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Service due to termination of his employment by the Company Without Cause (as defined below)pursuant to Section 10(c) hereof. For purposes of this Agreement, “Separation fromService” has the meaning given to such term in Section 1.409A-1(h) of the regulations (asamended) promulgated under Section 409A of the United States Internal Revenue Code of 1986, asamended (the “Code”). The period during which Executive is employed by the Companypursuant to this Agreement, including any extension thereof in accordance with this section, shallbe referred to as the “Employment Period.”     4. Position and Responsibilities. During the Employment Period, Executive shall serveas the Chief Executive Officer of the Company, shall report to the Board of Directors of theCompany (the “Board”) and shall have such duties and responsibilities as are customarilyassigned to individuals serving in such position and such other duties consistent with Executive’stitle and position as the Board (or any committee thereof, such committee also referred to as the“Board”) specifies from time to time.     Executive shall devote substantially all of his skill, knowledge, commercial efforts andreasonable business time to the conscientious and faithful performance of his duties andresponsibilities for the Company to the best of his ability, except for vacation time as providedby Company policy and absence for sickness or similar disability. Consistent with the foregoing,Executive shall spend such reasonable time as may be devoted to the fulfillment of Executive’scivic responsibilities and as may be necessary from time to time for personal financial matters.     5. Base Salary. During the Employment Period, the Company shall pay Executive a basesalary at an annualized rate of $1,042,875, payable in installments on the Company’s regularpayroll dates. The Board shall review Executive’s base salary annually during the EmploymentPeriod and, in its sole discretion, may increase (but not decrease) such base salary from time totime based upon such factors as the Board shall consider relevant. The annual base salary payableto Executive under this Section 5 shall hereinafter be referred to as the “Base Salary.”     6. Annual Incentive Compensation. Executive shall be eligible to earn an annual bonusfor each fiscal year of the Company ending during the Employment Period (each, an “AnnualBonus”) as follows: (i) a target Annual Bonus equal to 100% of Executive’s Base Salary for suchfiscal year, if the Company and/or Executive (as applicable) achieves the target performance goalsestablished by the Board for such fiscal year, (ii) a stretch Annual Bonus equal to 200% ofExecutive’s Base Salary for such fiscal year, if the Company and/or Executive (as applicable)achieves or exceeds the stretch performance goals established by the Board for such fiscal year,and (iii) a minimum Annual Bonus equal to 50% of Executive’s Base Salary for such fiscal year, ifthe Company and/or Executive (as applicable) achieves at least the threshold performance goalsestablished by the Board for such fiscal year, in each case, as determined by the Board. Ifperformance for a given fiscal year is above the minimum performance goals but below the targetperformance goals, or above the target performance goals but below the stretch performance goals,the Board shall determine the amount of Executive’s Annual Bonus for such fiscal year using thestraight-line interpolation method. If the Company does not achieve the minimum performance goalsfor a fiscal year, Executive shall not be entitled to receive an Annual Bonus for such fiscal year.Notwithstanding the foregoing, Executive hereby
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acknowledges that, while the Company is a publicly held corporation, the Company may make suchmodifications to any incentive compensation plan, program or arrangement (including, withoutlimitation, the annual bonuses contemplated by this Section 6 to the extent necessary so that suchincentive compensation qualifies as qualified performance-based compensation within the meaning ofSection 162(m) of the Code and the regulations promulgated thereunder or otherwise in order tocomply with Section 162(m) of the Code and be deductible by the Company. Any such modificationwill not affect the Annual Bonus targets set forth herein, and Executive acknowledges that,notwithstanding anything in this Agreement to the contrary, any such modification will notconstitute grounds for Executive to terminate his employment with the Company for Good Reason (asdefined below).     Any Annual Bonus that becomes payable to Executive pursuant to this Section 6 shall be paid toExecutive as soon as reasonably practicable following receipt by the Board of the auditedconsolidated financial statements of the Company for the relevant fiscal year, but in no eventlater than two and a half (2 1/2) months following the end of the applicable fiscal year in whichsuch Annual Bonus was earned. Executive shall be entitled to receive any Annual Bonus that becomespayable in a lump sum cash payment or, at his election, in any form that the Board generally makesavailable to the Company’s executive management team; providedthat any suchelection is made by Executive in compliance with Section 409A of the Code and the regulationspromulgated thereunder.     7. Equity Incentive Arrangements.     (a) Long-Term Incentive Compensation. Except as expressly provided for herein, (i)all options to purchase shares of common stock of Burger King Holdings, Inc. (“BKH,” andsuch shares “BKH Shares”) currently held by Executive as of the date hereof (the“Options”) and (ii) any other equity-based awards with respect to BKH Shares held byExecutive as of the date hereof will continue in accordance with the applicable plan document andgrant agreements.     Each of the Options and other equity-based awards will vest as provided in the applicable plandocument and grant agreements, providedthat in the event that (i) Executiveexperiences a Separation from Service due to Executive’s death or Disability (as defined below),all Options and all equity awards issued to Executive pursuant to the Burger King Holdings, Inc.2006 Omnibus Incentive Plan (the “2006 Plan”) or under any other new equity planestablished by the Company shall immediately vest on the Date of Separation from Service (asdefined below) or (ii) a Change in Control (as defined below) occurs and, within twenty-four (24)months following the date of the Change in Control, Executive experiences a Separation from Servicedue to either (A) termination of his employment by the Company Without Cause or (B) Executive’sresignation for Good Reason, all Options and all equity awards issued to Executive duringExecutive’s employment with the Company pursuant to the 2006 Plan or under any other new equityplan established by the Company will become fully vested as of the Date of Separation from Service;provided, that, in the event of a Change in Control where, in the good faith determinationof the Board, the acquirer is a Strategic Buyer, Executive shall have the right, for any reason orno reason at all, to resign within the 30 day period following the one year anniversary of theeffective date of such Change in Control and such resignation shall be treated as a termination bythe Company Without Cause for all purposes under this Agreement and any
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equity agreement with Executive then in place. Except as otherwise provided in the precedingsentence, following Executive’s Separation from Service with the Company for any reason, allunvested Options and all unvested equity awards issued under the 2006 Plan (or other equity planestablished by the Company) shall be immediately cancelled and forfeited and all vested equityawards issued under the 2006 Plan (or other equity plan established by the Company) will remainexercisable until the earlier of (1) the tenth anniversary of the grant date, (2) the firstanniversary of the Date of Separation from Service if Executive’s Separation from Service occursfor any reason other than termination by the Company for Cause, and (3) the date of Executive’sSeparation from Service for Cause. For purposes of this Agreement, the term “Change inControl” shall have the meaning ascribed to such term in the 2006 Plan.     Executive and the Company agree that the Restricted Stock Units Award Agreement betweenExecutive and the Company, dated as of May 17, 2006 (the “RSU Grant Agreement”), whichprovides for the grant to Executive of time-based vesting restricted stock units (the“RSUs”) under the 2006 Plan, is hereby amended as set forth in this paragraph.Notwithstanding anything to the contrary in the RSU Grant Agreement or the 2006 Plan, the RSUsshall be settled as follows: the Company shall deliver to Executive the number of Shares (asdefined in the 2006 Plan) equal to the number of RSUs comprising Executive’s Individual Award (asdefined in the RSU Grant Agreement) on the Vesting Date (as defined in the RSU Grant Agreement),subject to Executive’s continuous employment with the Company through such Vesting Date,provided that, in the event of Executive’s Separation from Service (as defined herein) withthe Company prior to the Vesting Date, (a) the vesting and/or forfeiture of all or any portion ofExecutive’s RSUs shall be governed by the existing terms of the RSU Grant Agreement and (b) withrespect to any RSUs that vest upon Executive’s Separation from Service with the Company, theCompany shall deliver to Executive Shares in settlement of such RSUs on the first business dayimmediately following the six (6) month anniversary of the date of such Separation from Service(rather than on the Vesting Date).     (b) Annual Incentive Compensation. Executive shall be eligible to receive a targetannual performance-based restricted stock and option grant (the “Annual Equity Incentive”)equal to 400% of Executive’s Base Salary, in accordance with the terms and conditions of the 2006Plan and any applicable grant agreement. The grant date value of the Annual Equity Incentive maybe greater or less than 400% of Base Salary depending upon the Company’s performance as determinedby the Compensation Committee of the Board with respect to the Annual Equity Incentive.     8. 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 senior executives of the Company are eligible to participate, including to the extentmaintained by the Company, life, medical, dental, accidental and disability insurance plans andretirement, deferred compensation and savings plans, in accordance with the terms and conditionsthereof as in effect from time to time. The benefits referred to in this Section 8 shall beprovided to Executive on a basis that is commensurate with Executive’s position and duties with theCompany and shall in no event be less than the currentlevel provided to Executive or, if greater, the level of benefits provided to any other seniorexecutive of the Company.
