SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
(RULE 13D-101)
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INFORMATION TO BE INCLUDED IN STATEMENT FILED PURSUANT TO
RULE 13D-1(A)
KEEBLER FOODS COMPANY
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(NAME OF ISSUER)
COMMON STOCK, $0.01 PAR VALUE
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(TITLE OF CLASS OF SECURITIES)
487256109
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(CUSIP NUMBER)
DANIEL A. NEFF, ESQ. JANET L. KELLY, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ KELLOGG COMPANY
51 WEST 52ND STREET ONE KELLOGG SQUARE
NEW YORK, NEW YORK 10019 BATTLE CREEK, MICHIGAN 49016
(212) 403-1000 (616) 961-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
OCTOBER 26, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [ ].
Note. Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
Continued on following page(s)
Page 1 of 9 Pages
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CUSIP NO. 487256109 SCHEDULE 13D (PAGE 2 OF 9)
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KELLOGG COMPANY
I.R.S. EMPLOYER IDENTIFICATION NO. 38-0710690
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(D) OR 2(E) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0 (SEE ITEM 5 OF THIS SCHEDULE 13D)
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0 (SEE ITEM 5 OF THIS SCHEDULE 13D)
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING
0 (SEE ITEM 5 OF THIS SCHEDULE 13D)
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PERSON WITH 10 SHARED DISPOSITIVE POWER
0 (SEE ITEM 5 OF THIS SCHEDULE 13D)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 (SEE ITEM 5 OF THIS SCHEDULE 13D)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [X]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0% (SEE ITEM 5 OF THIS SCHEDULE 13D)
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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Page 3 of 9
ITEM 1. SECURITY AND ISSUER
This Schedule 13D (this "Statement") relates to the common stock,
$0.01 par value per share (the "Shares"), of Keebler Foods Company, a Delaware
corporation ("Keebler"). The principal executive offices of Keebler are located
at 677 Larch Avenue, Elmhurst, Illinois 60126.
ITEM 2. IDENTITY AND BACKGROUND
This Statement is filed pursuant to Rule 13d-1 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), by Kellogg Company, a
Delaware corporation ("Kellogg"). The address of the principal executive offices
of Kellogg are located at One Kellogg Square, Battle Creek, Michigan 49016-3599.
Kellogg and its subsidiaries are engaged in the manufacture and marketing of
ready-to-eat cereal and other grain-based convenience food products on a
worldwide basis.
Information with respect to the executive officers and directors of
Kellogg, including name, business address, present principal occupation or
employment and the name, principal business and address of any corporation or
other organization in which such employment is conducted, to the best knowledge
of Kellogg, is listed on the schedule attached hereto as Schedule I, which is
incorporated herein by reference.
Neither Kellogg nor, to the best knowledge of Kellogg, any executive
officer or director of Kellogg has during the last five years been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceedings was or is subject to
a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
The citizenship of each of the executive officers and directors of
Kellogg, to the best knowledge of Kellogg, is set out on Schedule I, which is
incorporated by reference herein.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Reference is hereby made to the description of the Agreements
described in Items 4 and 5 below.
ITEM 4. PURPOSE OF TRANSACTION.
On October 26, 2000, Keebler, Kellogg and Flowers Industries, Inc.
("Flowers") entered into certain agreements which provide for Kellogg to acquire
Keebler through cash
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Page 4 of 9
mergers with each of Keebler and Flowers, the majority stockholder of Keebler,
and for Flowers to make a pro rata distribution to its shareholders, immediately
prior to completion of the mergers, of its bakery operations. These agreements
include (1) a distribution agreement dated as of October 26, 2000 between
Flowers and Flowers Foods, Inc., a wholly owned subsidiary of Flowers ("Flowers
Foods") (the "Distribution Agreement"), (2) an agreement and plan of
restructuring and merger dated as of October 26, 2000 among Kellogg, Flowers and
Kansas Merger Subsidiary, Inc., a wholly owned subsidiary of Kellogg ("Flowers
Merger Sub") (the "Flowers Merger Agreement"), (3) an agreement and plan of
merger dated as of October 26, 2000 among Kellogg, Keebler and FK Acquisition
Corp., a wholly owned subsidiary of Flowers ("Keebler Merger Sub") (the "Keebler
Merger Agreement") and (4) a voting agreement dated as of October 26, 2000
between Kellogg and Flowers (the "Voting Agreement" and collectively with the
Distribution Agreement, the Flowers Merger Agreement and the Keebler Merger
Agreement, the "Agreements").
