EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT
AGREEMENT (“Agreement”)
dated
as of April
23,
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
Xxxxxx
X.
Xxxxxx
(the
“Executive”).
The
parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
SECTION
1.01. Definitions.
For
purposes of this Agreement, the following terms have the meanings set forth
below
“Base
Salary”
has
the
meaning set forth in Section 4.01.
“Board”
means
the Board of Directors of the Company.
“Cause”
shall
mean (i) the Executive’s failure or refusal to perform the Executive’s lawful
and proper duties hereunder (other than as a result of total or partial
incapacity due to physical or mental illness
or a
court or governmental order),
(ii)
the Executive’s conviction of or plea of nolo
contendere
to any
felony (other than a traffic infraction), (iii) an act or acts on the
Executive’s part constituting fraud, theft or embezzlement or that otherwise
constitutes a felony under the laws of the United States or any state thereof
which results or was intended to result directly or indirectly in gain or
personal enrichment by the Executive at the expense of the Companies, or (iv)
the Executive’s insubordination to the Companies’ most senior executive officer
or willful violation of any material provision of the code of ethics of the
Companies applicable to the Executive. In the case of any item described in
the
previous sentence, the Executive shall be given written notice of the alleged
act or omission constituting Cause, which notice shall set forth in reasonable
detail the reason or reasons that the Board believes the Executive is to be
terminated for Cause, including any act or omission that is the basis for the
decision to terminate the Executive. In the case of an act or omission described
in clause (i) or (iv) of the definition of Cause, (A) if reasonably capable
of
being cured, the Executive shall be given 30 days from the date of such notice
to effect a cure of such alleged act or omission constituting “Cause” which,
upon such cure to the reasonable satisfaction of the Board, shall no longer
constitute a basis for Cause, and (B) the Executive shall be given an
opportunity to make a presentation to the Board (accompanied by counsel or
other
representative, if the Executive so desires) at a meeting of the Board held
promptly following such 30-day cure period if the Board intends to determine
that no cure has occurred. At or following such meeting, the Board shall
determine whether or not to terminate the Executive for “Cause” and shall notify
the Executive in writing of its determination and the effective date of such
termination (which date may be no earlier than the date of the aforementioned
Board meeting).
“Change
in Control”
means
any of the following events:
(a) the
acquisition by
any
Person of “beneficial ownership” (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of fifty percent (50%) or more of the combined voting
power of the Company’s then outstanding voting securities; provided, however,
that a Change in Control shall not be deemed to occur solely because fifty
percent (50%) or more of the combined voting power of the Company’s then
outstanding securities is acquired by (i) a trustee or other fiduciary holding
securities under one or more employee benefit plans maintained by the Company
or
any of its Subsidiaries, or (ii) any Person, which, immediately prior to such
acquisition, is owned directly or indirectly by the shareholders of the Company
in the same proportion as their ownership of stock in the Company immediately
prior to such acquisition;
(b) consummation
of (i) a merger or consolidation involving the Company if the shareholders
of
the Company, immediately before such merger or consolidation do not, as a result
of such merger or consolidation, own, directly or indirectly, more than fifty
percent (50%) of the combined voting power of the then outstanding voting
securities of the corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the combined voting
power of the voting securities of the Company outstanding immediately before
such merger or consolidation, or (ii) a sale or other disposition of all or
substantially all of the assets of the Company other than to a Person which
is
owned directly or indirectly by the shareholders of the Company in the same
proportion as their ownership of stock in the Company;
(c) a
change
in the composition of the Board such that the individuals who, as of the
Effective Date, constitute the Board (such Board shall be hereinafter referred
to as the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, for purposes of this definition,
that
any individual who becomes a member of the Board subsequent to the Effective
Date whose election, or nomination for election by the Company’s shareholders,
was approved by a vote of at least a majority of those individuals who are
members of the Board and who were also members of the Incumbent Board (or deemed
to be such pursuant to this proviso) shall be considered as though such
individual were a member of the Incumbent Board; provided further, however,
that
any such individual whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such terms are used in
Rule
14a-11 of Regulation 14A promulgated under the Exchange Act, including any
successor to such Rule), or other actual or threatened solicitation or proxies
or consents by or on behalf of a Person other than the Board, shall not be
so
considered as a member of the Incumbent Board; or
(d) approval
by shareholders of the Company of a complete liquidation or dissolution of
the
Company.
“Code”
means
the Internal Revenue Code of 1986, as amended.
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“Confidential
Information”
means
information that is not generally known to the public and that was or is used,
developed or obtained by the Company or its Subsidiaries in connection with
the
business of the Company and its Subsidiaries and which constitutes trade secrets
or information which they have attempted to protect, which may include, but
is
not limited to, trade “know-how”, customer information, supplier information,
cost and pricing information, marketing and sales techniques, strategies and
programs, computer programs and software and
financial information. It shall not include information (a) required to be
disclosed by court or administrative order; (b) lawfully obtainable from other
sources or which is in the public domain through no fault of the Executive;
or
(c) the disclosure of which is consented to in writing by the
Company.
“Date
of Termination”
has
the
meaning set forth in Section 5.07.
“Effective
Date”
has
the
meaning set forth in Section 2.01.
