Agreement.
“Without Cause” means a termination of your Service by your Employer other than any such termination 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.
Except as expressly provided herein, this Option will vest and become exercisable on the “Vesting Date” set forth in this Award Agreement. Any portion of this Option that becomes exercisable in accordance with the foregoing will remain exercisable until the Expiration Date, unless earlier terminated pursuant to the Plan or this Award Agreement (including, without limitation, the Sections below entitled “Termination” and “Forfeiture of Unvested Options upon the Transfer of Related Shares”). Your ability to exercise this Option is subject to your continued Service through the Vesting Date and to the section of this Award Agreement entitled “Termination”. Prior to the exercise of all or a part of this Option, you will not have any rights of a shareholder with respect to the applicable portion of this Option or the Shares subject thereto.
Method of Exercise.
This Option will be exercisable pursuant to procedures approved by the Committee that are consistent with procedures applicable to other executives of the Company and its Affiliates and communicated to you. No Shares will be delivered pursuant to the exercise of this Option unless (i) you have complied with your obligations under this Award Agreement, (ii) the exercise of this Option and the delivery of such Shares complies with applicable law, and (iii) full payment (or satisfactory provision therefor) of the aggregate Exercise Price of the Option and any Tax-Related Items have been received by the Company. Until such time as the Shares are delivered to you (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), which Shares the Company shall undertake to deliver to you as soon as practical following satisfaction of items (i)-(iii) in the immediately preceding sentence, you will have no right to vote or receive dividends or any other rights as a shareholder with respect to such Shares, notwithstanding the exercise of this Option.
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Exhibit 10.84 Draft 11/13/2022
Forfeiture of Unvested Options upon the Transfer of Related Shares.
If any of the Related Shares are Transferred (other than pursuant to the laws of descent and distribution, or to any Permitted Transferee with respect to the Related Shares) before the earliest of (a) the Vesting Date, (b) a Change in Control, (c) the termination of your employment or Service Without Cause, (d) your resignation with Good Reason, or (e) the termination of your employment or Service due to your death or Disability, you will immediately forfeit all Options that relate to this Award Agreement; provided that, in the event that any Related Shares are Transferred in violation of the foregoing through no fault or voluntary action of your own or any Permitted Transferee, you and/or the Permitted Transferee (as applicable) shall have 60 days (which period shall be extended to the extent there are fewer than five (5) trading days during a trading window within such 60 day period) to attempt to undo such Transfer or replace the Related Shares so Transferred to maintain 500,000 Shares in the Company, and the forfeiture described in this sentence shall not occur unless and until Participant and/or the Permitted Transferee (as applicable) fails to undo or replace such Transfer within the applicable period.
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 Option.
Termination.
Upon termination of your Service (other than as set forth below) prior to the Vesting Date, you will forfeit this Option without any consideration due to you. Notwithstanding anything in the Plan to the contrary, for the purposes of this Award Agreement, your Service will not be deemed to be terminated (a) in the event that you transfer your employment from the Company to any Affiliate or from an Affiliate to the Company or another Affiliate, as the case may be, (b) if at any time you are both an employee of the Company or any of its Affiliates and a member of the Board of Directors of the Company, unless both your Service as an employee and a board member are terminated, or (c) if, following your cessation of employment by the Company or any Affiliate and the cessation of your service on the Board, you continue to provide services to the Company or an Affiliate as a Consultant or other advisor, unless and until your services as a Consultant or other advisor, as applicable, are terminated.
If your Service terminates prior to the Vesting Date Without Cause, for Good Reason or by reason of your Disability or death, you shall become vested in the number of Option Shares as if the Option Shares subject to this Option vested 20% on each of November __, 2023, November __, 2024, November __, 2025, November __, 2026 and November __, 2027, respectively; and you or your beneficiary in the case of death may exercise the Option to the extent vested on the date of termination of your Service as provided for below.
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
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Exhibit 10.84 Draft 11/13/2022
terminated by your Employer Without Cause (as defined herein) or by you for Good Reason, this Option 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 Option and the terms of any Employment Agreement, the terms of this Award Agreement will govern.
To the extent this Option is or becomes exercisable on the date of termination of your Service, then, if you (or, if applicable, such other person who is entitled to exercise this Option) do not exercise this Option on or prior to the expiration of the Option Exercise Period (as set forth below), this Option will terminate. In no event may you exercise this Option after the Expiration Date.
| | | | | |
Type of Termination | Vested Option Exercise Period |
Without Cause | the date of termination through the Expiration Date |
Good Reason | the date of termination through the Expiration Date |
Resignation | the date of termination through the Expiration Date |
Disability | the date of termination through the Expiration Date |
Death | the date of termination through the Expiration Date |
For Cause | None, the Option expires immediately |
Except in the case of your death, your Service terminates on the date specified in the written notice of termination or notice of resignation, if applicable, or if no such notice, the day of cessation of Service as determined by the Committee in good faith. For greater clarity, the date of termination of your Service will not be extended by any 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.
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 Option and the terms of any Employment Agreement, the terms of this Award Agreement will govern.
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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 Option grant, including the grant, vesting or exercise of this Option, the subsequent sale of Shares acquired pursuant to such exercise and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of this Option to reduce or eliminate your liability for Tax-Related Items.
Prior to exercise of this Option, 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. The Company shall sell or arrange for the sale of Shares that you acquire to meet the withholding obligation for Tax-Related Items unless (i) you and the Company mutually agree that the Company will withhold the amount of Shares necessary to satisfy the Tax-Related Items, or (ii) you elect in your sole discretion to pay all withholding without the sale of Shares or withholding 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 be able to 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 Option, 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 or your purchase of Shares that cannot be satisfied by the means previously described. The Company may refuse to honor the exercise and 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 the vesting of this Option 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, except as otherwise provided herein or in any other agreement binding you, the Company or the
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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.
In consideration for the grant of this Option 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, any Options you hold shall be immediately forfeited and the Company may require that you repay, and you shall promptly repay, to the Company, the Fair Market Value (in cash or in Shares) of any Shares received upon the exercise of Options, minus the applicable Exercise Price, together with the value as of the date on which the dividend was paid of any dividends you received with respect to such Shares following the exercise of Options, both on a net after-tax basis (not including, for the avoidance of doubt, the Fair Market Value of Shares sold or withheld to pay the applicable taxes due upon exercise of Options in respect of such Shares). The Fair Market Value of any such Shares shall be determined as of the date of exercise of such Options.
