SEC Division of Corporation Finance no-action letter: Tim Hortons Inc.

FENWICK & WEST LLP

555 CALIFORNIA STREET, 12TH FLOOR SAN fRANCISCO, CA 94104 TEL 415.875.2300 FAX 415.281.1350 WWW.FENWICK.COM Securities Act of 1933

Section 4(3);

Rilles 144, 174(b) and 414;

Fonns S-3, S-4 and S-8

Securities Exchange Act of 1934

Section 12(b);

Rules 12b-2 and 12g-3(a);

Schedules 13D and 13G

September 9,2009
Via Overnight Courier and e-mail to OICFlnterp5@sec.gov Thomas J. Kim, Esq.

Chief Counsel

Paul M. Dudek, Esq.

Chief, Office of International Corporate Finance

Division ofCorporation Finance

Securities and Exchange Commission

100 F Street, N.E.

Washington, DC 20549

Re: Tim Hortons Inc.
Dear Messrs. Kim and Dudek:
We are acting as U.S. counsel to Tim Hortons Inc., a Delaware corporation ("THI USA"), and its proposed new holding company also named Tim Hortons Inc. ("New THT'), a corporation incorporated under the Canada Business Corporations Act (the "CBCA") and currently a wholly-owned subsidiary ofTHI USA, in connection with a proposed plan to reorganize the corporate structure of the group of companies THI USA controls under New THI (the "Reorganization"). On behalf ofTHI USA and New THI, we are hereby requesting confinnation from the Division of Corporation Finance (the "Staff') of our conclusions that, after the Reorganization, New THI will be the successor registrant to THI USA for various purposes under the Securities Act of 1933, as amended (the "Securities Act'), and the Securities Exchange Act of 1934, as amended (the "Exchange Acf'), as well as certain.other matters arising out ofthe Reorganization, all as more fully described below. This letter replaces our letter of July 9, 2009 and reflects oral comments received from the Staff. In connection with this request, the THI USA and New THI have authorized us to make on their behalfthe factual representations herein.

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I. BACKGROUND
THI USA is the fourth largest quick service restaurant chain in North America based on market capitalization. It appeals to a broad range of consumer tastes, with a menu that includes premium coffee, flavoured cappuccinos, specialty teas, home-style soups, fresh sandwiches and fresh baked goods, including its trademark donuts. The chain was founded in 1964 and sold to Wendy's International, Inc. ("Wendy's") in 1995, and in connection therewith, THI USA was incorporated as a Delaware corporation and became a wholly~owned subsidiary ofWendy's. In March 2006, THI USA completed an initial public offering ofits common stock, $0.001 par value per share (the "THI USA Common Stoc!C'), representing approximately 18% of the outstanding shares ofTHI USA Common Stock; the THI USA Common Stock became publicly traded on the New York Stock Exchange ("NYSE') and the Toronto Stock Exchange ("TS-X"); and THI USA became subject to the reporting requirements of Section 13 ofthe Exchange Act. In September 2006, Wendy's distributed all of the shares ofTHI USA Common Stock that it had continued to hold following the initial public offering (approximately 82% of all of the outstanding shares ofTHI USA) to its stockholders in a tax~free spinoffunder Section 355 ofthe Internal Revenue Code of 1986, as amended, and since that time, THI USA has operated as a standalone public company. THI USA has no securities outstanding other than shares ofTHI USA Common Stock, preferred share purchase rights (which trade together with the THI USA Common Stock until the occurrence of certain events) and equity awards granted under the Tim Hortons Inc. 2006 Stock Incentive Plan (the "Incentive Plan"). The only active effective registration statement ofTHI USA under the Securities Act is its registration statement on Form S-8 (No. 333-133663), covering the Incentive Plan (the "Form S-8"). To facilitate the Reorganization, THI USA has formed New THI as a wholly-owned subsidiary and THI Mergeco Inc., a Delaware corporation ("THI Mergeco"), as a wholly-owned subsidiary ofNew THI. New TID has no assets or liabilities other than nominal assets or liabilities and has not engaged in any business since its formation other than activities associated with its anticipated participatiqn in the Reorganization. THI Mergeco has no assets or liabilities other than nominal assets or liabilities and has not engaged in any business since its formation other than activities associated with its anticipated participation in the Merger (as defined below). On June 29,2009, New THI filed a registration statement on FOnTI S-4 (No. 333-160286) (the "Registration Statemenf') under the Securities Act, with the Securities and Exchange Commission (the "Commission"), which Registration Statement was subsequently amended on July 27,2009, August 7,2009 and August 12,2009, and declared effective by the Commission on August 12,2009. The Registration Statement, as amended, contains the definitive proxy statement ofTHI USA and
the final prospectus ofNew THI (the "Proxy Statement/Prospectus"), each addressing different aspects of the Reorganization, as more fully described below. On August 17, 2009, THI USA filed the Proxy Statement/Prospectus under

