AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON SEPTEMBER 29, 2003
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
KELLOGG COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 38-0710690
(State or Other Jurisdiction of Incorporation (I.R.S. Employer Identification No.)
or Organization)
ONE KELLOGG SQUARE
BATTLE CREEK, MICHIGAN 49016-3599
(Address of Principal Executive Offices) (Zip Code)
KELLOGG COMPANY 2003 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
JAMES MARKEY, VICE PRESIDENT AND CHIEF COUNSEL -- SECURITIES AND INTERNATIONAL
KELLOGG COMPANY
ONE KELLOGG SQUARE
BATTLE CREEK, MICHIGAN 49016-3599
(Name and Address of Agent for Service)
(269) 961-2000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
BE REGISTERED) REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING OF REGISTRATION
SHARE(2) PRICE(2) FEE(2)
Common Stock 25,000,000 $33.175 $829,375,000 $67,096.44
par value $.25 per
share
1. This Registration Statement also covers, pursuant to Instruction E to
Form S-8, an additional 5,089,496 shares of common stock previously
registered on, and carried forward from, a Form S-8 Registration
Statement (File No. 333-56542) filed in connection with the Kellogg
Company 2001 Long-Term Incentive Plan and with respect to which a
registration fee of $33,629.33 has been paid.
2. Computed in accordance with Rule 457(h) under the Securities Act of
1933 solely for the purpose of calculating the registration fee.
Computation based upon the average of the high and low prices of the
common stock of the Registrant as reported on the New York Stock
Exchange as of September 24, 2003.
EXPLANATORY NOTE
Included in the total number of shares available under the Kellogg
Company 2003 Long-Term Incentive Plan, are the remaining shares available for
issuance under the Kellogg Company 2001 Long-Term Incentive Plan, which shares
have been previously registered on Form S-8 Registration Statement (File No.
333-56542). Of the 26,000,000 shares previously registered, 5,089,496 remained
available for issuance as of June 30, 2003. Pursuant to Instruction E to Form
S-8 and the telephonic interpretation of the Securities and Exchange Commission
(the "Commission") set forth in No. 89 in the Securities Act Forms section of
the Division of Corporation Finance's Manual of Publicly Available Telephone
Interpretations (July 1997), the remaining shares are carried forward to, deemed
covered by, and issued pursuant to, this Registration Statement and no
additional registration fee is due with respect to the carried forward shares.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
We shall send or give to each participant in the Kellogg Company 2003
Long-Term Incentive Plan the document(s) containing the information specified in
Part I of Form S-8 as specified by Rule 428(b)(1) of the Securities Act of 1933,
as amended (the "Securities Act"). In accordance with the rules and regulations
of the Commission, such documents are not being filed with or included in this
Registration Statement. 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 that have been filed with the Commission by
Kellogg Company (the "Registrant") are incorporated herein by reference:
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended December 28, 2002 (File No. 1-4171), containing audited financial
statements for the Registrant's latest fiscal year;
(b) The Registrant's quarterly reports on Form 10-Q for the quarters
ended March 31, 2003 and June 28, 2003 (File No. 1-4171);
(c) The Registrant's current report on Form 8-K dated June 5, 2003;
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (File No.
1-4171) since the end of the fiscal year covered by the Annual Report on Form
10-K referenced above; and
(e) The description of the Registrant's common stock, par value $.25
per share, which is contained in Item 14 of the Registrant's Application for
Registration of Securities on a National Securities Exchange on Form 10 dated
March 20, 1959 filed with the Commission (File No. 1-4171) under the Exchange
Act, including any subsequent amendment or any report filed for the purpose of
updating such description.
All documents filed by the Registrant 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
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incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein 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 document which is or is
deemed to be incorporated by reference herein 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
See Item 3.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legal matters addressed in the opinion as to the legality of the
securities being registered (attached hereto as Exhibit 5.1) have been passed on
for the Registrant by James Markey, Vice President and Chief Counsel --
Securities and International. Mr. Markey is compensated as an employee, is
eligible to participate in the Kellogg Company 2003 Long-Term Incentive Plan and
as of September 16, 2003, is the owner of approximately 860 shares of common
stock of the Registrant and is the holder of options to acquire approximately
91,400 shares of common stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the State
of Delaware ("Section 145"), a corporation may indemnify its directors,
officers, employees and agents and its former directors, officers, employees and
agents and those who serve, at the corporation's request, in such capacities
with another enterprise, against expenses (including attorneys' fees), as well
as judgments, fines and settlements in non-derivative lawsuits, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. Section 145 provides, however, that such person must have acted
in good faith and in a manner he or she reasonably believed to be in (or not
opposed to) the best interests of the corporation, and, in the case of a
criminal action, such person must have had no reasonable cause to believe his or
her conduct was unlawful. In addition, Section 145 does not permit
indemnification in an action or suit by or in the right of the corporation,
where such person has been adjudged liable to the corporation, unless, and only
to the extent that, a court determines that such person fairly and reasonably is
entitled to indemnity for expenses the court deems proper in light of liability
adjudication. Indemnity is mandatory to the extent a claim, issue or matter has
been successfully defended.
The Registrant's By-laws and Amended and Restated Certificate
of Incorporation grant indemnification to such persons to the extent permitted
by Delaware law and authorize the purchase of insurance to cover liabilities
asserted against such persons.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
4.1 Amended and Restated Certificate of Incorporation of
Kellogg Company, incorporated by reference to Exhibit
4.1 to the Registrant's Registration Statement on Form
S-8, file number 333-56536.
4.2 By-laws of Kellogg Company, as amended, incorporated
by reference to Exhibit 3.02 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 28, 2002, Commission file number 1-4171.
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4.3 Kellogg Company 2003 Long-Term Incentive Plan,
incorporated by reference to Appendix B of the Proxy
Statement on Schedule 14-A filed March 14, 2003.
5.1 Opinion of the Registrant's Vice President and Chief
Counsel -- Securities and International as to the
legality of the securities being registered.
23.1 Consent of the Registrant's Vice President and Chief
Counsel -- Securities and International (included in
opinion filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant 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 this Registration Statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for purposes 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 Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant'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 this 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 Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant 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 Battle Creek, State of Michigan, on this 29th
day of September, 2003.
KELLOGG COMPANY
By: /s/ Carlos M. Gutierrez
----------------------------------
Carlos M. Gutierrez
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 29th day of September, 2003.
SIGNATURE TITLE
/s/ Carlos M. Gutierrez Chairman of the Board and Chief Executive
--------------------------------------------- Officer (Principal Executive Officer)
Carlos M. Gutierrez
/s/ John A. Bryant Executive Vice President and Chief Financial
-------------------------------------------- Officer (Principal Financial Officer)
John A. Bryant
/s/ Jeffrey M. Boromisa Senior Vice President and Corporate
-------------------------------------------- Controller (Principal Accounting Officer)
Jeffrey M. Boromisa
* Director
--------------------------------------------
Benjamin S. Carson, Sr.
* Director
--------------------------------------------
John T. Dillon
* Director
--------------------------------------------
Claudio X. Gonzalez
* Director
--------------------------------------------
Gordon Gund
* Director
--------------------------------------------
James M. Jenness
* Director
--------------------------------------------
Dorothy A. Johnson
* Director
--------------------------------------------
L. Daniel Jorndt
* Director
--------------------------------------------
Ann McLaughlin Korologos
* Director
--------------------------------------------
William D. Perez
* Director
--------------------------------------------
William C. Richardson
* Director
--------------------------------------------
John L. Zabriskie
*By: /s/ James Markey September 29, 2003
------------------------------------------------
James Markey
As Attorney-in-fact
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
4.1 Amended and Restated Certificate of Incorporation of
Kellogg Company, incorporated by reference to Exhibit
4.1 to the Registrant's Registration Statement on Form
S-8, file number 333-56536.
4.2 By-laws of Kellogg Company, as amended, incorporated
by reference to Exhibit 3.02 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 28, 2002, Commission file number 1-4171.
4.3 Kellogg Company 2003 Long-Term Incentive Plan,
incorporated by reference to Appendix B of the Proxy
Statement on Schedule 14-A filed March 14, 2003.
5.1 Opinion of the Registrant's Vice President and Chief
Counsel -- Securities and International as to the
legality of the securities being registered.
23.1 Consent of the Registrant's Vice President and Chief
Counsel -- Securities and International (included in
opinion filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney.