Exhibit 10.1
KRISPY KREME DOUGHNUTS, INC.
2000 STOCK INCENTIVE PLAN
(AMENDED AS OF JUNE 16, 2009)
TABLE OF
CONTENTS
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ARTICLE 1.
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ESTABLISHMENT, PURPOSE, AND DURATION
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1
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Establishment of the Plan
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1
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Purpose of the Plan
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1
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Duration of the Plan
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1
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ARTICLE 2.
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1
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ARTICLE 3.
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5
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The Committee
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5
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Authority of the Committee
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5
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Decisions Binding
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5
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Employees in Foreign Countries
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5
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No Option or SAR Repricing Without Shareholder
Approval
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5
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ARTICLE 4.
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SHARES SUBJECT TO THE PLAN
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6
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Number of Shares
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6
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Other Plan Limits
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6
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Nonexclusivity of the Plan
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6
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Adjustments in Authorized Shares
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6
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ARTICLE 5.
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ELIGIBILITY AND PARTICIPATION
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6
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ARTICLE 6.
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7
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Grant of Options
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7
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Agreement
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7
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Option Price
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7
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Duration of Options
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7
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Exercise of Options
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7
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Payment
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8
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Transferability
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8
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Shareholder Rights
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9
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ARTICLE 7.
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STOCK APPRECIATION RIGHTS
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9
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Grants of SARs
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9
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Duration of SARs
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9
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Exercise of SAR
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9
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Determination of Payment of Cash and/or Common
Stock Upon Exercise of SAR
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9
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Nontransferability
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10
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Shareholder Rights
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10
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ARTICLE 8.
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RESTRICTED STOCK; STOCK AWARDS
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10
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Grants
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10
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Restricted Period; Lapse of
Restrictions
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10
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Rights of Holder; Limitations Thereon
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11
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Delivery of Unrestricted Shares
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11
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Nonassignability of Restricted Stock
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12
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ARTICLE 9.
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12
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Award
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12
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Earning the Award
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12
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Payment
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12
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Shareholder Rights
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12
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ARTICLE 10.
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13
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ARTICLE 11.
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13
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ARTICLE 12.
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13
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Employment
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13
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Participation
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13
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ARTICLE 13.
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13
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Definition
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13
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ARTICLE 14.
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AMENDMENT, MODIFICATION AND
TERMINATION
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14
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Amendment, Modification and
Termination
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14
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Awards Previously Granted
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15
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Compliance With Code Section 162(m)
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15
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ARTICLE 15.
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15
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Tax Withholding
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15
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Share Withholding
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15
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ARTICLE 16.
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15
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ARTICLE 17.
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16
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ARTICLE 18.
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16
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Gender and Number
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16
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Severability
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16
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Requirements of Law
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16
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Regulatory Approvals and Listing
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16
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Securities Law Compliance
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16
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Governing Law
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17
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Section 409A
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17
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KRISPY KREME DOUGHNUTS, INC.
2000 STOCK INCENTIVE PLAN
ARTICLE 1.
ESTABLISHMENT, PURPOSE, AND DURATION
1.1 Establishment
of the Plan . Krispy Kreme Doughnuts, Inc., a North
Carolina corporation (hereinafter referred to as the
“Company”), hereby establishes a stock option and
incentive award plan known as the “Krispy Kreme Doughnuts,
Inc. 2000 Stock Incentive Plan” (the “Plan”), as
set forth in this document. The Plan permits the grant
of Incentive Stock Options, Nonqualified Stock Options, Restricted
Stock, Stock Awards, Performance Unit Awards and Stock Appreciation
Rights.
The Plan shall become effective on
July 1, 2000 (the “Effective Date”), having been
approved by the Board of Directors on June 6, 2000, and shall
remain in effect as provided in Section 1.3. This Plan
reflects all amendments and stock splits through and including June
16, 2009.
1.2 Purpose of the
Plan . The purposes of the Plan are to promote greater
stock ownership in the Company by Employees, Directors,
consultants, or other persons who perform services for the Company
and its Parent, Subsidiaries, and affiliates (the
“Participants”); to more closely link the personal
interests of Participants to those of the Company’s
shareholders; and to provide flexibility to the Company in its
ability to motivate, attract and retain the services of
Participants upon whose judgment, interest and special effort the
successful conduct of its operation largely depends.
1.3 Duration of the
Plan . The Plan shall commence on the Effective Date, and
shall remain in effect, subject to the right of the Board of
Directors to amend or terminate the Plan at any time pursuant to
Article 14, until the day prior to the twelfth (12th) anniversary
of the Effective Date.
Whenever used in the Plan, the
following terms shall have the meanings set forth below:
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“
Agreement ” means an agreement entered into by each
Participant and the Company, setting forth the terms and provisions
applicable to Awards granted to Participants under this
Plan.
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“
Award ” means, individually or collectively, a grant
under this Plan of Incentive Stock Options, Nonqualified Stock
Options, Restricted Stock, Stock Awards, Performance Unit Awards or
Stock Appreciation Rights.
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“
Beneficial Owner ” or “ Beneficial
Ownership ” shall have the meaning ascribed to such term
in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act.
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“
Board ” or “ Board of Directors ”
means the Board of Directors of the Company.
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“
Cause ” means: (i) with respect to the
Company or any Subsidiary which employs the Participant or for
which the Participant primarily performs services, the commission
by the Participant of an act of fraud, embezzlement, theft or
proven dishonesty, or any other illegal act or practice (whether or
not resulting in criminal prosecution or conviction), or any act or
practice which the Committee shall, in good faith, deem to have
resulted in the Participant’s becoming unbondable under the
Company’s or the Subsidiary’s fidelity bond; (ii) the
willful engaging by the Participant in misconduct which is deemed
by the Committee, in good faith, to be materially injurious to the
Company or any Subsidiary, monetarily or otherwise; or (iii) the
willful and continued failure or habitual neglect by the
Participant to perform his duties with the Company or the
Subsidiary substantially in accordance with the operating and
personnel policies and procedures of the Company or the Subsidiary
generally applicable to all their employees. For
purposes of this Plan, no act or failure to act by the Participant
shall be deemed to be “willful” unless done or omitted
to be done by the Participant not in good faith and without
reasonable belief that the Participant’s action or omission
was in the best interest of the Company and/or the
Subsidiary. Notwithstanding the foregoing, if the
Participant has entered into an employment agreement that is
binding as of the date of employment termination, and if such
employment agreement defines “Cause,” then the
definition of “Cause” in such agreement shall apply to
the Participant in this Plan. “Cause” under
either (i), (ii) or (iii) shall be determined by the
Committee.
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“
Code ” means the Internal Revenue Code of 1986, as
amended from time to time, or any successor act thereto.
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“
Committee ” means (i) the committee appointed by the
Board to administer the Plan with respect to grants of Awards, as
specified in Article 3; or (ii) in the absence of such appointment,
the Board itself.
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“
Common Stock ” means the common stock of the Company,
no par value per share.
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“
Company ” means Krispy Kreme Doughnuts, Inc., a North
Carolina corporation, or any successor thereto as provided in
Article 17.
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“
Corresponding SAR ” means an SAR that is granted in
relation to a particular Option and that can be exercised only upon
the surrender to the Company, unexercised, of that portion of the
Option to which the SAR relates.
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“
Director ” means any individual who is a member of the
Board of Directors of the Company.
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“Disability” shall mean a condition where the Participant
either (i) is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months; or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not
less than three (3) months, receiving income replacement benefits
for a period of not less than three (3) months under an accident
and health plan covering employees of the Company.
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“
Effective Date ” shall have the meaning ascribed to
such term in Section 1.1.
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“
Employee ” means any employee of the Company or any
Parent, Subsidiary, or affiliate of the
Company. Directors who are not otherwise employed by the
Company or a Parent, Subsidiary or affiliate of the Company are not
considered Employees under this Plan.
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“
Exchange Act ” means the Securities Exchange Act of
1934, as amended from time to time, or any successor act
thereto.
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“ Fair
Market Value ” shall be determined as follows:
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If, on the
relevant date, the Shares are traded on a national or regional
securities exchange or on The Nasdaq National Market System
(“Nasdaq”) and closing sale prices for the Shares are
customarily quoted, on the basis of the closing sale price on the
principal securities exchange on which the Shares may then be
traded or, if there is no such sale on the relevant date, then on
the last previous day on which a sale was reported;
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If, on the
relevant date, the Shares are not listed on any securities exchange
or traded on Nasdaq, but nevertheless are publicly traded and
reported on Nasdaq without closing sale prices for the Shares being
customarily quoted, on the basis of the mean between the closing
bid and asked quotations in such other over-the-counter market as
reported by Nasdaq; but, if there are no bid and asked quotations
in the over-the-counter market as reported by Nasdaq on that date,
then the mean between the closing bid and asked quotations in the
over-the-counter market as reported by Nasdaq on the immediately
preceding day such bid and asked prices were quoted; and
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If, on the
relevant date, the Shares are not publicly traded as described in
(i) or (ii), on the basis of the good faith determination of the
Committee.
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“
Incentive Stock Option ” or “ ISO ”
means an option to purchase Shares granted under Article 6 which is
designated as an Incentive Stock Option and is intended to meet the
requirements of Section 422 of the Code.
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Initial Value ” means, with respect to a Corresponding
SAR, the Option Price per share of the related Option, and with
respect to an SAR granted independently of an Option, the Fair
Market Value of one share of Common Stock on the date of
grant.
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“
Insider ” shall mean an Employee who is, on the
relevant date, an officer or a director, or a beneficial owner of
ten percent (10%) or more of any class of the Company’s
equity securities that is registered pursuant to Section 12 of the
Exchange Act or any successor provision, all as defined under
Section 16 of the Exchange Act.
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“
Named Executive Officer ” means a Participant who, as
of the date of vesting and/or payout of an Award is one of the
group of “covered employees,” as defined in the
regulations promulgated under Code Section 162(m), or any successor
statute.
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“
Nonqualified Stock Option ” or “ NQSO
” means an option to purchase Shares granted under Article 6,
and which is not intended or otherwise fails to meet the
requirements of Code Section 422.
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“
Option ” means an Incentive Stock Option or a
Nonqualified Stock Option.
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“
Option Price ” means the price at which a Share may be
purchased by a Participant pursuant to an Option, as determined by
the Committee.
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“
Parent ” means a “parent corporation,”
whether now or hereafter existing as defined in Section 424(e) of
the Code.
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“
Participant ” means an Employee, Director, consultant
or other person who performs services for the Company or a Parent,
Subsidiary, or affiliate of the Company, who has been granted an
Award under the Plan which is outstanding.
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“
Performance Unit Award ” means an Award, which, in
accordance with the terms of Article 9 and the other provisions of
the Plan and subject to an Agreement, will entitle the Participant,
or his estate or beneficiary in the event of the
Participant’s death, to receive cash, Common Stock or a
combination thereof.
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“
Person ” shall have the meaning ascribed to such term
in Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a “group” as defined in
Section 13(d) thereof.
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“
Plan ” means this Krispy Kreme Doughnuts, Inc. 2000
Stock Incentive Plan, including any amendments thereto.
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Restricted Stock ” means an Award of Common Stock (or
the right to receive a share of Common Stock in the future) granted
in accordance with the terms of Article 8 and the other provisions
of the Plan, and which is nontransferable and subject to a
substantial risk of forfeiture. Shares of Common Stock
shall cease to be Restricted Stock when, in accordance with the
terms hereof and the applicable Agreement, they become transferable
and free of substantial risk of forfeiture.
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“
Retirement ” shall mean retiring from employment with
the Company or any Subsidiary on or after attaining age sixty five
(65), or pursuant to a policy or agreement approved by the
Board.
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“
SAR ” means a stock appreciation right that entitles
the holder to receive, with respect to each share of Common Stock
encompassed by the exercise of such SAR, the amount determined by
the Committee and specified in an Agreement. In the
absence of such specification, the holder shall be entitled to
receive in cash, with respect to each share of Common Stock
encompassed by the exercise of such SAR, the excess of the Fair
Market Value on the date of exercise over the Initial
Value. References to “SARs” include both
Corresponding SARs and SARs granted independently of Options,
unless the context requires otherwise.
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“
Shares ” means the shares of Common Stock of the
Company (including any new, additional or different stock or
securities resulting from the changes described in Section
4.3).
