Omnibus Form of Restricted Stock Unit Award Agrmt



 







Exhibit 10.31




BURGER KING HOLDINGS, INC.

2006 OMNIBUS INCENTIVE PLAN




RESTRICTED STOCK UNIT AWARD




     Unless defined in this Restricted Stock Unit 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 8 of the Plan, you have been granted Restricted Stock Units (“RSUs”) 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 RSUs:
	 	 

	 
	 	 

	Grant Date:
	 	 

	 
	 	 

	Vesting Schedule:
	 	[ ]% of the RSUs 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 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 as Exhibit A.



	 	 	 
	PARTICIPANT

	 	BURGER KING HOLDINGS, INC.
	 
	 	 
	______________________________

	 	By: ______________________________
	 
	 	 
	Date:
____________________________

	 	Title:
____________________________
	 
	 	 
	 
	 	 
	 

	 	Date:
____________________________
	 

	 	 






 









 






EXHIBIT A




TERMS AND CONDITIONS OF THE

RESTRICTED STOCK UNIT AWARD




No Payment for Shares.




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



Restricted Share Units.




     Each RSU represents a right to receive one Share. To the extent dividends are paid on Shares
while the RSUs remain outstanding, you shall receive an amount in cash for each of your vested and
unvested RSUs equal to the amount per share of the dividend.



Termination.




     Upon termination of your employment for any reason (other than as set forth below), you will
forfeit all of your RSUs that are unvested at the time of termination 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
below), all RSUs that are unvested at the time of termination shall vest in full upon such
termination and be free of restrictions.



     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 or
offer, promotion or confirmation letter with the Company or one of its Affiliates (“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



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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 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.



“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.




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. You will have no rights of a
shareholder with respect to the RSUs until such Shares have been delivered to you.



Taxes.




     You acknowledge that (i) you are required to pay any withholding or other applicable taxes
that may be due as a result of receipt of this Award or the vesting or settlement of this Award,
and no stock certificate will be released to you until your tax obligations are satisfied and (ii)
such tax obligations will be satisfied by the Company



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withholding a sufficient number of Shares that otherwise would be released to you upon
settlement of the Award based on the Fair Market Value of the Shares, determined as of the date
when the taxes otherwise would have been withheld in cash.




No Guarantee of Continued Service.




     You acknowledge and agree that the vesting of this Award 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 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, (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 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.



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[Acquired Rights




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



     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 Award, 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 with your RSUs. 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





 




			
	1	 	For non-US grantees.




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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.




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