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September 9,2009
Schedule 14A under the Exchange Act for the special meeting ofTHI USA's stockholders (the
"Meeting") to be held on September 22, 2009 for the purpose of voting on the proposal to adopt the Merger Agreement contained in the Proxy StatementlProspectus.
II. THE REORGANIZATION
THI USA intends to effect the Reorganization through a series of transactions, including the Merger and subsequent reorganizations of THI USA and certain ofits subsidiaries. In connection with the Reorganization, by way of the Merger, New TIll will become the parent holding company ofTHI USA and the group of companies THI USA now controls. Upon consummation ofthe Merger and thereafter, New THI, together with its subsidiaries, will own and continue to conduct THI USA's business in substantially the same manner as it is currently being conducted by THI USA and its subsidiaries, and New THI will be managed by the same officers and directors as THI USA had immediately prior to the Merger, subject to resignations, removals and other changes in such positions following (but not related to) the Reorganization. The consolidated capitalization, assets and liabilities ofNew THI immediately following the Merger will be the same as those ofTHI USA immediately prior to the Merger. The Reorganization will commence with the merger ofTHI Mergeco with and into THI USA (the "Merger"), with TIll USA surviving the merger as a wholly-owned subsidiary ofNew THI, pursuant to the Agreement and Plan ofMerger (the "Merger Agreemenf'), dated August 6, 2009, among THI USA, New THI and TID Mergeco. Pursuant to Section 3.1 (b) ofthe Merger Agreement, each outstanding share ofTHI USA Common Stock will automatically convert into one common share ofNew TID (together with the associated share purchase rights ofNew THI described in the next sentence, "New THI Common Shares"). The preferred share purchase rights attached to the TIll USA Common Stock will expire upon the Merger and New THI will issue with each common share ofNew THI issued in the Merger and thereafter a share purchase right ofNew THI under a rights plan recently adopted by New THI. In addition, as part ofthe Merger, New THI will assume all ofTHI USA's rights and obligations under the employee benefit plans to which THI USA was a party, including the Incentive Plan, and New TIll Common Shares will be issuable to settle all equity awards previously granted under the Incentive Plan or to be granted under the Incentive Plan following the Merger, rather than shares ofTIll USA Common Stock. Due to the differences between the CBCA and Delaware law, as well as differences between New TIll's and TIll USA's charter documents, the Merger will effect some changes in the rights ofTHI USA's stockholders. The comparative differences between the CBCA and DGCL and the charter documents ofNew THI and TIll USA have been summarized under the headings "Description of Share Capital ofNew THI" and "Comparison ofRights of Stockholders/Shareholders" in the Proxy Statement/Prospectus.

