such case, commencing upon the expiration of the Initial Term or the then current AdditionalTerm, as the case may be, unless the Company shall have given written notice to Executive, at leastninety (90) days prior to the expiration of the Initial Term or such Additional Term, of itsintention not to extend the Employment Period (as defined below) hereunder. Executive’s Separationfrom Service (as defined below) with the Company pursuant to any such notice of non-extensiondelivered by the Company to Executive shall occur upon expiration of the relevant Term orAdditional Term (as applicable) and shall be deemed to constitute his Separation from Service dueto termination of his employment by the Company Without Cause (as defined below) pursuant toSection 9(c) hereof. For purposes of this Agreement, “Separation from Service” has themeaning given to such term in Section 1.409A-1(h) of the regulations (as amended) promulgated underSection 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, includingany extension thereof in accordance with this section, shall be referred to as the “EmploymentPeriod.”          (b) Position and Responsibilities. During the Employment Period, Executive shallserve as Executive Vice President and Chief Financial Officer and Treasurer and shall have suchduties and responsibilities as are customarily assigned to individuals serving in such position andsuch other duties consistent with Executive’s title and position as the Chief Executive Officer ofthe Company and the Board of Directors (or any committee thereof) of the Company (the Board or suchcommittee referred to as the “Board”) specifies from time to time. Executive shall devoteall of his skill, knowledge, commercial efforts and business time to the conscientious and goodfaith 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 performedprimarily in the Miami-Dade metropolitan area. However, Executive may be required to travel in andoutside of Miami-Dade as the needs of the Company’s business dictate.          4. Base Salary. During the Employment Period, the Company shall pay Executive a basesalary at an annualized rate of $494,709, payable in installments on the Company’s regular payrolldates. The Board shall review Executive’s base salary annually during the Employment Period andmay increase (but not decrease) such base salary from time to time, based on its periodic review ofExecutive’s performance in accordance with the Company’s regular policies and procedures. Theannual base salary payable to Executive from time to time under this Section 4 shall hereinafter bereferred to as the “Base Salary.”          5. Annual Incentive Compensation. Executive shall be eligible to receive an annualbonus (“Annual Bonus”) with respect to each fiscal year ending during the EmploymentPeriod. The Annual Bonus shall be determined under the 2006 Omnibus Incentive Plan (the“Omnibus Plan”) or such other annual incentive plan
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maintained by the Company for similarly situated employees that the Company designates, in itssole discretion (any such plan, the “Bonus Plan”), in accordance with the terms of suchplan as in effect from time to time. For each such fiscal year, Executive shall be eligible toearn a target Annual Bonus equal to seventy percent (70%) of Executive’s Base Salary for suchfiscal year, if the Company achieves the target performance goals established by the Board for suchfiscal year in accordance with the terms of the Bonus Plan. If the Company does not achieve thethreshold performance goals established by the Board for a fiscal year, Executive shall not beentitled to receive an Annual Bonus for such fiscal year. If the Company exceeds the targetperformance goals established by the Board for a fiscal year, Executive may be entitled to earn anadditional 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 othersenior executives of the Company in accordance with the terms of the applicable Bonus Plan, but inno event later than two and a half (21/2) months following the end of the applicable fiscal year inwhich such Annual Bonus was earned. Executive shall be entitled to receive any Annual Bonus thatbecomes payable in a lump-sum cash payment, or, at his election, (A) up to fifty percent (50%) ofthe Annual Bonus in the form of a grant of restricted stock units of Common Stock (as definedbelow) or (B) in any form that the Board generally makes available to the Company’s executivemanagement team, provided that any such election is made by Executive in compliance with Section409A of the Code and the regulations promulgated thereunder.          6. Equity Incentive Compensation.          (a) All agreements pertaining to equity of Burger King Holdings, Inc. or equity-based awardswith respect to the common stock of Burger King Holdings, Inc. (“Common Stock”) held byExecutive as of the date hereof and any Management Subscription and Shareholders’ Agreement,Management Stock Option Agreement and Restricted Share Agreement (collectively, the “Equity AwardAgreements”) to which the Executive is a party as of the date hereof, will continue in accordancewith their respective terms provided that, notwithstanding any other provision of thisAgreement 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 aSeparation 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 toacquire Common Stock held by Executive at such time (the “Options”), will becomeimmediately and fully vested upon such termination and Executive shall have ninety (90) days fromthe Date of Separation from Service (as defined below) to exercise such Options. For purposes ofthis Agreement, the term “Change in Control” shall have the meaning ascribed to such termin the Omnibus Plan.          (b) During the Employment Period, Executive shall be eligible to receive annualperformance-based equity grants in accordance with the terms and
