exv10w52






Exhibit 10.52




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




          This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as
of December 8, 2008 by and between Burger King Corporation, a Florida corporation (together with
any Successor thereto, the “Company”), and Charles M. Fallon (“Executive”).



WITNESSETH:




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



          WHEREAS, the Company desires to continue to employ and secure the exclusive services of
Executive on the terms and conditions set forth in this Agreement;



          WHEREAS, Executive desires to accept such employment on such terms and conditions; and



          WHEREAS, Executive currently is a party to an employment agreement with the Company dated as
of July 1, 2007 that governs the terms and conditions of his employment (the “Original
Agreement”) and Executive and the Company desire to have the Original Agreement superseded by
the terms of this Agreement.



          NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises
contained herein and for other good and valuable consideration, the Company and Executive hereby
agree as follows:



          l. Agreement to Employ; Amendment and Restatement of Original Agreement.



          (a) Upon the terms and subject to the conditions of this Agreement, the Company hereby agrees
to continue to employ Executive, and Executive hereby accepts such continued employment with the
Company.



          (b) This Agreement shall serve as a complete amendment and restatement of the Original
Agreement. All terms of the Original Agreement shall be superseded by the terms of this Agreement
and, upon execution of this Agreement, the Original Agreement shall be of no further force and
effect.



          2. Term; Position and Responsibilities; Location.



          (a) Term of Employment. Unless Executive’s employment shall sooner terminate pursuant
to Section 8, the Company shall continue to employ Executive on the terms and subject to the
conditions of this Agreement from the date first written above through June 30, 2009 (the
“Initial Term”). Effective upon the expiration of the Initial Term and each Additional
Term (as defined below), Executive’s employment hereunder shall be deemed to be automatically
extended, upon the same terms and



 









 







conditions, for an additional period of one (1) year (each, an “Additional Term”), in
each such case, commencing upon the expiration of the Initial Term or the then current Additional
Term, as the case may be, unless the Company shall have given written notice to Executive, at least
ninety (90) days prior to the expiration of the Initial Term or such Additional Term, of its
intention not to extend the Employment Period (as defined below) hereunder. Executive’s Separation
from Service (as defined below) with the Company pursuant to any such notice of non-extension
delivered by the Company to Executive shall occur upon expiration of the relevant Term or
Additional Term (as applicable) and shall be deemed to constitute his Separation from Service due
to termination of his employment by the Company Without Cause (as defined below) pursuant to
Section 8(c) hereof. For purposes of this Agreement, “Separation from Service” has the
meaning given to such term in Section 1.409A-1(h) of the regulations (as amended) promulgated under
Section 409A of the United States Internal Revenue Code of 1986, as amended (the “Code”).
The period during which Executive is employed by the Company pursuant to this Agreement, including
any extension thereof in accordance with this section, shall be referred to as the “Employment
Period.”



          (b) Position and Responsibilities. During the Employment Period, Executive shall
serve as Executive Vice President and President, North America, and shall have such duties and
responsibilities as are customarily assigned to individuals serving in such position and such other
duties consistent with Executive’s title and position as the Chief Executive Officer of the Company
and the Board of Directors (or any committee thereof) of the Company (the Board or such committee
referred to as the “Board”) specifies from time to time (it being understood by the parties
that, notwithstanding the foregoing, the Company is free, at any time and from time to time, to
reorganize its business operations, and that Executive’s duties and scope of responsibility may
change in connection with such reorganization). Executive shall initially report directly to the
Chief Executive Officer of the Company. Executive shall devote all of his skill, knowledge,
commercial efforts and business time to the conscientious and good faith performance of his duties
and responsibilities for the Company to the best of his ability.



          (c) Location. During the Employment Period, Executive’s services shall be performed
primarily in the Miami-Dade metropolitan area. However, Executive may be required to travel in and
outside of Miami-Dade as the needs of the Company’s business dictate.



          3. Base Salary. During the Employment Period, the Company shall pay Executive a base
salary at an annualized rate of $437,750, payable in installments on the Company’s regular payroll
dates. The Board shall review Executive’s base salary annually during the Employment Period and
may increase (but not decrease) such base salary from time to time, based on its periodic review of
Executive’s performance in accordance with the Company’s regular policies and procedures. The
annual base salary payable to Executive from time to time under this Section 3 shall hereinafter be
referred to as the “Base Salary.”



2









 





          4. Annual Incentive Compensation. Executive shall be eligible to receive an annual
bonus (“Annual Bonus”) with respect to each fiscal year ending during the Employment
Period. The Annual Bonus shall be determined under the 2006 Omnibus Incentive Plan (the
“Omnibus Plan”) or such other annual incentive plan maintained by the Company for similarly
situated employees that the Company designates, in its sole discretion (any such plan, the
“Bonus Plan”), in accordance with the terms of such plan as in effect from time to time.
For each such fiscal year, Executive shall be eligible to earn a target Annual Bonus equal to
seventy percent (70%) of Executive’s Base Salary for such fiscal year, if the Company achieves the
target performance goals established by the Board for such fiscal year in accordance with the terms
of the Bonus Plan. If the Company does not achieve the threshold performance goals established by
the Board for a fiscal year, Executive shall not be entitled to receive an Annual Bonus for such
fiscal year. If the Company exceeds the target performance goals established by the Board for a
fiscal year, Executive may be entitled to earn an additional Annual Bonus for such year in
accordance with the terms of the applicable Bonus Plan. The Annual Bonus for each year shall be
payable at the same time as bonuses are paid to other senior executives of the Company in
accordance with the terms of the applicable Bonus Plan, but in no event later than two and a half
(21/2) months following the end of the applicable fiscal year in which such Annual Bonus was earned.
Executive shall be entitled to receive any Annual Bonus that becomes payable in a lump-sum cash
payment, or, at his election, (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) in any form that the
Board generally makes available to the Company’s executive management team, provided that any such
election is made by Executive in compliance with Section 409A of the Code and the regulations
promulgated thereunder.