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“
Stock Award ” means a grant of Shares under Article 8
that is not generally subject to restrictions and pursuant to which
a certificate for the Shares is transferred to the
Employee.
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“
Subsidiary ” means (i) in the case of an ISO, any
company during any period in which it is a “subsidiary
corporation” (as that term is defined in Code Section
424(f)), and (ii) in the case of all other Awards, in addition to a
“subsidiary corporation” as defined above, a
partnership, limited liability company, joint venture or other
entity in which the Company controls fifty percent (50%) or more of
the voting power or equity interests.
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ARTICLE 3.
ADMINISTRATION
3.1 The
Committee . The Plan shall be administered by the
Compensation Committee of the Board (or a subcommittee thereof), or
by any other committee or subcommittee appointed by the Board that
is granted authority to administer the Plan. The members
of the Committee shall be appointed from time to time by, and shall
serve at the discretion of, the Board of Directors. In
the absence of any such appointment, the Plan shall be administered
by the Board.
3.2 Authority of
the Committee . Subject to the provisions of the Plan,
the Committee shall have full and exclusive power to select the
Participants who shall participate in the Plan (who may change from
year to year); determine the size and types of Awards; determine
the terms and conditions of Awards in a manner consistent with the
Plan (including conditions on the exercisability of all or a part
of an Option or SAR, restrictions on transferability, vesting
provisions on Restricted Stock or Performance Unit Awards and the
duration of the Awards); construe and interpret the Plan and any
agreement or instrument entered into under the Plan; establish,
amend or waive rules and regulations for the Plan’s
administration; and (subject to the provisions of Article 14) amend
the terms and conditions of any outstanding Award to the extent
such terms and conditions are within the discretion of the
Committee as provided in the Plan, including accelerating the time
any Option or SAR may be exercised and establishing different terms
and conditions relating to the effect of the termination of
employment or other services to the Company. Further,
the Committee shall make all other determinations which may be
necessary or advisable in the Committee’s opinion for the
administration of the Plan. All expenses of
administering this Plan shall be borne by the Company.
3.3 Decisions Binding
. All determinations and decisions made by the Committee
pursuant to the provisions of the Plan and all related orders and
resolutions of the Board shall be final, conclusive and binding on
all Persons, including the Company, the shareholders, Participants
and their estates and beneficiaries.
3.4 Employees in
Foreign Countries . The Committee shall have the
authority to adopt such modifications, procedures, appendices and
subplans as may be necessary or desirable to comply with provisions
of the laws of foreign countries in which the Company or any
Subsidiary may operate to assure the viability of the benefits from
Awards granted to Employees employed in such countries and to meet
the objectives of the Plan.
3.5 No Option or
SAR Repricing Without Shareholder Approval . Except as
provided in Section 4.4 hereof relating to certain
antidilution adjustments, unless the approval of shareholders of
the Company is obtained, Options and SARs issued under the Plan
shall not be amended to lower their exercise price, Options and
SARs issued under the Plan will not be exchanged for other Options
or SARs with lower exercise prices, and no other action shall be
taken with respect to Options or SARs that would be treated as a
repricing under the rules of the principal stock exchange on which
the Shares are listed.
ARTICLE 4.
SHARES
SUBJECT TO THE PLAN
4.1 Number of
Shares . Subject to adjustments under Section 4.4 below,
the maximum number of Shares that may be delivered to participants
and their beneficiaries under the Plan shall be equal to the sum of
(i) 12,500,000; (ii) any Shares available for future awards under
the Company’s 1998 Stock Option Plan as of the effective date
of this Plan; and (iii) any Shares that are represented by awards
granted under any prior plan of the Company, which are forfeited,
expire or are canceled without the delivery of Shares or which
result in the forfeiture of Shares back to the
Company. In addition, any Shares delivered under the
Plan or any prior plan of the Company which are forfeited back to
the Company because of the failure to meet an award contingency or
condition shall again be available for delivery pursuant to new
awards granted under the Plan. Any Shares covered by an
award (or portion of an award) granted under the Plan or any prior
plan of the Company, which is forfeited or canceled, expires or is
settled in cash, including the settlement of tax withholding
obligations using Shares, shall be deemed not to have been
delivered for purposes of determining the maximum number of Shares
available for delivery under the Plan. Likewise, if any
stock option is exercised by tendering Shares, either actually or
by attestation, to the Company as full or partial payment for such
exercise under this Plan or any prior plan of the Company, only the
number of Shares issued net of the Shares tendered shall be deemed
delivered for purposes of determining the maximum number of Shares
available for delivery under the Plan. Further, Shares issued under
the Plan through the settlement, assumption or substitution of
outstanding awards or obligations to grant future awards as a
condition of or in connection with the Company acquiring another
entity shall not reduce the maximum number of Shares available for
delivery under the Plan.
4.2 Other Plan
Limits . Subject to adjustment under Section 4.4,
the maximum number of Shares that may be issued in connection with
ISOs shall be 3,000,000.
4.3
Nonexclusivity of the Plan . This Plan shall not
be construed as creating any limitation on the power of the Board
to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of options
and other awards otherwise than under the Plan, and such
arrangements may be either applicable generally or only in specific
cases.
4.4
Adjustments in Authorized Shares . In the event
of (i) any change in corporate capitalization, such as a stock
split, reverse stock split, or stock dividend; (ii) any corporate
transaction to which Code Section 424(a) applies, or (iii) such
other event which in the judgment of the Committee necessitates an
adjustment, such adjustment shall be made in the maximum number and
kind of Shares which may be delivered under the Plan as set forth
in Section 4.1 above, and in the number and kind of and/or price of
Shares subject to outstanding Awards granted under the Plan or
prior plan, to prevent dilution or enlargement of rights; provided,
however, that the number of Shares subject to any Award shall
always be a whole number and the Committee shall make such
adjustments as are necessary to insure Awards of whole
Shares. Except as expressly provided herein, the
issuance by the Company of Shares of stock of any class, or
securities convertible into Shares of stock of any class, shall not
affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Shares subject to an outstanding
Award.
ARTICLE 5.
ELIGIBILITY AND PARTICIPATION
Any Director or Employee, or any
independent contractor, adviser or consultant to the Company or a
Parent, Subsidiary, or affiliate of the Company shall be eligible
to receive an Award under the Plan. In determining the
individuals to whom such an Award shall be granted and the number
of Shares which may be granted pursuant to that Award, the
Committee shall take into account the duties of the respective
individual, his or her present and potential contributions to the
success of the Company or a Parent, Subsidiary, or affiliate of the
Company, and such other factors as the Committee shall deem
relevant in connection with accomplishing the purpose of the
Plan.
6.1 Grant of
Options . Subject to the terms and provisions of the
Plan, Options may be granted to Participants at any time and from
time to time as shall be determined by the
Committee. The Committee shall have sole discretion in
determining the number of Shares subject to Options granted to each
Participant. An Option may be granted with or without a
Corresponding SAR. No Participant may be granted ISOs
(under the Plan and all other incentive stock option plans of the
Company and any Parent or Subsidiary) which are first exercisable
in any calendar year for Common Stock having an aggregate Fair
Market Value (determined as of the date an Option is granted) that
exceeds One Hundred Thousand Dollars ($100,000). The
preceding annual limit shall not apply to NQSOs. The
Committee may grant a Participant ISOs, NQSOs or a combination
thereof, and may vary such Awards among
Participants. Subject to adjustments under the
principles set forth in Section 4.4 above, the maximum number of
Shares subject to Options which can be granted under the Plan
during any calendar year to any individual is 1,000,000 Shares;
provided, however, that to the extent that the maximum number of
Shares is not granted to a Participant in a calendar year, such
amount may be carried over into subsequent years.
6.2
Agreement
. Each Option grant shall be evidenced by an Agreement
that shall specify the Option Price, the duration of the Option,
the number of Shares to which the Option pertains and such other
provisions as the Committee shall determine. The Option
Agreement shall further specify whether the Award is intended to be
an ISO or an NQSO. Any portion of an Option that is not
designated as an ISO or otherwise fails or is not qualified as an
ISO (even if designated as an ISO) shall be a NQSO. If
the Option is granted in connection with a Corresponding SAR, the
Agreement shall also specify the terms that apply to the exercise
of the O
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