(b) Position and Responsibilities. During the Employment Period, Executive shallserve as Executive Vice President and Global Chief Marketing Officer, and shall have such dutiesand responsibilities as are customarily assigned to individuals serving in such position and suchother duties consistent with Executive’s title and position as the Chief Executive Officer of theCompany and the Board of Directors (or any committee thereof) of the Company (the Board or suchcommittee referred to as the “Board”) specifies from time to time (it being understood bythe parties that, notwithstanding the foregoing, the Company is free, at any time and from time totime, to reorganize its business operations, and that Executive’s duties and scope ofresponsibility may change in connection with such reorganization). Executive shall devote all ofher skill, knowledge, commercial efforts and business time to the conscientious and good faithperformance of her duties and responsibilities for the Company to the best of her 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. Reimbursement of Relocation Expenses. The Company will pay or reimburse Executive,in accordance with the provisions of the Company’s Relocation Policy applicable to employees atExecutive’s pay band, as in effect from time to time, for the reasonable, direct expenses incurredby Executive in connection with her move from Atlanta, Georgia to Miami, Florida. All payments andreimbursements made pursuant to this Section 3 shall be made subject to Section 20(k) of thisAgreement.     4. Base Salary; Signing Bonus.     (a) Base Salary. During the Employment Period, the Company shall pay Executive an initialbase salary at an annualized rate of $350,000, payable in installments on the Company’s regularpayroll dates. The Board shall review Executive’s base salary annually during the EmploymentPeriod and may increase (but not decrease) such base salary from time to time, based on itsperiodic review of Executive’s performance in accordance with the Company’s regular policies andprocedures. The annual base salary payable to Executive from time to time under this Section 4shall hereinafter be referred to as the “Base Salary.”     (b) Signing Bonus. Executive will receive a one-time signing bonus in the gross amount of$191,000 (the “Signing Bonus”). The Signing Bonus is payable in two (2) equal installments, thefirst being due and payable at the time of the Company’s first regular payroll following theCommencement Date and the second being due and
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payable at the time of the Company’s first regular payroll date following the one (1) yearanniversary of the Commencement Date. Executive and the Company agree that the Signing Bonus isnot part of Executive’s Base Salary. If Executive experiences a Separation from Service (definedbelow) due to (i) her voluntary termination of Employment with the Company (excluding a terminationby Executive for Good Reason) or (i) a termination by the Company for Cause (as defined in Section9(b) of this Agreement), in either case within one (1) year following the payment of anyinstallment of the Signing Bonus, Executive shall be required to repay that portion of the SigningBonus which was paid within the one (1) year period immediately preceding such Separation fromService. Notwithstanding anything in this Section 4(b) to the contrary, unless the Separation fromService is due to a termination by the Company Without Cause or a termination by Executive of heremployment with the Company for Good Reason, Executive will receive each respective installmentunder this Section 4(b) if and only if Executive is still employed by the Company on eachapplicable payment date.     5. Annual Incentive Compensation. Executive shall be eligible to receive an annualbonus (“Annual Bonus”) with respect to each fiscal year ending during the EmploymentPeriod. The Annual Bonus shall be determined under the 2006 Omnibus Incentive Plan (the “OmnibusPlan”) or such other annual incentive plan maintained by the Company for similarly situatedemployees that the Company designates, in its sole discretion (any such plan, the “BonusPlan”), in accordance with the terms of such plan as in effect from time to time. For eachsuch fiscal year, Executive shall be eligible to earn a target Annual Bonus equal to seventypercent (70%) 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. In the case of the Annual Bonus for the 2010 fiscal year of the Company ending June30, 2010, the amount payable to Executive for the 2010 fiscal year shall be pro-rated bymultiplying the Annual Bonus amount, if any, for the 2010 fiscal year by a fraction, the numeratorof which equals the number of days of Executive’s employment with the Company during the 2010fiscal year and the denominator of which equals 365. If the Company does not achieve the thresholdperformance goals established by the Board for a fiscal year, Executive shall not be entitled toreceive an Annual Bonus for such fiscal year. If the Company exceeds the target performance goalsestablished by the Board for a fiscal year, Executive may be entitled to earn an additional AnnualBonus for such year in accordance with the terms of the applicable Bonus Plan. The Annual Bonusfor each year shall be payable at the same time as bonuses are paid to other senior executives ofthe Company in accordance with the terms of the applicable Bonus Plan, but in no event later thantwo and a half (21/2) months following the end of the applicable fiscal year in which such AnnualBonus was earned. Executive shall be entitled to receive any Annual Bonus that becomes payable ina lump-sum cash payment, or, at her election, (A) up to fifty percent (50%) of the Annual Bonus inthe form of a grant of restricted stock units of Common Stock (as defined below) or (B) in any formthat the Board generally makes available to the Company’s executive management team,provided that any suchelection is made by Executive in compliance with Section 409A of the Code and the regulationspromulgated thereunder.
