As filed with the Securities and Exchange Commission on September 12, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Kraft Foods Group, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Virginia
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36-3083135
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(State or Other Jurisdiction of Incorporation or Organization)
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(I.R.S. Employer Identification No.)
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Three Lakes Drive
Northfield, Illinois
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60093-2753
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(Address of Principal Executive Offices)
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(Zip Code)
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KRAFT FOODS GROUP, INC.
DEFERRED COMPENSATION PLAN FOR NON-MANAGEMENT DIRECTORS
(Full Title of
the Plan)
Carol J. Ward, Esq.
Vice President and Corporate Secretary
Kraft Foods Group, Inc.
Three Lakes Drive
Northfield, Illinois 60093
(Name and Address of Agent for Service)
(847) 646-2000
(Telephone Number, including Area Code, of Agent for Service)
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
(1)
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Amount to be
Registered
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Proposed Maximum
Offering Price
Per Share
(2)
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Proposed Maximum
Aggregate
Offering Price
(2)
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Amount of
Registration Fee
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Deferred Compensation Obligations
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$20,000,000
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100%
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$20,000,000
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$2,292.00
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(1)
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The Deferred Compensation Obligations are unsecured obligations of Kraft Foods Group, Inc. to pay deferred compensation in the future in accordance with the terms of
the Kraft Foods Group, Inc. Deferred Compensation Plan for Non-Management Directors.
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(2)
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Calculated solely for purposes hereof pursuant to Rule 457(h) under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of
Documents by Reference.
The following documents, which Kraft Foods Group, Inc. has filed with the Securities and Exchange
Commission (the “Commission”), are incorporated herein by reference:
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(a)
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our Registration Statement on Form 10-12B (Registration No. 001-35491) initially filed with the Commission on April 2, 2012, as amended (the “Form
10”);
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(b)
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our Current Report on Form 8-K filed on August 31, 2012; and
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(c)
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the description of our capital stock provided under the heading “Description of Our Capital Stock” in the information statement attached as Exhibit 99.1 to
the Form 10, together with any amendment or report filed with the Commission for the purpose of updating such description.
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In addition, all documents that we may file in the future pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date
of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold will be
deemed to be incorporated by reference in this Registration Statement. We will deem all of these documents to be a part of this Registration Statement from the respective dates of filing these documents.
We further regard any statement contained in a document that is incorporated by reference in this Registration Statement to be modified
or superseded if this Registration Statement, or some other subsequently filed document that is also incorporated by reference in this Registration Statement, modifies or supersedes the statement. If this occurs, we regard the statement to be
incorporated in this Registration Statement by reference only in the statement’s modified or superseded form.
Item 4.
Description of Securities.
This Registration Statement registers $20,000,000 of Deferred Compensation Obligations to be
offered to certain non-management members of the Board of Directors of Kraft Foods Group. The Obligations are general unsecured and unfunded obligations of Kraft Foods Group to pay deferred compensation in the future in accordance with the terms of
the Kraft Foods Group, Inc. Deferred Compensation Plan for Non-Management Directors (the “Plan”). Under the terms of the Plan, each non-management director of Kraft Foods Group may elect to defer receipt of all or part of his or her
compensation until such future date as he or she elects in accordance with the terms of the Plan. A non-management director may elect to receive his or her deferred amounts (including amounts credited or debited with respect thereto) at either
(i) a date certain or (ii) a separation from service. Non-management directors may allocate their deferred amounts among various measurement fund alternatives. Measurement fund alternatives, which may include a company stock fund
alternative, are determined in accordance with, and subject to the rules and procedures from time to time established by, the committee of directors designated by the Board of Directors of Kraft Foods Group to administer and interpret the Plan. The
Obligations represent Kraft Foods Group’s obligation to pay an amount equal to the sum of each non-management director’s account, adjusted by amounts credited or debited to such non-management director based on the reported investment
performance of the selected measurement fund alternatives, less all distributions made to such non-management director pursuant to the Plan. The Obligations are unassignable and non-transferable. No benefit or interest in the Plan is subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Kraft Foods Group is a Virginia corporation. The Virginia Stock Corporation Act (the “VSCA”) permits indemnification of a corporation’s directors and officers in a variety of circumstances,
which may include indemnification for liabilities under the Securities Act of 1933, as amended (the “Securities Act”). Sections 13.1-697 and 13.1-702 of the VSCA generally authorize a Virginia corporation to indemnify its directors and
officers in civil or criminal actions if they acted in good faith and believed their conduct to be in the best interests of the corporation and, in the case of criminal actions, had no reasonable cause to believe that the conduct was unlawful.
