Attached files
THE WARRANT AND SHARES ISSUABLE UPON EXERCISE
HEREOF (COLLECTIVELY, THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR HYPOTHECATED
UNTIL THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND OTHER
APPLICABLE SECURITIES LAWS OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE COMPANY, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH OR EXEMPT THEREFROM. THIS WARRANT
CONTAINS ADDITIONAL RESTRICTIONS ON TRANSFER OF THE SECURITIES.
WARRANT
For the Purchase
of
1,200,000 Shares of Common Stock
of
KRISPY KREME DOUGHNUTS, INC.
1,200,000 Shares of Common Stock
of
KRISPY KREME DOUGHNUTS, INC.
1. Issuance and Terms of
Warrant.
(a) Issuance of Warrant. For value received, Marsh & McLennan
Risk Capital Holdings Ltd., or permitted assigns (the “Holder”), is entitled to purchase from Krispy Kreme
Doughnuts, Inc., a North Carolina corporation (the “Company”), at any time on or after the Exercisability
Date (as hereinafter defined) and prior to the Expiration Time (as hereinafter
defined), 1,200,000 shares (the “Shares”) of the Company’s Common Stock, no par value
(the “Common Stock), upon surrender of this Warrant to the
Company and upon payment of the Exercise Price (as hereinafter defined), subject
to the terms and conditions set forth herein.
(b) Exercisability Period. This Warrant shall be exercisable in whole
or in part commencing on and after the Exercisability Date and shall expire at
5:00 P.M., Winston-Salem time, on January 31, 2013 (the “Expiration Time”). “Exercisability Date” shall mean the later of (i) January 29, 2006
and (ii) the date which is 30 days following the public announcement by the
Company of the appointment of a Chief Executive Officer of the Company to
succeed Stephen F. Cooper. Notwithstanding the foregoing, if on or prior to such
date, the Services Agreement dated as of January 18, 2005 (the “Services Agreement”) among the Company, Kroll Zolfo Cooper LLC
(“KZC”), Stephen F. Cooper (“Cooper”) and Steven E. Panagos (“Panagos”) shall have been terminated by the Company
with “cause” or by KZC without “good reason”, this Warrant shall be forfeited
upon such termination and shall be void and have no further effect.
KZC shall be deemed to have been
terminated by the Company with “cause” if (i) any of KZC, Cooper or Panagos
willfully fails or refuses to perform its or his duties and responsibilities and
such failure or refusal continues for thirty (30) days after having received
written notice of same from the Company, (ii) any of KZC, Cooper or Panagos
commits an act constituting a felony or (iii) any of KZC, Cooper or Panagos
commits an act of gross negligence or willful misconduct to the material
detriment of the Company.
KZC shall be deemed to have terminated the Services Agreement with “good
reason” only if (i) there has been a material diminution of the duties or
responsibilities of KZC, Cooper or Panagos under the Services Agreement, without
the same being corrected within thirty (30) days after being given written
notice thereof, or (ii) the Company materially breaches the Services Agreement,
without the same being corrected within thirty (30) days after having received
written notice of same from KZC.
(c) Exercise Price. The price for which the Shares may be
purchased upon the exercise of this Warrant shall be $7.75 per Share (the
“Exercise Price”), subject to adjustment as hereafter
provided.
(d) Unregistered Securities. The Holder understands that: (i) this
Warrant is being, and the Shares will be, issued under certain exemptions from
the registration provisions of the Securities Act of 1933, as amended (the
“Securities Act”); (ii) the Holder is acquiring the
Securities without any representation or warranty by the Company, including with
respect to the value of the Securities, and (iii) the issuance of the Securities
has not been approved by the Securities and Exchange Commission (the
“SEC”) or by any agency charged with the
administration of the securities laws of any state or other jurisdiction. The
Holder represents and warrants that it is an “accredited investor” as that term
is defined in Rule 501 under the Securities Act, and that it has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment in the Securities and of making
an informed investment decision with respect thereto. The Holder further
represents that it is familiar with the Company’s business and operations and it
has had the opportunity to ask questions it has deemed appropriate. The Holder
understands that the Company is relying on the truth and accuracy of the
representations, declarations and warranties made herein by the Holder in
issuing the Securities without having first registered the Securities under the
Securities Act or under the securities laws of any state or other jurisdiction.