The Distribution Agreement provides for the assets and liabilities
of Flowers other than the 46,197,466 Shares owned by Flowers and certain
retained liabilities to be assigned to, or assumed by, Flowers Foods. The bakery
businesses conducted by Mrs. Smith's Bakeries, Inc. and Flowers Bakeries Brands,
Inc., each wholly owned subsidiaries of Flowers, principally comprise the assets
and liabilities to be transferred to Flowers Foods. Flowers Foods will indemnify
Flowers for any losses incurred as a result of the liabilities assumed by
Flowers Foods or for which Flowers Foods is otherwise responsible. Immediately
prior to consummation of the Mergers (as defined below), all of the shares of
Flowers Foods common stock held by Flowers will be distributed as a stock
dividend to the shareholders of Flowers (the "Distribution"). The Distribution
is conditioned on (1) the assignment of assets to, and the assumption of
liabilities by, Flowers Foods, (2) satisfaction or waiver of the conditions to
consummation of the Flowers Merger and (3) other customary closing conditions.
The Flowers Merger Agreement provides for Flowers to become a direct
wholly owned subsidiary of Kellogg, and for each share of Flowers common stock
to be converted into the right to receive such amount of cash as determined in
accordance with Schedule I to the Flowers Merger Agreement (the "Flowers
Merger"). The aggregate cash amount to be paid by Kellogg to the Flowers
shareholders will be determined by multiplying $42 by the 46,197,466 Shares
owned by Flowers, and then subtracting the indebtedness and certain other
liabilities remaining at Flowers at the effective time of the Flowers Merger.
The cash amount per share to be received by the Flowers shareholders will be
determined by dividing this aggregate cash amount by the number of shares of
Flowers common stock which are issued and outstanding immediately prior to the
effective time of the Flowers Merger. The consummation of the Flowers Merger is
subject to the satisfaction or waiver of several closing conditions, including,
without limitation: (1) the approval and adoption of the Flowers Merger
Agreement by the shareholders of Flowers, (2) the expiration or termination of
the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, (3) the consummation of the distribution pursuant to the
Distribution Agreement, (4) the approval and adoption of the Keebler Merger
Agreement by the shareholders of Keebler and (5) other customary closing
conditions.
The Keebler Merger Agreement provides for Keebler to become a wholly
owned subsidiary of Kellogg, and for each Share held by shareholders other than
Flowers to be converted into the right to receive $42 in cash (the "Keebler
Merger" and together with the
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Flowers Merger, the "Mergers"). The consummation of the Keebler Merger is
subject to the satisfaction or waiver of several closing conditions, including,
without limitation: (1) the approval and adoption of the Keebler Merger
Agreement by the shareholders of Keebler, (2) the expiration or termination of
the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, (3) other customary closing conditions and (4) the consummation of
the Flowers Merger Agreement. The condition relating to consummation of the
Flowers Merger Agreement will be deemed to be satisfied if (a) shareholders of
Flowers have not approved and adopted the Flowers Merger Agreement by June 15,
2001, (b) the meeting of Flowers shareholders to decide such approval shall have
concluded without the approval of the Flowers Merger Agreement having been
obtained or (c) Flowers materially breaches any of its covenants or obligations
under the Flowers Merger Agreement, and in any such event the Keebler Merger
could be completed without consummating the Flowers Merger and all outstanding
Shares, including the Shares held by Flowers, would be converted into the cash
price of $42 per Share. As a result of the Keebler Merger, the officers and
directors of Keebler Merger Sub will become the officers and directors of
Keebler, as the surviving corporation in the merger between Keebler and Keebler
Merger Sub, Keebler will become a wholly owned subsidiary of Kellogg and
Keebler's Shares will cease to be publicly traded or listed.
