exv10w73






Exhibit 10.73





          AMENDMENT NO. 1, dated as of September 30, 2010 (this
“Amendment”), to the Amended and Restated Employment Agreement (the
“Employment Agreement”) by and between Burger King Corporation, a
Florida corporation (together with any successor thereto, the
“Company”) and Charles M. Fallon (the “Executive”), dated as of
December 8, 2008.



          WHEREAS, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated
as of September 2, 2010, by and among Burger King Holdings, Inc., a Delaware corporation and parent
company of the Company (“BHI”), Blue Acquisition Holding Corporation, a Delaware
corporation (“Parent”), and Blue Acquisition Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of Parent (“Merger Sub”), Merger Sub will merge with and into BHI (the
“Merger”) and BHI will become a wholly owned subsidiary of Parent;




          WHEREAS, Executive commenced employment with the Company on June 19, 2006;




          WHEREAS, the Company desires that Executive continue to serve the Company on the terms and
conditions set forth in the Employment Agreement as herein amended; and




          WHEREAS, subject to consummation of the Merger, the Company and Executive wish to make certain
amendments to the Employment Agreement.




          NOW, THEREFORE, the Company and Executive hereby agree that, subject to and effective upon
consummation of the Merger and provided that the Executive remains continuously employed until the
Effective Time (as defined in the Merger Agreement) of the Merger, the Employment Agreement shall
be amended as follows:




          1. Section 4 of the Employment Agreement is hereby amended to delete the following words from
the last sentence thereof: “(A) up to fifty percent (50%) of the Annual Bonus in the form of a
grant of restricted stock units of Common Stock (as defined below) or (B)”.




          2. Section 5(a) of the Employment Agreement shall cease to apply as of the Effective Time.
Executive acknowledges and agrees that, in connection with the Merger, Executive shall have the
rights described in Section 3.04 of the Merger Agreement with respect to Executive’s outstanding
equity awards. Solely with respect to the awards granted to Executive on August 25, 2010,
Executive hereby authorizes the Company to deposit on Executive’s behalf sixty percent (60%) of the
gross proceeds attributable to such awards into a trust account for the benefit of the Executive,
rather than directly to the Executive, subject to the applicable terms set forth on Section 7.05(d)
of the Company Disclosure Letter, which have been made available to Executive.




          3. Section 8(f)(i)(A) of the Employment Agreement is hereby replaced in its entirety with the
following:




1









 






“(A)(1) during the period commencing on the first business day following the Date of
Separation from Service and ending on the six (6) month anniversary of the Date of
Separation from Service, Executive shall receive, in substantially equal installments,
in accordance with the Company’s regular payroll policies, an amount equal to the
lesser of (x) the Safe Harbor Amount (as defined below) and (y) one-fourth (1/4th) of
the Severance (as defined below) (such lesser amount, the “Initial Severance
Payment”); provided, that such payments shall commence on the
60th day following the Date of Separation from Service (the
“Commencement Date”), provided, further, that the first installment payment
shall equal the sum of the installments that would have been made between the Date of
Separation from Service and the Commencement Date; and




For purposes of Section 8(f)(i), the “Safe Harbor Amount” means an amount
equal to two times (2x) the lesser of (1) the sum of Executive’s “annualized
compensation” within the meaning of Code Section 409A and (2) the maximum amount that
may be taken into account under a qualified plan pursuant to Code Section 401(a)(17)
(i.e., with respect to 2010, $245,000).




For purposes of Section 8(f)(i), the “Severance” means an amount equal to two
times (2x) the sum of (x) Executive’s Base Salary as of the Date of Separation from
Service, (y) the annual amount of the Benefits Allowance described in Section 6(b)
hereof and (z) Executive’s target Annual Bonus for the fiscal year of the Company that
includes the Date of Separation from Service.




(2) during the period commencing on the first business day following the six (6) month
anniversary of the Date of Separation from Service and ending on the second
anniversary of the Date of Separation from Service, Executive shall receive in
substantially equal installments, in accordance with the Company’s regular payroll
policies, an amount equal to (x) the Severance minus (y) the Initial Severance
Payment; provided, that, in the event that the portion of the
Severance (such portion, the “New Amount”) payable during the period beginning
on the first business day immediately following the six (6) month anniversary of the
Date of Separation from Service and ending on the first anniversary of the Date of
Separation from Service is less than an amount equal to the sum of Executive’s Base
Salary plus the annual amount of the Benefits Allowance described in Section 6(b)
(such amount, the “Original Amount”), an amount equal to the excess of the
Original Amount over the New Amount shall be deemed to have been paid during the
period beginning on the first business day following the Date of Separation from
Service and ending on the six (6) month anniversary of the Date of Separation from
Service in accordance with Section 8(f)(i)(A)(1) hereof. For the avoidance of doubt,
in no event shall the total amount paid pursuant to this Section 8(f)(i)(A) exceed the
Severance;”.



          4. Section 8(f)(i)(B) of the Employment Agreement shall cease to apply as of the Effective
Time.




2









 





          5. Section 8(f)(i)(C) of the Employment Agreement is hereby amended to replace the words “one
year” with the word “second”.




          6. Section 8(f)(i)(D) of the Employment Agreement is hereby amended to replace the words “the
Severance Period” with the words: “one (1) year following the Date of Separation from Service”.




          7. The following two new flush paragraphs shall be added immediately following the end of
Section 8(f)(ii) of the Employment Agreement:





“For purposes of Section 8(f)(ii),“Bonus Payment Date” means the date on which
annual bonuses with respect to a fiscal year are actually paid by the Company to its
active executives.”




“For purposes of Section 8(f)(ii),“Pro-Rata Bonus” means a portion of
Executive’s Annual Bonus for the fiscal year of the Company during which Executive was
employed that includes the Date of Separation from Service, such portion to equal the
product of (1) the Annual Bonus that would have been payable to Executive for such
fiscal year had Executive remained employed for the entire fiscal year, determined
based on the extent to which the Company actually achieves the performance goals for
such year established pursuant to Section 4, multiplied by (2) a fraction, the
numerator of which is equal to the number of days in such fiscal year that precede the
Date of Separation from Service and the denominator of which is equal to 365.”



          8. Section 9(b) of the Employment Agreement is hereby amended by inserting the
following parenthetical immediately following the phrase “period of one (1) year”: “(or, in
circumstances in which Executive receives severance payments pursuant to Section 8(f)(i) hereof,
the period of two (2) years)”.




          9. Section 9(c) of the Employment Agreement is hereby amended by inserting the
following parenthetical immediately following the phrase “the one (1)-year period”: “(or, in
circumstances in which Executive receives severance payments pursuant to Section 8(f)(i) hereof,
the two (2) year period)”.




          10. The Employment Agreement, except as expressly modified hereby, shall remain in full force
and effect.




          11. This Amendment shall become effective, and is expressly contingent, upon the occurrence of
the Effective Time and the Executive remaining continuously employed through the Effective Time and
in the event that the Effective Time does not occur, this Amendment shall be void ab initio.




          12. This Amendment shall be governed by and construed in accordance with the laws of the State
of Florida without reference to principles of conflicts of laws.




[signature page follows]




3









 





          Intending to be legally bound hereby, the parties have executed this Amendment as of the date
first set forth above.




	 	 	 	 	 	 	 	 	 

	 	 	BURGER KING CORPORATION,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	/s/ Peter C. Smith	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	EXECUTIVE,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	/s/ Charles M. Fallon	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Charles M. Fallon