(e) Intent to Hold. The Holder confirms that: (i) it understands
that there are substantial restrictions on the transferability of the Securities
and, accordingly, it may not be possible for the Holder to liquidate the
Securities in case of emergency and (ii) the Holder is able to hold the
Securities for an indefinite period of time and to afford a complete loss of the
value of the Securities. The Securities are being acquired in good faith solely
for the Holder’s own personal account and are not being purchased with a view to
or for the resale, distribution, subdivision or fractionalization thereof in
violation of federal or state securities laws. The Holder has no contract,
undertaking, understanding, agreement or arrangement, formal or informal, with
any person to sell, transfer or pledge to any person any Securities in violation
of federal or state securities laws, or any current plan to enter into any such
contract, undertaking, agreement or arrangement. The Holder understands that the
legal consequences of the foregoing representations and warranties are that the
Holder must bear the economic risk of holding the Securities for an indefinite
period of time because the Securities have not been registered under the
Securities Act.
(f) Restrictions on Transfer. The Holder agrees that it will not, directly
or indirectly, sell, convey, pledge or otherwise transfer this Warrant or any
part hereof, or enter into any agreement that transfers any of the economic
consequences of ownership of this Warrant, to any person other than a Permitted
Transferee. “Permitted Transferee” means (i) any person that controls, is
controlled by or is in common control with the Holder; and (ii) any other person
approved by the Board of Directors of the Company (which approval may be
withheld in its sole discretion).
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The Holder understands and agrees that
the Shares may be transferred only pursuant to (i) a public offering registered
under the Securities Act and applicable state securities laws or (ii) Rule 144
under the Securities Act or another exemption from the registration requirements
of the Securities Act, if available; provided that in the case of clause (ii), the Company
may require an opinion of counsel in form and substance reasonably satisfactory
to the Company.
(g) Restrictive Legend. The Shares, and any other securities
issuable upon exercise of this Warrant, whether by reason of a stock split or
share reclassification thereof, a stock dividend thereon or otherwise, shall
contain a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE OR OTHER JURISDICTION. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
PLEDGED OR HYPOTHECATED UNTIL THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND OTHER APPLICABLE SECURITIES LAWS OR, IN THE OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH OR EXEMPT
THEREFROM.
2. Adjustments; Anti-Dilution
Provisions. The Exercise
Price and the number and kind of Shares or other securities for which this
Warrant is exercisable shall be subject to adjustment from time to time upon the
happening of certain events as provided in this Section 2.
(a) If at any time prior to the exercise of this
Warrant in full the Company shall (i) declare a dividend or make a distribution
on the Common Stock payable in shares of its capital stock (whether in shares of
Common Stock or in capital stock of any other class); (ii) subdivide, reclassify
or recapitalize its outstanding Common Stock into a greater number of shares;
(iii) combine, reclassify or recapitalize its outstanding Common Stock into a
smaller number of shares; or (iv) issue any shares of its capital stock by
reclassification of its Common Stock (including any such reclassification in
connection with a consolidation or a merger in which the Company is the
continuing corporation), the Exercise Price in effect at the time of the record
date of such dividend, distribution, or the effective date of such subdivision,
combination, reclassification or recapitalization, shall be adjusted so that the
Holder shall be entitled to receive the aggregate number and kind of shares
which, if this Warrant had been exercised in full immediately prior to such
event, it would have owned by virtue of such exercise
and been entitled to receive by virtue of such dividend, distribution,
subdivision, combination, reclassification or recapitalization. Any adjustment
required by this Section 2(a) shall be made successively immediately after the
record date, in the case of a dividend or distribution, or the effective date,
in the case of a subdivision, combination, recapitalization or reclassification,
to allow the purchase of such aggregate number and kind of shares.
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(b) Whenever the Exercise
Price payable upon exercise of this Warrant is adjusted pursuant to Section
2(a), the Shares shall simultaneously be adjusted by multiplying the number of
Shares issuable upon exercise of the Warrant on the date thereof (prior to
adjustment) by the Exercise Price in effect on the date thereof and dividing the
product so obtained by the Exercise Price, as adjusted.