          5. Annual Equity Incentive Compensation.



          (a) All agreements pertaining to equity of Burger King Holdings, Inc. or equity-based awards
with respect to the common stock of Burger King Holdings, Inc. (“Common Stock”) held by
Executive as of the date hereof and any Management Subscription and Shareholders’ Agreement,
Management Stock Option Agreement and/or Restricted Share Agreement (collectively, the “Equity
Award Agreements”) to which the Executive is a party as of the date hereof, will continue in
accordance with their respective terms, provided that, notwithstanding any other
provision of this Agreement or the Equity Award Agreements, if a Change in Control (as defined
below) occurs and, within twenty-four (24) months after the date of such Change in Control,
Executive experiences a Separation from Service with the Company due to the Company’s termination
of his employment “Without Cause” or Executive’s resignation for “Good Reason” (as defined below),
all options to acquire Common Stock held by Executive at such time (the “Options”), will
become immediately and fully vested upon such termination and Executive shall have ninety (90) days
from the Date of Separation from Service (as defined below) to exercise such Options. For purposes
of this Agreement, the term “Change in Control” shall have the meaning ascribed to such
term in the Omnibus Plan.



3









 





          (b) During the Employment Period, Executive shall be eligible to receive a target annual
performance-based equity grants in accordance with the terms and conditions of the Omnibus Plan or
such other plan providing for equity-based incentive compensation maintained by the Company for
employees at Executive’s grade level that the Company designates, in its sole discretion.



          6. Employee Benefits.



          (a) General. During the Employment Period, Executive will be eligible to participate
in the employee and executive benefit plans and programs maintained by the Company from time to
time in which executives of the Company at Executive’s grade level are eligible to participate,
including to the extent maintained by the Company, life, medical, dental, accidental and disability
insurance plans and retirement, deferred compensation and savings plans, in accordance with the
terms and conditions thereof as in effect from time to time.



          (b) Benefit Allowance. Subject to Section 19(k)(iii) herein, with respect to each
year during the Employment Period, Executive will be entitled to receive a perquisite allowance of
$35,000 (the “Benefits Allowance”), which the Company shall pay to Executive in equal
installments, in accordance with the Company’s regular payroll policies, during such fiscal year,
subject to Executive’s continued employment with the Company.



          7. Expenses; Etc.



          (a) Business Travel, Lodging, etc. Subject to Section 19(k)(iii) herein, during the
Employment Period, the Company will reimburse Executive for reasonable travel, lodging, meal and
other reasonable expenses incurred by him in connection with the performance of his duties and
responsibilities hereunder upon submission of evidence satisfactory to the Company of the
incurrence and purpose of each such expense, provided that such expenses are permitted
under the terms and conditions of the Company’s business expense reimbursement policy applicable to
executives at Executive’s grade level, as in effect from time to time. Subject to Section
19(k)(iii) herein, during the Employment Period, the Company shall pay or reimburse Executive for
the annual membership dues for one (1) airline club membership of Executive’s choosing, subject to,
and contingent upon, Executive’s continued employment with the Company.



          (b) Vacation. During the Employment Period, Executive shall be entitled to vacation
on an annualized basis in accordance with the Company’s vacation policy, currently four (4) weeks
per year for an individual in Executive’s position, without carry-over accumulation. Executive
shall also be entitled to Company-designated holidays.



4









 





          8. Termination of Employment.



          (a) Termination Due to Death or Disability. Executive’s employment shall
automatically terminate upon Executive’s death and may be terminated by the Company due to
Executive’s Disability (as defined below in this subsection (a)). In the event that Executive’s
employment is terminated due to his Disability or death, no termination benefits shall be payable
to or in respect of Executive except as provided in Section 8(f)(ii). For purposes of this
Agreement, “Disability” means a physical or mental disability that prevents or would
prevent the performance by Executive of his duties hereunder for a continuous period of six (6)
months or longer. The determination of Executive’s Disability will (i) be made by an independent
physician agreed to by the parties, or if the parties are unable to agree within ten (10) days
after a request for designation by a party, by an independent physician identified by the Company’s
disability insurance provider, (ii) be final and binding on the parties hereto and (iii) be based
on such competent medical evidence as shall be presented to such independent physician by Executive
and/or the Company or by any physician or group of physicians or other competent medical experts
employed by Executive and/or the Company to advise such independent physician.



