ex103-formofrsuawardagre






KRISPY KREME, INC.  2021 OMNIBUS INCENTIVE PLAN    RESTRICTED STOCK UNIT AGREEMENT  THIS RESTRICTED STOCK UNIT AGREEMENT (this “Restricted Stock Unit  Agreement”), dated as of ________________, 20___  (the “Effective Date”), is made by and between  KRISPY KREME, INC., a Delaware corporation (the “Company”), and _____________ (the  “Participant”).  Capitalized terms used but not defined herein shall have the respective meanings  ascribed to them in the Krispy Kreme, Inc. 2021 Omnibus Incentive Plan (as may be amended and/or  restated from time to time, the “Plan”).   1. Restricted Stock Unit Grant.  In accordance with the terms of the Plan and subject to this  Restricted Stock Unit Agreement, as of the Effective Date, the Participant is hereby granted  ________________ Restricted Stock Units. The Restricted Stock Units, and any Shares  acquired upon settlement thereof, are subject to the following terms and conditions and to the  provisions of the Plan, the terms of which are incorporated by reference herein.  2. Vesting Period.  (a) In General. The Restricted Stock Units shall become vested as follows: (i) sixty percent  (60%) of the Restricted Stock Units shall vest on the third anniversary of the Vesting  Commencement Date; (ii) twenty percent (20%) of the Restricted Stock Units shall  vest on the fourth anniversary of the Vesting Commencement Date; and (iii) twenty  percent (20%) of the Restricted Stock Units shall vest on the fifth anniversary of the  Vesting Commencement Date (each, a “Vesting Date”); provided that the Participant  remain in continuous employment with the Company or one of its Affiliates at all times  from the Effective Date through each applicable Vesting Date.  For purposes of this  Restricted Stock Unit Agreement, “Vesting Commencement Date” means _______,  20___.    (b) Death or Disability. If, before the Restricted Stock Units have otherwise become fully  vested in accordance with this Section 2, the Participant’s employment with the  Company and its Affiliates terminates by reason of death or Disability, then the  Restricted Stock Units shall immediately vest in full as of the date of such termination.  (c) Retirement. If, before the Restricted Stock Units have otherwise become fully vested  in accordance with this Section 2, the Participant’s employment with the Company and  its Affiliates terminates by reason of Retirement, then the Restricted Stock Units shall  (i) immediately become vested with respect to the Applicable Fraction of the Restricted  Stock Units less any previously vested Restricted Stock Units and (ii) be immediately  forfeited and canceled with respect to the remaining unvested Restricted Stock Units.   For purposes of applying the Applicable Fraction to the Restricted Stock Units under  this Section 2(c), the numerator shall be the number of full months elapsed between the  Vesting Commencement Date and the date of the Participant’s termination of  employment by reason of Retirement, and the denominator shall be the number of  months between the Vesting Commencement Date and the final Vesting Date.  For  purposes of this Restricted Stock Unit Agreement, “Retirement” means the  





 