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conditions of the Omnibus Plan or such other plan providing for equity-based incentivecompensation maintained by the Company for employees at Executive’s grade level that the Companydesignates, in its sole discretion.          7. Employee Benefits.          (a) General. During the Employment Period, Executive will be eligible to participatein the employee and executive benefit plans and programs maintained by the Company from time totime 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 disabilityinsurance plans and retirement, deferred compensation and savings plans, in accordance with theterms and conditions thereof as in effect from time to time.          (b) Benefit Allowance. Subject to Section 20(k)(iii) herein, with respect to eachyear 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 equalinstallments, in accordance with the Company’s regular payroll policies, during such fiscal year,subject to Executive’s continued employment with the Company.          8. Expenses; Etc.          (a) Business Travel, Lodging, etc. Subject to Section 20(k)(iii) herein, during theEmployment Period, the Company will reimburse Executive for reasonable travel, lodging, meal andother reasonable expenses incurred by him in connection with the performance of his duties andresponsibilities hereunder upon submission of evidence satisfactory to the Company of theincurrence and purpose of each such expense, provided that such expenses are permittedunder the terms and conditions of the Company’s business expense reimbursement policy applicable toexecutives at Executive’s grade level, as in effect from time to time. Subject to Section20(k)(iii) herein, during the Employment Period, the Company shall pay or reimburse Executive forthe annual membership dues for two (2) airline club memberships of Executive’s choosing, subjectto, and contingent upon, Executive’s continued employment with the Company.          (b) Vacation. During the Employment Period, Executive shall be entitled to vacationon an annualized basis in accordance with the Company’s vacation policy, currently four (4) weeksper year for an individual in Executive’s position, without carry-over accumulation. Executiveshall also be entitled to Company-designated holidays.          9. Termination of Employment.
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          (a) Termination Due to Death or Disability. Executive’s employment shallautomatically terminate upon Executive’s death and may be terminated by the Company due toExecutive’s Disability (as defined below in this subsection (a)). In the event that Executive’semployment is terminated due to his Disability or death, no termination benefits shall be payableto or in respect of Executive except as provided in Section 9(f)(ii). For purposes of thisAgreement, “Disability” means a physical or mental disability that prevents or wouldprevent 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 independentphysician agreed to by the parties, or if the parties are unable to agree within ten (10) daysafter a request for designation by a party, by an independent physician identified by the Company’sdisability insurance provider, (ii) be final and binding on the parties hereto and (iii) be basedon such competent medical evidence as shall be presented to such independent physician by Executiveand/or the Company or by any physician or group of physicians or other competent medical expertsemployed by Executive and/or the Company to advise such independent physician.          (b) Termination by the Company for Cause. Executive’s employment may be terminated bythe Company for Cause (as defined below in this subsection (b)). In the event of a termination ofExecutive’s employment by the Company for Cause, no termination benefits shall be payable to or inrespect of Executive except as provided in Section 9(f)(ii). For purposes of this Agreement,“Cause” means (i) a material breach by Executive of any provision of this Agreement; (ii) amaterial and willful violation by Executive of any of the Policies (as defined in Section 13);(iii) the failure by Executive to reasonably and substantially perform his duties hereunder (otherthan as a result of physical or mental illness or injury); (iv) Executive’s willful misconduct orgross negligence that has caused or is reasonably expected to result in material injury to thebusiness, reputation or prospects of the Company or any of its Affiliates; (v) Executive’s fraud ormisappropriation of funds; or (vi) the commission by Executive of a felony or other serious crimeinvolving 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 havegiven Executive notice of the event or events constituting Cause and Executive shall have failed tocure such event or events within thirty (30) business days after receipt of such notice. If, inthe event Executive’s employment is terminated by the Company Without Cause (as defined insubsection (c) below) and, on or before the 12-month anniversary of the applicable Date ofSeparation from Service of such termination Without Cause, it is determined in good faith by theBoard 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 beenterminated for Cause, effective as of the date of the occurrence of the events giving rise to theCause termination. Upon such determination, the Company shall (x) immediately cease paying anytermination benefits pursuant to Section 9 hereof and (y) Executive shall be obligated toimmediately repay to the Company all amounts theretofore paid to Executive pursuant to Section 9.In addition, if not repaid, the Company shall have the right, in accordance with (and to the extentpermitted by)
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Section 409A of the Code and the regulations promulgated thereunder, from any amountsotherwise due to Executive any amounts previously paid pursuant to Section 9(f) (other than theAccrued Obligations).          (c) Termination Without Cause.  Executive’s employment may be terminated by theCompany Without Cause (as defined below in this subsection (c)) at any time. In the event of atermination of Executive’s employment by the Company Without Cause, no termination benefits shallbe payable to or in respect of Executive except as provided in Section 9(f)(i). For purposes ofthis Agreement, a termination “Without Cause” shall mean a termination of Executive’semployment by the Company other than due to Executive’s death or Disability as described in Section9(a) and other than for Cause as described in Section 9(b).          (d) Termination by Executive. Executive may resign from his employment for anyreason, including for Good Reason (as defined below in this subsection (d)). In the event of atermination of Executive’s employment by Executive’s resignation other than for Good Reason, notermination benefits shall be payable to or in respect of Executive except as provided in Section9(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 inSection 9(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 withinthirty (30) days following the occurrence, without Executive’s consent, of any of the followingevents: (i) a material diminution in the Executive’s position, authority or responsibilities; (ii)any decrease in Executive’s Base Salary or a material decrease in the Executive’s incentivecompensation opportunities as set forth in Sections 5 and 6 or (iii) any other material breach bythe Company of any material provision of this Agreement (including without limitation any failureby the Company to obtain agreement by any Successor thereto to expressly assume and agree toperform this Agreement as required by Section 16 herein); provided that the Executive shallhave given the Company notice of the event or events constituting Good Reason and the Company shallhave failed to cure such event or events within thirty (30) business days after receipt of suchnotice.          (e) Procedure for Termination of Employment.          (i) Notice of Termination. Any termination of Executive’s employment by the Companyor by Executive (other than as a result of Executive’s death) shall be communicated by a writtenNotice of Termination addressed to the other party to this Agreement. A “Notice ofTermination” shall mean a notice stating that Executive or the Company, as the case may be, iselecting to terminate Executive’s employment with the Company (and thereby terminating theEmployment Period), stating the proposed effective date of such termination, indicating thespecific provision of this Section 9 under which such termination is being effected and, ifapplicable, setting forth in reasonable detail the circumstances claimed to provide the basis forsuch termination.
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          (ii) Date of Separation from Service. The term “Date of Separation fromService” 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 theSeparation from Service occurs due to termination of Executive’s employment by the Company byreason of Executive’s Disability, a date which is at least six (6) months following the occurrenceof the event giving rise to the Disability, (C) if the Separation from Service occurs due totermination of Executive’s employment by Executive for any reason, a date which is at least 30 daysfollowing the issuance of the Notice of Termination and (D) if the Separation from Service occursdue to termination of Executive’s employment for any other reason, the effective date oftermination specified in such Notice of Termination. The Employment Period shall expire on theDate of Separation from Service.          (iii) Section 409A of the Code. Notwithstanding anything to the contrary in Section9(e)(ii), the determination of whether and when the Date of Separation from Service occurs for thepurpose of determining when any amount that is “nonqualified deferred compensation” subject toSection 409A of the Code becomes due and payable shall be made in a manner consistent with, andbased on the presumptions set forth in, Section 1.409A-1(h) of the regulations promulgated underSection 409 of the Code. Solely for purposes of the determination referred to in the precedingsentence, “Company” shall include all persons with whom the Company would be considered asingle employer under Sections 414(b) and 414(c) of the Code. In the event that the Date ofSeparation from Service, as determined in accordance with this Section 9(e)(iii), occurs before theapplicable notice period specified in Section 9(e)(ii) has elapsed, the Company may elect to pay,or commence payment of, any amounts to which this Section 9(e)(iii) applies following thecompletion of such notice period, but not later than the end of the taxable year in which the Dateof 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 terminationof his employment by the Company Without Cause or Executive’s resignation from employment for GoodReason during the Employment Period, the Company shall pay to Executive, within thirty (30) days ofthe Date of Separation from Service, his (x) Base Salary through the Date of Separation fromService, to the extent not previously paid, (y) reimbursement for any unreimbursed businessexpenses incurred by Executive prior to the Date of Separation from Service that are subject toreimbursement pursuant to Section 8(a) and (z) payment for vacation time accrued as of the Date ofSeparation 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 Serviceas described in this Section 9(f)(i), provided that Executive executes and delivers to the Company,within the applicable period of time provided for under the Age Discrimination in Employment Act of1967, as amended, and in no event later than sixty (60) days following the Executive’s Date ofSeparation from Service, an irrevocable Separation Agreement and General Release
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substantially in the form approved by the Company, Executive shall be entitled to thefollowing payments and benefits:          (A) payments of an amount equal to the sum of (x) Executive’s Base Salary and (y) the annualamount of the Benefits Allowance described in Section 7(b), which amount shall be payable in equalinstallments, in accordance with the Company’s regular payroll policies, during the periodbeginning on the first business day immediately following the six (6) month anniversary of the Dateof Separation from Service and ending on the one (1) year anniversary of the Date of Separationfrom Service;          (B) a portion of Executive’s Annual Bonus for the fiscal year of the Company during whichExecutive was employed that includes the Date of Separation from Service, such portion to equal theproduct (such product, the “Pro-Rata Bonus”) of (1) the Annual Bonus that would have beenpayable to Executive for such fiscal year had Executive remained employed for the entire fiscalyear, determined based on the extent to which the Company actually achieves the performance goalsfor such year established pursuant to Section 5, multiplied by (2) a fraction, the numerator ofwhich is equal to the number of days in such fiscal year that precede the Date of Separation fromService and the denominator of which is equal to 365, such amount to be payable to Executive on thedate (the “Bonus Payment Date”) annual bonuses for such fiscal year are actually paid bythe Company to its active executives, but in no event later than two and a half (21/2) monthsfollowing the end of the applicable fiscal year in which such Annual Bonus was earned;          (C) subject to Section 20(k)(iii) herein, continued coverage during the period commencing onthe Date of Separation from Service and ending on the one year anniversary of the Date ofSeparation from Service (the “Severance Period”) under the Company’s medical, dental andlife insurance plans referred to in Section 7(a) for Executive and his eligible dependentsparticipating in such plans immediately prior to the Date of Separation from Service, subject totimely payment by Executive of all premiums, contributions and other co-payments required to bepaid by active senior executives of the Company under the terms of such plans as in effect fromtime to time; and          (D) at the discretion of the Company, the services of an outplacement agency as selected byand 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 SeverancePeriod and that any reimbursement to be paid by the Company for such services will be made by theend of the year following the year in which the Date of Separation from Service occurs.          Executive shall not have a duty to mitigate the costs to the Company under this Section9(f)(i), nor shall any payments from the Company to Executive of pursuant to this Section 9(f) bereduced, offset or canceled by any compensation or
