-----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, DzN9DOnjm8Fo9Ju4GKm8KkYUOj/GtOSfREba6OGx1IqHqQEsaCsCB7gZpQxFNnjf oAZmfIiO4h5ORs25U7knzQ== 0000950137-98-000461.txt : 19980218 0000950137-98-000461.hdr.sgml : 19980218 ACCESSION NUMBER: 0000950137-98-000461 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 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: 333-46305 FILM NUMBER: 98539345 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) NONEMPLOYEE DIRECTOR STOCK 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 Tiele of securities to be Amount to be maximum offering maximum aggregate registered registered price per share (a) offering price (a) Amount of registration fee - ------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.01 per share 300,000 shrs. $27.00 $8,100,000 $2,390 =================================================================================================================
(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-I 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 Nonemployee Director Stock Plan *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) II-2 4 *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 counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question II-3 5 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 Director ------------------------- Sacha Lainovic /s/ Raymond Debbane Director ------------------------- Raymond Debbane
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 --------- ----- Director /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 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 Nonemployee Director Stock Plan *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-4.03 2 NON EMPLOYEE DIRECTOR STOCK PLAN 1 Exhibit 4.03 KEEBLER FOODS COMPANY NONEMPLOYEE DIRECTOR STOCK PLAN 2 TABLE OF CONTENTS
Page ---- ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE II. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARTICLE III. ELECTION TO PARTICIPATE. . . . . . . . . . . . . . . . . . . . . 2 3.1. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 2 3.2. Election to Participate . . . . . . . . . . . . . . . . . . . 2 3.3. Amount of Participation . . . . . . . . . . . . . . . . . . . 3 3.4. Minimum Level of Participation For Investment in Options . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARTICLE IV. OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4.1. Grant of Options . . . . . . . . . . . . . . . . . . . . . . 3 4.2. Written Agreement . . . . . . . . . . . . . . . . . . . . . . 3 4.3. Exercisability of Options . . . . . . . . . . . . . . . . . . 3 4.4. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4.5. Early Vesting . . . . . . . . . . . . . . . . . . . . . . . . 4 4.6. Exercise Price . . . . . . . . . . . . . . . . . . . . . . . . 4 4.7. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4.8. Option Nontransferable . . . . . . . . . . . . . . . . . . . . 4 ARTICLE V. CHANGE IN CONTROL . . . . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE VI. ADMINISTRATION, AMENDMENT AND TERMINATION . . . . . . . . . . . . 5 6.1. Administration . . . . . . . . . . . . . . . . . . . . . . . 5 6.2. Amendment and Termination . . . . . . . . . . . . . . . . . . 5 6.3. Amendment of Options . . . . . . . . . . . . . . . . . . . . 6 ARTICLE VII. SHARES SUBJECT TO PLAN . . . . . . . . . . . . . . . . . . . . . 6 7.1. Shares Subject to Plan . . . . . . . . . . . . . . . . . . . . . 6 7.2. Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARTICLE VIII. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 7 8.1. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 7 8.2. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 7
3 KEEBLER FOODS COMPANY NONEMPLOYEE DIRECTOR STOCK PLAN The Keebler Foods Company Nonemployee Director Stock Plan ("Plan") is effective as of January 21, 1998, subject to approval of shareholders within twelve months therefrom. ARTICLE I. DEFINITIONS Whenever the following terms are used in this Plan they shall have the meanings specified below unless the context clearly indicates to the contrary: (a) "Administrator": The Board of Directors of the Company or any committee designated by the Board. (b) "Board": The Board of Directors of the Company. (c) "Change of Control": The meaning set forth in Article V. (d) "Code": The Internal Revenue Code of 1986, as amended. (e) "Company": Keebler Foods Company or any successor or successors thereto. (f) "Director": An individual duly elected or chosen as a Director of the Company, but who is neither a current nor a retired Employee of the Company, of Flowers Industries, Inc., or of Artal Luxembourg S.A., nor is appointed to the Board by Artal Luxembourg S.A. (g) "Fair Market Value": The average of the highest and lowest quoted selling prices for Shares on the relevant date, or (if there were no sales on such date) the weighted average of the means between the highest and lowest quoted selling prices on the nearest day before and the nearest day after the relevant date; provided, however, that notwithstanding the foregoing, the Committee may determine "Fair Market Value" in its discretion. (h) "Option": An option to purchase Shares granted pursuant to Section 4.1. (i) "Participation Agreement": The agreement submitted by a Director to the Administrator in which a Director may specify his or her election to invest all or a portion of his or her Retainer in Options. (j) "Plan": The Plan set forth in this instrument as it may from time to time be amended. (k) "Plan Year": The fiscal year of the Company. (l) "Retainer": The portion of a Director's annual compensation that is payable without regard to number of Board or committee meetings attended or committee positions. 