Consulting Agreement - Krispy Kreme Doughnuts Inc. and Scott A. Livengood
Consulting Agreement
This Consulting Agreement (the "Agreement") is made and entered into,
effective January 18, 2005, by and between Krispy Kreme Doughnuts, Inc. (the
"Company") and Scott A. Livengood (the "Consultant").
Now therefore, in consideration of the mutual promises and covenants herein
contained, the parties hereto agree as follows.
1. Retirement. The Consultant has, simultaneously with the execution and
delivery hereof, terminated his employment with the Krispy Kreme Doughnut
Corporation ("KKDC") by reason of Retirement in accordance with Section 6(c) and
7(a) of the Employment Agreement between the Consultant and KKDC dated August
10, 1999 (the "Employment Agreement").
2. Term. The term of the Consulting Agreement will begin on the date set
forth above and will end on the six month anniversary thereof, subject to an
automatic extension of the term for an additional period of six months unless
either party gives written notice to the other party at least 30 days prior to
the end of the initial six month term that such term will not be extended.
3. Consulting and Cooperation Obligation. During the term of this
Agreement, the Consultant will consult with the Company as reasonably requested
by the Company for up to 40 hours per week. Except when specifically requested
by the Company, the consulting services are not expected to be performed on the
Company's premises. The Consultant will also agree to cooperate with the Company
in the transition of management of the Company and in connection with any
claims, investigations or lawsuits concerning the Company or its affiliates and
in the Company's relations with its franchisees, vendors, lenders and
shareholders. Such cooperation shall not, however, require the Consultant to
forfeit or jeopardize unreasonably his own legal rights and interests. Where the
Company has received the advice of counsel that it is permissible and in the
best interest of the Company, the Company agrees to reasonably cooperate in
connection with the Consultant's defense of claims or lawsuits relating to his
prior employment by the Company and to provide personal tax and other
employment-related information relating to the Consultant's prior employment.
4. Fees. During the term of this Agreement, the Consultant will receive
consulting fees of $45,833.34 per month, paid on a semi-monthly basis in
arrears.
5. Employee Benefits. If the Consultant makes a timely election of COBRA
coverage, the Company will pay the cost of the Consultant's COBRA medical
coverage for the Consultant and his dependents during the term of this
Agreement. The Company will also pay the cost of one executive physical exam for
each of the Consultant and his spouse consistent with the Company's procedures.
The Consultant will not be an employee of the Company and, as
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such, will not be eligible to participate in any of the employee benefit plans
of the Company or its affiliates.
6. Reimbursement of Expenses. During the term of this Agreement, the
Consultant will be entitled to reimbursement for the reasonable and necessary
out-of-pocket expenses incurred by him in performing the consulting services
specifically requested by the Company hereunder upon presentation of such
documentation thereof as the Company may reasonably require.
7. Support Services. During the term of this Agreement, the Company will
provide the Consultant with administrative and information technology support
provided by Company personnel which is reasonably necessary in order for the
Consultant to provide the consulting services specifically requested by the
Company hereunder, and during the term the Company will also provide the
Consultant with a personal computer, a fax/copy machine and a computer printer.
8. Attorneys' Fees. The Company will pay the reasonable fees and
disbursements of Davis & Harwell, P.A. incurred by the Consultant in negotiating
this Agreement. Such amounts shall be paid upon presentation of documentation of
such fees and disbursements which is reasonably acceptable to the Company.
9. Noncompete. During the term of this Agreement and for one year
thereafter, the Consultant will not, directly or indirectly, personally or with
other employees, agents or otherwise, or on behalf of any other person, firm, or
corporation, engage in the business of making and selling doughnuts and
complementary products (a) within a 100 mile radius of any place of business of
the Company or its affiliates (including franchised operations) or of any place
where the Company or its affiliates (or one of its franchised operations) have
done business since August 10, 1999, (b) in any county where the Company or its
affiliates are doing business or have done business since August 10, 1999, or
(c) in any state where the Company or its affiliates are doing business or have
done business since August 10, 1999. Notwithstanding the above, ownership by the
Consultant of an interest in any licensed franchisee of the Company shall not be
deemed to be in violation of this Section 9. In the event of an actual or
threatened breach of this provision, the Company shall be entitled to an
injunction restraining the Consultant from such action and the Company shall not
be prohibited from obtaining such equitable relief or from pursuing any other
available remedies for such breach or threatened breach, including recovery of
damages from the Consultant.