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fees earned by (whether or not paid currently) or offered to Executive during the SeverancePeriod by a subsequent employer or other Person (as defined in Section 20(*l*) below) for whichExecutive performs services, including but not limited to consulting services. The foregoingnotwithstanding, should Executive receive or be offered health or medical benefits coverage duringthe 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 toExecutive 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 hisemployment (x) upon his death or (y) by the Company for Cause or as a result of Executive’sDisability 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) theAccrued Obligations within thirty (30) days following the Date of Separation from Service. Inaddition, if Executive’s employment shall terminate upon his death or be terminated by the Companyas a result of Executive’s Disability during the Employment Period, the Company shall pay toExecutive (or, in the event of Executive’s death, to his estate) the Pro-Rata Bonus, if any, in onelump sum on the Bonus Payment Date for the fiscal year of the Company that includes the Date ofSeparation from Service, but in no event later than two and a half (21/2) months following the end ofthe applicable fiscal year in which such Annual Bonus was earned.          (iii) Except as specifically set forth in this Section 9(f), no termination benefits shall bepayable 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 Serviceunder this Section 9 or otherwise as of the date of Executive’s termination of employment with theCompany, Executive shall resign, in writing, from all Board and Board committee memberships andother positions then held by him, or to which he has been appointed, designated or nominated, withthe Company and its Affiliates.          10. Restrictive Covenants. Each of the Company and Executive agrees that theExecutive will have a prominent role in the management of the business, and the development of thegoodwill, of the Company and its Affiliates, and will establish and develop relations and contactswith the principal franchisees, customers and suppliers of the Company and its Affiliatesthroughout the world, all of which constitute valuable goodwill of, and could be used by Executiveto compete unfairly with, the Company and its Affiliates. In addition, Executive recognizes thathe will have access to and become familiar with or exposed to Confidential Information (as suchterm is defined below), in particular, trade secrets, proprietary information, customer lists, andother valuable business information of the Company pertaining or
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related to the quick service restaurant business. Executive agrees that Executive could causegrave 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 uponthe termination of Executive’s employment with the Company or misappropriated or divulged theCompany’s Confidential Information, and that as such, the Company has legitimate business interestsin protecting its good will and Confidential Information, and, as such, these legitimate businessinterests justify the following restrictive covenants:          (a) Confidentiality.          (i) Executive acknowledges and agrees that the terms of this Agreement, including alladdendums and attachments hereto, are confidential. Except as required by law or the requirementsof any stock exchange, Executive agrees not to disclose any information contained in this Agreementto anyone, other than to Executive’s lawyer, financial advisor or immediate family members. IfExecutive discloses any information contained in this Agreement to his lawyer, financial advisor orimmediate family members as permitted herein, Executive agrees to immediately tell each suchindividual that he or she must abide by the confidentiality restrictions contained herein and keepsuch information confidential as well.          (ii) Executive agrees that during his employment with the Company and thereafter, Executivewill not, directly or indirectly (A) disclose any Confidential Information to any Person (otherthan, only with respect to the period that Executive is employed by the Company, to an employee oroutside advisor of the Company who requires such information to perform his or her duties for theCompany), or (B) use any Confidential Information for Executive’s own benefit or the benefit of anythird party. “Confidential Information” means confidential, proprietary or commerciallysensitive information relating to (Y) the Company or its Affiliates, or members of their respectivemanagement 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, personnelinformation, drawings, designs, information regarding product development, other commercial orbusiness information and any other information not available to the public generally. Theforegoing obligation shall not apply to any Confidential Information that has been previouslydisclosed to the public or is in the public domain (other than by reason of a breach of Executive’sobligations to hold such Confidential Information confidential). If Executive is required orrequested by a court or governmental agency to disclose Confidential Information, Executive mustnotify the General Counsel of the Company of such disclosure obligation or request no later thanthree (3) business days after Executive learns of such obligation or request, and permit theCompany to take all lawful steps it deems appropriate to prevent or limit the required disclosure.
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          (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 theconscientious and good faith performance of his duties and responsibilities to the Company to thebest of his ability and Executive shall not, directly or indirectly, be employed by, renderservices for, engage in business with or serve as an agent or consultant to any Person other thanthe Company. Executive further agrees that during his employment with the Company and for theperiod of one (1) year following Executive’s Separation from Service with the Company, Executiveshall not directly or indirectly engage in any activities that are competitive with the quickservice restaurant business conducted by the Company, and Executive shall not, directly orindirectly, become employed by, render services for, engage in business with, serve as an agent orconsultant to, or become a partner, member, principal, stockholder or other owner of, any Person orentity that engages in the quick serve restaurant business, provided that Executive shall bepermitted to hold a one percent (1%) or less interest in the equity or debt securities of anypublicly 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 obtainConfidential Information that will affect the Company’s operations throughout the world.Accordingly, Executive acknowledges that the Company has legitimate business interests in requiringa worldwide geographic scope and application of this non-compete provision, and agrees that thisnon-compete provision applies on a worldwide basis.          (c) Non-Solicitation of Employees and Franchisees. During the period of Executive’semployment with the Company and for the one (1)-year period following Executive’s Separation fromService with the Company, Executive shall not, directly or indirectly, by himself or through anythird 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 withthe relationship of the Company or any of its Affiliates with, or (iii) attempt to establish abusiness relationship of a nature that is competitive with the business of the Company with, anyPerson that is or was (during the last twelve (12) months of Executive’s employment with theCompany) (A) an employee of the Company or engaged to provide services to it, or (B) a franchiseeof the Company or any of its Affiliates.          11. Work Product. Executive agrees that all of Executive’s work product (createdsolely or jointly with others, and including any intellectual property or moral rights in such workproduct), given, disclosed, created, developed or prepared in connection with Executive’semployment with the Company, whether ensuing during or after Executive’s employment with theCompany (“Work Product”) shall exclusively vest in and be the sole and exclusive propertyof the Company and shall constitute “work made for hire” (as that term is defined under Section 101of the U.S. Copyright Act, 17 U.S.C. § 101) with the Company being the person for whom the work wasprepared. In the event that any such Work Product is deemed not to be a “work made for hire” ordoes not vest by operation of law in the Company, Executive hereby irrevocably assigns, transfersand conveys to the Company, exclusively and perpetually, all right,
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title and interest which Executive may have or acquire in and to such Work Product throughoutthe world, including without limitation any copyrights and patents, and the right to secureregistrations, renewals, reissues, and extensions thereof. The Company and its Affiliates or theirdesignees shall have the exclusive right to make full and complete use of, and make changes to allWork Product without restrictions or liabilities of any kind, and Executive shall not have theright to use any such materials, other than within the legitimate scope and purpose of Executive’semployment with the Company. Executive shall promptly disclose to the Company the creation orexistence 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 orits designee all right, title and interest in and to all Work Product and any intellectual propertyrights therein (including full cooperation in support of any Company applications for patents andcopyright or trademark registrations).          12. Return of Company Property. In the event of termination of Executive’s employmentfor any reason, Executive shall return to the Company all of the property of the Company and itsAffiliates, including without limitation all materials or documents containing or pertaining toConfidential 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 accesscodes or disks and instructional manuals, internal policies, and other similar materials ordocuments which Executive used, received or prepared, helped prepare or supervised the preparationof in connection with Executive’s employment with the Company. Executive agrees not to retain anycopies, duplicates, reproductions or excerpts of such material or documents.          13. 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, allCompany policies, procedures, rules and regulations applicable to employees generally or toemployees at Executive’s grade level, including without limitation, the Burger King Companies’ Codeof Business Ethics and Conduct, in each case, as they may be amended from time to time in theCompany’s sole discretion (collectively, the “Policies”).          14. Data Protection & Privacy.          (a) Executive acknowledges that the Company, directly or through its Affiliates, collects andprocesses data (including personal sensitive data and information retained in email) relating toExecutive. Executive hereby agrees to such collection and processing and further agrees to executethe 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 ofsuch Consent is on file with the Company.
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          (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 accesstelephone logs, internet usage, voicemail, email and other communication facilities provided by theCompany which Executive may use during his employment with the Company. Executive herebyacknowledges that all communications and activities on Company equipment or premises cannot bepresumed to be private.          15. Injunctive Relief with Respect to Covenants; Forum, Venue and Jurisdiction.Executive acknowledges and agrees that a breach by Executive of any of Section 10, 11, 12, 13 or 14is a material breach of this Agreement and that remedies at law may be inadequate to protect theCompany and its Affiliates in the event of such breach, and, without prejudice to any other rightsand remedies otherwise available to the Company, Executive agrees to the granting of injunctiverelief in the Company’s favor in connection with any such breach or violation without proof ofirreparable harm, plus attorneys’ fees and costs to enforce these provisions. Executive furtheracknowledges and agrees that the Company’s obligations to pay Executive any amount or provideExecutive with any benefit or right pursuant to Section 9 is subject to Executive’s compliance withExecutive’s obligations under Sections 10 through 14 inclusive, and that in the event of a breachby Executive of any of Section 10, 11, 12, 13 or 14, the Company shall immediately cease payingsuch benefits and Executive shall be obligated to immediately repay to the Company all amountstheretofore paid to Executive pursuant to Section 9. In addition, if not repaid, the Company shallhave the right to set off, in accordance with (and to the extent permitted by) Section 409A of theCode and the regulations promulgated thereunder, from any amounts otherwise due to Executive anyamounts previously paid pursuant to Section 9(f) (other than the Accrued Obligations). Executivefurther agrees that the foregoing is appropriate for any such breach inasmuch as actual damagescannot be readily calculated, the amount is fair and reasonable under the circumstances, and theCompany would suffer irreparable harm if any of these Sections were breached. All disputes notrelating to any request or application for injunctive relief in accordance with this Section 15shall be resolved by arbitration in accordance with Section 20 (b).          16. Assumption of Agreement. The Company shall require any Successor thereto, byagreement in form and substance reasonably satisfactory to Executive, to expressly assume and agreeto perform this Agreement in the same manner and to the same extent that the Company would berequired to perform it if no such succession had taken place. Failure of the Company to obtainsuch agreement prior to the effectiveness of any such succession shall be a breach of thisAgreement.          17. Indemnification. The Company agrees both during and after the Employment Periodto 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 orinactions of Executive during the Employment Period as an officer, director or employee of theCompany or any of its
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Subsidiaries or Affiliates or as a fiduciary of any benefit plan of any of the foregoing. TheCompany also agrees to provide Executive with directors and officers insurance coverage both duringand, 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 thethen current officers and directors or, if then being maintained at a higher level with regard toany prior period activities for officers or directors during such prior period, such higher amountwith regard to Executive’s activities during such prior period.          18. Entire Agreement. This Agreement constitutes the entire agreement among theparties 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 notlimited to those made to or with Executive by any other Person and those contained in any prioremployment, consulting or similar agreement, including the Original Agreement, entered into byExecutive and the Company or any predecessor thereto or Affiliate thereof) are merged herein andsuperseded hereby.          19. Survival. The following Sections shall survive the termination of Executive’semployment with the Company and of this Agreement: 9(f), 10, 11, 12, 14, 15, 17, 19 and 20.          20. Miscellaneous.          (a) Binding Effect; Assignment. This Agreement shall be binding on and inure to thebenefit of the Company and its Successors and permitted assigns. This Agreement shall also bebinding on and inure to the benefit of Executive and his heirs, executors, administrators and legalrepresentatives. This Agreement shall not be assignable by any party hereto without the priorwritten consent of the other parties hereto, provided, however, that the Companymay effect such an assignment without prior written approval of Executive upon the transfer of allor substantially all of its business and/or assets (by whatever means), provided that theSuccessor to the Company shall expressly assume and agree to perform this Agreement in accordancewith the provisions of Section 16.          (b) Arbitration. The Company and Executive agree that any dispute or controversyarising under or in connection with this Agreement shall be resolved by final and bindingarbitration before the American Arbitration Association (“AAA”). The arbitration shall beconducted in accordance with AAA’s National Rules for the Resolution of Employment Disputes then ineffect at the time of the arbitration. The arbitration shall be held in Miami, Florida. Thedispute shall be heard and determined by one arbitrator selected from a list of arbitrators who aremembers of AAA’s Regional Employment Dispute Resolution roster. If the parties cannot agree upon amutually acceptable arbitrator from the list, each party shall number the names in order of
