Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
____________
____________
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: January 14, 2010
(Date of earliest event reported)
(Date of earliest event reported)
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Krispy Kreme Doughnuts,
Inc.
(Exact name of registrant as specified in its charter)
____________
(Exact name of registrant as specified in its charter)
____________
North Carolina
(State or other jurisdiction of incorporation)
(State or other jurisdiction of incorporation)
| 001-16485 | 56-2169715 | |
| (Commission File Number) | (IRS Employer Identification No.) | |
| 370 Knollwood Street | ||
| Winston-Salem, North Carolina | 27103 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
| (336) 725-2981 | ||
| (Registrant’s Telephone Number, Including Area Code) | ||
| Not applicable | ||
| (Former name or former address, if changed since last report.) | ||
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive
Agreement.
On January 14, 2010, the Board of Directors of Krispy Kreme Doughnuts,
Inc., a North Carolina corporation (the “Company”), adopted the Shareholder
Protection Rights Agreement, dated as of January 14, 2010 (the “Rights
Agreement”), between the Company and American Stock Transfer & Trust
Company, LLC, a New York corporation, as Rights Agent (the “Rights Agent”), and
declared a dividend of one right (a “Right”) for each outstanding share of
Common Stock, no par value (“Common Stock”), of the Company held of record at
the close of business on January 18, 2010 (the “Record Time”), or issued
thereafter and prior to the Separation Time (as hereinafter defined) and
thereafter pursuant to options and convertible securities outstanding at the
Separation Time. Each Right entitles its registered holder to purchase from the
Company, after the Separation Time, one one-hundredth of a share of Series A
Participating Cumulative Preferred Stock, no par value (“Participating Preferred
Stock”), for $13.50 (the “Exercise Price”), subject to adjustment.
The Rights will be evidenced by the Common Stock certificates until the
close of business on the earlier of (either, the “Separation Time”) (i) the
tenth business day (or such later date as the Board of Directors of the Company
may from time to time fix by resolution adopted prior to the Separation Time
that would otherwise have occurred) after the date on which any Person (as
defined in the Rights Agreement) commences a tender or exchange offer which, if
consummated, would result in such Person’s becoming an Acquiring Person (as
defined below) and (ii) the time of the first event causing a Flip-in Date (as
defined below) to occur; provided that if the foregoing results in the
Separation Time being prior to the Record Time, the Separation Time shall be the
Record Time; and provided further that if a tender or exchange offer referred
to in clause (i) is cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any shares of stock pursuant thereto,
such offer shall be deemed never to have been made. A Flip-in Date will occur on
any Stock Acquisition Date (as defined below) or such later date and time as the
Board of Directors of the Company may from time to time fix by resolution
adopted prior to the Flip-in Date that would otherwise have occurred (the
“Flip-in Date”). A Stock Acquisition Date means the earlier of (a) the first
date on which the Company publically announces that a Person or group has
acquired 15% or more of the Company’s Common Stock or (b) the date on which any
Acquiring Person has acquired more than 40% of the Company’s Common Stock (in
either case, the “Stock Acquisition Date”). An Acquiring Person is any Person
who is, as of the expiration of the Rights Plan dated as of January 18,
2000 (the “Old Rights Plan”), between the Company and the Rights Agent, or
thereafter becomes the Beneficial Owner (as defined in the Rights
Agreement) of 15% or more of the outstanding shares of Common Stock, which term
shall not include (i) the Company, any wholly-owned subsidiary of the Company or
any employee stock ownership or other employee benefit plan of the Company, (ii)
any person who is the Beneficial Owner of 15% or more of the outstanding Common
Stock as of the date of the expiration of the Old Rights Plan or who shall
become the Beneficial Owner of 15% or more of the outstanding Common Stock
solely as a result of an acquisition of Common Stock by the Company, until such
time as such Person acquires additional Common Stock, other than through a
dividend, stock split or reorganization, (iii) any Person who becomes the
Beneficial Owner of 15% or more of the outstanding Common Stock without any plan
or intent to seek or affect control of the Company if such Person promptly
divests or promptly enters into an agreement with the Board of Directors of the
Company to divest and subsequently does divest sufficient securities such that
such 15% or greater Beneficial Ownership ceases or (iv) any Person who
Beneficially Owns shares of Common Stock consisting solely of (A) shares
acquired pursuant to the grant or exercise of an option granted by the Company
in connection with an agreement to merge with, or acquire, the Company entered
into prior to a Flip-in Date, (B) shares owned by such Person or its Affiliates
or Associates (each as defined in the Rights Agreement) at the time of such
grant and (C) shares, amounting to less than 1% of the outstanding Common Stock,
acquired by Affiliates or Associates of such Person after the time of such
grant. The Rights Agreement provides that, until the Separation Time, the Rights
will be transferred with and only with the Common Stock. Common Stock
certificates issued after the Record Time but prior to the Separation Time shall
evidence one Right for each share of Common Stock represented thereby and shall
contain a legend incorporating by reference the terms of the Rights Agreement
(as such may be amended from time to time). Notwithstanding the absence of the
aforementioned legend, certificates evidencing shares of Common Stock
outstanding at the Record Time shall also evidence one Right for each share of
Common Stock evidenced thereby. Promptly following the Separation Time, separate
certificates evidencing the Rights (“Rights Certificates”) will be delivered to
holders of record of Common Stock at the Separation Time.