Additionally, Section 13.1-704 of the VSCA provides that a Virginia corporation has the power to make any further indemnity to any director or officer, including under its articles of incorporation or any by-law or shareholder resolution,
except an indemnity against their willful misconduct or a knowing violation of the criminal law. Kraft Foods Group’s amended and restated articles of incorporation require Kraft Foods Group to indemnify its directors, officers and other
eligible persons to the full extent permitted by the VSCA.
Kraft Foods Group’s amended and restated articles of
incorporation also provide that, to the full extent that the VSCA permits the limitation or elimination of the liability of directors, officers and other eligible persons, no director, officer or such eligible person of Kraft Foods Group shall be
liable to Kraft Foods Group or its shareholders for monetary damages arising out of any transaction, occurrence or course of conduct. Section 13.1-692.1 of the VSCA permits the elimination of liability of directors and officers in any
proceeding brought by or in the right of a corporation or brought by or on behalf of shareholders of a corporation, except for liability resulting from such persons having engaged in willful misconduct or a knowing violation of the criminal law or
any federal or state securities law, including, without limitation, any unlawful insider trading or manipulation of the market for any security. Sections 13.1-692.1 and 13.1-696 to -704 of the VSCA are hereby incorporated by reference herein.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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4.1
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Form of Amended and Restated Articles of Incorporation of Kraft Foods Group, Inc. (incorporated by reference to Exhibit 3.1 to the Form 10 filed with the Commission on
July 17, 2012).
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4.2
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Form of Amended and Restated By-Laws of Kraft Foods Group, Inc. (incorporated by reference to Exhibit 3.2 to the Form 10 filed with the Commission on July 17,
2012).
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4.3
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Kraft Foods Group, Inc. Deferred Compensation Plan for Non-Management Directors.
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5.1
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Opinion of Hunton & Williams LLP.
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23.1
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Consent of Hunton & Williams LLP (included in Exhibit 5.1).
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23.2
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Consent of PricewaterhouseCoopers LLP.
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24.1
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Power of Attorney.
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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 of 1933;
(ii) to reflect in the
prospectus any facts or events arising after the effective date of the 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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration
statement;
provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) 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.
(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 undersigned registrant hereby undertakes 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.
(c) 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 Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 of 1933 and will
be governed by the final adjudication of such issue.
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 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 Northfield, State of Illinois, on September 12, 2012.
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KRAFT FOODS GROUP, INC.
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By:
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/s/ Carol J. Ward
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Carol J. Ward
Vice
President and Corporate Secretary
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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 dates indicated.
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Signature
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Title
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Date
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/s/ Irene B. Rosenfeld*
Irene B. Rosenfeld
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Director, President and Chief Executive Officer
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September 12, 2012
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/s/ Timothy R. McLevish*
Timothy R. McLevish
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Executive Vice President and Chief Financial Officer
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September 12, 2012
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/s/ Kim Harris Jones*
Kim Harris Jones
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Senior Vice President, Corporate Controller
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September 12, 2012
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/s/ Gerhard W. Pleuhs*
Gerhard W. Pleuhs
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Director
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September 12, 2012
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/s/ John C. Pope*
John C. Pope
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Director
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September 12, 2012
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/s/ W. Anthony Vernon*
W. Anthony Vernon
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Director
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September 12, 2012
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*By:
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Carol J. Ward
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As Attorney-in-Fact
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EXHIBIT INDEX
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4.1
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Form of Amended and Restated Articles of Incorporation of Kraft Foods Group, Inc. (incorporated by reference to Exhibit 3.1 to the Form 10 filed with the Commission on July 17,
2012).
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4.2
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Form of Amended and Restated By-Laws of Kraft Foods Group, Inc. (incorporated by reference to Exhibit 3.2 to the Form 10 filed with the Commission on July 17,
2012).