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     6. Equity Incentive Compensation. During the Employment Period, Executive shall beeligible to receive annual performance-based equity grants in accordance with the terms andconditions of the Omnibus Plan or such other plan providing for equity-based incentive compensationmaintained by the Company for employees at Executive’s grade level that the Company designates, inits sole discretion.     7. Employee Benefits.     (a) General. During the Employment Period, Executive will be eligible to participatein the employee and executive benefit plans and programs maintained by the Company from time totime in which executives of the Company at Executive’s grade level are eligible to participate,including to the extent maintained by the Company, life, medical, dental, accidental and disabilityinsurance plans and retirement, deferred compensation and savings plans, in accordance with theterms and conditions thereof as in effect from time to time.     (b) Benefit Allowance. Subject to Section 20(k)(iii) herein, with respect to eachyear during the Employment Period, Executive will be entitled to receive a perquisite allowance of$48,500 (the “Benefits Allowance”), which the Company shall pay to Executive in equalinstallments, in accordance with the Company’s regular payroll policies, during such fiscal year,subject to Executive’s continued employment with the Company.     8. Expenses; Etc.     (a) Business Travel, Lodging, etc. Subject to Section 20(k)(iii) herein, during theEmployment Period, the Company will reimburse Executive for reasonable travel, lodging, meal andother reasonable expenses incurred by her in connection with the performance of her duties andresponsibilities hereunder upon submission of evidence satisfactory to the Company of theincurrence and purpose of each such expense, provided that such expenses are permittedunder the terms and conditions of the Company’s business expense reimbursement policy applicable toexecutives at Executive’s grade level, as in effect from time to time. Subject to Section20(k)(iii) herein, during the Employment Period, the Company shall pay or reimburse Executive forthe annual membership dues for two (2) airline club memberships of Executive’s choosing, subjectto, and contingent upon, Executive’s continued employment with the Company.     (b) Vacation. During the Employment Period, Executive shall be entitled to vacationon an annualized basis in accordance with the Company’s vacation policy, currently four (4) weeksper year for an individual in Executive’s position, withoutcarry-over accumulation. Executive shall also be entitled to Company-designated holidays.
