exv10w65






Exhibit 10.65




EXECUTION COPY





     AMENDMENT NO. 1, dated as of September 1, 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 Peter Smith (the “Executive”), dated as
of December 8, 2008.



          WHEREAS, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated
as of September 1, 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 December 1, 2003;




          WHEREAS, immediately following consummation of the Merger, Executive’s employment with the
Company shall terminate and he shall become entitled to receive certain severance payments and
benefits as set forth in 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 of the Merger, the Employment Agreement shall be amended as follows (it being
understood that capitalized terms that are not defined herein shall have the meanings ascribed to
such terms in the Employment Agreement):




          1. Section 3(a) of the Employment Agreement is hereby amended by adding the following
paragraph at the end thereof:





     “Notwithstanding the foregoing, the Company and Executive acknowledge and agree
that immediately following the consummation of the Merger (as defined in the
Agreement and Plan of Merger, dated as of September 1, 2010, by and among Burger King
Holdings, Inc., Blue Acquisition Holding Corporation, and Blue Acquisition Sub, Inc.
(the “Merger Agreement”)), Executive shall incur a Separation from Service
and that such Separation from Service shall constitute a termination without Cause,
thus entitling Executive to receive the severance payments and benefits set forth in
Section 9(f)(i) hereof pursuant to the terms thereof.”



 









 





          2. Section 5 of the Employment Agreement is hereby amended to
provide that the current language therein shall be contained in a new Section 5(a).




          3. A new Section 5(b) shall be added to the Employment Agreement
to read as follows:





“(b) Upon consummation of the Merger, Executive shall become entitled to receive (x)
a lump sum cash payment representing a pro-rata target annual bonus for the fiscal
year of the Company in which the Merger occurs and (y) an additional lump sum payment
equal to $1,097,518. The lump sum amounts referred to herein shall be paid within
five (5) days following the Effective Time (as defined in the Merger Agreement).”



          4. Section 6 of the Employment Agreement shall cease to apply as of
the Effective Time. In connection with the Merger, Executive shall have the rights
described in Section 3.04 of the Merger Agreement with respect to his outstanding equity
awards.




          5. The Employment Agreement is hereby amended to add the
following new flush paragraph immediately following Section 9(f)(i)(A):





“Notwithstanding the foregoing, the portion of the amount described in Section
9(f)(i)(A) above (such amount, the “Severance”) 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) (such portion, the “Safe Harbor Amount”) shall be payable within
two (2) days following the Date of Separation from Service. The remaining portion of
the Severance, if any, shall be payable as set forth in Section 9(f)(i)(A) above;
provided, that the Safe Harbor Amount shall reduce the Severance installments
to be paid during the payment period described in Section 9(f)(i)(A) in chronological
order such that any payment to be made during month seven (7) following the Date of
Separation from Service shall be reduced first, any payment to be made during month
eight (8) following the Date of Separation from Service shall be reduced next, and so
on until 100% of the Safe Harbor Amount has been fully taken into account.”



          6. Section 9(f)(i)(B) of the Employment Agreement shall cease to
apply as of the Effective Time.




          7. Section 9(f)(i)(C) of the Employment Agreement is hereby
amended to replace the words “one year” with the word “second”.





2









 









          8. Section 10(b) of the Employment Agreement is hereby amended
by replacing the term “one (1) year” with the term “two (2) year”.




          9. Section 10(c) of the Employment Agreement is hereby amended
by replacing the term “one (l)-year” with the term “two (2) year”.




          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/ John W. Chidsey
 	 
	 
	 	EXECUTIVE,
 	 
	 	
 	 
	 	Peter Smith 	 
	 	 	 



 









 







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




	 	 	 	 	 
	 	BURGER KING CORPORATION, 

 	 
	 	by  	 	 
	 
	 	EXECUTIVE,

 	 
	 	/s/ Peter Smith
 	 
	 	Peter Smith