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     (b) Benefit Allowance. With respect to each year during the Employment Period, inaddition to the benefits provided under Section 8(a), Executive will be entitled to receive aperquisite allowance in an amount equal to $50,000 (the “Benefits Allowance”), which theCompany shall pay to Executive in equal installments, in accordance with the Company’s regularpayroll policies, during such fiscal year, subject to Executive’s continued employment with theCompany.     9. Expenses; Etc.     (a) Business Travel, Lodging, etc. Subject to Section 21(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 and otherwise in accordance with the terms and conditions of the Company’s business expensereimbursement policy applicable to its senior executives, as in effect from time to time. Subjectto Section 21(k)(iii) herein, during the Employment Period, Executive will be provided theopportunity to utilize a private charter jet for business travel (and up to $100,000 per fiscalyear of private charter jet travel may be for personal use, which allowance will be calculatedusing the per hour charge being charged to the Company by the private charter service plus anyapplicable fuel surcharge), and Executive shall have the right, at his discretion, to fly firstclass on all other business-related flights. Executive shall also be provided the opportunity toutilize a private car service for personal use.     (b) Vacation. During the Employment Period, Executive shall be entitled to paidvacation and sick leave benefits equal to the maximum available to any senior executive of theCompany, determined without regard to the period of service that might otherwise be necessary toentitle Executive to such vacation or sick leave under company Policy. Executive is currentlyentitled to five (5) weeks of vacation without carry-over accumulation.     10. Termination of Employment.     (a) Termination Due to Death or Disability. Executive’s employment shallautomatically terminate upon his death and may be terminated by the Company due to Executive’sDisability (as defined below). In the event that Executive’s employment is terminated due to hisDisability or death, no termination benefits shall be payable to or in respect of Executive exceptas provided in Section 10(f)(i). For purposes of this Agreement, “Disability” means aphysical or mental disability that prevents or would prevent the performance by Executive of hisduties hereunder for a continuous period of six months or longer. The determination of Executive’sDisability will (i) be made by an independent physician identified by the Company’s disabilityinsurance provider, (ii) be final and binding on the parties hereto and (iii) be based on suchcompetent medical evidence as shall be presented to such independent physician by Executive and/orthe Company or by any physician or group ofphysicians or other competent medical experts employed by Executive and/or the Company toadvise 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 the event of a termination of Executive’s employmentby the Company for Cause, no termination benefits shall be payable to or in respect of Executiveexcept as provided in Section 10(f)(ii). For purposes of this Agreement, “Cause” means (i)a material breach by Executive of any provision of this Agreement; (ii) a material and willfulviolation by Executive of any applicable Company policy, procedure, rule or regulation, includingwithout limitation, the Burger King Companies’ Code of Business Ethics and Conduct, in each case asany such policy, procedure, rule or regulation may be amended from time to time in the Company’ssole discretion; (iii) the failure by Executive to reasonably and substantially perform his dutieshereunder (other than as a result of physical or mental illness or injury); (iv) Executive’swillful misconduct or gross negligence that has caused or is reasonably expected to result inmaterial injury to the business, reputation or prospects of the Company or any of its Affiliates;(v) Executive’s fraud or misappropriation of funds; or (vi) the commission by Executive of a felonyor other serious crime involving moral turpitude; provided that in the case of any breachof clauses (i), (ii) or (iii) that is curable, no termination thereunder shall be effective unlessthe Company shall have given Executive notice of the event or events constituting Cause andExecutive shall have failed to cure such event or events within thirty (30) business days afterreceipt of such notice. If, in the event Executive’s employment is terminated by the CompanyWithout Cause (as defined in subsection (c) below) and, on or before the 12-month anniversary ofthe applicable Date of Separation from Service of such termination Without Cause, it is determinedin good faith by the Board that Executive’s employment could have been terminated for Cause underclauses (iv), (v) or (vi) hereof, Executive’s employment shall, at the election of the Board, bedeemed to have been terminated for Cause, effective as of the date of the occurrence of the eventsgiving rise to the Cause termination.     (c) Termination Without Cause. Executive’s employment may be terminated by the CompanyWithout Cause (as defined below) at any time. In the event of a termination of Executive’semployment by the Company Without Cause, no termination benefits shall be payable to or in respectof Executive except as provided in Section 10(f)(i). For purposes of this Agreement, a termination“Without Cause” shall mean a termination of Executive’s employment by the Company otherthan for Cause as described in Section 10(b) or on account of death or Disability under Section10(a).     (d) Termination by Executive. Executive may terminate his employment for any reason,including for Good Reason (as defined below). In the event of a termination of Executive’semployment by Executive other than for Good Reason, no termination benefits shall be payable to orin respect of Executive except as provided in Section 10(f)(ii) and in the event of a terminationof Executive’s employment by Executive for Good Reason, no termination benefits shall be payable toor in respect of Executive except as provided in Section 10(f)(i). For purposes of this Agreement,a termination of employment by Executive for “Good Reason” shall mean a termination byExecutive of his employment with the Company within thirty (30) days following the occurrence,without Executive’s consent, of any of the following events: (i) a material diminution inExecutive’s position, authority or responsibilities as Chief Executive Officer of the Company, theassignment to Executive by the Company of duties materially
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inconsistent with the duties associated with the position described in Section 4 herein, theoccurrence of acts or conduct on the part of the Company or the board of directors of the Companywhich prevent Executive from, or substantially hinder Executive in, performing his duties orresponsibilities pursuant to this Agreement; (ii) any decrease in Executive’s base pay, anymaterial decrease in Executive’s incentive compensation opportunities or any material decrease inthe aggregate employee benefits provided to Executive pursuant to Section 8(a) of this Agreement,other than any decrease caused by the amendment, modification or termination of any employeebenefit plan, program or arrangement that is generally applicable to all participants in such plan,program or arrangement; (iii) any other material breach by the Company of a material provision ofthis Agreement (including without limitation any failure by the Company to obtain agreement by anySuccessor thereto to expressly assume and agree to perform this Agreement as required by Section 18herein); (iv) termination of Executive’s employment as a result of his death or Disability; or (v)the Company, other than at the initiative of Executive, requiring Executive to permanently be basedanywhere that is more than 75 miles from the Company’s current principal office in Miami, Florida;providedthat, except in the case of clause (iv) above, Executive shall have giventhe 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), and stating the proposed effective date of such 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 forCause or Without Cause, the date on which Notice of Termination is given or, if later, theeffective date of termination specified in such Notice of Termination, and (C) if the Separationfrom Service occurs due to termination of Executive’s employment (I) by the Company due toExecutive’s Disability or (II) by Executive for any reason, the date specified in the applicableNotice of Termination, provided that, with respect to any such termination by Executive,such date shall not be less than thirty (30) days nor more than sixty (60) days after the date onwhich Notice of Termination is given. The Employment Period shall expire on the Date of Separationfrom Service.     (iii) Section 409A of the Code. Notwithstanding anything to the contrary in Section10(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
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regulations promulgated under Section 409A of the Code. Solely for purposes of thedetermination referred to in the preceding sentence, “Company” shall include all persons with whomthe Company would be considered a single employer under Sections 414(b) and 414(c) of the Code. Inthe event that the Date of Separation from Service, as determined in accordance with this Section10(e)(iii), occurs before the applicable notice period specified in Section 10(e)(ii) has elapsed,the Company may elect to pay, or commence payment of, any amounts to which this Section 10(e)(iii)applies following the completion of such notice period, but not later than the end of the taxableyear in which the Date of Separation from Service occurs.     (f) Payments Upon Certain Terminations.     (i) In the event of Executive’s Separation from Service due to (I) termination of Executive’semployment by the Company Without Cause (including as a result of the Company’s election not torenew the Employment Period as described in Section 3 herein) or (II) Executive’s resignation fromemployment for Good Reason (including a deemed resignation as described in clause (iv) of Section10(d)) during the Employment Period, the Company shall pay to Executive (or, following his death,to Executive’s estate), within thirty (30) days following the Date of Separation from Service, (x)his full Base Salary through the Date of Separation from Service, to the extent not previouslypaid, (y) reimbursement for any unreimbursed business expenses incurred by Executive prior to theDate of Separation from Service that are subject to reimbursement pursuant to Section 9(a) and (z)payment for vacation time accrued as of the Date of Separation from Service but unused (suchamounts under clauses (x), (y) and (z), collectively the “Accrued Obligations”). Inaddition, in the event of Executive’s Separation from Service as described in this Section 10(f)(i)or 10(a), provided (except in the case of Executive’s Separation from Service due to hisdeath), Executive executes and delivers to the Company, within the applicable period of timeprovided for under the Age Discrimination in Employment Act of 1967, as amended, and in no eventlater than sixty (60) days following the Executive’s Date of Separation from Service, anirrevocable Release and Discharge of All Claims substantially in the form approved by the Company,Executive (or, following his death, Executive’s estate) shall be entitled to the followingpayments and benefits:     (A) payments of an amount equal to (x) if such Separation from Service occurs prior toa Change in Control, two (2) times, or (y) if such Separation from Service occurs subsequentto a Change in Control, three (3) times, the sum of (I) Executive’s Base Salary as of theDate of Separation from Service, (II) Executive’s target Annual Bonus (as described inSection 6(i) herein) and (III) the annual amount of the Benefits Allowance referred to inSection 8(b) herein, which amount shall be payable in equal installments, in accordance withthe Company’s regular payroll policies, during the period beginning on the first businessday immediately following the six (6) month anniversary of the Date of Separation fromService and ending on the one (1) year anniversary of the Date of Separation from Service;     (B) subject to Section 21(k)(iii) herein, continued coverage during the periodbeginning on the Date of Separation from Service and ending on the (x) second anniversary,if such Separation from Service occurs prior to a Change in Control, or (y) thirdanniversary, if such Separation from Service occurs subsequent to a Change in Control, ofthe Date of Separation from Service (the “Severance Period”) under the
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Company’s medical, dental and life insurance plans referred to in Section 8(a) (the“Continued Benefits”) for Executive and his eligible dependents participating insuch plans immediately prior to the Date of Separation from Service in the same manner thatExecutive received such benefits during his employment, subject to timely payment byExecutive of all premiums, contributions and other co-payments required to be paid by activesenior executives of the Company under the terms of such plans as in effect from time totime; and     (C) to the extent applicable, the Options and other equity awards held by Executiveshall vest and be exercisable in accordance with the terms and conditions of Section 7 ofthis Agreement.     Executive shall not have a duty to mitigate the costs to the Company under this Section10(f)(i), nor shall any payments from the Company to Executive of Base Salary be reduced, offset orcanceled by any compensation or fees earned by (whether or not paid currently) or offered toExecutive during the Severance Period by a subsequent employer or other Person (as defined below)for which Executive performs services, including but not limited to consulting services.Notwithstanding anything in this Section 10(f)(i) to the contrary, (i) in the event of atermination of Executive’s employment with the Company upon Executive’s death or due to hisDisability, any payments from the Company to Executive described in Section 10(f)(i)(A) shall bereduced by the value of any Company provided life and disability benefits Executive (or Executive’sestate in the case of his death) is entitled to receive in connection with such death orDisability, and (ii) should Executive receive or be offered health or medical benefits coverageduring the Severance Period by a subsequent employer or Person for whom Executive performsservices, all similar health and medical benefits coverage provided by the Company to Executiveshall immediately terminate.     (ii) If Executive’s Separation from Service occurs due to (A) termination of Executive’semployment by the Company for Cause or (B) Executive’s resignation from his employment without GoodReason (including as a result of Executive’s election not to renew the Employment Period asdescribed in Section 3 herein), in any such case during the Employment Period, the Company shallpay to Executive (or, in the event of Executive’s death, to his estate) the Accrued Obligationswithin thirty (30) days following the Date of Separation from Service.     (iii) Except as specifically set forth in this Section 10(f), no termination payments orbenefits or similar payments or benefits (including any payments or benefits under any otherwiseapplicable plan, policy, program or practice of the Company or its Affiliates) shall be payable toExecutive 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 10 or otherwise as of the date of Executive’s termination of employment with theCompany, Executive shall resign, in writing, from all Board and any Board Committee memberships andother positions then held by him, or to which he has been appointed, designated or nominated, withthe Company and its Affiliates, if any.