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     9. 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 her Disability or death, no termination benefits shall be payableto or in respect of Executive except as provided in Section 9(f)(ii). For purposes of thisAgreement, “Disability” means a physical or mental disability that prevents or wouldprevent the performance by Executive of her duties hereunder for a continuous period of six (6)months or longer. The determination of Executive’s Disability will (i) be made by an independentphysician agreed to by the parties, or if the parties are unable to agree within ten (10) daysafter a request for designation by a party, by an independent physician identified by the Company’sdisability insurance provider, (ii) be final and binding on the parties hereto and (iii) be basedon such competent medical evidence as shall be presented to such independent physician by Executiveand/or the Company or by any physician or group of physicians or other competent medical expertsemployed by Executive and/or the Company to advise such independent physician.     (b) Termination by the Company for Cause. Executive’s employment may be terminated bythe Company for Cause (as defined below in this subsection (b)). In the event of a termination ofExecutive’s employment by the Company for Cause, no termination benefits shall be payable to or inrespect of Executive except as provided in Section 9(f)(ii). For purposes of this Agreement,“Cause” means (i) a material breach by Executive of any provision of this Agreement; (ii) amaterial and willful violation by Executive of any of the Policies (as defined in Section 13);(iii) the failure by Executive to reasonably and substantially perform her duties hereunder (otherthan as a result of physical or mental illness or injury); (iv) Executive’s willful misconduct orgross negligence that has caused or is reasonably expected to result in material injury to thebusiness, reputation or prospects of the Company or any of its Affiliates; (v) Executive’s fraud ormisappropriation of funds; or (vi) the commission by Executive of a felony or other serious crimeinvolving moral turpitude; provided that in the case of any breach of clauses (i), (ii) or(iii) that is curable, no termination there under shall be effective unless the Company shall havegiven Executive notice of the event or events constituting Cause and Executive shall have failed tocure such event or events within thirty (30) business days after receipt of such notice. If, inthe event Executive’s employment is terminated by the Company Without Cause (as defined insubsection (c) below) and, on or before the 12-month anniversary of the applicable Date ofSeparation from Service of such termination Without Cause, it is determined in good faith by theBoard that Executive’s employment could have been terminated for Cause under clauses (iv), (v) or(vi) hereof, Executive’s employment shall, at the election of the Board, be deemed to have beenterminated for Cause, effective as of the date of the occurrence of the eventsgiving rise to the Cause termination. Upon such determination, the Company shall (x)immediately cease paying any termination benefits pursuant to Section 9 hereof and (y) Executiveshall be obligated to immediately repay to the Company all amounts theretofore paid to Executivepursuant to Section 9. In addition, if not repaid, the Company shall have the right to set off, inaccordance with (and to the extent permitted by) Section 409A of the Code and the regulationspromulgated thereunder, from any amounts otherwise due to Executive any amounts previously paidpursuant to Section 9(f) (other than the Accrued Obligations).
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     (c) Termination Without Cause.  Executive’s employment may be terminated by theCompany Without Cause (as defined below in this subsection (c)) at any time. In the event of atermination of Executive’s employment by the Company Without Cause, no termination benefits shallbe payable to or in respect of Executive except as provided in Section 9(f)(i). For purposes ofthis Agreement, a termination “Without Cause” shall mean a termination of Executive’semployment by the Company other than due to Executive’s death or Disability as described in Section9(a) and other than for Cause as described in Section 9(b).     (d) Termination by Executive. Executive may resign from her employment for anyreason, including for Good Reason (as defined below in this subsection (d)). In the event of atermination of Executive’s employment by Executive’s resignation other than for Good Reason, notermination benefits shall be payable to or in respect of Executive except as provided in Section9(f)(ii) and in the event of a termination of Executive’s employment by Executive for Good Reason,no termination benefits shall be payable to or in respect of Executive except as provided inSection 9(f)(i). For purposes of this Agreement, a termination of employment by Executive for“Good Reason” shall mean a resignation by Executive from her employment with the Company withinthirty (30) days following the occurrence, without Executive’s consent, of any of the followingevents: (i) a material diminution in the Executive’s position, authority or responsibilities (itbeing understood that a change to Executive’s duties and/or scope of responsibility in connectionwith the reorganization of the Company’s operations will not trigger this sub-section (i) unlessaccompanied by a demotion from the “Executive Vice President” level); (ii) any decrease inExecutive’s Base Salary or a material decrease in the Executive’s incentive compensationopportunities as set forth in Sections 5 and 6 or; (iii) any other material breach by the Companyof any material provision of this Agreement (including without limitation any failure by theCompany to obtain agreement by any Successor thereto to expressly assume and agree to perform thisAgreement as required by Section 16 herein); provided that the Executive shall have given theCompany notice of the event or events constituting Good Reason and the Company shall have failed tocure such event or events within thirty (30) business days after receipt of such notice.
