As filed with the Securities and Exchange Commission on May 8, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WK Kellogg Co
(Exact name of registrant as specified in its charter)
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Delaware (State or other jurisdiction of incorporation or organization) | 92-1243173
(I.R.S. Employer Identification No.) |
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One Kellogg Square Battle Creek, Michigan (Address of Principal Executive Offices) | 49017-3534 (Zip Code) |
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Amended and Restated WK Kellogg Co 2023 Long-Term Incentive Plan
(Full title of the plan)
Gordon P. Paulson
Secretary
One Kellogg Square
Battle Creek, Michigan 49017-3534
(Name and address of agent for service)
269-401-3000
(Telephone number, including area code, of agent for service)
Copies to:
Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Ashley Sinclair
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer | ☐ | Accelerated filer | ☐ |
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| Non-accelerated filer | ☒ | Smaller reporting company | ☐ |
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| | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
WK Kellogg Co (the “Registrant”) previously filed a registration statement on Form S-8 (Registration No. 333-274603) (the “Initial Registration Statement”) registering 5,142,000 shares of the Registrant’s common stock, par value $0.0001 per share (“Common Stock”), issuable pursuant to the WK Kellogg Co 2023 Long-Term Incentive Plan (the “2023 Plan”).
On May 2, 2024, the Registrant’s shareowners approved an amendment and restatement of the 2023 Plan (the “A&R 2023 Plan”) in order to, among other things, increase the number of shares of Common Stock authorized for issuance under the 2023 Plan from 5,142,000 shares to 10,142,000 shares. This Registration Statement on Form S-8 (this “Registration Statement”) is being filed by the Registrant for the purpose of registering an additional 5,000,000 shares of Common Stock, issuable pursuant to the A&R 2023 Plan, but not previously registered under, the 2023 Plan.
Pursuant to General Instruction E of Form S-8, this Registration Statement incorporates by reference the contents of the Initial Registration Statement relating to the 2023 Plan, including all attachments and exhibits thereto, except to the extent supplemented, amended or superseded by the information set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
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| Number | | Description |
| 4.1 | | |
| 4.2 | | |
| 4.3 | | |
| 5.1* | | |
| 23.1* | | |
| 23.2* | | Consent of Kirkland & Ellis LLP (included in Exhibit 5.1) |
| 24.1* | | |
| 107* | | |
* Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 8th day of May, 2024.
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WK KELLOGG CO
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| By: | /s/ Gary Pilnick |
| Gary Pilnick |
| Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of WK Kellogg Co, hereby severally constitute and appoint Gary Pilnick and Gordon Paulson, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable WK Kellogg Co to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.
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 May 8, 2024.
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| Signature | | Title |
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/s/ Gary Pilnick | | Chief Executive Officer and Chairman of the Board (Principal Executive Officer) |
Gary Pilnick | |
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/s/ David McKinstray | | Chief Financial Officer (Principal Financial Officer) |
| David McKinstray | |
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/s/ Lisa Walter | | Chief Accounting Officer (Principal Accounting Officer) |
| Lisa Walter | |
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| /s/ Wendy Arlin | | Director |
| Wendy Arlin |
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/s/ R. David Banyard, Jr. | | Director |
| R. David Banyard, Jr. | |
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/s/ Michael Corbo | | Director |
| Michael Corbo | |
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/s/ Zack Gund | | Director |
| Zack Gund | |
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| /s/ Ramón Murguía | | Director |
| Ramón Murguía | |
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/s/ Julio Nemeth | | Director |
Julio Nemeth | |
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/s/ Mindy Sherwood | | Director |
| Mindy Sherwood | |
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
WK Kellogg Co
(Exact Name of Registrant as Specified in its Charter)
Newly Registered Securities
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| Security Type | | Security Class Title | | Fee Calculation
Rule | | Amount Registered(1) | | Proposed Maximum Offering Price Per Unit(2) | | Maximum Aggregate Offering Price | | Fee Rate | | Amount of Registration Fee |
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| Equity | | Common Stock, par value $0.0001 per share | | 457(c) and 457(h) | | 5,000,000(3) | | $23.36 | | $ 116,800,000.00 | | 0.00014760 | | $ 17,239.68 |
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| Total Offering Amounts | | | | $116,800,000.00 | | | | $ 17,239.68 |
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| Total Fee Offsets | | | | | | | | $— |
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| Net Fee Due | | | | | | | | $ 17,239.68 |