          (b) Termination by the Company for Cause. Executive’s employment may be terminated by
the Company for Cause (as defined below in this subsection (b)). In the event of a termination of
Executive’s employment by the Company for Cause, no termination benefits shall be payable to or in
respect of Executive except as provided in Section 8(f)(ii). For purposes of this Agreement,
“Cause” means (i) a material breach by Executive of any provision of this Agreement; (ii) a
material and willful violation by Executive of any of the Policies (as defined in Section 12);
(iii) the failure by Executive to reasonably and substantially perform his duties hereunder (other
than as a result of physical or mental illness or injury); (iv) Executive’s 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) Executive’s fraud or
misappropriation of funds; or (vi) the commission by Executive of a felony or other serious crime
involving moral turpitude; provided that in the case of any breach of clauses (i), (ii) or
(iii) that is curable, no termination there under shall be effective unless the Company shall have
given Executive notice of the event or events constituting Cause and Executive shall have failed to
cure such event or events within thirty (30) business days after receipt of such notice. If, in
the event Executive’s employment is terminated by the Company Without Cause (as defined in
subsection (c) below) and, on or before the 12-month anniversary of the applicable Date of
Separation from Service of such termination Without Cause, it is determined in good faith by the
Board that Executive’s employment could have been terminated for Cause under clauses (iv), (v) or
(vi) hereof, Executive’s employment shall, at the election of the Board, be deemed to have been
terminated for Cause, effective as of the date of the occurrence of the events giving rise to the
Cause termination. Upon such determination, the Company shall (x) immediately cease paying any
termination benefits pursuant to Section 9 hereof and (y) Executive shall be obligated to
immediately repay to the Company all amounts theretofore paid to Executive pursuant to Section 9.
In addition, if not repaid, the



5









 







Company shall have the right to set off, in accordance with (and to the extent permitted by)
Section 409A of the Code and the regulations promulgated thereunder, from any amounts otherwise due
to Executive any amounts previously paid pursuant to Section 9(f) (other than the Accrued
Obligations).



          (c) Termination Without Cause.  Executive’s employment may be terminated by the
Company Without Cause (as defined below in this subsection (c)) at any time. In the event of a
termination of Executive’s employment by the Company Without Cause, no termination benefits shall
be payable to or in respect of Executive except as provided in Section 8(f)(i). For purposes of
this Agreement, a termination “Without Cause” shall mean a termination of Executive’s
employment by the Company other than due to Executive’s death or Disability as described in Section
8(a) and other than for Cause as described in Section 8(b).



          (d) Termination by Executive. Executive may resign from his employment for any
reason, including for Good Reason (as defined below in this subsection (d)). In the event of a
termination of Executive’s employment by Executive’s resignation other than for Good Reason, no
termination benefits shall be payable to or in respect of Executive except as provided in Section
8(f)(ii) and in the event of a termination of Executive’s employment by Executive for Good Reason,
no termination benefits shall be payable to or in respect of Executive except as provided in
Section 8(f)(i). For purposes of this Agreement, a termination of employment by Executive for
“Good Reason” shall mean a resignation by Executive from his employment with the Company within
thirty (30) days following the occurrence, without Executive’s consent, of any of the following
events: (i) a material diminution in the Executive’s position, authority or responsibilities (it
being understood that a change to Executive’s duties and/or scope of responsibility in connection
with the reorganization of the Company’s operations will not trigger this sub-section (i) unless
accompanied by a demotion from the “Executive Vice President” level); (ii) any decrease in
Executive’s Base Salary or a material decrease in the Executive’s incentive compensation
opportunities as set forth in Sections 4 and 5 or (iii) any other material breach by the Company of
any material provision of this Agreement (including without limitation any failure by the Company
to obtain agreement by any Successor thereto to expressly assume and agree to perform this
Agreement as required by Section 15 herein); provided that the Executive shall have given
the Company notice of the event or events constituting Good Reason and the Company shall have
failed to cure such event or events within thirty (30) business days after receipt of such notice.



          (e) Procedure for Termination of Employment.



          (i) Notice of Termination. Any termination of Executive’s employment by the Company
or by Executive (other than as a result of Executive’s death) shall be communicated by a written
Notice of Termination addressed to the other party to this Agreement. A “Notice of
Termination” shall mean a notice stating that Executive or the Company, as the case may be, is
electing to terminate Executive’s employment with the Company (and thereby terminating the
Employment Period), stating the proposed



6









 







effective date of such termination, indicating the specific provision of this Section 8 under
which such termination is being effected and, if applicable, setting forth in reasonable detail the
circumstances claimed to provide the basis for such termination.



          (ii) Date of Separation from Service. The term “Date of Separation from
Service” shall mean, with respect to Executive’s Separation from Service with the Company, (A)
if the Separation from Service occurs due to Executive’s death, the date of his death, (B) if the
Separation from Service occurs due to termination of Executive’s employment by the Company by
reason of Executive’s Disability, a date which is at least six (6) months following the occurrence
of the event giving rise to the Disability, (C) if the Separation from Service occurs due to
termination of Executive’s employment by Executive for any reason, a date which is at least 30 days
following the issuance of the Notice of Termination and (D) if the Separation from Service occurs
due to termination of Executive’s employment for any other reason, the effective date of
termination specified in such Notice of Termination. The Employment Period shall expire on the
Date of Separation from Service.