In connection with the foregoing merger agreements, Flowers and
Kellogg entered into the Voting Agreement, whereby Flowers agreed to execute a
written consent with respect to all of its Shares in favor of the approval of
the Keebler Merger and the Keebler Merger Agreement and against any competing
business combination and to grant an irrevocable proxy to Kellogg in support of
its agreements in the Voting Agreement. Flowers also agreed not to transfer any
of its Shares prior to the earlier of the consummation of the Keebler Merger or
the termination of the Keebler Merger Agreement. Since the Voting Agreement
covers greater than 50% of the outstanding Shares, the written consent to be
delivered by Flowers with respect to the Shares it owns will be sufficient to
assure approval and adoption of the Keebler Merger Agreement by the Keebler
shareholders without the vote of any other shareholder of Keebler.
A copy of each of the Flowers Merger Agreement, the Keebler Merger
Agreement, the Distribution Agreement and the Voting Agreement is incorporated
by reference hereto as Exhibit 2.1, 2.2, 10.1 and 10.2, respectively, and each
is incorporated herein by reference. The foregoing descriptions of the
Agreements are qualified in their entirety by reference to the Agreements
attached as exhibits hereto.
Except as set forth herein or otherwise relating to integration in
connection with the Keebler Merger, Kellogg does not have any current plans or
proposals that relate to or would result in (i) the acquisition by any person of
additional Shares; (ii) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving Keebler or any of its
subsidiaries; (iii) a sale or transfer of a material amount of assets of Keebler
or any of its subsidiaries; (iv) any change in the present board of directors or
management of Keebler, including any plans or proposals to change the number or
term of directors or to fill any vacancies on the board; (v) any material change
in the present capitalization or dividend policy of Keebler; (vi) any other
material change in Keebler's business or corporate structure; (vii) any change
in Keebler's articles of incorporation or bylaws, or instruments corresponding
thereto, or other actions that may impede the acquisition of control of Keebler
by any person; (viii) causing a class of securities of Keebler to be delisted
from a national securities exchange or to cease to be
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Page 6 of 9
authorized to be quoted in an interdealer quotation system of a registered
national securities association; (ix) a class of equity securities of Keebler
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Exchange Act; or (x) any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Kellogg does not beneficially own any shares of Keebler common
stock. Pursuant to the Voting Agreement, Kellogg may be deemed to exercise the
power to direct the voting and disposition, only as to certain matters relating
to the Keebler Merger or any competing business combination, of the 46,197,466
Shares beneficially owned by Flowers, which represent approximately 54.3% of the
Shares issued and outstanding, as disclosed in the Voting Agreement. Kellogg
does not have any power to direct the voting or disposition of Shares
beneficially owned by Flowers other than the power provided pursuant to the
Voting Agreement. A copy of the Voting Agreement is incorporated by reference
hereto as Exhibit 10.2 to this Statement and is incorporated herein by
reference.
The filing of this Schedule 13D shall not be construed as an
admission that Kellogg is, for purposes of Section 13(d) or 13(g) of the
Exchange Act, the beneficial owner of any Shares, and Kellogg expressly
disclaims that it is the beneficial owner of any securities covered by this
Statement.
To the best knowledge of Kellogg, no executive officer or director
of Kellogg beneficially owns any Shares, nor have any transactions in the Shares
been effected during the past 60 days by Kellogg or, to the best knowledge of
Kellogg, by any director or executive officer of Kellogg. In addition, to the
best knowledge of Kellogg, no other person is known by Kellogg to have the right
to receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the securities covered by this Statement.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Reference is hereby made to the description of the Agreements
described in Items 4 and 5 above. Although Kellogg hereby describes a
relationship with Flowers pursuant to the Voting Agreement and may be deemed to
be a group pursuant to Rule 13d-5 under the Exchange Act, Kellogg hereby
expressly disclaims the existence of a group and the filing of this Statement
shall not be construed as an admission that Kellogg is, for purposes of Section
13(d) or 13(g) of the Exchange Act, the beneficial owner of any securities of
Keebler whether or not covered by the Voting Agreement.
Except as set forth in Items 4 and 5 above, neither Kellogg nor, to
the best knowledge of Kellogg, any directors or executive officers of Kellogg,
has any contracts, arrangements, understandings or relationships (legal or
otherwise) with any other person with
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Page 7 of 9
respect to any securities of Keebler or its subsidiaries, including any
contract, arrangement, understanding or relationship concerning the transfer or
the voting of any securities of Keebler,finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantees of profits, division of profits
or loss, or the giving or withholding of proxies relating to Keebler or any
securities of Keebler.
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Page 8 of 9
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
2.1 Agreement and Plan of Restructuring and
Merger dated as of October 26, 2000
between Flowers Industries, Inc., Kellogg
Company and Kansas Merger Subsidiary, Inc.
(incorporated by reference to exhibit 2.1
to Kellogg's Report on Form 8-K dated
November 6, 2000)
2.2 Agreement and Plan of Merger dated as of
October 26, 2000 between Keebler Foods
Company, Kellogg Company and FK Acquisition
Corp. (incorporated by reference to exhibit
2.2 to Kellogg's Report on Form 8-K dated
November 6, 2000)
10.1 Distribution Agreement dated as of October
26, 2000 between Flowers Industries, Inc.
and Flowers Foods, Inc. (incorporated by
reference to exhibit 10.1 to Kellogg's
Report on Form 8-K dated November 6, 2000)
10.2 Voting Agreement dated as of October 26,
2000 between Flowers Industries, Inc. and
Kellogg Company (incorporated by reference
to exhibit 10.2 to Kellogg's Report on
Form 8-K dated November 6, 2000)
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Page 9 of 9
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
Date: November 6, 2000
KELLOGG COMPANY
By:/s/ Janet L. Kelly
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Name: Janet L. Kelly
Title: Executive Vice President -
Corporate Development, General
Counsel and Secretary
<PAGE>
SCHEDULE I
The name, present principal occupation and citizenship of each
director and executive officer of Kellogg Company is set forth below.
Name and Business Address Principal Occupation Citizenship
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Donna J. Banks Senior Vice President, United States
Kellogg Company Global Innovation -
One Kellogg Square Kellogg Company
Battle Creek, MI 49016
Jeffrey M. Boromisa Vice President, Corporate United States
Kellogg Company Controller - Kellogg
One Kellogg Square Company
Battle Creek, MI 49016
Benjamin S. Carson, M.D. Director of Pediatric United States
Johns Hopkins Neurosurgery - The Johns
600 North Wolfe Street- Hopkins Medical
Harvey 811 Institutions
Baltimore, MD 21287-8811
John T. Dillon Chairman and Chief United States
International Paper Executive Officer -
Company International Paper
Two Manhattanville Road Company
Purchase, NY 10577
Carleton S. Fiorina President and Chief United States
Hewlett-Packard Company Executive Officer -
3000 Hanover Street Hewlett-Packard Company
Palo Alto, CA 94304
Claudio X. Gonzalez Chairman and Chief Mexico
Kimberly Clark de Executive Officer -
Mexico, S.A. De C.V. Kimberly-Clark de Mexico,
Jose Luis Lagrange 103-3 S.A. de C.V.
Ciudad de Mexico
Distrito Federal 11510
Jacobus Groot Executive Vice President, Netherlands
Kellogg Company President (Kellogg
One Kellogg Square Asia-Pacific) - Kellogg
Battle Creek, MI 49016 Company
Gordon Gund Chairman and Chief United States
Gund Investment Executive Officer- Gund
Corporation Investment Corporation
14 Nassau Street
Princeton, NJ 08542
Carlos M. Gutierrez Chairman, President and United States
Kellogg Company Chief Executive Officer-
One Kellogg Square Kellogg Company
Battle Creek, MI 49016
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Alan F. Harris Executive Vice President, Great Britain
Kellogg Company President (Kellogg
One Kellogg Square Europe) - Kellogg Company
Battle Creek, MI 49016
James M. Jenness President, Schwarz United States
Schwarz Worldwide Worldwide
8338 Austin Avenue
Morton Grove, IL 60053
Dorothy A. Johnson President - Ahlburg United States
Ahlburg Company Company
41 Washington Avenue
Suite 347
Grand Haven, MI 49417
Janet L. Kelly Executive Vice President United States
Kellogg Company - Corporate Development,
One Kellogg Square General Counsel and
Battle Creek, MI 49016 Secretary - Kellogg
Company
David Mackay Senior Vice President, New Zealand, Great
Kellogg Company President (Kellogg USA)- Britain
One Kellogg Square Kellogg Company
Battle Creek, MI 49016
Gustavo Martinez Executive Vice President, Mexico
Kellogg Company President (Kellogg Latin
One Kellogg Square America) - Kellogg Company
Battle Creek, MI 49016
Ann McLaughlin Chairman - The Aspen United States
Kellogg Company Institute
One Kellogg Square
Battle Creek, MI 49016
J. Richard Munro Director - Kellogg United States
Kellogg Company Company
One Kellogg Square
Battle Creek, MI 49016
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William D. Perez President and Chief United States
S.C. Johnson & Son, Inc. Executive Officer - S.C.
1525 Howe Street Johnson & Son, Inc.
Racine, WI 53403-2236
King Pouw Senior Vice President, United States
Kellogg Company Operations - Kellogg
One Kellogg Square Company
Battle Creek, MI 49016
William C. Richardson President and Chief United States
W.K. Kellogg Foundation Executive Officer - W.K.
One Michigan Avenue East Kellogg Foundation
Battle Creek, MI
49017-4058
Joseph M. Stewart Senior Vice President, United States
Kellogg Company Corporate Affairs -
One Kellogg Square Kellogg Company
Battle Creek, MI 49016
Michael J. Teale Senior Vice President, Great Britain
Kellogg Company Global Supply Chain -
One Kellogg Square Kellogg Company
Battle Creek, MI 49016
Thomas J. Webb Executive Vice President, United States
Kellogg Company Chief Financial Officer -
One Kellogg Square Kellogg Company
Battle Creek, MI 49016
John L. Zabriskie Chairman - NEN Life United States
Kellog Company Science Products, Inc.
One Kellogg Square
Battle Creek, MI 49016
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EXHIBIT INDEX
2.1 Agreement and Plan of Restructuring and
Merger dated as of October 26, 2000
between Flowers Industries, Inc., Kellogg
Company and Kansas Merger Subsidiary, Inc.
(incorporated by reference to exhibit 2.1
to Kellogg's Report on Form 8-K dated
November 6, 2000)
2.2 Agreement and Plan of Merger dated as of
October 26, 2000 between Keebler Foods
Company, Kellogg Company and FK Acquisition
Corp. (incorporated by reference to exhibit
2.2 to Kellogg's Report on Form 8-K dated
November 6, 2000)
10.1 Distribution Agreement dated as of October
26, 2000 between Flowers Industries, Inc.
and Flowers Foods, Inc. (incorporated by
reference to exhibit 10.1 to Kellogg's
Report on Form 8-K dated November 6, 2000)
10.2 Voting Agreement dated as of October 26,
2000 between Flowers Industries, Inc. and
Kellogg Company (incorporated by reference
to exhibit 10.2 to Kellogg's Report on
Form 8-K dated November 6, 2000)