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The Merger and the Reorganization cannot be completed unless the proposal to adopt the Merger Agreement contained in the Proxy StatementlProspectus is approved by the holders of a majority ofTHI USA's outstanding shares entitled to vote at the Meeting ("Stockholder Approvaf'). The future issuance of the New THI Common Shares in the Merger has been registered under the Registration Statement. Immediately following the Merger, the New TIll Common Shares will be listed on the NYSE and TSX under the symbol "THI," the same symbol under which the THI USA Common Stock is currently listed and traded. Following the Merger, it is anticipated that New TIll will qualify as a "foreign private issuer" as defined in Rule 3b-4 of the Exchange Act. However, as indicated in the Registration Statement, New TID expects that it will continue to file annual reports on Form 10-K, quarterly reports on Form IO-Q and current reports on Form 8-K for purposes of providing continuity with THI USA's previous Exchange Act filings. For similar reasons, New TIll currently intends to file Securities Act registration statements on Forms S-3, S-4 and S-8, rather than the corresponding forms for non-domestic issuers, in the event it decides to register its securities in the future. In addition, for so long as New THI has a class ofsecurities listed on the NYSE, New THI will be subject to the corporate governance requirements ofthe exchange and the U.S. Sarbanes-Oxley Act of2002. While New THI will not be subject to Section 14(a) ofthe Exchange Act as a foreign private issuer, under Canadian law, New THI will be required to prepare and file through the Canadian equivalent ofthe Commission's Next-Generation EDGAR System at least annually a management proxy circular and related materials in connection with its solicitation of proxies for meetings ofNew THI's shareholders. Such filings are also expected to be made available on the Commission's Next-Generation EDGAR System for purpose ofproviding continuity with THI USA's previous Exchange Act filings.
III. RELIEF REQUESTED
We request interpretive or no-action letter relief from the Staff through concurrence with each ofthe following conclusions, as discussed more fully under Section IV below. A. Rule 12g-3(a) and 12b-2. The Merger constitutes a "succession" for purposes of Rule 12g-3(a) under the Exchange Act, and the New THI Common Shares will be deemed registered under the Exchange Act by operation ofRule 12g-3(a) ofthe Exchange Act upon the fling ofthe Form 8-K containing the requisite statements on which reliance on Rule 12g-3(a) is conditioned. Further, as a result ofthe Merger, New THI will be deemed a "large accelerated filer" for purposes ofRule 12b-2 ofthe Exchange Act. B. Rule 414. The Form S-8 at the time ofthe Merger will thereafter, upon the filing by New TIll of an amendment thereto expressly adopting that registration statement as its own and the effectiveness ofsuch amendment, be deemed to be a registration statement ofNew THI as successor issuer for the purpose of continuing the offering under that registration statement.

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C. Forms S-3, S-4 and S-8. The activities and status ofTHI USA prior to the
Merger may be considered in detennining whether the requirements for the use ofvarious fonns ofregistration statements under the Securities Act, including Forms S-3, S-4 and S-8, are met by NewTHI. D. Rule 144(c)(1) and (e). THI USA's prior activities and the most recent report or statement published by THI USA prior to the Merger and the average weekly reported trading volume in THI USA's common stock during the time periods specified in Rule 144(e)(1) may be taken into account in determining whether New THI has complied with the current public information availability requirements ofRule 144(c)(1) under the Securities Act and the limitation on the amount ofNew THI Common Shares that maybe sold pursuant to Rule 144(e) under the Securities Act. E. Schedules 13D and 13G. Persons who have filed statements on Schedules 13D or 13G reporting ownership interests in THI USA Common Stock will not be required to file any additional or amended statements or fonns as a result ofthe Merger, provided they note in their next amendment filings that New THI is the successor issuer to THI USA. F. Section 4(3) Prospectus Delivery Requirement and Rule 174(b). With respect to the New THI Common Shares issued in connection with the Merger, New THI need not comply with the prospectus delivery requirements of Section 4(3) of the Securities Act. G. Commission File Number. After consummation ofthe Merger, New THI will succeed to the Commission file number currently used by THI USA. We note that the Staff has granted relief similar to that requested by this letter in many holding company fonnations and reincorporation transactions, consummated both with and without shareholder approval, including those involving foreign private issuers. All of the noaction letters to which we refer in Section IV below are examples ofletters that provide such relief.
IV. DISCUSSION
A. Rule 12g-3(a) and Rule 12b-2.
Rule 12g-3(a) under the Exchange Act provides that, where in connection with a succession by merger, securities of an issuer that are not already registered under Section 12 of the Exchange Act (such as the New THI Common Shares) are issued to holders of any class of securities of another issuer that are already registered under Section 12(b) or 12(g) (such as the THI USA Common Stock), then the class ofunregistered securities so issued shall be deemed to