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     (e) Procedure for Termination of Employment.     (i) Notice of Termination. Any termination of Executive’s employment by the Companyor by Executive (other than as a result of Executive’s death) shall be communicated by a writtenNotice of Termination addressed to the other party to this Agreement. A “Notice ofTermination” shall mean a notice stating that Executive or the Company, as the case may be, iselecting to terminate Executive’s employment with the Company (and thereby terminating theEmployment Period), stating the proposed effective date of such termination, indicating thespecific provision of this Section 9 under which such termination is being effected and, ifapplicable, setting forth in reasonable detail the circumstances claimed to provide the basis forsuch termination.     (ii) Date of Separation from Service. The term “Date of Separation from Service”shall mean, with respect to Executive’s Separation from Service with the Company, (A) if theSeparation from Service occurs due to Executive’s death, the date of her 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.     (iii) Section 409A of the Code. Notwithstanding anything to the contrary in Section9(e)(ii), the determination of whether and when the Date of Separation from Service occurs for thepurpose of determining when any amount that is “nonqualified deferred compensation” subject toSection 409A of the Code becomes due and payable shall be made in a manner consistent with, andbased on the presumptions set forth in, Section 1.409A-1(h) of the regulations promulgated underSection 409 of the Code. Solely for purposes of the determination referred to in the precedingsentence, “Company” shall include all persons with whom the Company would be considered a singleemployer under Sections 414(b) and 414(c) of the Code. In the event that the Date of Separationfrom Service, as determined in accordance with this Section 9(e)(iii), occurs before the applicablenotice period specified in Section 9(e)(ii) has elapsed, the Company may elect to pay, or commencepayment of, any amounts to which this Section 9(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.
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     (f) Payments Upon Certain Terminations.     (i) In the event of Executive’s Separation from Service with the Company due to a terminationof her employment by the Company Without Cause orExecutive’s resignation from employment for Good Reason during the Employment Period, theCompany shall pay to Executive, within thirty (30) days of the Date of Separation from Service, her(x) Base Salary through the Date of Separation from Service, to the extent not previously paid, (y)reimbursement for any unreimbursed business expenses incurred by Executive prior to the Date ofSeparation from Service that are subject to reimbursement pursuant to Section 8(a) and (z) paymentfor vacation time accrued as of the Date of Separation from Service but unused (such amounts underclauses (x), (y) and (z), collectively the “Accrued Obligations”). In addition, in theevent of Executive’s Separation from Service as described in this Section 9(f)(i), provided thatExecutive executes and delivers to the Company, within the applicable period of time provided forunder the Age Discrimination in Employment Act of 1967, as amended, and in no event later thansixty (60) days following the Executive’s Date of Separation from Service, an irrevocableSeparation Agreement and General Release substantially in the form approved by the Company,Executive shall be entitled to the following payments and benefits:     (A) payments of an amount equal to the sum of (x) Executive’s Base Salary and (y) the annualamount of the Benefits Allowance described in Section 7(b), which amount shall be payable in equalinstallments in accordance with the Company’s regular payroll policies, during the period beginningon the first business day immediately following the six (6) month anniversary of the Date ofSeparation from Service and ending on the one (1) year anniversary of the Date of Separation fromService;     (B) a portion of Executive’s Annual Bonus for the fiscal year of the Company during whichExecutive was employed that includes the Date of Separation from Service, such portion to equal theproduct (such product, the “Pro-Rata Bonus”) of (1) the Annual Bonus that would have beenpayable to Executive for such fiscal year had Executive remained employed for the entire fiscalyear, determined based on the extent to which the Company actually achieves the performance goalsfor such year established pursuant to Section 5, multiplied by (2) a fraction, the numerator ofwhich is equal to the number of days in such fiscal year that precede the Date of Separation fromService and the denominator of which is equal to 365, such amount to be payable to Executive on thedate (the “Bonus Payment Date”) annual bonuses for such fiscal year are actually paid bythe Company to its active executives, but in no event later than two and a half (21/2) monthsfollowing the end of the applicable fiscal year in which such Annual Bonus was earned;     (C) subject to Section 20(k)(iii) herein, continued coverage during the period commencing onthe Date of Separation from Service and ending on the one year anniversary of the Date ofSeparation from Service (the “Severance Period”) under the Company’s medical, dental and lifeinsurance plans referred to in Section 7(a) for Executive and her eligible dependents participatingin such plans immediately prior to the Date of Separation from Service, subject to timely paymentby Executive of all premiums, contributions and other co-payments required to be paid by activeseniorexecutives of the Company under the terms of such plans as in effect from time to time; and
