AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON MAY 13, 2002
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 (IRS Employer Identification No.)
incorporation or organization)
ONE KELLOGG SQUARE
BATTLE CREEK, MICHIGAN 49016-3599
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
KELLOGG COMPANY 2002 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF PLAN)
JAMES MARKEY, VICE PRESIDENT AND CHIEF COUNSEL--SECURITIES AND INTERNATIONAL
KELLOGG COMPANY
ONE KELLOGG SQUARE
BATTLE CREEK, MICHIGAN 49016-3599
(616) 961-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND 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 REGISTRA-
SHARE(2) PRICE(2) TION FEE(2)
Common Stock 2,500,000 $35.63 $89,075,000.00 $8,194.90
par value $.25 per
share
1. In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interest to be offered or sold pursuant to the Kellogg Company 2002
Employee Stock Purchase Plan.
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 May 9, 2002.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
We shall send or give to each participant in the Kellogg Company 2002
Employee Stock Purchase 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 Securities and Exchange 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 Securities and
Exchange Commission (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 31, 2001 (File No. 1-4171), containing audited financial
statements for the Registrant's latest fiscal year;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2002 (File No. 1-4171);
(c) 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
(d) 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 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 of the Registrant,
is eligible to participate in the Kellogg Company 2002 Employee Stock Purchase
Plan and as of May 13, 2002, is the owner of approximately 220 shares of common
stock of the Registrant and is the holder of options to acquire approximately
70,600 shares of common stock of the Registrant.
2
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 4.2 to the Registrant's Registration
Statement on Form S-8, file number 333-56536.
4.3 Kellogg Company 2002 Employee Stock Purchase Plan.
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:
3
(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.
4
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 13th
day of May, 2002.
KELLOGG COMPANY
By: /s/ Carlos M. Gutierrez
-----------------------------------
Carlos M. Gutierrez
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Compensation Committee of Board of Directors of Kellogg Company (which
administers the Kellogg Company 2002 Employee Stock Purchase Plan) has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized in the City of Battle Creek, State of
Michigan, on this 13th day of May, 2002.
Kellogg Company 2002 Employee Stock
Purchase Plan
By: *
-----------------------------------
Claudio X. Gonzalez
Compensation Committee Chairman
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 13th day of May, 2002.
SIGNATURE TITLE
/s/ Carlos M. Gutierrez Chairman of the Board, President and Chief
------------------------------- Executive Officer (Principal Executive
Carlos M. Gutierrez Officer)
/s/ John A. Bryant Senior Vice President and Chief Financial
------------------------------- Officer (Principal Financial Officer)
John A. Bryant
/s/ Jeffrey M. Boromisa Vice President and Corporate Controller
------------------------------- (Principal Accounting Officer)
Jeffrey M. Boromisa
* Director
-------------------------------
Benjamin S. Carson, Sr.
5
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/ Janet Langford Kelly May 13, 2002
-----------------------------
Janet Langford Kelly
As Attorney-in-fact
6
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 4.2 to the Registrant's Registration
Statement on Form S-8, file number 333-56536.
4.3 Kellogg Company 2002 Employee Stock Purchase Plan.
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 Pricewaterhouse Coopers LLP.
24.1 Powers of Attorney.
7