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Office of International Corporate Finance be registered under the same paragraph ofSection 12. 1 In such a case, Rule 12g-3(f) requires the issuer ofthe class ofsecurities deemed registered under Section 12 according to Rule l2g-3(a) to indicate in the Form 8-K required to be filed in connection with the succession the paragraph of
Section 12 under which the class ofsecurities ofthe successor issuer is deemed issued.
A "succession" is defined in Rule l2b-2 as "the direct acquisition of assets comprising a going business, whether by merger, consolidation, purchase or other direct transfer." While New 1lII's acquisition through the Merger will not be "direct" because, as discussed above, it is acquiring ownership ofTHI USA and its subsidiaries in the Merger, rather than the assets comprising a going business, New THI will acquire such assets on a consolidated basis. Based on our review ofthe no-action letters listed below, we are ofthe view that this definition and Staffs interpretation thereof is broad enough to permit reliance on Rule 12g-3 under circumstances similar to those present in the Merger and Reorganization. Accordingly, we believe that New 1lII may rely on Rille 12g-3 to register the New THI Common Shares under the Exchange Act. The Staff has taken a similar position with respect to Rilles l2b-2 and 12g-3 in the context oftransactions similar to the Merger. See, e.g., Hungarian Telephone and Cable Corp., Invitel Holdings A/S (available February 27,2009) (relating to a change in domicile from Delaware to Denmark, where successor is a foreign private issuer); Weatherford International, Inc. and Weatherford International, Ltd. (available June 25,2002) (relating to a change in domicile from Delaware to Bermuda); and Nabors Industries, Inc. and Nabors Industries Ltd. (available April 29, 2002) (relating to a change in domicile from Delaware to Bermuda). See also Oncothyreon Inc. and Biomira Inc. (available January 31,2008) (relating to a change in domicile from Canada to Delaware) and Nortel Networks Corporation (available April 28, 2000) (relating to a reorganization ofCanadian foreign private issuers that voluntarily file U.S. domestic forms). For examples ofinstances in which the Staffhas taken a similar position with respect to concurrent common stock and preferred share purchase right issuances in connection with domestic holding company formations and reincorporation mergers, please see Pediatrix Medical Group, Inc. (available December 22,2008); ABXAir, Inc. (available June 13,2007); Southwestern Energy Company (available June 29,2006); Russell Corporation (available March 18,2004); Ampco-Pittsburgh Corporation (available January 22,2004); and Crown, Cork & Seal Company, Inc. (available February 25, 2003). See also ConocoPhillips (available August 23,2002) (interpretative reliefrequested for purposes of Rule 12g-3(c». THI USA is a "large accelerated filer" as defined by Rule 12b-2 ofthe Exchange Act. Because New 1lII will be the successor issuer to THI USA, we believe New 1lII should be deemed a large accelerated filer. The Staffhas taken a similar position on prior occasions that a successor issuer woilld be a successor to a company's status as a large accelerated filer under Rule 12b-2 of the Exchange Act. See, e.g., Willbros Group, Inc. (available February 27,2009); Galileo Holding Corporation (available December 19, 2008); and Roper
Industries, Inc. I This rule is not applicable if, upon consummation ofthe succession, (i) such class ofsecurities is exempt from such registration other than by Rule12g3-2 under the Exchange Act; (ii) all securities of such class are held ofrecord by less than 300 persons; or (iii) the securities issued in connection with the succession were registered on Form F-8 or Form F-80. However, none of these conditions will exist upon consummation ofthe Merger.

