EXHIBIT 10.33
KRISPY KREME DOUGHNUTS, INC.
2000 STOCK INCENTIVE PLAN
FORM OF
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made as of _______________, by
and between Krispy Kreme Doughnuts, Inc., a North Carolina
corporation having its principal office at 370 Knollwood Street,
Winston-Salem, North Carolina 27103 (the
“Corporation”), and ___________________
(“Employee”).
W I T N E S S E T H:
WHEREAS, the Board of Directors and shareholders
of the Corporation have approved the Krispy Kreme Doughnuts, Inc.
2000 Stock Incentive Plan (the “Plan”), for the
purposes and subject to the provisions set forth in the
Plan;
WHEREAS, pursuant to authority granted to it in
the Plan, the Compensation Committee of the Board of Directors of
the Corporation (the “Committee”) has, on behalf of the
Corporation, granted to Employee restricted shares of Common Stock
of Krispy Kreme Doughnuts, Inc., as set forth below; and
WHEREAS, this Agreement evidences the grant of
restricted stock under the Plan.
NOW, THEREFORE, in consideration of the
foregoing, of the mutual promises set forth below and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1.
Award of Restricted
Stock
This Agreement sets forth the terms of an award
to the Employee of ________restricted shares of the
Corporation’s Common Stock (the “Restricted
Stock”), subject to, and in accordance with, the
restrictions, terms and conditions set forth in this Agreement. The
grant date of this award of Restricted Stock is ______________
(“Grant Date”).
2.
Restrictions
If
Employee remains employed by the Corporation, Employee shall become
vested in the Restricted Stock in ____________equal installments
beginning on __________, and continuing on the next __________
anniversaries of the Grant Date (each such date shall be a
“Vesting Date”), all as set forth below:
|
|
Cumulative
Number
|
|
|
of
|
|
Date
|
Shares
Vested
|
On
each Vesting Date, Employee shall own the vested shares of
Restricted Stock free and clear of all restrictions imposed by this
Agreement. The Corporation shall deliver a certificate(s) (or other
evidence of ownership, such as book entry) for the vested shares of
Restricted Stock to Employee as soon as practical after each
Vesting Date. For purposes of this Agreement, employment with a
Subsidiary of the Corporation shall be considered employment with
the Corporation.
3.
Certificates
The Restricted Stock granted hereunder may be
evidenced in such manner as the Committee shall determine,
including, but not limited to tracking through book entry. If
certificates representing Restricted Stock are registered in the
name of the Employee, the Committee may require that such
certificates bear an appropriate legend (the “Restrictive
Legend”) referring to the terms, conditions and restrictions
applicable to such Restricted Stock, that the Corporation retain
physical possession of the certificates, and that the Employee
deliver a stock power to the Corporation, endorsed in blank,
relating to the Restricted Stock. Upon the vesting of the
Restricted Stock pursuant to the terms hereof and the satisfaction
of any withholding tax liability pursuant to Section 8 hereof, the
certificates evidencing such vested shares of Common Stock, not
bearing the Restrictive Legend, shall be delivered to the Employee
or other evidence of vesting of shares of Common Stock shall be
provided to the Employee, such as tracking through book
entry.
4.
Rights as a
Shareholder
Except as otherwise provided in this Agreement
and the Plan, Employee shall have all of the rights of a
shareholder of the Corporation with respect to the shares of
Restricted Stock, including the right to vote such shares. All
dividends declared and paid by the Corporation on shares of
Restricted Stock shall be paid in the form of Restricted Stock
having a Fair Market Value on the dividend payment date equal to
the amount of the cash dividend. Such shares of Restricted Stock
will vest at the same time as the shares of Restricted Stock in
respect of which they are issued and shall otherwise have terms
identical to the terms of such Restricted Stock.
5.
Effect of Termination of
Employment on Restricted Stock
Any unvested Restricted Stock shall be
automatically forfeited upon the Employee’s Termination of
Employment for any reason other than due to Employee’s death,
Retirement or Disability. In the event of a Termination of
Employment of the Employee due to his or her death, Retirement or
Disability, the Restricted Stock will become immediately vested in
full.
6.
Nontransferability
The Restricted Stock shall not be transferable
or assignable, other than by will or the laws of descent and
distribution, and any such purported transfer or assignment shall
be null and void without the express consent of the Committee.
Employee agrees to appropriate legends on the Restricted Stock in
order to reflect the vesting provisions set forth herein and to
reflect any restrictions required by applicable securities
laws.
7.
