Burger King 2009 Annual Report Download - page 131

inconsistent with the duties associated with the position described in Section 4 herein, the occurrence of acts or conduct on the part of the Company or the
board of directors of the Company which prevent Executive from, or substantially hinder Executive in, performing his duties or responsibilities pursuant to
this Agreement; (ii) any decrease in Executive’s base pay, any material decrease in Executive’s incentive compensation opportunities or any material
decrease in the 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 employee benefit 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 of this Agreement (including without limitation any failure
by the Company to obtain agreement by any Successor thereto to expressly assume and agree to perform this Agreement as required by Section 18 herein);
(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 based anywhere that is more than 75 miles from the Company’s current principal office in Miami, Florida; provided that,
except in the case of clause (iv) above, Executive shall have given the Company notice of the event or events constituting Good Reason and the Company
shall have failed to cure such event or events within thirty (30) business days after receipt of such notice.
(e) Procedure for Termination of Employment.
(i) Notice of Termination. Any termination of Executive’s employment by the Company or by Executive (other than as a result of Executive’s death)
shall be communicated by a written Notice of Termination addressed to the other party to this Agreement. A “Notice of Termination” shall mean a notice
stating that Executive or the Company, as the case may be, is electing to terminate Executive’s employment with the Company (and thereby terminating the
Employment Period), and stating the proposed effective date of such termination.
(ii) Date of Separation from Service. The term “Date of Separation from Service” shall mean, with respect to Executive’s Separation from Service with
the Company, (A) if the Separation from Service occurs due to Executive’s death, the date of his death, (B) if the Separation from Service occurs due to
termination of Executive’s employment by the Company for Cause or Without Cause, the date on which Notice of Termination is given or, if later, the
effective date of termination specified in such Notice of Termination, and (C) if the Separation from Service occurs due to termination of Executive’s
employment (I) by the Company due to Executive’s Disability or (II) by Executive for any reason, the date specified in the applicable Notice 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 on which Notice of Termination is given. The Employment Period shall expire on the Date of Separation from Service.
(iii) Section 409A of the Code. Notwithstanding anything to the contrary in Section 10(e)(ii), the determination of whether and when the Date of
Separation from Service occurs for the purpose of determining when any amount that is “nonqualified deferred compensation” subject to Section 409A of
the Code becomes due and payable shall be made in a manner consistent with, and based on the presumptions set forth in, Section 1.409A−1(h) of the
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