(c) No adjustment in the Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least one cent in such price; provided, however, that any adjustments which by
reason of this Section 2(c) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under this
Section 2 shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. Notwithstanding anything in this Section 2 to the
contrary, the Exercise Price shall not be reduced to less than the then existing
par value of the Common Stock or such other capital stock for which this Warrant
is exercisable as a result of any adjustment made hereunder.
(d) Promptly after the number of Shares and/or the
Exercise Price is adjusted as herein provided, the Company shall deliver to the
Holder a notice of such adjustment, setting forth the adjusted number of shares
purchasable upon the exercise of this Warrant and the Exercise Price of such
shares after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which adjustment
was made.
(e) No adjustment in respect of any cash dividends
or any other event not expressly provided in this Section 2 shall be made during
the term of this Warrant.
(f) In case of any reclassification, capital
reorganization or other change of outstanding shares of Common Stock (other than
subdivision or combination of the outstanding Common Stock and other than a
change in the par value of the Common Stock and other than any other case where
Section 2(a) is applicable) or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which the Company is the continuing corporation and that does not result in
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the class issuable upon exercise of this Warrant and
other than any other case where Section 2(a) is applicable) or in the case of
any sale, lease, transfer or conveyance to another corporation of the property
and assets of the Company as an entirety or substantially as an entirety (any
such transaction, a “Fundamental Transaction”), the Company shall, as a condition
precedent to such transaction, cause such successor or purchasing corporation,
as the case may be, to execute with the Holder an agreement granting the Holder
the right thereafter, upon payment of the Exercise Price in effect immediately
prior to such action, to receive upon exercise of this Warrant the kind and
amount of shares and other securities and property that it would have owned or
have been entitled to receive after the happening of such reclassification,
change, consolidation, merger, sale or conveyance had this Warrant been
exercised immediately prior to such action, assuming (to the extent applicable)
that the Holder (i) was not a constituent person or an affiliate of a
constituent person to such transaction, (ii) made no election with respect
thereto, and (iii) was treated alike with the plurality of non-electing holders.
Such agreement shall provide for adjustments in respect of such shares of stock
and other securities and property and in the Exercise Price, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 2. In the event that in
connection with any such reclassification, capital reorganization, change,
consolidation, merger, sale or conveyance additional shares of Common Stock
shall be issued in exchange, conversion, substitution or payment, in whole or in
part, for, or of, a security of the Company other than Common Stock, any such
issue shall be treated as an issue of Common Stock covered by the provisions of
this Section 2. The provisions of this Section 2(f) shall similarly apply to
successive reclassifications, capital reorganizations, consolidations, mergers,
sales or conveyances.
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Notwithstanding the foregoing, if the Company enters into a Fundamental
Transaction with another person (other than a subsidiary of the Company) and
consideration is payable to holders of Common Stock in connection with such
Fundamental Transaction which consideration consists solely of cash (assuming
(to the extent applicable) that each such holder (i) was not a constituent
person or an affiliate of a constituent person to such transaction, (ii) made no
election with respect thereto, and (iii) was treated alike with the plurality of
non-electing holders), then the Holder shall be entitled to receive a payment on
an equal basis with, and at the same time as, holders of Common Stock as if this
Warrant had been exercised immediately prior to such event, less the aggregate
Exercise Price therefor. Upon receipt of such payment, the rights of the Holder
under this Warrant shall terminate and cease and this Warrant shall expire.
(g) In the event of any proposed distribution of
the assets of the Company in dissolution or liquidation (except under
circumstances when Section 2(f) shall be applicable), the Company shall mail
notice thereof to the Holder and shall make no distribution to stockholders
until the expiration of 30 days from the date of mailing of the aforesaid notice
and, in any such case, the Holder may exercise the purchase rights with respect
to this Warrant within 30 days from the date of mailing such notice, and all
rights herein granted not so exercised within such 30-day period shall
thereafter become null and void.
(h) The form of this Warrant need not be changed
because of any adjustments in the Exercise Price or the number or kind of the
Shares, and Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in this Warrant, as
initially issued.