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     (D) at the discretion of the Company, the services of an outplacement agency as selected byand for such period of time as determined by the Chief Human Resources Officer of the Company;provided that in no event will the duration of such outplacement services exceed the SeverancePeriod and that any reimbursement to be paid by the Company for such services will be made by theend of the year following the year in which the Date of Separation from Service occurs.     (E) Notwithstanding any other provision of this Section 9(f)(i), if a Change in Control (asdefined below) occurs within twelve (12) months following the Commencement Date and, within twelvemonths (12) months following the date of such Change in Control, Executive experiences a Separationfrom Service with the Company due to the Company’s termination of her employment Without Cause orExecutive’s resignation for Good Reason, then the amounts payable to Executive under Section9(f)(i)(A) and Section 9(f)(i)(B) shall be multiplied by two (2), but otherwise payable inaccordance with Section 9(f)(i)(A) and Section 9(f)(i)(B), respectively. For purposes of thisAgreement, the term “Change in Control” shall have the meaning ascribed to such term in the OmnibusPlan or such other plan providing for equity-based incentive compensation maintained by the Companyfor employees at Executive’s grade level that the Company designates, in its sole discretion.     Executive shall not have a duty to mitigate the costs to the Company under this Section9(f)(i), nor shall any payments from the Company to Executive pursuant to this Section 9(f) bereduced, offset or canceled by any compensation or fees earned by (whether or not paid currently)or offered to Executive during the Severance Period by a subsequent employer or other Person (asdefined in Section 20(l) below) for which Executive performs services, including but not limited toconsulting services. The foregoing notwithstanding, should Executive receive or be offered healthor medical benefits coverage during the Severance Period by a subsequent employer or Person forwhom Executive performs services, Executive shall notify the Company of this within seven (7)business days of such receipt or offer, as applicable, and all similar health and medical benefitscoverage provided by the Company to Executive shall terminate as of the effective date of such newcoverage.     (ii) In the event of Executive’s Separation from Service due to a termination of heremployment (x) upon her 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 her estate) theAccrued Obligations within thirty (30) days following the Date of Separation from Service. Inaddition, if Executive’s employment shall terminate upon her 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 her estate) the Pro-Rata Bonus, ifany, in one lump sum on the Bonus Payment Date for the fiscal year of the Company thatincludes the Date of Separation from Service, but in no event later than two and a half (21/2) monthsfollowing the end of the applicable fiscal year in which such Annual Bonus was earned.
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     (iii) Except as specifically set forth in this Section 9(f), no termination benefits shall bepayable to or in respect of Executive’s employment with the Company or its Affiliates.     (g) Resignation upon Termination. Effective as of any Date of Separation from Serviceunder this Section 9 or otherwise as of the date of Executive’s termination of employment with theCompany, Executive shall resign, in writing, from all Board and Board committee memberships andother positions then held by her, or to which she has been appointed, designated or nominated, withthe Company and its Affiliates.     10. Restrictive Covenants. Each of the Company and Executive agrees that theExecutive will have a prominent role in the management of the business, and the development of thegoodwill, of the Company and its Affiliates, and will establish and develop relations and contactswith the principal franchisees, customers and suppliers of the Company and its Affiliatesthroughout the world, all of which constitute valuable goodwill of, and could be used by Executiveto compete unfairly with, the Company and its Affiliates. In addition, Executive recognizes thatshe will have access to and become familiar with or exposed to Confidential Information (as suchterm is defined below), in particular, trade secrets, proprietary information, customer lists, andother valuable business information of the Company pertaining or related to the quick servicerestaurant business. Executive agrees that Executive could cause grave harm to the Company if she,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, as such, these legitimate business interests 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 her lawyer, financial advisor orimmediate family members as permitted herein, Executive agrees to immediately telleach such individual that he or she must abide by the confidentiality restrictions containedherein and keep such information confidential as well.