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4.3
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Kraft Foods Group, Inc. Deferred Compensation Plan for Non-Management Directors.
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5.1
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Opinion of Hunton & Williams LLP.
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23.1
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Consent of Hunton & Williams LLP (included in Exhibit 5.1).
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23.2
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Consent of PricewaterhouseCoopers LLP.
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24.1
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Power of Attorney.
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Exhibit 4.3
Kraft Foods Group, Inc.
Deferred Compensation Plan for Non-Management
Directors
SECTION 1. Purpose; Definitions
The purpose of the Plan is to afford each Non-Management Director the option to elect to defer the receipt of all or part of his or her Compensation until such future date as he or she may elect pursuant
to the terms and conditions of the Plan.
For purposes of the Plan, the following terms are defined as set forth below:
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a.
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“Allocation Date”
means any date on which an amount representing all or part of a Participant’s Compensation is to be credited to
his or her Deferred Fee Account or Deferred Stock Account, as applicable, pursuant to a Deferral Election. The Allocation Date for the Retainer Fee and for Meeting Fees shall be the last day of each calendar quarter. The Allocation Date for Stock
Awards shall be the date the awards would have otherwise been granted.
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b.
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“Beneficiary”
means any person or entity designated as such in an Election Form submitted in the manner specified by the Company.
If a Participant has not made a valid designation of a Beneficiary on an Election Form submitted in the manner specified by the Company, or if no designated Beneficiary survives the Participant, the Beneficiary is the Participant’s estate.
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c.
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“Board”
means the Board of Directors of the Company.
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d.
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“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations
thereunder.
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e.
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“Common Stock”
means the common stock of the Company.
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f.
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“Company”
means Kraft Foods Group, Inc., a corporation organized under the laws of the Commonwealth of
Virginia, or any successor corporation.
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g.
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“Compensation”
means the Retainer Fee, Meeting Fees or Stock Awards payable by the Company to each
Participant.
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h.
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“Deferral Election”
means the election by a Participant on an Election Form to defer the payment of all or a
part of his or her Compensation to be earned and payable after the applicable effective date set forth in Sections 2.1.1 or 2.1.2.
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i.
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“Deferred Amount”
means the amount of Compensation (determined as a percentage of the Retainer Fee, Meeting
Fees or Stock Awards) subject to a Deferral Election submitted in the manner specified by the Company.
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j.
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“Deferred Fee Account”
means an unfunded deferred compensation account established by the Company on behalf of each
Non-Management Director who makes a Deferral Election with respect to the Retainer Fee or Meeting Fees. The
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Company may establish more than one Deferred Fee Account on behalf of any Non-Management Director who submits a Modified Election Form in accordance with Section 2.3.2 to modify his or her
election as to the Distribution Date with respect to the Retainer Fee or Meeting Fees to be paid for services performed thereafter. Each Deferred Fee Account shall consist of one or more Subaccounts established in accordance with Section 2.2.2.
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k.
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“
Deferred Stock
” means an unfunded obligation of the Company, represented by an entry on the books and records of the Company, to issue
one share of Common Stock on the date of distribution.
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l.
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“Deferred Stock Account”
means an unfunded deferred compensation account established by the Company on behalf
of each Non-Management Director who makes a Deferral Election with respect to Stock Awards. The Company may establish more than one Deferred Stock Account on behalf of any Non-Management Director who submits a Modified Election Form in accordance
with Section 2.3.2 to modify his or her election as to the Distribution Date with respect to Stock Awards to be granted for services performed thereafter.
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m.
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“Disability”
means permanent and total disability as determined under procedures established by the Board for purposes of this Plan.
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n.
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“Distribution Date”
means the date designated by a Participant on an Election Form in accordance with
Sections 2.3.1 and 2.3.2 for the distribution or commencement of distribution of amounts credited to a Deferred Fee Account or a Deferred Stock Account.
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o.
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“Election Date”
means the date an Election Form is received by the Company.
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p.
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“Election Form”
means an Initial Election Form or Modified Election Form completed and executed by the
Participant. An “Initial Election Form” means the first Election Form that the Participant submits pursuant to Section 2.1.1. A “Modified Election Form” means an Election Form that the Participant submits pursuant to
Section 2.1.2, 2.1.3, 2.1.4, 2.2.4 and 2.3.2 to modify in whole or in part an Initial Election Form or to modify in whole or in part a Modified Election Form previously submitted.
