Burger King 2009 Annual Report Download - page 178

(j) Headings. The section and other headings contained in this Agreement are for the convenience of the parties only and are not
intended to be a part hereof or to affect the meaning or interpretation hereof.
(k) Section 409A Compliance.
(i) The intent of the parties hereto is that payments and benefits under this Agreement comply with Section 409A of the Code and the
regulations and guidance promulgated thereunder (except to the extent exempt as short−term deferrals or otherwise) and, accordingly, to the
maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith.
(ii) It is intended that each installment, if any, of the payments and benefits, if any, provided to Executive under Section 9(f) hereof shall
be treated as a separate “payment” for purposes of Section 409A of the Code. Neither the Company nor Executive shall have the right to
accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409 of the
Code.
(iii) All reimbursements and in−kind benefits provided under this Agreement (including without limitation Sections 7(b), 8(a) and 9(f)(i)
herein) shall be made or provided in accordance with the requirements of Section 409A of the Code to the extent that such reimbursements or
in−kind benefits are subject to Section 409A of the Code. All expenses or other reimbursements paid pursuant hereto that are taxable income
to Executive shall in no event be paid later than the end of the calendar year next following the calendar year in which Executive incurs such
expense or pays such related tax. With regard to any provision herein that provides for reimbursement of costs and expenses or in−kind
benefits, except as permitted by Section 409A of the Code, (A) the right to reimbursement or in−kind benefits shall not be subject to
liquidation or exchange for another benefit and (B) the amount of expenses eligible for reimbursement, or in−kind benefits provided, during
any taxable year shall not affect the expenses eligible for reimbursement, or in−kind benefits to be provided, in any other taxable year.
(l) Certain other Definitions.
“Affiliate”: with respect to any Person, means any other Person that, directly or indirectly through one or more intermediaries, Controls,
is Controlled by, or is under common Control with the first Person, including but not limited to a Subsidiary of any such Person.
“Control” (including, with correlative meanings, the terms “Controlling”, “Controlled by” and “under common Control with”): with respect
to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by contract or otherwise.
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