4 (m) "Shares": The Company's fully paid, non-assessable common stock. Shares may be shares of original issuance or treasury shares or a combination of the foregoing. (n) "Valuation Date": The date of the meeting of the Compensation Committee of the Board first preceding the first day of a Plan Year. ARTICLE II. PURPOSE The purpose of this Plan is to provide Directors with opportunities to invest amounts of their Retainer in Options in order to further align the interests of Directors with the shareholders of the Company and thereby promote the long-term success and growth of the Company. ARTICLE III. ELECTION TO PARTICIPATE WITH RESPECT TO RETAINER 3.1. Eligibility. All individuals who are Directors as of the first day of a Plan Year may participate in the Plan with respect to the Retainer payable for such Plan Year. A Director may elect to participate for any Plan Year in accordance with Section 3.2 of this Article. A Director's entitlement to participate as to future investments shall cease with respect to the Plan Year following the Plan Year in which he or she ceases to be a Director. 3.2. Election to Participate. A Director who desires to participate in this Plan with respect to the Retainer payable for such Plan Year must complete and deliver a Participation Agreement to the Administrator before the first day of the Plan Year for which such Retainer would otherwise be paid. A Participation Agreement that is timely delivered shall be effective for the succeeding Plan Year and in addition, except as otherwise specified by a Director in his or her Participation Agreement, shall continue to be effective from Plan Year to Plan Year until revoked or modified by written notice to the Administrator or until terminated automatically upon the termination of the Plan. In order to be effective to revoke or modify a Participation Agreement with respect to the Retainer for a Plan Year, a revocation or modification must be delivered prior to the first day of the Plan Year for which such Retainer is payable. 3.3. Amount of Participation. A Director shall designate on the Participation Agreement the dollar amount of his or her Retainer that he or she has elected to invest in Options under this Plan. 3.4. Minimum Level of Participation For Investment in Options. A Director shall be permitted to invest in Options under this Plan only if for the Plan Year involved the total amount of the Retainer for the Director that is invested in Options for the Plan Year equals at least twenty-five (25) percent of the Retainer of the Director for such Plan Year. ARTICLE IV. OPTIONS 4.1. Grant of Options. (a) With Respect to Retainer. To the extent a Director elects to invest all or a portion of his or her Retainer for a Plan Year in Options, an Option shall be 2 5 granted on the first day of such Plan Year (which shall be the date of grant for said Option) for that number of Shares as determined by the Administrator which is equal to no more than 150% of the amount of the Retainer invested divided by the value of an Option for one Share on the Valuation Date. For this purpose, value shall be determined by the Black-Scholes option pricing model, as applied by the Administrator. To the extent that the application of the foregoing formula would result in an Option covering a fractional Share, the number of Shares covered by the Option shall be rounded up. (b) Outright Grants. The Board may grant Options to each Director who serves in said capacity as of any date specified by the Board, which shall be in addition to any Options granted as a consequence of an election made by a Director with respect to his Retainer. Said Options shall be subject to any further terms contained in agreements reflecting said rights executed by the Chairman or Vice Chairman of the Board. 4.2. Written Agreement. Each grant of Options shall be evidenced by a written agreement in such form as approved by the Administrator and shall be subject to the additional terms and conditions set forth in this Article IV. 4.3. Exercisability of Options. Subject to the expiration or earlier termination of the Option, 100% of the Option described in Section 4.1(a) shall become exercisable on the first anniversary of the date of grant. Options granted pursuant to Section 4.1(b) shall be immediately exercisable. 