EX-10.44 Form of Performance Award Agreement for R



 





Exhibit 10.44




BURGER KING HOLDINGS, INC.

2006 OMNIBUS INCENTIVE PLAN




PERFORMANCE AWARD




RESTRICTED STOCK UNITS




     Unless defined in this Performance Award Agreement (this “Award Agreement”), capitalized terms
will have the same meanings ascribed to them in the Burger King Holdings, Inc. 2006 Omnibus
Incentive Plan (as it may be amended from time to time, the “Plan”).



     Pursuant to Section 10 of the Plan, you have been granted a Performance Award on the
following terms and subject to the provisions of the Plan, which is incorporated herein by
reference. In the event of a conflict between the provisions of the Plan and this Award Agreement,
the provisions of the Plan will govern.



	 	 	 
	Individual Performance Award:

	 	The number of Restricted Stock Units
underlying your Individual Performance Award
is available at www.ml.com under the Grant
Information section.
	 
	 	 
	Performance Period:

	 	July 1, 2007 through and ending on June 30,
2008 (the “Performance Period”)
	 
	 	 
	Date of Grant:

	 	August 27, 2007
	 
	 	 
	Vesting Schedule:

	 	3 Year Cliff
	 
	 	 
	Vesting Date:

	 	August 27, 2010






     By your electronic acceptance, 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.



 









 





EXHIBIT A




TERMS AND CONDITIONS OF THE

PERFORMANCE AWARD




No Payment for Shares.




     No payment is required for RSUs that you receive under this Award.



     Nature of Award.



     The Individual Award represents the opportunity to receive the number of RSUs earned as
provided for below under “Determination of Number of RSUs Earned,” subject to the sections below
entitled “Settlement of RSUs” and “Termination”. To the extent dividends are paid on Shares during
the period from the Date of Grant, but prior to the settlement of the RSUs, you shall receive an
amount in cash or shares (to be determined by the Company) for each of your vested and unvested
RSUs equal to the amount per share of the dividend, but such amount of cash or shares shall not be
paid out to you until settlement of the RSUs.



Determination of Number of RSUs Earned.




     The number of “RSUs” earned as of the end of a Performance Period, if any, shall be determined as follows:



[# of RSUs = Company Performance Factor x Individual Award]




The “Company Performance Factor” shall be determined by the Committee in its sole discretion based
on: Profit before Taxes.



Settlement of RSUs.




     The Company shall deliver to you that number of Shares equal to the number of RSUs earned as
of the end of the Performance Period, as determined above, on or as soon as practicable after the
Vesting Date, subject to the section entitled “Termination” below.You will have no rights
of a shareholder with respect to the RSUs until the Shares represented by the RSUs have been
delivered to you.



Termination.




     Except as set forth below in this section, upon a termination of your employment for any
reason you will forfeit all of your Performance Awards that are unvested at the time of
termination, regardless of whether they have been earned, without any consideration due to
you.



     In the case of RSUs that have a cliff vesting schedule, if your employment terminates after
the one-year anniversary of the Date of Grant, but prior to the Vesting Date by reason of death,
Retirement or Disability, you will become vested, on the date of termination, in the number of RSUs
that you would have been entitled to on the Grant Date anniversary immediately preceding the
termination date, as if the vesting schedule had been in equal annual installments over the vesting
period. For example, if the earned RSUs under this Award equal 400 Shares, the cliff vesting
period is four years, and your employment terminates in month 30 after the Date of Grant due to
Disability, you will become immediately vested in 200 RSUs.



     Further, in the event of involuntary termination of your employment (whether or not in breach
of local labor laws), your right to receive RSUs and vest under the Plan, if any, will terminate
effective as of the date that you are no longer actively employed and will not be extended by any
notice period mandated under local law (e.g., active employment would not include a period of
“garden leave” or similar period pursuant to local law); furthermore, in the event of involuntary
termination of employment (whether or not in breach of local labor laws), your right to receive
RSUs pursuant to the Individual Award after termination of employment, if any, will be measured by
the date of termination of your active employment and will not be extended by any notice period
mandated under local law; the Committee shall have the exclusive discretion to determine when you
are no longer actively employed for purposes of the Individual Award.