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The Rights will not be exercisable until the Business Day (as defined in
the Rights Agreement) following the Separation Time. The Rights will expire on
the earliest of (i) the Exchange Time (as defined below), (ii) the close of
business on the third anniversary of the date of the Rights Agreement, (iii) the
date on which the Rights are redeemed as described below and (iv) upon the
merger of the Company into another corporation pursuant to an agreement entered
into prior to a Stock Acquisition Date (in any such case, the “Expiration
Time”).
The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of a
Common Stock dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for Common Stock.
In the event that prior to the Expiration Time a Flip-in Date occurs, the
Company shall take such action as shall be necessary to ensure and provide that
each Right (other than Rights Beneficially Owned by the Acquiring Person or any
Affiliate or Associate thereof, which Rights shall become null and void) shall
constitute the right to purchase from the Company, upon the exercise thereof in
accordance with the terms of the Rights Agreement, that number of shares of
Common Stock of the Company having an aggregate Market Price (as defined in the
Rights Agreement), on the Stock Acquisition Date that gave rise to the Flip-in
Date, equal to twice the Exercise Price for an amount in cash equal to the then
current Exercise Price. In addition, the Board of Directors of the Company may,
at its option, at any time after a Flip-in Date and prior to the time that an
Acquiring Person becomes the Beneficial Owner of more than 50% of the
outstanding shares of Common Stock, elect to exchange all (but not less than
all) of the then outstanding Rights (other than Rights Beneficially Owned by the
Acquiring Person or any Affiliate or Associate thereof, which Rights become null
and void) for shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of the Separation Time
(the “Exchange Ratio”). Immediately upon such action by the Board of Directors
(the “Exchange Time”), the right to exercise the Rights will terminate and each
Right will thereafter represent only the right to receive a number of shares of
Common Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated, as described in the
preceding paragraph, to issue shares of Common Stock upon exercise of or in
exchange for Rights, the Company, as determined by the Board of Directors of the
Company, may substitute therefor shares of Participating Preferred Stock, at a
ratio of one one-hundredth of a share of Participating Preferred Stock for each
share of Common Stock so issuable.
In the event that prior to the Expiration Time the Company enters into,
consummates or permits to occur a transaction or series of transactions after
the time an Acquiring Person has become such in which, directly or indirectly,
(i) the Company shall consolidate or merge or participate in a binding statutory
share exchange with any other Person if, immediately prior to the time of the
consolidation, merger or share exchange or at the time the Company enters into
an agreement with respect to such consolidation, merger or statutory share
exchange, the Acquiring Person controls the Board of Directors of the Company or
is the Beneficial Owner of 90% or more of the outstanding shares of Common Stock
and either (A) any term of or arrangement concerning the treatment of shares of
capital stock in such consolidation, merger or statutory share exchange relating
to the Acquiring Person is not identical to the terms and arrangements relating
to other holders of Common Stock or (B) the Person with whom such transaction or
series of transactions occurs is the Acquiring Person or an Affiliate or
Associate thereof or (ii) the Company shall sell or otherwise transfer (or one
or more of its subsidiaries shall sell or otherwise transfer) assets (A)
aggregating more than 50% of the assets (measured by either book value or fair
market value) or (B) generating more than 50% of the operating income or cash
flow, of the Company and its subsidiaries (taken as a whole) to any other Person
(other than the Company or one or more of its wholly owned subsidiaries) or to
two or more such Persons that are Affiliates or Associates or otherwise acting
in concert, if, at the time of such sale or transfer of assets or at the time
the Company (or any such subsidiary) enters into an agreement with respect to
such sale or transfer, the Acquiring Person or any of its Affiliates or
Associates controls the Board of Directors of the Company (a “Flip-over
Transaction or Event”), the Company shall take such action as shall be necessary
to ensure, and shall not enter into, consummate or permit to occur such
Flip-over Transaction or Event until it shall have entered into a supplemental
agreement with the Person engaging in such Flip-over Transaction or Event or the
parent corporation thereof (the “Flip-over Entity”), for the benefit of the
holders of the Rights, providing that, upon consummation or occurrence of the
Flip-over Transaction or Event (i) each Right shall thereafter constitute the
right to purchase from the Flip-over Entity, upon exercise thereof in accordance
with the terms of the Rights Agreement, that number of shares of common stock of
the Flip-over Entity having an aggregate Market Price on the date of
consummation or occurrence of such Flip-over Transaction or Event equal to twice
the Exercise Price for an amount in cash equal to the then current Exercise
Price and (ii) the Flip-over Entity shall thereafter be liable for, and shall
assume, by virtue of such Flip-over Transaction or Event and such supplemental
agreement, all the obligations and duties of the Company pursuant to the Rights
Agreement. For purposes of the foregoing description, the term “Acquiring
Person” shall include any Acquiring Person and its Affiliates and Associates,
counted together as a single Person.
