BURGER KING HOLDINGS, INC. 2006 OMNIBUS INCENTIVE PLAN RESTRICTED STOCK UNIT AWARD
Exhibit 10.61
BURGER KING HOLDINGS, INC.
2006 OMNIBUS INCENTIVE PLAN
2006 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD
Unless defined in this Restricted Stock Unit Award Agreement (this “Award Agreement”),
capitalized terms will have the same meanings ascribed to them in the Burger King Holdings, Inc.
2006 Omnibus Incentive Plan (as it may be amended from time to time, the “Plan”).
Pursuant to Section 8 of the Plan, you have been granted Restricted Stock Units (“RSUs”) on
the following terms and subject to the provisions of the Plan, which is incorporated herein by
reference. In the event of a conflict between the provisions of the Plan and this Award Agreement,
the provisions of the Plan will govern.
Total Number of RSUs:
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The number of Restricted Stock Units underlying this award is available at xxx.xxxxxxxx.xx.xxx under the Grant Information section. | |
Grant Date:
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[ ] | |
Vesting Schedule:
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[ ] (subject to the section entitled “Termination” in Exhibit A hereto) |
By your electronic acceptance, you and the Company agree that this Award of RSUs is granted under
and governed by the terms and conditions of the Plan and the terms and conditions set forth in the
attached Exhibit A.
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EXHIBIT A
TERMS AND CONDITIONS OF THE
RESTRICTED STOCK UNIT AWARD
RESTRICTED STOCK UNIT AWARD
No Payment for Shares.
No payment is required for Shares that you receive under this Award.
Restricted Share Units.
Each RSU represents a right to receive one Share. To the extent dividends are paid on Shares
while the RSUs remain outstanding, you shall receive an amount in cash for each of your vested and
unvested RSUs equal to the amount per share of the dividend, but such amount of cash or shares
shall not be paid out to you until settlement of the RSUs.
Settlement.
Except to the extent that you have made a timely election to defer the receipt of Shares upon
vesting of this Award pursuant to such rules as have been established by the Committee in
accordance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder (the “Code”), RSUs shall be settled as described in this section. The
Company shall deliver to you Shares underlying those RSUs that vest in accordance with this Award
Agreement on the applicable Vesting Date. Notwithstanding the foregoing (or anything to the
contrary in this Award Agreement or the Plan), if (A) any of your RSUs vest upon your Separation
from Service (as defined below) with the Company and (B) you are a Specified Employee (as defined
below) at the time of such Separation from Service, then delivery of any Shares in satisfaction of
such RSUs shall, to the extent required by Section 409A of the Code and the regulations promulgated
thereunder, be made on the first business day immediately following the six-month anniversary of
such Separation from Service (or, if earlier, the date of your death). For purposes hereof,
“Specified Employee” shall have meaning set forth in Section 1.409A-1(i) of the regulations
promulgated under Section 409A of the Code. You will have no rights of a shareholder with respect
to the RSUs such Shares have been delivered to you.
Termination.
Except as set forth below in this section, upon your “Separation from Service” (as defined
below) for any reason, you will forfeit all of your RSUs that are unvested at the time of your
Separation from Service, without any consideration due to you.
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For purposes of this Award Agreement, “Separation from Service” has the meaning given to such
term in Section 1.409A-1(h) of the regulations promulgated under Section 409A of the Code. The
determination of whether and when your Separation from Service occurs for the purpose of
determining when any amount that constitutes “nonqualified deferred compensation” subject to
Section 409A of the Code becomes due and payable shall be made in a manner consistent with, and
based on the presumptions set forth in, Section 1.409A-1(h) of the regulations promulgated under
Section 409 of the Code. Solely for purposes of the determination referred to in the preceding
sentence, “Company” shall include all persons with whom the Company would be considered a single
employer under Sections 414(b) and 414(c) of the Code.
In the event of your involuntary Separation from Service with the Company (whether or not in
breach of local labor laws), your right to receive RSUs and vest under the Plan, if any, will
terminate effective as of the date of your Separation from Service and will not be extended by any
notice period mandated under local law (e.g., your employment will not be considered to include a
period of “garden leave” or similar period pursuant to local law); furthermore, in the event your
involuntary Separation from Service with the Company (whether or not in breach of local labor
laws), your right to receive RSUs under this Award Agreement after such Separation from Service, if
any, will be measured by the date of such Separation from Service and will not be extended by any
notice period mandated under local law; the Committee shall have the exclusive discretion to
determine when your Separation from Service with the Company has occurred for purposes of the Award
In the event that a Change in Control occurs and, within twenty-four (24) months following the
date of such Change in Control, you experience a Separation from Service with the Company due to
the Company’s termination of your employment Without Cause (as defined below), upon such Separation
from Service you will become vested in, and entitled to receive, the RSUs. Additionally, if you
have an employment agreement with the Company or one of its Affiliates that defines the term “Good
Reason”, then in the event that a Change in Control occurs and, within twenty-four (24) months
following the date of such Change in Control, you experience a Separation from Service due to your
resignation for Good Reason (as defined in the employment agreement), upon such Separation from
Service you will become vested in, and entitled to receive, the RSUs.
In the event that there is a conflict between the terms of this Award Agreement regarding the
effect of your Separation from Service with the Company on your Award and the terms of any
employment agreement or offer, promotion or confirmation letter with the Company or one of its
Affiliates (“Employment Agreement”), the terms of your Employment Agreement will govern.
For purposes of this Award Agreement, the following terms shall have the following meanings:
“Cause” means (i) a material breach by you of any of your obligations under any
written agreement with the Company or any of its Affiliates, (ii) a material violation by you of
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any of the Company’s policies, procedures, rules and regulations applicable to employees generally
or to employees at your 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; (iii) the failure by you to reasonably and substantially perform your
duties to the Company or its Affiliates (other than as a result of physical or mental illness or
injury); (iv) your 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; (v) your fraud or misappropriation of funds; or (vi) the commission by you of a felony
or other serious crime involving moral turpitude; provided that if you are a party to an Employment
Agreement at the time of your termination of employment and such Employment Agreement contains a
different definition of “cause” (or any derivation thereof), the definition in such Employment
Agreement will control for purposes of this Award Agreement.
If you are terminated Without Cause and, within the twelve (12) month period subsequent to such
termination of employment, the Company determines that your employment could have been terminated
for Cause, subject to anything to the contrary that may be contained in your Employment Agreement
at the time of your termination of employment, your employment will, at the election of the
Company, be deemed to have been terminated for Cause, effective as of the date the events giving
rise to Cause occurred.
“Disability” means (i) a physical or mental condition entitling you to benefits under the long-term
disability policy of the Company covering you or (2) in the absence of any such plan, a physical or
mental condition rendering you unable to perform your duties for the Company or any of its
Affiliates for a period of six (6) consecutive months or longer; provided that if you are a party
to an Employment Agreement at the time of your termination of employment and such Employment
Agreement contains a different definition of “disability” (or any derivation thereof), the
definition in such Employment Agreement will control for purposes of this Award Agreement.
“Without Cause” means a termination of your employment other than by the Company for Cause, by you
for any reason, or due to your death or Disability (as defined above) ; provided that if you are a
party to an Employment Agreement at the time of your termination of employment and such Employment
Agreement contains a different definition of “without cause” (or any derivation thereof), the
definition in such Employment Agreement will control for purposes of this Award Agreement.
Taxes.
Regardless of any action the Company or your employer (the “Employer”) takes with respect to
any or all income tax, social insurance, payroll tax, payment on account or other tax-related
withholding (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related
Items legally due by you is and remains your responsibility and that the Company and/or the
Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related
Items in connection with any aspect of the
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RSUs including the grant or vesting of the RSUs, the subsequent sale of Shares acquired
pursuant to such vesting and the receipt of any dividends; and (2) do not commit to structure the
terms of the grant or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related
Items.
Prior to settlement of the RSUs, you will pay or make adequate arrangements satisfactory to
the Company and/or the Employer to satisfy all withholding and payment on account obligations of
the Company and/or the Employer. In this regard, you authorize the Company and/or the Employer to
withhold all applicable Tax-Related Items legally payable by you from your wages or other cash
compensation paid to you by the Company and/or the Employer or from proceeds of the sale of Shares
issued upon settlement of the RSUs. Alternatively, or in addition, if permissible under local law,
the Company may (1) sell or arrange for the sale of Shares that you acquire to meet the withholding
obligation for Tax-Related Items, and/or (2) withhold in RSUs, provided that the Company only
withholds the amount of RSUs necessary to satisfy the minimum withholding amount. If the Company
or the Employer satisfies the obligation for Tax-Related Items by withholding a number of whole
RSUs as described herein, you will be deemed to have been issued the full number of RSUs subject to
this Award, notwithstanding that a number of the RSUs is held back solely for the purpose of paying
the Tax-Related Items due as a result of the vesting and settlement of the RSUs. Finally, you will
pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer
may be required to withhold as a result of your participation in the Plan or your receipt of RSUs
that cannot be satisfied by the means previously described. The Company may refuse to honor the
vesting and refuse to settle the RSUs if you fail to comply with your obligations in connection
with the Tax-Related Items as described in this section.
No Guarantee of Continued Service.
You acknowledge and agree that the vesting of this Award as provided in this Award Agreement
is earned only by continuing as an employee at the will of the Company (not through the act of
being hired or being granted this Award). You further acknowledge and agree that this Award
Agreement, the transactions contemplated hereunder and the vesting and settlement terms do not
constitute an express or implied promise of continued employment for any period or at all and will
not interfere in any way with your right or the Company’s or any Affiliate’s right to dismiss you
from employment at any time or for any reason not prohibited by law and will not confer upon you
any right to continue your employment for any specified period of time.
Termination for Cause; Restrictive Covenants.
In consideration for the grant of this Award and for other good and valuable consideration,
the sufficiency of which is acknowledged by you, you agree as follows:
Upon (i) a termination of your employment for Cause, (ii) a retroactive termination of your
employment for Cause as permitted herein or under your Employment Agreement, (iii) a violation of
any post-termination restrictive covenant (including, without
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limitation, non-disclosure, non-competition and/or non-solicitation) contained in your Employment
Agreement or (iv) a violation of any post-termination restrictive covenant (including, without
limitation, non-disclosure, non-competition and/or non-solicitation) contained in any separation or
termination or similar agreement you may enter into with the Company or one of its Affiliates in
connection with your termination of employment, any RSUs you then hold that have not been settled
shall be immediately forfeited and the Company may require that you repay (with interest or
appreciation (if any), as applicable, determined up to the date payment is made), and you shall
promptly repay (in cash or in Shares), to the Company, the Fair Market Value of any Shares
(including Shares withheld for taxes) received upon the settlement of RSUs during the period
beginning on the date that is one year before the date of your termination and ending on the first
anniversary of the date of your termination. The Fair Market Value of any such Shares shall be
determined as of the date the RSUs were settled.
Company’s Right of Offset.
If you become entitled to a distribution of benefits under this Award, and if at such time you
have any outstanding debt, obligation, or other liability representing an amount owing to the
Company or any of its Affiliates, then the Company or its Affiliates may, upon a determination by
the Committee, offset such amount so owing against the amount of benefits otherwise distributable
to you; provided that any such offset shall be made only in accordance with (and to the
extent permitted by) applicable law, including without limitation Section 409A of the Code and the
regulations promulgated thereunder.
Acknowledgment of Nature of Award.
In accepting this grant of an Award, you acknowledge that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and may
be modified, amended, suspended or terminated by the Company at any time, as provided in the Plan;
(b) the grant of an Award is voluntary and occasional and does not create any contractual or
other right to receive future awards of RSUs, or benefits in lieu RSUs even if RSUs have been
awarded repeatedly in the past;
(c) all decisions with respect to future awards, if any, will be at the sole discretion of the
Company;
(d) your participation in the Plan is voluntary;
(e) this Award is an extraordinary item that does not constitute compensation of any kind for
services of any kind rendered to the Company or to the Employer and is outside the scope of your
employment contract, if any;
(f) this Award is not part of normal or expected compensation or salary for any purposes,
including, but not limited to, calculation of any severance, resignation,
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termination, redundancy, end of service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments;
(g) neither Award nor any provision of this Award Agreement, the Plan or the policies adopted
pursuant to the Plan confer upon you any right with respect to employment or continuation of
current employment, and in the event that the Employee is not an employee of the Company, RSUs
shall not be interpreted to form an employment contract or relationship with the Company;
(h) the future value of the underlying Shares is unknown and cannot be predicted with
certainty;
(i) if you receive Shares, the value of such Shares acquired upon vesting and settlement of
RSUs may increase or decrease in value; and
(j) no claim or entitlement to compensation or damages arises from termination of this Award,
and no claim or entitlement to compensation or damages shall arise from any diminution in value of
the RSUs or Shares received upon vesting and settlement of the RSUs resulting from termination of
your employment by the Employer (for any reason whatsoever and whether or not in breach of local
labor laws) and you irrevocably release the Company and the Employer from any such claim that may
arise; if, notwithstanding the foregoing, any such claim is found by a court of competent
jurisdiction to have arisen, then, by signing this Award Agreement, you shall be deemed irrevocably
to have waived your entitlement to pursue such claim.
Data Privacy Notice and Consent.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in
electronic or other form, of your personal data as described in this Award Agreement by and among,
as applicable, the Employer, the Company, its Subsidiaries and its affiliates for the exclusive
purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and the Employer may hold certain personal information about
you, including, but not limited to, your name, home address and telephone number, date of birth,
social insurance number or other identification number, salary, nationality, job title, any shares
of stock or directorships held in the Company, details of all RSUs or any other entitlement to
Shares awarded, canceled, vested, unvested or outstanding in your favor, for the purpose of
implementing, administering and managing the Plan (“Data”). You understand that Data may be
transferred to any third parties assisting in the implementation, administration and management of
the Plan, that these recipients may be located in the Employee’s country, or elsewhere, and that
the recipient’s country may have different data privacy laws and protections than your country.
You understand that you may request a list with the names and addresses of any potential recipients
of the Data by contacting your local human resources representative. You authorize the recipients
to receive, possess, use, retain and transfer the Data, in electronic or other form, for the
purposes of implementing, administering and managing
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your participation in the Plan, including any requisite transfer of such Data as may be
required to a broker, escrow agent or other third party with whom the Shares received upon
settlement of the RSUs may be deposited. You understand that Data will be held only as long as is
necessary to implement, administer and manage your participation in the Plan. You understand that
you may, at any time, view Data, request additional information about the storage and processing of
Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any
case without cost, by contacting in writing your local human resources representative. You
understand that refusal or withdrawal of consent may affect your ability to participate in the
Plan. For more information on the consequences of your refusal to consent or withdrawal of
consent, you understand that you may contact your local human resources representative.
No Compensation Deferrals.
Neither the Plan nor this Award Agreement is intended to provide for a deferral of
compensation that would subject the RSUs to taxation prior to the issuance of Shares as a result of
Section 409A of the Code. Notwithstanding anything to the contrary in the Plan or this Award
Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or
advisable, in its sole discretion and without your consent, to comply with Section 409A of the Code
or to otherwise avoid imposition of any additional tax or income recognition under Section 409A of
the Code prior to the actual payment of Shares pursuant to this Award. If you are subject to U.S.
taxes, all RSUs to which you are entitled at vesting will be issued to you on the applicable
Vesting Date, as described above in the section entitled “Settlement of RSUs”.
Securities Laws.
By accepting this Award, you acknowledge that federal or local securities laws and/or the
Company’s policies regarding trading in its securities may limit or restrict your right to buy or
sell Shares, including, without limitation, sales of Shares acquired in connection with your RSUs.
You agree to comply with such securities law requirements and Company policies, as such laws and
policies are amended from time to time.
Entire Agreement; Dispute Resolution; Governing Law.
The Plan, this Award Agreement and, to the extent applicable, your Employment Agreement,
constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company and you with
respect to the subject matter hereof. This Award Agreement may not be modified in a manner that
adversely affects your rights heretofore granted under the Plan, except with your consent or to
comply with applicable law as provided for in Section 14 of the Plan. This Award Agreement is
governed by the laws of the State of Delaware without regard to its principles of conflict of laws.
The Company and you agree that any dispute or controversy arising under or in connection with
this Award Agreement shall be resolved by final and binding arbitration before the American
Arbitration Association (“AAA”). The arbitration shall be
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conducted in accordance with AAA’s National Rules for the Resolution of Employment Disputes then in
effect at the time of the arbitration. The arbitration shall be held in Miami, Florida.
By signing this Award Agreement, you acknowledge receipt of a copy of the Plan and represent
that you are familiar with the terms and conditions of the Plan, and hereby accept this Award
subject to all provisions in this Award Agreement and in the Plan. You hereby agree to accept as
final, conclusive and binding all decisions or interpretations of the Committee upon any questions
arising under the Plan or this Award Agreement.
Electronic Delivery.
The Company may, in its sole discretion, decide to deliver any documents related to RSUs
awarded under the Plan or future RSUs that may be awarded under the Plan by electronic means or
request your consent to participate in the Plan by electronic means. You hereby consent to receive
such documents by electronic delivery and agree to participate in the Plan through an on-line or
electronic system established and maintained by the Company or another third party designated by
the Company.
Agreement Severable.
In the event that any provision in this Award Agreement will be held invalid or unenforceable,
such provision will be severable from, and such invalidity or unenforceability will not be
construed to have any effect on, the remaining provisions of this Award Agreement.
Language.
If you have received this Award Agreement or any other document related to the Plan translated
into a language other than English and if the translated version is different that the English
version, the English version will control.
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