Burger King 2009 Annual Report Download - page 138

(c) Governing Law. This Agreement shall be governed by and construed in accordance with 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 the benefit of Executive in connection with a Change in Control,
whether paid or payable, distributed or 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
been imposed absent such Payment, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties,
hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross−up Payment”) in an amount such
that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income taxes and Excise
Taxes imposed on any Gross−up Payment, Executive retains an amount of the Gross−up Payment (taking into account any similar gross−up payments to
Executive under any stock incentive or other benefit plan or program of the Company) equal to the Excise Tax imposed upon the Payments. The
determination as to whether a Gross−up Payment is required and the amount of any such Gross−up Payment shall be made by an independent auditor (the
“Auditor”) jointly selected by the Company and Executive. The Auditor shall be a nationally recognized United States public accounting firm. Executive
shall notify the Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross−up
Payment (or a Gross−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 Executive in writing at least ten (10) business days prior to the due date of any response required with
respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, 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 shall indemnify 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 of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund to the Company. If
the Company fails to timely notify Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company
shall immediately pay to Executive 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 the Auditor 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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