Form of Option Award Agreement - 2006 Omnibus



 







Exhibit
10.33




BURGER KING HOLDINGS, INC.

2006 OMNIBUS INCENTIVE PLAN




OPTION AWARD




     Unless defined in this Option 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 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 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.



	 	 	 
	Participant:
	 	 

	 
	 	 

	Total Number of Shares Underlying Option:
	 	[          ] Shares

	 
	 	 

	Exercise Price per Share:
	 	$[          ] per Share

	 
	 	 

	Grant Date:
	 	 

	 
	 	 

	Expiration Date:
	 	 

	 
	 	 

	Vesting Schedule:
	 	[ ]% of the Shares subject to the Option will vest on each anniversary of the
Grant Date, subject to your remaining actively employed on each such vesting date and further
subject to the Section entitled “Termination” in Exhibit A.







     By your signature and the signature of the Company’s representative below, 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 as Exhibit A.




	 	 	 
	PARTICIPANT

	 	BURGER KING HOLDINGS, INC.
	 
	 	 
	______________________________

	 	By:  ______________________________
	 
	 	 
	Date: ______________________________
	 	Title: ______________________________
	 
	 	 
	 

	 	Date: _________________________________
	 

	 	 






 









 








EXHIBIT A




TERMS AND CONDITIONS OF THE

OPTION AWARD




Vesting.




     This Option will vest and become exercisable in accordance with the “Vesting Schedule” 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 section below
entitled “Termination”). Subject to the section below entitled “Termination,” this Option may be
exercised only while you are employed by the Company. Prior to the exercise of this Option, you
will not have any rights of a shareholder with respect to such Option or the Shares subject
thereto.



Method of Exercise.




     This Option will be exercisable pursuant to procedures approved by the Committee 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 withholding
or other applicable taxes 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), you will have no right to vote or receive dividends or
any other rights as a shareholder with respect to such Shares, notwithstanding exercise of this
Option.



Termination.




     Upon termination of your employment (to the extent relevant, as determined under criteria
established by the Committee) for any reason, you may exercise this Option, to the extent vested on
the date of your termination (other than as set forth below), as provided for below. Except as set
forth below, if this Option (or any portion of this Option) is unvested on the date of such
termination, then it (or such portion) will be forfeited without any consideration due to you.



     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
herein), the portion of this Option that is unvested at the time of termination shall vest in full
upon such termination.



     To the extent this Option is or becomes exercisable on the date of such termination, then, if
you (or, if applicable, such other person who is entitled to exercise



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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
 




	 	 	Option
Exercise Period
 


	 

	 	Without Cause
	 	 	90 day period beginning on the date
of termination	 
	 	Resignation

	 	 	90 day period beginning on the date
of termination	 
	 	Retirement

	 	 	One year period beginning on the
date of termination	 
	 	Disability

	 	 	One year period beginning on the
date of termination	 
	 	Death

	 	 	One year period beginning on the
date of termination	 
	 	For Cause

	 	 	None, all Options expire
immediately	 
	 





     In the event that there is a conflict between the terms of this Award Agreement regarding the
effect of a termination of employment on this Option and the terms of any employment agreement or
offer, promotion or confirmation letter (“Employment Agreement”) with the Company or one of its
Affiliates, 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

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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 his 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
65th birthday and (ii) your completion of five 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 due to 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.




Taxes.




     You acknowledge that you are required to pay any withholding or other applicable taxes that
may be due as a result of receipt of this Option or the delivery of Shares underlying this Option,
and no stock certificate will be released to you until your tax obligations are satisfied. In the
discretion of the Committee, your tax obligations may be satisfied by, where permitted by
applicable law, withholding of Shares that otherwise would be released to you upon exercise of this
Option or surrendering of Shares that you already own, based on the Fair Market Value of the Shares
that are withheld or that you surrender determined as of the date when the taxes otherwise would
have been withheld in cash.



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No Guarantee of Continued Service.




     You acknowledge and agree that the vesting of this Option pursuant to the “vesting schedule”
set forth in the Award Agreement 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 Award). You further acknowledge
and agree that this Award Agreement, the transactions contemplated hereunder and the “vesting
schedule” 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 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 employment for Cause, (ii) a retroactive termination of your
employment for Cause as permitted herein, (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 Options you hold
that are then outstanding shall be immediately forfeited and the Company may require that you repay
(with interest or appreciation (if any), as applicable, determined up to the date payment is made),
and you shall promptly repay, to the Company, the Fair Market Value (in cash or in Shares) of any
Shares received upon the exercise of Options 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, minus the applicable exercise price. The Fair Market Value of any such Shares shall
be determined as of the date of exercise of such Option.



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, may offset such amount so owing against
the amount of benefits otherwise distributable. Such determination shall be made by the Committee.



[Acquired Rights




     You acknowledge and agree that this Award does not provide any entitlement to any benefit
other than that granted under the Plan.



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     You further acknowledge and agree that any benefits granted under the Plan are not a part of
your base salary, and will not be considered a part of any pension or severance payments in the
event of the termination of your employment for any reason.



     If your employment is terminated for any reason, whether lawfully or unlawfully, you agree
that you will not be entitled to any damages for breach of contract, dismissal or compensation for
loss of office or otherwise to any sum, shares or other benefits to compensate you for the loss or
diminution in value of any actual or prospective right, benefits or expectation under or in
relation to the Plan.



     You acknowledge and agree that the benefits granted under the Plan are entirely at the
discretion of the Committee and that the Committee, subject to Section 14 of the Plan, retains the
right to alter, amend, modify, suspend or terminate this Plan at any time, in its sole discretion
and without notice.]1



     Securities Laws.



     By accepting this Option, you acknowledge that federal 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 the exercise of this
Option. You agree to comply with such federal 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.



     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.





 




			
	1	 	For non-US grantees.






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