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     11. Confidentiality. Executive agrees that during his employment with the Company andthereafter, Executive will not, directly or indirectly (i) disclose any Confidential Information toany Person (other than, only with respect to the period that Executive is employed by the Company,to an employee of the Company who requires such information to perform his or her duties for theCompany), or (ii) use any Confidential Information for Executive’s own benefit or the benefit ofany third party. “Confidential Information” means confidential, proprietary orcommercially sensitive information relating to (i) the Company or its Affiliates, or members oftheir management or boards or (ii) any third parties who do business with the Company or itsAffiliates, including franchisees and suppliers. Confidential Information includes, withoutlimitation, marketing plans, business plans, financial information and records, operation methods,personnel information, drawings, designs, information regarding product development, othercommercial or business information and any other information not available to the public generally.The foregoing obligation shall not apply to any Confidential Information that has been 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.     12. Non-Competition. Each of the Company and Executive agrees that Executive willhave a prominent role in the management of the business, and the development of the goodwill, ofthe 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. Executive agrees that during his employment withthe Company and for the period of one (1) year following Executive’s Separation from Service withthe Company, Executive shall not directly or indirectly engage in any activities that arecompetitive with any 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 shallbe permitted to hold a one percent (1%) or less interest in the equity or debt securities of anypublicly traded company.     13. Non-Solicitation. During the period of Executive’s employment with the Companyand for the one (1)-year period following Executive’s Separation from Service with the Company,Executive shall not, directly or indirectly, by himself or through any third party, whether onExecutive’s own behalf or on behalf of any other Person or entity, (i) solicit or endeavor tosolicit, employ or retain, (ii) interfere with the relationship of the Company or any of itsAffiliates with, or (iii) attempt to establish a business relationship with (A) any natural personwho is or was (during Executive’s employment with the Company) an employee or engaged by theCompany to provide services to it, or (B) any Person who is or was (during Executive’s employmentwith the Company) a franchisee of the Company or any of its Affiliates.
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     14. 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 exclusiveproperty of the Company and shall constitute “work made for hire” (as that term is defined underSection 101 of the U.S. Copyright Act, 17 U.S.C. § 101) with the Company being the person for whomthe work was prepared. In the event that any such Work Product is deemed not to be a “work madefor hire” or does not vest by operation of law in the Company, Executive hereby irrevocablyassigns, transfers and conveys to the Company, exclusively and perpetually, all right, title andinterest which Executive may have or acquire in and to such Work Product throughout the world,including without limitation any copyrights and patents, and the right to secure registrations,renewals, reissues, and extensions thereof. The Company and its Affiliates or their designeesshall have the exclusive right to make full and complete use of, and make changes to all WorkProduct without restrictions or liabilities of any kind, and Executive shall not have the right touse 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).     15. 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.     16. Compliance With Company Policies.     (a) During Executive’s employment with the Company, Executive shall be governed by and besubject to, and Executive hereby agrees to comply with, all applicable Company policies,procedures, rules and regulations, including without limitation, the Burger King Companies’ Code ofBusiness Ethics and Conduct, in each case, as any such policies may be amended from time to time inthe Company’s sole discretion.     (b) Data Protection & Privacy.
