<PAGE> 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
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
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
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value
$.01 per share 300,000 shrs. $27.00 $8,100,000 $2,390
=================================================================================================================
</TABLE>
(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.
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/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
</TABLE>
<PAGE> 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
<PAGE> 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.
<PAGE> 1
Exhibit 4.03
KEEBLER FOODS COMPANY NONEMPLOYEE
DIRECTOR STOCK PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
</TABLE>
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
