-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VMIjuEFgFK1WhFubvT4AayZgI2AXThFnIsIwtSJ9+C825Db/l+9JYyBn9N8x8HCo FQQ05+z3bz0P8B9zYo756Q== 0000950137-98-000459.txt : 19980218 0000950137-98-000459.hdr.sgml : 19980218 ACCESSION NUMBER: 0000950137-98-000459 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980213 EFFECTIVENESS DATE: 19980213 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: KEEBLER FOODS CO CENTRAL INDEX KEY: 0001018848 STANDARD INDUSTRIAL CLASSIFICATION: COOKIES & CRACKERS [2052] IRS NUMBER: 361894790 STATE OF INCORPORATION: DE FISCAL YEAR END: 1228 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-46299 FILM NUMBER: 98539150 BUSINESS ADDRESS: STREET 1: 677 LARCH AVE CITY: ELMHURST STATE: IL ZIP: 60126 BUSINESS PHONE: 6308332900 FORMER COMPANY: FORMER CONFORMED NAME: KEEBLER CORP DATE OF NAME CHANGE: 19960715 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on February 13, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ______________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ______________________ KEEBLER FOODS COMPANY (Exact name of registrant as specified in its charter) Delaware 36-1894790 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 677 Larch Avenue Elmhurst, Illinois 60126 (630) 833-2900 (Address, including ZIP code, and telephone number, including area code, of registrant's principal executive offices) 1996 STOCK PURCHASE AND OPTION PLAN (Full title of plan) Thomas E. O'Neill Copy to: Vice President, Secretary and Bruce A. Toth, Esq. General Counsel John L. MacCarthy, Esq. Keebler Foods Company Winston & Strawn 677 Larch Avenue 35 West Wacker Drive Elmhurst, Illinois 60126 Chicago, Illinois 60601 (630) 833-2900 (312) 558-5600 (Name, address, including ZIP code, and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------- Proposed Proposed Title of securities Amount to be maximum offering maximum aggregate Amount of to be registered registered price per share (a) offering price (a) registration fee - -------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share 9,673,594 shrs. $ 27.00 $ 261,187,038 $ 77,051 ==============================================================================================================
(a) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based upon the average of the high and low prices of the common stock, par value $.01 per share, of Keebler Foods Company on the New York Stock Exchange on February 6, 1998. 2 PART I INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participating employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed with the Securities and Exchange Commission (the "Commission") by Keebler Foods Company (the "Company") are incorporated herein by reference: (a) The Company's Prospectus as filed with the Commission on February 2, 1998 under the Securities Act, containing audited financial statements for the Company's fiscal year 1996. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the Prospectus referenced above. (c) The description of the Company's Common Stock, par value $.01 per share (the "Common Stock"), which is contained in the registration statement on Form 8-A filed with the Commission on December 12, 1997 under the Exchange Act of 1934, as amended (the "Exchange Act") (Commission File No. 001-13705), including any subsequent amendment or any report filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold are deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as "Incorporated Documents"). Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such 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. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL -------------------------------------- None. II-1 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS ----------------------------------------- The Company is incorporated under the laws of the State of Delaware. Section 145 of the Delaware Law ("Section 145") provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action or proceeding, if he acted in good faith and in a manner he reasonably believed to be in the best interests of the corporation, and, with respect to any criminal action, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred. As permitted by Section 102(b)(7) of the Delaware Law, the Certificate of Incorporation provides that directors of the Company shall have no personal liability to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of a director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violations of law, (iii) pursuant to Section 174 of the Delaware Law, or (iv) for any transaction from which a director derived an improper personal benefit. The Company's Bylaws provide for the indemnification of directors and officers of the Company to the fullest extent permitted by Section 145. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED ----------------------------------- Not applicable. ITEM 8. EXHIBITS -------- Exhibit Number Description of Exhibit - ------ ---------------------- 4.01 Amended and Restated Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1 filed with the Commission (Commission File No. 333-42075) on December 12, 1997, as amended (the "Registration Statement"), and hereby incorporated by reference) 4.02 Amended and Restated By-laws of the Company (filed as Exhibit 3.2 to the Registration Statement and hereby incorporated by reference) 4.03 1996 Stock Purchase and Option Plan (filed as Exhibit 10.12 to the Registration Statement and hereby incorporated by reference) *5.01 Opinion of Winston & Strawn as to the legality of the securities being registered II-2 4 *23.01 Consent of Winston & Strawn (included in its opinion filed as Exhibit 5.01) *23.02 Consent of Coopers & Lybrand L.L.P. *23.03 Consent of Deloitte & Touche LLP 24.01 Powers of Attorney (included on signature page) - ----------------- * Filed herewith. ITEM 9. UNDERTAKINGS (a) The undersigned Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for 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. (b) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company'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 the 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. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its II-3 5 counsel the matter 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. II-4 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Elmhurst, State of Illinois, on February 13, 1998. KEEBLER FOODS COMPANY By: /s/ Sam K. Reed ------------------------------------------ Sam K. Reed President and Chief Executive Officer POWER OF ATTORNEY The undersigned directors and executive officers of Keebler Foods Company do hereby constitute and appoint E. Nichol McCully and Thomas E. O'Neill, and each of them, with full power of substitution, our true and lawful attorneys-in-fact and agents to do any and all acts and things in our name and behalf in our capacities as directors and officers, and to execute any and all instruments for us and in our names in the capacities indicated below which such person may deem necessary or advisable to enable Keebler Foods Company to comply with the Securities Act of 1933, as amended (the "Securities Act"), and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this Registration Statement, including specifically, but not limited to, power and authority to sign for us, or any of us, in the capacities indicated below, any and all amendments (including pre-effective and post-effective amendments) hereto; and we do hereby ratify and confirm all that such person or persons shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on February 13, 1998.
Signature Title --------- ----- /s/ Sam K. Reed President, Chief Executive Officer (Principal - -------------------------- Executive Officer) and Director Sam K. Reed /s/ E. Nichol McCully Chief Financial Officer and Senior Vice President - - -------------------------- Finance (Principal Financial Officer) E. Nichol McCully /s/ James T. Spear Vice President Finance and Corporate Controller - -------------------------- (Principal Accounting Officer) James T. Spear /s/ Sacha Lainovic - -------------------------- Sacha Lainovic Director /s/ Raymond Debbane - -------------------------- Raymond Debbane Director
7 POWER OF ATTORNEY The undersigned directors and executive officers of Keebler Foods Company, a Delaware corporation (the "Company"), in connection with the proposed registration by the Company of shares of its Common Stock, par value $.01 per share, do hereby constitute and appoint E. Nichol McCully and Thomas E. O'Neill, and each of them, with full power of substitution, our true and lawful attorneys-in-fact and agents to sign, execute and file a Registration Statement on Form S-8 relating to such securities to be filed with the Securities and Exchange Commission, together with any and all amendments and exhibits thereto, and any and all documents required to be filed with any state securities commission or other regulatory authority with respect to the securities covered by such Registration Statement, with full power and authority to do and perform any and all acts and things whatsoever necessary to be done to effectuate the same, hereby ratifying and approving the acts of said attorneys and each of them and any substitute or substitutes. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on February 13, 1998. Signature Title --------- ----- /s/ Robert Crozer - ------------------------------ Robert Crozer Director /s/ Amos R. McMullian - ------------------------------ Amos R. McMullian Director /s/ Jimmy Woodward - ------------------------------ Jimmy Woodward Director /s/ G. Anthony Campbell - ------------------------------ G. Anthony Campbell Director /s/ Franklin L. Burke - ------------------------------ Franklin L. Burke Director /s/ C. Martin Wood III - ------------------------------ C. Martin Wood III Director 8 INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8 -------------------------------------------------------
Exhibit Number Description of Exhibit Page - ------ ---------------------- ---- 4.01 Amended and Restated Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1 filed with the Commission (Commission File No. 333-42075) on December 12, 1997, as amended (the "Registration Statement"), and hereby incorporated by reference) 4.02 Amended and Restated By-laws of the Company (filed as Exhibit 3.2 to the Registration Statement and hereby incorporated by reference) 4.03 1996 Stock Purchase and Option Plan (filed as Exhibit 10.12 to the Registration Statement and hereby incorporated by reference) *5.01 Opinion of Winston & Strawn as to the legality of the securities being registered *23.01 Consent of Winston & Strawn (included in its opinion filed as Exhibit 5.01) *23.02 Consent of Coopers & Lybrand L.L.P. *23.03 Consent of Deloitte & Touche LLP 24.01 Powers of Attorney (included on signature page)
- ----------------- * Filed herewith. EX-5.01 2 OPINION OF WINSTON & STRAWN 1 Exhibit 5.01 Keebler Foods Company 677 Larch Avenue Elmhurst, Illinois 60126 Re: 9,673,594 Shares of Common Stock, $0.01 par value, of Keebler Foods Company Ladies or Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") filed by Keebler Foods Company (the "Company") with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of 9,673,594 shares of Common Stock, $0.01 par value (the "Shares"), of the Company which may be issued from time to time upon exercise of stock options or other awards granted to employees of the Company pursuant to the 1996 Stock Purchase and Option Plan (the "Plan"). We are familiar with the proceedings to date with respect to the Plan and the proposed issuance and sale of the Shares and have examined such records, documents and questions of law, and satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for this opinion. Based on the foregoing, we are of the opinion that the Shares will be, as and when acquired in accordance with the terms and conditions of the Plan, legally issued, fully paid and non-assessable under the Delaware General Corporation Law. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to our firm included in or made a part of the Registration Statement. Very truly yours, /s/ Winston & Strawn EX-23.02 3 CONSENT OF COOPERS & LYBRAND 1 EXHIBIT 23.02 Consent of Coopers & Lybrand L.L.P CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement on Form S-8 of our report dated December 5, 1997, except for Note 23, as to which the date is January 23, 1998, on our audits of the consolidated financial statements of Keebler Foods Company appearing in the registration statement on Form S-1 (File No. 333-42075) of Keebler Foods Company filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933. /s/ Coopers & Lybrand L.L.P. Chicago, Illinois February 13, 1998 EX-23.03 4 CONSENT OF DELOITTE & TOUCHE 1 Consent of Deloitte and Touche LLP EXHIBIT 23.03 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Keebler Foods Company ("Keebler") on Form S-8 of our report dated May 16, 1996 on our audit of the financial statements of Sunshine Biscuits, Inc. included in the Prospectus of Keebler which is incorporated by reference herein and the reference to us under the heading "Experts" in such Prospectus. /s/ Deloitte & Touche LLP Parsippany, New Jersey February 13, 1998 -----END PRIVACY-ENHANCED MESSAGE-----