<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)
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
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value
$.01 per share 9,673,594 shrs. $ 27.00 $ 261,187,038 $ 77,051
==============================================================================================================
</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.
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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.
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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
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*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
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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
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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
- --------------------------
Sacha Lainovic Director
/s/ Raymond Debbane
- --------------------------
Raymond Debbane Director
</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
--------- -----
/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
<PAGE> 8
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
-------------------------------------------------------
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit Page
- ------ ---------------------- ----
<S> <C> <C>
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)
</TABLE>
- -----------------
* Filed herewith.
<PAGE> 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
<PAGE> 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
<PAGE> 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