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     (ii) Executive agrees that during her 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.     (iii) Executive agrees that she will not provide BKC with any confidential or proprietaryinformation of The Coca-Cola Company or McDonalds Corporation, including but not limited toinformation Executive received directly from The Coca-Cola Company and/or McDonalds Corporation orany of their respective employees, former employees, franchisees or any other source.     (b) Non-Competition. Executive agrees that during her employment with the Company,Executive shall devote all of her skill, knowledge, commercial efforts and business time to theconscientious and good faith performance of her duties and responsibilities to the Company to thebest of her 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 her employment with the Company and for theperiod of one (1) year following Executive’s Separation from Service with the Company, Executiveshall not directly or indirectly engage in any activities that are competitive with the quickservice restaurant business conducted by the Company, and Executive shall not, directly orindirectly, become employed by, render services for, engage in business with, serve as an agent orconsultant to, or become a partner, member, principal, stockholder or other owner of, any Person orentity that engages in or provides advertising or marketingservices to a Person or entity that engages in, the quick serve restaurant business anywherein the World, including the Company, provided that Executive shall be permitted to hold a onepercent (1%) or less interest in the equity or debt securities of any publicly traded company.Executive’s duties and responsibilities involve, and/or will affect, the operation and managementof the Company on a worldwide basis. Executive will obtain Confidential Information that willaffect the Company’s operations throughout the world. Accordingly, Executive acknowledges that theCompany has legitimate business interests in requiring a worldwide geographic scope and applicationof this non-compete provision, and agrees that this non-compete provision applies on a worldwidebasis.
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     (c) Non-Solicitation of Employees and Franchisees. During the period of Executive’semployment with the Company and for the one (1)-year period following Executive’s Separation fromService with the Company, Executive shall not, directly or indirectly, by herself or through anythird party, whether on Executive’s own behalf or on behalf of any other Person or entity, (i)solicit or induce or endeavor to solicit or induce, divert, employ or retain, (ii) interfere withthe relationship or potential relationship of the Company or any of its Affiliates with, or (iii)attempt to establish a business relationship of a nature that is competitive with the business ofthe Company with any Person that is or was (during the last twelve (12) months of Executive’semployment with the Company) (A) an employee of the Company or any of its Affiliates or (B) engagedto provide services to the Company, including vendors who provide or have provided advertising,marketing or other services, or (C) a franchisee of the Company or any of its Affiliates.     11. Work Product. Executive agrees that all of Executive’s work product (createdsolely or jointly with others, and including any intellectual property or moral rights in such workproduct), given, disclosed, created, developed or prepared in connection with Executive’semployment with the Company, whether ensuing during or after Executive’s employment with theCompany (“Work Product”) shall exclusively vest in and be the sole and exclusive property of theCompany and shall constitute “work made for hire” (as that term is defined under Section 101 of theU.S. Copyright Act, 17 U.S.C. § 101) with the Company being the person for whom the work wasprepared. In the event that any such Work Product is deemed not to be a “work made for hire” ordoes not vest by operation of law in the Company, Executive hereby irrevocably assigns, transfersand conveys to the Company, exclusively and perpetually, all right, title and interest whichExecutive may have or acquire in and to such Work Product throughout the world, including withoutlimitation any copyrights and patents, and the right to secure registrations, renewals, reissues,and extensions thereof. The Company and its Affiliates or their designees shall have the 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 signwhatever documents the Company may require, in order to secure and vest in the Company or itsdesignee 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).
