2. Term; Position and Responsibilities; Location.     (a) Term of Employment. Commencing on October 25, 2010 (the “CommencementDate”), unless Executive’s employment shall sooner terminate pursuant to Section 8, the Companyshall continue to employ Executive on the terms and subject to the conditions of this Agreementfrom the date first written above throughDecember 31, 2011 (the “Initial Term”). Effective upon the expiration of the InitialTerm and each Additional Term (as defined below), Executive’s employment hereunder shall be deemedto 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 ofthe Initial Term or the then current Additional Term, as the case may be, unless the Company shallhave given written notice to Executive, at least ninety (90) days prior to the expiration of theInitial Term or such Additional Term, of its intention not to extend the Employment Period (asdefined below) hereunder. Executive’s Separation from Service (as defined below) with the Companypursuant to any such notice of non-extension delivered by the Company to Executive shall occur uponexpiration of the relevant Term or Additional Term (as applicable) and shall be deemed toconstitute his Separation from Service due to termination of his employment by the Company WithoutCause (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 theregulations (as amended) promulgated under Section 409A of the United States Internal Revenue Codeof 1986, as amended (the “Code”). The period during which Executive is employed by theCompany pursuant to this Agreement, including any extension thereof in accordance with thissection, shall be referred to as the “Employment Period.”     (b) Position and Responsibilities. During the Employment Period, Executive shallserve as Executive Vice President, Global Operations and shall have such duties andresponsibilities as are customarily assigned to individuals serving in such position and such otherduties consistent with Executive’s title and position as the Chief Executive Officer of the Companyand the Board of Directors (or any committee thereof) of the Company (the Board or such committeereferred to as the “Board”) specifies from time to time (it being understood by the partiesthat, notwithstanding the foregoing, the Company is free, at any time and from time to time, toreorganize its business operations, and that Executive’s duties and scope of responsibility maychange in connection with such reorganization). Executive shall devote all of his skill,knowledge, commercial efforts and business time to the conscientious and good faith performance ofhis 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.     3. Base Salary. During the Employment Period, the Company shall pay Executive a basesalary at an annualized rate of $350,000, 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 3 shall hereinafter bereferred to as the “Base Salary.”
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     4. Annual Incentive Compensation. Commencing January 1, 2011, Executive shall beeligible to receive an annual bonus (“Annual Bonus”) with respect to each fiscal yearending during the Employment Period. The Annual Bonus shall be determined under the annualincentive plan to be adopted and maintained by the Company for similarly situated employees thatthe Company designates, in its sole discretion (any such plan, the “Bonus Plan”), inaccordance 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 One Hundred Twenty percent(120%) of Executive’s Base Salary for such fiscal year, if the Company achieves the targetperformance goals established by the Board for such fiscal year in accordance with the terms of theBonus Plan. If the Company does not achieve the threshold performance goals established by theBoard for a fiscal year, Executive shall not be entitled to receive an Annual Bonus for such fiscalyear. If the Company exceeds the target performance goals established by the Board for a fiscalyear, Executive may be entitled to earn an additional Annual Bonus for such year in accordance withthe terms of the applicable Bonus Plan. The Annual Bonus for each year shall be payable at thesame time as bonuses are paid to other senior executives of the Company in accordance with theterms of the applicable Bonus Plan, but in no event later than two and a half (21/2) months followingthe end of the applicable fiscal year in which such Annual Bonus was earned. Executive shall beentitled to receive any Annual Bonus that becomes payable in a lump-sum cash payment, or, at hiselection, 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 withSection 409A of the Code and the regulations promulgated thereunder.     5. Equity Incentive Compensation.     (a) It is the intention of the Company to grant the Executive a grant of options to purchaseone share each of common stock of Burger King Holdings, Inc., or any of its Affiliates, with thenumber of shares of common stock underlying the options having an aggregate grant date fair valueof $2,000,000, such valuation to be determined by the Company, each option having an exercise priceequal to the fair market value (as defined in the Equity Plan or applicable award agreement) of oneshare of common stock of Holdings on the grant date, which options will have a five (5) yearvesting period (the “Option Award”). The Option Award will be evidenced by an awardagreement in accordance with the terms of the Equity Plan and will be subject to all applicableprovisions of the Equity Plan. For purposes of this Agreement, the term “Equity Plan” meansthe equity plan providing for equity-based incentive compensation to be adopted and maintained bythe Company for employees at Executive’s grade level, as such plan may be amended from time totime, in its sole discretion.     (b) During the Employment Period, Executive may be eligible to receive annualperformance-based equity grants in accordance with the terms and conditions of the Equity Plan,such grants to be made in the Company’s sole discretion.