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| (1) | Pursuant to Rule 416 under the Securities Act, this Registration Statement covers (i) such additional number of shares of common stock, par value $0.0001 per share, of the Registrant (“Common Stock”) issuable upon stock splits, stock dividends, reclassifications, recapitalizations, combinations or similar events or (ii) such reduced number of shares of Common Stock in respect of any reverse stock splits, stock dividends, reclassifications, recapitalizations, combinations or similar events, in each case with respect to the shares of Common Stock being registered pursuant to this Registration Statement. |
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| (2) | Estimated solely for purposes of calculating the registration fee, the price per share represents the average of the high ($23.57) and low ($23.14) sales prices per share of the Common Stock as reported on the New York Stock Exchange on May 6, 2024, which date is within five business days prior to the filing of this Registration Statement. |
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| (3) | Consists of an additional 5,000,000 shares of Common Stock reserved for issuance under the Amended and Restated WK Kellogg Co 2023 Long-Term Incentive Plan. |
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| 333 West Wolf Point Plaza Chicago, IL 60654 United States +1 312 862 2000 www.kirkland.com | Facsimile:
+1 312 862 2200 |
May 8, 2024WK Kellogg Co
One Kellogg Square
Battle Creek, MI 49017-3534
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as special counsel to WK Kellogg Co, a Delaware corporation (the “Company”), in connection with the proposed filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) on the date hereof under the Securities Act of 1933, as amended (the “Act”), for the purpose of registering 5,000,000 shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”), issuable pursuant to the Amended and Restated WK Kellogg Co 2023 Long-Term Incentive Plan (the “A&R 2023 Plan”), including shares of Common Stock that may again become available for delivery with respect to awards under the A&R 2023 Plan pursuant to the share recycling and other terms and conditions of the A&R 2023 Plan (the “Shares”).
In connection therewith, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the Company’s Amended and Restated Certificate of Incorporation, (ii) the A&R 2023 Plan, (iii) certain resolutions adopted by the board of directors of the Company and (iv) the Registration Statement and each of the exhibits thereto.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the
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WK Kellogg Co May 8, 2024 Page 2 | |
Company. We have not independently established or verified any facts relevant to the opinion expressed herein, but have relied upon statements and representations of officers and other representatives of the Company and others.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that: (a) the Shares are duly authorized; and (b)(i) when the Registration Statement related to the Shares becomes effective under the Act, (ii) when the Shares have been duly issued in accordance with the terms of the A&R 2023 Plan and the award agreements thereunder, (iii) when the Shares are duly countersigned by the Company’s registrar, and (iv) upon receipt by the Company of the consideration to be paid therefor, the Shares will be validly issued, fully paid and non-assessable.
Our opinion expressed above is subject to the qualification that we express no opinion as to the applicability of, compliance with, or effect of any laws except the General Corporation Law of the State of Delaware.
We have relied without independent investigation upon, among other things, an assurance from the Company that the number of shares of Common Stock which the Company is authorized to issue pursuant to its Amended and Restated Certificate of Incorporation exceeds the number of shares of Common Stock outstanding and the number of shares of Common Stock which the Company is obligated to issue (or had otherwise reserved for issuance) for any purposes other than issuances in connection with the A&R 2023 Plan by at least the number of Shares which may be issued in connection with the A&R 2023 Plan, and we have assumed that such condition will remain true at all future times relevant to this opinion. We have further assumed that the Company will cause certificates, if any, representing the Shares issued in the future to be properly executed and delivered and will take all other actions appropriate for the issuance of such Shares. Our opinion assumes that the Registration Statement related to the Shares will become effective under the Act before any Shares covered by such Registration Statement are sold.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
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WK Kellogg Co May 8, 2024 Page 3 | |
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion after the date of effectiveness should the present laws of the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise after the date hereof. This opinion is furnished to you in connection with the filing of the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
Very truly yours,
/s/ Kirkland & Ellis LLP
KIRKLAND & ELLIS LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of WK Kellogg Co of our report dated March 8, 2024 relating to the financial statements, which appears in WK Kellogg Co's Annual Report on Form 10-K for the year ended December 30, 2023.
/s/ PricewaterhouseCoopers LLP
Detroit, Michigan
May 8, 2024
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