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     12. Return of Company Property. In the event of termination of Executive’s employmentfor any reason, Executive shall return to the Company all of the property of the Company and itsAffiliates, including without limitation all materials or documents containing or pertaining toConfidential Information, and including without limitation, any Company car, all computers(including laptops), cell phones, keys, PDAs, Blackberries, credit cards, facsimile machines,televisions, card access to any Company building, customer lists, computer disks, reports, files,e-mails, work papers, Work Product, documents, memoranda, records and software, computer accesscodes or disks and instructional manuals, internal policies, and other similar materials ordocuments which Executive used, received or prepared, helped prepare or supervised the preparationof in connection with Executive’s employment with the Company. Executive agrees not to retain anycopies, duplicates, reproductions or excerpts of such material or documents.     13. Compliance With Company Policies. During Executive’s employment with the Company,Executive shall be governed by and be subject to, and Executive hereby agrees to comply with, allCompany policies, procedures, rules and regulations applicable to employees generally or toemployees at Executive’s grade level, including without limitation, the Burger King Companies’ Codeof Business Ethics and Conduct, in each case, as they may be amended from time to time in theCompany’s sole discretion (collectively, the “Policies”).     14. Data Protection & Privacy.     (a) Executive acknowledges that the Company, directly or through its Affiliates, collects andprocesses data (including personal sensitive data and information retained in email) relating toExecutive. Executive hereby agrees to such collection and processing and further agrees to executethe Burger King Corporation Employee Consent to Collection and Processing of Personal Information,a copy of which is attached to this Agreement as Attachment 1, unless a previously executed copy ofsuch Consent is on file with the Company.     (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 her employment with the Company. Executive herebyacknowledges that all communications and activities on Company equipment or premises cannot bepresumed to be private.
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     15. Injunctive Relief with Respect to Covenants; Forum, Venue and Jurisdiction.Executive acknowledges and agrees that a breach by Executive of any of Section 10, 11, 12, 13 or 14is a material breach of this Agreement and that remedies at law may be inadequate to protect theCompany and its Affiliates in the event of such breach, and, without prejudice to any other rightsand remedies otherwise available to the Company, Executive agrees to the granting of injunctiverelief in the Company’s favor in connection with any such breach or violation without proof ofirreparable harm, plus attorneys’ fees and costs to enforce these provisions. Executive furtheracknowledges and agrees that the Company’s obligations to pay Executive any amount or provideExecutive with any benefit or right pursuant to Section 9 is subject to Executive’s compliance withExecutive’s obligations under Sections 10 through 14 inclusive, and that in the event of a breachby Executive of any of Section 10, 11, 12, 13 or 14, the Company shall immediately cease payingsuch benefits and Executive shall be obligated to immediately repay to the Company all amountstheretofore paid to Executive pursuant to Section 9. In addition, if not repaid, the Company shallhave the right to set off, in accordance with (and to the extent permitted by) Section 409A of theCode and the regulations promulgated thereunder, from any amounts otherwise due to Executive anyamounts previously paid pursuant to Section 9(f) (other than the Accrued Obligations). Executivefurther agrees that the foregoing is appropriate for any such breach inasmuch as actual damagescannot be readily calculated, the amount is fair and reasonable under the circumstances, and theCompany would suffer irreparable harm if any of these Sections were breached. All disputes notrelating to any request or application for injunctive relief in accordance with this Section 15shall be resolved by arbitration in accordance with Section 20 (b).     16. Assumption of Agreement. The Company shall require any Successor thereto, byagreement in form and substance reasonably satisfactory to Executive, to expressly assume and agreeto perform this Agreement in the same manner and to the same extent that the Company would berequired to perform it if no such succession had taken place. Failure of the Company to obtainsuch agreement prior to the effectiveness of any such succession shall be a breach of thisAgreement.     17. Indemnification. The Company agrees both during and after the Employment Periodto indemnify Executive to the fullest extent permitted by its Certificate of Incorporation(including payment of expenses in advance of final disposition of a proceeding) against actions orinactions of Executive during the Employment Period as an officer, director or employee of theCompany or any of its 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.
