As filed with the Securities and Exchange Commission on May 31, 2000.
File No. 333-________
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.)
</TABLE>
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 (Name, address, including zip code,
telephone number, including area and telephone number including area
code, of registrant's principal code, of agent for service)
executive offices)
KRISPY KREME PROFIT-SHARING STOCK OWNERSHIP PLAN
KRISPY KREME DOUGHNUT CORPORATION NONQUALIFIED STOCK OWNERSHIP 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)
________________________________________________________________________________
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of Registration
to be Registered Registered Per Share Price Fee
----------------------------- ---------------------- ------------------------- --------------------------- -------------------------
<S> <C> <C> <C> <C>
Common Stock, no
par value per share 315,000 <F1> $46.44 <F2> $14,628,600 <F2> $3,862.00 <F2>
----------------------------- ---------------------- ------------------------- --------------------------- -------------------------
<FN>
<F1> Pursuant to Rule 416 under the Securities Act of 1933, 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 Rule 457(h)(1) under the Securities Act of 1933 based on the
average of the high and low sales prices of the Registrant's Common Stock,
as reported on NASDAQ on May 24, 2000.
</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 "SEC"):
(1) The Registrant's Registration Statement on Form S-1, filed on
December 16, 1999, as amended, SEC File Number 333-92909 (the
"S-1"), and
(2) The description of the Registrant's Common Stock, no par value
per share, contained in the section entitled "Description of
Securities" of the S-1, including all amendments and reports
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the SEC under
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, 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 Profit-Sharing Stock Ownership Plan and the Krispy Kreme Doughnut
Corporation Nonqualified Stock Ownership Plan has been passed upon for the
Registrant by Frank Murphy, Esq., Kilpatrick Stockton LLP, Counsel to the
Registrant. As of May 18, 2000, attorneys at Kilpatrick Stockton LLP
participating in this matter on behalf of Kilpatrick Stockton LLP owned 1,650
shares of the common stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Registrant's bylaws provide for indemnification of directors to the
fullest extent permitted by North Carolina law. The articles of incorporation,
to the extent permitted by North Carolina law, eliminate or limit the personal
liability of directors to Krispy Kreme and its shareholders for monetary damages
for breach of the duty of care. Such indemnification may be available for
liabilities arising in connection with this offering. To the extent that
limitation of liability or indemnification for liabilities under the Securities
Act may be permitted to directors, officers, or persons controlling Krispy Kreme
under the foregoing provisions, the Registrant has been informed that, in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act of 1933, as amended, and is therefore unenforceable. The
Registrant's bylaws also allow it to indemnify its officers, employees, agents,
<PAGE>
and other persons to the fullest extent permitted by North Carolina law. The
Registrant's bylaws 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 can also indemnify someone serving at its request as a director,
officer, trustee, partner, employee, or agent of one of its subsidiaries or of
any other organization against these liabilities.
The Registrant's bylaws also provide that it has the power to purchase
and maintain insurance on behalf of any person who is or was one of its
directors, officers, employees, or agents against any liability asserted against
that person or incurred by that person in these capacities, whether or not it
would have the power to indemnify that person against these liabilities under
North Carolina law. The Registrant maintains insurance on behalf of all 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 Bylaws (incorporated herein by reference to Exhibit 3.2 to Form
S-1).
4.3 Form of common stock certificate (incorporated herein by
reference to Exhibit 4.1 to Form S-1).
4.4 Rights Agreement between the Company 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 Profit-Sharing Stock Ownership Plan.
10.2 Krispy Kreme Doughnut Corporation Nonqualified Stock Ownership
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:
(a) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) 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 SEC 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
<PAGE>
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(c) 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)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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 the 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 SEC 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 May 22, 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 May 22, 2000, by the following persons
in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE POSITION
--------- --------
<C> <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 BREITBACH 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/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/ROBERT J. SIMMONS Director
---------------------------
Robert J. Simmons
/s/STEVEN D. SMITH Director
---------------------------
Steven D. Smith
/s/ROBERT L. STRICKLAND Director
---------------------------
Robert L. Strickland
</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 Bylaws (incorporated herein by reference to Exhibit 3.2 to Form
S-1).
4.3 Form of common stock certificate (incorporated herein by
reference to Exhibit 4.1 to Form S-1).
4.4 Rights Agreement between the Company 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 Profit-Sharing Stock Ownership Plan.
10.2 Krispy Kreme Doughnut Corporation Nonqualified Stock Ownership
Plan.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Kilpatrick Stockton LLP (included in Exhibit 5
hereto).
24 Powers of Attorney.