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     6. Employee Benefits. During the Employment Period, Executive will be eligible toparticipate in the employee and executive benefit plans and programs maintained by the Company fromtime to time in which executives of the Company at Executive’s grade level are eligible toparticipate, including to the extent maintained by the Company, life, medical, dental, accidentaland disability insurance plans and retirement, deferred compensation and savings plans, inaccordance with the terms and conditions thereof as in effect from time to time.     7. Expenses; Etc.     (a) Business Travel, Lodging, etc. Subject to Section 19(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 permitted under theterms and conditions of the Company’s business expense reimbursement policy applicable toexecutives at Executive’s grade level, as in effect from time to time.     (b) Vacation. During the Employment Period, Executive shall be entitled to vacationon an annualized basis in accordance with the Company’s vacation policy, currently five (5) weeksper year for an individual in Executive’s position, without carry-over accumulation. Executiveshall also be entitled to Company-designated holidays.     8. Termination of Employment.     (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 8(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.
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     (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, notermination benefits shall be payable to or in respect of Executive except as provided inSection 8(f)(ii). For purposes of this Agreement, “Cause” means (i) a material breach byExecutive of any provision of this Agreement; (ii) a material and willful violation by Executive ofany of the Policies (as defined in Section 12); (iii) the failure by Executive to reasonably andsubstantially perform his duties hereunder (other than as a result of physical or mental illness orinjury); (iv) Executive’s willful misconduct or gross negligence that has caused or is reasonablyexpected to result in material injury to the business, reputation or prospects of the Company orany of its Affiliates; (v) Executive’s fraud or misappropriation of funds; or (vi) the commissionby Executive of a felony or other serious crime involving moral turpitude; provided that inthe case of any breach of clauses (i), (ii) or (iii) that is curable, no termination thereundershall be effective unless the Company shall have given Executive notice of the event or eventsconstituting 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 terminatedby the Company Without Cause (as defined in subsection (c) below) and, on or before the 12-monthanniversary of the applicable Date of Separation from Service of such termination Without Cause, itis determined in good faith by the Company that Executive’s employment could have been terminatedfor Cause under clauses (iv), (v) or (vi) hereof, Executive’s employment shall, at the election ofthe Company, be deemed to have been terminated for Cause, effective as of the date of theoccurrence of the events giving rise to the Cause termination. Upon such determination, theCompany shall (x) immediately cease paying any termination benefits pursuant to Section 8 hereofand (y) Executive shall be obligated to immediately repay to the Company all amounts theretoforepaid to Executive pursuant to Section 8. In addition, if not repaid, the Company shall have theright to set off, in accordance with (and to the extent permitted by) Section 409A of the Code andthe regulations promulgated thereunder, from any amounts otherwise due to Executive any amountspreviously paid pursuant to Section 8(f) (other than the Accrued 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 8(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 Section8(a) and other than for Cause as described in Section 8(b).
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     (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 Section8(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 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 theCompany within thirty (30) days following the occurrence, without Executive’s consent, of any ofthe following events: (i) a material diminution in the Executive’s position, authority orresponsibilities (it being understood that a change to Executive’s duties and/or scope ofresponsibility in connection with the reorganization of the Company’s operations will not triggerthis 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 incentivecompensation opportunities as set forth in Sections 4 and 5; 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 15 herein); provided that the Executive shall havegiven the Company notice of the event or events constituting Good Reason and the Company shall havefailed 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 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 8 under which such termination is being effected and, ifapplicable, setting forth in reasonable detail the circumstances claimed to provide the basis forsuch termination.     (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 to atermination 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.
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     (iii) Section 409A of the Code. Notwithstanding anything to the contrary in Section8(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 thepresumptions set forth in, Section 1.409A-1(h) of the regulations promulgated under Section409 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 employerunder Sections 414(b) and 414(c) of the Code. In the event that the Date of Separation fromService, as determined in accordance with this Section 8(e)(iii), occurs before the applicablenotice period specified in Section 8(e)(ii) has elapsed, the Company may elect to pay, or commencepayment of, any amounts to which this Section 8(e)(iii) applies following the completion of suchnotice period, but not later than the end of the taxable year in which the Date of Separation fromService 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 7(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 8(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 substantially inthe form approved by the Company, Executive shall be entitled to the following payments andbenefits:     (A)(1) during the period commencing on the first business day following the Date of Separationfrom Service and ending on the six (6) month anniversary of the Date of Separation from Service,Executive shall receive, in substantially equal installments, in accordance with the Company’sregular payroll policies, an amount equal to the lesser of (x) the Safe Harbor Amount (as definedbelow) and (y) one-fourth (1/4th) of the Severance (as defined below) (such lesser amount, the“Initial Severance Payment”); provided, that such payments shall commence on the60th day following the Date of Separation from Service (the “CommencementDate”), provided, further, that the first installment payment shall equal the sum of theinstallments that would have been made between the Date of Separation from Service and theCommencement Date; and
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     For purposes of Section 8(f)(i), the “Safe Harbor Amount” means an amount equal to twotimes (2x) the lesser of (1) the sum of Executive’s “annualizedcompensation” within the meaning of Code Section 409A and (2) the maximum amount that may betaken into account under a qualified plan pursuant to Code Section 401(a)(17) (i.e., with respectto 2010, $245,000). Additionally, for purposes of Section 8(f)(i), the “Severance” meansan amount equal to two times (2x) the sum of (x) Executive’s Base Salary as of the Date ofSeparation from Service and (y) Executive’s target Annual Bonus for the fiscal year of the Companythat includes the Date of Separation from Service.     (A)(2) during the period commencing on the first business day following the six (6) monthanniversary of the Date of Separation from Service and ending on the second anniversary of the Dateof Separation from Service, Executive shall receive in substantially equal installments, inaccordance with the Company’s regular payroll policies, an amount equal to (x) the Severance minus(y) the Initial Severance Payment; provided, that, in no event shall the portion ofthe Severance payable during the period beginning on the first business day immediately followingthe Date of Separation from Service and ending on the first anniversary of the Date of Separationfrom Service be less than the Executive’s Base Salary as in effect on the Date of Separation fromService. For the avoidance of doubt, in no event shall the total amount paid pursuant to thisSection 8(f)(i)(A) exceed the Severance.     (B) subject to Section 19(k)(iii) herein, continued coverage during the period commencing onthe Date of Separation from Service and ending on the second anniversary of the Date of Separationfrom Service (the “Severance Period”) under the Company’s medical, dental and lifeinsurance plans referred to in Section 6 for Executive and his eligible dependents participating insuch plans immediately prior to the Date of Separation from Service, subject to timely payment byExecutive of all premiums, contributions and other co-payments required to be paid by active seniorexecutives of the Company under the terms of such plans as in effect from time to time; and     (C) at the discretion of the Chief Human Resources Officer of the Company, the services of anoutplacement agency as selected by and for such period of time as determined by the Chief HumanResources Officer of the Company; provided that in no event will the duration of such outplacementservices exceed the one (1) year period following the Separation from Service and that anyreimbursement to be paid by the Company for such services will be made by the end of the yearfollowing 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 Section 8(f)(i),nor shall any payments from the Company to Executive pursuant to this Section 8(f) be reduced,offset or canceled by any compensation or fees earned by (whether or not paid currently) or offeredto Executive during the Severance Period by a subsequent employer or other Person (as defined inSection 19(l) below) for which Executive performs services, including but not limited to consultingservices. The foregoing notwithstanding, should Executive receive or be offered health or medicalbenefits coverage during the Severance Period by a subsequent employer or Person for whom Executiveperforms 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 benefitscoverage provided by the Company to Executive shall terminate as of the effective date of such newcoverage.