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q.
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“Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time and the rules and
regulations thereunder.
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r.
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“Extraordinary Distribution Request Date”
means the date an Extraordinary Distribution Request Form is
received by the Company.
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s.
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“Extraordinary Distribution Request Form”
means the Extraordinary Distribution Request Form completed and
executed by a Participant and submitted in the manner specified by the Company or Beneficiary who wishes to request an extraordinary distribution of amounts credited to a Deferred Fee Account or Deferred Stock Account in accordance with
Section 2.3.3.
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t.
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“Fund”
means any one of the hypothetical investment vehicles the Company makes available for time to time for
purposes of allocating earnings to a Participant’s Deferred Fee Account.
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“Kraft Stock Fund Subaccount”
means the Subaccount with its value based on the value of Common Stock.
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v.
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“Meeting Fees”
means the portion of a Participant’s Compensation that is based upon his or her
attendance at Board meetings and meetings of committees of the Board.
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w.
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“Non-Management Director”
means each member of the Board who is not a full-time employee of the Company (or
of any Corporation that owns, directly or indirectly, stock possessing at least fifty percent (50%) of the total combined voting power of all classes of stock entitled to vote in the election of the Board or of any corporation in which the
Company owns, directly or indirectly, stock possessing at least fifty percent (50%) of the total combined voting power of all classes of stock entitled to vote in the election of directors in such corporation). A “Non-Management
Director” does not include a Director Emeritus of the Company.
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x.
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“Participant”
means a Non-Management Director who elects to make a Deferral Election; provided, however, that
a Participant shall also include a person who was, but is no longer, a Non-Management Director as long as a Deferred Fee Account or Deferred Stock Account is being maintained for his or her benefit.
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y.
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“Plan”
means this Kraft Foods Group, Inc. Deferred Compensation Plan for Non-Management Directors, as amended
from time to time.
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z.
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“Retainer Fee”
means the portion of a Participant’s Compensation that is fixed and paid without regard
to his or her attendance at meetings of the Board or any committee of the Board, including any additional amount paid to a chairman of a committee but shall not include awards of Common Stock, stock options or other noncash compensation paid to a
Non-Management Director.
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aa.
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“Stock Award”
means Common Stock, Restricted Stock, Deferred Stock or any other stock award granted to a
Non-Management Director pursuant to the Company’s 2012 Performance Incentive Plan or any successor plan or similar plan maintained by the Company.
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bb.
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“Subaccount”
means one of the bookkeeping accounts established within a Deferred Fee Account in accordance
with Section 2.2.2.
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cc.
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“Transfer Election Date”
means the date set forth on a Transfer Form.
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dd.
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“Transfer Form”
means a Transfer Election Form completed and executed by a Participant or Beneficiary in
accordance with Section 2.2.5.
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SECTION 2. Deferred Compensation Program
A Non-Management
Director may make a Deferral Election by submitting an Initial Election Form in the manner specified by the Company. Each Non-Management Director who makes a Deferral Election shall become a Participant in this Plan.
Any Deferral Election relating to Retainer Fees shall be in integral multiples of twenty-five percent (25%) of the Retainer Fee. Any Deferral
Election relating to Meeting Fees shall be one hundred percent (100%) of the Meeting Fees for the year for which the election is effective. Any Deferral Election relating to Stock Awards shall be one hundred percent (100%) of the number of
shares of Common Stock subject to the applicable Stock Award that the Participant otherwise would have been granted on each date of grant.
The Participant shall indicate on the Initial Election Form:
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a.
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the percentage of the Retainer Fee that he or she wishes to defer and whether Meeting Fees and/or Stock Awards are to be deferred;
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b.
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the Distribution Date;
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c.
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whether distributions are to be in lump sum, in installments or a combination thereof;
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d.
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the Participant’s Beneficiary or Beneficiaries; and
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e.
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with respect to deferred Retainer Fees and Meeting Fees, the Subaccounts to which the Deferred Amount is to be allocated.
