Burger King 2009 Annual Report Download - page 139

the Code and the regulations issued under Section 280G of the Code), the Aggregate Payment will be reduced to the minimum amount as will result in no
portion of the Aggregate Payment being subject to the Excise Tax; provided that the payments and/or benefits to be eliminated in effecting such reduction
shall be agreed upon between the Company and Executive in accordance with (and to the extent permitted by) Section 409A of the Code and the regulations
promulgated thereunder.
(iii) Any Gross−Up Payment, as determined pursuant to this Section 21(d), shall be paid by the Company to Executive following receipt of the Auditor’s
determination as described in Section 21(d)(i), provided that the Gross−Up Payment shall in all events be paid no later than the end 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
Payment are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim that the
Company contests as described in Section 21(d)(i), the calendar year in which such claim is finally settled or otherwise resolved. Notwithstanding any other
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, for the benefit of Executive, all or any portion of any Gross−Up Payment, and Executive hereby consents to such withholding.
(iv) The Company may withhold from any payments made under this Agreement all applicable taxes, including but not limited to income, employment
and social insurance taxes, as shall be required by law.
(e) Amendments. No provision of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge is approved by
the Board or a Person authorized thereby and is agreed to in writing by Executive and the Company. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No waiver of any provision of this Agreement shall
be implied from any course of dealing between or among the parties hereto or from any failure by any party hereto to assert its rights hereunder on any
occasion or series of occasions.
(f) Severability. In the event that any one or more of the provisions of this Agreement 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 affected thereby.
(g) Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified 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 after the mailing thereof, and (iv) addressed as follows (or to such other address as the party
entitled to notice shall hereafter designate in accordance with the terms hereof):
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