AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDMENT
TO
AMENDMENT
TO EMPLOYMENT AGREEMENT (“Amendment”) dated as of December 15, 2008 (“Amendment
Effective Date”) 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 Xxxxx X. Xxxxxx (the
“Executive”).
WHEREAS,
the Companies and the Executive are parties to an Employment Agreement dated as
of February 27, 2008 (the “Agreement”);
WHEREAS,
the Companies and the Executive wish to amend the Agreement as set forth herein
in order to comply with Section 409A of the Internal Revenue Code of 1986, as
amended;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
Companies and the Executive hereby agree as follows:
1. The
following paragraph is added at the end of Section 13.14 of the
Agreement:
“With respect to any reimbursement or
in-kind benefit arrangements of the Companies and their subsidiaries that
constitute deferred compensation for purposes of Section 409A, except as
otherwise permitted by Section 409A, the following conditions shall be
applicable: (i) the amount eligible for reimbursement, or in-kind benefits
provided, under any such arrangement in one calendar year may not affect the
amount eligible for reimbursement, or in-kind benefits to be provided, under
such arrangement in any other calendar year (except that the health and dental
plans may impose a limit on the amount that may be reimbursed or paid),
(ii) any reimbursement must be made on or before the last day of the
calendar year following the calendar year in which the expense was incurred, and
(iii) the right to reimbursement or in-kind benefits is not subject to
liquidation or exchange for another benefit. Whenever a payment under
this Agreement specifies a payment period with reference to a number of days
(e.g., “payment
shall be made within thirty (30) days after termination of employment”), the
actual date of payment within the specified period shall be within the sole
discretion of the Companies. Whenever payments under this Agreement
are to be made in installments, each such installment shall be deemed to be a
separate payment for purposes of Section 409A. Any tax gross-up
payment under this Agreement shall be made to the Executive not later than the
end of the Executive’s taxable year next following his taxable year in which he
remits the related taxes.”
2. Except as
set forth herein, the Agreement shall continue in full force and effect in
accordance with its terms.
3. All
questions concerning the construction, validity and interpretation of this Amendment and the Agreement shall be construed and governed in
accordance with the laws of the state of North Carolina, without regard to
principles of conflict of laws.
4. 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.
-2-
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/ Xxxxxxx X.
Xxxxxx
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Printed
Name: Xxxxxxx X. Xxxxxx
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Title: SVP Human Resources
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KRISPY
KREME DOUGHNUTS, INC.
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By: /s/ Xxxxxxx X.
Xxxx
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Printed Name: Xxxxxxx X. Xxxx
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Title: Chief Financial Officer
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/s/ Xxxxx X.
Xxxxxx
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Xxxxx
X. Xxxxxx
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