Burger King 2009 Annual Report Download - page 175

be obligated to immediately repay to the Company all amounts theretofore paid to Executive pursuant to Section 9. In addition, if not repaid,
the Company shall have the right to set off, in accordance with (and to the extent permitted by) Section 409A of the Code and the regulations
promulgated thereunder, from any amounts otherwise due to Executive any amounts previously paid pursuant to Section 9(f) (other than the
Accrued Obligations). Executive further agrees that the foregoing is appropriate for any such breach inasmuch as actual damages cannot be
readily calculated, the amount is fair and reasonable under the circumstances, and the Company would suffer irreparable harm if any of these
Sections were breached. All disputes not relating to any request or application for injunctive relief in accordance with this Section 15 shall be
resolved by arbitration in accordance with Section 20 (b).
16. Assumption of Agreement. The Company shall require any Successor thereto, by agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such agreement prior to
the effectiveness of any such succession shall be a breach of this Agreement.
17. Indemnification. The Company agrees both during and after the Employment Period to 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 or
inactions of Executive during the Employment Period as an officer, director or employee of the Company or any of its Subsidiaries or Affiliates
or as a fiduciary of any benefit plan of any of the foregoing. The Company also agrees to provide Executive with directors and officers
insurance coverage both during and, with regard to matters occurring during the Employment Period, after the Employment Period. Such
coverage shall be at a level at least equal to the level being maintained at such time for the then current officers and directors or, if then being
maintained at a higher level with regard to any prior period activities for officers or directors during such prior period, such higher amount with
regard to Executive’s activities during such prior period.
18. Entire Agreement. This Agreement constitutes the entire agreement among the parties 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 not limited to those made to or
with Executive by any other Person and those contained in any prior employment, consulting or similar agreement, including the Original
Agreement, entered into by Executive and the Company or any predecessor thereto or Affiliate thereof) are merged herein and superseded
hereby.
19. Survival. The following Sections shall survive the termination of Executive’s employment with the Company and of this Agreement:
9(f), 10, 11, 12, 14, 15, 17, 19 and 20. 13