EX-5.1 4 d107564dex51.htm EX-5.1 EX-5.1

Exhibit 5.1

 

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

  

ONE MANHATTAN WEST

NEW YORK, NY 10001

   FIRM/AFFILIATE
  OFFICES
                          

 

 

  BOSTON

TEL: (212) 735-3000

   CHICAGO
FAX: (212) 735-2000   HOUSTON
www.skadden.com   LOS ANGELES
  PALO ALTO
  WASHINGTON, D.C.
  WILMINGTON
 

 

 

  BEIJING
  BRUSSELS
  FRANKFURT
  HONG KONG
  LONDON

June 22, 2021

   MOSCOW
  MUNICH
  PARIS
  SÃO PAULO
  SEOUL
  SHANGHAI
  SINGAPORE
  TOKYO
  TORONTO

Krispy Kreme, Inc.

2116 Hawkins Street

Charlotte, NC 28203

 

  Re:

Krispy Kreme, Inc.

Registration Statement on Form S-1

Ladies and Gentlemen:

We have acted as special United States counsel to Krispy Kreme, Inc., a Delaware corporation (the “Company”), in connection with the public offering by the Company of 26,666,667 shares of common stock, par value $0.01 per share (“Common Stock”), of the Company (including up to 4,000,000 shares of Common Stock subject to an over-allotment option) (the “Shares”).

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the “Securities Act”).

In rendering the opinions stated herein, we have examined and relied upon the following:

(a)        the registration statement on Form S-1 (File No. 333-256664) of the Company relating to the Shares filed on June 1, 2021 with the Securities and Exchange Commission (the “Commission”) under the Securities Act and Pre-Effective Amendment No. 1 thereto, including the information deemed to be a part of the registration statement pursuant to Rule 430A of the Rules and Regulations under the Securities Act (the “Rules and Regulations”) (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”);

(b)        the prospectus, dated June 22, 2021 (the “Prospectus”), which forms a part of and is included in the Registration Statement;

(c)        the form of the Underwriting Agreement (the “Underwriting Agreement”) proposed to be entered into among the Company, J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, as representatives of the several Underwriters named in Schedule 1 thereto (the “Underwriters”), relating to the sale by the Company to the Underwriters of the Shares, filed as Exhibit 1.1 to the Registration Statement;

(d)        an executed copy of a certificate of Catherine Tang, Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);

(e)        a copy of the Company’s Second Amended and Restated Certificate of Incorporation in effect as of May 10, 2021 and June 21, 2021, certified by the Secretary of State of the State of Delaware as of April 20, 2021, and certified pursuant to the Secretary’s Certificate;

Krispy Kreme, Inc.

June 22, 2021

Page 2

(f)        a copy of the Certificate of Amendment to the Company’s Second Amended and Restated Certificate of Incorporation in effect as of May 10, 2021 and June 21, 2021, certified by the Secretary of State of the State of Delaware as of May 10, 2021, and certified pursuant to the Secretary’s Certificate;

(g)        a copy of the Company’s Third Amended and Restated Certificate of Incorporation, to be in effect prior to the consummation of the offering of the Shares and filed as Exhibit 3.1 to the Registration Statement;

(h)        a copy of the Company’s Amended and Restated Bylaws, as amended and in effect as of April 20, 2021 and certified pursuant to the Secretary’s Certificate;

(i)        a copy of the Company’s Second Amended and Restated Bylaws, as amended and in effect as of May 10, 2021 and June 21, 2021 and certified pursuant to the Secretary’s Certificate;

(j)        a copy of the Company’s Third Amended and Restated Bylaws, to be in effect prior to the consummation of the offering of the Shares and filed as Exhibit 3.2 to the Registration Statement; and

(k)        copies of certain resolutions of the Board of Directors of the Company, adopted on May 28, 2021 and June 21, 2021, each certified pursuant to the Secretary’s Certificate.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below, including the facts and conclusions set forth in the Secretary’s Certificate and the factual representations and warranties contained in the Underwriting Agreement.

In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials, including the factual representations and warranties set forth in the Underwriting Agreement. In addition, we have assumed that the issuance of the Shares will not violate or conflict with any agreement or instrument binding on the Company (except that we do not make this assumption with respect to the Third Amended and Restated Certificate of Incorporation and the Second Amended and Restated Bylaws or those agreements or instruments expressed to be governed by the laws of the State of New York which are listed in Part II of the Registration Statement).

We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the “DGCL”).

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act; (ii) the Underwriting Agreement has been duly authorized, executed and delivered by the Company and the other parties thereto; (iii) the Third Amended and Restated Certificate of Incorporation has been filed with the Secretary of State of the State of Delaware and has become effective and the Board of Directors of the Company, including any appropriate committee appointed thereby, has taken all necessary corporate action to adopt the Company’s Second Amended and Restated Bylaws and to approve the issuance and sale of the Shares and related matters, including the price per share of the Shares; (iv) the Shares are registered in the Company’s share registry and delivered upon payment of the consideration therefor determined by the Board of Directors, the Shares, when issued and sold in accordance with the provisions of the Underwriting Agreement, will be duly authorized by all requisite corporate action on the part of the Company under the DGCL and validly issued, fully paid and nonassessable; provided that the consideration therefor is not less than $0.01 per Share.

We hereby consent to the reference to our firm under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations.

 

Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP

LKB