 2    Participant’s termination of employment (other than a termination for Cause) after  attaining age sixty (60) and having completed at least five (5) years of continuous  employment with the Company or any of its Affiliates.    (d) Change in Control. In the event of a Change in Control, the Restricted Stock Units shall  be treated in accordance with Section 13 of the Plan.  3. Settlement of Restricted Stock Units.  The Shares related to such vested Restricted Stock  Units shall be delivered promptly (and in all events within 60 days) following the date such  Restricted Stock Units have become vested.  4. Rights as a Stockholder.  The Participant shall not have any rights of a stockholder as a result  of receiving a Restricted Stock Unit under this Restricted Stock Unit Agreement, including,  but not limited to, any right to vote the Shares to be issued hereunder, unless and until (and  only to the extent) the Restricted Stock Units have vested and, thereafter, the Shares have been  distributed pursuant to Section 3 hereof.  5. Withholding Taxes.  (a) As a condition to acceptance of any Shares in settlement of the Restricted Stock Units,  the Participant authorizes withholding from payroll and any other amounts payable to  such Participant, and otherwise agrees to make adequate provision for (including), any  sums required to be withheld (or permitted to be withheld in a manner that will not  cause adverse accounting consequences for the Company or an Affiliate) to satisfy any  U.S. federal, state, local and/or foreign tax or social insurance contribution withholding  obligations (the “Required Tax Payments”) of the Company or an Affiliate, if any,  that arise in connection with the Restricted Stock Units. If the Participant shall fail to  advance the Required Tax Payments after request by the Company, the Company may,  in its discretion, deduct any Required Tax Payments from any amount then or thereafter  payable by the Company to the Participant.   (b) The Participant may elect, subject to Company approval, to satisfy his or her obligation  to advance the Required Tax Payments with respect to the Restricted Stock Units by  any of the following means: (1) a cash payment to the Company pursuant to  Section 5(a) hereof, (2) delivery (either actual delivery or by attestation procedures  established by the Company) to the Company of previously owned whole Shares  (which the Participant has held for at least six (6) months prior to the delivery of such  Shares or which the Participant purchased on the open market and for which the  Participant has good title, free and clear of all liens and encumbrances) having a Fair  Market Value, determined as of the date the obligation to withhold or pay taxes first  arises in connection with the Restricted Stock Units (the “Tax Date”), equal to the  Required Tax Payments, (3) authorizing the Company to withhold from the Shares  otherwise to be delivered to the Participant pursuant to the Restricted Stock Units, a  number of whole Shares having a Fair Market Value, determined as of the Tax Date,  equal to the Required Tax Payments, (4) a cash payment following the Participant’s  sale of (or by a broker-dealer acceptable to the Company through which the Participant  has sold) a number of Shares with respect to which the Required Tax Payments have  arisen having a Fair Market Value determined as of the Tax Date equal to the Required  





 






 3    Tax Payments, or (5) any combination of (1), (2), (3) and (4) above. Any fraction of a  Share that would be required to satisfy such an obligation shall be disregarded and the  remaining amount due shall be paid in cash by the Participant.  No certificate  representing a Share shall be delivered until the Required Tax Payments have been  satisfied in full.  6. Transfers.  Restricted Stock Units may not be sold, transferred, pledged, assigned or otherwise  alienated or hypothecated, other than by will or by the laws of descent and distribution.  7. Governing Law.  This Restricted Stock Unit Agreement shall be governed by and construed  in accordance with the laws of the State of Delaware, without giving effect to the principles of  conflicts of law of such state.   8. Agreement Binding on Successors.  The terms of this Restricted Stock Unit Agreement shall  be binding upon the Participant and upon the Participant’s heirs, executors, administrators,  personal representatives, transferees, assignees and successors in interest, and upon the  Company and its successors and assignees, subject to the terms of the Plan.  9. No Assignment.  Notwithstanding anything to the contrary in this Restricted Stock Unit  Agreement, neither this Restricted Stock Unit Agreement nor any rights granted herein shall  be assignable by the Participant.  10. Nature of Grant.  This Restricted Stock Unit Agreement is intended to comply with the  applicable laws of any country or jurisdiction where Restricted Stock Units are granted under  the Plan, and all provisions hereof shall be construed in a manner to so comply.  In accepting  the Restricted Stock Units, the Participant acknowledges, understands and agrees that:  (a) the Plan is established voluntarily by the Company, it is discretionary in nature, and  may be amended, suspended or terminated by the Company at any time, to the extent  permitted by the Plan;  (b) the grant of the Restricted Stock Units is voluntary and occasional and does not create  any contractual or other right to receive future grants of Awards, or benefits in lieu of  Restricted Stock Units, even if Restricted Stock Units have been granted in the past;  (c) all decisions with respect to future Awards or other grants, if any, will be at the sole  discretion of the Company;  (d) the Participant is voluntarily participating in the Plan;  (e) the Restricted Stock Units and any Shares acquired under the Plan are not intended to  replace any pension rights or compensation;  (f) the Restricted Stock Units and any Shares acquired under the Plan and the income and  value of same, are not part of the Participant’s normal or expected compensation for  any purpose, including, without limitation, calculating any severance, resignation,  termination, redundancy, dismissal, end-of-service payments, bonuses, long-service  awards, pension or retirement or welfare benefits or similar payments;  