Change in
Control
In
the event of a “Change in Control,” the restrictions on
the Restricted Stock shall lapse and the Restricted Stock shall
become vested in full, provided that Employee has not incurred a
Termination of Employment prior to the date thereof. For purposes
hereof, “Change in Control” shall have the meaning set
forth in the Plan, except in the case of a transaction described in
clauses (1) or (3) of paragraph (b) of such definition, the
consummation of such a transaction, rather than the approval by
shareholders of the Corporation of such transaction or an agreement
to effect such a transaction, shall constitute a Change in
Control.
-2-
8.
Taxes and
Withholding
(a) Employee shall be responsible for all federal,
state and local income taxes payable with respect to this award of
Restricted Stock. Employee shall have the right to make such
elections under the Internal Revenue Code of 1986, as amended, as
are available in connection with this award of Restricted Stock.
The Corporation and Employee agree to report the value of the
Restricted Stock in a consistent manner for federal income tax
purposes. Employee acknowledges that he or she may incur
substantial tax liability as a result of the grant of Restricted
Stock to him or her upon the lapse of the restrictions
hereunder.
(b) The
Corporation shall have the right to retain and withhold from any
vesting of Restricted Stock the minimum amount of taxes required by
any government to be withheld or otherwise deducted and paid with
respect to such vesting. At its discretion, the Corporation may
require Employee to immediately reimburse the Corporation for any
such taxes required to be withheld and may withhold any
distribution in whole or in part until the Corporation is so
reimbursed. In lieu thereof, the Corporation shall have the right
to withhold from any other cash amounts due to Employee an amount
equal to such taxes required to be withheld or withhold and cancel
(in whole or in part) a number of shares of Restricted Stock having
a market value not less than the amount of such taxes. In addition,
Employee may elect to satisfy the withholding requirement, in whole
or in part, by having the Corporation withhold Shares with a Fair
Market Value equal to the minimum statutory tax required to be
withheld.
9.
Modification of
Agreement
This Agreement may be modified, amended,
suspended or terminated, and any terms or conditions may be waived,
but only by a written instrument executed by the parties
hereto.
10.
Severability
The provisions of the Agreement are severable
and if any one or more provisions are determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining
provisions, and any partially unenforceable provision to the extent
enforceable in any jurisdiction, shall nevertheless be binding and
enforceable.
11.
Notices
Any and all notices under this Agreement shall
be in writing, and sent by hand delivery or by certified or
registered mail (return receipt requested and first-class postage
prepaid), in the case of the Corporation, to its principal
executive offices to the attention of the Chief Financial Officer,
and, in the case of Employee, to Employee’s address as shown
on the Corporation’s records.
12.
Binding
Effect
(a) This
Agreement shall be binding upon and inure to the benefit of any
assignee or successor in interest to the Corporation, whether by
merger, consolidation or the sale of all or substantially all of
the Corporation’s assets.
-3-
(b) This
Agreement shall be binding upon and inure to the benefit of
Employee and his or her legal representative and any person to whom
the Restricted Stock may be transferred by will, the applicable
laws of descent and distribution, or otherwise in accordance with
the terms of the Plan.
13.
Agreement to be Bound by
Plan
Employee hereby acknowledges that Employee fully
understands his or her rights under the Plan, and that Employee
agrees to be bound by all the terms and provisions of the
Plan.
14.
Plan
Controls
The Restricted Stock and the terms and
conditions set forth herein are subject in all respects to the
terms and conditions of the Plan (which are incorporated herein by
reference). Except as otherwise expressly set forth herein, the
capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan. To the extent that any
conflict may exist between any term or provision of this Agreement
and any term or provision of the Plan, such term or provision of
the Plan shall control.
15.
Rights to Future Grants;
Compliance with Law
Nothing in this Agreement shall be construed as
constituting a commitment, guarantee, agreement or understanding of
any kind or nature that the Corporation, any Subsidiary or
affiliate shall continue to employ Employee, nor shall this
Agreement affect in any way the right of the Corporation, any
Subsidiary or affiliate to terminate the employment or other
service of Employee at any time and for any reason. By
Employee’s execution of this Agreement, Employee reaffirms
and acknowledges and agrees that Employee’s employment or
other service to the Corporation, any Subsidiary or affiliate is
“at will.” No change of Employee’s duties with
respect to the Corporation, any Subsidiary or affiliate shall
result in, or be deemed to be, a modification of any of the terms
of this Agreement. Employee acknowledges and agrees that the award
and acceptanc