(i) Any determination that the Company or the
board of directors of the Company makes pursuant to this Section 2 shall be
conclusive, absent manifest error.
3. No Fractional Shares. No fractional Shares shall be issued in
connection with any exercise hereof, and if the total number of Shares that
remain unexercised would result in a fraction, such number of Shares shall be
rounded to the nearest whole Share.
4. No Stockholder Rights. This Warrant shall not entitle the Holder to
any of the rights of a stockholder of the Company.
5. Reservation of Shares. The Company covenants that the Shares
issuable upon the exercise of this Warrant have been duly authorized and
reserved and, when issued and paid for, will be validly issued, fully paid and
non-assessable and will be free of any liens or charges incurred or imposed by
the Company. The issuance of this Warrant shall constitute full authority to
those officers of the Company who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for Shares upon the
exercise of this Warrant.
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6. Exercise of
Warrant.
(a) This Warrant may be exercised in
whole or in part by presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, with the Notice of Exercise attached
hereto as Annex A duly executed and accompanied by payment of the Exercise Price
for the number of Shares specified in such form. If this Warrant is exercised in
part only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the right of the Holder to purchase
the balance of the Shares.
(b) The exercise of this Warrant shall
be effective as of the first Business Day on or prior to which the Company
receives all of the items referred to in the first sentence of Section 6(a);
provided, however, that if the Company receives any such item after 5:00 P.M.,
Winston-Salem time, such exercise shall be effective as of the next Business Day
(such effective date, the “Exercise Date”). “Business Day” means any day other than a
Saturday, Sunday or other day on which banks in Winston-Salem are required or
permitted by law to close.
(c) Promptly after the Exercise Date,
and in any event within ten (10) Business Days after the Exercise Date, the
Company shall issue and cause to be delivered a certificate or certificates
evidencing the Shares to which the Holder is entitled, in fully registered form,
registered in such name or names and delivered to such person or persons as may
be directed by the Holder pursuant to the Notice of Exercise. Such certificate
or certificates evidencing the Shares shall be deemed to have been issued and
any persons who are designated to be named therein shall be deemed to have
become the holder of record of such Shares as of the close of business on the
Exercise Date (notwithstanding that the certificates representing such Shares
shall not actually have been delivered or that the stock transfer books of the
Company shall then be closed).
(d) Issuance of certificates for Shares
shall be made without charge to the Holder hereof for any issue or stamp tax or
other incidental expense in respect of such issuance, all of which taxes and
expenses shall be paid by the Company (to the extent such tax or expense is
ordinarily and customarily paid by the public companies in similar
transactions), and such certificates shall be issued in the name of the Holder
of this Warrant or in such name or names as may be directed by the Holder of
this Warrant; provided, however, that in the event certificates for
Shares are to be issued in a name other than the name of the Holder of this
Warrant, the Company shall not be required to pay any tax or taxes which may be
payable in respect of any such issuance.
7. Registration
Rights. The
Holder of this Warrant is entitled to piggyback registration rights as follows:
(a) Definitions. As used in this Section 7, the
following terms shall have the following respective meanings:
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(i) “Registration
Stock”
shall mean: (1) any shares of Common Stock issued upon exercise of this
Warrant and the shares of Common Stock issuable upon exercise of this
Warrant or other securities issued or issuable upon exercise or conversion
in whole or in part of the Shares or this Warrant and (2) any shares of
Common Stock or other securities issued in respect of any such securities
upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event; provided, however, that Registration Stock
shall not include any such shares or securities disposed of pursuant to
one or more registration statements under the Securities Act or shares or
securities freely tradable pursuant to Rule 144(k) under the Securities
Act or that cease to be outstanding. Any record holder of securities
convertible into or exercisable for the purchase of Registration Stock or
exercisable for securities which are convertible into Registration Stock
shall be deemed to be the holder of the Registration Stock issuable upon
such exercise or conversion.
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(ii) “Requisite
Holders”
shall mean holders who beneficially own (or Holders of Warrants who will
beneficially own (by exercise of Warrants) prior to consummation of the
offering covered by a registration pursuant to this Section 7) at least
25% of the total outstanding Registration Stock (assuming exercise of all
Warrants).