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 in good faith.
Acknowledgment of Nature of Award.
In accepting the grant of this Option, you acknowledge that:
(a) the Plan is established voluntarily by the Company, and 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 Option award is voluntary, occasional and discretionary and does not create any contractual or other right to receive future Option awards, or benefits in lieu of Options even if Options 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 Option and any Shares acquired upon the exercise of this Option, 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;
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(f) the future value of the underlying Shares is unknown and cannot be predicted with certainty;
(g) if the underlying Shares do not increase in value, this Option will have no value;
(h) if you receive Shares, the value of such Shares acquired upon exercise may increase or decrease in value; and
(i) no claim or entitlement to compensation or damages arises from termination of this Option, and no claim or entitlement to compensation or damages shall arise from any diminution in value of this Option or Shares received upon exercise of this Option resulting from termination of your Service and you irrevocably release the Company and the Employer and their respective Affiliates from any such claim that may arise.
Securities Laws.
By accepting this Option, 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 Option. 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 this Option 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,
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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 Options 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 Option 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, and this Option shall be exercised during your lifetime only by you or your guardian or legal representative. 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 in good faith, solely to the extent that such additional terms and/or conditions are not inconsistent with the terms and conditions of this Award Agreement.
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 Option 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 in good faith 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 Option and any Shares purchased upon exercise of this Option that are or would have been applicable to you.
Section 409A Compliance.
It is intended that the Option awarded pursuant to this Award Agreement be exempt from Section 409A of the Code (“Section 409A”) because it is believed that (i) the Exercise Price per Share may never be less than the Fair Market Value of a Share on the Grant Date and the number of Shares subject to the Option is fixed on the original Grant Date, (ii) the Transfer or exercise of the Option is subject to taxation under Section
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83 of the Code and Treasury Regulation 1.83-7, and (iii) the Option does not include any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Option. The provisions of this Award Agreement shall be interpreted in a manner consistent with this intention. In the event that the Company believes, at any time, that any benefit or right under this Award Agreement is subject to Section 409A, then the Committee may (acting alone and without any required consent by you) amend this Award Agreement in such manner as the Committee deems necessary or appropriate to be exempt from or otherwise comply with the requirements of Section 409A (including without limitation, amending the Award Agreement to increase the Exercise Price per Share to such amount as may be required in order for the Option to be exempt from Section 409A), provided that, no such amendment that would adversely affect your rights hereunder may be made without your prior consent.
Notwithstanding the foregoing, the Company does not make any representation to you that the Option awarded pursuant to this Award Agreement 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 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 OPTION 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
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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, as long as the same are made in good faith and do not conflict with the terms of this Award Agreement.
Electronic Delivery and Acceptance.
The Company may, in its sole discretion, decide to deliver any documents related to this Option or future options 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.
Non-U.S. Terms and Conditions.
Notwithstanding any provision in this Award Agreement, if you relocate to a country outside the U.S., the special terms and conditions for such country will apply to you and be provided 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. Such special terms and conditions 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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RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
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: 500,000
Grant Date: November __, 2022
Vesting Date: 20% of the RSUs will vest on November __ of each of 2023, 2024, 2025, 2026 and 2027, 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 and the terms and conditions set forth in the attached Exhibit A, which constitutes part of this Award Agreement.
| | | | | |
| PARTICIPANT | RESTAURANT BRANDS INTERNATIONAL INC. |
| |
____________________________ |
By: ______________________________ |
| Name: J. Patrick Doyle | Name: Jill Granat
Title: General Counsel |
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EXHIBIT A
TERMS AND CONDITIONS OF THE
RESTRICTED STOCK UNIT AWARD AGREEMENT
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 or consulting 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 that has caused or is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates or material and demonstrable injury to the business of the Company or any of its Affiliates or prospects that involve significant projects in process of the Company or any of its Affiliates; (iii) your willful misconduct or gross negligence that has caused or is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates or material and demonstrable injury to the business of the Company or any of its Affiliates or prospects that involve significant projects in process of the Company or any of its Affiliates; (iv) your fraud or misappropriation of funds; or (v) your conviction of, or plea of guilty or nolo contendere to, a felony (excluding (I) any traffic violations other than those involving driving under the influence and/or vehicular homicide and (II) felonies based on vicarious liability involving actions or inactions of other persons or entities that are imputed to you due to your position with the Company), other serious crime involving fraud, or other serious crime of an extremely reckless, intentional, or vicious nature that is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates. Notwithstanding the foregoing, “Cause” shall not exist under sub-clauses (i), (ii), (iii) or (iv) hereunder unless you have first received written notice from the Company identifying in reasonable detail such violation or breach (such notice to be provided within ninety (90) calendar days after the Company’s initial discovery of such violation or breach) and, to the extent curable, you fail to cure such violation or breach to the Company’s reasonable satisfaction within thirty (30) calendar days after receiving such written notice. Termination of your Service under clauses (i) through (iv) shall be deemed not to be for Cause unless, prior to termination, you are given a reasonable opportunity, together with counsel, to be heard before the Board in good faith; provided, that, you shall not participate in such process in your capacity as a member of the Board.
“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.
“Employment Agreement” means the Offer Letter between Restaurant Brands International US Services LLC and you, dated November 15, 2022, or any written offer letter or employment agreement between you and the Company or any of its Affiliates, as
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such agreement may be modified or amended from time to time in accordance with the terms thereof.
“Employer” means your employer if you are an employee of the Company or any of its Affiliates; the Board of Directors of the Company if you are a member of the Board of Directors of the Company; the Company or any Affiliate that has entered into a consulting agreement with you, and/or any combination of the foregoing if you are an employee or Consultant of the Company or any of its Affiliates and a member of the Board of Directors of the Company.