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The Board of Directors of the Company may, at its option, at any time
prior to the Flip-in Date, redeem all (but not less than all) the then
outstanding Rights at a price of $0.01 per Right (the “Redemption Price”), as
provided in the Rights Agreement. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, without any further
action and without any notice, the right to exercise the Rights will terminate
and each Right will thereafter represent only the right to receive the
Redemption Price in cash or securities for each Right so held.
The holders of Rights will, solely by reason of their ownership of
Rights, have no rights as shareholders of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. However, the
Rights may cause substantial dilution to a person or group that acquires 15% or
more of the Common Stock unless the Rights are first redeemed by the Board of
Directors of the Company. Nevertheless, the Rights should not interfere with a
transaction that is in the best interests of the Company and its shareholders
because the Rights can be redeemed on or prior to the Flip-in Date, before the
consummation of such transaction.
As of January 15, 2010 there were 67,436,295 shares of Common Stock
issued and outstanding and 10,337,281 shares reserved for issuance pursuant to
employee benefit plans. As long as the Rights are attached to the Common Stock,
the Company will issue one Right with each new share of Common Stock so that all
such shares will have Rights attached.
The Rights Agreement (which includes as Exhibit A the forms of Rights
Certificate and Election to Exercise and as Exhibit B the Articles of Amendment)
is attached hereto as an exhibit and is incorporated herein by reference. The
foregoing description of the Rights is qualified in its entirety by reference to
the Rights Agreement and such exhibits thereto.
Item 3.03. Material Modification to Rights of
Security Holders
See Item 1.01 above, which is
incorporated herein by reference.
Item 5.03. Amendments to Articles of
Incorporation or Bylaws; Change in Fiscal Year
On January 14, 2010, the Board of Directors approved Articles of
Amendment to the Company’s Articles of Incorporation for the purpose of amending
and restating the preferences, limitations and relative rights of the
Participating Preferred Stock. The Articles of Amendment modify the terms of the
Participating Preferred Stock to (i) change the reference to the “Rights
Declaration Date” from January 18, 2000 to January 18, 2010 in connection with
the adoption of the Rights Agreement and (ii) include a statutory share exchange
among the enumerated transactions pursuant to which shares of Participating
Preferred Stock will be exchanged for or changed into other stock or securities,
cash or other property. With the exception of these modifications, the
preferences, limitations and relative rights of the Participating Preferred
Stock remain unchanged.
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7
The amendment became effective at 5:00 p.m. Eastern Standard Time on
January 18, 2010. This summary description is qualified in its entirety by the
relative rights, preferences and designations of the Participating Preferred
Stock set forth in the Articles of Amendment attached hereto as Exhibit 3.1 and
incorporated herein by reference. Certain capitalized terms used in this Item
5.03 have the meanings given to them in Item 1.01 of this report.
Item 9.01. Financial Statements and Exhibits
| 3.1 | Articles of Amendment to the Articles of Incorporation, dated January 15, 2010. | ||
| 4.1 | Shareholder Protection Rights Agreement, dated as of January 14, 2010, between Krispy Kreme Doughnuts, Inc. and American Stock Transfer & Trust Company, LLC, as Rights Agent, including as Exhibit A the forms of Rights Certificate and Election to Exercise and as Exhibit B the Articles of Amendment. | ||
| 99.1 | Press release, dated January 14, 2010, issued by the Company. | ||
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
| KRISPY KREME DOUGHNUTS, INC. | |||
| By | /s/ Douglas R. Muir | ||
| Name: Douglas R. Muir | |||
| Title: Chief Financial Officer | |||
Date: January 19, 2010
EXHIBIT INDEX
| Exhibit No. | Description | ||
| 3.1 | Articles of Amendment to the Company’s Articles of Incorporation, dated January 15, 2010. | ||
| 4.1 | Shareholder Protection Rights Agreement, dated as of January 14, 2010, between Krispy Kreme Doughnuts, Inc. and American Stock Transfer & Trust Company, LLC, as Rights Agent, including as Exhibit A the forms of Rights Certificate and Election to Exercise and as Exhibit B the Articles of Amendment. | ||
| 99.1 | Press release, dated January 14, 2010, issued by the Company. | ||