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(b) Demand Registration on Form
S-3. Subject to
any lock-up agreement under Section 9 that may be in effect, Requisite Holders
shall have the right to require the Company to file a registration statement on
Form S-3 (or successor short form registration form) under the Securities Act
covering the sale thereunder of all or a portion of such number of Registration
Stock as such holders shall designate for sale in a written request to the
Company and to use reasonable best efforts to cause such registration statement
to become or be declared effective under the Securities Act (the “Demand
Registration”);
provided, however, that (x) the Company shall not be
required to comply with a request for Demand Registration unless the Company is
eligible to file a registration statement on Form S-3 (or successor short form
registration form) under the Securities Act, (y) the Company shall not be
required to comply with a request for Demand Registration if (I) the Company has
filed a registration statement with respect to which the Holder is or was
entitled to piggyback registration rights pursuant to Section 7(d) and either
(i) the Holder has elected to participate in the offering covered by such
registration statement or (ii) such registration statement relates to an
underwritten primary offering of securities of the Company, until the offering
covered by such registration statement has been consummated or withdrawn, or
(II) the Company has filed a registration statement pursuant to Section 7(c),
and (z) the Company shall have the right to delay the Demand Registration for an
aggregate of up to 90 days if the Board of Directors of the Company determines
in good faith (a “Registration Delay
Determination”)
that (A) required disclosure of information in any related registration
statement, prospectus or prospectus supplement at such time would have a
material adverse effect on the Company’s business, operations or prospects or
(B) a material transaction that has not yet been publicly disclosed would be
required to be disclosed in a registration statement, prospectus or prospectus
supplement and such disclosure would jeopardize the success of such transaction.
The Company shall not be required to effect more than one Demand Registration in
the aggregate for all Holders of Warrants and all holders of Registration Stock.
The Company will use its reasonable best efforts to file a registration
statement under Section 7(b) or (c) within 90 days of the date that it receives
a demand from the Requisite Holders.
(c) Shelf
Registration.
Subject to any lock-up agreement under Section 9 that may be in effect,
Requisite Holders shall have the right to require the Company to file a
registration statement on Form S-3 (or successor short form registration form)
under the Securities Act for an offering on a continuous basis pursuant to Rule
415 under the Securities Act covering the resale of Registration Stock
thereunder and to use reasonable best efforts to cause such registration statement to become or be
declared effective under the Securities Act (the “Shelf
Registration”);
provided, however, that (x) the Company shall not be
required to comply with a request for Shelf Registration unless the Company is
eligible to file a registration statement on Form S-3 (or successor short form
registration form) under the Securities Act and (y) the Company shall not be
required to comply with a request for Shelf Registration if (I) the Company has
filed a registration statement with respect to which the Holder is or was
entitled to piggyback registration rights pursuant to Section 7(d) and either
(i) the Holder has elected to participate in the offering covered by such
registration statement or (ii) such registration statement relates to an
underwritten primary offering of securities of the Company, until the offering
covered by such registration statement has been consummated or withdrawn, or
(II) the Company has filed a registration statement pursuant to Section 7(b).
The Company shall use its reasonable best efforts to keep the registration
statement under this Section 7(c) continuously effective under the Securities
Act for a period of two years after such registration statement first becomes
effective or such shorter period ending when all Shares cease to be Registration
Stock. Notwithstanding the foregoing, the Company may suspend the use of the
prospectus included in any Shelf Registration in the event that and for a period
of time (the “Shelf Blackout
Period”) not to
exceed an aggregate of 90 days in any 12-month period if the Board of Directors
of the Company has made a Registration Delay Determination.
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(d) Piggyback
Registration. If
the Company shall seek to file a registration statement under the Securities Act
with respect to an offering of Common Stock solely for cash by the Company or
any of its stockholders (except in connection with (a) any stock option plan,
stock purchase plan, savings or similar plan on Form S-8 (or any successor form
in connection with any employee or director welfare, benefit or compensation
plan, (b) any acquisition, merger, exchange offer, rights offering or any
dividend reinvestment or share purchase plan offered exclusively to existing
holders of securities of the Company, (c) an offering solely to employees of the
Company or its affiliates, or (d) a transaction pursuant to Rule 145 of the
Securities Act), and if the form of registration statement proposed to be used
may be used for the registration of the Registration Stock, then, on each such
occasion, the Company shall furnish the Holder with at least 15 days prior
written notice of the filing thereof. Subject to the following sentence, at the
written request of the Holder, given within 5 days after the receipt of such
notice, the Company will cause (or in the case of an underwritten offer, use its
reasonable best efforts to cause the managing underwriter or underwriters to
permit) all of the Registration Stock for which registration shall have been
requested by such Holder to be included in such registration statement. The
Company may withdraw or suspend any such registration at any time, provided that
the Company shall give immediate notice of such withdrawal to the Holder who
requested inclusion of the Registration Stock. If any registration pursuant to
this Section 7(d) shall be, in whole or in part, an underwritten public offering
of Common Stock, then the number of shares of Registration Stock to be included
in such an underwriting may be reduced by the Company and the managing
underwriter or underwriters thereof if and to the extent that the Company and
such underwriter or underwriters shall be of the opinion (in their sole
reasonable judgment) that such inclusion could adversely affect the marketing of
the securities to be sold by the Company therein or success of the offering.
(e) Further Obligations of the
Company.
Whenever the Company is required to register any of the Registration Stock
pursuant to any of the provisions of this Section 7, the Company shall also be
obligated to do the following:
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(i) Prepare for filing with the
SEC such amendments and supplements to said registration statement and the
prospectus used in connection therewith as may be necessary to keep said
registration statement effective and to comply with the provisions of the
Securities Act with respect to the sale of securities covered by said
registration statement for the period necessary, but in no event more than
nine months, to complete the proposed public offering (subject to the
Company’s right to suspend or withdraw the offering);
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(ii) Furnish to each selling holder
such copies of preliminary and final prospectuses and such other documents
as said holder may reasonably request to facilitate the public offering of
such holder’s Registration Stock;
(iii) Use its reasonable best
efforts to register or qualify the Registration Stock covered by said
registration statement under the securities or Blue Sky laws of such
jurisdictions as not less than 50% of the holders of Registration Stock
may reasonably request; provided, however, that the Company shall not be
required (A) to qualify to do business in any jurisdiction where it would
not otherwise be required to so qualify or (B) to file any general consent
to service of process or (C) to subject itself to taxation in any
jurisdiction where it would not otherwise be subject to taxation;
(iv) If the registration statement
relates to an underwritten offering, use its reasonable best efforts to
cause to be furnished to the selling holders, and any underwriters or
broker-dealers through whom the Registration Stock may be sold, as may be
customary, an opinion or opinions of counsel for the Company and a letter
or letters of the independent certified public accountants for the
Company, in form and substance customary for similar offerings; and
(v) Permit each selling holder or
said holder’s counsel or other representatives, at the selling holder’s
expense, to inspect such corporate documents and records as may reasonably
be requested by them, and necessary to enable them, to exercise their due
diligence responsibility.
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(f) Expenses, etc. All expenses in connection with
the preparation and filing of any registration statement under this Section 7,
any registration or qualification under the securities or Blue Sky laws of
states in which the offering will be made under such registration statement and
any filing fee of the National Association of Securities Dealers, Inc. relating
to such offering shall be borne in full by the Company, except for any
underwriters’ or brokers’ commissions, fees required to be paid by a selling
holder rather than the Company in order to comply with applicable Blue Sky or
state securities laws, fees or expenses expressly applicable to securities being
sold by the holders of securities, fees or expenses of their counsel and
Securities and Exchange Commission filing fees for the registration of the
Shares; provided that the Company shall pay for the
reasonable fees and expenses of one counsel for all the Holders.