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     (i) 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.     (ii) 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.     17. Injunctive Relief with Respect to Covenants. Executive acknowledges and agreesthat the covenants, obligations and agreements of Executive contained in Sections 11 through 16(inclusive) relate to special, unique and extraordinary matters and that a violation of any of theterms of such covenants, obligations or agreements will cause the Company irreparable injury forwhich adequate remedies are not available at law. Therefore, Executive agrees that the Companyshall be entitled to an injunction, restraining order or such other equitable relief (without therequirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate torestrain Executive from committing any violation of such covenants, obligations or agreements.These injunctive remedies are cumulative and in addition to any other rights and remedies theCompany may have. All disputes not relating to any request or application for injunctive relief inaccordance with this Section 17 shall be resolved by arbitration in accordance with Section 21(b).     Notwithstanding any other provision hereof, the Company’s obligations to pay Executive anyamount or provide Executive with any benefit or right following a termination of Executive’semployment pursuant to Sections 7 and/or 10(f) is subject to Executive’s compliance with hisobligations under Sections 11 through 16, inclusive, and in the event that Executive fails in anyrespect to comply with any such obligations or is deemed to have been terminated for Cause pursuantto Section 10(b), the Company’s obligations to make any additional payments or provide anyadditional benefits or other rights or entitlements to Executive pursuant to any provision of thisAgreement shall immediately cease and Executive shall be required to immediately repay to theCompany all amounts theretofore paid to Executive pursuant to Section 10(f). In addition, if notrepaid, the Company shall have the right to set off, in accordance with (and to the extentpermitted by) Section 409A of the Code and the regulations promulgated thereunder, from any amountsotherwise due to Executive any amounts previously paid pursuant to Section 10(f) (other than theAccrued Obligations). Executive further agrees that the foregoing is appropriate for any suchbreach inasmuch as actual damages cannot be readily calculated, the amount is fair and reasonableunder the circumstances, and the Company would suffer irreparable harm if any of these Sectionswere breached.     18. 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 theCompany would be required to perform it if no such succession had taken place. Failure of theCompany to obtain such agreement prior to the effectiveness of any such succession shall be abreach of this Agreement.
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     19. 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 Subsidiaries or Affiliates or as a fiduciary of any benefit plan of any ofthe foregoing. The Company also agrees to provide Executive with directors and officers insurancecoverage both during and, with regard to matters occurring during the Employment Period, after theEmployment Period. Such coverage shall be at a level at least equal to the level being maintainedat such time for the then current officers and directors or, if then being maintained at a higherlevel with regard to any prior period activities for officers or directors during such priorperiod, such higher amount with regard to Executive’s activities during such prior period.     20. 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.     21. 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. The Company may effect such an assignment withoutprior written approval of Executive upon the transfer of all or substantially all of its businessand/or assets (by whatever means), provided that the Successor to the Company shallexpressly assume and agree to perform this Agreement in accordance with the provisions of Section18.     (b) Arbitration. Any dispute or controversy arising under or in connection with thisAgreement (except in connection with any request or application for injunctive relief in accordancewith Section 17) shall be resolved by binding arbitration. The arbitration shall be held in Miami,Florida and, except to the extent inconsistent with this Agreement, shall be conducted inaccordance with the Commercial Arbitration Rules of the American Arbitration Association then ineffect at the time of the arbitration, and otherwise in accordance with principles which would beapplied by a court of law or equity. The arbitrator shall be acceptable to both the Company andExecutive. If the parties cannot agree on an acceptable arbitrator, the dispute shall be heard bya panel of three arbitrators, one appointed by the Company, oneappointed by Executive, and the third appointed by the other two arbitrators. All expenses ofarbitration shall be borne by the party who incurs the expense, or, in the case of joint expenses,by both parties in equal portions.