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     (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. For purposes of this Section8(f)(ii),“Bonus Payment Date” means the date on which annual bonuses with respect to afiscal year are actually paid by the Company to its active executives and “Pro-Rata Bonus”means 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 of (1) the Annual Bonus that would have been payable to Executive for such fiscal year hadExecutive remained employed for the entire fiscal year, determined based on the extent to which theCompany 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 fiscalyear that precede the Date of Separation from Service and the denominator of which is equal to 365.     (iii) Except as specifically set forth in this Section 8(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 8 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.     9. Restrictive Covenants. Each of the Company and Executive agrees that the Executivewill 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 theprincipal franchisees, customers and suppliers of the Company and its Affiliates throughout theworld, all of which constitute valuable goodwill of, and could be used by Executive to competeunfairly with, the Company and its Affiliates. In addition, Executive recognizes that he
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will have access to and become familiar with or be exposed to Confidential Information (assuch 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 servicerestaurant 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 awayfrom the Company or solicited the Company’s franchisees upon the termination of Executive’semployment 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 andConfidential Information, and these legitimate business interests therefore justify the followingrestrictive 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 (or, in circumstances in which Executive receives severance paymentspursuant to Section 8(f)(i) hereof, the period of two (2) years) following Executive’s Separationfrom Service with the Company, Executive shall not directly or indirectly engage in any activitiesthat are competitive with the quick service restaurant business conducted by the Company, andExecutive shall not, directly or indirectly, become employed by, render services for, engage inbusiness 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 restaurantbusiness, including any franchisee of the Company or any of its Affiliates, provided that Executiveshall be permitted to hold a one percent (1%) or less interest in the equity or debt securities ofany publicly traded company. Executive’s duties and responsibilities involve, and/or willaffect, 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 (or, in circumstances in whichExecutive receives severance payments pursuant to Section 8(f)(i) hereof, the two (2) year period)following Executive’s Separation from Service with the Company, Executive shall not, directly orindirectly, by himself or through any third party, whether on Executive’s own behalf or on behalfof 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 Affiliateswith, or (iii) attempt to establish a business relationship of a nature that is competitive withthe business of the Company with any Person that is or was (during the last twelve (12) months ofExecutive’s employment with the Company) (A) an employee of the Company or any of its Affiliates orengaged to provide services to any such entity, or (B) a franchisee of the Company or any of itsAffiliates.
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     10. 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. Inthe event that any such Work Product is deemed not to be a “work made for hire” or does notvest by operation of law in the Company, Executive hereby irrevocably assigns, transfers andconveys to the Company, exclusively and perpetually, all right, title and interest which Executivemay have or acquire in and to such Work Product throughout the world, including without limitationany copyrights and patents, and the right to secure registrations, renewals, reissues, andextensions thereof. The Company and its Affiliates or their designees shall have the exclusiveright to make full and complete use of, and make changes to all Work Product without restrictionsor liabilities of any kind, and Executive shall not have the right to use any such materials, otherthan within the legitimate scope and purpose of Executive’s employment with the Company. Executiveshall promptly disclose to the Company the creation or existence of any Work Product and shall takewhatever additional lawful action may be necessary, and sign whatever documents the Company mayrequire, in order to secure and vest in the Company or its designee all right, title and interestin and to all Work Product and any intellectual property rights therein (including full cooperationin 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 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.     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, 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”).     13. 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 isattached to this Agreement as Attachment 1, unless a previously executed copy of such Consentis 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.     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 13is 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 8 is subject to Executive’s compliance withExecutive’s obligations under Sections 9 through 13 inclusive, and that in the event of a breach byExecutive of any of Section 9, 10, 11, 12 or 13, the Company shall immediately cease paying suchbenefits and Executive shall be obligated to immediately repay to the Company all amountstheretofore paid to Executive pursuant to Section 8. 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 8(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 14shall be resolved by arbitration in accordance with Section 19(b).     15. 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.     16. 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
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disposition of a proceeding) against actions or inactions of Executive during the EmploymentPeriod as an officer, director or employee of the Company or any of its Subsidiaries or Affiliatesor as a fiduciary of any benefit plan of any of the foregoing. The Company also agrees to provideExecutive with directors and officers insurance coverage both during and, with regard to mattersoccurring during the Employment Period, after the Employment Period. Such coverage shall be at alevel at least equal to the level being maintained at such time for the then current officers anddirectors or, if then being maintained at a higher level with regard to any prior period activitiesfor officers or directors during such prior period, such higher amount with regard to Executive’sactivities during such prior period.     17. 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.     18. Survival. The following Sections shall survive the termination of Executive’semployment with the Company and of this Agreement: 8(b), 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 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 15.
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     (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 amutuallyacceptable arbitrator from the list, each party shall number the names in order of preferenceand return the list to AAA within ten (10) days from the date of the list. A party may strike aname from the list only for good cause. The arbitrator receiving the highest ranking by theparties shall be selected. Depositions, if permitted by the arbitrator, shall be limited to amaximum of two (2) per party and to a maximum of four (4) hours in duration. The arbitration shallnot impair either party’s right to request injunctive or other equitable relief in accordance withSection 14 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.
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     (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(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: