AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDMENT
TO
AMENDMENT
TO EMPLOYMENT AGREEMENT (“Amendment”) dated as of November 8,
2007 among Krispy Kreme Doughnut Corporation, a North Carolina corporation
(“KKDC”), Krispy Kreme Doughnuts, Inc., a North Carolina
corporation (the “Company” and, together with KKDC, the
“Companies”), and Xxxxxxx X. Xxxx (the
“Executive”).
WHEREAS,
the Companies and the Executive entered into an Employment Agreement dated
as of
April 23, 2007 (the “Agreement”);
WHEREAS,
the parties hereto wish to amend the Agreement as set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
Companies and the Executive hereby agree as follows:
1. The
third
sentence of Section 4.01 of the Agreement is amended to read in its
entirety as follows:
“Annually
during the Employment Period the Company shall review with the Executive his
job
performance and compensation, and if deemed appropriate by the Board or its
Compensation Committee, in their discretion, the Executive’s Base Salary may be
increased but not decreased.”
2. Section 5.03
of the Agreement is amended to add the following at the beginning of the first
sentence thereof:
“Except
as otherwise set forth in Section 5.09 below,”
3. Section
5.03 of the Agreement is also amended by deleting the following
therefrom: “(i) if such termination of employment is within two years
after a Change in Control, such payments shall be made in a lump sum upon such
termination of employment, and (ii)” and inserting a comma in its
place.
4. Section 5.05
of the Agreement is amended by deleting “Section 5.02 or 5.03” therefrom and
inserting “Section 5.02, 5.03 or 5.09” in its place.
5. Section 5.09
of the Agreement is amended to read in its entirety as follows:
“SECTION
5.09 Termination for Good Reason or Without Cause Following a
Change in Control. If the Employment Period shall be terminated
within two years after a Change in Control (a) by the Executive for Good Reason,
or (b) by the Companies not for Cause, then Executive’s compensation and
benefits
upon
termination shall be governed by this Section 5.09 instead of the provisions
of
Section 5.03 above, and, provided the Executive has executed an irrevocable
(except to the extent required by law, and to the extent required by law to
be
revocable, has not revoked) general release of claims, in the form attached
hereto as Exhibit A, the Executive shall be entitled solely to the following:
(i) Base Salary through the Date of Termination; (ii) an amount equal to two
times the sum of his Base Salary and his target annual bonus for the year of
termination, provided that, the Executive shall be entitled to any unpaid
amounts only if the Executive has not breached and does not breach the
provisions of Sections 6.01, 7.01, 8.01 or 9 below; (iii) a bonus for the year
of termination of employment equal to the Executive’s target annual bonus for
such year pro rated for the number of full months during the bonus year prior
to
such termination of employment; and (iv) medical benefits as provided in Section
5.05. The Executive’s entitlements under any other benefit plan or program shall
be as determined thereunder, except that duplicative severance benefits shall
not be payable under any other plan or program. In addition,
promptly following any such termination, the Executive shall be reimbursed
for
all Reimbursable Expenses incurred by the Executive prior to such
termination. The amounts due under clauses (i), (ii) and (iii) of
this Section 5.09 shall be paid in a lump sum upon
termination of employment.”
6. The
reference to “Section 5.03” in Section 12.01 of the Agreement is changed to
“Article 5 hereof.”
7. Except
as
set forth herein, the Agreement shall continue in full force and effect in
accordance with its terms.
8. All
questions concerning the construction, validity and interpretation of this
Amendment and the Agreement will be governed by internal law of the State of
North Carolina, without regard to principles of conflict of laws.
9. This
Amendment may be executed simultaneously in two or more counterparts, any one
of
which need not contain the signatures of more than one party, but all of which
counterparts taken together will constitute one and the same
agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date
and year first above written.
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KRISPY
KREME DOUGHNUT CORPORATION
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By: /s/
Xxxxxx X. Xxxxxx
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Printed
Name: Xxxxxx X. Xxxxxx
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Title: General
Counsel
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KRISPY
KREME DOUGHNUTS, INC.
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By: /s/
Xxxxx X. Xxxxxxxx
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Printed
Name: Xxxxx X. Xxxxxxxx
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Title: Chief
Executive Officer
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/s/
Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx
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