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(available July 1, 2007). See also Hungarian Telephone and Cable Corp., Invitel Holdings AIS, supra (relating to succession to accelerated filer status). Based upon the foregoing, we respectfully request confirmation of the conclusions set forth in Section ill.A. above. B. Rule 414. Rule 414 under the Securities Act provides that, where one issuer, except a foreign issuer exempted by Rule 3a12-3 under the Exchange Act, has been succeeded by another for the purpose of changing the State or country ofincorporation of the enterprises, or its form of organization, the registration statement of the predecessor issuer will be deemed the registration statement ofthe successor for purposes of continuing the offering if, in relevant part: (1) immediately prior to the succession the successor had no assets or liabilities other than nominal assets or liabilities; (2) the succession was effected by a merger or similar succession pursuant to statutory provisions under which the successor acquired all the assets and assumed all the liabilities and obligations ofthe predecessor; (3) the succession was approved by security holders ofthe predecessor at a meeting for which proxies were solicited pursuant to Section 14(a) ofthe Exchange Act; and (4) the successor files an amendment to the registration statement ofthe predecessor expressly adopting such registration statement as its own for all purposes of the Securities Act and the Exchange Act and such amendment has become effective. Notwithstanding the exception to this Rule, the Staffhas permitted foreign private issuers to rely on Rule 414. See, e.g., Shire Pharmaceuticals Group Plc and Shire Plc (available November 17, 2005); Nortel Networks Corporation, supra; Reuters Holdings PLC and Reuters Group PLC (available February 17, 1998); and NOVA Corporation ofAlberta (available April 1, 1994). The Staffhas also permitted reliance on Rule 414 under circumstances similar to those present in the Merger and Reorganization. See, e.g., Willbros Group, Inc., supra; Mentor Corporation (available September 26,2008); and Nabors Industries, Inc. and Nabors Industries Ltd., supra. Upon consummation ofthe Merger, we believe the first three ofthese requirements will be satisfied. As noted above, New THI was formed for the purpose offacilitating the Reorganization and does not have, and prior to the consummation ofthe Merger will not have, any assets or liabilities other than nominal assets or liabilities. With regard to the second requirement, the Merger will result in New TIll acquiring the same consolidated capitalization, assets and liabilities that THI USA had immediately prior to the Merger. While the Merger will not result in the direct acquisition of assets and assumption ofliabilities and obligations ofTHI USA, based on our review ofthe above-referenced no-action letters, it appears that the Staffhas previously not viewed this technicality ofRule 414(b) as preventing reliance on Rule 414 under circumstances similar to
those present in the Merger and Reorganization. As noted above, THI USA will hold a special meeting of its stockholders for the purpose of obtaining Stockholder Approval and will solicit proxies for that meeting pursuant to Section 14(a) of the Exchange Act. As the Merger and Reorganization cannot be effected without Stockholder Approval ap.d stockholders are receiving full information about the Merger and Reorganization in the Proxy

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StatementJProspectus, we believe that if Stockholder Approval is obtained it would constitute approval ofthe succession for purposes ofthe third requirement. Following the Merger, to satisfy the fourth requirement ofRule 414, New THI, as successor issuer, will file a post-effective amendment to the Form S-8 expressly adopting that registration statement as its own registration statement for all purposes ofthe Securities Act and the Exchange Act. Accordingly, we respectfully request confirmation of the conclusion set forth in Section IIlB. above.
C. 8-3, 8-4 and 8-8 Eligibility Requirements.
General Instruction I.A.7. to Form S-3 under the Securities Act deems a successor registrant to have met the conditions for eligibility to use Form S-3 set forth in General Instructions lA.1., 2., 3. and 5. to Form S-3 if (a)(i) its predecessor and it, taken together, meet such conditions; (ii) the succession was primarily for purposes of changing the state of incorporation or forming a holding company; and (iii) the assets and liabilities ofthe successor at the time ofthe succession were substantially the same as those ofthe predecessor; or (b) if all predecessors met the conditions at the time of succession and the registrant has continued to do so since the succession. Consistent with General Instruction I.A.7 to Form S-3, the proposed succession ofNew THI to the business, operations, assets and liabilities ofthe THI USA will be primarily for the purpose of changing its jurisdiction ofincorporation from Delaware to Canada,2 and the consolidated assets and liabilities ofNew THI immediately after the consummation ofthe Merger will be the same as the consolidated assets and liabilities ofTHI USA immediately before the consummation of the Merger. Further, THI USA currently meets the conditions for use ofForm S-3 and expects to do so immediately prior to the consummation ofthe Merger. Consistent with prior no-action letters, the fact that the succession involves a holding company formation and reincorporation merger should not affect the analysis. See, e.g., Mentor Corporation, supra; Weatherford International, Inc. and Weatherford International, Ltd., supra; and Nabors Industries, Inc. and Nabors Industries Ltd., supra. Accordingly, we believe that after the Merger and Reorganization are completed, New TIll will be entitled to take into account THI USA's acts and status prior to thf, effective time ofthe Merger in determining whether New THI is eligible to use Form S-3, and in determining whether New THI "meets the requirements for use ofForm S-3" as such phrase is used in General Instructions B.1.a. and B.1.b. to Form S-4. Such determinations would be consistent with prior determinations ofthe Staffwith respect to the eligibility for use of Forms S-3 and S-4 in the context of transactions similar to the Merger and Reorganization. See, e.g., Willbros Group, Inc., supra; Mentor Corporation, supra; 2 In prior no-action letters, the Staffhas pennitted reliance on General Instruction LA.? in cases where the company is changing its country of incorporation, rather than its "state" of incorporation. See, e.g., Wil/bros Group, Inc., supra; Weatherford International Inc., supra; and Nabors Industries, Inc. and Nabors Industries Ltd., supra.