 






 4    (g) the future value of the Shares underlying the Restricted Stock Units is unknown,  indeterminable, and cannot be predicted with certainty;  (h) the value of such Shares may increase or decrease in value;  (i) to the extent permitted by applicable law, no claim or entitlement to compensation or  damages shall arise from the forfeiture of the Restricted Stock Units resulting from the  termination of the Participant’s employment with the Company or an Affiliate (for any  reason whatsoever, whether or not later found to be invalid or in breach of employment  laws in the jurisdiction where the Participant is providing continuous employment or  the terms of the Participant’s employment agreement, if any), and in consideration of  the grant of the Restricted Stock Units to which the Participant is otherwise not entitled,  the Participant irrevocably agrees never to institute any claim against the Company or  an Affiliate, waive the Participant’s ability, if any, to bring any such claim, and release  the Company or an Affiliate from any such claim; if, notwithstanding the foregoing,  any such claim is allowed by a court of competent jurisdiction, then, by participating  in the Plan, the Participant shall be deemed irrevocably to have agreed not to pursue  such claim and agree to execute any and all documents necessary to request dismissal  or withdrawal of such claim;  (j) for purposes of the Restricted Stock Units, the Participant’s employment will be  considered terminated as of the date the Participant is no longer actively providing  services to the Company or an Affiliate (regardless of the reason for such termination  and whether or not later found to be invalid or in breach of employment laws in the  jurisdiction where the Participant is providing employment or service or the terms of  the Participant’s employment agreement, if any), and unless otherwise expressly  provided in this Restricted Stock Unit Agreement or determined by the Company, the  Participant’s right to vest in the Restricted Stock Units will terminate as of such date  and will not be extended by any notice period (e.g., the Participant’s period of  employment would not include any contractual notice period or any period of “garden  leave” or similar period mandated under employment laws in the jurisdiction where the  Participant is employed or the terms of the Participant’s employment agreement, if  any);  (k) unless otherwise provided in the Plan or by the Company in its discretion, the Restricted  Stock Units and the benefits evidenced by this Restricted Stock Unit Agreement do not  create any entitlement to have the Restricted Stock Units or any such benefits  transferred to, or assumed by, another company nor to be exchanged, cashed out or  substituted for, in connection with any corporate transaction affecting the Shares; and  (l) the Participant acknowledges and agrees that neither the Company nor an Affiliate shall  be liable for any foreign exchange rate fluctuation between the Participant’s local  currency and the United States Dollar that may affect the value of the Restricted Stock  Units or of any amounts due to the Participant upon settlement of the Restricted Stock  Units.  





 






