EX-99.4 4 tm2122260d1_ex99-4.htm EXHIBIT 4

Exhibit 4

 

LOCK-UP AGREEMENT

 

__________________, 2021

 

J.P. MORGAN SECURITIES LLC

MORGAN STANLEY & CO. LLC

 

As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below

 

c/o J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

 

c/o Morgan Stanley & Co. LLC

1585 Broadway

New York, New York 10036

 

Re:      Krispy Kreme, Inc. -- Public Offering

 

Ladies and Gentlemen:

 

The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with Krispy Kreme, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock, par value $0.01 per share (“Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.

 

In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of the Representatives on behalf of the several Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 180 days after the date of the final prospectus relating to the Public Offering (the “Prospectus”) (such period, the “Restricted Period”):

 

(1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell any option, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively, with the Common Stock, the “Lock-Up Securities”);

 

 

 

(2) enter into any hedging, swap or other agreement or transaction (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in the sale, disposition or transfer (whether by the undersigned or any other person), in whole or in part, directly or indirectly, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction is to be settled by delivery of Lock-Up Securities, in cash or otherwise;

 

(3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities; or

 

(4) publicly disclose the intention to do any of the foregoing.

 

The undersigned confirms that he, she or it has furnished the Representatives with the details of any transaction the undersigned, or any of its affiliates, is a party to as of the date hereof, which transaction would have been restricted by this Letter Agreement if it had been entered into by the undersigned during the Restricted Period.

 

Notwithstanding the foregoing, the undersigned may:

 

(a)  transfer the undersigned’s Lock-Up Securities:

 

(i) as a bona fide gift or gifts, charitable contribution or for bona fide estate planning purposes;

 

(ii) by will, testamentary document or intestate succession;

 

(iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin);

 

(iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests;

 

(v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above;

 

(vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, which distribution need not be pro rata;

 

(vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement;

 

(viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee;

 

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(ix)  as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions on or after the completion of the Public Offering (including, for avoidance of doubt, any Lock-Up Securities acquired in the Public Offering);

 

(x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights; provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity award granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus; or

 

(xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereof, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold more than 90% of the outstanding voting securities of the Company (or the surviving entity)); provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement;

 

provided that:

 

(A) in the case of any transfer or distribution pursuant to clauses (a)(i), (ii), (iii), (iv), (v) and (vi), such transfer shall not involve a disposition for value;

 

(B) in the case of any transfer or distribution pursuant to clauses (a)(i), (ii), (iii), (iv), (v) and (vi), each donee, devisee, transferee or distributee, as applicable, shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement;

 

(C) in the case of any transfer or distribution pursuant to clauses (a)(i), (ii), (iii), (iv), (v), (vi), (ix) and (x) (except for (1) any such transfer or distribution pursuant to clause (a)(vi) that is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (2) any such transfer pursuant to clause (x) that is consummated during the period beginning on the first day of the Restricted Period and ending at the close of business 30 days after the date of the Prospectus), in each case, no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily during the Restricted Period in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above); and

 

(D) in the case of any action, transfer or distribution pursuant to clauses (a)(vii) and (viii), any transfer or distribution pursuant to clause (a)(vi) that is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and any transfer pursuant to clause (a)(x) following the 30th business day after the date of the Prospectus, in each case, it shall be a condition to such action, transfer or distribution that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a change in beneficial ownership of shares of Common Stock in connection with such action, transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;

 

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(b) exercise outstanding options, settle restricted stock units or other equity awards or exercise warrants pursuant to plans described in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided that any Lock-Up Securities received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement;

 

(c) convert outstanding preferred stock, warrants to acquire preferred stock or convertible securities into shares of Common Stock or warrants to acquire shares of Common Stock; provided that, in each case, such outstanding preferred stock, warrants to acquire preferred stock or convertible securities, shall be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided further that any such shares of Common Stock or warrants received upon such conversion shall be subject to the terms of this Letter Agreement, and provided further that any filing under Section 16(a) of the Exchange Act required to be filed in connection with any conversion pursuant to this clause (c) clearly indicate in the footnotes thereto the nature and conditions of such conversion;

 

(d) establish trading plans pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Lock-Up Securities; provided that (1) such plans do not provide for the transfer of Lock-Up Securities during the Restricted Period and (2) to the extent that a public announcement or filing under the Exchange Act, if any, is required or voluntarily made in connection with this clause (d), such announcement or filing shall include a statement to the effect that no transfer of Lock-Up Securities may be made under such plan during the Restricted Period in contravention of this Letter Agreement;

 

(e) sell the Securities to be sold by the undersigned pursuant to the terms of the Underwriting Agreement;

 

(f) the transfer of the undersigned’s Lock-Up Securities to the Company in connection with the termination of the undersigned’s employment with the Company or pursuant to contractual arrangements under which the Company has the option to repurchase such Lock-Up Securities; provided that any filing under Section 16(a) of the Exchange Act required to be filed in connection with this clause (f) clearly indicate in the footnotes thereto that the filing relates to the termination of the undersigned’s employment; and

 

(g) (i) sales to the Company of shares of Common Stock to be funded by the Company with net proceeds of the Public Offering as described in the Prospectus (the “Repurchase Securities”), and (ii) transfers or sales to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall (A) be subject to the terms of this Letter Agreement and (B) constitute Repurchase Securities to be sold to the Company under clause (i), and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity award granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, further, that, in the case of any sale or transfer pursuant to this clause (g), no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a change in beneficial ownership of shares of Common Stock in connection with such action, transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer.

 

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If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Securities the undersigned may purchase in the Public Offering.

 

If the undersigned is an officer or director of the Company, the Representatives on behalf of the several Underwriters agree that, at least three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Lock-Up Securities, the Representatives on behalf of the several Underwriters will notify the Company of the impending release or waiver. Any release or waiver granted by the Representatives on behalf of the several Underwriters hereunder to any such officer or director shall only be effective for the two (2) business days following such waiver. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration or that is to the immediate family member as defined in FINRA Rule 5130(i)(5) and (b) the transferee has agreed in writing to be bound by the same terms described in this Letter Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.

 

In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.

 

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

 

The undersigned acknowledges and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned with respect to the Public Offering of the Securities and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Representatives may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Public Offering, the Representatives and the other several Underwriters are not making a recommendation to you to enter into this Letter Agreement, participate in the Public Offering, or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures is intended to suggest that the Representatives or any Underwriter is making such a recommendation.

 

The undersigned hereby consents to receipt of this Letter Agreement in electronic form and understands and agrees that this Letter Agreement may be signed electronically. In the event that any signature is delivered by facsimile transmission, electronic mail, or otherwise by electronic transmission evidencing an intent to sign this agreement, such facsimile transmission, electronic mail or other electronic transmission shall create a valid and binding obligation of the undersigned with the same force and effect as if such signature were an original. Execution and delivery of this Letter Agreement by facsimile transmission, electronic mail or other electronic transmission is legal, valid and binding for all purposes.

 

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The undersigned understands that, if the Underwriting Agreement is not executed prior to August 31, 2021, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, the undersigned shall be released from all obligations under this Letter Agreement. The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.

 

This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

[Signature page follows].

 

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    Very truly yours,
        
IF A NATURAL PERSON:   IF AN ENTITY OR TRUST:
   
By:    
  (Duly authorized signature)   (Please print complete name of entity)
     
Name:   By:
  (Please print full name)     (Duly authorized signature)
         
      Name:   
        (Please print full name)
         
      Title:  
        (Please print full title)
       
Address:   Address:  
         
         
E-mail:     E-mail:  

 

[Signature Page to Letter Agreement]