EMPLOYMENT AGREEMENT
EXHIBIT 10.48
This EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of March 5, 2008 by
and between BK ASIAPAC, PTE. LTD. (together with any Successor thereto, the “Company”), and
XXXXX XXX (“Executive”).
WITNESSETH:
WHEREAS, Executive commenced employment with the Company on
November 14, 2005;
WHEREAS, the Company desires to continue to employ and secure the exclusive services of
Executive on the terms and conditions set forth in this Agreement;
WHEREAS, Executive desires to accept such employment on such terms and conditions; and
WHEREAS, Executive currently is a party to an employment agreement with the Company dated
November 14, 2005, that governs the terms and conditions of his employment (the “Original
Agreement”) and Executive and the Company desire to have the Original Agreement superseded by
the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises
contained herein and for other good and valuable consideration, the Company and Executive hereby
agree as follows:
l. Agreement to Employ. Upon the terms and subject to the conditions of this
Agreement, the Company hereby agrees to continue to employ Executive, and Executive hereby accepts
such continued employment with the Company.
2. Amendment and Restatement of Original Agreement. This Agreement shall serve as a
complete amendment and restatement of the Original Agreement. All terms of the Original Agreement
shall be superseded by the terms of this Agreement and, upon execution of this Agreement, the
Original Agreement shall be of no further force and effect.
3. Term; Position and Responsibilities; Location.
(a) Term of Employment. Unless Executive’s employment shall sooner terminate pursuant
to Section 9, the Company shall continue to employ Executive on the terms and subject to the
conditions of this Agreement for a term commencing on
the date first written above (the “Commencement Date”) through June 30, 2008 (the
“Initial Term”). Effective upon the expiration of the Initial Term and each Additional
Term (as defined below), Executive’s employment hereunder shall be deemed to be automatically
extended, upon the same terms and conditions, for an additional period of
one (1) year (each, an “Additional Term”) subject to earlier termination pursuant to
Section 9, in each such case, commencing upon the expiration of the
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Initial Term or the then
current Additional Term, as the case may be, unless the Company shall have given written notice to
Executive, at least ninety (90) days prior to the expiration of the Initial Term or such Additional
Term, of its intention not to extend the Employment Period (as defined below) hereunder;
provided that any such notice of non-extension shall be deemed to constitute a termination
of Executive’s employment by the Company Without Cause pursuant to Section 9(c) hereof. The period
during which Executive is employed by the Company pursuant to this Agreement, including any
extension thereof in accordance with the preceding sentence, shall be referred to as the
“Employment Period.”
(b) Position and Responsibilities. During the Employment Period, Executive shall
serve as Executive Vice President and President, Asia Pacific, and shall have such duties and
responsibilities as are customarily assigned to individuals serving in such position and such other
duties consistent with Executive’s title and position as the Chief Executive Officer of the Company
and the Board of Directors (or any committee thereof) of the Company (the Board or such committee
referred to as the “Board”) specifies from time to time (it being understood by the parties
that, notwithstanding the foregoing, the Company is free, at any time and from time to time, to
reorganize its business operations, and that Executive’s duties and scope of responsibility may
change in connection with such reorganization). Executive shall devote all of his skill,
knowledge, commercial efforts and business time to the conscientious and good faith performance of
his duties and responsibilities for the Company to the best of his ability.
(c) Location. During the Employment Period, Executive’s services shall be performed
primarily in Singapore. However, Executive may be required to travel in and outside of Singapore
as the needs of the Company’s business dictate.
4. Base Salary. During the Employment Period, the Company shall pay Executive a base
salary at an annualized rate of $733,314.72 Singapore Dollars (SGD) (inclusive of the
13th month payment), payable in installments on the Company’s regular payroll dates.
The Board shall review Executive’s base salary annually during the Employment Period and may
increase (but not decrease) such base salary from time to time, based on its periodic review of
Executive’s performance in accordance with the Company’s regular policies and procedures. The
annual base salary payable to Executive from time to time under this Section 4 shall hereinafter be
referred to as the “Base Salary.”
5. Annual Incentive Compensation. Executive shall be eligible to receive an annual
bonus (“Annual Bonus”) with respect to each fiscal year ending during the Employment
Period. The Annual Bonus shall be determined under the 2006 Omnibus Incentive Plan (the “Omnibus
Plan”) or such other annual incentive plan maintained by the Company for similarly situated
employees that the Company
designates, in its sole discretion (any such plan, the “Bonus Plan”), in accordance
with the terms of such plan as in effect from time to time. For each such fiscal year, Executive
shall be eligible to earn a target Annual Bonus equal to Seventy percent (70%) of Executive’s Base
Salary for such fiscal year, if the Company achieves the target performance goals established by
the Board for such fiscal year. In the case of the Annual Bonus for the 2008 fiscal year of the
Company ending June 30, 2008, the amount payable to Executive for the 2008 fiscal year shall be (a)
calculated applying a target bonus rate of Sixty percent (60%) for the period of the 2008 fiscal
year prior to the Commencement Date and a target bonus rate of Seventy percent (70%) for the
remainder of the 2008 fiscal year and (b) pro-rated by multiplying the Annual Bonus amount, if any,
for the 2008 fiscal year by a fraction, the numerator of which equals the number of days of
Executive’s employment with the Company during the 2008 fiscal year and the denominator of which
equals 365. If the Company
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does not achieve the threshold performance goals established by the
Board for a fiscal year, Executive shall not be entitled to receive an Annual Bonus for such fiscal
year. If the Company exceeds the target performance goals established by the Board for a fiscal
year, Executive shall be entitled to earn an additional Annual Bonus for such year in accordance
with the terms of the applicable Bonus Plan. The Annual Bonus for each year shall be payable at
the same time as bonuses are paid to other senior executives of the Company in accordance with the
terms of the applicable Bonus Plan. Executive shall be entitled to receive any Annual Bonus that
becomes payable in a lump-sum cash payment, or, at his election, (A) up to fifty percent (50%) of
the Annual Bonus in the form of a grant of restricted stock units of Common Stock (as defined
below) or (B) in any form that the Board generally makes available to the Company’s executive
management team, provided that any such election is made by Executive in Compliance with
Section 409A of the Internal Revenue Code of 1986 (as amended) and the regulations promulgated
there under, to the extent applicable to Executive.
6. Equity Incentive Compensation.
(a) All equity of Burger King Holdings, Inc. (“Holdings”) or equity-based awards with respect
to the common stock of Holdings (“Common Stock”) held by Executive as of the date hereof
and any Management Subscription and Shareholders’ Agreement, Management Stock Option Agreement and
Restricted Share Agreement (collectively, the “Equity Award Agreements”) to which the Executive is
a party as of the date hereof, will continue in accordance with their respective terms
provided that, notwithstanding any other provision of this Agreement or the Equity Award
Agreements, if a Change in Control (as defined below) occurs and, within twenty-four (24) months
after the date of such Change in Control, Executive’s employment is terminated by the Company
“Without Cause” or by Executive for “Good Reason” (as defined below), all options to acquire Common
Stock held by Executive at such time (the “Options”), will become immediately and fully vested upon
such termination and Executive shall have ninety (90) days from the Date of Termination to exercise
such Options. For purposes of this Agreement, the term “Change in Control” shall have the meaning
ascribed to such term in the Omnibus Plan.
(c) During the Employment Period, Executive shall be entitled to receive annual
performance-based equity grants in accordance with the terms and conditions of the Omnibus Plan or
such other plan providing for equity-based incentive compensation maintained by the Company for
employees at Executive’s grade level that the Company designates, in its sole discretion.
7. Employee Benefits.
(a) General. During the Employment Period, Executive will be eligible to participate
in the employee and executive benefit plans and programs maintained by the Company from time to
time in which executives of the Company at Executive’s grade level are eligible to participate,
including to the extent maintained by the Company, life, medical, dental, accidental and disability
insurance plans and retirement, deferred compensation and savings plans, in accordance with the
terms and conditions thereof as in effect from time to time.
(b) Car Allowance. During the Employment Period, Executive will be entitled to
receive a car allowance on an annualized basis in accordance with the Company’s car allowance
policy for an individual in Executive’s position. This allowance is intended for the lease or
purchase of a car and associated expenses with the use of the car for business purposes including
insurance,
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gasoline, licensing and maintenance. Alternatively, at the Company’s election, the
Company will make available to Executive a Company car in accordance with the Company‘s car policy.
8. Expenses; Etc.
(a) Business Travel, Lodging, etc. During the Employment Period, the Company will
reimburse Executive for reasonable travel, lodging, meal and other reasonable expenses incurred by
him in connection with the performance of his duties and responsibilities hereunder upon submission
of evidence satisfactory to the Company of the incurrence and purpose of each such expense,
provided that such expenses are permitted under the terms and conditions of the Company’s
business expense reimbursement policy applicable to executives at Executive’s grade level, as in
effect from time to time.
(b) Vacation. During the Employment Period, Executive shall be entitled to vacation
on an annualized basis in accordance with the Company’s vacation policy, currently five (5) weeks,
without carry-over accumulation. Executive shall also be entitled to Company-designated holidays
and all Singapore gazetted public holidays.
9. Termination of Employment.
(a) Termination Due to Death or Disability. Executive’s employment shall
automatically terminate upon Executive’s death and may be terminated by the Company due to
Executive’s Disability (as defined below in this subsection (a)) as provided for herein. In the
event that Executive’s employment is terminated due to his
Disability or death, no termination benefits shall be payable to or in respect of Executive
except as provided in Section 9(f)(ii). For purposes of this Agreement, “Disability” means
a physical or mental disability that prevents or would prevent the performance by Executive of his
duties hereunder for a continuous period of six (6) months or longer. The determination of
Executive’s Disability will (i) be made by an independent physician agreed to by the parties, or if
the parties are unable to agree within ten (10) days after a request for designation by a party, by
an independent physician identified by the Company’s disability insurance provider, (ii) be final
and binding on the parties hereto and (iii) be based on such competent medical evidence as shall be
presented to such independent physician by Executive and/or the Company or by any physician or
group of physicians or other competent medical experts employed by Executive and/or the Company to
advise such independent physician.
(b) Termination by the Company for Cause. Executive’s employment may be terminated by
the Company for Cause (as defined below in this subsection (b)) at any time with no notice
required. In the event of a termination of Executive’s employment by the Company for Cause, no
termination benefits shall be payable to or in respect of Executive except as provided in Section
9(f)(ii). For purposes of this Agreement, “Cause” means (i) a material breach by Executive
of any provision of this Agreement; (ii) a material violation by Executive of any of the Policies
(as defined in Section 13); (iii) the failure by Executive to reasonably and substantially perform
his duties hereunder (other than as a result of physical or mental illness or injury); (iv)
Executive’s willful misconduct or gross negligence that has caused or is reasonably expected to
result in material injury to the business, reputation or prospects of the Company or any of its
Affiliates (as defined in Section 20 (k)); (v) Executive’s fraud or misappropriation of funds or
other property; or (vi) the commission by Executive of an indictable offense or other serious crime
involving fraud or dishonesty, whether in connection with the Executive’s employment or otherwise;
provided that in the case of any breach of clauses (i), (ii) or (iii) that is curable, no
termination thereunder shall be effective unless the Company
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shall have given Executive notice of
the event or events constituting Cause and Executive shall have failed to cure such event or events
within thirty (30) business days after receipt of such notice. If, in the event Executive’s
employment is terminated by the Company Without Cause (as defined in subsection (c) below), it is
determined in good faith by the Company that Executive’s employment could have been terminated for
Cause, Executive’s employment shall, at the election of the Company, be deemed to have been
terminated for Cause, effective as of the date of the occurrence of the events giving rise to the
Cause termination. Upon such determination, the Company shall (x) immediately cease paying any
termination benefits pursuant to Section 9 hereof and (y) Executive shall 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 from any amounts otherwise
due to Executive any amounts previously paid pursuant to Section 9(f) (other than the Accrued
Obligations, as defined in Section 10(f)(i)).
(c) Termination Without Cause. Executive’s employment may be terminated by the
Company Without Cause (as defined below in this subsection (c)) at any time immediately upon notice
to Executive. In the event of a termination of Executive’s employment by the Company Without
Cause, no termination benefits shall be payable to or in respect of Executive except as provided in
Section 9(f)(i). For purposes of this Agreement, a termination “Without Cause” shall mean
a termination of Executive’s employment by the Company other than due to Executive’s death or
Disability as described in Section 9(a) and other than for Cause as described in Section 9(b).
(d) Termination by Executive. Executive may resign from his employment for any
reason, including for Good Reason (as defined below in this subsection (d)). In the event of a
termination of Executive’s employment by Executive’s resignation other than for Good Reason, no
termination benefits shall be payable to or in respect of Executive except as provided in Section
9(f)(ii) and in the event of a termination of Executive’s employment by Executive for Good Reason,
no termination benefits shall be payable to or in respect of Executive except as provided in
Section 9(f)(i). For purposes of this Agreement, a termination of employment by Executive for
“Good Reason” shall mean a resignation by Executive from his employment with the Company within
thirty (30) days following the occurrence, without Executive’s consent, of any of the following
events: (i) a material diminution in the Executive’s position, authority or responsibilities (it
being understood that a change to Executive’s duties and/or scope of responsibility in connection
with the reorganization of the Company’s operations will not trigger this sub-section (i) unless
accompanied by a demotion from the “Executive Vice President” level); (ii) any decrease in
Executive’s Base Salary or a material decrease in the Executive’s incentive compensation
opportunities as set forth in Sections 5 and 6 or (iii) any other material breach by the Company of
any material provision of this Agreement; provided that the 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) Notice of Termination; Date of Termination; Garden Leave.
(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), stating the proposed effective date of such termination, indicating the
specific
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provision of this Section 9 under which such termination is being effected and, if
applicable, setting forth in reasonable detail the circumstances claimed to provide the basis for
such termination.
(ii) Date of Termination. The term “Date of Termination” shall mean (i) if
Executive’s employment is terminated by reason of his death, the date of his death, (ii) if
Executive’s employment is terminated by the Company by reason of Executive’s Disability, a date
which is at least six (6) months following the occurrence of the event giving rise to the
Disability, (iii) if Executive’s employment is terminated by Executive, a date which is at least 30
days but no more than 60 days following the issuance of the Notice of Termination and (iv) if
Executive’s employment is terminated for any other reason, the effective date of termination
specified in such Notice of Termination. The Employment Period shall expire on the Date of
Termination.
(iii) Garden Leave. In the event that a Notice of Termination is given by either
party, the Company shall have the right to release the Executive from his responsibilities and
duties under this Agreement for all or any part of the period up to the Date of Termination in its
sole discretion at any time (“Garden Leave”) without compensation upon consumption of
accrued but unused vacation.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of Executive’s employment by the Company Without Cause or by
Executive’s resignation from employment for Good Reason during the Employment Period, the Company
shall pay to Executive, within thirty (30) days of the Date of Termination, his (x) Base Salary
through the Date of Termination, to the extent not previously paid, (y) reimbursement for any
unreimbursed business expenses incurred by Executive prior to the Date of Termination that are
subject to reimbursement pursuant to Section 8(a) and (z) payment for vacation time accrued as of
the Date of Termination but unused (such amounts under clauses (x), (y) and (z), collectively the
“Accrued Obligations”). In addition, in the event of any such termination of Executive’s
employment, if Executive executes and delivers to the Company a Separation Agreement and General
Release substantially in the form approved by the Company, Executive shall be entitled to the
following payments and benefits:
(A) continued payments of Base Salary and the car allowance described in Section 7(b), payable
in installments in accordance with the Company’s regular payroll policies, for the period beginning
on the Date of Termination and ending on the one (1) year anniversary of the Date of Termination
(the “Severance Period”), such amounts to be inclusive of any payments made during any
period of Garden Leave;
(B) a portion of Executive’s Annual Bonus for the fiscal year of the Company during which
Executive was employed that includes the Date of Termination, such portion to equal the product
(such product, the “Pro-Rata Bonus”) of (1) the Annual Bonus that would have been payable
to Executive for such fiscal year had Executive remained employed for the entire fiscal year,
determined based on the extent to which the Company actually achieves the performance goals for
such year established
pursuant to Section 5, multiplied by (2) a fraction, the numerator of which is equal to the
number of days in such fiscal year that precede the Date of Termination and the denominator of
which is equal to 365, such amount to be payable to Executive within five (5) business days
following the date (the “Bonus Payment Date”) annual bonuses for such fiscal year are
actually paid by the Company to its active executives;
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(C) continued coverage during the Severance Period under the Company’s medical, dental and
life insurance plans referred to in Section 7(a) for Executive and his eligible dependents
participating in such plans immediately prior to the Date of Termination, subject to timely payment
by Executive of all premiums, contributions and other co-payments required to be paid by active
senior executives of the Company under the terms of such plans as in effect from time to time; and
(D) at the discretion of the Company, the services of an outplacement agency as selected by
and for such period of time as determined by the Chief Human Resources Officer of Burger King
Corporation.
Executive shall not have a duty to mitigate the costs to the Company under this Section
9(f)(i), nor shall any payments from the Company to Executive of Base Salary or Pro-Rata Bonus be
reduced, offset or canceled by any compensation or fees earned by (whether or not paid currently)
or offered to Executive during the Severance Period by a subsequent employer or other Person (as
defined in Section 20(k) below) for which Executive performs services, including but not limited to
consulting services. The foregoing notwithstanding, should Executive receive or be offered health
or medical benefits coverage during the Severance Period by a subsequent employer or Person for
whom Executive performs services, Executive shall notify the Company of this within seven (7)
business days of such receipt or offer, as applicable, and all similar health and medical benefits
coverage provided by the Company to Executive shall terminate as of the effective date of such new
coverage.
(ii) If Executive’s employment shall terminate upon his death or if the Company shall
terminate Executive’s employment for Cause or due to Executive’s Disability or Executive shall
resign from his employment without Good Reason, in any such case during the Employment Period, the
Company shall pay to Executive (or, in the event of Executive’s death, to his estate) the Accrued
Obligations within thirty (30) days following the Date of Termination, provided that in the
event of Executive’s death, the said 30-day period for making such payment shall commence from the
date of production to the Company of such evidence or information in respect of the Executive’s
estate as the Company may require. In addition, if Executive’s employment shall terminate upon his
death or be terminated by the Company due to Executive’s Disability during the Employment Period,
the Company shall pay to Executive (or, in the event of Executive’s death, to his estate) the
Pro-Rata Bonus, if any, in one lump sum within five (5) business days following the Bonus Payment
Date for the fiscal year of the Company that includes the Date of Termination.
(iii) Except as specifically set forth in this Section 9(f), no termination benefits shall be
payable to or in respect of Executive’s employment with the Company or its Affiliates.
(g) Resignation upon Termination. Effective as of any Date of Termination under this
Section 9 or otherwise as of the date of Executive’s termination of employment with the Company,
Executive shall resign, in writing, from all Board and Board committee memberships and other
positions then held by him, or to which he has been appointed, designated or nominated, with the
Company and its Affiliates.
10. Restrictive Covenants. Each of the Company and Executive agrees that the
Executive will have a prominent role in the management of the business, and the development of the
goodwill, of the Company and its Affiliates, and will establish and develop relations and contacts
with the principal franchisees, customers and suppliers of the Company and its Affiliates
throughout the world, all of which constitute valuable goodwill of, and could be used by Executive
to compete unfairly
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with the Company and its Affiliates. In addition, Executive recognizes that he
will have access to and become familiar with or exposed to Confidential Information (as such term
is defined below), in particular, trade secrets, proprietary information, customer lists, and other
valuable business information of the Company pertaining or related to the quick service restaurant
business. Executive agrees that Executive could cause grave harm to the Company if he, among other
things, worked for the Company’s competitors, solicited the Company’s employees away from the
Company or solicited the Company’s franchisees upon the termination of Executive’s employment with
the Company or misappropriated or divulged the Company’s Confidential Information, and that as
such, the Company has legitimate business interests in protecting its good will and Confidential
Information, and, as such, these legitimate business interests justify the following restrictive
covenants:
(a) Confidentiality.
(i) Executive acknowledges and agrees that the terms of this Agreement, including all
addendums and attachments hereto, are confidential. Except as required by law or the requirements
of any stock exchange, Executive agrees not to disclose any information contained in this Agreement
to anyone, other than to Executive’s lawyer, financial advisor or immediate family members. If
Executive discloses any information contained in this Agreement to his lawyer, financial advisor or
immediate family members as permitted herein, Executive agrees to immediately tell each such
individual that he or she must abide by the confidentiality restrictions contained herein and keep
such information confidential as well.
(ii) Executive agrees that during his employment with the Company and thereafter, Executive
will not, directly or indirectly (A) disclose any Confidential Information to any Person (other
than, only with respect to the period that Executive is employed by the Company, to an employee or
outside advisor of the Company who
requires such information to perform his or her duties for the Company), or (B) use any
Confidential Information for Executive’s own benefit or the benefit of any third party.
“Confidential Information” means confidential, proprietary or commercially sensitive
information relating to (Y) the Company or its Affiliates, or members of their respective
management or boards or (Z) any third parties who do business with the Company or its Affiliates,
including franchisees and suppliers. Confidential Information includes, without limitation,
marketing plans, business plans, financial information and records, operation methods, personnel
information, drawings, designs, information regarding product development, other commercial or
business information and any other information not available to the public generally. The
foregoing obligation shall not apply to any Confidential Information that has been previously
disclosed to the public or is in the public domain (other than by reason of a breach of Executive’s
obligations to hold such Confidential Information confidential). If Executive is required or
requested by a court or governmental agency to disclose Confidential Information, Executive must
notify the General Counsel of Burger King Corporation of such disclosure obligation or request no
later than three (3) business days after Executive learns of such obligation or request, and permit
the Company to take all lawful steps it deems appropriate to prevent or limit the required
disclosure.
(b) Conflicts of Duty. Executive agrees that during his employment with the Company,
(i) Executive shall devote all of his skill, knowledge, commercial efforts and business time to the
conscientious and good faith performance of his duties and responsibilities to the Company to the
best of his ability and Executive shall not, directly or indirectly, be employed by, render
services for, engage in business with or serve as an agent or consultant to any Person other than
the Company, and (ii) Executive shall not directly or indirectly engage in any activities that are
competitive with or detrimental to the quick service restaurant business conducted by the Company,
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and Executive shall not, directly or indirectly, become employed by, render services for, engage in
business with, serve as an agent or consultant to, or become a partner, member, principal,
stockholder or other owner of, any Person or entity that engages in the quick serve restaurant
business, provided that Executive shall be permitted to hold a one percent (1%) or less interest in
the equity or debt securities of any publicly traded company. Executive’s duties and
responsibilities involve, and/or will affect, the operation and management of the Company
throughout the world. Executive will obtain Confidential Information that will affect the
Company’s operations throughout the world. Accordingly, Executive acknowledges that the Company has
legitimate proprietary interests in requiring a worldwide geographic scope and application of this
non-compete provision, and agrees that this non-compete provision applies on a worldwide basis.
(c) Non-Solicitation. During the period of Executive’s employment with the Company,
Executive shall not, directly or indirectly, by himself or through any third party, whether on
Executive’s own behalf or on behalf of any other Person or entity, (i) solicit or induce or
endeavor to solicit or induce, divert, employ or retain, (ii) interfere with the relationship of
the Company or any of its Affiliates with, or (iii) attempt to establish a business relationship of
a nature that is competitive with the business of the
Company with any Person that is or was (during the last twelve (12) months of Executive’s
employment with the Company) (A) an employee of the Company or any of its Affiliates (and
“Employee”) or engaged to provide services to any such entity (a “Service Provider”), or (B) a
franchisee of the Company or any of its Affiliates (a “Franchisee”).
(d) Post-Termination Covenants. Since Executive is likely to obtain in the course of
his employment with the Company Confidential Information as defined in Section 10 (a)(ii) above,
Executive shall, in addition to the restrictions contained in Section 10 (a), (b) and (c) above, be
bound by the following restrictions throughout the world (the “Restricted Territory”) during the
one (1) year period following the termination of Executive’s employment (irrespective of cause or
manner of termination). In the alternative, and only if the above territory is deemed by a court
of competent jurisdiction to be unreasonable or otherwise invalid or unenforceable, then the
Restricted Territory shall be defined as each country within the Company’s Asia Pacific region
where the Company’s quick service restaurant business operates at the time of Executive’s
termination. Additionally, in the alternative, and only if the above territories (i.e., throughout
the world and each country within the Company’s Asia Pacific region where the Company’s
quick service restaurant business operates) are both deemed by a court of competent jurisdiction to
be unreasonable or otherwise invalid or unenforceable, then the Restricted Territory shall be each
of the countries named in Exhibit “A”, attached and made a part hereof, being the countries within
the Company’s Asia Pacific region where the Company’s quick service restaurant business operates.”
(i) Executive will not, without the Company’s prior written consent, directly or indirectly
engage in any activities, or be employed in, render services for, serve as agent of or consultant
to, any business in competition with or detrimental to the Company’s quick service restaurant
business;
(ii) Executive will not, without the Company’s prior written consent, directly or indirectly
engage in business either alone or as a partner, member, principal, stockholder or other owner of
any Person, or be concerned as a director for any Person which is engaged in the quick service
restaurant business;
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(iii) Executive will not, without the Company’s prior written consent, assist with technical
advice to any person or entity which is engaged in the quick service restaurant business; and
(iv) Executive will not, without the Company’s prior written consent, directly or indirectly,
by himself or through any third party, whether on Executive’s own behalf or on behalf of any other
person or entity:
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(1) solicit or endeavour to solicit the employment or services of any Employee, Service
Provider or Franchisee; or
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(2) interfere with the relationship of the Company or any of its Affiliates with any Employee,
Service Provider or Franchisee; or
(3) attempt to establish a business relationship of a nature that is in competition with or
detrimental to the Company’s quick service restaurant business with any Employee, Service Provider
or Franchisee.
While the restrictions described in this sub-paragraph 10(d) are considered by the parties to
be reasonable in all the circumstances it is agreed that if any one or more of such restrictions
shall either taken by itself or themselves together be adjudged to go beyond what is reasonable in
all the circumstances for the protection of the Company’s legitimate interest but would be adjudged
reasonable if any particular restriction or restrictions were deleted or if any part or parts of
the wording thereof were deleted, restricted or limited in any particular manner then the said
restrictions shall apply with such deletions, restrictions or limitations as the case may be.
(e) Executive acknowledges and agrees that the restrictions and obligations imposed upon
Executive in sub-sections 10(a) through 10(d), inclusive and Section 11 below are reasonable and
necessary for the protection of the Company, and Executive waives any and all defenses to the
strict enforcement thereof. Executive and the Company acknowledge and agree that the restrictions
and obligations contained in Section 10 shall survive termination of this Agreement and of
Executive’s employment hereunder and will continue to apply notwithstanding the reason or manner of
termination.
11. Work Product. Executive agrees that all of Executive’s work product (whether
created solely or jointly with others), created in connection with Executive’s employment with the
Company (“Work Product”) shall vest in and be the sole and exclusive property of the Company and
made in pursuance of the terms of Executive’s employment in the Company, and in the course of
Executive’s normal duties as an employee of the Company. In the event that any such Work Product
does not for any reason vest in the Company or is deemed not to be the sole and exclusive property
of the Company notwithstanding the foregoing provision, Executive hereby irrevocably assigns,
transfers and conveys to the Company, exclusively and perpetually, all right, title and interest
which he may have or acquire in and to such Work Product throughout the world, including without
limitation any copyrights and patents, and the right to secure registrations, renewals, reissues
and extensions thereof. The Company and its Affiliates or their designees shall have the exclusive
right to make full and complete use of, and make changes to all Work Product without restrictions
or liabilities of any kind, and Executive shall not have the right to use any such materials, other
than within the legitimate scope and purpose of Executive’s employment with the Company. Executive
shall promptly disclose to the Company the creation or existence of any Work Product and shall take
whatever additional lawful action may be necessary, and sign whatever documents the Company may
require, in order to secure and vest in the Company or its designee all right, title and interest
in and to all Work Product and any intellectual property rights therein (including full cooperation
in support of any Company
applications for patents and copyright or trademark registrations). Executive agrees to make
no claim against the Company with respect to the matters referred to above in this Section 11.
12. Return of Company Property. In the event of termination of Executive’s employment
for any reason, Executive shall return to the Company all of the property of the Company and its
Affiliates, including without limitation all materials or documents containing or pertaining to
Confidential Information, and including without limitation, any Company car, all computers
(including laptops), cell phones, keys, PDAs, Blackberries, credit cards, facsimile machines,
televisions, card access to any Company building, customer lists, computer disks, reports, files,
e-mails, work papers,
12
Work Product, documents, memoranda, records and software, computer access
codes or disks and instructional manuals, internal policies, and other similar materials or
documents which Executive used, received or prepared, helped prepare or supervised the preparation
of in connection with Executive’s employment with the Company. Executive agrees not to retain any
copies, duplicates, reproductions or excerpts of such material or documents.
13. Compliance With Company Policies. During Executive’s employment with the Company,
Executive shall be governed by and be subject to, and Executive hereby agrees to comply with, all
Company policies, procedures, rules and regulations applicable to employees generally or to
employees at Executive’s grade level, including without limitation, the Burger King Companies’ Code
of Business Ethics and Conduct, in each case, as they may be amended from time to time in the
Company’s sole discretion (collectively, the “Policies”).
14. Data Protection & Privacy.
(a) Executive acknowledges that the Company, directly or through Burger King Corporation or
its Affiliates, collects and processes data (including personal sensitive data and information
retained in email) relating to Executive. Executive hereby agrees to such collection and
processing and further agrees to execute the BK ASIAPAC, PTE. LTD. Employee Consent to Collection
and Processing of Personal Information, a copy of which is attached to this Agreement as Attachment
1, unless a previously executed copy of such Consent is on file with the Company.
(b) To ensure regulatory compliance (where applicable) and/or for the protection of the
Company’s workers, customers, suppliers and business, Executive acknowledges and agrees that the
Company has the right to monitor, intercept, review, access and record telephone logs, internet
usage, voicemail, email and other communication facilities provided by the Company which Executive
may use during his employment with the Company. The Company will use this right of access
reasonably, but it is important that Executive is aware that all communications and activities on
Company equipment or premises cannot be presumed to be private.
15. Injunctive Relief with Respect to Covenants. Executive acknowledges and agrees
that a breach by Executive of any provision of Section 10, 11, 12, 13 or 14 is a material breach of
this Agreement and that remedies at law may be inadequate to protect the Company and its Affiliates
in the event of such breach, and, without prejudice to any other rights and remedies otherwise
available to the Company, Executive agrees to the granting of injunctive relief in the Company’s
favor in connection with any such breach or violation without proof of irreparable harm, plus
attorneys’ fees and costs to enforce these provisions. Executive further acknowledges and agrees
that the Company’s obligations to pay Executive any amount or provide Executive with any benefit or
right pursuant to Section 9 is subject to Executive’s compliance with Executive’s obligations under
Sections 10 through 14 inclusive, and that in the event of a breach by Executive of any of Section
10, 11, 12, 13 or 14, the Company shall immediately cease paying such benefits and Executive shall
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 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).
13
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 and shall entitle Executive to compensation from the Company in the same amount and on
the same terms as Executive would be entitled hereunder if the Company had terminated Executive’s
employment Without Cause as described in Section 9, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be deemed the Date of
Termination.
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(b), 9(f), 10, 11, 12, 14, 15, 17, 19 and 20.
20. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding on and inure to the
benefit of the Company and its Successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be transferable or assignable by any party hereto
without the prior written consent of the other parties hereto, provided, however,
that the Company may effect such a transfer and/or assignment without prior written approval of
Executive upon the transfer of all or substantially all of its business and/or assets (by whatever
means) to another entity, provided that the Successor to the Company shall expressly assume
and agree to perform this Agreement in accordance with the provisions of Section 16.
(b) Arbitration. The Company and Executive agree that any dispute or controversy
arising under or in connection with this Agreement shall be resolved by final and binding arbitration
14
before the Singapore International Arbitration Centre (“SIAC”). The arbitration shall
be conducted in accordance with the Arbitration Rules of the SIAC in effect at the time of the
arbitration, which rules are deemed to be incorporated by reference in this Section. The
arbitration shall be held in Singapore. The dispute shall be heard and determined by one
arbitrator selected from a list of arbitrators not exceeding fifteen (15) furnished by the Chairman
of the SIAC whose decision in compiling the list shall not be challenged by the parties. If the
parties cannot agree upon a mutually acceptable arbitrator from the list, each party shall number
the names in order of preference and return the list to Chairman of the SIAC within ten (10) days
from the date of the list. A party may strike a name from the list only for such conflict of
interest which would prevent the person named in the list from acting as an arbitrator in
the contemplated arbitration. The name on the list receiving the highest ranking by the
parties shall be selected. In the event of a tie, the parties shall rank the tied names while
disregarding the other names. The higher ranked name (if there are two tied names) in the second
ranking exercise shall be selected as the arbitrator. If the second ranking process does not
produce a higher or highest ranking name, the Chairman of the SIAC shall appoint the arbitrator
from between or amongst the tied names and his or her decision shall be final. The arbitration
shall not impair either party’s right to request injunctive or other equitable relief in accordance
with Section 15 of this Agreement.
(c) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of Singapore without reference to principles of conflicts of laws, and subject to
Section 20(b) above, any disputes arising hereunder shall be subject to the exclusive jurisdiction
of the Courts of Singapore.
(d) Taxes. 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, and
other withholdings and deductions, 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 in writing by the Board or a Person
authorized thereby and is agreed to in writing by Executive. 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. In the event that one or more terms or provisions of this Agreement are deemed invalid or
unenforceable by the laws of Singapore or any other state or jurisdiction in which it is to be
enforced, by reason of being vague or unreasonable as to duration or geographic scope of activities
restricted, or for any other reason, the provision in question shall be immediately amended or
reformed to the extent necessary to make it valid and enforceable by the court of such jurisdiction
charged with interpreting and/or enforcing such provision. Executive agrees and acknowledges that
the provision in question, as so amended or reformed, shall be valid and enforceable as though the
invalid or unenforceable portion had never been included herein.
15
(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):
(A) If to the Company, to it at:
BK ASIAPAC, PTE. LTD.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Chief Human Resources Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Chief Human Resources Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
(B) if to Executive, to his residential address as currently on
file with the Company.
(h) Voluntary Agreement; No Conflicts. Executive represents that he is entering into
this Agreement voluntarily and that Executive’s employment hereunder and compliance with the terms
and conditions of this Agreement will not conflict with or result in the breach by Executive of any
agreement to which he is a party or by which he or his properties or assets may be bound.
(i) Counterparts/Facsimile. This Agreement may be executed in counterparts (including
by facsimile), each of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
(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) 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.
“Person”: any natural person, firm, partnership, limited liability company,
association, corporation, company, trust, business trust, governmental authority or other entity.
“Subsidiary”: with respect to any Person, each corporation or other Person in which
the first Person owns or Controls, directly or indirectly, capital stock or other ownership
interests
16
representing fifty percent (50%) or more of the combined voting power of the outstanding
voting stock or other ownership interests of such corporation or other Person.
“Successor”: of a Person means a Person that succeeds to the first Person’s assets
and liabilities by merger, liquidation, dissolution or otherwise by operation of law, or a Person
to which all or substantially all the assets and/or business of the first Person are transferred.
17
IN WITNESS WHEREOF, the Company has duly executed this Agreement by its authorized
representatives, and Executive has hereunto set his hand, in each case effective as of the date
first above written.
BK ASIAPAC, PTE. LTD |
||||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Human Resources Director | |||
Executive: |
||||
/s/ Xxxxx Xxx | ||||
XXXXX XXX | ||||
18
EXHIBIT “A”
Countries in Asia Pacific Region Where Company Does Business
Australia
China
Guam
Hong Kong
Indonesia
Japan
Korea
Malaysia
New Zealand
Philippines
Singapore
Xxxxxx
Xxxxxxxx
China
Guam
Hong Kong
Indonesia
Japan
Korea
Malaysia
New Zealand
Philippines
Singapore
Xxxxxx
Xxxxxxxx
00
XXXXXXXXXX 0
XX XXXXXXX, PTE. LTD
EMPLOYEE CONSENT TO COLLECTION
AND PROCESSING OF PERSONAL INFORMATION
EMPLOYEE CONSENT TO COLLECTION
AND PROCESSING OF PERSONAL INFORMATION
BK ASIAPAC, PTE. LTD (“the Company”) has informed me that the Company collects, processes and uses
my personal information only for legitimate human resource and business reasons such as payroll
administration, to fill employment positions, maintaining accurate benefits records, meet
governmental reporting requirements, security, health and safety management, performance
management, company network access and authentication. I understand the Company will treat my
personal data as confidential and will not permit unauthorized access to this personal data. I
HEREBY CONSENT to the Company collecting, processing and using my personal information for such
human resource and business reasons.
I understand the Company may from time-to-time transfer my personal data to the corporate office of
the Company’s parent (currently located in Miami, Florida, United States of America), other
subsidiaries, associated business entities or agents of the Company, located either in the United
States or in another country, for similar human resource and business reasons. I HEREBY
CONSENT to such transfer of my personal data outside the country in which I work to the
corporate office in the United States of America, other subsidiaries or associated business
entities or agents and the use by such persons of my personal data for human resource management
and business purposes.
I further understand the Company may from time-to-time transfer my personal information to a third
party, either in the United States or another country, for processing and using the information for
legitimate human resource and business purposes. I HEREBY CONSENT to the transfer to, and
the use by, a third party of my personal information for such human resource purposes and business
purposes.
I understand the Company may from time-to-time collect and process personal information regarding
my race and/or national origin for the limited use of complying with legal reporting requirements
under the laws of Singapore or of any other country I work in. I HEREBY CONSENT to the
Company collecting, processing and using information regarding my race and/or national origin for
this purpose.
(Employee’s Name – Please Print) | ||||
Date: |
20