 5    11. DATA PRIVACY. The Participant hereby explicitly and unambiguously consents to the  collection, use and transfer, in electronic or other form, of the Participant’s personal data  as described in this Restricted Stock Unit Agreement and any other grant materials by and  among, as applicable, the Company and any Affiliate for the exclusive purpose of  implementing, administering and managing participation in the Plan. The Participant  understands that the Company and any Affiliate may hold certain personal information  about the Participant, including, but not limited to, the Participant’s name, home address  and telephone number, date of birth, social insurance number or other identification  number, salary, nationality, job title, any shares of stock or directorships held in the  Company, details of all Awards or any other entitlement to Shares awarded, canceled,  exercised, vested, unvested or outstanding in the Participant’s favor (“Data”), for the  exclusive purpose of implementing, administering and managing the Plan.  The Participant  understands that Data will be transferred to a third party stock plan service provider as may  be selected by the Company in the future, which is assisting the Company with the  implementation, administration and management of the Plan. The Participant understands  that the recipients of the Data may be located in the United States or elsewhere, and that the  recipient’s country (e.g., the United States) may have different data privacy laws with a lower  level of protection than the Participant’s country. The Participant understands that he or  she may request a list with the names and addresses of any potential recipients of the Data  by contacting his or her local human resources representative. The Participant authorizes  the Company, and any other  possible recipients which may assist the Company (presently  or in the future) with implementing, administering and managing the Plan to receive,  possess, use, retain and transfer the Data, in electronic or other form, for the sole purposes  of implementing, administering and managing the Participant’s participation in the Plan.  The Participant understands that Data will be held only as long as is necessary to implement,  administer and manage the Participant’s participation in the Plan.  The Participant  understands that he or she may, at any time, view Data, request additional information about  the storage and processing of Data, require any necessary amendments to Data or refuse or  withdraw the consents herein, in any case without cost, by contacting in writing his or her  local human resources representative. Further, the Participant understands that he or she  is providing the consents herein on a purely voluntary basis. If the Participant does not  consent, or if the Participant later seeks to revoke his or her consent, the Participant’s  continuous employment and career with the Company or an Affiliate will not be adversely  affected; the only adverse consequence of refusing or withdrawing consent is that the  Company would not be able to grant the Participant restricted stock units or other equity  awards or administer or maintain such awards. Therefore, the Participant understands that  refusing or withdrawing consent may affect his or her ability to participate in the Plan. For  more information on the consequences of the Participant’s refusal to consent or withdrawal  of consent, the Participant understands that he or she may contact his or her local human  resources representative.  12. Necessary Acts.  The Participant hereby agrees to perform all acts, and to execute and deliver  any documents that may be reasonably necessary to carry out the provisions of this Restricted  Stock Unit Agreement, including but not limited to all acts and documents related to  compliance with federal and/or state securities and/or tax laws.  





 






 6    13. Severability.  Should any provision of this Restricted Stock Unit Agreement be held by a court  of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding  shall not affect the validity of the remainder of this Restricted Stock Unit Agreement, the  balance of which shall continue to be binding upon the parties hereto with any such  modification (if any) to become a part hereof and treated as though contained in this original  Restricted Stock Unit Agreement.  Moreover, if one or more of the provisions contained in this  Restricted Stock Unit Agreement shall for any reason be held to be excessively broad as to  scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such  unenforceable provision, such provision or provisions shall be construed by the appropriate  judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent  compatible with the applicable law as it shall then appear, and such determination by such  judicial body shall not affect the enforceability of such provisions or provisions in any other  jurisdiction.  14. Entire Agreement.  This Restricted Stock Unit Agreement and the Plan contain the entire  agreement and understanding among the parties as to the subject matter hereof, and supersede  any other agreements or representations, oral or otherwise, express or implied, with respect to  the subject matter hereof.  15. Headings.  Headings are used solely for the convenience of the parties and shall not be deemed  to be a limitation upon or descriptive of the contents of any such Section.  16. Counterparts; Electronic Signature.  This Restricted Stock Unit Agreement may be  executed in any number of counterparts, each of which shall be deemed to be an original and  all of which together shall be deemed to be one and the same instrument.  The Participant’s  electronic signature of this Restricted Stock Unit Agreement shall have the same validity and  effect as a signature affixed by the Participant’s hand.  17. Amendment.  No amendment or modification hereof shall be valid unless it shall be in writing  and signed by all parties hereto.  18. Set-Off.  The Participant hereby acknowledges and agrees, without limiting the rights of the  Company or any Affiliate thereof otherwise available at law or in equity, that, to the extent  permitted by law, any amount due to the Participant under this Restricted Stock Unit  Agreement may be reduced by, and set-off against, any or all amounts or other consideration  payable by the Participant to the Company or any of its Affiliates under any other agreement  or arrangement between the Participant and the Company or any of its Affiliates; provided that  any such set-off does not result in a penalty under Section 409A of the Code.   19. Code Section 280G.    (a) Notwithstanding anything to the contrary contained in this Restricted Stock Unit  Agreement, to the extent that, upon a Change in Control, any of the payments and  benefits provided for under the Plan, any Award Agreement or any other agreement or  arrangement between the Company or any of its Affiliates and the Participant  (collectively, the “Payments”) would constitute a “parachute payment” within the  meaning of Section 280G of the Code (a “Parachute Payment”), then, if and solely to  the extent that reducing such Payments would result in the Participant receiving a  