10. Confidential Information. The Consultant will not disclose or use at
any time during or after the term of this Agreement any Confidential Information
of which the Consultant is or becomes aware, whether or not such information is
developed by him. Under all circumstances and at all times, the Consultant will
take all appropriate steps to safeguard Confidential Information in his
possession and to protect it against disclosure, misuse, espionage, loss and
theft. For purposes hereof, "Confidential Information" means information that is
not generally known to the public and that was or is used, developed or obtained
by the Company or its affiliates or franchisees in connection with their
business and which constitutes trade secrets or
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other information which the Company has attempted to protect. It shall not
include information (a) required to be disclosed by court or administrative
order (provided, however, that the Consultant agrees, to the extent reasonable
and practical and where not inconsistent with a court order or law, to inform
the Company of any such disclosure prior to or as soon thereafter as it is
practical to do so); (b) lawfully obtainable from other sources or which is in
the public domain through no fault of the Consultant; or (c) the disclosure of
which is consented to in writing by the Company.
11. Return of Property. On the date hereof, the Consultant will deliver to
the Company all property of the Company and its affiliates, including the
Consultant's computers and all copies of computer files, documents, books and
records of the Company and its affiliates or franchisees in his possession or
within his control and also including all copies and embodiments, in whatever
form or medium, of all Confidential Information or intellectual property of the
Company and its affiliates or franchisees in the Consultant's possession or
within his control (including written records, notes, photographs, manuals,
notebooks, documentation, program listings, flow charts, magnetic media, disks,
diskettes, tapes and all other materials containing any such Confidential
Information or intellectual property), irrespective of the location or form of
such material and, if requested by the Company, will provide the Company with
written confirmation that to the best of his knowledge all such materials have
been delivered to the Company. The Consultant may remove from the Company's
premises his personal effects owned by him.
12. Equitable Relief. The Consultant acknowledges that (a) the covenants
contained herein are reasonable, (b) the Consultant's services are unique, and
(c) a breach or threatened breach by him of any of his covenants and agreements
with the Company contained in Section 9 or 10 could cause irreparable harm to
the Company for which it would have no adequate remedy at law. Accordingly, and
in addition to any remedies which the Company may have at law, in the event of
an actual or threatened breach by the Consultant of his covenants and agreements
contained in Section 9 or 10, the Company shall have the absolute right, without
the necessity to post bond, to apply to any court of competent jurisdiction for
such injunctive or other equitable relief as such court may deem necessary or
appropriate in the circumstances.
13. Consent to Amendments. The provisions of this Agreement may be amended
or waived only by a written agreement executed and delivered by the Company and
the Consultant.
14. Successors and Assigns. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not, provided that the Consultant may not assign his
rights or delegate his obligations under this Agreement without the written
consent of the Company and the Company may assign this Agreement only to a
successor to all or substantially all of its assets.
15. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provi-
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sion of this Agreement is held to be prohibited by or invalid under applicable
law, such provision will be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement.
16. Counterparts. This Agreement 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.
17. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
18. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally to the
recipient, two (2) business days after the date when sent to the recipient by
reputable express courier service (charges prepaid) or four (4) business days
after the date when mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the Consultant and to the Company at the
addresses set forth below.
If to the Consultant: Scott A. Livengood
c/o Fred R. Harwell, Jr., Esq.
Davis & Harwell, P.A.
101 South Stratford Road, Suite 200
Winston-Salem, NC 27104
If to the Company: Krispy Kreme Doughnuts, Inc.
370 Knollwood Street, Suite 500
Winston-Salem, NC 27103
Attn: R. Frank Murphy
General Counsel
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
19. Withholding. The Company may withhold from any amounts payable under
this Agreement such federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation. The Consultant
shall be solely responsible for all income and other taxes imposed by law on
him.
20. Entire Agreement. This Agreement constitutes the entire agreement among
the parties and supersedes any prior understandings, agreements or
representations by or among the parties, written or oral, that may have related
in any way to the subject matter hereof.
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21. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW OF NORTH
CAROLINA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
KRISPY KREME DOUGHNUTS, INC.
By: /s/ James H. Morgan
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James H. Morgan
Chairman of the Board
/s/ Scott A. Livengood
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Scott A. Livengood