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KKD > SEC Filings for KKD > Form 8-K on 19-Jun-2013All Recent SEC Filings

Show all filings for KRISPY KREME DOUGHNUTS INC

Form 8-K for KRISPY KREME DOUGHNUTS INC


19-Jun-2013

Material Modification to Rights of Security Holders, Amendments to Art


Item 3.03 Material Modification to Rights of Security Holders.

On June 18, 2013, Krispy Kreme Doughnuts, Inc. (the "Company") filed Articles of Amendment to the Company's Restated Articles of Incorporation with the North Carolina Secretary of State adding a new Article X thereto (the "Protective Amendment") that is intended to help preserve certain tax benefits primarily associated with the Company's net operating losses and tax credit carryovers (collectively, "NOLs"). As described below under Item 5.07 of this Current Report, the Protective Amendment was approved by the shareholders of the Company at the Company's 2013 Annual Meeting of Shareholders held on June 18, 2013 (the "Annual Meeting").

The following is a summary of the material terms of the Protective Amendment. Defined terms used in this description but not otherwise defined will have the meaning ascribed to them in the Protective Amendment. This summary is qualified in its entirety by reference to the full text of the Protective Amendment that is attached to this Current Report on Form 8-K as Exhibit 3.1.

Prohibited Transfers. The transfer restrictions contained in the Protective Amendment generally will restrict any direct or indirect transfer of any of Company capital stock (such as transfers of our stock that result from the transfer of interests in other entities that own our stock) if the effect would be to:

increase the direct or indirect ownership of any of Company capital stock by any Person (as defined below) to 4.99% or more (a "five percent shareholder"); or

increase the percentage of Company capital stock owned directly or indirectly by any Person that was a five percent shareholder as of the effective time of the Protective Amendment, subject to limited exceptions.

"Person" means any individual, firm, corporation or other legal entity, including persons treated as an entity pursuant to Treasury Regulation 1.382-3(a)(1)(i), and includes any successor (by merger or otherwise) of such entity.

Transfers restricted by the Protective Amendment include sales to Persons whose resulting percentage ownership (direct or indirect) of any of Company capital stock would exceed the 4.99% threshold discussed above, or to Persons whose direct or indirect ownership of any of Company capital stock would by attribution cause another Person to exceed such threshold. Complex rules of constructive ownership, aggregation, segregation, combination and other ownership rules prescribed by the United States Internal Revenue Code of 1986, as amended (the "Code"), and related regulations are applied in determining whether a Person constitutes a five percent shareholder under the Protective Amendment. For purposes of determining the existence and identity of, and the amount of Company capital stock owned by, any shareholder, the Board of Directors will be entitled to rely on the existence or absence of certain public securities filings as of any date, subject to the Board of Directors' actual knowledge of the ownership of Company capital stock. The Protective Amendment includes the right to require a proposed transferee, as a condition to registration of a transfer of Company capital stock, to provide all information reasonably requested regarding such person's direct and indirect ownership of Company capital stock.

The transfer restrictions may result in the delay or refusal of certain requested transfers of Company capital stock, or prohibit ownership (thus requiring dispositions) of Company capital stock due to a change in the relationship between two or more persons or entities or to a transfer of an interest in an entity other than us that, directly or indirectly, owns our capital stock. The transfer restrictions will also apply to proscribe the creation or transfer of certain "options" (which are broadly defined by Section 382 of the Code) with respect to Company capital stock to the extent that, in certain circumstances, the creation, transfer or exercise of the option would result in a proscribed level of ownership.


Treatment of Existing Five Percent Shareholders. Existing five percent shareholders as of the effective time of the Protective Amendment are required to sell their shares but generally will be restricted from increasing their ownership under Section 382 of the Code.

Consequences of Prohibited Transfers. Any direct or indirect transfer attempted in violation of the restrictions contained in the Protective Amendment will be void as of the date of the prohibited transfer as to the purported transferee (or, in the case of an indirect transfer, the ownership of the direct owner of Company capital stock would terminate simultaneously with the transfer), and the purported transferee (or in the case of any indirect transfer, the direct owner) will not be recognized as a shareholder for any purpose whatsoever in respect of the shares which are the subject of the prohibited transfer, including for purposes of voting and receiving dividends or other distributions in respect of such shares, or in the case of options, receiving shares in respect of their exercise. Capital stock purportedly acquired in violation of the transfer restrictions is referred to herein as "excess securities."

In addition to the prohibited transfer being void as of the date it is attempted, upon demand by the Board of Directors, the purported transferee must transfer the excess securities to the Company's agent along with any dividends or other distributions paid with respect to such excess securities. The Company's agent is required to sell the excess securities in an arms' length transaction (or series of transactions) that would not constitute a prohibited transfer under the Protective Amendment. The net proceeds of the sale, together with any other distributions with respect to such excess securities received by the Company's agent, will be distributed first to reimburse the agent for its costs and expenses, second to the purported transferee in an amount, if any, up to the cost (or in the case of gift, inheritance or similar transfer, the market price of the excess securities at the time of the attempted transfer) incurred by the purported transferee to acquire such excess securities, and the balance of the proceeds, if any, will be distributed to the transferor (or, if the transferor cannot be readily identified, to a charity designated by the Board of Directors). If the purported transferee has resold the excess securities before receiving demand from the Company to surrender excess securities to the agent, the purported transferee shall be deemed to have sold the excess securities on behalf of the agent designated by the Board of Directors of the Company (the "Agent"), and shall be required to transfer to the Agent any prohibited distributions and proceeds of such sale (except to the extent we grant written permission to the purported transferee to retain a specified amount). Proceeds . . .



Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

The information provided under Item 3.03 above is incorporated by reference into this Item 5.03.



Item 5.07 Submission of Matters to a Vote of Security Holders.

A total of 59,932,557 shares of the Company's common stock were present or represented by proxy at the Annual Meeting on June 18, 2013 to consider and vote on the matters listed below. This represented approximately 91.5% of the Company's 65,478,713 shares of common stock that were outstanding and entitled to vote at the Annual Meeting. The proposals set forth below, each of which is described in more detail in the Company's 2013 definitive proxy statement filed with the SEC on May 24, 2013, were submitted to a vote of the shareholders and approved at the Annual Meeting.


Election of Directors

The shareholders of the Company elected each of the director nominees nominated by the Company's Board of Directors as Class II directors with terms expiring in 2016. The voting results were as follows:

Name of Nominee Votes For Votes Withheld Broker Non-Votes Charles A. Blixt 27,009,739 18,940,876 13,981,942 Lynn Crump-Caine 27,024,777 18,925,838 13,981,942 Robert S. McCoy, Jr. 27,102,682 18,847,933 13,981,942

Advisory Vote on Executive Compensation

The shareholders of the Company approved, on an advisory basis, the compensation of our named executive officers as disclosed in our 2013 Proxy Statement. The voting results were as follows:

Votes For Votes Against Abstentions Broker Non-Votes 43,171,299 1,595,105 1,184,211 13,981,942

Approval of the Articles of Amendment to the Restated Articles of Incorporation

The shareholders of the Company approved the Articles of Amendment to the Restated Articles of Incorporation. The voting results were as follows:

Votes For Votes Against Abstentions Broker Non-Votes 27,561,894 18,230,252 158,469 13,981,942

Ratification of Appointment of Independent Registered Public Accounting Firm

The shareholders of the Company ratified the appointment of PricewaterhouseCoopers LLP as the Company's independent registered public accounting firm for the fiscal year ending February 2, 2014. The voting results were as follows:

Votes For Votes Against Abstentions
59,283,708 503,773 145,076



Item 9.01 Financial Statements and Exhibits.

(d)

Exhibit No.     Description
3.1             Articles of Amendment dated June 18, 2013 to the Restated Articles of
                Incorporation of Krispy Kreme Doughnuts, Inc.

10.1            Definitive Proxy Statement filed on Schedule 14A with the SEC on May 24,
                2013 and incorporated herein by reference


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