 









 





     In
the event that a Change in Control occurs and, within twenty-four months
following the date of such Change in Control, your employment is terminated by the Company Without
Cause (as defined below), upon such termination you will become vested in, and entitled to receive,
the number of RSUs equal to the Individual Award if your termination occurs prior to the end of the
Performance Period, and thereafter, the total number of RSUs. Additionally, if you are subject to
an employment agreement or offer, promotion or confirmation letter with the Company or one of its
Affiliates (“Employment Agreement”) that includes a definition of the term “Good Reason”, then in
the event that a Change in Control occurs and, within twenty-four months following the date of such
Change in Control, your employment is terminated by you for Good Reason (as defined in the
Employment Agreement), upon such termination you will become vested in, and entitled to receive,
the number of RSUs equal to the Individual Award if your termination occurs prior to the end of the
Performance Period, and thereafter, the total number of RSUs.



     In the event that there is a conflict between the terms of this Award Agreement regarding the
effect of a termination of employment on your Award and the terms of any Employment Agreement, the
terms of your Employment Agreement will govern.



     For purposes of this Award Agreement, the following terms shall have the following
meanings:



“Cause” means (i) a material breach by you of any of your obligations under
any written agreement with the Company or any of its Affiliates, (ii) a material violation by you
of any of the Company’s policies, procedures, rules and regulations applicable to employees
generally or to employees at your grade level, including without limitation, the Burger King
Companies’ Code of Business Ethics and Conduct, in each case, as they may be amended from time to
time in the Company’s sole discretion; (iii) the failure by you to reasonably and substantially
perform your duties to the Company or its Affiliates (other than as a result of physical or mental
illness or injury); (iv) your willful misconduct or gross negligence that has caused or is
reasonably expected to result in material injury to the business, reputation or prospects of the
Company or any of its Affiliates; (v) your fraud or misappropriation of funds; or (vi) the
commission by you of a felony or other serious crime involving moral turpitude; provided that if
you are a party to an Employment Agreement at the time of your termination of employment and such
Employment Agreement contains a different definition of “cause” (or any derivation thereof), the
definition in such Employment Agreement will control for purposes of this Award Agreement.



     If you are terminated Without Cause and, within the twelve (12) month period subsequent to such
termination of employment, the Company determines that your employment could have been terminated
for Cause, subject to anything to the contrary that may be contained in your Employment Agreement
at the time of your termination of employment, your employment will, at the election of the
Company, be deemed to have been terminated for Cause, effective as of the date the events giving
rise to Cause occurred.



“Disability” means (i) a physical or mental condition entitling you to benefits under the long-term
disability policy of the Company covering you or (2) in the absence of any such plan, a physical or
mental condition rendering you unable to perform your duties for the Company or any of its
Affiliates 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 your termination of employment 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.



“Retirement” means a termination of employment by you on or after the later of (i) your
55th birthday and (ii) your completion of ten years of employment with the Company or
its Affiliates.



“Without Cause” means a termination of your employment other than by the Company for Cause, by
you for any reason, or by reason of your death or Disability (as defined above) ; provided that if
you are a party to an Employment Agreement at the time of your termination of employment 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.



Settlement.




     Except to the extent that you have made a timely election to defer the receipt of Shares upon
vesting of this Award pursuant to such
rules as have been established by the Committee, the Company
shall deliver to you Shares underlying those RSUs that vest in accordance with this Award Agreement
as soon as practicable following the relevant vesting date.



Taxes.




     Regardless of any action the Company or your employer (the “Employer”) takes with respect to any or
all income tax, social insurance, 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 (1)
make no representations or undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Individual Award, including the grant or vesting of the
Individual Award, the subsequent sale of Shares acquired pursuant to such



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vesting and settlement and the receipt of any dividends; and (2) do not commit to structure the
terms of the grant or any aspect of the Individual Award to reduce or eliminate your liability for
Tax-Related Items.



     Prior to settlement of the Individual Award, you will pay or make adequate arrangements
satisfactory to the Company and/or the Employer to satisfy all withholding and payment on account
obligations of the Company and/or the Employer. In this regard, you authorize the Company and/or
the Employer to withhold all applicable Tax-Related Items legally payable by you from your wages or
other cash compensation paid to you by the Company and/or the Employer or from proceeds of the sale
of Shares issued upon settlement of the RSUs. Alternatively, or in addition, if permissible under
local law, the Company may (1) sell or arrange for the sale of Shares that you acquire to meet the
withholding obligation for Tax-Related Items, and/or (2) withhold in RSUs, provided that the
Company only withholds the amount of RSUs necessary to satisfy the minimum withholding amount. If
the Company or the Employer satisfies the obligation for Tax-Related Items by withholding a number
of whole RSUs as described herein, you will be deemed to have been issued the full number of RSUs
subject to this Award, notwithstanding that a number of the RSUs is held back solely for the
purpose of paying the Tax-Related Items due as a result of the vesting and settlement of this
Individual Award. 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 receipt of RSUs that cannot be satisfied by the means previously
described. The Company may refuse to honor the vesting and refuse to settle the RSUs 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 performance, vesting and settlement of this Individual
Award as provided herein is earned only by continuing as an employee at the will of the Company
(not through the act of being hired or being granted this Individual Award). You further
acknowledge and agree that this Award Agreement, the transactions contemplated hereunder and the
performance, vesting and settlement terms do not constitute an express or implied promise of
continued employment for any period or at all and will not interfere in any way with your right or
the Company’s or any Affiliate’s right to dismiss you from employment at any time or for any reason
not prohibited by law and will not confer upon you any right to continue your employment for any
specified period of time.



Termination for Cause; Restrictive Covenants.




     In consideration for the grant of this Individual Award and for other good and valuable
consideration, the sufficiency of which is acknowledged by you, you agree as follows:



Upon (i) a termination of your employment for Cause, (ii) a retroactive termination of your
employment for Cause as permitted herein or under your Employment Agreement, (iii) a violation of
any post-termination restrictive covenant (including, without limitation, non-disclosure,
non-competition and/or non-solicitation) contained in your Employment Agreement or (iv) a violation
of any post-termination restrictive covenant (including, without limitation, non-disclosure,
non-competition and/or non-solicitation) contained in any separation or termination or similar
agreement you may enter into with the Company or one of its Affiliates in connection with your
termination of employment, any RSUs you then hold that have not been settled shall be immediately
forfeited and the Company may require that you repay (with interest or appreciation (if any), as
applicable, determined up to the date payment is made), and you shall promptly repay (in cash or in
Shares), to the Company, the Fair Market Value of any Shares (including Shares withheld for taxes)
received upon the settlement of RSUs during the period beginning on the date that is one year
before the date of your termination and ending on the first anniversary of the date of your
termination. The Fair Market Value of any such Shares shall be determined as of the date the RSUs
were settled.



Company’s Right of Offset




     If you become entitled to a distribution of benefits under this Individual 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, may offset such
amount so owing against the amount of benefits otherwise distributable.



Acknowledgment of Nature of Award. 




     In accepting this grant of an Individual Award, you acknowledge that:



     (a) the Plan is established voluntarily by the Company, it is discretionary in nature and may
be modified, amended, suspended or terminated by the Company at any time, as provided in the Plan;



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     (b) this grant of an Individual Award is voluntary and occasional and does not create any
contractual or other right to receive future awards of RSUs, or benefits in lieu RSUs even if RSUs
have been awarded repeatedly 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 Individual Award is an extraordinary item that does not constitute compensation of
any kind for services of any kind rendered to the Company or to the Employer and is outside the
scope of your employment contract, if any;



     (f) this Individual Award is 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;