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     18. Entire Agreement. This Agreement constitutes the entire agreement among theparties hereto with respect to the subject matter hereof. All prior correspondence and proposals(including but not limited to summaries of proposed terms) and all prior promises, representations,understandings, arrangements and agreements relating to such subject matter (including but notlimited to those made to or with Executive by any other Person and those contained in any prioremployment, consulting or similar agreement entered into by Executive and the Company or anypredecessor thereto or Affiliate thereof) are merged herein and superseded hereby.     19. Survival. The following Sections shall survive the termination of Executive’semployment with the Company and of this Agreement: 9(b), 9(f), 10, 11, 12, 14, 15, 17, 19 and 20.     20. Miscellaneous.     (a) Binding Effect; Assignment. This Agreement shall be binding on and inure to thebenefit of the Company and its Successors and permitted assigns. This Agreement shall also bebinding on and inure to the benefit of Executive and her heirs, executors, administrators and legalrepresentatives. This Agreement shall not be assignable by any party hereto without the priorwritten consent of the other parties hereto, provided, however, that the Companymay effect such an assignment without prior written approval of Executive upon the transfer of allor substantially all of its business and/or assets (by whatever means), provided that theSuccessor to the Company shall expressly assume and agree to perform this Agreement in accordancewith the provisions of Section 16.     (b) Arbitration. The Company and Executive agree that any dispute or controversyarising under or in connection with this Agreement shall be resolved by final and bindingarbitration before the American Arbitration Association (“AAA”). The arbitration shall beconducted in accordance with AAA’s National Rules for the Resolution of Employment Disputes then ineffect at the time of the arbitration. The arbitration shall be held in Miami, Florida. Thedispute shall be heard and determined by one arbitrator selected from a list of arbitrators who aremembers of AAA’s Regional Employment Dispute Resolution roster. If the parties cannot agree upon amutually acceptable arbitrator from the list, each party shall number the names in order ofpreference and return the list to AAA within ten (10) days from the date of the list. A party maystrike a name from the list only for good cause. The arbitrator receiving the highest ranking bythe parties 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 15 of this Agreement.     (c) Governing Law. This Agreement shall be governed by and construed in accordancewith the laws of the State of Florida without reference to principles of conflicts of laws.
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     (d) Taxes. The Company may withhold from any payments made under this Agreement allapplicable taxes, including but not limited to income, employment and social insurance taxes, asshall be required by law.     (e) Amendments. No provision of this Agreement may be modified, waived or dischargedunless such modification, waiver or discharge is approved in writing by the Board or a Personauthorized thereby and is agreed to in writing by Executive. No waiver by any party hereto at anytime of any breach by any other party hereto of, or compliance with, any condition or provision ofthis Agreement to be performed by such other party shall be deemed a waiver of similar ordissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver ofany provision of this Agreement shall be implied from any course of dealing between or among theparties hereto or from any failure by any party hereto to assert its rights hereunder on anyoccasion or series of occasions.     (f) Severability. In the event that any one or more of the provisions of thisAgreement shall be or become invalid, illegal or unenforceable in any respect, the validity,legality and enforceability of the remaining provisions contained herein shall not be affectedthereby. In the event that one or more terms or provisions of this Agreement are deemed invalidor unenforceable by the laws of Florida or any other state or jurisdiction in which it is to beenforced, by reason of being vague or unreasonable as to duration or geographic scope of activitiesrestricted, or for any other reason, the provision in question shall be immediately amended orreformed to the extent necessary to make it valid and enforceable by the court of such jurisdictioncharged with interpreting and/or enforcing such provision. Executive agrees and acknowledges thatthe provision in question, as so amended or reformed, shall be valid and enforceable as though theinvalid or unenforceable portion had never been included herein.     (g) Notices. Any notice or other communication required or permitted to be deliveredunder this Agreement shall be (i) in writing, (ii) delivered personally, by courier service or bycertified or registered mail, first-class postage prepaid and return receipt requested, (iii)deemed to have been received on the date of delivery or, if mailed, on the third business day afterthe mailing thereof, and (iv) addressed as follows (or to such other address as the party entitledto notice shall hereafter designate in accordance with the terms hereof):               (A) If to the Company, to it at: