As filed with the Securities and Exchange Commission on October 4, 1996
Registration No. 33-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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INTERSTATE BAKERIES CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware 43-1470322
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
12 East Armour Boulevard
Kansas City, Missouri 64111
(816) 561-6600
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(Address, including zip code, and telephone
number, including area code, of Registrant's
principal executive offices)
INTERSTATE BAKERIES CORPORATION
1996 STOCK INCENTIVE PLAN
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(Full title of the plan)
Ray Sandy Sutton, Esq.
Interstate Bakeries Corporation
12 East Armour Boulevard
Kansas City, Missouri 64111
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(Name and address of agent for service)
(816) 502-4000
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(Telephone number, including area code, of agent for service)
Copy to:
Jennings J. Newcom, Esq.
Shook, Hardy & Bacon L.L.P.
One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Calculation of Registration Fee
Title of Amount to Proposed maximum Proposed maximum Amount of
Securities to be offering price aggregate Registration
be registered registered(1) per unit(2) offering price fee(3)
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Common Stock 2,833,500 $36.50 $103,422,750 $31,340.23
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(1) Does not include shares of common stock reserved for issuance under
the 1991 Stock Option Plan which were previously registered on Form
S-8 (File No. 33-41901), which are being transferred for use under the
1996 Stock Incentive Plan (the "Plan"). The filing fee required by the
Securities Act of 1933 (the "Act") and Rule 457 is being paid with
respect to the additional securities only.
(2) Estimated pursuant to Rule 457(h)of the Act solely for the purpose of
calculating the registration fee and based on the closing sales price
of $36.50 on the New York Stock Exchange of the registrant's Common
Stock on September 30, 1996.
(3) Reflects the proposed maximum aggregate offering price multiplied by
1/33 of 1%.
Pursuant to Rule 416(a) under the Act, the amount of securities
registered under this Registration Statement shall include an
indeterminate number of additional Common Stock that may become
issuable pursuant to the anti-dilution provisions of the Plan.
In addition, pursuant to Rule 416(c) under the Act, this Registration
Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
Total Sequentially Exhibit Index is on
Numbered Pages: 13 Sequentially Numbered
Page: 7
FORM S-8 REGISTRATION STATEMENT
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INTERSTATE BAKERIES CORPORATION
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Part I
Item 1. Plan Information.
The documents containing the information specified in Part I of
Form S-8 which are to be delivered to participants in the registrant's
1996 Stock Incentive Plan (the "Plan") have not been filed with the
Commission pursuant to the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
The registrant agrees to provide the participants in the Plan without
charge, upon written or oral request, the documents incorporated by
reference in Item 3 of Part II of this Registration Statement. The
documents incorporated by reference in Item 3 of Part II are
incorporated by reference into the Section 10(a) prospectus. The
registrant will also provide to the participants in the Plan without
charge, upon written or oral request, the other documents required to
be delivered pursuant to Rule 428 of the Act, including the
registrant's annual report to security holders for its latest fiscal
year, the registrant's annual report on Form 10-K for its last fiscal
year and copies of all reports, proxy statements and other
communications distributed to its security holders generally.
Part II
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated herein by reference
in the Registration Statement:
(a) The registrant's latest annual report;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered
by the registrant's latest annual report;
(c) The description of the registrant's Common Stock contained in
the Form 8-A Registration Statement filed under Section 12
of the Exchange Act, including any amendments or reports
updating such description.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed incorporated by
reference in the Registration Statement and to be part thereof from
the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article Seventh of the Certificate of Incorporation of the registrant
provides that the registrant shall, to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law (the "DGCL"),
indemnify all persons whom it may indemnify pursuant thereto and shall
advance expenses of litigation to directors and officers in accordance
with the procedures and limitations set forth on the registrant's
bylaws.
Section 145 of the DGCL provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party
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 the corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Section 145 of the DGCL further provides that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall
deem proper.
Section 145 of the DGCL also provides that to the extent that a
director, officer, employee or agent of a corporation has been
successful on the merits or otherwise in defense of any action, suit
or proceeding to which he is to be indemnified under Section 145, or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses.
With respect to insurance, Section 145 of the DGCL states that a
corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability under Section 145 of the DGCL.
Article VIII of the bylaws of the registrant provides that the
registrant shall indemnify all directors, officers, and employees or
agents to the fullest extent permitted, and in the manner provided by
the DGCL, whenever they are defendants in any legal or administrative
proceeding by reason of their relationship with the registrant.
Article VIII also sets forth the manner by which the registrant shall
advance expenses of litigation to directors and officers and the
procedure for indemnification thereunder. Article VIII of the bylaws
further provides that the registrant shall purchase and maintain
insurance on behalf of, among others, any person who is or was or has
agreed to become a director, officer, employee or agent of the
registrant, against any liability asserted against him or her and
incurred by him or her or on his or her behalf in any such capacity,
or arising out of his or her status as such, whether or not the
registrant would have the power to indemnify him or her against such
liability provided that such insurance is available on acceptable
terms as determined by a vote of a majority of the entire Board of
Directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
No.
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4.1 The registrant's Restated Certificate of Incorporation, filed as an
exhibit to the registrant's Registration Statement on Form S-1, filed
May 24, 1991 (File No. 33-40830), as amended, is hereby incorporated
by reference.
4.2 Amended Article FOURTH of the registrant's Restated Certificate of
Incorporation, filed as an exhibit to the registrant's Annual Report
on Form 10-K, filed on August 30, 1995, is hereby incorporated by
reference.
4.3 The registrant's Restated Bylaws, filed as an exhibit to the
registrant's Annual Report on Form 10-K, filed August 30, 1991, is
hereby incorporated by reference.
4.4 The Company's 1996 Stock Incentive Plan, filed as an exhibit to the
Company's Definitive Proxy Statement for the Annual Meeting of
Stockholders held September 24, 1996, is hereby incorporated by
reference.
5.1 Opinion of Shook, Hardy & Bacon L.L.P.
23.1 Consent of Shook, Hardy & Bacon L.L.P. (contained in exhibit 5.1).
23.2 Consent of Deloitte & Touche, LLP.
24. Powers of Attorney (contained on signature pages hereto).
Item 9. Undertakings.
The undersigned registrant hereby undertakes as follows:
That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
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.
That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant 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 registrant 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 whether
such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, Interstate Bakeries Corporation 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 Kansas City, State of Missouri, on
October 4, 1996.
INTERSTATE BAKERIES CORPORATION
By: /s/ Charles A. Sullivan
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Charles A. Sullivan
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles A. Sullivan and
Ray Sandy Sutton and each of them, his true and lawful attorneys-in
-fact and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments)
to this Registration Statement and to file the same with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in
-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ Charles A. Sullivan Chairman of the Board October 4, 1996
- -------------------------- Chief Executive Officer and
Charles A. Sullivan Director
(Principal Executive Officer)
/s/ Paul E. Yarick Vice President & Treasurer October 4, 1996
- -------------------------- (Principal Financial Officer)
Paul E. Yarick
/s/ John F. McKenny Vice President and Corporate October 4, 1996
- -------------------------- Controller
John F. McKenny (Principal Accounting Officer)
/s/ G. Kenneth Baum Director October 4, 1996
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G. Kenneth Baum
/s/ Leo Benatar Director October 4, 1996
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Leo Benatar
/s/ E. Garrett Bewkes, Jr. Director October 4, 1996
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E. Garrett Bewkes, Jr.
/s/ Philip Briggs Director October 4, 1996
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Philip Briggs
/s/ James R. Elsesser Director October 4, 1996
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James R. Elsesser
/s/ Robert B. Calhoun, Jr. Director October 4, 1996
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Robert B. Calhoun, Jr.
/s/ Frank E. Horton Director October 4, 1996
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Frank E. Horton
/s/ William P. Stiritz Director October 4, 1996
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William P. Stiritz
INTERSTATE BAKERIES CORPORATION
FORM S-8
EXHIBIT INDEX
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No. Description
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4.1* The Interstate Bakeries Corporation Restated
Certificate of Incorporation was filed as an
exhibit to the Registration Statement on Form
S-1, filed May 24, 1991 (File No. 33-40830), as
amended, and is hereby incorporated by reference.
4.2* Amended Article FOURTH to the Interstate Bakeries
Corporation was filed as an exhibit to the Annual
Report on Form 10-K on August 30, 1995, and is
hereby incorporated by reference.
4.3* The Interstate Bakeries Corporation Restated
Bylaws were filed as an exhibit to the Annual
Report on Form 10-K on August 30, 1991 and are
duly incorporated by reference.
4.4* Interstate Bakeries Corporation 1996 Stock
Incentive Plan was filed as an exhibit to the
Company's Definitive Proxy Statement for the
Annual Meeting of Stockholders held September 24,
1996 and is hereby incorporated by reference.
5.1 Opinion of Shook, Hardy & Bacon L.L.P.
23.1 Consent of Shook, Hardy & Bacon L.L.P. (included
within exhibit 5.1)
23.2 Consent of Deloitte & Touche, LLP
24 Powers of Attorney (contained on signature pages
hereto).
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* Previously Filed
EXHIBIT 5.1
October 2, 1996
Interstate Bakeries Corporation
12 East Armour Boulevard
Kansas City, MO 64141
RE: Common Stock, $.01 Par Value
Gentlemen:
As counsel for Interstate Bakeries Corporation, a Delaware
corporation (the "Company"), we have participated in the preparation and
filing of a Registration Statement on Form S-8 (the "Registration Statement")
for the registration of 2,833,500 shares of common stock, par value $.01 per
share, of the Company (the "Common Stock") pursuant to the Company's 1996
Stock Incentive Plan (the "Plan").
In connection therewith, we have examined: (i) the Restated
Articles of Incorporation of the Company, as amended; (ii) the Restated Bylaws
of the Company, as amended; (iii) the Registration Statement; (iv) the Plan;
(v) the minutes of the meeting of the Board of Directors of the Company at
which the Directors adopted the Plan; and (vi) the minutes of the 1996 Annual
Meeting of Stockholders of the Company at which the stockholders approved the
Plan.
In addition to the examinations outlined above, we have conferred
with various officers of the Company and have examined such other documents
and records of the Company as we deemed necessary as a basis for the opinions
hereafter expressed. In such examinations, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
certified copies or photocopies.
Based on the foregoing, we are of the opinion that the Common
Stock, when issued and paid for in accordance with and pursuant to the terms
set forth in the Plan and the award agreements issued thereunder, will be
legally issued, fully paid and nonassessable.
We express no opinion as to the laws of any jurisdiction other
than The General and Business Corporation Law of Delaware. The opinion set
forth in this letter is effective as of the date hereof. No expansion of our
opinion may be made by implication or otherwise. We express no opinion other
than as herein expressly set forth. We do not undertake to advise you with
respect to any matter within the scope of this letter which comes to our
attention after the date of this letter and disclaim any responsibility to
advise you of future changes of law or fact which may affect the above
opinion. Other than the addressee hereof, no one is entitled to rely on this
opinion; provided, however, that we hereby consent to all references to the
undersigned in the Registration Statement, and in all amendments thereto, and
to the filing of this opinion by the Company as an exhibit to said
Registration Statement.
Very truly yours,
/s/ Shook, Hardy & Bacon L.L.P.
SHOOK, HARDY & BACON L.L.P.
EXHIBIT 23.2
Deloitte & Touche LLP
Suite 400, 1010 Grand Avenue
Kansas City, Missouri 64106-2232
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Interstate Bakeries Corporation on Form S-8 of our report dated July 19,
1996, appearing in the Annual Report on Form 10-K of Interstate Bakeries
Corporation for the year ended June 1, 1996.
/s/ Deloitte & Touche LLP
October 1, 1996