“Employment
Period”
has
the
meaning set forth in Section 2.01.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Good
Reason”
shall
mean (i) the failure of the Companies to pay any material amount of compensation
to the Executive when due hereunder, (ii) the Executive is no longer the most
senior legal
officer and an executive
vice
president
of (A)
the Company or (B) in the event of a merger, consolidation or other business
combination involving the Company, the successor to the Company’s business or
assets or (C) if all or substantially all of the voting stock of the Company
is
held by another public company, such public company,
(iii)
the assignment to the Executive of any duties or responsibilities materially
inconsistent with the Executive’s status under clause (ii) of this sentence or
her
failure
at any time to report directly to the most
senior executive officer
of the
applicable company described in such clause (ii), (iv) any
failure by the Companies to maintain the Executive’s principal place of
employment and the executive offices of the Companies within 25 miles of the
Winston-Salem, North Carolina area, (v)
any
material breach by the Companies of this Agreement, or (vi)
the
term of the Employment Period ending as a result of the Companies giving the
Executive notice of nonextension of the term of this Agreement in accordance
with Section 5.01 solely at either the end of the initial term or the end of
the
first, second or third one year extensions of the term under Section 5.01 (but,
for the avoidance of doubt, not at the end of any further extension of the
term); provided, however, that for any of the foregoing to constitute Good
Reason, the Executive must provide written notification of her
intention to resign within 60 days after the Executive knows or has reason
to
know of the occurrence of any such event, and the Companies shall have 30 days
(10 days in the case of a material breach related to payment of any amounts
due
hereunder) from the date of receipt of such notice to effect a cure of the
condition constituting Good Reason, and, upon cure thereof by the Companies,
such event shall no longer constitute Good Reason.
“Notice
of Termination”
has
the
meaning set forth in Section 5.06.
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“Permanent
Disability”
means
the Executive becomes permanently disabled within the meaning of the long-term
disability plan of the Companies applicable to the Executive, and the Executive
commences to receive benefits under such plan.
“Person”
means
an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, an estate, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.
“Reimbursable
Expenses”
has
the
meaning set forth in Section 4.04.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Subsidiary”
or
“Subsidiaries”
means,
with respect to any Person, any corporation, partnership, limited liability
company, association or other business entity of which (a) if a corporation,
50
percent or more of the total voting power of shares of stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or combination thereof; or (b) if a partnership, limited
liability company, association or other business entity, 50 percent or more
of
the partnership or other similar ownership interests thereof are at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes of this
definition, a Person or Persons will be deemed to have a 50 percent or more
ownership interest in a partnership, limited liability company, association
or
other business entity if such Person or Persons are allocated 50 percent or
more
of partnership, limited liability company, association or other business entity
gains or losses or control the managing director or member or general partner
of
such partnership, limited liability company, association or other business
entity.
ARTICLE
2
EMPLOYMENT
SECTION
2.01. Employment.
The
Companies shall employ the Executive, and the Executive shall accept employment
with the Companies, upon the terms and conditions set forth in this Agreement
for the period beginning on the date set forth in the first paragraph of this
Agreement (the “Effective
Date”)
and
ending as provided in Section 5.01 (the “Employment
Period”).
ARTICLE
3
POSITION
AND DUTIES
SECTION 3.01. Position
and Duties.
During
the Employment Period, the Executive shall serve as Executive Vice President
and
General Counsel of the Company reporting directly to the most
senior executive officer
and
shall be the Company’s most senior legal
officer.
During the Employment Period, the Executive also shall serve as Executive Vice
President and General Counsel of KKDC and shall be KKDC’s most senior
legal
officer.
The Executive shall have such responsibilities, powers and duties as may from
time to time be prescribed by the Board or the most senior executive officer
of
the Companies; provided
that
such responsibilities, powers and duties are substantially consistent with
those
customarily assigned to individuals serving in such position at comparable
companies or as may be reasonably required for the proper conduct of the
business of the Companies. During
the Employment Period, the Executive shall devote substantially all of
her
working
time and efforts to the business and affairs of the Company and its
Subsidiaries. The Executive shall not directly or indirectly render any services
of a business, commercial or professional nature to any other person or
organization not related to the business of the Company or its Subsidiaries,
whether for compensation or otherwise, without the prior approval of the Board;
provided, however, the Executive may serve on the board of directors of one
for-profit corporation with the prior approval of the Board, which will not
be
unreasonably withheld,
and the
Executive may serve as a director of not-for-profit organizations or engage
in
other charitable, civic or educational activities, so long as the activities
described in this proviso do not interfere with the Executive’s performance of
her
duties
hereunder or result in any conflict of interest with the Companies. Executive
shall be required to relocate her primary residence to Winston-Salem, North
Carolina, or the surrounding area, within twelve (12) months of the execution
of
this Agreement, in order to be readily accessible to the Companies’
headquarters, but she shall not thereafter be required to relocate her residence
or principal office to any place outside Forsyth County, North Carolina without
her consent.
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ARTICLE
4
BASE
SALARY AND BENEFITS
SECTION
4.01. Base
Salary.
During
the Employment Period, the Executive will receive base salary from the Companies
equal to $330,000
per
annum (the “Base
Salary”).
The
Base Salary will be payable in accordance with the normal payroll practices
of
the Companies. Annually during the Employment Period the Board and/or its
Compensation Committee shall review with the Executive her
job
performance and compensation, and if deemed appropriate by the Board, in its
discretion, the Executive’s Base Salary may be increased but not decreased.
After any such increase, the term “Base Salary” as used in this Agreement will
thereafter refer to the increased amount.
SECTION
4.02. Bonuses.
In
addition to Base Salary, the Executive shall be eligible to be considered for
an
annual bonus, and the Executive’s annual target bonus shall be equal to
60%
of Base
Salary. The Executive’s annual target bonus for the fiscal year of the Company
including the Effective Date will
be
$198,000 (the Executive’s bonus being based upon a full year of service), of
which $99,000 is guaranteed provided Executive remains employed with the
Companies as of February 3, 2008, which bonus shall be paid when the bonuses
for
the Companies’ other executives are paid.
The
Compensation Committee of the Board and the Board shall set targets with respect
to and otherwise determine Executive’s bonus in accordance with the Company’s
then current incentive plans.
SECTION
4.03. Benefits.
During
the Employment Period, the Executive shall be entitled to participate in all
employee benefit, perquisite and fringe benefit plans and arrangements made
available by the Companies to their executives and key management employees
upon
the terms and subject to the conditions set forth in the applicable plan or
arrangement. Such benefits shall include medical, life and disability insurance
provided in accordance with the policies of the Companies. Executive shall
be
entitled to four
weeks of
paid vacation annually during the Employment Period.
SECTION
4.04. Expenses.
The
Companies shall reimburse the Executive for all reasonable expenses incurred
by
her
in the
course of performing her
duties
under this Agreement which are consistent with the Companies’ policies in effect
from time to time with respect to travel, entertainment and other business
expenses (“Reimbursable
Expenses”),
subject to the Companies’ requirements with respect to reporting and
documentation of expenses. The
Company
shall
reimburse Executive for expenses
necessary to maintain her license to practice law, including continuing legal
education requirements (to be fulfilled in a reasonably cost effective manner)
and reasonable professional association membership fees.
SECTION
4.05. Stock
Options.
The
Company shall grant to the Executive options to purchase 100,000
shares
of its common stock (the “Option
Shares”)
at an
exercise price per share equal to the fair market value per share on the date
of
grant (the “Exercise Price”) which is expected to be April
23,
2007. One half of the options (specifically, 50,000 shares)
will
vest and become exercisable in four equal installments, on
the
first,
second,
third
and
fourth anniversaries of the Effective Date, so
long
as, except as otherwise set forth in the applicable stock option plan, the
Executive’s employment continues through such vesting dates.
The
other half of the options (specifically, 50,000 shares) will vest based upon
the
performance of the Companies, with (i) one half of these options (specifically
25,000 shares) to vest if and when the following two conditions have occurred:
(a) two years have elapsed since the Effective Date and (b) following the
Effective Date, the closing price per share of the Company’s stock on the
principal securities exchange on which the Company’s shares are then traded has
exceeded 120% of the Exercise Price for a period of ten consecutive trading
days
and (ii) the remaining one half of these options (specifically 25,000 shares)
to
vest
if and when the following two conditions have occurred: (a) two years have
elapsed since the Effective Date and (b) following the Effective Date, the
closing price per share of the Company’s stock on the principal securities
exchange on which the Company’s shares are then traded has exceeded 140% of the
Exercise Price for a period of ten consecutive trading days. The term of the
options will be ten years from the date of grant, subject to earlier termination
in the event the Executive’s employment terminates. The Option Shares will be
registered as soon as practicable on Form S-8 under the Securities
Act,
if not
currently registered.
The
Executive agrees that, in
the
event of her resignation, she will not, without
the prior written consent of the Board, sell
or
otherwise transfer the Option Shares or the economic benefit thereof prior
to
the first anniversary of her
termination of employment with the Companies, except that this Agreement shall
not prevent the Executive from selling a number of Option Shares required to
fund the exercise price of the option and her
tax
liability resulting from such exercise. The Option Shares shall be subject
to
the terms of the Krispy Kreme Doughnuts, Inc. 2000 Stock Incentive Plan, and
the
option grant agreement for Executive’s Option Shares shall have terms similar to
those of other executive vice presidents of the Companies. The Option Shares
shall also be subject to, and Executive agrees to comply with, the ownership
guidelines adopted by the Companies as may be applicable to the option shares
of
the Companies’ executive vice presidents.
-5-
SECTION
4.06. Restricted
Shares.
The
Company shall grant to the Executive 20,000
restricted shares of the Company’s common stock (the “Restricted
Shares”).
Except
as otherwise provided below, the Restricted Shares will vest, provided that
the
Executive’s employment continues through the applicable vesting dates, in
four
equal installments, on the first, second, third and fourth anniversaries
of the
Effective Date.
The
Executive hereby agrees to appropriate legends and transfer restrictions
on the
Restricted Shares in order to reflect such vesting provisions. The Restricted
Shares will be registered as soon as practicable on Form S-8 under the
Securities Act,
if not
currently registered.
The
Executive agrees that
in the
event of her resignation,
without
the prior written consent of the Board, she
will not
sell or otherwise transfer any of the shares received under this Section
4.06 or
the economic benefit thereof prior to the first anniversary of her
termination of employment with the Companies, except that this Agreement
shall
not prevent the Executive from selling a number of such shares required to
fund
her
tax
liability resulting from the vesting of the Restricted Shares. The Restricted
Shares shall be subject to the terms of the Krispy Kreme Doughnuts, Inc.
2000
Stock Incentive Plan. The Restricted Shares shall also be subject to, and
Executive agrees to comply with, the ownership guidelines adopted by the
Companies as may be applicable to the restricted shares of the Companies’
executive vice presidents.
SECTION
4.07. Relocation.
The
Companies shall reimburse the Executive for all reasonable expenses incurred
by
her
in
relocating her
and
her
immediate family’s household items to Winston-Salem, North Carolina, subject to
the Companies’ requirements with respect to reporting and documentation of such
expenses, such relocation reimbursements to include all normal expenses of
moving
(including interim commuting costs),
packing
and unpacking, home hunting, temporary housing, buying and selling brokerage
fees, transfer taxes, origination fees (not to exceed 1% of the loan amount)
and
mortgage points (not to exceed 1% of the loan amount). The
Companies may require the Executive to use a home owned by the Companies for
her
temporary housing needs, which will be made available for up to 12
months.
ARTICLE
5
TERM
AND
TERMINATION
SECTION
5.01. Term.
The
Employment Period will terminate on April
23,
2010,
unless
sooner terminated as hereinafter provided; provided, however, that the
Employment Period will be automatically extended for successive one-year periods
following the original term ending April
23,
2010
until
either the Companies, on the one hand, or the Executive, on the other hand,
at
least 180 days prior to the expiration of the original term or any extended
term, shall give written notice to the other of their intention not to so extend
the Employment Period.
SECTION
5.02. Termination
Due to Death or Permanent Disability.
If the
Employment Period shall be terminated due to death or Permanent Disability
of
the Executive, the Executive (or her
estate
or legal representative) shall be entitled solely to the following: (i) Base
Salary through the Date of Termination; and (ii) medical benefits as provided
in
Section 5.05 below. The Executive’s entitlements under any other benefit plan or
program shall be as determined thereunder. In addition, promptly following
any
such termination, the Executive (or her
estate
or legal representative) shall be reimbursed for all Reimbursable Expenses
incurred by the Executive prior to such termination.
SECTION
5.03. Termination
for Good Reason or Without Cause.
If the
Employment Period shall be terminated (a) by the Executive for Good Reason,
or
(b) by the Companies not for Cause, 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 one times the Base Salary, 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, payable as soon as practicable
following such termination of employment; and (iv) medical benefits as provided
in Section 5.05 below. 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. Amounts described
in clause (ii) above will be payable in equal monthly installments for a period
of 12 months commencing on the first month anniversary of the Date of
Termination, except (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) to the extent required by Section 409A
of
the Code, amounts otherwise payable under clause (ii) within six months after
the Executive’s termination of employment shall be deferred to and paid on the
day following the six month anniversary of such termination of employment.
In
addition, promptly following any such termination, the Executive shall be
reimbursed for all Reimbursable Expenses incurred by the Executive prior to
such
termination. Notwithstanding the above provisions of this Section 5.03, if
Executive’s employment with the Companies is terminated by the Companies not for
Cause prior to December 31, 2008, then the amount otherwise payable under clause
(ii) above shall be two times the Base Salary (not one times Base Salary),
payable not over 12 months but over 24 months commencing on the first month
anniversary of the Date 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.
-6-
SECTION
5.04. Termination
for Cause or Other Than Good Reason.
If the
Employment Period shall be terminated (a) by the Companies for Cause, or
(b) as
a result of the Executive’s resignation or leaving of her
employment other than for Good Reason, the Executive shall be entitled to
receive solely Base Salary through the Date of Termination and reimbursement
of
all Reimbursable Expenses incurred by the Executive prior to such termination.
The Executive’s rights under the benefit plans and programs shall be as
determined thereunder. A voluntary resignation by the Executive shall not
be
deemed to be a breach of this Agreement.
SECTION
5.05. Benefits.
If the
Employment Period is terminated as a result of a termination of employment
as
specified in Section 5.02 or 5.03, the Executive and her
covered
dependents shall continue to receive medical insurance coverage
benefits
from the Companies, with the same contribution toward such coverage from the
Executive or her
estate,
for a period equal to the lesser of (x) eighteen months following the Date
of
Termination, or (y) until the Executive is provided by another employer with
benefits substantially comparable to the benefits provided by the Companies’
medical plan.
Furthermore, in the event of Executive’s Permanent Disability, insurance
benefits will continue under the Companies’ long term disability plan in
accordance with its terms.
SECTION
5.06. Notice
of Termination.
Any
termination by the Companies for Permanent Disability or Cause or without Cause
or by the Executive with or without Good Reason shall be communicated by written
Notice of Termination to the other party hereto. For purposes of this Agreement,
a “Notice
of Termination”
shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of employment under
the
provision indicated.
SECTION
5.07. Date
of Termination. “Date
of Termination”
shall
mean (a) if the Employment Period is terminated as a result of a Permanent
Disability, five days after a Notice of Termination is given, (b) if the
Employment Period is terminated as a result of her
death,
on the date of her
death,
and (c) if the Employment Period is terminated for any other reason, the later
of the date of the Notice of Termination and the end of any applicable
correction period.
SECTION
5.08. No
Duty to Mitigate.
The
Executive shall have no duty to seek new employment or other duty to mitigate
following a termination of employment as described in this Article 5, and no
compensation or benefits described in this Article 5 shall be subject to
reduction or offset on account of any subsequent compensation, other than as
provided in Sections 5.05.
SECTION
5.09. Change
in Control and Resignation for Good Reason.
If the
Employment Period shall be terminated by the Executive for Good Reason within
two years after a Change of Control, 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. Upon such resignation by Executive for Good
Reason within two years after a Change of Control, 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 her Base Salary and her 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, payable as soon as practicable following 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 due upon
termination of employment.
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ARTICLE
6
CONFIDENTIAL
INFORMATION
SECTION
6.01. Nondisclosure
and Nonuse of Confidential Information.
The
Executive will not disclose or use at any time during or after the Employment
Period any Confidential Information of which the Executive is or becomes aware,
whether or not such information is developed by her,
except
to the extent she
reasonably believes that such disclosure or use is directly related to and
appropriate in connection with the Executive’s performance of duties assigned to
the Executive pursuant to this Agreement. Under all circumstances and at all
times, the Executive will take all appropriate steps to safeguard Confidential
Information in her
possession and to protect it against disclosure, misuse, espionage, loss and
theft.
Executive also agrees to execute and comply with such other confidentiality
agreements or provisions as required of executive vice presidents of the
Company.
ARTICLE
7
INTELLECTUAL
PROPERTY
SECTION
7.01. Ownership
of Intellectual Property.
In the
event that the Executive as part of her
activities on behalf of the Companies generates, authors or contributes to
any
invention, design, new development, device, product, method of process (whether
or not patentable or reduced to practice or comprising Confidential
Information), any copyrightable work (whether or not comprising Confidential
Information) or any other form of Confidential Information relating directly
or
indirectly to the business of the Company or its Subsidiaries as now or
hereafter conducted (collectively, “Intellectual
Property”),
the
Executive acknowledges that such Intellectual Property is the sole and exclusive
property of the Company and its Subsidiaries and hereby assigns all right,
title
and interest in and to such Intellectual Property to the Company or its
designated Subsidiary. Any copyrightable work prepared in whole or in part
by
the Executive during the Employment Period will be deemed “a work made for hire”
under Section 201(b) of the Copyright Act of 1976, as amended, and the Company
or its designated Subsidiary will own all of the rights comprised in the
copyright therein. The Executive will promptly and fully disclose all
Intellectual Property and will cooperate with the Companies to protect their
interests in and rights to such Intellectual Property (including providing
reasonable assistance in securing patent protection and copyright registrations
and executing all documents as reasonably requested by the Companies, whether
such requests occur prior to or after termination of Executive’s employment
hereunder).
ARTICLE
8
DELIVERY
OF MATERIALS UPON TERMINATION OF EMPLOYMENT
SECTION
8.01. Delivery
of Materials upon Termination of Employment.
As
requested by the Companies from time to time, and upon the termination of the
Executive’s employment with the Companies for any reason, the Executive will
promptly deliver to the Companies all property of the Company or its
Subsidiaries, including, without limitation, all copies and embodiments,
in whatever form or medium, of all Confidential Information in the Executive’s
possession or within her
control
(including written records, notes, photographs, manuals, notebooks,
documentation, program listings, flow charts, magnetic media, disks, diskettes,
tapes and all other materials containing any Confidential Information)
irrespective of the location or form of such material and, if requested by
the
Companies, will provide the Companies with written confirmation that to the
best
of her
knowledge all such materials have been delivered to the Companies or
destroyed.
ARTICLE
9
NON-COMPETITION
AND NONSOLICITATION
SECTION
9.01. Noncompetition.
The
Executive acknowledges that, during her
employment with the Companies, she
will
become familiar with trade secrets and other Confidential Information concerning
the Company and its Subsidiaries and her
services
will be of special, unique and extraordinary value to the Companies. In
addition, the Executive hereby agrees that at any time during the Noncompetition
Period (as defined below), she
will not
directly or indirectly own, manage, control, participate in, consult with,
become employed by or otherwise render services to any business listed on
Exhibit B hereto in the Territory. During the Noncompetition Period, the Company
shall have the right to, in good faith, add other entities which are in
substantial competition with the Companies to the list of businesses on Exhibit
B, subject to the consent of the Executive which shall not be unreasonably
withheld. Notwithstanding the foregoing, if the Executive’s termination of
employment occurs at the end of the Employment Period due to the Companies
giving written notice after the fifth anniversary of the Effective Date pursuant
to Section 5.01 of its intention not to extend the Employment Period, this
Section 9.01 will only apply if the Companies elect and agree in writing to
pay
the Executive her
Base
Salary and her
annual
target bonus in effect for the year during which her
employment is terminated for an additional one-year period following the
termination of employment, such amount to be payable in monthly installments
over the additional one-year period, except that, to the extent required by
Section 409A of the Code, amounts otherwise payable under this sentence within
six months after the Executive’s termination of employment shall be deferred to
and paid on the day following the six month anniversary of such termination
of
employment. It shall not be considered a violation of this Section 9.01 for
the
Executive to be a passive owner of not more than 2% of the outstanding stock
of
any class of any corporation which is publicly traded, so long as the Executive
has no active participation in the business of such corporation.
-8-
SECTION
9.02. Nonsolicitation.
The
Executive hereby agrees that (a) during the Nonsolicitation Period (as defined
below), the Executive will not, directly or indirectly through another Person,
induce or attempt to induce any employee of the Company or its Subsidiaries
to
leave the employ of the Company or its Subsidiaries, or in any way interfere
with the relationship between the Company or its Subsidiaries and any person
employed by them at any time during such Nonsolicitation Period, and (b) during
the Nonsolicitation Period, the Executive will not induce or attempt to induce
any customer, supplier, client or other business relation of the Company or
its
Subsidiaries to cease doing business with the Company or its
Subsidiaries.
SECTION
9.03. Definitions.
It is
agreed that the“Territory,”
for
purposes of this Article 9, shall mean:
(i) The
entire United States and any other country where the Company or any of its
Subsidiaries, joint venturers, franchisees or affiliates has operated a retail
facility at which the Company’s products have been sold at any time in the
one-year period ending on the last day of the Executive’s employment with the
Companies;
(ii) In
the
event that the preceding clause shall be determined by judicial action to define
too broad a territory to be enforceable, then “Territory” shall mean the entire
United States;
(iii) In
the
event that the preceding clauses shall be determined by judicial action to
define too broad a territory to be enforceable, then “Territory” shall mean the
states in the United States where the Company or any of its Subsidiaries, joint
venturers, franchisees or affiliates has operated a retail facility at which
the
Company’s products have been sold at any time in the one-year period ending on
the last day of Executive’s employment with the Companies;
(iv) In
the
event that the preceding clauses shall be determined by judicial action to
define too broad a territory to be enforceable, then “Territory” shall mean the
area that includes all of the areas that are within a 50-mile radius of any
retail store location in the United States at which the Company’s products have
been sold at any time in the one-year period ending on the last day of the
Executive’s employment with the Companies; and
(v) In
the
event that the preceding clauses shall be determined by judicial action to
define too broad a territory to be enforceable, then “Territory” shall mean the
entire state of North Carolina.
