Form of Option Award Agreement - Equity Incentive



 







Exhibit
10.34




BURGER KING HOLDINGS, INC.

EQUITY 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. Equity Incentive Plan (as
may be amended from time to time, the “Plan”).



     Pursuant to Article 4 of the Plan, you have been granted a non-qualified 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:
	 	20% 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, 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 this Option) do not exercise
this Option on or prior to the expiration of the Option



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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.



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 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.



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



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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 under the Plan, (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 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 Market Value of any such Shares shall be determined as of the date
of exercise of such Option.



[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.



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     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 Article 13 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. 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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