Special Management Restricted Unit Agreement

EXHIBIT 10.16 SPECIAL MANAGEMENT
RESTRICTED UNIT AGREEMEN T THIS SPECIAL MANAGEMENT RESTRICTED UNIT AGREEMENT (as it may be amended and in effect from time to time in accordance with the terms hereof, the " Agreement" ), dated as December 1, 2003, is made by and among Burger King Holdings, Inc., a Delaware corporation (or any Successor thereto, the " Company" ), Burger King Corporation, a Florida corporation (or any Successor thereto, " Burger King" ), and the individual whose name appears on the signature page hereof (the " Grantee" ). W I T N E S S E T H: WHEREAS, the Board has adopted the Burger King Holdings, Inc. Equity Incentive Plan (as the same may be amended and in effect from time to time, the " Equity Incentive Plan" ) pursuant to which the Company may grant awards with respect to the Common Stock to select key employees of the Company Group and members of the Board who are serving as independent directors to motivate such participants to continue in the service of the Company Group and to perform their duties and responsibilities to the best of their professional ability by aligning the interests of participants with those of the shareholders of the Company in increasing shareholder value; WHEREAS, concurrent with the execution of this Agreement, Burger King and the Grantee are entering into and executing an Employment Agreement, dated as of the date hereof (as the same may be amended from time to time, the " Employment Agreement" ), pursuant to which Burger King has agreed that the Grantee shall receive a special award of restricted units covering shares of Common Stock under the Equity Incentive Plan; WHEREAS, the Board has authorized the Company to grant to the Grantee the number of restricted units set forth on the signature page hereof (each, a " Restricted Unit" and, collectively, the " Restricted Units" ) in satisfaction of the obligations of Burger King under the Employment Agreement; and WHEREAS, the Company, Burger King and the Grantee desire to enter into this Agreement to evidence and confirm the grant of the Restricted Units to the Grantee on the terms and subject to the conditions set forth herein.


NOW, THEREFORE, to evidence the grant of the Restricted Units described herein to the Grantee, and to set forth the terms and conditions governing such Restricted Units, the Company, Burger King and the Grantee hereby agree as follows: ARTICLE I CERTAIN DEFINITIONS Section 1.1 Certain Definitions . As used in the Agreement, the following terms shall have the following meanings. " Board" means the Board of Directors of the Company. " Burger King" has the meaning assigned thereto in the preamble to this Agreement. " Cause" means the Grantee' s (i) material breach of any provision of this Agreement or the Employment Agreement; (ii) failure to reasonably and substantially perform his duties under the Employment Agreement (other than as a result of physical or mental illness or injury); (iii) 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; (iv) fraud or misappropriation of funds; or (v) commission of a felony or other serious crime involving moral turpitude. If, subsequent to the Grantee' s termination of employment Without Cause, it is determined in good faith by the Board that the Grantee' s employment could have been terminated for Cause, the Grantee' s employment shall, at the election of the Board, be deemed to have been terminated for Cause, effective as of the date the events giving rise to Cause occurred. " Code" means the Internal Revenue Code of 1986, as amended. " Committee" means the committee of the Board designated by the Board to administer the Equity Incentive Plan or, at any time that no committee has been designated, the Board. " Common Stock" means the common stock of the Company, par value $0.01 per share, or any equity securities into or for which such common stock may be converted or exchanged in connection with an Adjustment Event. " Company" has the meaning assigned thereto in the preamble to this Agreement. " Company Group" means, collectively, Burger King, its direct and indirect Subsidiaries and any Affiliate of Burger King specifically designated as a member of the Company Group by the Committee. " Disability" means (i) a physical or mental condition entitling the Grantee to benefits under the long-term disability policy of the Company Group covering the

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Grantee or (ii) in the absence of any such plan, a physical or mental condition of the Grantee rendering him unable to perform his duties for the Company Group for a period of six (6) consecutive months or longer, provided that if the Grantee is party to an employment agreement with a member of the Company Group at the time of his termination of employment and such agreement contains a different definition of " disability" (or any derivation thereof), the definition in such employment agreement will control for purposes of this Agreement. The Grantee' s employment shall be deemed to have terminated as a result of Disability on the date as of which he is first entitled to receive disability benefits under such policy or the date the Committee determines the Grantee has become disabled under the foregoing clause (ii), subject to any disability provisions of the Grantee' s employment agreement. " Employment Agreement" has the meaning assigned thereto in the preamble to this Agreement. " Equity Incentive Plan" has the meaning assigned thereto in the preamble to this Agreement. " Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended. " Good Reason" means the Grantee' s Termination of Active Service by reason of the Grantee' s resignation from his employment with the Company Group within 30 days following the occurrence, without the Grantee' s consent, of any of the following events: (i) a material diminution in the Grantee' s position, authority or responsibilities as Chief Human Resources Officer of Burger King; (ii) a material decrease in the Grantee' s base pay or incentive compensation opportunities or (iii) any other material breach by Burger King of a material provision of the Employment Agreement; provided that the Grantee shall have given Burger King notice of the event or events constituting Good Reason and Burger King shall have failed to cure such event or events within 30 business days after receipt of such notice. " Grant Date" means the Commencement Date, as such term is defined in the Employment Agreement, which shall constitute the effective date on which the Restricted Units evidenced hereby are granted to the Grantee, as provided in Article II. " Initial Public Offering" or " IPO" means the effective date of a registration statement (other than a registration statement on Form S-4 or S-B, or any successor form) filed in connection with a registered public offering of equity securities of the Company following which at least 15% of the equity securities of the Company have been publicly distributed or sold or are being actively traded on a national securities exchange or quoted on an interdealer quotation system. " Lock-Up Period" means the 20 days prior and the 180 days (or such longer period as the applicable underwriters may specify) following the effective date of any

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registration statement filed by the Company or Burger King in connection with an underwritten public offering of any capital stock of the Company or Burger King. " Management Shareholders Agreement" means a management subscription and shareholders' agreement entered or to be entered into by the Company, Burger King and the Grantee, as the same may be amended and in effect from time to time, setting forth the terms and conditions applicable to any shares of Common Stock acquired by the Grantee prior to an Initial Public Offering, including any shares of Common Stock received in settlement of Restricted Units granted under the Equity Incentive Plan, which agreement shall be in such form as the Committee shall approve. " Market Value" means, as of the applicable date of determination, the fair market value of a share of Common Stock, as determined by the Board, in good faith, based on such factors as the Board deems appropriate; provided that, following an Initial Public Offering, the Market Value of a share of Common Stock shall be the closing price for a share (or the average of the last bid and ask prices for a Share, if applicable) on the last trading day prior to the day as of which Market Value is determined on the principal securities exchange on which the Common Stock is then listed for trading or the principal interdealer quotation system on which the Common Stock is then quoted for trading (or, if the Common Stock is not traded or quoted on such day, on the last day the Common Stock is traded on such exchange or quoted on such interdealer system). " Post-IPO Settlement Date" has the meaning assigned thereto in Section 4.2. " Restricted Unit" has the meaning assigned thereto in the preamble to this Agreement. Each Restricted Unit provides the Grantee the right to receive one Settlement Share (subject to adjustment in accordance with the Equity Incentive Plan and this Agreement) on the terms and subject to the conditions in this Agreement and the Equity Incentive Plan. " Retirement" means the Grantee' s Termination of Active Service at or after the later of (i) his 65th birthday and (ii) his completion of five years of employment with the Company Group. " Securities Act" means the U.S. Securities Act of 1933, as amended. " Settlement Share" means a share of Common Stock to be transferred to the Grantee in settlement of a Vested Restricted Unit granted hereunder, subject to all applicable terms and conditions of, and as may be adjusted in accordance with, this Agreement and the Equity Incentive Plan. " Termination of Active Service" means the termination of the Grantee' s active employment with the Company Group for any reason, including the Grantee' s resignation, death, Disability or Retirement or termination by the member of the Company Group that employs the Grantee Without Cause or for Cause.

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" Termination Date" means the date of the Grantee' s Termination of Active Service. " Transfer" means any direct or indirect transfer, sale, exchange, assignment, pledge, hypothecation, gift, testamentary transfer or other encumbrance or other disposition of any interest, including the grant of an option or other right in respect of such interest, whether directly or indirectly, whether voluntarily, involuntarily or by operation of law; and " Transferred" , " Transferee" and " Transferability" shall each have a correlative meaning. " Vested" means, with respect to a Restricted Unit and the Settlement Share covered thereby, that the Grantee' s right to receive one Settlement Share in settlement of such Restricted Unit in accordance with the Equity Incentive Plan and Article III is no longer subject to forfeiture, other than in connection with a Termination of the Active Service of the Grantee for Cause; provided that (x) the Grantee' s right to Transfer Settlement Shares may continue to be subject to restriction during any period prior to an Initial Public Offering and (y) the Grantee shall not be permitted to Transfer any Settlement Shares during any Lock-Up Period. The terms " Vesting" , " Vest" and other derivations of the term vested shall have correlative meanings. " Vesting Date" means, with respect to a Restricted Unit, the date specified in Section 3.3 of this Agreement as of which the Grantee' s rights in respect of such Restricted Unit become Vested. " Without Cause" means the Grantee' s Termination of Active Service by the member of the Company Group that employs the Grantee, other than any such termination by such member of the Company Group for Cause or due to the Grantee' s death, Disability or Retirement. Section 1.2 Other Capitalized Terms . All capitalized terms used herein and not defined shall have the meanings set forth in the Equity Incentive Plan. Section 1.3 Other Interpretive Provisions . (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. (b) The words " hereof" , " herein" , " hereunder" and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and any subsection and Section references are to this Agreement unless otherwise specified. (c) The term " including" is not limiting and means " including without limitation ." (d) The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

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(e) Whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms. ARTICLE II CONFIRMATION OF GRANT OF RESTRICTED UNITS The Company hereby evidences and confirms its grant to the Grantee, effective as of the Grant Date, of the number of Restricted Units set forth on the signature page hereof, each such Restricted Unit providing the Grantee the right to receive one Settlement Share, on and subject to the terms and conditions of, and as may be adjusted in accordance with, this Agreement and the Equity Incentive Plan. This Agreement is subordinate to, and the terms and conditions of the Restricted Units granted hereunder an ...