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EXHIBIT 10.26
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement"), made as of
the __th day of ________, 1993 by and between KRISPY KREME DOUGHNUT CORPORATION
(the "Company") and __________ (the "Participant").
For valuable consideration, receipt of which is acknowledged, the
parties agree as follows:
1. Purchase of Shares. The Participant subscribes for and, upon
acceptance by the Company, shall purchase, subject to the terms and conditions
set forth in this Agreement, ___ shares (the "Shares") of common stock ("common
stock"), $10.00 par value, of the Company at a purchase price of $10.00 per
share. The aggregate purchase price of the Shares shall be paid by the
Participant by check, payable to the order of the Company, or such other method
as may be acceptable to the Company. Upon the Company's receipt of payment for
the Shares, the Company shall issue to the Participant one or more certificates
in the name of the Participant for that number of Shares purchased by the
Participant. The Participant agrees that the Shares shall
(a) be subject to the Repurchase Option set forth in Section 2 of
this Agreement and the restrictions on transfer set forth in
Section 4 of this Agreement;
(b) be considered issued when they are no longer subject to the
Repurchase Option (but shall not be considered issued so long
as they are subject to the Repurchase Option); and
(c) shall not be entitled to vote or receive dividends or other
distributions on common stock while subject to the Repurchase
Option.
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2. Repurchase Option.
(a) If the Participant ceases to be employed by the Company or
ceases to be a member of the board of directors (as is
applicable) by the Company for any reason other than death or
disability prior to any of the dates set forth on Schedule A,
the Company shall have the right and Option (the "Repurchase
Option") to Purchase any or all of the Shares subject to the
Repurchase Option prior to such date as more particularly set
forth on Schedule A from the Participant at the same price as
the Participant paid for the Shares.
(b) For Purposes of this Agreement, employment with the Company
shall include employment with a parent or subsidiary of the
Company.
3. Exercise of Repurchase Option and Closing.
(a) Upon the termination of the employment of the Participant or
the cessation of his directorship [as referred to in
subsection 2 (a) above], the Repurchase Option shall be
deemed to be automatically exercised by the Company unless
the Company delivers or mails written notice of nonelection of
exercise of the Repurchase Option within 30 days thereafter in
accordance with section 14.
(b) Unless the Company gives such written notice of nonelection
within 30 days after the termination of the employment of the
Participant or the cessation of his directorship [as referred
to in subsection 2 (a) above], the Participant shall tender to
the Company at its principal offices the certificate or
certificates representing such number of Shares that the
Company has elected to purchase, duly endorsed in blank by the
Participant or with duly endorsed stock powers attached, all
in form suitable for the transfer
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of the Shares of the Company. Upon its receipt of these
Shares, the Company shall deliver or mail to the Participant
a check in the amount of the aggregate Option Price.
(c) After the date(s) set forth in Schedule A with respect to the
number of Shares set opposite such date or after such Shares
are otherwise not subject to the Repurchase Option pursuant
to subsection 3 (c) above, such Shares shall then be subject
to all of the terms and provisions of the Stock Purchase
Agreement by and between the Company and its shareholders
dated July 1, 1984 (the "Stock Purchase Agreement") and all
the restrictions on transfer set forth therein as if the
Participant and the Company had executed such agreement. The
termination of such Participant's employment or directorship
shall be deemed to constitute written notice of a proposed
transfer, disposition or sale thereof under subsection 2 (a)
of such Stock Purchase Agreement.
(d) The purchase price for such Shares may be payable, at the
discretion of the Company, in cancellation of all or a portion
of any outstanding indebtedness of the Participant to the
Company, or in cash (by check), or both.
(e) If, at any time, prior to the exercise of the Repurchase
Option under sub section 3 (a) above, the common stock of the
Company is acquired through merger, acquisitions
consolidation, purchase, tender offer or otherwise (the
"Acquisition"), the Participant shall be paid by the Company
a sum of money determined by multiplying the cash price per
share (or monetary equivalent thereof) received by the holders
of the common stock times the number of shares then subject to
the Repurchase Option. Such payment shall be made upon the
Closing of the Acquisition.
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4. Restrictions on Transfer.
(a) Except as otherwise provided in subsection 4(b), the
Participant shall not, during the term of the Repurchase
Option, sell, assign, transfer, pledge, hypothecate, or
otherwise dispose of, by operation of law or otherwise
(collectively "transfer"), any of the Shares, or any interest
therein, unless the Shares are no longer subject to the
Repurchase Option.
(b) Notwithstanding the foregoing, the Participant may transfer
Shares to or for the benefit of any spouse, child or
grandchild, or to a trust for their benefit, provided that
those Shares shall remain subject to this Agreement, including
without limitation the restrictions on transfer set forth in
this Section 4 and the Repurchase Option, and the permitted
transferee shall, as a condition to the transfer, deliver to
the Company a written instruction confirming that the
transferee shall be bound by all of the terms and conditions
of this Agreement.
5. Effect of Prohibited Transfer. The Company shall not be required:
(a) To transfer on its books any of the Shares that shall have
been sold or transferred in violation of any of the provisions
set forth in this Agreement; or
(b) To treat as owner of those Shares or to pay dividend to any
transferee to whom any of those Shares shall have been sold or
transferred in violation of any of the provisions set forth in
this Agreement.
6. Restricted Legend. All certificates representing Shares shall have
affixed thereto legends in substantially the following form, in addition to any
other legends that may be required under federal or state securities laws:
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(a) "The shares of stock represented by this certificate are
subject to restrictions on transfer and an option to purchase
set forth in a Restricted Stock Purchase Agreement between the
corporation and the registered owner of this certificate (or
his predecessor in interest). This Agreement is available for
inspection without charge at the office of the Secretary of
the Corporation"; and
(b) The same legend as required by the Stock Purchase Agreement.
7. Investment Representations. The Participant represents, warrants,
and covenants as follows:
(a) The Participant is purchasing the Shares for his own account
for investment only, and not with a view to, or for sale in
connection with, any distribution of the Shares in violation
of the Securities Act of 1933 (the "Securities Act"), or any
rule or regulation under the Securities Act.
(b) He has had an opportunity he deems adequate to obtain from
representatives of the Company the information necessary to
permit him to evaluate the merits and risks of his investment
in the Company.
(c) He has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved
in the purchase of the Shares and to make an informed
investment decision with respect to that purchase.
(d) He can afford a complete loss of the value of the Shares and
is able to bear the economic risk of holding the Shares for an
indefinite period.
(e) He understands that:
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(i) The Shares cannot be sold, transferred, or otherwise
disposed of unless they are subsequently registered
under the Securities Act or an exemption from
registration is then available; and
(ii) The Company has no obligation or current intention to
register the Shares under the Securities Act.
(f) A legend substantially in the following form will be placed on
the certificate representing the Shares:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be sold, transferred or otherwise disposed of in the
absence of an effective registration statement under the Act
or an opinion of counsel satisfactory to the corporation to
the effect that registration is not required."
8. Adjustments. If from time to time during the term of the Repurchase
Option, there is any stock split, stock dividend, stock distribution, or other
reclassification of the common stock of the Company, or any merger,
consolidation, or sale of substantially all of the assets of the Company, any
and all new, substituted, or additional securities to which the Participant is
entitled by reason of his ownership of the Shares shall be subject immediately
to all of the terms and conditions of this Agreement (and be included as
"Shares"), and other provisions of this Agreement in the same manner and to the
same extent as the Shares, and the option price shall be adjusted appropriately.
9. Withholding Taxes.
(a) The Participant acknowledges and agrees that the Company has
the right to deduct from payments of any kind otherwise due to
the Participant any
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federal, state or local taxes of any kind required by law to
be withheld with respect to the purchase of the Shares by the
Participant.
(b) If the Participant elects, in accordance with Section 83(b) of
the Internal Revenue Code of 1954, as amended, to recognize
ordinary income in the year of acquisition of the Shares, the
Company will require at the time of that election an
additional payment for withholding tax purposes based on the
difference, if any, between the purchase price for the Shares
and the fair market value of the Shares as of the day
immediately preceding the date of the purchase of the Shares
by the Employee.
10. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, and each other provision of this Agreement shall
be severable and enforceable to the extent permitted by law.
11. Waiver. Any provision contained in this Agreement may be waived,
either generally or in any particular instance, by the Board of Directors of the
Company.
12. Binding Effect. This Agreement shall be binding upon, and inure to
the benefit of, the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors, and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
13. No Rights to Employment. Nothing contained in this Agreement shall
be construed as giving the Participant any right to be retained, in any
position, as an employee and/or director of the Company for any definite period
of time.
14. Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or upon deposit in
the United States Post
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Office, by registered or certified mail, postage prepaid, addressed to the other
party at the address shown beneath his or its respective signature to this
Agreement, or at such other address or addresses as either party shall designate
to the other in accordance with this Section 14.
15. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine, or neuter
forms. The singular form of nouns and pronouns shall include the plural, and the
plural form of nouns and pronouns shall include the singular.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings
relating to the subject matter of this Agreement.
17. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Participant.
18. Governing Law. This Agreement shall be construed, interpreted, and
enforced in accordance with the laws of North Carolina.
IN WITNESS WHEREOF, the Participant has executed this Agreement as of
the day and year first above written and the Company has caused it to be
executed by one of its duly authorized officers.
COMPANY
KRISPY KREME DOUGHNUT CORPORATION
By: _________________________
Xxxxx X. Xxxxxxxxx, President
X X Xxx 00
Xxxxxxx-Xxxxx, XX 00000-0000
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PARTICIPANT
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