          (iii) Section 409A of the Code. Notwithstanding anything to the contrary in Section
8(e)(ii), the determination of whether and when the Date of Separation from Service occurs for the
purpose of determining when any amount that is “nonqualified deferred compensation” subject to
Section 409A of the Code becomes due and payable shall be made in a manner consistent with, and
based on the presumptions set forth in, Section 1.409A-1(h) of the regulations promulgated under
Section 409 of the Code. Solely for purposes of the determination referred to in the preceding
sentence, “Company” shall include all persons with whom the Company would be considered a
single employer under Sections 414(b) and 414(c) of the Code. In the event that the Date of
Separation from Service, as determined in accordance with this Section 8(e)(iii), occurs before the
applicable notice period specified in Section 8(e)(ii) has elapsed, the Company may elect to pay,
or commence payment of, any amounts to which this Section 8(e)(iii) applies following the
completion of such notice period, but not later than the end of the taxable year in which the Date
of Separation from Service occurs.



          (f) Payments Upon Certain Terminations.



          (i) In the event of Executive’s Separation from Service with the Company due to a termination
of his employment by the Company Without Cause or Executive’s resignation from employment for Good
Reason during the Employment Period, the Company shall pay to Executive, within thirty (30) days of
the Date of Separation from Service, his (x) Base Salary through the Date of Separation from
Service, to the extent not previously paid, (y) reimbursement for any unreimbursed business
expenses incurred by Executive prior to the Date of Separation from Service that are subject to
reimbursement pursuant to Section 8(a) and (z) payment for vacation time accrued as of the Date of
Separation from Service but unused (such amounts under clauses (x), (y) and (z), collectively the
“Accrued Obligations”). In addition, in the event of Executive’s Separation from Service
as described in this Section 8(f)(i), provided that Executive executes and delivers to the Company,
within the applicable



7









 







period of time provided for under the Age Discrimination in Employment Act of 1967, as
amended, and in no event later than sixty (60) days following the Executive’s Date of Separation
from Service, an irrevocable Separation Agreement and General Release substantially in the form
approved by the Company, Executive shall be entitled to the following payments and benefits:



          (A) payments of an amount equal to the sum of (x) Executive’s Base Salary and (y) the annual
amount of the Benefits Allowance described in Section 6(b), which amount shall be payable in equal
installments, in accordance with the Company’s regular payroll policies, 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 one (1) year anniversary of the Date of Separation
from Service;



          (B) 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 (such product, the “Pro-Rata Bonus”) 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, such amount to be payable to Executive on the
date (the “Bonus Payment Date”) annual bonuses for such fiscal year are actually paid by
the Company to its active executives, but in no event later than two and a half (21/2) months
following the end of the applicable fiscal year in which such Annual Bonus was earned;



          (C) subject to Section 19(k)(iii) herein, continued coverage during the period commencing on
the Date of Separation from Service and ending on the one year anniversary of the Date of
Separation from Service (the “Severance Period”) under the Company’s medical, dental and
life insurance plans referred to in Section 6(a) for Executive and his eligible dependents
participating in such plans immediately prior to the Date of Separation from Service, subject to
timely payment by Executive of all premiums, contributions and other co-payments required to be
paid by active senior executives of the Company under the terms of such plans as in effect from
time to time; and



          (D) at the discretion of the Company, the services of an outplacement agency as selected by
and for such period of time as determined by the Chief Human Resources Officer of the Company;
provided that in no event will the duration of such outplacement services exceed the Severance
Period and that any reimbursement to be paid by the Company for such services will be made by the
end of the year following the year in which the Date of Separation from Service occurs.



8









 





          Executive shall not have a duty to mitigate the costs to the Company under this Section
8(f)(i), nor shall any payments from the Company to Executive of pursuant to this Section 8(f) be
reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently)
or offered to Executive during the Severance Period by a subsequent employer or other Person (as
defined in Section 19(l) below) for which Executive performs services, including but not limited to
consulting services. The foregoing notwithstanding, should Executive receive or be offered health
or medical benefits coverage during the Severance Period by a subsequent employer or Person for
whom Executive performs services, Executive shall notify the Company of this within seven (7)
business days of such receipt or offer, as applicable, and all similar health and medical benefits
coverage provided by the Company to Executive shall terminate as of the effective date of such new
coverage.



          (ii) In the event of Executive’s Separation from Service due to a termination of his
employment (x) upon his death or (y) by the Company for Cause or as a result of Executive’s
Disability or (z) by Executive without Good Reason, in any such case during the Employment Period,
the Company shall pay to Executive (or, in the event of Executive’s death, to his estate) the
Accrued Obligations within thirty (30) days following the Date of Separation from Service. In
addition, if Executive’s employment shall terminate upon his death or be terminated by the Company
as a result of Executive’s Disability during the Employment Period, the Company shall pay to
Executive (or, in the event of Executive’s death, to his estate) the Pro-Rata Bonus, if any, in one
lump sum on the Bonus Payment Date for the fiscal year of the Company that includes the Date of
Separation from Service, but in no event later than two and a half (21/2) months following the end of
the applicable fiscal year in which such Annual Bonus was earned.



          (iii) Except as specifically set forth in this Section 8(f), no termination benefits shall be
payable to or in respect of Executive’s employment with the Company or its Affiliates.



          (g) Resignation upon Termination. Effective as of any Date of Separation from Service
under this Section 8 or otherwise as of the date of Executive’s termination of employment with the
Company, Executive shall resign, in writing, from all Board and Board committee memberships and
other positions then held by him, or to which he has been appointed, designated or nominated, with
the Company and its Affiliates.



          9. Restrictive Covenants. Each of the Company and Executive agrees that the Executive
will have a prominent role in the management of the business, and the development of the goodwill,
of the Company and its Affiliates, and will establish and develop relations and contacts with the
principal franchisees, customers and suppliers of the Company and its Affiliates throughout the
world, all of which constitute valuable goodwill of, and could be used by Executive to compete
unfairly with, the Company and its Affiliates. In addition, Executive recognizes that he will have
access to and become familiar with or exposed to Confidential Information (as



9









 







such term is defined below), in particular, trade secrets, proprietary information, customer
lists, and other valuable business information of the Company pertaining or related to the quick
service restaurant business. Executive agrees that Executive could cause grave harm to the Company
if he, among other things, worked for the Company’s competitors, solicited the Company’s employees
away from the Company or solicited the Company’s franchisees upon the termination of Executive’s
employment with the Company or misappropriated or divulged the Company’s Confidential Information,
and that as such, the Company has legitimate business interests in protecting its good will and
Confidential Information, and, as such, these legitimate business interests justify the following
restrictive covenants:



          (a) Confidentiality.



          (i) Executive acknowledges and agrees that the terms of this Agreement, including all
addendums and attachments hereto, are confidential. Except as required by law or the requirements
of any stock exchange, Executive agrees not to disclose any information contained in this Agreement
to anyone, other than to Executive’s lawyer, financial advisor or immediate family members. If
Executive discloses any information contained in this Agreement to his lawyer, financial advisor or
immediate family members as permitted herein, Executive agrees to immediately tell each such
individual that he or she must abide by the confidentiality restrictions contained herein and keep
such information confidential as well.



          (ii) Executive agrees that during his employment with the Company and thereafter, Executive
will not, directly or indirectly (A) disclose any Confidential Information to any Person (other
than, only with respect to the period that Executive is employed by the Company, to an employee or
outside advisor of the Company who requires such information to perform his or her duties for the
Company), or (B) use any Confidential Information for Executive’s own benefit or the benefit of any
third party. “Confidential Information” means confidential, proprietary or commercially
sensitive information relating to (Y) the Company or its Affiliates, or members of their respective
management or boards or (Z) any third parties who do business with the Company or its Affiliates,
including franchisees and suppliers. Confidential Information includes, without limitation,
marketing plans, business plans, financial information and records, operation methods, personnel
information, drawings, designs, information regarding product development, other commercial or
business information and any other information not available to the public generally. The
foregoing obligation shall not apply to any Confidential Information that has been previously
disclosed to the public or is in the public domain (other than by reason of a breach of Executive’s
obligations to hold such Confidential Information confidential). If Executive is required or
requested by a court or governmental agency to disclose Confidential Information, Executive must
notify the General Counsel of the Company of such disclosure obligation or request no later than
three (3) business days after Executive learns of such obligation or request, and permit the
Company to take all lawful steps it deems appropriate to prevent or limit the required disclosure.



10









 





          (b) Non-Competition. Executive agrees that during his employment with the Company,
Executive shall devote all of his skill, knowledge, commercial efforts and business time to the
conscientious and good faith performance of his duties and responsibilities to the Company to the
best of his ability and Executive shall not, directly or indirectly, be employed by, render
services for, engage in business with or serve as an agent or consultant to any Person other than
the Company. Executive further agrees that during his employment with the Company and for the
period of one (1) year following Executive’s Separation from Service with the Company, Executive
shall not directly or indirectly engage in any activities that are competitive with the quick
service restaurant business conducted by the Company, and Executive shall not, directly or
indirectly, become employed by, render services for, engage in business with, serve as an agent or
consultant to, or become a partner, member, principal, stockholder or other owner of, any Person or
entity that engages in the quick serve restaurant business, provided that Executive shall be
permitted to hold a one percent (1%) or less interest in the equity or debt securities of any
publicly traded company. Executive’s duties and responsibilities involve, and/or will affect,
the operation and management of the Company on a worldwide basis. Executive will obtain
Confidential Information that will affect the Company’s operations throughout the world.
Accordingly, Executive acknowledges that the Company has legitimate business interests in requiring
a worldwide geographic scope and application of this non-compete provision, and agrees that this
non-compete provision applies on a worldwide basis.



          (c) Non-Solicitation of Employees and Franchisees. During the period of Executive’s
employment with the Company and for the one (1)-year period following Executive’s Separation from
Service with the Company, Executive shall not, directly or indirectly, by himself or through any
third party, whether on Executive’s own behalf or on behalf of any other Person or entity, (i)
solicit or induce or endeavor to solicit or induce, divert, employ or retain, (ii) interfere with
the relationship of the Company or any of its Affiliates with, or (iii) attempt to establish a
business relationship of a nature that is competitive with the business of the Company with any
Person that is or was (during the last twelve (12) months of Executive’s employment with the
Company) (A) an employee of the Company or engaged to provide services to it, or (B) a franchisee
of the Company or any of its Affiliates.



          10. Work Product. Executive agrees that all of Executive’s work product (created
solely or jointly with others, and including any intellectual property or moral rights in such work
product), given, disclosed, created, developed or prepared in connection with Executive’s
employment with the Company, whether ensuing during or after Executive’s employment with the
Company (“Work Product”) shall exclusively vest in and be the sole and exclusive property of the
Company and shall constitute “work made for hire” (as that term is defined under Section 101 of the
U.S. Copyright Act, 17 U.S.C. § 101) with the Company being the person for whom the work was
prepared. In the event that any such Work Product is deemed not to be a “work made for hire” or
does not vest by operation of law in the Company, Executive hereby irrevocably assigns, transfers
and conveys to the Company, exclusively and perpetually, all right, title and interest which
Executive may have or acquire in and to such Work Product



11









 







throughout the world, including without limitation any copyrights and patents, and the right
to secure registrations, renewals, reissues, and extensions thereof. The Company and its
Affiliates or their designees shall have the exclusive right to make full and complete use of, and
make changes to all Work Product without restrictions or liabilities of any kind, and Executive
shall not have the right to use any such materials, other than within the legitimate scope and
purpose of Executive’s employment with the Company. Executive shall promptly disclose to the
Company the creation or existence of any Work Product and shall take whatever additional lawful
action may be necessary, and sign whatever documents the Company may require, in order to secure
and vest in the Company or its designee all right, title and interest in and to all Work Product
and any intellectual property rights therein (including full cooperation in support of any Company
applications for patents and copyright or trademark registrations).



          11. Return of Company Property. In the event of termination of Executive’s employment
for any reason, Executive shall return to the Company all of the property of the Company and its
Affiliates, including without limitation all materials or documents containing or pertaining to
Confidential Information, and including without limitation, any Company car, all computers
(including laptops), cell phones, keys, PDAs, Blackberries, credit cards, facsimile machines,
televisions, card access to any Company building, customer lists, computer disks, reports, files,
e-mails, work papers, Work Product, documents, memoranda, records and software, computer access
codes or disks and instructional manuals, internal policies, and other similar materials or
documents which Executive used, received or prepared, helped prepare or supervised the preparation
of in connection with Executive’s employment with the Company. Executive agrees not to retain any
copies, duplicates, reproductions or excerpts of such material or documents.



          12. Compliance With Company Policies. During Executive’s employment with the Company,
Executive shall be governed by and be subject to, and Executive hereby agrees to comply with, all
Company policies, procedures, rules and regulations applicable to employees generally or to
employees at Executive’s 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 (collectively, the “Policies”).



          13. Data Protection & Privacy.



          (a) Executive acknowledges that the Company, directly or through its Affiliates, collects and
processes data (including personal sensitive data and information retained in email) relating to
Executive. Executive hereby agrees to such collection and processing and further agrees to execute
the Burger King Corporation Employee Consent to Collection and Processing of Personal Information,
a copy of which is attached to this Agreement as Attachment 1, unless a previously executed copy of
such Consent is on file with the Company.



12









 





          (b) To ensure regulatory compliance and for the protection of its workers, customers,
suppliers and business, the Company reserves the right to monitor, intercept, review and access
telephone logs, internet usage, voicemail, email and other communication facilities provided by the
Company which Executive may use during his employment with the Company. Executive hereby
acknowledges that all communications and activities on Company equipment or premises cannot be
presumed to be private.



          14. Injunctive Relief with Respect to Covenants; Forum, Venue and Jurisdiction.
Executive acknowledges and agrees that a breach by Executive of any of Section 9, 10, 11, 12 or 13
is a material breach of this Agreement and that remedies at law may be inadequate to protect the
Company and its Affiliates in the event of such breach, and, without prejudice to any other rights
and remedies otherwise available to the Company, Executive agrees to the granting of injunctive
relief in the Company’s favor in connection with any such breach or violation without proof of
irreparable harm, plus attorneys’ fees and costs to enforce these provisions. Executive further
acknowledges and agrees that the Company’s obligations to pay Executive any amount or provide
Executive with any benefit or right pursuant to Section 8 is subject to Executive’s compliance with
Executive’s obligations under Sections 9 through 13 inclusive, and that in the event of a breach by
Executive of any of Section 9, 10, 11, 12 or 13, the Company shall immediately cease paying such
benefits and Executive shall be obligated to immediately repay to the Company all amounts
theretofore paid to Executive pursuant to Section 8. In addition, if not repaid, the Company shall
have the right to set off, in accordance with (and to the extent permitted by) Section 409A of the
Code and the regulations promulgated thereunder, from any amounts otherwise due to Executive any
amounts previously paid pursuant to Section 8(f) (other than the Accrued Obligations). Executive
further agrees that the foregoing is appropriate for any such breach inasmuch as actual damages
cannot be readily calculated, the amount is fair and reasonable under the circumstances, and the
Company would suffer irreparable harm if any of these Sections were breached. All disputes not
relating to any request or application for injunctive relief in accordance with this Section 14
shall be resolved by arbitration in accordance with Section 19(b).



          15. Assumption of Agreement. The Company shall require any Successor thereto, by
agreement in form and substance reasonably satisfactory to Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the Company to obtain
such agreement prior to the effectiveness of any such succession shall be a breach of this
Agreement.



          16. Indemnification. The Company agrees both during and after the Employment Period
to indemnify Executive to the fullest extent permitted by its Certificate of Incorporation
(including payment of expenses in advance of final disposition of a proceeding) against actions or
inactions of Executive during the Employment Period as an officer, director or employee of the
Company or any of its Subsidiaries or Affiliates or as a fiduciary of any benefit plan of any of
the foregoing.



13









 




The Company also agrees to provide Executive with directors and officers insurance coverage
both during and, with regard to matters occurring during the Employment Period, after the
Employment Period. Such coverage shall be at a level at least equal to the level being maintained
at such time for the then current officers and directors or, if then being maintained at a higher
level with regard to any prior period activities for officers or directors during such prior
period, such higher amount with regard to Executive’s activities during such prior period.




          17. Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. All prior correspondence and proposals
(including but not limited to summaries of proposed terms) and all prior promises, representations,
understandings, arrangements and agreements relating to such subject matter (including but not
limited to those made to or with Executive by any other Person and those contained in any prior
employment, consulting or similar agreement, including the Original Agreement, entered into by
Executive and the Company or any predecessor thereto or Affiliate thereof) are merged herein and
superseded hereby.



          18. Survival. The following Sections shall survive the termination of Executive’s
employment with the Company and of this Agreement: 8(f), 9, 10, 11, 13, 14, 16, 18 and 19.



          19. Miscellaneous.



          (a) Binding Effect; Assignment. This Agreement shall be binding on and inure to the
benefit of the Company and its Successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by any party hereto without the prior
written consent of the other parties hereto, provided, however, that the Company
may effect such an assignment without prior written approval of Executive upon the transfer of all
or substantially all of its business and/or assets (by whatever means), provided that the
Successor to the Company shall expressly assume and agree to perform this Agreement in accordance
with the provisions of Section 15.



          (b) Arbitration. The Company and Executive agree that any dispute or controversy
arising under or in connection with this 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. The
dispute shall be heard and determined by one arbitrator selected from a list of arbitrators who are
members of AAA’s Regional Employment Dispute Resolution roster. If the parties cannot agree upon a
mutually acceptable arbitrator from the list, each party shall number the names in order of
preference and return the list to AAA within ten (10) days from the date of the list. A party may
strike a name from the list only for good cause. The arbitrator receiving the



14









 







highest ranking by the parties shall be selected. Depositions, if permitted by the
arbitrator, shall be limited to a maximum of two (2) per party and to a maximum of four (4) hours
in duration. The arbitration shall not impair either party’s right to request injunctive or other
equitable relief in accordance with Section 14 of this Agreement.



          (c) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida without reference to principles of conflicts of laws.



          (d) Taxes. The Company may withhold from any payments made under this Agreement all
applicable taxes, including but not limited to income, employment and social insurance taxes, as
shall be required by law.



          (e) Amendments. No provision of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is approved in writing by the Board or a Person
authorized thereby and is agreed to in writing by Executive. No waiver by any party hereto at any
time of any breach by any other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver of
any provision of this Agreement shall be implied from any course of dealing between or among the
parties hereto or from any failure by any party hereto to assert its rights hereunder on any
occasion or series of occasions.



          (f) Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall not be affected
thereby. In the event that one or more terms or provisions of this Agreement are deemed invalid
or unenforceable by the laws of Florida or any other state or jurisdiction in which it is to be
enforced, by reason of being vague or unreasonable as to duration or geographic scope of activities
restricted, or for any other reason, the provision in question shall be immediately amended or
reformed to the extent necessary to make it valid and enforceable by the court of such jurisdiction
charged with interpreting and/or enforcing such provision. Executive agrees and acknowledges that
the provision in question, as so amended or reformed, shall be valid and enforceable as though the
invalid or unenforceable portion had never been included herein.



          (g) Notices. Any notice or other communication required or permitted to be delivered
under this Agreement shall be (i) in writing, (ii) delivered personally, by courier service or by
certified or registered mail, first-class postage prepaid and return receipt requested, (iii)
deemed to have been received on the date of delivery or, if mailed, on the third business day after
the mailing thereof, and (iv) addressed as follows (or to such other address as the party entitled
to notice shall hereafter designate in accordance with the terms hereof):



15









 






(A) If to the Company, to it at:




Burger King Corporation

5505 Blue Lagoon Drive

Miami, Florida 33126-2029

Attention: Chief Human Resources Officer

Telephone: 305-378-3755

Facsimile: 305-378-3189




with a copy to: General Counsel




Telephone: 305-378-7913




Facsimile: 305-378-7112




(B) if to Executive, to his residential address as currently on file with
the Company.



          (h) Voluntary Agreement; No Conflicts. Executive represents that he is entering into
this Agreement voluntarily and that Executive’s employment hereunder and compliance with the terms
and conditions of this Agreement will not conflict with or result in the breach by Executive of any
agreement to which he is a party or by which he or his properties or assets may be bound.



          (i) Counterparts/Facsimile. This Agreement may be executed in counterparts (including
by facsimile), each of which shall be deemed an original and all of which together shall constitute
one and the same instrument.