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Oncothyreon Inc. and Biomira Inc., supra; Weatherford International, Inc. and Weatherford International, Ltd., supra; and Nabors Industries, Inc. and Nabors Industries Ltd., supra. See also Nortel Networks Corporation, supra. Similarly, it is our view that, upon conswnmation ofthe Merger, New THI will be entitled to rely on the prior activities and annual reports ofTHI USA in determining whether it shall be deemed to have met the requirements ofGeneral Instruction A.l to Form S-8. We note, as discussed above, that the Staffhas on numerous occasions permitted a holding company to file registration statements on Form S-8 or post~effectiveamendments to a Form S-8 following a succession transaction to register shares to be issued pursuant to assumed employee benefit plans. See, e.g., Hungarian Telephone and Cable Corp., Invitel Holdings A/S, supra; Willbros Group, Inc., supra; Oncothyreon Inc. and Biomira Inc., supra; Weatherford International, Inc. and Weatherford International, Ltd., supra; and Nabors Industries, Inc. and Nabors Industries Ltd., supra. Based upon the foregoing, we respectfully request confirmation of the conclusions set forth in Section m.c. above. D. Rule 144(c)(1) and (e). Rule 144(c) under the Securities Act requires that, in order for sales of securities to be made in reliance on the "safe harbor" provided by Rule 144, "adequate current public information with respect to the issuer ofthe securities must be available." Pursuant to Rule 144(c)(1), this requirement will be deemed to be satisfied where the issuer (i) is, and has been for a period of at least 90 days immediately before the sale ofthe securities, subject to the reporting requirements of Section 13 or 15(d) ofthe Exchange Act, (ii) has filed all ofthe reports required to be filed by it under Section 13 for the 12 months preceding such sale (or for such shorter period that it was required to file such reports); and (iii) submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 ofRegulation S-T, during the 12 months preceding such sale (or for such shorter period that it was required to submit and post such files). In the circumstances ofthe Merger and Reorganization, we believe that Rule 144 should be available to affiliates ofNew THI during the first 90 days after the consummation ofthe Merger, even though as a technical matter, the requirements ofRule 144(c)(1) will not have been methy New THI. We believe that New THI should be entitled to take the prior activities ofTHI USA into account for purposes ofdetermining whether or not the Rule 144(c)(1) eligibility requirements have been satisfied. In the case of this Reorganization, we believe the information to be furnished to the public concerning New THI would be adequate and current. THI USA has been a reporting company under the Exchange Act since 2006. All reports required to be filed by THI USA under the Exchange Act
have been timely filed or will be timely filed prior to the Merger, including a current report on Form 8~K with respect to THI USA's conswnmation of the Merger. Every Interactive Data File required to be submitted and posted by THI USA pursuant

Office of International Corporate Finance to Rule 405 ofRegulation S-T also has been or will be timely submitted electronically and posted on THI USA's corporate Web site prior to the Merger. In addition, immediately after the Merger, New THI will have the same consolidated assets, businesses, management and operations as THI USA had immediately prior to the Merger. Since the purpose ofRule 144(c)(1) is to ensure that adequate information about the issuer and its securities is available, we believe strict compliance with the 90-day waiting period in the case ofthe Reorganization is not necessary to effectuate the purpose ofthe Rule 144 because TIll USA prior to the Merger and New THI after the Merger and their respective securities at such times represent substantially the same company or securities from an investor's perspective, and there will be no break in the amount and quality of current public information about THI USA before the Merger and about New TIll after the Merger.3 Accordingly, we believe that TIll USA's prior activities and the most recent report or statement published by TID USA prior to the Merger may be taken into account in determining whether New THI has complied with the current public information availability requirements ofRule 144(c)(1) under the Securities Act. The Staffhas taken similar positions in the context of comparable transactions. See, e.g., Hungarian Telephone and Cable Corp., Invitel Holdings A/S, supra; Willbros Group, Inc., supra; Oncothyreon Inc. and Biomira Inc., supra; Weatheiford International, Inc. and Weatheiford International, Ltd., supra; Nabors Industries, Inc. and Nabors Industries Ltd., supra.; and PXRE Corporation and PXRE Group Ltd. (available September 23, 1999). In addition, because the same number ofNew THI Common Shares will be outstanding immediately after the Merger as the number ofshares ofTHI USA Common Stock immediately prior to the Merger, and because the New TIll Common Shares will represent an investment that is substantially the same as an investment in TIll USA Common Stock for the reasons discussed above, we believe that the most recent report or statement published by TIll USA prior to the Merger may be taken into account by holders ofNew THI Common Shares in determining the applicable limitation on the amount ofNew THI Common Shares which may be sold in compliance with Rule 144(e)(1). We also believe that the average weekly reported volume of trading in TIll USA Common Stock during the time periods specified in Rule 144(e)(1) occurring immediately prior to the Merger may be taken into account by holders ofNew TIll Common Shares in determining the applicable limitation on the amount ofNew THI Common Shares which may be sold in compliance with Rule 144(e)(I). The Staffhas taken a similar position with respect to Rule 144 in the context oftransactions similar to the Merger and Reorganization. See, e.g., Hungarian Telephone and Cable Corp., Invitel Holdings A/S, supra; Oncothyreon
Inc. and Biomira Inc., supra; Weatheiford International, Inc. and Weatherford International, Ltd., supra; and Nabors Industries, Inc. and Nabors Industries Ltd., supra. 3 In this regard, as a "well-known seasoned issuer" as defined in Rule 405 under the Securities Act, THI USA is among the issuers that are "presumptively the most widely followed in the marketplace," and in fact has frequent dialogue with investors and market participants through the press and other media and its communications are scrutinized and written about by the press and investing community. Release No. 33-8591 (July 19,2005) at page 23. As Till USA's successor issuer following the Merger and Reorganization, New TIll will be subject to the reporting requirements of Section 13 ofthe Exchange Act and is expected to have the same following among, and ongoing dialogue with, investors and market participants.

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Based upon the foregoing, we respectfully request confirmation of the conclusions set forth in Section III.D. above. E. Schedules 13D and 13G.
Section 13(d)(I) ofthe Exchange Act and Rule 13d-l thereunder require that a person
who acquires more than five percent of an equity security registered pursuant to Section 12 of the Exchange Act file a statement on Schedule 13D or 130. Section 13(d)(2) of the Exchange Act and Rule 13d-2 thereunder require the Schedule 13D to be amended promptly when material changes in ownership occur and require the Schedule 130 to be amended within 45 days after the end of each calendar year. Although these requirements would obligate persons who have filed a Schedule 13D or 130 for securities ofTHI USA to amend or file a new Schedule 13D or 13G for securities ofNew THI promptly following the Merger, we believe that such prompt action is not required, as immediately following the Merger, New THI will represent the same company on a consolidated basis as did THI USA immediately prior to the Merger and, if the Staff confirms the conclusion set forth above in Section ill.G, will have the same Commission file number as its predecessor. Previous no-action letters support the conclusion that persons who have filed a Schedule 13D or 13G for securities ofTHI USA should not be required to file a new or amended Schedule 13D or 130 as a result ofthe Merger, provided they state in their next amendment to Schedule 13D or 130 that New THI is deemed the successor issuer to THI USA for purposes of filings under Section 13(d). See, e.g., Hungarian Telephone and Cable Corp., Invitel Holdings AIS, supra; Willbros Group, Inc., supra; Oncothyreon Inc. and Biomira Inc., supra; Weatherford International, Inc. and Weatherford International. Ltd., supra; Nabors Industries, Inc. and Nabors Industries Ltd., supra; and Nortel Networks Corporation, supra. Based upon the foregoing, we respectfully request confirmation of the conclusions set forth in Section III.E. above. F. Section 4(3) Prospectus Delivery Requirement and Rule 174(b). Rule 174(b) under the Securities Act provides that no prospectus need be delivered pursuant to Section 4(3) of Securities Act if the issuer is a reporting company under the Exchange Act immediately prior to the filing ofthe registration statement. As noted above, THI USA is a reporting company under the Exchange Act and has been such for several years. New Till will, immediately after the Merger, have, on a consolidated basis, the same assets, liabilities, business and operations as THI USA had, on a consolidated basis, immediately before the Merger, and will be the successor to THI USA. Accordingly, we believe New THI should be exempt from the prospectus delivery requirement of Section 4(3) of the Securities Act by reason ofRule 174(b). The Staff has taken similar positions with respect to Section 4(3) in the context of transactions similar to the Merger. See, e.g., Oncothyreon Inc. and Biomira Inc., supra; Weatherford International, Inc. and Weatherford International, Ltd., supra; Nabors Industries, Inc. and Nabors Industries Ltd., supra.

Office ofInternational Corporate Finance
September 9,2009
Based upon the foregoing, we respectfully request confirmation ofthe conclusion set forth in Section m.F. above. G. Commission File Number In Release No. 34-38850 (July 18, 1997), the Commission eliminated Form 8-B, which pertained to the registration of securities of certain successor issuers under Sections 12(b) and 12(g) ofthe Exchange Act, effective September 2, 1997. In connection with such action, the Commission adopted amendments to Rule 12g-3 under the Exchange Act to include any transactions or securities that previously were covered by Form 8-B, but not by Rule 12g-3. Under Rule 12g-3, as amended, the securities of a successor to an issuer whose securities are registered under Section 12(b) also will be deemed registered under Section 12(b) and listed on the same national securities exchange. Under this Rule, successor issuers automatically inherit the Exchange Act reporting obligations oftheir predecessors and file a Form 8-K to note the succeSSIon. In this regard, the Commission had previously assigned a "Commission File Number" to registrants at the time they file a Form 8-A or Form 8-B for purposes of Exchange Act reporting purposes. The Release discussed above did not specifically address how, in light ofthe elimination of Form 8-B, a Section 12(b) successor registrant would obtain a Commission file number. However, SEC Division ofCorporation Finance Compliance and Disclosure Interpretations (updated September 30,2008) (the "C&DIs"), at Section 150 (Rule 12g-3), Interpretation No. 150.01 (under "Exchange Act Rules"), relating to the succession of an issuer pursuant to Rule 12g-3 under the Exchange Act, states that "[t]he securities of a successor issuer described in Rule 12g-3 are deemed to be registered under Section 12 by operation oflaw, and no Exchange Act registration statement on Form 8-A or any other form therefore need be filed. Under Rule 12g-3(f), the successor must file a Form 8-K with respect to the succession transaction using the predecessor's file number. After the Form 8-K is filed, a new file number will be generated for the successor company." Interpretation 150.01 of the C&DIs does not specifically address the question ofwhether a Section 12 successor registrant can succeed to the Commission file number ofits predecessor. Because New TIll will be the successor to THI USA and it is our view that shareholders ofthe successor company would benefit from the convenience and simplicity ofbeing able to access all ofTIII USA's and New TRI's filings under the Exchange Act in one location on the Commission's Next-Generation EDGAR System, we believe that New THI can assume and use the Commission file number currently used by TIII USA. We note that the Staffhas taken similar positions with respect to successors in situations similar to the Merger and Reorganization. See, e.g., Willbros Group, Inc., supra; Ford Motor Credit Co. (available March 21,2007); and Southwestern Energy Company (available June 29,2006).

Office ofInternational Corporate Finance
Based upon the foregoing, we respectfully request confirmation ofthe conclusion set

forth in Section III.G. above.

v. Conclusion.
For the reasons set forth above, we respectfully request that the Staff concur with our views on the matters discussed herein. Iffor any reason you do not concur with our conclusions, we would appreciate the opportunity to discuss these matters with members ofthe Staffby telephone prior to any written response to this letter. If you require additional information or would like to discuss any ofthe foregoing matters, please do not hesitate to contact the . undersigned at (415) 875-2479 or my partner, Daniel J. Winnike, at (650) 335-7657. Sincerely, L I L1--, ,./i .- 1ZJ l ··L. illiam L. H~ghes 1J cc: Jill E. Aebker, Esq., Associate General Counsel and Secretary, Tim Hortons Inc.

Daniel 1. Winnike, Esq., Fenwick & West LLP

Incoming Letter

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