 






 7    greater amount, on an after-tax basis, taking into account any excise tax and all  applicable income, employment and other taxes payable on such amounts, the  Payments shall be reduced to the amount that would result in no portion of the  Payments being treated as an excess parachute payment pursuant to section 280G of  the Code.  (b) Any reduction in the amount of compensation or benefits effected pursuant to this  Section 19 shall first come, in order and, in each case, solely to the extent necessary,  from any cash severance benefits payable to the Participant, then from any other  payments that are treated in their entirety as Parachute Payments and then from any  other Parachute Payments payable to the Participant with the later possible payment or  vesting date being reduced or eliminated before a payment or benefit with an earlier  payment or vesting date; provided that if the foregoing order of reduction or elimination  would violate Section 409A of the Code, then the reduction shall be made pro rata  among the payments or benefits otherwise due or payable to the Participant.  20. Code Section 409A; Reformation.  (a) The intent of the parties is that the payments and benefits under this Restricted Stock  Unit Agreement comply with Section 409A of the Code (“Section 409A”), to the extent  subject thereto, and accordingly, to the maximum extent permitted, this Restricted  Stock Unit Agreement shall be interpreted to be in compliance therewith or exempt  therefrom.  Without limiting the foregoing and notwithstanding anything contained  herein to the contrary, to the extent required in order to avoid accelerated taxation  and/or tax penalties under Section 409A, amounts that would otherwise be payable and  benefits that would otherwise be provided pursuant to this Restricted Stock Unit  Agreement or any other arrangement between the Participant and the Company during  the six (6) month period immediately following the Participant’s separation from  service shall instead be paid on the first business day after the date that is six (6) months  following the Participant’s separation from service (or, if earlier, the Participant’s date  of death).  All payments under this Restricted Stock Unit Agreement shall be  considered to be separate payments for purposes of Section 409A.  The Company  makes no representation that any or all of the payments described in this Restricted  Stock Unit Agreement will be exempt from or comply with Section 409A and makes  no undertaking to preclude Section 409A from applying to any such payment.  The  Participant shall be solely responsible for the payment of any taxes and penalties  incurred under Section 409A.  (b) If any provision of this Restricted Stock Unit Agreement or the Plan shall be invalid or  unenforceable, in whole or in part, or as applied to any circumstance, under the laws of  any jurisdiction that may govern for such purpose, or if any provision of this Restricted  Stock Unit Agreement or the Plan needs to be interpreted to comply with the  requirements of Section 409A, then such provision shall be deemed to be modified or  restricted, or so interpreted, to the extent and in the manner necessary to render the  same valid and enforceable, or to the extent and in the manner necessary to be  interpreted in compliance with such requirements of the Code, either generally or as  applied to such circumstance, or shall be deemed excised from this Restricted Stock  Unit Agreement or the Plan, as the case may require, and this Restricted Stock Unit  





 






 8    Agreement or the Plan shall be construed and enforced to the maximum extent  permitted by law as if such provision had been originally incorporated herein as so  modified or restricted, or as if such provision had not been originally incorporated  herein, as the case may be.   [remainder of page intentionally left]      00027474.docx 





 






  ELECTRONIC ACCEPTANCE    By the Participant’s electronic acceptance hereof, the Participant and the Company agree  that this Award is granted and governed by the terms and conditions of the Plan and this Restricted  Stock Unit Agreement.    By the Participant’s electronic acceptance hereof, the Participant agrees that in lieu of  receiving documents in paper format, the Participant accepts the electronic delivery of any  documents by the Company, or any third party involved in administering the Plan that the  Company may designate, may deliver in connection with this Award (including the Plan, this  Restricted Stock Unit Agreement, account statements, or other communications or information)  whether via the Company’s intranet or the internet site of such third party or via email or such  other means of electronic delivery specified by the Company. The Participant hereby consents to  receive such documents by electronic delivery and agrees to participate in the Plan through an on- line or electronic system established and maintained by the Company or any third party involved  in administering the Plan that the Company may designate.        00027474.docx