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(g) Indemnification. The Company shall indemnify the
selling holders of Registration Stock, and, to the extent required in any
agreement with any underwriter or broker-dealer through whom the Registration
Stock may be sold, any such underwriter or broker-dealer and each person, if
any, who controls any such underwriter or broker-dealer (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities, expenses
or actions in respect thereof (under the Securities Act or common law or
otherwise) (collectively “Damages) caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement under which such Registration Stock was registered under the
Securities Act, any preliminary or final prospectus contained therein, or any
amendment or supplement thereto, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; and will reimburse the selling
holders of Registration Stock for any legal or other out-of-pocket expenses
reasonably incurred by such selling holders in connection with investigating or
defending against such Damages except insofar as such Damages (i) are caused by
any untrue statement or omission (or alleged untrue statement or omission)
contained in information furnished in writing to the Company by such selling
holders expressly for use therein or (ii) were caused by the fact that such
Holder sold Registered Stock to a person who was not provided with an amended or
supplemented prospectus, if the Company had previously furnished to such Holder
such amended or supplemented prospectus and if the untrue (or allegedly untrue)
statement or omission contained in the prospectus so delivered was corrected in
such amended or supplemented prospectus. In connection with any
such registration statement, the selling holders of Registration Stock will
furnish the Company in writing such information as may reasonably be requested
by the Company for use in any such registration statement or prospectus and will
indemnify the Company, its directors and officers, and, to the extent required
in any agreement with any underwriter or broker-dealer, each such underwriter or
broker-dealer and each person, if any, who controls the Company or any
underwriter or broker-dealer (within the meaning of the Securities
Act) against Damages, to the same extent
as the foregoing indemnity from the Company to the Holder and will reimburse the
Company for any legal or other out-of-pocket expenses reasonably incurred by it
in connection with investigating or defending against such damages; but only to
the extent that such untrue (or alleged untrue) statement or omission (or
alleged omission) was contained in information so furnished in writing by the
selling holders of Registration Stock expressly for use therein, and only to the
extent of proceeds received by the selling holders of Registration Stock in the
offering. The Company further agrees that, in connection with any underwritten
public offering, it also will enter into customary contribution arrangements
with the selling holders of Registration Stock any underwriters or
broker-dealers through whom the Registration Stock may be sold, with respect to
situations in which indemnification is potentially unavailable.
(h) Indemnification
Procedures. In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 7(e), such person (the “indemnified party”) shall promptly notify the person
against whom such indemnity may be sought (the “indemnifying party”) in writing and
the indemnifying party shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party in such proceedings and
shall pay the fees and disbursements of such counsel relating to such
proceeding. The failure or delay of an indemnified party to notify the
indemnifying party with respect to a particular proceeding shall not relieve the
indemnifying party from any obligation or liability which it may have pursuant
hereto except to the extent that the indemnifying party is not prejudiced by
such failure or delay. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expense of such counsel
shall be at the expense of such indemnified party unless, in the reasonable
judgment of such counsel, a conflict of interest may exist between such
indemnified party and the
indemnifying party in respect to such claim, in which case the fees of one
counsel to all indemnified parties shall be paid by the indemnifying party. The
indemnifying party shall not be liable for any settlement of any proceeding with
respect to which it has agreed in writing to indemnify the indemnified party
pursuant to the term of this Section 7 effected without its written consent
(which shall not be unreasonably withheld). No indemnifying party shall, without
the prior written consent of any indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on all claims that are the subject matter of such proceeding.
-10-
8. Exchange, Assignment or Loss of
Warrant. This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other Warrants of different denominations entitling
the Holder hereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. Any assignment permitted by the terms of
this Warrant shall be made by surrender of this Warrant to the Company or at the
office of Its stock transfer agent, if any, with the Assignment Form attached
hereto as Annex B duly executed and funds sufficient to pay any transfer tax;
whereupon the Company shall, without charge, execute and deliver a new Warrant
in the name of the assignee named in such instrument of assignment and this
Warrant shall promptly be canceled. Subject to the restrictions on
transferability set forth in this Warrant, this Warrant may be divided or
combined with other Warrants which carry the same rights upon presentation
hereof at the office of the Company or at the office of its stock transfer
agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. The term ‘Warrant” as used herein includes any Warrants issued in
substitution for or replacement of this Warrant, or into which this Warrant may
be divided or exchanged. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant, and, in the
case of loss, theft or destruction, of reasonably satisfactory indemnification,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this Warrant so lost,
stolen, destroyed or mutilated shall be at any time enforceable by anyone.
9. Lock-Up. In the event of an underwritten
offering of securities of the Company, each Holder shall, upon written request
of the managing underwriter(s) of such offering, agree not to effect directly or
indirectly any sale or disposition of the Warrants or any Shares 7 days prior to
or 120 days (or such lesser period as the managing underwriter(s) may permit)
after the effective date of the registration statement (except pursuant to any
piggyback rights it may have with respect to such offering), and to execute a
“lock-up” agreement substantially to the foregoing effect in a form requested by
the managing underwriter(s) of such offering. The Holder is only required to
agree to the preceding sentence if all of the directors, executive officers and
stockholders holding greater than 10% of the outstanding Common Stock also agree
to the same provision.
10. Miscellaneous. This Warrant shall be governed by
the internal laws, but not the law of conflicts, of the State of New York. The
headings in this Warrant are for purposes of convenience and reference only and
shall not be deemed to constitute a part hereof. Neither this Warrant nor any
term hereof may be amended, waived, discharged or terminated except by an
instrument in writing signed by the Company and the Holder. Whenever possible,
each provision of this Warrant shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Warrant,
or any clause thereof, shall be determined by a court of competent jurisdiction
to be illegal, invalid or unenforceable, in whole or in part, such provision or
clause shall be limited or modified in its application to the minimum extent
necessary to make such provision or clause valid, legal and enforceable, and the
remaining provisions and clauses of this Warrant shall remain fully enforceable
and binding on the parties. By acceptance of this Warrant, the Holder
acknowledges that this is the full success fee referred to in the Services
Agreement.
11. Notice Generally. Any notice, demand or delivery
pursuant to the provisions hereof shall be sufficiently given or made if sent by
registered or certified mail, postage prepaid, or overnight delivery service,
addressed to the Holder at such Holder’s last known address appearing on the
books of the Company, or, except as herein otherwise expressly provided, to the
Company at 370 Knollwood Street, Suite 500, Winston-Salem, NC 27103, Attention:
Corporate Secretary, or such other address as shall have been furnished to the
party giving or making such notice, demand or delivery.
-11-
ISSUED THIS 26th day of July 2010.
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KRISPY
KREME DOUGHNUTS, INC.
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| By: |
/s/ Douglas R. Muir
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| Name: |
Douglas
R. Muir
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| Title: |
Chief
Financial Officer
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||
-12-
ANNEX A
NOTICE OF
EXERCISE
WARRANT OF
KRISPY KREME DOUGHNUTS, INC.
The undersigned hereby irrevocably
elects to exercise the within Warrant to the extent of purchasing ____________
shares of common stock (the “Shares”) of Krispy Kreme Doughnuts, Inc. (the
“Company”) and hereby delivers $__________ in payment of the Exercise Price (as
defined in the Warrant) thereof.
The undersigned understands that the
Shares have not been registered under the Securities Act of 1933 (the
“Securities Act”) or the securities laws of any state or other jurisdiction and
may not be offered, sold, pledged or hypothecated (i) until they have been
registered under the Securities Act and other applicable securities laws or, in
the opinion of counsel in form and substance reasonably satisfactory to the
Company, unless such offer, sale or transfer, pledge or hypothecation is in
compliance therewith or exempt therefrom and (ii) as permitted by the terms of
the Warrant.
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Dated:
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Printed
Name of Holder:
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(Must
conform in all respects to name of Holder as
specified on the face of the Warrant) |
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Signature:
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ANNEX B
ASSIGNMENT
FORM
WARRANT OF
KRISPY KREME DOUGHNUTS, INC.
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
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Name
|
|
|
(Please print in block
letters)
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|
|
Address
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the right to
purchase Common Stock of KRISPY KREME DOUGHNUTS, INC. (the “Company”)
represented by this Warrant to the extent of _________________ shares as to
which such right is exercisable and does hereby irrevocably constitute and
appoint ________________ attorney, to transfer the same on the books of the
Company with full power of substitution in the premises.
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Dated:
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|
Printed
Name of Holder:
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(Must
conform in all respects to name of Holder as
specified on the face of the Warrant) |
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Signature:
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