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     (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) Payments and Taxes.     (i) If any payment, distribution or provision of a benefit by the Company to or for thebenefit of Executive in connection with a Change in Control, whether paid or payable, distributedor distributable or provided or to be provided pursuant to the terms of this Agreement or otherwise(each a “Payment” and the aggregate of such Payments, the “Aggregate Payment”),would be subject to an excise tax imposed by Section 4999 of the Code that would not have beenimposed absent such Payment, or any interest or penalties with respect to such excise tax (suchexcise tax, together with any such interest or penalties, hereinafter collectively referred to asthe “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-upPayment”) in an amount such that after payment by Executive of all taxes (including anyinterest or penalties imposed with respect to such taxes), including any income taxes and ExciseTaxes imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment (takinginto account any similar gross-up payments to Executive under any stock incentive or other benefitplan or program of the Company) equal to the Excise Tax imposed upon the Payments. Thedetermination as to whether a Gross-up Payment is required and the amount of any such Gross-upPayment shall be made by an independent auditor (the “Auditor”) jointly selected by theCompany and Executive. The Auditor shall be a nationally recognized United States publicaccounting firm. Executive shall notify the Company in writing of any claim by the InternalRevenue Service which, if successful, would require Company to make a Gross-up Payment (or aGross-up Payment in excess of that, if any, initially determined by the Company and Executive)within ten (10) business days after the receipt of such claim. The Company shall notify Executivein writing at least ten (10) business days prior to the due date of any response required withrespect to such claim if it plans to contest the claim. If the Company decides to contest suchclaim, Executive shall cooperate fully with the Company in such action; provided,however, Company shall bear and pay directly or indirectly all costs and expenses(including additional interest and penalties) incurred in connection with such action and shallindemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax,including interest and penalties with respect thereto, imposed as a result of the Company’s action.If, as a result of the Company’s action with respect to a claim, Executive receives a refund ofany amount paid by the Company with respect to such claim, Executive shall promptly pay such refundto the Company. If the Company fails to timely notify Executive whether it will contest such claimor the Company determines not to contest such claim, then the Company shall immediately pay toExecutive the portion of such claim, if any, which it has not previously paid to Executive.     (ii) Notwithstanding anything in Section 21(d)(i) to the contrary, in the event that theAuditor determines that the Aggregate Payment is equal to less than 110% of the product of (i)three and (ii) Executive’s Base Amount (as such term is defined in Section 280G(b)(3) of
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the Code and the regulations issued under Section 280G of the Code), the Aggregate Paymentwill be reduced to the minimum amount as will result in no portion of the Aggregate Payment beingsubject to the Excise Tax; providedthat the payments and/or benefits to beeliminated in effecting such reduction shall be agreed upon between the Company and Executive inaccordance with (and to the extent permitted by) Section 409A of the Code and the regulationspromulgated thereunder.     (iii) Any Gross-Up Payment, as determined pursuant to this Section 21(d), shall be paid by theCompany to Executive following receipt of the Auditor’s determination as described in Section21(d)(i), provided that the Gross-Up Payment shall in all events be paid no later than theend of Executive’s taxable year next following Executive’s taxable year in which the Excise Tax(and any income or other related taxes or interest or penalties thereon) on the relevant Paymentare remitted to the Internal Revenue Service or any other applicable taxing authority or, in thecase of amounts relating to a claim that the Company contests as described in Section 21(d)(i), thecalendar year in which such claim is finally settled or otherwise resolved. Notwithstanding anyother provision of this Section 21(d) to the contrary, the Company may, in its sole discretion,withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, forthe benefit of Executive, all or any portion of any Gross-Up Payment, and Executive hereby consentsto such withholding.     (iv) The Company may withhold from any payments made under this Agreement all applicabletaxes, including but not limited to income, employment and social insurance taxes, as shall berequired by law.     (e) Amendments. No provision of this Agreement may be modified, waived or dischargedunless such modification, waiver or discharge is approved by the Board or a Person authorizedthereby and is agreed to in writing by Executive and the Company. No waiver by any party hereto atany time of any breach by any other party hereto of, or compliance with, any condition or provisionof this 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.     (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 entitledto notice shall hereafter designate in accordance with the terms hereof):
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     (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     (B) if to Executive, to him at his residential address as currently on file with the 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 10(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 payments or benefits except to the extent specificallypermitted or required by Section 409A of the Code.     (iii) All reimbursements and in-kind benefits provided under this Agreement (including withoutlimitation Sections 9(a) and 10(f)(i)(B) 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, (i) the right to reimbursementor in-kind benefits shall not be subjectto liquidation or exchange for another benefit and (ii) the amount of expenses eligible forreimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenseseligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
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     (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, severally or jointly, of the power to direct or cause the direction of themanagement and policies of such Person, whether through the ownership of voting securities, bycontract, or otherwise.     “Person”: any natural person, firm, partnership, limited liability company,association, corporation, company, trust, business trust, governmental authority or other entity.     “Strategic Buyer”: an entity that is engaged in the production of goods or theprovision of services other than the investment of capital. Solely by way of example, and withoutlimiting the foregoing, Berkshire Hathaway, Inc. would not be a Strategic Buyer for purposes ofthis Agreement.     “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