It
is
also agreed that “Noncompetition
Period,”
for
purposes hereof, shall mean:
(i) the
Employment Period and a period ending one year after the Date of Termination;
and
(ii) In
the
event that the preceding clause shall be determined by judicial action to define
too long a period to be enforceable, “Noncompetition Period” shall mean the
Employment Period and a period ending six months after the Date of
Termination.
It
is
also agreed that “Nonsolicitation
Period,”
for
purposes hereof, shall mean:
(i) the
Employment Period and a period ending two years after the Date of Termination;
(ii) In
the
event that the preceding clause shall be determined by judicial action to define
too long a period to be enforceable, “Nonsolicitation Period” shall mean the
Employment Period and a period ending eighteen months after the Date of
Termination;
(iii) In
the
event that the preceding clauses shall be determined by judicial action to
define too long a period to be enforceable, “Nonsolicitation Period” shall mean
the Employment Period and a period ending one year after the Date of
Termination; and
(iv) In
the
event that the preceding clauses shall be determined by judicial action to
define too long a period to be enforceable, “Nonsolicitation Period” shall mean
the Employment Period and a period ending six months after the Date of
Termination.
-9-
ARTICLE
10
EQUITABLE
RELIEF
SECTION
10.01. Equitable
Relief.
The
Executive acknowledges that (a) the covenants contained herein are reasonable,
(b) the Executive’s services are unique, and (c) a breach or threatened breach
by her
of any
of her
covenants and agreements with the Companies contained in Sections 6.01, 7.01,
8.01 or Article 9 could cause irreparable harm to the Companies for which they
would have no adequate remedy at law. Accordingly, and in addition to any
remedies which the Companies may have at law, in the event of an actual or
threatened breach by the Executive of her
covenants and agreements contained in Sections 6.01, 7.01, 8.01 or Article
9,
the Companies shall have the absolute right to apply to any court of competent
jurisdiction for such injunctive or other equitable relief, without the
necessity to post bond, as such court may deem necessary or appropriate in
the
circumstances.
ARTICLE
11
EXECUTIVE
REPRESENTATION AND INDEMNIFICATION
SECTION
11.01. Executive
Representation.
The
Executive hereby represents and warrants to the Companies that (a) the
execution, delivery and performance of this Agreement by the Executive does
not
and will not conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which the
Executive is a party or by which she
is
bound, (b) the
Executive is not a party to or bound by any employment agreement, noncompetition
agreement or confidentiality agreement with any other Person, and (c) upon
the
execution and delivery of this Agreement by the Companies, this Agreement will
be the valid and binding obligation of the Executive, enforceable in accordance
with its terms. Notwithstanding Section 11.02 below, in the event that any
action is brought against Executive involving any breach of any employment
agreement, noncompetition agreement or confidentiality agreement with any other
Person, the Executive shall bear her
own
costs incurred in defending such action, including but not limited to court
fees, arbitration costs, mediation costs, attorneys’ fees and
disbursements.
SECTION
11.02. General
Indemnification.
The
Companies,
jointly
and severally,
agree
that if the Executive is made a party, or is threatened to be made a party,
to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (each, a “Proceeding”),
by
reason of the fact that she
is or
was a director, officer or employee of the Company or any of its Subsidiaries
or
is
or was
serving at the request of the Company or any of its Subsidiaries as a director,
officer, member, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether or not the basis of such Proceeding is the Executive’s
alleged action in an official capacity while serving as a director, officer,
member, employee or agent, the Executive shall be indemnified and held harmless
by the Companies to the fullest extent permitted or authorized by applicable
law
and their bylaws, against all cost, expense, liability and loss (including,
without limitation, advancement of attorneys’ and other fees and expenses)
reasonably incurred or suffered by the Executive in connection therewith. The
Companies agree to use their best efforts to maintain a directors’ and officers’
liability insurance policy covering the Executive during the Employment Period
and for at least four years thereafter to the extent available on commercially
reasonable terms.
ARTICLE
12
CERTAIN
ADDITIONAL PAYMENTS
SECTION
12.01. Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (including, without
limitation, the acceleration of any payment, award, distribution or benefit)
by
the Company or its Subsidiaries to or for the benefit of the Executive (whether
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Article 12) (a
“Payment”)
would
be subject to the excise tax imposed by Section 4999 of the Code or any
corresponding provisions of state or local tax law, or any interest or penalties
are incurred by the Executive with respect to such excise tax (such excise
tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the “Excise
Tax”),
then
the Executive shall be entitled to receive an additional payment (a
“Gross-Up
Payment”)
in an
amount such that after payment by the Executive of all taxes (including any
Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment
and
any interest or penalties imposed with respect to such taxes, the Executive
retains from the Gross-Up Payment an amount equal to the Excise Tax imposed
upon
the Payments. The payment of a Gross-Up Payment under this Section 12.01 shall
not be conditioned upon the Executive’s termination of employment.
Notwithstanding the foregoing provisions of this Section 12.01, if it shall
be
determined that the Executive is entitled to a Gross-Up Payment, but that the
portion of the Payments that would be treated as “parachute payments” under
Section 280G of the Code does not exceed the lesser of 110% of the Safe Harbor
Amount (as defined in the following sentence) or $200,000, then no Gross-Up
Payment shall be made to the Executive and the amounts payable under this
Agreement shall be reduced so that the Payments, in the aggregate, are reduced
to the Safe Harbor Amount. The
“Safe
Harbor Amount” is the greatest amount of payments in the nature of compensation
that are contingent on a Change in Control for purposes of Section 280G of
the
Code that could be paid to the Executive without giving rise to any Excise
Tax.
The reduction of the amounts payable hereunder, if applicable, shall be made
by
first reducing the cash payments under Section 5.03. For purposes of reducing
the payments to the Safe Harbor Amount, only amounts payable under this
Agreement (and no other Payments) shall be reduced. If the reduction of the
amounts payable under this Agreement would not result in a reduction of the
Payments to the Safe Harbor Amount, no amounts payable under this Agreement
shall be reduced pursuant to this Section 12.01.
-10-
SECTION
12.02. Subject
to the provisions of Section 12.03, all determinations required to be made
under
this Article 12, including the determination of whether a Gross-Up Payment
is
required and of the amount of any such Gross-up Payment, shall be made by
the
Company’s independent auditors or such other accounting firm agreed by the
parties hereto (the “Accounting
Firm”),
which
shall provide detailed supporting calculations to the Companies within 15
business days after the receipt of notice from the Companies that the Executive
has received a Payment, or such earlier time as is requested by the Companies,
provided that any determination that an Excise Tax is payable by the Executive
shall be made on the basis of substantial authority. The Companies will promptly
provide copies of such supporting calculations to the Executive on which
the
Executive may rely. The initial Gross-Up Payment, if any, as determined pursuant
to this Section 12.02, shall be paid to the Executive (or for the benefit
of the
Executive to the extent of the Companies’ withholding obligation with respect to
applicable taxes) no later than one day prior to the due date for the payment
of
any Excise Tax. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Companies with a written opinion that
substantial authority exists for the Executive not to report any Excise Tax
on
her
Federal
income tax return and, as a result, the Companies are not required to withhold
Excise Tax from payments to the Executive. The Companies will promptly provide
a
copy of any such opinion to the Executive on which the Executive may rely.
Any
determination by the Accounting Firm meeting the requirements of this Section
12.02 shall be binding upon the Companies and the Executive. As a result
of the
uncertainty in the application of Section 4999 of the Code at the time of
the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Companies should have
been made (“Underpayment”),
consistent with the calculations required to be made hereunder. In the event
that the Companies exhausts their remedies pursuant to Section 12.03 and
the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has
occurred, and any such Underpayment shall be promptly paid by the Companies
to
or for the benefit of the Executive. The fees and disbursements of the
Accounting Firm shall be paid by the Companies.
SECTION
12.03. The
Executive shall notify the Companies in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Companies
of a Gross-Up Payment. Such notification shall be given as soon as practicable
but not later than ten business days after the Executive receives written notice
of such claim and shall apprise the Companies of the nature of such claim and
the date on which such Claim is requested to be paid. The Executive shall not
pay such claim prior to the expiration of the 30-day period following the date
on which it gives such notice to the Companies (or such shorter period ending
on
the date that any payment of taxes with respect to such claim is due). If the
Companies notify the Executive in writing prior to the expiration of such period
that they desire to contest such claim, the Executive shall:
(i) give
the
Companies any information reasonably requested by the Companies relating to
such
claim,
(ii) take
such
action in connection with contesting such claim as the Companies shall
reasonably request in writing from time to time, including, without limitation,
accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Companies,
(iii) cooperate
with the Companies in good faith in order effectively to contest such claim,
and
(iv) permit
the Companies to participate in any proceedings relating to such claim;
-11-
provided,
however, that the Companies shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax, income tax or employment tax, including interest
and
penalties with respect thereto, imposed as a result of such representation
and
payment of costs and expenses. Without limitation on the foregoing provisions
of
this Section 12.03, the Companies shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with
the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest
the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Companies
shall
determine; provided, however, that if the Companies direct the Executive to
pay
such claim and xxx for a refund, the Companies shall advance the amount of
such
payment to the Executive on an interest-free basis and shall indemnify and
hold
the Executive harmless, on an after-tax basis, from any Excise Tax, income
tax
or employment tax, including interest or penalties with respect thereto, imposed
with respect to such advance (except that if such a loan would not be permitted
under applicable law, the Companies may not direct the Executive to pay the
claim and xxx for a refund); and further provided that any extension of the
statute of limitations relating to the payment of taxes for the taxable year
of
the Executive with respect to which such contested amount is claimed to be
due
is limited solely to such contested amount. Furthermore, the Companies’ control
of the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled to settle
or contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
SECTION
12.04. If,
after
the receipt by the Executive of an amount advanced by the Companies pursuant
to
Section 12.03, the Executive becomes entitled to receive any refund with respect
to such claim, the Executive shall (subject to the compliance by the Companies
with the requirements of Section 12.03) promptly pay to the Companies the amount
of such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Companies pursuant to Section 12.03, a determination is made
that the Executive shall not be entitled to any refund with respect to such
claim and the Companies do not notify the Executive in writing of their intent
to contest such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required
to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of the Gross-Up Payment required to be paid.
ARTICLE
13
MISCELLANEOUS
SECTION
13.01. Binding
Arbitration.
The
parties agree that, except as provided in Articles 9 and 10 above, any disputes
under this Agreement shall be settled exclusively by arbitration conducted
in
Winston-Salem, North Carolina. Except to the extent inconsistent with this
Agreement, such arbitration shall be conducted in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association then in effect at the time of the arbitration and otherwise in
accordance with principles which would be applied by a court of law or equity.
The arbitrator shall be acceptable to both the Companies and the Executive.
If
the parties cannot agree on an acceptable arbitrator, the dispute shall be
decided by a panel of three arbitrators, one appointed by each of the parties
and the third appointed by the other two arbitrators or if the two arbitrators
do not agree, appointed by the American Arbitration Association. The costs
of
arbitration incurred by the Executive (or her
beneficiaries) will be borne by the Companies (including, without limitation,
reasonable attorneys’ fees and other reasonable charges of counsel) (i) if the
arbitration occurs prior to a Change in Control, if the Executive prevails
on a
majority of the material issues in the dispute, and (ii) if the arbitration
occurs after a Change in Control, if the Executive prevails on at least one
material issue in the dispute. Judgment upon the final award rendered by such
arbitrator(s) may be entered in any court having jurisdiction thereof.
SECTION
13.02. Consent
to Amendments; No Waivers.
The
provisions of this Agreement may be amended or waived only by a written
agreement executed and delivered by the Companies and the Executive. No other
course of dealing between the parties to this Agreement or any delay in
exercising any rights hereunder will operate as a waiver of any rights of any
such parties.
-12-
SECTION
13.03. Successors
and Assigns.
All
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto will bind and inure to the benefit of the respective
successors,
assigns,
heirs,
executors and estates
of the
parties hereto whether so expressed or not, provided that the Executive may
not
assign her
rights
or delegate her
obligations under this Agreement without the written consent of the
Companies
(other
than to her estate or heirs)
and the
Company may assign this Agreement only to a successor to all or substantially
all of the assets of the Company.
SECTION
13.04. Severability.
Whenever
possible, each provision of this Agreement will be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
SECTION
13.05. Counterparts.
This
Agreement 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.
SECTION
13.06. Descriptive
Headings.
The
descriptive headings of this Agreement are inserted for convenience only and
do
not constitute a part of this Agreement.
SECTION
13.07. Notices.
All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement will be in writing and will be deemed
to have been given when delivered personally to the recipient, two business
days
after the date when sent to the recipient by reputable express courier service
(charges prepaid) or four business days after the date when mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications will be sent to the
Executive and to the Companies at the addresses set forth below.
|
If
to the Executive:
|
To
the last address delivered to the Companies by the Executive in the
manner
set forth herein.
|
|
If
to the Companies:
|
Krispy
Kreme Doughnuts, Inc.
Krispy
Kreme Doughnut Corporation
Suite
500
000
Xxxxxxxxx Xxxxxx
Xxxxxxx-Xxxxx,
XX 00000
Attn:
Senior Vice President-Human
Resources
|
or
to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
SECTION
13.08. Withholding.
The
Companies may withhold from any amounts payable under this Agreement such
federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
-13-
SECTION
13.09. No
Third-Party Beneficiary.
This
Agreement will not confer any rights or remedies upon any person other than
the
Companies, the Executive and their respective heirs, executors, successors
and
assigns.
SECTION
13.10. Entire
Agreement.
This
Agreement (including any
other
documents referred to herein) constitutes the entire agreement among the parties
and supersedes any prior understandings, agreements or representations by or
among the parties, written or oral, that may have related in any way to the
subject matter hereof.
SECTION
13.11. Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rule of strict construction
will
be applied against any party. Any reference to any federal, state, local or
foreign statute or law will be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise.
SECTION
13.12. Survival.
Sections
6.01, 7.01, 8.01 and Articles
5,
9, 11,
12 and 13 will survive and continue in full force in accordance with their
terms
notwithstanding any termination of the Employment Period, and the Agreement
shall otherwise remain in full force to the extent necessary to enforce any
rights and obligations arising hereunder during the Employment
Period.
SECTION
13.13. GOVERNING
LAW.
ALL
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS
AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW OF NORTH CAROLINA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION
13.14. Section
409A.
It is
intended that this Agreement will comply with Section 409A of the Code (and
any
regulations and guidelines issued thereunder) to the extent the Agreement is
subject thereto, and the Agreement shall be interpreted on a basis consistent
with such intent. If an amendment of the Agreement is necessary in order for
it
to comply with Section 409A, the parties hereto will negotiate in good faith
to
amend the Agreement in a manner that preserves the original intent of the
parties to the extent reasonably possible.
SECTION
13.15. Representations
of the Companies.
The
Companies represent and warrant that (i) the execution, delivery and performance
of this Agreement by the Companies has been fully and validly authorized by
all
necessary corporate action, (ii) the officer(s) signing this Agreement on behalf
of the Companies is duly authorized to do so, (iii) the execution, delivery
and
performance of this Agreement does not violate any applicable law, regulation,
order, judgment or decree or any agreement, plan or corporate governance
document to which the Companies are a party or by which they are bound, and
(iv)
upon execution and delivery of this Agreement by the parties hereto, it will
be
a valid and binding obligation of the Companies enforceable against the
Companies and
their
successors and assigns in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally.
-14-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first above written.
KRISPY
KREME DOUGHNUTS, INC.
By:
/s/
Xxxxx X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx
President
and Chief Executive Officer
KRISPY
KREME DOUGHNUT CORPORATION
By:
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Senior
Vice President of Human Resources
and
Organizational Development
EXECUTIVE
By:
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx