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A Deferral Election submitted on an Initial Election Form shall become effective with respect to a Participant’s Retainer Fee, Meeting Fees and
Stock Awards for services performed on and after the first day of the calendar year following the Election Date of such Initial Election Form. In the case of a newly eligible Participant, however, a Deferral Election may be made no later than 30
days after first becoming eligible for this Plan and any other plan required to be aggregated with this Plan under Code section 409A and the regulations and other guidance thereunder and shall not be effective with respect to Compensation to which
the Participant becomes entitled as a result of services performed on or before the Election Date.
A Deferral Election shall remain in effect
with respect to all future Compensation until a new Deferral Election made by the Participant on a Modified Election Form in accordance with Section 2.1.2 or Section 2.1.3 becomes effective.
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2.1.2
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Change of Deferral Election.
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A
Participant may change his or her Deferral Election with respect to Compensation for services performed and payable in a subsequent calendar year by submitting a Modified Election Form in the manner specified by the Company.
A Deferral Election to increase or decrease the amount of future Compensation to be deferred shall become effective on and after the first day of the
calendar year following the Election Date.
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2.1.3
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Cessation of Deferrals
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A Participant may
cease to defer future Retainer Fees, Meeting Fees, Stock Awards or a subset thereof by submitting a Modified Election Form in the manner specified by the Company. An election by a Participant to cease deferrals of Retainer Fees, Meeting Fees, Stock
Awards or a subset thereof shall become effective with respect to Compensation for services performed on or after the first day of the calendar year following the Election Date.
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2.1.4
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Beneficiary Election Modification
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A
Participant shall be permitted at any time to modify his or her Beneficiary election, effective as of the Election Date, by submitting a Modified Election Form in the manner specified by the Company.
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2.2.1
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Deferred Fee Accounts and Deferred Stock Accounts
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The Company shall establish a Deferred Fee Account or Deferred Stock Account, as applicable, for each Participant who has made a Deferral Election pursuant to Section 2.1.1. On each Allocation Date,
the Company shall allocate the amount of the Deferred Amount to be credited to each Participant’s Deferred Fee Account or Deferred Stock Account, as applicable.
The Company shall establish
within each Deferred Fee Account one or more Subaccounts to which the applicable Deferred Amounts are to be allocated pursuant to the Participant’s Election Form or Election Forms, with each Subaccount corresponding to a Fund made available by
the Company under the Plan. The senior Human Resources officer is authorized to limit or prohibit new investments or transfers into any Subaccount.
Subject to the provisions of Sections 2.2.3 and 2.2.4, on each Allocation Date, each Participant’s Subaccounts shall be credited with an amount equal to the applicable Deferred Amount designated by
the Participant for allocation to such Subaccounts. With respect to Subaccounts related to a Deferred Fee Account, each Subaccount shall be credited with earnings and charged with losses as if the amounts allocated thereto had been invested in the
corresponding Fund, provided that the Kraft Stock Fund Subaccount
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shall be credited with additional shares of Common Stock based on the amount of cash dividends that are paid from time to time on the number of shares of Common Stock with respect to which the
Kraft Stock Fund Subaccount is determined. With respect to a Participant’s deferred Stock Awards, on each Allocation Date the Participant’s Deferred Stock Account shall be credited with shares of Deferred Stock equal to the number of
shares of Common Stock subject to the applicable deferred Stock Awards. The Deferred Stock Account shall thereafter be credited with amounts equal to the cash dividends that would have been paid had the Participant held a number of shares of Common
Stock equal to the number of shares of Deferred Stock in the Participant’s Deferred Stock Account, and any such amounts shall be treated as invested in additional shares of Deferred Stock.
The value of the Deferred Stock Account, the Deferred Fee Account and any Subaccount at any relevant time shall be determined as if all amounts credited
thereto had been invested in the corresponding Fund, in the case of Subaccounts related to a Deferred Fee Account or invested in Deferred Stock, in the case of the Deferred Stock Account, provided, however, that if as a result of adjustments or
substitutions in connection with an event described in Section 4 of the Company’s 2012 Performance Incentive Plan or the corresponding provision of any successor thereto, a participant has received or receives with respect to the Kraft
Stock Fund Subaccount or with respect to Deferred Stock, as applicable, rights or amounts measured by reference to stock other than Common Stock, then any crediting of amounts to reflect dividends with respect to such other stock shall be allocated
among and treated as invested proportionately in the Subaccounts most recently in effect for the investment of Compensation deferred by the Participant.
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2.2.3.
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Investment Directions with Respect to Deferred Retainer Fees or Meeting Fees
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Each Participant shall make an investment direction on his or her Initial Election Form with respect to the portion of such Participant’s Deferred Amount related to deferred Retainer Fees and/or
Meeting Fees that is to be allocated to a Subaccount. Any apportionment of such Deferred Amounts (and of increases or decreases in such Deferred Amounts) among the Subaccounts shall be in integral multiples of one percent (1%). An investment
direction shall become effective with respect to any such Subaccount on the first day of the calendar month following the Election Date of such Election Form. An investment direction shall remain in effect with respect to all future Deferred Amounts
until a new investment direction made by the Participant in accordance with Section 2.2.4 becomes effective. All deferred Stock Awards will be invested in Deferred Stock.
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2.2.4
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New Investment Directions with Respect to Deferred Retainer Fees or Meeting Fees
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A Participant may make a new investment direction with respect to his or her Deferred Amount related to deferred Retainer Fees and/or Meeting Fees only by submitting a Modified Election Form in the manner
specified by the Company. A new investment direction shall become effective with respect to any Subaccount on the first day of the calendar month following the Election Date of such Modified Election Form.
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2.2.5
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Investment Transfers with Respect to Deferred Retainer Fees or Meeting Fees
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A Participant (or Beneficiary after the death of the Participant) may transfer to one or more different Subaccounts all or a part (in integral multiples of one percent (1%)) of the amounts credited
to a Subaccount by submitting a Transfer Form in the manner specified by the Company; provided however that no Transfer Form with respect to the Kraft Stock Fund Subaccount may be submitted by a Participant who is subject to Section 16 of the
Exchange Act if a Transfer Form requesting an opposite way transfer has been submitted by such Participant within the preceding six months. In addition, no transfers may be made from a Participant’s Deferred Stock Account.
Any transfer of amounts among Subaccounts shall become effective on the first day of the calendar month following the Transfer Election Date.
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2.3.1
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Distribution Elections
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Each Participant
shall designate on his or her Initial Election Form or, if applicable, Modified Election Form, one of the following dates as a Distribution Date with respect to amounts credited to his or her Deferred Fee Account or Deferred Stock Account
thereafter:
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a.
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the fifteenth day of the calendar month following the Participant’s separation from service, including by reason of Disability or death;
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b.
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the fifteenth day of the earlier of (i) a calendar month specified by the Participant which is at least six months after the Election Date or (ii) the
calendar month following the Participant’s separation from service, including by reason of Disability or death.
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A
Distribution Date election shall be effective only with respect to Compensation paid for services performed on and after the Election Date and subsequent earnings credited with respect to such amounts. Any election by a Participant for his or her
Deferred Fee Account or Deferred Stock Account to be paid upon his or her separation from service shall be applied in accordance with Internal Revenue Code section 409A. No separation from service shall be deemed to occur until the Non-Management
Director ceases to serve on any and all of the Board of Directors of the Company and the board of directors of any other company with respect to which his service as a director began while such other company was a subsidiary of the Company.
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A Participant may request on his or her Election Form that distributions from his or her Deferred Fee
Account be made in (i) a lump sum, (ii) no more than one-hundred eighty (180) monthly, sixty (60) quarterly or fifteen (15) annual installments or (iii) a combination of (i) and (ii). Each installment shall be
determined by dividing the Account balance by the number of remaining installments. Distributions from a Participant’s Deferred Stock Account shall be made in lump sum. If a Participant receives a distribution from a Subaccount on an
installment basis, amounts remaining in such Subaccount shall continue to accrue earnings and incur losses in accordance with the terms of Section 2.2.2. Except as stated in the next paragraph, all distributions shall be made to the
Participant.
Upon the Participant’s death, the balance remaining in the Participant’s Deferred Fee Account or Deferred Stock
Account shall be payable to his or her Beneficiaries as set forth on the Participant’s then-current Election Form or Forms. Upon the death of a Beneficiary who is receiving distributions in installments, the balance remaining in the Deferred
Fee Account or Deferred Stock of the Beneficiary shall be paid to his or her estate in a lump sum, without interest, except to the extent that the Secretary of the Company permits a Participant to elect otherwise in accordance with the procedures of
this Section 2.3.1, taking into account administrative feasibility and other constraints.
All distributions with respect to a
Participant’s Deferred Fee Account(s) shall be paid in cash and, except as provided in Section 2.3.3, shall be deemed to have been made from each Subaccount pro rata. Distributions with respect to a Participant’s Deferred Stock
Account shall be paid in Common Stock.
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2.3.2
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Modified Distribution Elections
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A
Participant may modify his or her election as to the Distribution Date but not the distribution form with respect to Compensation attributable to future service, with such modification to be effective beginning with the next calendar year and
continuing thereafter by submitting a Modified Election Form in the manner specified by the Company.
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2.3.3
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Extraordinary Distributions
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Notwithstanding the foregoing, a Participant (or Beneficiary after the participant’s death) may request an extraordinary distribution of all or part
of the amount credited to his or her Deferred Fee Account or Deferred Stock Account because of hardship. A distribution shall be deemed to be “because of hardship” if such distribution is necessary to alleviate or satisfy an immediate and
heavy financial need of the Participant and otherwise satisfies the requirements for the occurrence of an “unforeseeable emergency” within the meaning of Code section 409A(a)(2).
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A request for an extraordinary distribution shall be made by submitting a valid Extraordinary Distribution
Request Form in the manner specified by the Company. All extraordinary distributions shall be subject to approval by the Board.
The
Extraordinary Distribution Request Form shall indicate:
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a.
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the amount to be distributed from the Deferred Fee Account or Deferred Stock Account;
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b.
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if applicable, the Subaccount(s) from which the distribution is to be made; and
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c.
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the “hardship” requiring the distribution.
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The amount of any extraordinary distribution shall not exceed the amount determined by the Board to be required to meet the immediate financial need of the applicant.
An extraordinary distribution shall be made with respect to amounts credited to the Deferred Fee Account or Deferred Stock Account (and each Subaccount)
on the first day of the calendar month next following approval of the extraordinary distribution request by the Board; provided, however, that no extraordinary distribution shall be made from the Kraft Stock Fund Subaccount if a Transfer Form
pursuant to Section 2.2.5 requesting an opposite way transfer with respect to the Kraft Stock Fund Subaccount had been submitted by a Participant who is subject to Section 16 of the Exchange Act within the preceding six months. Upon
approval of an extraordinary distribution request, any Deferral Election shall be cancelled prospectively. A Participant may make a new Deferral Election for a future year in accordance with Section 2.1.2.
Notwithstanding the forgoing, the Board may delegate its authority to approve extraordinary distributions to the Compensation Committee of the Board or
to the Company’s management.
Notwithstanding
anything in the Plan to the contrary or any election made by a Participant, if a Participant has elected that distribution be made upon the Participant’s separation from service, and the Participant is a “specified employee” within
the meaning of the Code section 409A and the regulations thereunder, distribution in the form of a single sum will be made on, and distribution in the form of installments will commence on, the fifteenth day of the seventh month following the date
of the Participant’s separation from service.
SECTION 3. General Provisions
It is intended that the
Plan constitute an “unfunded” plan for deferred compensation. The Company may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan; provided, however, that, unless the Company otherwise
determines, the existence of such trusts or other arrangements is consistent with the “unfunded” status of the Plan. Any liability of the
9
Company to any person with respect to any grant under the Plan shall be based solely upon any contractual obligations that may be created pursuant to the Plan. No such obligation of the Company
shall be deemed to be secured by any pledge of, or other encumbrance on, any property of the Company.
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3.2
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Rules of Construction
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The Plan shall be
construed and interpreted in accordance with Virginia law. Headings are given to the sections of the Plan solely as a convenience to facilitate reference. The reference to any statute, regulation, or other provision of law shall be construed to
refer to any amendment to or successor of such provision of law. Notwithstanding anything in this Plan to the contrary, the Plan shall be construed to reflect the intent of the Company that all elections to defer, distributions, and other aspects of
the Plan shall comply with Code section 409A and any regulations and other guidance thereunder to the extent applicable. The Plan is also intended to be construed so that participation in the Plan will be exempt from Section 16(b) of the
Exchange Act pursuant to regulations and interpretations issued from time to time by the Securities and Exchange Commission.
No later than the date as of
which an amount first becomes includible in the gross income of the Participant for Federal income tax purposes with respect to participation under the Plan, the Participant shall pay to the Company, or make arrangements satisfactory to the Company
regarding the payment of, any Federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount, if any.
The Plan may be amended by the
Board, but no amendment shall be made that would impair prior rights of a Participant to his or her Deferred Fee Account or Deferred Stock Account without his or her consent.
The Company hopes to
continue the Plan indefinitely, but reserves the right to terminate the Plan by appropriate action of the Board at any time. Upon termination of the Plan, amounts then credited to each Deferred Fee Account and Deferred Stock Account shall be paid in
accordance with the Election Form then governing such Deferred Fee Account or Deferred Stock Account or as otherwise provided in Section 2.3.1.
No Participant or
Beneficiary shall have the right to assign, pledge or otherwise transfer any payments to which such Participant or Beneficiary may be entitled under the Plan, other than by will or by the laws of descent and distribution or pursuant to a domestic
relations order which meets the relevant requirements of a “qualified domestic relations order” (as defined by Section 414(p) of the Code).
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3.7
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Adoption of Procedures
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The Secretary of
the Company shall have the authority to adopt such procedures as are appropriate to administer the Plan.
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Exhibit 5.1
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HUNTON & WILLIAMS LLP
RIVERFRONT PLAZA, EAST TOWER
951 EAST BYRD STREET
RICHMOND, VIRGINIA 23219-4074
TEL 804 • 788 • 8200
FAX 804 •
788 • 8218
FILE NO: 59019.000041
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September 12, 2012
Kraft Foods Group, Inc.
Three Lakes Drive
Northfield, Illinois 60093-2753
Registration Statement on Form S-8
Kraft Foods Group, Inc.
Deferred Compensation Plan for Non-Management
Directors
Ladies and Gentlemen:
We have acted as special counsel to Kraft Foods Group, Inc., a Virginia corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration
Statement”), as filed by the Company with the Securities and Exchange Commission (the “Commission”) on the date hereof pursuant to the Securities Act of 1933, as amended (the “Securities Act”), to register $20,000,000 of
unsecured obligations of the Company to pay deferred compensation in the future (the “Deferred Compensation Obligations”) in accordance with the terms of the Kraft Foods Group, Inc. Deferred Compensation Plan for Non-Management Directors
(the “Plan”), as referenced in the Registration Statement.
This opinion is being furnished in accordance with the
requirements of Item 8(a) of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
For purposes of the opinion
expressed below, we have relied upon, among other things, our examination of such documents and records of the Company and certificates of its officers and of public officials as we deemed necessary.
For purposes of the opinions expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals,
(ii) the conformity to the originals of all documents submitted as certified, photostatic or electronic copies and the authenticity of the originals thereof, (iii) the legal capacity of natural persons, and (iv) the genuineness of
signatures not witnessed by us.
ATLANTA AUSTIN BANGKOK BEIJING BRUSSELS CHARLOTTE
DALLAS HOUSTON LONDON LOS ANGELES
McLEAN MIAMI NEW
YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO TOKYO WASHINGTON
www.hunton.com
Kraft Foods Group, Inc.
September 12, 2012
Page
2
We do not purport to express an opinion on any laws other than the laws of the
Commonwealth of Virginia and the federal laws of the United States of America.
Based upon the foregoing and the further
qualifications stated below, we are of the opinion that (1) the Deferred Compensation Obligations have been duly authorized and, (2) when incurred by the Company in accordance with the Plan, will constitute valid and binding obligations of
the Company, enforceable in accordance with terms of the Plan, except as the enforceability thereof may be limited or otherwise affected by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar laws now or
hereafter in effect relating to or affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether considered in a proceeding at law or in equity).
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 within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. We do not undertake to advise you of any
changes in the opinions expressed herein based on matters that might arise hereafter or be brought to our attention.
Very truly yours,
/s/ Hunton & Williams LLP