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preference and return the list to AAA within ten (10) days from the date of the list. A partymay strike a name from the list only for good cause. The arbitrator receiving the highest rankingby the parties shall be selected. Depositions, if permitted by the arbitrator, shall be limited toa maximum of two (2) per party and to a maximum of four (4) hours in duration. The arbitrationshall not impair either party’s right to request injunctive or other equitable relief in accordancewith Section 15 of this Agreement.          (c) Governing Law. This Agreement shall be governed by and construed in accordancewith 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 allapplicable taxes, including but not limited to income, employment and social insurance taxes, asshall be required by law.          (e) Amendments. No provision of this Agreement may be modified, waived or dischargedunless such modification, waiver or discharge is approved in writing by the Board or a Personauthorized thereby and is agreed to in writing by Executive. No waiver by any party hereto at anytime of any breach by any other party hereto of, or compliance with, any condition or provision ofthis Agreement to be performed by such other party shall be deemed a waiver of similar ordissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver ofany provision of this Agreement shall be implied from any course of dealing between or among theparties hereto or from any failure by any party hereto to assert its rights hereunder on anyoccasion or series of occasions.          (f) Severability. In the event that any one or more of the provisions of thisAgreement 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 affectedthereby. In the event that one or more terms or provisions of this Agreement are deemed invalidor unenforceable by the laws of Florida or any other state or jurisdiction in which it is to beenforced, by reason of being vague or unreasonable as to duration or geographic scope of activitiesrestricted, or for any other reason, the provision in question shall be immediately amended orreformed to the extent necessary to make it valid and enforceable by the court of such jurisdictioncharged with interpreting and/or enforcing such provision. Executive agrees and acknowledges thatthe provision in question, as so amended or reformed, shall be valid and enforceable as though theinvalid or unenforceable portion had never been included herein.          (g) Notices. Any notice or other communication required or permitted to be deliveredunder this Agreement shall be (i) in writing, (ii) delivered personally, by courier service or bycertified 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 afterthe mailing thereof, and (iv) addressed as follows
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(or to such other address as the party entitled to notice shall hereafter designate inaccordance with the terms hereof): (A) If to the Company, to it at:    Burger King Corporation5505 Blue Lagoon DriveMiami, Florida 33126-2029Attention: Chief Human Resources OfficerTelephone: 305-378-3755Facsimile: 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 withthe Company.          (h) Voluntary Agreement; No Conflicts. Executive represents that he is entering intothis Agreement voluntarily and that Executive’s employment hereunder and compliance with the termsand conditions of this Agreement will not conflict with or result in the breach by Executive of anyagreement 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 (includingby facsimile), each of which shall be deemed an original and all of which together shall constituteone and the same instrument.          (j) Headings. The section and other headings contained in this Agreement are for theconvenience of the parties only and are not intended to be a part hereof or to affect the meaningor interpretation hereof.          (k) Section 409A Compliance.          (i) The intent of the parties hereto is that payments and benefits under this Agreement complywith Section 409A of the Code and the regulations and guidance promulgated thereunder (except tothe extent exempt as short-term deferrals or otherwise) and, accordingly, to the maximum extentpermitted, 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 9(f) hereof shall be treated as a separate “payment” forpurposes of Section 409A of the Code. Neither the Company nor Executive shall have the right toaccelerate or defer the delivery of any such
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payments or benefits except to the extent specifically permitted or required by Section 409 ofthe Code.          (iii) All reimbursements and in-kind benefits provided under this Agreement (including withoutlimitation Sections 7(b), 8(a) and 9(f)(i) herein) shall be made or provided in accordance with therequirements of Section 409A of the Code to the extent that such reimbursements or in-kind benefitsare subject to Section 409A of the Code. All expenses or other reimbursements paid pursuant heretothat are taxable income to Executive shall in no event be paid later than the end of the calendaryear next following the calendar year in which Executive incurs such expense or pays such relatedtax. With regard to any provision herein that provides for reimbursement of costs and expenses orin-kind benefits, except as permitted by Section 409A of the Code, (A) the right to reimbursementor in-kind benefits shall not be subject to liquidation or exchange for another benefit and (B) theamount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxableyear 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 orindirectly through one or more intermediaries, Controls, is Controlled by, or is under commonControl with the first Person, including but not limited to a Subsidiary of any such Person.          “Control” (including, with correlative meanings, the terms “Controlling”, “Controlledby” 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 andpolicies of such Person, whether through the ownership of voting securities, by contract orotherwise.          “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 whichthe first Person owns or Controls, directly or indirectly, capital stock or other ownershipinterests representing fifty percent (50%) or more of the combined voting power of the outstandingvoting 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 assetsand liabilities by merger, liquidation, dissolution or otherwise by operation of law, or a Personto which all or substantially all the assets and/or business of the first Person are transferred.
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          IN WITNESS WHEREOF, the Company has duly executed this Agreement by its authorizedrepresentatives, and Executive has hereunto set his hand, in each case effective as of the datefirst above written.      BURGER KING CORPORATION