As filed with the Securities and Exchange Commission on October 4, 2000.
File No.___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________________
KRISPY KREME DOUGHNUTS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <S> <C>
NORTH CAROLINA 5812 56-2169715
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
SCOTT A. LIVENGOOD
CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
370 KNOLLWOOD STREET 370 KNOLLWOOD STREET
WINSTON-SALEM, NORTH CAROLINA 27103 WINSTON-SALEM, NORTH CAROLINA 27103
(336) 725-2981 (336) 725-2981
(Address, including zip code, and telephone number, (Name, address, including zip code, and telephone number,
including area code, of registrant's including area code, of agent for service)
principal executive offices)
</TABLE>
KRISPY KREME DOUGHNUTS, INC. 2000 STOCK INCENTIVE PLAN
(Full Title of the Plan)
_____________________________________
Copies to:
FRANK MURPHY, ESQ.
KILPATRICK STOCKTON LLP
1001 WEST FOURTH STREET
WINSTON-SALEM, NC 27101
(336) 607-7300
(336) 607-7500 (FAX)
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of Registration Fee
to be Registered Registered <F1> Per Share <F2> Price
------------------------------ --------------------- ------------------------- ----------------------- -----------------------------
Common Stock, no 883,000 <F3> $83.75 <F5> $73,951,250
par value per share 117,000 <F4> $59.06 <F6> $ 6,910,020 $21,347
-----------
$80,861,270
------------------------------ --------------------- ------------------------- ----------------------- -----------------------------
<FN>
<F1> Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers any additional securities to be offered
or issued from stock splits, stock dividends or similar transactions.
<F2> Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h)(1) under the Securities Act of 1933, as
amended.
<F3> Represents the maximum number of shares that may be purchased upon exercise
of stock options that may be granted in the future under the Registrant's
2000 Stock Incentive Plan.
<F4> Represents the number of shares being registered that may be purchased
upon exercise of stock options currently granted under the Registrant's
2000 Stock Incentive Plan.
<F5> Based on the average of the high and low sales prices of the Registrant's
Common Stock, as reported on NASDAQ on September 29, 2000.
<F6> Based on the exercise price of options currently outstanding.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registration Information and Employee Plan Annual Information.*
------------
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The Registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission (the "Commission"):
(1) The Registrant's Registration Statement on Form S-1, filed
on December 16, 1999, as amended, SEC File Number 333-92909
(the "Form S-1");
(2) The Registrant's Quarterly Report on Form 10-Q for the three
months ended April 30, 2000, as filed with the Commission
pursuant to Section 13 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act");
(3) The Registrant's Quarterly Report on Form 10-Q for the three
months ended July 30, 2000, as filed with the Commission
pursuant to Section 13 of the Exchange Act; and
(4) The description of the Registrant's Common Stock, no par value
per share, contained in the section entitled "Description of
Securities" of the Form S-1, including all amendments and
reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
-------------------------
Not applicable (the Common Stock is registered under Section 12(b) of
the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
The validity of the shares of Common Stock issuable under the Krispy
Kreme Doughnuts, Inc. 2000 Stock Incentive Plan has been passed upon for the
Registrant by Frank Murphy, Esq., Kilpatrick Stockton LLP, Counsel to the
Registrant. As of September 25, 2000, attorneys at Kilpatrick Stockton LLP
participating in this matter on behalf of Kilpatrick Stockton LLP owned 1,450
shares of the Common Stock of the Registrant.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Registrant's Bylaws provide that the Registrant will indemnify any
person who serves as a director, officer, employee, or agent of the Registrant
or, at the request of the Registrant, as a director, officer, partner, trustee,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise to the fullest extent permitted by North Carolina law against
any liability incurred in any action, suit, or proceeding arising out of such
service. The Registrant's Bylaws also obligate it, under certain circumstances,
to advance expenses to its directors, officers, employees, and agents in
defending an action, suit, or proceeding for which indemnification may be
sought. The Registrant's Articles of Incorporation eliminate or limit the
personal liability of directors to the Registrant and its shareholders for
monetary damages for breach of their duties as directors, to the extent
permitted by North Carolina law. Under the North Carolina Business Corporation
Act, a corporation may not indemnify a director with respect to activities which
at the time taken were known or believed by him or her to be clearly in conflict
with the best interests of the corporation.
The Registrant's Bylaws also provide that it may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
or agent of the Registrant against any liability asserted against that person or
incurred by that person in such capacity, whether or not it would have the power
to indemnify that person against such liability under North Carolina law. The
Registrant maintains insurance for the benefit of its directors and executive
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS
--------
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Articles of Incorporation (incorporated herein by reference
to Exhibit 3.1 to Form S-1).
4.2 Articles of Amendment.
4.3 Bylaws (incorporated herein by reference to Exhibit 3.2 to
Form S-1).
4.4 Form of common stock certificate (incorporated herein by
reference to Exhibit 4.1 to Form S-1).
4.5 Rights Agreement between the Registrant and Branch Banking
and Trust Company, as Rights Agent, dated as of January 18,
2000 (incorporated herein by reference to Exhibit 4.2 to
Form S-1).
5 Opinion and consent of Kilpatrick Stockton LLP.
10.1 Krispy Kreme Doughnuts, Inc. 2000 Stock Incentive Plan.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Kilpatrick Stockton LLP (included in Exhibit 5
hereto).
24 Powers of Attorney.
ITEM 9. UNDERTAKINGS
------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Krispy Kreme
Doughnuts, Inc. has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Winston-
Salem, North Carolina, on October 4, 2000.
KRISPY KREME DOUGHNUTS, INC.
By: /s/ Scott A. Livengood
-------------------------------------------------------
Scott A. Livengood, Chairman of the Board of Directors,
President, and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on October 4, 2000, by the following
persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Position
--------- --------
<S> <S>
/s/ Scott A. Livengood Chairman of the Board of Directors, President and
------------------------------------ Chief Executive Officer (Principal Executive Officer)
Scott A. Livengood
/s/ John N. McAleer Chairman of the Board of Directors and
------------------------------------ Executive Vice President, Concept Development
John N. McAleer
/s/ J. Paul Breitback Executive Vice President, Finance, Administration
------------------------------------ and Support Operations (Principal Financial and
J. Paul Breitbach Accounting Officer)
/s/ Frank E. Guthrie Director
------------------------------------
Frank E. Guthrie
/s/ Mary Davis Holt Director
------------------------------------
Mary Davis Holt
/s/ William T. Lynch Director
------------------------------------
William T. Lynch
/s/ Joseph A. McAleer, Jr. Director
------------------------------------
Joseph A. McAleer, Jr.
/s/ Robert L. McCoy Director
------------------------------------
Robert L. McCoy
/s/ James H. Morgan Director
------------------------------------
James H. Morgan
/s/ Steven D. Smith Director
------------------------------------
Steven D. Smith
/s/ Robert L. Strickland Director
------------------------------------
Robert L. Strickland
/s/ Togo D. West, Jr. Director
------------------------------------
Togo D. West, Jr.
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Articles of Incorporation (incorporated herein by reference
to Exhibit 3.1 to Form S-1).
4.2 Articles of Amendment.
4.3 Bylaws (incorporated herein by reference to Exhibit 3.2 to
Form S-1).
4.4 Form of common stock certificate (incorporated herein by
reference to Exhibit 4.1 to Form S-1).
4.5 Rights Agreement between the Registrant and Branch Banking
and Trust Company, as Rights Agent, dated as of January 18,
2000 (incorporated herein by reference to Exhibit 4.2 to
Form S-1).
5 Opinion and consent of Kilpatrick Stockton LLP.
10.1 Krispy Kreme Doughnuts, Inc. 2000 Stock Incentive Plan.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Kilpatrick Stockton LLP (included in Exhibit 5
hereto).
24 Powers of Attorney.