“Good Reason” means your voluntary resignation from the Company or any of its Affiliates after the occurrence of any of the following after the Grant Date without your consent: (i) a change in reporting structure such that you no longer report directly to the Board of Directors; (ii) a significant diminution by the Company in your authority, duties, or responsibilities, or any diminution in your position or title as the executive chairman of the Company; (iii) any material breach by the Company of this Agreement, your Employment Agreement or any other Award Agreement between you and the Company or any Affiliate; (iv) the Company requiring you to be based at any office location that is more than fifty (50) miles farther from your primary work location as of the Commencement Date, except for business travel on behalf of the Company for bona fide business purposes; (v) you are not elected and appointed as Executive Chairman of the Board effective January 31, 2023; or (vi) you are not re-elected to the Board, other than due to your voluntary resignation, death or Disability or due to your being considered “overboarded” by the proxy advisory firms Institutional Shareholder Services or Glass Lewis; provided, however, that, in order for a resignation to constitute a resignation for “Good Reason”, (I) you shall give the Company written notice of your intention to resign with Good Reason within thirty (30) days after first learning of the occurrence of the circumstances that purportedly gave rise to Good Reason, which written notice shall describe such circumstances in reasonable detail, (II) the Company shall have a period of thirty (30) days following receipt of such written notice to cure such circumstances; and (III) if the Company fails or refuses to cure such circumstances, you must resign within sixty (60) days following the end of such cure period.
“Immediate Family Member” shall mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships.
“Permitted Transferee” means you, any of your Immediate Family Members, any trust where all the beneficiaries are any combination of you and/or any one or more of your Immediate Family Members (a “Permitted Trust”), or any entity where all the economic interests are held by any combination of you, any one or more of your Immediate Family Members, and/or any one or more Permitted Trusts, including, for the avoidance of doubt, any grantor retained annuity trust established by you as grantor and any revocable or irrevocable trust created by you; provided, that you (1) continue to have the voting and dispositive power over the Related Shares and (2) continue to report a direct or indirect interest in the Related Shares on your Form 4s following the Transfer.
“Related Shares” means the 500,000 Shares in the Company that you have directly or indirectly (including, without limitation, through a limited liability company owned and controlled by you) purchased pursuant to the Stock Purchase Agreement by and between RBI and you, dated as of November 15, 2022 (the “SPA”), and all Shares received by you upon settlement of the RSUs, less those sold or withheld by the Company or Affiliate to pay applicable taxes due upon such settlement and/or upon your making an election under Code Section 83(b) in respect of such Shares, as applicable.
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“Service” means the active performance of services for the Company or an Affiliate by you as an employee, a director or a consultant of the Company or an Affiliate. Notwithstanding the foregoing, if this Award is characterized as “nonqualified deferred compensation” within the meaning of Section 409A of the Code, an event shall not be considered to be a termination of your “Service” for purposes of payment of this Award unless such event is also a “separation from service” within the meaning of Section 409A of the Code.
“Vesting Date” means November __ of each of 2023, 2024, 2025, 2026 and, 2027, or such earlier vesting date as may be provided in this Award Agreement.
“Without Cause” means a termination of your Service by your Employer other than any such termination 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 RSUs will vest on the Vesting Dates as set forth in this Award Agreement, subject to your continued Service through each Vesting Date and except as otherwise provided in the Sections below entitled “Termination” and “Forfeiture of Unvested RSUs upon the Transfer of Related Shares.”
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.
Forfeiture of Unvested RSUs upon the Transfer of Related Shares.
If any of the Related Shares are Transferred (other than pursuant to the laws of descent and distribution, or to any Permitted Transferee with respect to the Related Shares,) before the earliest of (a) November [21], 2027, (b) a Change in Control, (c) the termination of your employment or Service Without Cause, (d) your resignation with Good Reason, or (e) the termination of your employment or Service due to your death or Disability, you will immediately forfeit all unvested RSUs that relate to this Award Agreement, and you shall promptly repay to the Company the Fair Market Value (in cash or in Shares) of the Shares received upon the settlement of RSUs on a net after-tax basis (not including, for the avoidance of doubt, the Fair Market Value of Shares sold or withheld to pay the applicable taxes due upon (i) settlement and (ii) making an election under Code Section 83(b) in respect of such Shares) (the “Net Shares”), together with the value as of the date on which the dividend was paid, of any dividends you received with respect to the Shares received following settlement of the RSUs (including without limitation, the payment in respect of Dividend Equivalents), reduced by any federal, state or local taxes you paid with respect to those repaid dividends, provided that, in the event that any Related Shares are Transferred in violation of the foregoing through no fault or voluntary action of your own or any Permitted Transferee, you and/or the Permitted Transferee (as applicable) shall have 60 days (which period shall be extended to the
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extent there are fewer than five (5) trading days during a trading window within such 60 day period) to attempt to undo such Transfer or replace the Related Shares so Transferred to maintain 500,000 Shares in the Company, and the forfeiture described in this sentence shall not occur unless and until Participant and/or the Permitted Transferee (as applicable) fails to undo or replace such Transfer within the applicable period.
The Fair Market Value of any Shares received upon the settlement of RSUs shall be determined as of the date on which the RSUs were settled.
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 Vesting Date. You will have no rights of a shareholder with respect to the RSUs until such Shares have been delivered to you. Additionally, you agree that you shall not be permitted during the Holding Period (as defined below) to Transfer any of the Net Shares (other than transfers to a Permitted Transferee, provided, however, that such Permitted Transferee agrees to be subject to the Holding Period to the same extent it would have otherwise applied to you). The term “Holding Period” means the five-year period commencing on the Grant Date, except that the Holding Period shall automatically end on the earliest to occur of the following: (i) a Change in Control: (ii) your death; (ii) your Disability; or (iii) cessation of your Service by the Company without Cause, or by you for “Good Reason”.
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.
Termination.
Upon termination of your Service (other than as set forth below) 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. Notwithstanding anything in the Plan to the contrary, for the purposes of this Award Agreement your Service will not be deemed to be terminated (a) in the event that you transfer your employment from the Company to any Affiliate or from an Affiliate to the Company or another Affiliate, as the case may be, (b) if at any time you are both an employee of the Company or any of its Affiliates and a member of the Board of Directors of the Company, unless both your Service as an employee and a board member are terminated, or (c) if, following your cessation of employment by the Company or any Affiliate and the cessation of your service on the Board, you continue to provide services to the Company or an Affiliate as a Consultant or other advisor, unless and until your services as a Consultant or other advisor, as applicable, are terminated.
Except in the case of your death, your Service terminates on the date specified in the written notice of termination or notice of resignation, if applicable, or if no such notice, the day of cessation of Service as determined by the Committee in good faith. For greater clarity, the date of termination of your Service will not be extended by any payment in lieu of notice or severance mandated under local law, whether statutory,
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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.
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 this Award 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 or by you for Good Reason, this Award shall vest in full upon such termination.
In the event that your Service is terminated by the Company Without Cause or by you for Good Reason, or as a result of your death or Disability, a pro-rated number of RSUs (calculated as the difference between (A) a number determined by multiplying the number of Shares subject to the Award by a fraction, the numerator of which is the number of days that have elapsed from the Grant Date until the date of termination plus 365, provided that numerator will in no event be greater than 1,825, and the denominator of which is 1,825, less (B), the number of RSUs that have vested prior to such termination) shall vest upon such termination.
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 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. The Company shall sell or arrange for the sale of Shares that you acquire to meet the withholding obligation for Tax-Related Items unless (i) you and the Company mutually agree that the Company will withhold the amount of Shares necessary to satisfy the Tax-Related Items, or (ii). you elect in your sole discretion to pay all withholding without the sale of Shares or withholding 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 be able to seek a refund from the
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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.
Dividend Equivalents.
During the term of this Award Agreement, you shall be credited with additional RSUs with respect to the 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 credited 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.
No Guarantee of Continued Service.
You acknowledge and agree that the 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, except as otherwise provided herein or 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 Agreement 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 or (ii) 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 RSUs you hold shall be immediately forfeited and the Company may require that you repay, and you shall promptly repay, to the Company, the Fair Market Value (in cash or in Shares) of (x) in the case of clause (i) above, any Shares received upon settlement of RSUs, together
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with the value as of the date on which the dividend was paid, of any dividends you received with respect to such number of Shares received following settlement of the RSUs, both on a net after-tax basis (not including, for the avoidance of doubt, the Fair Market Value of Shares sold or withheld to pay the applicable taxes due upon settlement in respect of such Shares), and (y) in the case of clause (ii) above, to the extent you have received any Shares upon settlement of RSUs, the number of Shares equal to twenty percent (20%) of the RSUs granted hereunder (including, for the avoidance doubt, the Dividend Equivalents credited with respect thereto through the date of termination), together with the value as of the date on which the dividend was paid, of any dividends you received with respect to such number of Shares received following settlement of the RSUs, both without any reduction for applicable taxes. 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 in good faith.
Acknowledgment of Nature of Award.
In accepting the grant of this Award, you acknowledge that:
(a) the Plan is established voluntarily by the Company, and 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
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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, 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 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
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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 (i) one or more Beneficiaries or other Transferees during your lifetime with the consent of the Committee or (ii) a Permitted Transferee. 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 in good faith, solely to the extent that such additional terms and/or conditions are not inconsistent with the terms and conditions of this Award Agreement.
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 in good faith 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, provided that, no such revision or amendment that would adversely affect your rights hereunder may be made without your prior consent.
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
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amendment or modification thereof or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A.
Notwithstanding any provision to the contrary in the Plan or this Award Agreement, if you are deemed on the date of your termination of employment to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Code and using the identification methodology selected by the Company from time to time, or if none, the default methodology set forth in Section 409A and if the Award constitutes “non-qualified deferred compensation” within the meaning of Section 409A of the Code, then to the extent required to be delayed in compliance with Section 409A(a)(2)(B) of the Code, any payment made under this Award Agreement shall not be made prior to the earlier of (i) the expiration of the six-month period measured from the date of the your separation from Service and (ii) the date of your death. All payments delayed pursuant to this paragraph shall be paid to you on the first day of the seventh month following the date of your separation from Service or, if earlier, on the date of your death.
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 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, as long as the same are made in good faith and do not conflict with the terms of this Award Agreement.
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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. 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.
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 relocate to a country outside the U.S., the special terms and conditions for such country will apply to you and be provided 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. Such special terms and conditions 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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RESTAURANT BRANDS INTERNATIONAL INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE PLAN
RBI PERFORMANCE AWARD AGREEMENT
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.
Performance Award: Restricted Stock Units (the “Performance Units”) with respect to 750,000 Shares, as adjusted, up or down, to reflect the extent to which the Performance Targets have been achieved
Grant Date: November ___, 2022
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, which constitutes part of this Award Agreement.
| | | | | |
| PARTICIPANT | RESTAURANT BRANDS INTERNATIONAL INC. |
____________________________ |
By: ______________________________ |
| Name: J. Patrick Doyle | Name: Jill Granat
Title: General Counsel |
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EXHIBIT A
TERMS AND CONDITIONS OF THE
PERFORMANCE AWARD
Definitions
For purposes of this Award Agreement, the following terms shall have the following meanings:
“Achievement Price” means the Ending Price plus the dollar value as of the payment date of all dividends paid, declared or distributed from the Grant Date through the Ending Date, without regard to form.
“Additional Measurement Period” means the period beginning on [insert date that is the 4.5 year anniversary of the Grant Date] and ending on [insert date that is the 5.5 year anniversary of the Grant Date]
“Additional Earned Units” has the meaning set forth in the Section below entitled “Settlement of Earned Performance Units”.
“Beginning Price” means [insert the price at which shares were purchased under the SPA].
“Cause” means (i) a material breach by you of any of your obligations under any written Employment Agreement or consulting 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 that has caused or is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates or material and demonstrable injury to the business of the Company or any of its Affiliates or prospects that involve significant projects in process of the Company or any of its Affiliates ; (iii) your willful misconduct or gross negligence that has caused or is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates or material and demonstrable injury to the business of the Company or any of its Affiliates or prospects that involve significant projects in process of the Company or any of its Affiliates; (iv) your fraud or misappropriation of funds; or (v) your conviction of, or plea of guilty or nolo contendere to, a felony (excluding (I) any traffic violations other than those involving driving under the influence and/or vehicular homicide and (II) felonies based on vicarious liability involving actions or inactions of other persons or entities that are imputed to you due to your position with the Company), other serious crime involving fraud, or other serious crime of an extremely reckless, intentional, or vicious nature that is reasonably expected to result in significant injury to the reputation of the Company or any of its Affiliates. Notwithstanding the foregoing, “Cause” shall not exist under sub-clauses (i), (ii), (iii) or (iv) hereunder unless you have first received written notice from the Company identifying in reasonable detail such violation or breach (such notice to be provided within ninety (90) calendar days after the Company’s initial discovery of such violation or breach) and, to the extent curable, you fail to cure such violation or breach to the Company’s reasonable satisfaction within thirty (30) calendar days after receiving such written notice. Termination of your Service under clauses (i) through (iv) shall be deemed not to be for Cause unless, prior to termination, you are given a reasonable opportunity, together with counsel, to be heard before the Board in good faith; provided, that, you shall not participate in such process in your capacity as a member of the Board.
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“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.
“Earned Performance Units” has the meaning set forth in the Section below entitled “Determination of Number of Earned Performance Units”.
“Employment Agreement” means the Offer Letter between Restaurant Brands International US Services LLC and you, dated November 15, 2022, or any written offer letter or employment agreement between you and the Company or any of its Affiliates, as such agreement may be modified or amended from time to time in accordance with the terms thereof.
“Employer” means your employer if you are an employee of the Company or any of its Affiliates; the Board of Directors of the Company if you are a member of the Board of Directors of the Company; the Company or any Affiliate that has entered into a consulting agreement with you; and/or any combination of the foregoing, if you are an employee or Consultant of the Company or any of its Affiliates and/or a member of the Board of Directors of the Company.
“Ending Date” means the last day of the period used to calculate the Ending Price.
“Ending Price” means the highest average VWAP for any consecutive thirty (30) trading day period during Initial Measurement Period or Additional Measurement Period, as applicable.
“Good Reason” means your voluntary resignation from the Company or any of its Affiliates after the occurrence of any of the following after the Grant Date without your consent: (i) a change in reporting structure such that you no longer report directly to the Board of Directors; (ii) a significant diminution by the Company in your authority, duties, or responsibilities, or any diminution in your position or title as the executive chairman of the Company; (iii) any material breach by the Company of this Agreement, your Employment Agreement, or any other Award Agreement between you and the Company or any Affiliate; (iv) the Company requiring you to be based at any office location that is more than fifty (50) miles farther from your primary work location as of the Commencement Date, except for business travel on behalf of the Company for bona fide business purposes; (v) you are not elected and appointed as Executive Chairman of the Board effective January 31, 2023; or (vi) you are not re-elected to the Board, other than due to your voluntary resignation, death or Disability or due to your being considered “overboarded” by the proxy advisory firms Institutional Shareholder Services or Glass Lewis; provided, however, that, in order for a resignation to constitute a resignation for “Good Reason”, (I) you shall give the Company written notice of your intention to resign with Good Reason within thirty (30) days after first learning of the occurrence of the circumstances that purportedly gave rise to Good Reason, which written notice shall describe such circumstances in reasonable detail, (II) the Company shall have a period of thirty (30) days following receipt of such written notice to cure such circumstances; and (III) if the Company fails or refuses to cure such circumstances, you must resign within sixty (60) days following the end of such cure period.
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“Immediate Family Member” shall mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships.
“Initial Measurement Period” means the period beginning on [insert date that is the 2.5 year anniversary of the Grant Date] and ending on [insert date that is the day before the 5.5 year anniversary of the Grant Date].
“Measurement Period” means the Initial Measurement Period or Additional Measurement Period, as applicable.
“Percentage Earned” has the meaning set forth on Schedule 1 hereto.
“Performance Period” means the period beginning on Grant Date and ending on [insert the date that is the 5.5 year anniversary of the Grant Date], unless earlier terminated due to an Acquisition Event or otherwise in accordance with the terms and conditions of this Award Agreement.
“Performance Target” means the applicable target “Performance Level” for the Achievement Price stated on Schedule 1.
“Performance Units” means the restricted stock units granted pursuant to this Award.
“Permitted Transferee” means you, any of your Immediate Family Members, any trust where all the beneficiaries are any combination of you and/or any one or more of your Immediate Family Members (a “Permitted Trust”), or any entity where all the economic interests are held by any combination of you, any one or more of your Immediate Family Members, and/or any one or more Permitted Trusts, including, for the avoidance of doubt, any grantor retained annuity trust established by you as grantor and any revocable or irrevocable trust created by you; provided, that you (1) continue to have the voting and dispositive power over the Related Shares and (2) continue to report a direct or indirect interest in the Related Shares on your Form 4s following the Transfer..
“Related Shares” means the 500,000 Shares in the Company that you have directly or indirectly (including, without limitation, through a limited liability company owned and controlled by you) purchased pursuant to the Stock Purchase Agreement by and between RBI and you, dated as of November 15, 2022 (the “SPA”), and all Shares received by you upon settlement of the RSUs evidenced by that RSU Award Agreement between the Company and you, dated of even date herewith, less those sold or withheld by the Company or an Affiliate to pay applicable taxes due upon such settlement and/or upon your making an election under Code Section 83(b) in respect of such Shares, as applicable.
“Service” means the active performance of services for the Company or an Affiliate by you as an employee, a director or a consultant of the Company or an Affiliate. Notwithstanding the foregoing, if this Award is characterized as “nonqualified deferred compensation” within the meaning of Section 409A of the Code, an event shall not be considered to be a termination of your “Service” for purposes of payment of this Award unless such event is also a “separation from service” within the meaning of Section 409A of the Code.
“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
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applicable Performance Target levels is achieved for the Performance Period at the “Target” level of performance (as specified on Schedule 1 hereto). The number of Target Units is set forth on the cover page of this Award Agreement.
“Vesting Date” means the earlier of (i) May __, 2028, or (ii) the date that your Service terminates by reason of death, if your death occurs prior to May __, 2026.
“VWAP” means the per share volume-weighted average price on the New York Stock Exchange as displayed under the heading “Bloomberg VWAP” on the Bloomberg L.P. Screen for Shares in respect of the period 9:30 am to 4:00 pm (Eastern Time) for the applicable dates.
“Without Cause” means a termination of your Service by your Employer other than any such termination 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 and settle in accordance with the section below entitled, “Settlement of Earned Performance Units”, subject to (a) the Performance Level being not less than Threshold (as set forth on Schedule 1), (b) your continued Service through the Vesting Date, and (c) the Sections of this Award Agreement entitled “Determination of Number of Earned Performance Units”, “Termination”, and “Forfeiture of Unvested Performance Shares upon the Transfer of Related Shares”, in each case, except as expressly provided otherwise herein.
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 Earned Performance Units” and “Termination”.
Determination of Number of Earned Performance Units.
The number of Performance Units earned (together with the shares of Restricted Stock delivered pursuant to this Award Agreement, if any, the “Earned Performance Units”), if any, will be based on the Percentage Earned, as set forth on Schedule 1 and will be subject to the Section of this Award Agreement entitled “Termination.”
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Forfeiture of Unvested Performance Units upon the Transfer of Related Shares.
If any of the Related Shares are Transferred (other than pursuant to the laws of descent and distribution, or to any Permitted Transferee with respect to the Related Shares) before the earliest of (a) November __, 2027, (b) a Change in Control, (c) the termination of your employment or Service Without Cause, (d) your resignation with Good Reason, or (e) the termination of your employment or Service due to your death or Disability, you will immediately forfeit all Performance Units and Restricted Stock that relate to this Award Agreement; provided that, in the event that any Related Shares are Transferred in violation of the foregoing through no fault or voluntary action of your own or any Permitted Transferee, you and/or the Permitted Transferee (as applicable) shall have 60 days (which period shall be extended to the extent there are fewer than five (5) trading days during a trading window within such 60 day period) to attempt to undo such Transfer or replace the Related Shares so Transferred to maintain 500,000 Shares in the Company, and the forfeiture described in this sentence shall not occur unless and until Participant and/or the Permitted Transferee (as applicable) fails to undo or replace such Transfer within the applicable period.
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, as set forth below, subject to the section entitled “Termination” below:
If at least the “Target” level of performance, as set forth in Schedule 1, is achieved during the Initial Measurement Period, the “Target” number of Shares (the “Target Shares”) shall be delivered to you as soon as practicable, but in no event later than 60 days, after the date on which the achievement of this performance level has been ascertained by the Company. The Target Shares shall be delivered to you as Restricted Stock; provided that a portion of such Restricted Stock, equal in value to the aggregate taxes payable by you as a result of your making an election under Code Section 83(b) in respect of the Restricted Stock, and calculated using the then-highest marginal personal tax rate applicable to you) shall have the restrictions immediately lapse. Except as expressly provided in the section entitled “Termination” hereof, all restrictions on the Restricted Stock shall lapse, and the Restricted Stock shall become nonforfeitable, upon the Vesting Date. If your Service with the Company terminates before the Vesting Date with Cause or without Good Reason, or if you Transfer (other than pursuant to the laws of descent and distribution, or as expressly permitted hereunder and/or by the documents governing the terms and conditions of the Related Shares) any of the Related Shares before the earliest of (a) November __, 2027, (b) a Change in Control, (c) the termination of your Service Without Cause, (d) your resignation with Good Reason, or (e) the termination of your Service due to your death or Disability, you will immediately forfeit all Shares of Restricted Stock that have been transferred to you pursuant to this Award Agreement.
Additionally, if, during the period that runs from May __, 2027 until the Vesting Date, performance at a level above “Target” has been achieved, the difference between the number of Shares payable to you pursuant to Schedule 1 for the achieved level of performance and the number of Shares delivered to you upon the attainment of the “Target” level of performance (the “Additional Earned Units”) shall be delivered to you as soon as practicable following the Vesting Date.
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You will have no rights of a shareholder with respect to the Shares until such Shares have been delivered to you. Notwithstanding the foregoing and subject to the terms, conditions and restrictions set forth in this Award Agreement, you shall have, all rights of a holder of Shares, including voting rights, with respect to any shares of Restricted Stock that 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 in good faith the extent, if any, to which the Performance Target and the Performance Level have been 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. Notwithstanding anything in the Plan to the contrary, for the purposes of this Award Agreement, your Service will not be deemed to be terminated (a) in the event that you transfer your employment from the Company to any Affiliate or from an Affiliate to the Company or another Affiliate, as the case may be, (b) if at any time you are both an employee of the Company or any of its Affiliates and a member of the Board of Directors of the Company, unless both your Service as an employee and a board member are terminated, or (c) if, following your cessation of employment by the Company or any Affiliate and the cessation of your service on the Board, you continue to provide services to the Company or an Affiliate as a Consultant or other advisor, unless and until your services as a Consultant or other advisor, as applicable, are terminated.
If your Service terminates prior to the Vesting Date Without Cause, for Good Reason, or by reason of your death occurring on or after May, 2026 or Disability, and no Restricted Stock has been delivered to you pursuant to this Award Agreement prior to the date that your Service terminates, then you shall be vested on the Vesting Date in the number of Earned Performance Units, calculated as the number of Earned Performance Units determined in accordance with the section entitled “Determination of Number of Earned Performance Units” above, as if the Earned Performance Units subject to this Award vested 18.18% on each of November __, 2023, November __, 2024, November __, 2025, November __, 2026, November __, 2027, respectively, and the remaining 9.17% on May __, 2028 (in each case, regardless of whether your Service terminates prior to or during the Measurement Period), and you shall be entitled to receive the number of Shares equal to the applicable percentage of the number of vested Earned Performance Units in accordance with the section entitled “Settlement of Earned 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 on February 1, 2026, you would be entitled to receive 54.54% of the Target Units in
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settlement of your Earned Performance Units. For the avoidance of doubt, if your Service terminates for any reason prior to November __, 2023, you will forfeit all of your Performance Units (including your Earned Performance Units) without any consideration due to you.
If your Service terminates prior to the Vesting Date Without Cause, for Good Reason, or by reason of your death occurring on or after May __, 2026 or Disability, and shares of Restricted Stock have been previously delivered to you pursuant to this Award Agreement, then you shall be vested on the Vesting Date in:
(a)the number of shares of Restricted Stock as if the Restricted Stock subject to this Award vested 18.18% on each of November __, 2023, November __, 2024, November __, 2025, November __, 2026, November __, 2027, respectively, and the remaining 9.17% on May __, 2028; and
(b)the number of Additional Earned Units, if any, as if the Additionally Earned Units subject to this Award vested 18.18% on each of November __, 2023, November __, 2024, November __, 2025, November __, 2026, November __, 2027, respectively, and the remaining 9.17% on May __, 2028.
If your Service terminates prior to May __, 2026, by reason of your death, and no Restricted Stock has been delivered to you pursuant to this Award Agreement prior to the date that your Service terminates, you shall become immediately vested on the date of such termination in the number of Earned Performance Units, calculated at the “Target” level of performance (as set forth in Schedule 1), as if the Earned Performance Units subject to this Award vested 18.18% on each of November __, 2023, November __, 2024, November __, 2025, November __, 2026, November __, 2027, respectively, and the remaining 9.17% on May __, 2028 (in each case, regardless of whether your Service terminates prior to or during the Measurement Period).
Except in the case of your death, your Service terminates on the date specified in the written notice of termination or notice of resignation, if applicable, or if no such notice, the day of cessation of Service as determined by the Committee in good faith. For greater clarity, the date of termination of your Service will not be extended by any 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.
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 this Award 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 or by you for Good Reason, 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
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Measurement 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 greater of the Target Units or the Earned Performance Units or deemed Earned Performance Units based on the Performance Level achieved in accordance with Schedule 1 (including, for the avoidance of doubt, achievement of a Performance Level in excess of “Target”, without regard as to whether such achievement was achieved during the Additional Measurement Period), except that the Performance Period shall be deemed to have ended at the date of any such termination of your Service. 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 Without Cause, with Good Reason, or 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 end of the Performance Period. 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.
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. The Company shall sell or arrange for the sale of Shares that you acquire to meet the withholding obligation for Tax-Related Items, unless (i) you and the Company mutually agree that the Company will withhold the amount of Shares necessary to satisfy the Tax-Related Items, or (ii) you elect in your sole discretion to pay all withholding without the sale of Shares or withholding 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
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refund of any over-withheld amount in cash and will have no entitlement to the equivalent in Shares, or if not refunded, you may be able to 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 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.
Filing of Section 83(b) Election.
Within 30 days of any transfer of shares of Restricted Stock to you, you will file with the Internal Revenue Service and with the Company an election pursuant to section 83(b) of the Code to include in your taxable income for the year of the transfer the fair market value of the shares of Restricted Stock transferred to you. Any failure to timely file such election (including any extension provided by the Internal Revenue Service) will result in the Target Shares remaining Restricted Stock that shall vest and be delivered as otherwise provided in this Award Agreement.
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. 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.
Notwithstanding the foregoing, Dividend Equivalents will no longer accrue on any portion of the Performance Units that have been delivered to you in the form of Restricted Stock pursuant to this Award Agreement so long as you have timely made an election under Section 83(b) of the Code. If you have timely made an election under Section 83(b) of the Code, you will be entitled to receive payment of any dividends paid in the form of cash or property other than Shares with respect to the Restricted Stock, at the same time and in the same form as dividends are paid with respect to Shares owned by other shareholders of the Company; provided, however, that in the event any Restricted Stock is forfeited pursuant to this Award Agreement, you shall be required to immediately repay to the Company the value as of the date on which the dividend was paid, of any dividends you received with respect to those forfeited Restricted Stock, reduced by any federal, state or local taxes you paid with respect to those repaid
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dividends. Any dividends paid with respect to Restricted Stock in the form of Shares shall be treated as Restricted Stock, subject to the same terms and conditions that apply pursuant to this Award Agreement with respect to the underlying Restricted Stock. If you have not timely made an election under Section 83(b) of the Code, then Dividend Equivalents will continue to accrue on the Restricted Stock in the form of additional Restricted Stock subject to the same terms and conditions under this Award Agreement as the Restricted Stock 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 the Restricted Stock to which they relate.
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, except as otherwise provided herein or 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.
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:
In the event that, prior to the Vesting Date your Service is terminated for Cause, then the Company may require that you repay, and you shall promptly repay, to the Company, the Fair Market Value (in cash or in Shares) of any Shares received upon settlement of Performance Units on a net after-tax basis (not including, for the avoidance of doubt, the Fair Market Value of Shares sold or withheld to pay the applicable taxes due upon (i) settlement and (ii) making an election under Code Section 83(b) in respect of such Shares), together with the value as of the date on which the dividend was paid, of any dividends you received with respect to the Shares received following settlement of the Performance Units, reduced by any federal, state or local taxes you paid with respect to those repaid dividends. The Fair Market Value of any such Shares shall be determined as of the date on which the Performance Units were settled.
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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 in good faith.
Acknowledgment of Nature of Award.
In accepting the grant of this Award, you acknowledge that:
(a) the Plan is established voluntarily by the Company, and 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;
(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.
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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.
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
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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 (i) one or more Beneficiaries or other Transferees during your lifetime with the consent of the Committee or (ii) a Permitted Transferee. 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 in good faith, solely to the extent that such additional terms and/or conditions are not inconsistent with the terms and conditions of this Award Agreement.
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 in good faith 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, provided that, no such revision or amendment that would adversely affect your rights hereunder may be made without your prior consent.
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.
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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 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, as long as the same are made in good faith and do not conflict with the terms of 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.
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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 relocate to a country outside the U.S., the special terms and conditions for such country will apply to you and be provided 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. Such special terms and conditions 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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Schedule 1
The number of Performance Units that become Earned Units is determined based on the Company’s Achievement Price, as follows:
| | | | | | | | |
| Performance Level | Achievement Price | Percentage Earned (% of Target Units)* |
| Below Threshold | <US$81.32 | 0% |
| Threshold | US$81.32 | 50% |
| Target | US$97.87 | 100% |
| Maximum | US$122.23 | 200% |
*Achievement Price between listed Performance Levels will be based on linear interpolation to determine the Percentage Earned. The Percentage Earned shall be calculated rounded to six decimal places. Additionally, the Percentage Earned is subject to the Section of this Award Agreement entitled “Termination.”
DETERMINATION OF EARNED UNITS
The number of Earned Units equals the Percentage Earned based on the Achievement Price, multiplied by the number of Performance Units (including any Dividend Equivalents); provided that if the Percentage Earned is less than 50% then the number of Earned Units will be zero.
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Exhibit 99.1 
Restaurant Brands International Inc. Appoints Patrick Doyle as Executive Chairman
to Accelerate Growth
RBI Board of Directors believes Patrick Doyle’s appointment will unlock exceptional growth potential alongside current leadership
Mr. Doyle is one of the world’s most successful global QSR leaders; having doubled system-wide sales, delivered 29 consecutive quarters of same store sales growth, created ~$11B of shareholder value and increased home market franchisee profitability more than 2x while
CEO of Domino’s Pizza from 2010-2018
TORONTO – November 16, 2022 – Restaurant Brands International Inc. (“RBI”) (TSX: QSR) (NYSE: QSR) (TSX: QSP) has appointed Patrick Doyle, one of the world’s most successful QSR leaders, to become the company’s Executive Chairman, effective immediately. The Board of Directors believe that Mr. Doyle will be an important contributor to unlocking growth in the company based on his proven track record doing the same at Domino’s Pizza.
The appointment follows significant progress and investments at Tim Hortons Canada and Burger King US; strong system-wide sales growth at Burger King internationally and Popeyes; the acquisition of Firehouse Subs and returning to historical global unit growth.
As the former CEO of Domino’s Pizza from 2010 to 2018, Mr. Doyle led one of the restaurant industry’s most successful transformations by focusing on putting the guest experience first and being the best at digital ordering and food quality. During his tenure, he delivered 29 consecutive quarters of same store sale increases, system-wide sales growth of $5.6B to $13B, and an over 2x increase in home market franchisee profitability while creating approximately $11B of shareholder value and increasing the share price over 23x from nearly $12 in March 2010 to $271 in June 2018.
Daniel Schwartz and Alex Behring will continue to serve on the Board of Directors, demonstrating 3G Capital’s commitment to being a long-term shareholder in RBI. Mr. Behring is a co-founder of 3G Capital and is currently co-Managing Partner. Mr. Schwartz is the former CEO and Executive Chairman of RBI and co-Managing Partner of 3G Capital.
Since its 2010 acquisition of Burger King Holdings, 3G Capital has been the company’s largest shareholder supporting the company’s global growth transformation including the creation of RBI and acquisitions of Tim Hortons, Popeyes Louisiana Kitchen, and Firehouse Subs, generating approximately 21x in total shareholder returns(1).
“Patrick’s appointment as Executive Chairman is a huge addition to the already strong leadership team that we have built over the past few years. This is part of our long-term strategy to accelerate growth in our restaurant brands and profitability for our franchisees and drive shareholder returns that we believe the company is very capable of delivering,” said Mr. Schwartz and Mr. Behring, current co-Chairmen of the Board of Directors.
”I’m excited to work closely with Patrick and our leadership team to build the most loved restaurant brands in the world. This includes our intention to rapidly accelerate growth in the company and deliver on plans that result in exceptional service for our guests; and excellent returns for our franchisees and for all shareholders,” said Jose Cil, CEO of RBI.
“I love the restaurant industry. These are four exceptional brands with real opportunities for accelerated growth. Working closely with each of the brands’ franchisees, with Jose, the whole RBI team, and the Board of Directors, I am confident we can create one of the most compelling growth stories in the industry,” said Mr. Doyle, incoming Executive Chairman.
Mr. Doyle will make a personal investment to purchase 500,000 RBI shares for a value of approximately $30M and has agreed to maintain his investment for five years, subject to certain conditions, demonstrating his
1 Total shareholder returns calculated assuming $1.6 billion 2010 equity value of Burger King Holdings Inc. adjusted for the 2011 dividend recapitalization and includes cumulative dividends paid through September 30, 2022.
confidence in the shareholder value he is being retained to help create. The purchase is subject to regulatory approvals.
In addition, Mr. Doyle will receive a one-time equity package of 2,000,000 options granted at fair market value, vesting in 5 years; 500,000 restricted share units vesting ratably over five years; and 750,000 performance share units vesting in 5.5 years, with a 100% target performance tied to a roughly 10% compound annualized return in RBI’s share price over five years.
RBI’s Board of Directors believes Mr. Doyle’s compensation package reflects his unmatched performance as one of the world’s most successful QSR leaders and is fully aligned with shareholder interests as benefits are substantially realized upon significant improvement in company performance.
The Board also noted that the company’s path to profitable, long-term growth needs to be rooted in the continued success of our restaurants, including enhancing the guest experience, growing franchisee profitability and driving digital sales. Mr. Cil, his direct reports and their leadership teams across all four brands share compensation performance criteria related to comparable sales, net restaurant growth and Organic EBITDA growth as well as individual achievement criteria which may include franchisee profitability, guest satisfaction levels and digital sales targets.
About Restaurant Brands International:
Restaurant Brands International Inc. is one of the world's largest quick service restaurant companies with over $35 billion in annual system-wide sales and over 29,000 restaurants in more than 100 countries. RBI owns four of the world’s most prominent and iconic quick service restaurant brands – TIM HORTONS®, BURGER KING®, POPEYES®, and FIREHOUSE SUBS®. These independently operated brands have been serving their respective guests, franchisees and communities for decades. Through its Restaurant Brands for Good framework, RBI is improving sustainable outcomes related to its food, the planet, and people and communities. To learn more about RBI, please visit the company’s website at www.rbi.com.
Contacts
Investors: investor@rbi.com
Media: media@rbi.com
Forward-Looking Statements
This press release includes forward-looking statements, which are often identified by the words "may," "might," "believes," "thinks," "anticipates," "plans," "expects," "intends" or similar expressions and reflect management's expectations regarding future events and operating performance and speak only as of the date hereof. These forward-looking statements include statements about RBI's expectations and belief regarding its ability to accelerate global growth in our brands, increase profitability for franchisees, accelerate growth in shareholder returns, deliver exceptional service for guests and the impact of the current actions on such expectations as well as its expectation to successfully close the private placement. Other than as required under U.S. federal securities laws or Canadian securities laws, RBI undertakes no obligation to update these forward-looking statements to reflect events or circumstances after the date hereof.
The factors that could cause actual results to differ materially from RBI's expectations are detailed in filings of RBI with the U.S. Securities and Exchange Commission and on SEDAR in Canada, such as its annual and quarterly reports and current reports on Form 8-K, and include the following: risks related to RBI's ability to successfully implement its domestic and international growth strategy; risks related to RBI's ability to compete domestically and internationally in an intensely competitive industry; risks related to RBI's relationship with, and the success of, its franchisees and risks related to RBI's fully franchised business model; and macroeconomic factors that may affect the demand for RBI’s products or the profitability of its operations and those of its franchisees.