4.4. Term. An Option shall expire ten years from the date the Option is granted and shall be subject to earlier termination as hereinafter provided. Once an Option becomes exercisable, it may thereafter be exercised, wholly or in part, at any time prior to its expiration or termination. In the event of the Director's termination from service on the Board, other than as provided in Section 4.5, an outstanding Option may be exercised only to the extent it was exercisable on the date of such termination and shall expire two years after such termination, or on its stated expiration date, whichever occurs first. Notwithstanding the above, in the event of a termination for Cause as determined by the Administrator, all unexercised Options shall be forfeited. For purposes of this Agreement, "Cause" means any of the following: (1) malfeasance or gross misconduct by the Director in connection with his services to the Company or which produces material loss or damage to or has a material adverse effect on the reputation of the Company, which shall include but not be limited to instances of sexual harassment or violations of the Company's nondiscrimination policies; (2) the conviction of the Director of, or plea of nolo contendere by the Director to, (A) any felony under federal, state or local laws; or (B) a misdemeanor which involves dishonesty or fraud or produces material loss or damage to or has a material adverse effect on the reputation of the Company; or 3 6 (3) any similar action on the part of the Director which is determined by a majority of the remaining members of the Board to constitute cause for removal. 4.5. Early Vesting. Upon the occurrence of any of the following events, the Option shall become immediately and fully exercisable: the death of the Director, the disability of the Director, or a Change in Control. The Option shall expire two years after such event, or on its stated expiration date, whichever occurs first. 4.6. Exercise Price. The exercise price of an Option granted to a Director shall be determined by the Administrator with respect to each grant. 4.7. Payment. An Option may be exercised by a Director only upon payment to the Company in full of the exercise price of the Option corresponding to the portion of the Option to be exercised. Such payment shall be made in cash or in Shares previously owned by the Director for more than six months, or in a combination of cash and such Shares. 4.8. Option Nontransferable. (a) Unless otherwise determined by the Administrator, or as provided in subparagraph (b) below, the Option shall be neither transferable nor assignable by the Director other than by will or by the laws of descent and distribution and may be exercised, during the lifetime of the Director, only by the Director, or in the event of his or her legal incapacity, by his or her guardian or legal representative acting on behalf of the Director in a fiduciary capacity under the state law and court supervision. (b) Notwithstanding the provisions of subparagraph (a), Options shall be transferable by a Director without payment of consideration therefor by the transferee, to any one or more members of the Director's immediate family (as described in Rule 16a-1(e) of the Securities Exchange Act of 1934) (or to one or more trusts established solely for the benefit of one or more members of the Director's immediate family or to one or more partnerships in which the only partners are members of the Director's immediate family or to an organization which is exempt from federal taxation pursuant to Section 501(c)(3)of the Code; provided, however, that (i) no such transfer shall be effective unless reasonable prior notice thereof is delivered to the Company and such transfer is thereafter effected in accordance with any terms and conditions that shall have been made applicable thereto by the Board and (ii) any such transferee shall be subject to the same terms and conditions hereunder as the Director. ARTICLE V. CHANGE IN CONTROL For purposes of this Plan, a "Change in Control" means the first to occur of the following events: (1) The effective time of any purchase, sale, merger, consolidation or other transaction after which any person, corporation, partnership or other entity other than Flowers Industries, Inc. ("Flowers") or its Affiliates, the then current management of the Company or of Flowers or any member of the immediate family of said management, or any employee benefit plan of Company or of Flowers ("Permitted Owners") shall own more than fifty 4 7 percent (50%) of the outstanding capital stock of the Company which stock is entitled to vote for the election of directors. (2) The effective time of a transfer to an entity other than a Permitted Owner of substantially all of the property of the Company. (3) Continuing Directors at any time fail to constitute a majority of the Board of Directors of the Company. "Continuing Directors" shall mean the members of the Board of Directors as of the date hereof, plus any new directors whose nominations were approved by at least a majority of the Continuing Directors in office at the time of the election of any such new directors. ARTICLE VI. ADMINISTRATION, AMENDMENT AND TERMINATION 6.1. Administration. The Plan shall be administered by the Administrator. The Administrator shall have such powers as may be necessary to discharge its duties hereunder. The Administrator may, from time to time, employ, appoint or delegate to an agent or agents (who may be an officer or officers of the Company) and delegate to them such administrative duties as it sees fit, and may from time to time consult with legal counsel who may be counsel to the Company. The Administrator shall have no power to add to, subtract from or modify any of the terms of the Plan, or to change or add to any benefits provided under the Plan, or to waive or fail to apply any requirements of eligibility for a benefit under the Plan. No member of the Administrator shall act in respect of his or her own Retainer. All decisions and determinations by the Administrator shall be final and binding on all parties. No member of the Administrator shall be liable for any such action taken or determination made in good faith. All decisions of the Administrator shall be made by the vote of the majority, including actions and writing taken without a meeting. All elections, notices and directions under the Plan by a Director shall be made on such forms as the Administrator shall prescribe. 6.2. Amendment and Termination. The Board may alter or amend this Plan from time to time or may terminate it in its entirety; provided, however, that no such action, except for an acceleration of benefits, shall, without the consent of a Director, impair the rights in any Shares issued or to be issued to such Director, as a result of a grant of Options under the Plan; and further provided, that any amendment that must be approved by the shareholders of the Company in order to comply with applicable law or the rules of the principal national securities exchange upon which the Shares are traded or quoted shall not be effective unless and until such approval has been obtained in compliance with such applicable law or rules. Presentation of this Plan or any amendment hereof for shareholder approval shall not be construed to limit the Company's authority to offer similar or dissimilar benefits through plans that are not subject to shareholder approval. 6.3. Amendment of Options. The Administrator shall not, without the further approval of the shareholders of the Company, authorize the amendment of any outstanding Option to reduce the exercise price of the Option. Furthermore, no Option shall be canceled and replaced with awards having a lower exercise price without further approval of the shareholders of the 5 8 Company. This Section 6.3 is intended to prohibit the repricing of "underwater" Options and shall not be construed to prohibit the adjustments provided for in Section 7.2 of this Plan. ARTICLE VII. SHARES SUBJECT TO PLAN 7.1. Shares Subject to Plan. Subject to adjustment as provided in this Plan, the total number of Shares which may be issued under this Plan shall be three hundred thousand (300,000). 7.2. Adjustments. The Administrator may make or provide for such adjustments in the (a) number of Shares covered by outstanding Options granted or awarded hereunder, (b) prices per share applicable to such Options, and (c) kind of shares covered thereby, as the Administrator in its sole discretion may in good faith determine to be equitably required in order to prevent dilution or enlargement of the rights of Directors that otherwise would result from (x) any stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, (y) any merger, consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial or complete liquidation of the Company or other distribution of assets, issuance of rights or warrants to purchase securities of the Company, or (z) any other corporate transaction or event having an effect similar to any of the foregoing. In the event of any such transaction or event, the Administrator may provide in substitution for any or all outstanding grants or awards under this Plan such alternative consideration as it may in good faith determine to be equitable under the circumstances and may require in connection therewith the surrender of all awards so replaced. Moreover, the Administrator may on or after the date of grant provide in the agreement evidencing any grant or award under this Plan that the holder of the grant or award may elect to receive an equivalent grant or award in respect of securities of the surviving entity of any merger, consolidation or other transaction or event having a similar effect, or the Administrator may provide that the holder will automatically be entitled to receive such an equivalent grant or award. The Administrator may also make or provide for such adjustments in the number of shares specified in Section 7.1 of this Plan as the Administrator in its sole discretion may in good faith determine to be appropriate in order to reflect any transaction or event described in this Section 7.2. This Section 7.2 shall not be construed to permit the re-pricing of any Options in the absence of any of the circumstances described above in contravention of Section 6.3 of this Plan. ARTICLE VIII. GENERAL PROVISIONS 8.1. Governing Law. The provisions of this Plan shall be governed by and construed in accordance with the laws of the State of Delaware. 8.2. Miscellaneous. Headings are given to the sections of this Plan solely as a convenience to facilitate reference. Such headings, numbering and paragraphing shall not in any case be deemed in any way material or relevant to the construction of this Plan or any provisions thereof. The use of the singular shall also include within its meaning the plural, and vice versa. 6 EX-5.01 3 OPINION OF WINSTON & STRAWN 1 Exhibit 5.01 Keebler Foods Company 677 Larch Avenue Elmhurst, Illinois 60126 Re: 300,000 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 300,000 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 Nonemployee Director Stock 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 4 CONSENT OF COOPERS & LYBRAND 1 EXHIBIT 23.02 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 22, 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 5 CONSENT OF DELOITTE & TOUCHE 1 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-----