     (g) neither this Individual Award nor any provision of this Award Agreement, the Plan or the
policies adopted pursuant to the Plan confer upon you any right with respect to employment or
continuation of current employment, and in the event that the Employee is not an employee of the
Company, RSUs shall not be interpreted to form an employment contract or relationship with the
Company;



     (h) the future value of the underlying Shares is unknown and cannot be predicted with
certainty;



     (i) if you receive Shares, the value of such Shares acquired upon vesting and settlement of
RSUs may increase or decrease in value; and



     (j) no claim or entitlement to compensation or damages arises from termination of this
Individual Award, and no claim or entitlement to compensation or damages shall arise from any
diminution in value of the RSUs or Shares received upon vesting and settlement of the RSUs
resulting from termination of your employment by the Employer (for any reason whatsoever and
whether or not in breach of local labor laws) and you irrevocably release the Company and the
Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is
found by a court of competent jurisdiction to have arisen, then, by signing this Award Agreement,
you shall be deemed irrevocably to have waived your entitlement to pursue such claim.



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, its Subsidiaries and its affiliates for the exclusive
purpose of implementing, administering and managing your participation in the Plan.



     You understand that the Company and the Employer may hold certain personal information about
you, including, but not limited to, your name, home address and telephone number, date of birth,
social insurance number 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, for the purpose of
implementing, administering and managing the Plan (“Data”). You understand that Data may be
transferred to any third parties assisting in the implementation, administration and management of
the Plan, that these recipients may be located in the Employee’s country, or elsewhere, and that
the recipient’s country may have different data privacy laws and protections than your country.
You understand that you may request a list with the names and addresses of any potential recipients
of the Data by contacting your local human resources representative. You authorize the recipients
to receive, possess, use, retain and transfer the Data, in electronic or other form, for the
purposes of implementing, administering and managing your participation in the Plan, including any
requisite transfer of such Data as may be required to a broker, escrow agent or other third party
with whom the Shares received upon settlement of the RSUs may be deposited. 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 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. 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.



No Compensation Deferrals.




     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
U.S. Internal Revenue Code Section 409A (“Section 409A”).



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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 or to otherwise avoid imposition
of any additional tax or income recognition under Section 409A prior to the actual payment of
Shares pursuant to this Individual Award. If you are subject to U.S. taxes, all RSUs that you are
entitled to at vesting will be issued to you within the period ending no later than the date that
is 21/2 months from the end of (i) your tax year that includes the applicable date of vesting, or
(ii) the Company’s tax year that includes the applicable date of vesting (which payment schedule is
intended to comply with the “short-term deferral” exemption from the application of Section 409A).



Securities Laws.




     By accepting this Individual Award, you acknowledge that federal or local 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
your RSUs. You agree to comply with such securities law requirements and Company policies, as such
laws and policies are amended from time to time.



Entire Agreement; Dispute Resolution; Governing Law.




     The Plan, this Award Agreement and, to the extent applicable, your Employment Agreement,
constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements 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 as provided for in Section 14 of the Plan. This Award Agreement is
governed by the laws of the State of Delaware without regard to its principles of conflict of laws.



     The Company and you agree that any dispute or controversy arising under or in connection with
this Award Agreement shall be resolved by final and binding arbitration before the American
Arbitration Association (“AAA”). The arbitration shall be conducted in accordance with AAA’s
National Rules for the Resolution of Employment Disputes then in effect at the time of the
arbitration. The arbitration shall be held in Miami, Florida.



     By signing this Award Agreement, you acknowledge receipt of a copy of the Plan and
represent that you are familiar with the terms and conditions of the Plan, and hereby accept this
Award subject to all provisions in this Award Agreement and in the Plan. You hereby agree to
accept as final, conclusive and binding all decisions or interpretations of the Committee upon any
questions arising under the Plan or this Award Agreement.



Electronic Delivery. 




     The Company may, in its sole discretion, decide to deliver any documents related to RSUs
awarded under the Plan or future RSUs 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 another 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.




     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 translated version is different that the English
version, the English version will control.




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