          (j) Headings. The section and other headings contained in this Agreement are for the
convenience of the parties only and are not intended to be a part hereof or to affect the meaning
or interpretation hereof.



          (k) Section 409A Compliance.



          (i) The intent of the parties hereto is that payments and benefits under this Agreement comply
with Section 409A of the Code and the regulations and guidance promulgated thereunder (except to
the extent exempt as short-term deferrals or otherwise) and, accordingly, to the maximum extent
permitted, this Agreement shall be interpreted to be in compliance therewith.



          (ii) It is intended that each installment, if any, of the payments and benefits, if any,
provided to Executive under Section 8(f) hereof shall be treated as a separate “payment” for
purposes of Section 409A of the Code. Neither the Company nor Executive shall have the right to
accelerate or defer the delivery of any such



16









 







payments or benefits except to the extent specifically permitted or required by Section 409 of
the Code.



          (iii) All reimbursements and in-kind benefits provided under this Agreement (including without
limitation Sections 6(b), 7(a) and 8(f)(i) herein) shall be made or provided in accordance with the
requirements of Section 409A of the Code to the extent that such reimbursements or in-kind benefits
are subject to Section 409A of the Code. All expenses or other reimbursements paid pursuant hereto
that are taxable income to Executive shall in no event be paid later than the end of the calendar
year next following the calendar year in which Executive incurs such expense or pays such related
tax. With regard to any provision herein that provides for reimbursement of costs and expenses or
in-kind benefits, except as permitted by Section 409A of the Code, (A) the right to reimbursement
or in-kind benefits shall not be subject to liquidation or exchange for another benefit and (B) the
amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable
year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided,
in any other taxable year.



          (l) Certain other Definitions.



          “Affiliate”: with respect to any Person, means any other Person that, directly or
indirectly through one or more intermediaries, Controls, is Controlled by, or is under common
Control with the first Person, including but not limited to a Subsidiary of any such Person.



          “Control” (including, with correlative meanings, the terms “Controlling”, “Controlled
by” and “under common Control with”): with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by contract or
otherwise.



          “Person”: any natural person, firm, partnership, limited liability company,
association, corporation, company, trust, business trust, governmental authority or other entity.



          “Subsidiary”: with respect to any Person, each corporation or other Person in which
the first Person owns or Controls, directly or indirectly, capital stock or other ownership
interests representing fifty percent (50%) or more of the combined voting power of the outstanding
voting stock or other ownership interests of such corporation or other Person.



          “Successor”: of a Person means a Person that succeeds to the first Person’s assets
and liabilities by merger, liquidation, dissolution or otherwise by operation of law, or a Person
to which all or substantially all the assets and/or business of the first Person are transferred.



17









 





          IN WITNESS WHEREOF, the Company has duly executed this Agreement by its authorized
representatives, and Executive has hereunto set his hand, in each case effective as of the date
first above written.



	 	 	 	 	 
	 	BURGER KING CORPORATION

 	 
	 	By:  	/s/  Peter C. Smith
 	 
	 	 	Name:  	Peter C. Smith 	 
	 	 	Title:  	Chief Human Resources Officer 	 
	 
	 	Executive:

 	 
	 	 	/s/ Charles M. Fallon
 	 
	 	 	Charles M. Fallon 	 
	 	 	 
	 








18









 











ATTACHMENT 1




BURGER KING CORPORATION

EMPLOYEE CONSENT TO COLLECTION

AND PROCESSING OF PERSONAL INFORMATION



Burger King Corporation (“the Company”) has informed me that the Company collects and processes my
personal information only for legitimate human resource and business reasons such as payroll
administration, to fill employment positions, maintaining accurate benefits records, meet
governmental reporting requirements, security, health and safety management, performance
management, company network access and authentication. I understand the Company will treat my
personal data as confidential and will not permit unauthorized access to this personal data. I
HEREBY CONSENT to the Company collecting and processing my personal information for such human
resource and business reasons.



I understand the Company may from time-to-time transfer my personal data to the corporate office of
the Company (currently located in Miami, Florida, United States of America), another subsidiary, an
associated business entity or an agent of the Company, located either in the United States or in
another country, for similar human resource and business reasons. I HEREBY CONSENT to such
transfer of my personal data outside the country in which I work to the corporate office in the
United States of America, another subsidiary or associated business entity or agent for human
resource management and business purposes.



I further understand the Company may from time-to-time transfer my personal information to a third
party, either in the United States or another country, for processing the information for
legitimate human resource and business purposes. I HEREBY CONSENT to the transfer of my
personal information for such human resource purposes to a third party.



I understand the Company may from time-to-time collect and process personal information regarding
my race and/or national origin for the limited use of complying with legal reporting requirements
under the laws of the United States and/or any other state or country in which I work. I
HEREBY CONSENT to the Company collecting and processing information regarding my race and/or
national origin for this purpose.




	 	 	 	 	 
	 	 	 
	 	     /s/ Charles M. Fallon, Jr.
 	 
	 	(Employee’s Signature) 	 
	 	 	 
	 
	 	 	 
	 	Charles M. Fallon, Jr.
 	 
	 	(Employee’s Name - Please Print) 	 
	 	Date: 	 
	 




19