Letter Agreement - Bryant

Amendment to Letter Agreement - Bryant

Severance Plan

Change in Control Amendment

 

 

EX-10.2 3 k16940exv10w2.htm LETTER AGREEMENT

 

Exhibit 10.2

July 23, 2007

John A. Bryant
Kellogg Company
One Kellogg Square
Battle Creek, MI 49016

Dear John:

     We are excited about you assuming the role of President, Kellogg North America and Chief Financial Officer for the Company. The purpose of this letter is to set forth terms of retention benefits that reflect your valuable contributions to the business and our desire that you remain with Kellogg Company (“Kellogg,” and together with its affiliates and subsidiaries, the “Company”) for the long term. The letter also includes non-compete and other commitments from you to the Company.

 

1.

 

Retention.

 

a.

 

In the event you are either terminated by the Company without “Cause” (as herein defined) or you terminate your employment with the Company for “Good Reason” (as herein defined) prior to November 6, 2020 (the “Retirement Date”), the date you are first able to retire from the Company under the terms of the Kellogg Company Pension Plan and Kellogg Company Executive Excess Plan (the “Pension Plans”), you will be eligible to receive the pension benefit you would have received under the current Pension Plans had you remained with the Company through the Retirement Date. This Pension benefit shall be payable from the Kellogg Company Executive Excess Plan.

 

 

b.

 

For purposes of this letter agreement, termination for “Cause” means termination by the Company because of (i) your willful engaging in illegal conduct or gross misconduct pursuant to which the Company has suffered a loss, or (ii) your willful and continued refusal to perform substantially your duties hereunder in any material respect; provided, however, that in the case of clause (ii), the Company must provide written notice of such breach or refusal within thirty (30) days of its discovery thereof, and you shall have thirty (30) days from such written notice to cure such breach or refusal.

 

 

c.

 

For purposes of this letter agreement, termination for “Good Reason” means termination by you because of (i) a reduction in your base salary, as in effect from time to time, except in connection with salary reductions which are generally implemented with respect to the Company’s senior executives, (ii)

 


 

 

 

 

the Company’s failure to provide any fringe benefit plan or substantially similar benefit or compensation plan which is been made generally available to other management employees of the Company; provided, however, that nothing in this clause shall be construed to constrain the Company from amending or eliminating any benefit or compensation plan; (iii) a breach by the Company of its obligations to you under this letter agreement in any material respect, or (iv) a material reduction in your responsibilities or duties as in effect immediately prior to such change, provided however, that in the case of each of clauses (i) through (iv) hereof, you shall provide written notice of any such alleged action of the Company within thirty (30) days of the date you knew of such action and the Company shall have thirty (30) days from such written notice to cure such action.

 

 

d.

 

Notwithstanding any other provision in this letter agreement, if (i) your employment is terminated prior to the Retirement Date and (ii) at the time of such termination, you qualify for benefits under the Company’s Change of Control Policy, then you shall be eligible for the benefits described in Paragraph 1 (a). In addition, if your employment is terminated by reason of your death or disability, you or your estate, as the case may be, shall be entitled to receive the benefits described in Paragraph 1 (a).

 

 

e.

 

You shall be deemed a “Grandfathered Participant” under the Company’s qualified and non-qualified defined benefit pension plans (and any benefits payable under Paragraph 1 (a) will be calculated accordingly). This pension benefit shall be payable from the Kellogg Company Executive Excess Plan.

 

 

f.

 

Notwithstanding any other provisions in this letter agreement, if you violate any of your obligations under this letter agreement, you shall not be entitled to any of the benefits described in this Paragraph 1.

 

2.

 

Non-Compete. In further consideration of the foregoing, you agree that for a period of three years beginning with the last of the day of your active employment with the Company (the “Restricted Period”), you shall not, without the prior written consent from the Chief Executive Officer of Kellogg:

 

 

a.

 

directly or indirectly, accept any employment, consult for or with, or otherwise provide or perform any services of any nature to, for or on behalf of any person, firm, partnership, corporation or other business or entity that manufactures, produces, distributes or markets any of the Products (as herein defined) in the Geographic Area (as herein defined).

 

 

b.

 

directly or indirectly, permit any business, entity or organization which you, individually or jointly with others, owns, manages, operates, or controls, to engage in the manufacture, production, distribution, sale or marketing of any of the Products in the Geographic Area.

2


 

 

 

 

For purposes of this Paragraph, the term “Products” shall mean (i) ready-to-eat cereal products, toaster pastries, cereal bars, granola bars, crispy marshmallow squares, frozen waffles, frozen pancakes, fruit snacks, cookies, crackers, ice cream cones and meat substitutes; (ii) any other grain-based convenience food; or (iii) any other product which the Company manufactures, distributes, sells or markets at the time your employment ends with the Company. With respect to (iii) above, such products shall not include any product which the Company reasonably determines is insignificant to the Company. The term “Geographic Area” shall mean any territory, region or country where the Company sells any Products at any time during the applicable Restricted Period.

 

 

3

 

Non-solicitation. You agree that during your active employment and thereafter for a period of three years, you shall not, without the prior written consent of the Chief Executive Officer of Kellogg, directly or indirectly employ, or solicit the employment of (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or was an officer, director, representative, agent or employee of the Company at any time during the two year period prior to your last day of employment.

 

 

4

 

Non-Disparagement of the Company. You agree, during the term of your employment and thereafter, not to engage in any form of conduct or make any statements or representations that disparage, portray in a negative light, or otherwise impair the reputation, goodwill or commercial interests of the Company, or its past, present and future subsidiaries, divisions, affiliates, successors, officers, directors, attorneys, agents and employees.

 

 

5.

 

Preservation of Company Confidential Information. You acknowledge that you will not (without first obtaining the prior written consent in each instance from the Company) during the term of your employment and thereafter, disclose, make commercial or other use of, give or sell to any person, firm or corporation, any information received directly or indirectly from the Company or acquired or developed in the course of your employment, including, by way of example only, trade secrets (including organizational charts, employee information such as credentials, skill sets and background information), ideas, inventions, methods, designs, formulas, systems, improvements, prices, discounts, business affairs, products, product specifications, manufacturing processes, data and know-how and technical information of any kind whatsoever unless such information has been publicly disclosed by authorized officials of the Company.

 

 

6.

 

Release. In consideration of the compensation and benefits provided pursuant to this letter agreement, the sufficiency of which is hereby acknowledged, you, for yourself and for any person who may claim by or through you, irrevocably and unconditionally releases, waives and forever discharges the Company and its respective officers, directors, attorneys, agents and employees, from any and all claims or causes of action that you had, have or may have, known or unknown, relating to your employment with the Company up until the date of this letter agreement, including but not limited to, any claims arising under Title VII of the

3


 

 

 

 

Civil Rights Act of 1964, as amended, Section 1981 of the Civil Rights Act of 1866, as amended, the Civil Rights Act of 1991, as amended, the Family and Medical Leave Act, the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act of 1990, the Americans with Disabilities Act, the Employee Retirement Income Security Act; claims under any other federal, state or local statute, regulation or ordinance; claims for discrimination or harassment of any kind, breach of contract or public policy, wrongful or retaliatory discharge, defamation or other personal or business injury of any kind; and any and all other claims to any form of legal or equitable relief, damages, compensation or benefits (except rights you may have under the Employee Retirement Income Security Act of 1974 to recover any vested benefits), or for attorneys fees or costs. You additionally waive and release any right you may have to recover in any lawsuit or proceeding against the Company brought by you, an administrative agency, or any other person on your behalf or which includes you in any class.

 

 

7.

 

Miscellaneous.

 

a.

 

Severability. You also agree that if any provision of this letter agreement is invalid or unenforceable by a court of law, (i) such provision shall be deemed to be amended so that the intent of the parties is fulfilled to the greatest extent possible; and (ii) it would not affect the validity or enforceability of any other provision of this letter agreement, which shall remain in full force and effect.

 

 

b.

 

Controlling Law and Venue. You agree that the construction, interpretation, and performance of this letter agreement shall be governed by the laws of Michigan, including conflict of laws. It is agreed that any controversy, claim or dispute between the parties, directly or indirectly, concerning this letter agreement or the breach thereof shall only be resolved in the Circuit Court of Calhoun County, or the United States District Court for the Western District of Michigan, whichever court has jurisdiction over the subject matter thereof, and the parties hereby submit to the jurisdiction of said courts.

 

 

c.

 

Entire Agreement; Amendment. You agree that this letter agreement constitutes the entire agreement between you and the Company with respect to the matters described herein, and that this letter agreement supersedes any and all prior and/or contemporaneous written and/or oral agreements relating to such matters. You acknowledge that this letter agreement may not be modified except by written document, signed by you and the General Counsel of Kellogg.

 

 

d.

 

Employment Relationship. You acknowledge and agree that your employment with the Company described in this letter agreement is an at-will employment relationship, and that only the General Counsel of Kellogg may modify this provision, and any modification must be in writing signed by both parties.

4


 

 

e.

 

Counterparts. This letter agreement may be executed simultaneously in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same letter agreement.

     John, enclosed are two copies of this letter. If the letter is acceptable to you please sign both copies and return one to me for our files.

Sincerely,

/s/ David Mackay

David Mackay
President
Chief Executive Officer

I accept the terms of the agreement as presented in this letter this 23rd day of July, 2007.

     /s/ John A. Bryant     
John A. Bryant

5

 

 

 

EX-10.2 3 k47201exv10w2.htm EX-10.2

Exhibit 10.2

AMENDMENT
TO
EMPLOYMENT AGREEMENT

     WHEREAS, Kellogg Company, a Delaware corporation (the “Company”), and John A. Bryant (the “Employee”) previously entered into a retention agreement dated July 23, 2007 (the “Agreement”) pursuant to which Employee would receive certain pension benefits if he were terminated under certain circumstances (the “Pension Benefit”);

     WHEREAS, the Company and Employee now deem it desirable to amend the Agreement to reflect that the Pension Benefit is being eliminated;

     NOW, THEREFORE, the parties hereby agree that the Agreement shall be amended, effective as of the date of this Amendment, as follows:

     1. Sections 1(a), 1(b), 1(c), and 1(d) are hereby amended by deleting such sections in their entirety.

     2. Except as expressly modified by this Amendment. The Agreement shall remain in full force once effective. In the event of any conflict between the terms of this Amendment and the Agreement, this Amendment shall control.

     IN WITNESS WHEREOF, the Employee has hereunto set his hand, and the Company has caused this Amendment to be executed in its name and on its behalf, as of the effective date set forth above.

 

 

 

 

 

 

 

EMPLOYEE

 

 

 

 

 

/s/ John A. Bryant

 

 

 

 

 

John A. Bryant

 

 

 

 

 

 

 

 

 

KELLOGG COMPANY

 

 

 

 

 

 

 

 

 

By  /s/ James Jenness

 

 

 

 

 

 

 

 

 

 

 

 

 

<DOCUMENT>
<TYPE>EX-10.25
<SEQUENCE>8
<FILENAME>k74347exv10w25.txt
<DESCRIPTION>SEVERANCE POLICY
<TEXT>
<PAGE>
                                                                   EXHIBIT 10.25
 
                     KELLOGG COMPANY SEVERANCE BENEFIT PLAN
 
INTRODUCTION
 
Kellogg Company ("Kellogg") has established this Kellogg Company Severance
Benefit Plan (the "Plan") effective April 1, 2002. Kellogg established this Plan
to ease the financial burden on eligible terminated employees as a result of
sudden job loss. As is more fully detailed below, the Plan is designed to apply
in situations where Kellogg or any of its Affiliates (as defined below)
terminates the employment of an eligible employee due to
 
         1.       a reduction in the work force;
         2.       the relocation of a company facility or component within a
                  company facility;
         3.       the closing or sale of a company facility;
         4.       lack of work;
         5.       elimination of position; or
         6.       any other reason approved in the sole discretion of the
                  Kellogg ERISA Administrative Committee (the "Committee").
 
The Plan is intended to constitute an "employee welfare benefit plan" as that
term is defined in Section 3(1) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"). This document constitutes the summary plan
description and plan document with respect to the Plan. This Plan supercedes and
replaces all prior severance, workforce reduction or similar policies or
programs that may have been applicable to eligible employees of Kellogg or any
of its Affiliates.
 
For purposes of this Plan, (a) "Affiliates" means any subsidiary of which
Kellogg owns, directly or indirectly, at least 80% of the voting equity;
provided, however, that the Committee may, from time to time in its sole
discretion, exclude certain Affiliates from participation in the Plan and (b)
"Company" means Kellogg together with its Affiliates.
 
PARTICIPATION IN THE PLAN
 
ELIGIBLE EMPLOYEES
 
Each regular non-union U.S. employee (including non-union production employees)
who works on a "full-time" or "part-time" basis for Kellogg or any of its
Affiliates (an "Employee", and the entity which employs an Employee is referred
to herein as such Employee's "Employer") may be eligible for severance pay
benefits under the Plan if the Employee satisfies all of the conditions set
forth in this Plan.
 
For purposes of eligibility, "full-time basis" means the Employee is actively
employed by Kellogg or an Affiliate, and classified as "full-time" based on
Kellogg's or the Affiliate's as the case may be, definition of full-time. In
circumstances where a full-time Employee's normal work schedule has been reduced
to no less than 20 hours per week to accommodate the Employee's bona fide health
condition or disability, the Employee will be considered to be employed on a
"full-time basis" for purposes of Plan eligibility.
 
For purposes of eligibility, "part-time basis" means the Employee is actively
employed by Kellogg or an Affiliate to work on a part-time basis (minimum 20
hours per week) and not on a temporary or summer-only basis (e.g., co-op
students, on-call special projects.
 
Each Employee who works on a full-time or part-time basis must be specifically
designated as such by the Employee's Employer to be eligible under the terms of
this Plan. Only common-law employees who are paid from the regular payroll of
Kellogg or an Affiliate are eligible for benefits under this Plan.
 
 
                                        1
<PAGE>
 
An Employee on Military Leave, Family Leave, or Disability Leave (as those terms
are defined in the Employer's employment policies and procedures) at the time of
a Company initiated action that would otherwise result in the termination of his
or her employment, will be considered for the severance benefits under the Plan
at the conclusion of the approved leave on or after April 1, 2002. At such time,
the individual must meet all of the necessary prerequisites to return to active
employment under the terms of the approved leave and must also satisfy the
eligibility requirements of the Plan in order to be eligible to receive
severance benefits.
 
EXCLUDED EMPLOYEES
 
The following individuals are specifically excluded from eligibility under this
Plan:
 
           1.     employees whose terms and conditions of employment are
                  governed by a collective bargaining agreement;
 
           2.     pilots who, on account of their termination of employment, are
                  eligible to receive benefits under the "Kellogg Company Pilots
                  Loss of License and Employment After Age 60" policy;
 
           3.     individuals who, as of the date of their employment
                  termination, are receiving benefits under the Company's long
                  term disability program or disability retirement benefits
                  under any Company retirement plan;
 
           4.     temporary employees who have not been designated by the
                  Company as regular full-time or part-time employees;
 
           5.     any individuals who have signed an agreement, or otherwise
                  agreed, to provide services to the Company as an independent
                  contractor;
 
           6.     leased employees compensated through a leasing entity; and
 
           7.     any individual who has contractually waived, directly or
                  indirectly, his or her rights to receive benefits under the
                  Plan.
 
CONDITIONS FOR SEVERANCE BENEFITS
 
Subject to the provisions set forth above, an Employee is eligible to begin
receiving severance benefits if he or she meets the following conditions:
 
           1.     the Employee properly executes and submits to Kellogg a form
                  of release of claims (a "Release of Claims")which is presented
                  to him or her by the Company, within the time period
                  specified, and does not thereafter revoke the Release of
                  Claims. The Release of Claims shall include certain covenants
                  and representations as determined by the Company in its sole
                  discretion. Examples of these covenants include, but are not
                  limited to, covenants not to compete, solicit the Company's
                  employees, or disparage the Company.
 
           2.     the Employee remains an active employee of the Company until
                  the ultimate date established by the Employer as the
                  commencement date of the Employee's Severance Leave of Absence
                  ("SLOA");
 
           3.     if requested by the Employer, the Employee assists with the
                  transition of his or her job duties and responsibilities to
                  one or more individuals (which assistance may include the
                  participation in telephonic or in-person conferences from time
                  to time during the Employee's SLOA);
 
           4.     during the SLOA, the Employee continues to comply with all
                  policies and procedures of the Employer (including policies
                  related to the protection of confidential information and the
                  return of Employer property); and
 
           5.     the Employee does not experience a Disqualifying Event, as
                  described in the section below entitled "Early Termination of
                  Benefits."
 
 
 
                                       2
<PAGE>
 
Severance benefits under this Plan are extra compensation to eligible Employees,
not compensation that the Company is required to pay outside of this Plan.
Therefore, the severance benefits will be provided as consideration for the
Employee's execution of and compliance with the Release of Claims and any other
agreement with the Company and for the Employee's cooperation in the Employer's
transition efforts.
 
EMPLOYEES NOT ELIGIBLE TO RECEIVE SEVERANCE BENEFITS
 
The following individuals are not eligible to begin receiving severance benefits
under the Plan:
 
           1.     an Employee who refuses to accept an offer of "reasonable
                  alternative employment" from the Company;
 
           2.     an Employee who accepts any offer of employment with the
                  Company (including a corporate relocation assignment),
                  regardless of whether the offer is deemed to be an offer of
                  "reasonable alternative employment";
 
           3.     in the case of a sale or divesture by the Company(including,
                  but not limited to, the sale or divestiture of a Company
                  facility or business), an Employee who is offered employment
                  by the buyer, regardless of whether (a) the Employee accepts
                  or rejects the employment offer, or (b) the offer is deemed to
                  be an offer of "reasonable alternative employment";
 
           4.     an Employee who voluntarily terminates employment or retires;
 
           5.     an Employee who enters into a consultative arrangement with
                  the Employer which provides for compensation during the
                  consulting period; and
 
           6.     an Employee deemed ineligible for any other reason in the
                  Committee's sole discretion.
 
For purposes of this Plan, an offer of employment will be deemed to be an offer
of "reasonable alternative employment" if, both (i) the new Market Reference
Point, as that term is defined in Kellogg's employment policies and procedures,
is equal to at least 85% of the Employee's then current Market Reference Point),
and (ii) the distance between the employee's residence and the new place of
employment is not more than 50 miles, or the distance of the employee's current
commute, whichever is greater.
 
EARLY TERMINATION OF BENEFITS
 
An Employee's severance benefits (including severance pay and continuation of
benefits under employee benefit plans) will end, and his or her SLOA will
terminate, on the earliest of the following events ("Disqualifying Events"):
 
           1.     the date the Employee breaches any term contained in the
                  Release of Claims described herein or in any other agreement
                  with the Company;
 
           2.     the date the Employee enters into a consulting agreement or
                  active employment with the Company;
 
           3.     the date the Employee elects to retire or otherwise terminate
                  his or her SLOA; or
 
           4.     the end of the Employee's maximum period of severance pay.
 
 
 
TERMINATION OF PARTICIPATION
 
Except as specifically provided elsewhere in this Plan, an Employee's
eligibility for severance benefits under this Plan will cease on the date the
Employee terminates employment with the Company.
 
 
 
                                       3
<PAGE>
 
 
HOW THE PLAN WORKS
 
SEVERANCE LEAVE OF ABSENCE/NATURE AND DURATION OF SEVERANCE PAYMENTS
 
An eligible Employee will be placed on a SLOA that begins immediately upon the
date the Employee would otherwise terminate employment. During the SLOA, the
Employee will be entitled to receive severance pay based on the then-current
payroll practice (which may change during the SLOA period), and in the same
manner (such as by direct deposit) as he or she had previously received base pay
or base salary, and the payments will continue for the length of time described
in the section below called "Amount of Severance Pay."
 
Although the severance pay will look similar to the Employee's former base pay
or base salary, it will not be considered "compensation" or otherwise included
for benefit calculation purposes under any retirement plan of Kellogg or any
Affiliate. The eligible Employee will not accrue additional service during the
SLOA for purposes of any such retirement plan; provided, however, an Employee
who is within two years of retirement eligibility may, at the sole discretion of
the Committee, be credited service under such retirement plan equal to their
SLOA period, not to exceed two years of additional service.
 
VACATION PAY, ACCRUED BONUS AND STOCK OPTIONS
 
No additional vacation days will accrue during the SLOA. If the Employee is
retirement-eligible at the time of his or her employment termination (or where
required by state law), the Employee will be entitled to receive any accrued but
unused vacation pay as of the commencement of the SLOA. The Employee may be
eligible, at Kellogg's sole discretion, to receive a pro-rata distribution of
his or her bonus for the year in which the employment termination occurs, if
such bonus has accrued under the terms of the bonus program; provided, however,
that any bonus paid pursuant to this Plan will be based on no more than target
and prorated through the last day of the month in which the Employee's SLOA
begins. No bonus accrual is possible during the SLOA.
 
An eligible Employee will continue to vest in his or her stock options and other
stock awards under any Kellogg stock incentive program or other equity incentive
program sponsored by the Company throughout the SLOA.
 
AMOUNT OF SEVERANCE PAY
 
The amount of an eligible Employee's severance pay will be based on the
Employee's then-current pay grade and total years of service, as set forth
below:
 
           1.     LEVEL 1 - 3: one week of severance pay for each year of
                  service (subject to a minimum of six weeks and a maximum of 26
                  weeks).(1)
 
           2.     LEVEL 4 - 5: 1.5 weeks of severance pay for each year of
                  service (subject to a minimum of 16 weeks and a maximum of 39
                  weeks).
 
           3.     LEVEL 6+: two weeks of severance pay for each year of service
                  (subject to a minimum of 26 weeks and a maximum of 52 weeks).
 
           4.     SENIOR EXECUTIVES (other than direct reports of the Chief
                  Executive Officer): two years of Base Pay, less any change of
                  control payments payable by Kellogg.
 
           5.     Senior Executives who are DIRECT REPORTS OF THE CHIEF
                  EXECUTIVE OFFICER: two years of Base Pay plus two years of
                  target bonus (unless the Employee is covered by an employment
                  agreement, in which case the agreement will determine his or
                  her severance pay).
 
           6.     CHIEF EXECUTIVE OFFICER: determined by Kellogg's Board of
                  Directors.
 
--------
(1) Level 1-3 includes all non-union hourly employees who have not otherwise
been specifically designated a level.
 
 
 
 
                                       4
<PAGE>
 
An eligible Employee may receive severance benefits in addition to those
described herein only with the written approval of the Company's Executive Vice
President and General Counsel. For purposes of calculating the severance pay set
forth above, the following definitions will apply:
 
WEEK'S PAY DEFINED
 
A week's pay for exempt and nonexempt Employees is defined as follows:
 
         1.       EXEMPT EMPLOYEES:
 
                  Current Bi-weekly Base Salary (or average of prior 26
                  bi-weekly equivalents for commissioned employees or commission
                  plus base) x 26 (pay periods per year) divided by 52 (weeks).
 
                  Base salary shall include contributions to Kellogg's or an
                  Affiliate's 401(k) plan and nonqualified plans, and
                  contributions to health care or dependent care spending
                  accounts under any flexible benefit plan sponsored by Kellogg
                  or an Affiliate.
 
         2.       NONEXEMPT EMPLOYEES:
 
                  The current hourly base rate (or the equivalent hourly rate in
                  the case of salaried employees) multiplied by the normally
                  scheduled number of work hours per week or 40 hours, whichever
                  is less.
 
                  If a nonexempt Employee is paid at more than one hourly rate,
                  the "current hourly base rate" is determined by calculating a
                  weighted average of all hourly rates on which the Employee's
                  earnings were based for the 30-day period immediately
                  preceding the effective date of the termination.
 
SERVICE DEFINED
 
Service is the years and months credited to the Employee on the date of
commencement of the SLOA, less any service for which severance pay or other type
of severance/layoff benefit has been paid by the Company.
 
SENIOR EXECUTIVE DEFINED
 
A Senior Executive is an executive who has been expressly designated in writing
as such for purposes of this Plan, from time to time, by the Chairman of
Kellogg's Board of Directors.
 
ADDITIONAL SEVERANCE BENEFITS
 
CONTINUED PARTICIPATION IN CERTAIN EMPLOYEE BENEFIT PLANS
 
Throughout the SLOA, an eligible Employee will be allowed to continue his or her
participation in the following Employer-sponsored employee benefit programs to
the extent they are provided to the employees of such Employer and otherwise in
accordance with the terms of the respective plan: medical, dental, prescription
drug, life insurance and voluntary programs (including supplemental life
insurance and long-term care). The Employee will be able to continue such
participation so long as such Employee (i) pays the monthly premium or
contribution rate applicable to "active" employees, (ii) complies with the other
terms of the respective plan, and (iii) complies with the terms of the Release
of Claims. Thereafter, the Employee may be eligible for continuation coverage
under any group health plan under the federal law known as "COBRA."
 
If an eligible Employee is on a Disability Leave at the commencement of his or
her SLOA, benefits under the short-term (and, if the employee later qualifies
for such benefits, benefits under the long-term) disability programs of the
Company will continue as long as the Employee remains eligible for such benefits
pursuant to the terms of those programs. Employer-provided financial planning
services will end at the commencement of the SLOA; however, if
 
 
 
                                       5
<PAGE>
 
the Employee was eligible for those services prior to the SLOA, his or her tax
preparation benefits will extend throughout the calendar year during which he or
she last worked. Under the Kellogg tuition reimbursement program, an Employee
will be eligible for reimbursement for eligible courses that started prior to
the commencement of the SLOA up to the maximum allowed under the program and
otherwise in accordance with the terms of the program.
 
Unless otherwise provided herein or with the written approval of the Company's
Executive Vice President and General Counsel, all other coverage in policies,
programs, plans and perquisites will end as of the commencement of the SLOA.
 
OUTPLACEMENT
 
Outplacement assistance will be provided to an eligible Employee if the Employee
has at least one or more years of service. The duration of such assistance is
based upon the Employee's then-current pay grade, as set forth below:
 
           1.     LEVEL 1 - 2: two days of outplacement assistance(2)
 
           2.     LEVEL 3: three months of outplacement assistance
 
           3.     LEVEL 4 - 5: six months of outplacement assistance
 
           4.     LEVEL 6+: nine months of outplacement assistance
 
           5.     SENIOR EXECUTIVES (other than direct reports of the Chief
                  Executive Officer): 12 months of outplacement assistance
 
           6.     SENIOR EXECUTIVES WHO ARE DIRECT REPORTS OF THE CHIEF
                  EXECUTIVE OFFICER : 12 months of outplacement assistance
 
EMPLOYEE ASSISTANCE PROGRAM
 
Employee will be eligible for Employee Assistance Program ("EAP") services
during the SLOA, to the extent they are provided by the Employer and otherwise
in accordance with the terms of the relevant EAP plan.
 
SEVERANCE BENEFITS CONTINGENT UPON UNREVOKED RELEASE
 
At or before the commencement of the SLOA, an eligible Employee will be given
the Release of Claims that is described in the section above called "Conditions
for Severance Benefits." The Employee will be informed of the deadline for
signing and returning the form to Kellogg, and of any applicable revocation
period. Although the Employee's severance pay may begin before the expiration of
such deadline and revocation period, the entitlement to any severance benefits
under this Plan is contingent upon the Employee's submission of an unrevoked
form. Therefore, if an Employee fails to submit the signed form to Kellogg, or
submits the signed form but later revokes it, no additional severance benefits
will be paid to the Employee and Kellogg and/or the Employee's Employer may
offset the amount of any severance payments already made from sums otherwise due
to the Employee (such as non-qualified retirement plan payments), and if the
full amount of said severance payments are not fully offset, Employee shall pay
the balance to Kellogg upon demand.
 
 
 
OTHER OBLIGATIONS
 
Any obligations or duties of an eligible Employee pursuant to a non-competition
or other agreement with the Company will be governed solely by the terms of that
agreement, and will not be affected by the terms of this Plan.
 
--------
 
(2) Level 1-2 includes all non-union hourly employees who have not otherwise
been specifically designated a level.
 
 
                                       6
<PAGE>
 
GENERAL PROVISIONS
 
INTEGRATION AND TAXES
 
Severance pay under this Plan will be offset against any severance, notice or
termination pay required to be paid by the Company pursuant to federal, state or
local law or ordinance or pursuant to any written employment agreement between
the Employee and the Company. All amounts owed by the Employee to the Company
for bridge loan repayments, personal charges on company-provided credit cards or
any other debts may be deducted from the severance payments at the Company's
sole discretion, subject to the limitations of any state wage deduction statute.
 
Severance pay is subject to federal and state taxes at the applicable rate.
 
PAYMENT OF BENEFITS IN CASE OF INCOMPETENCY
 
If an Employee entitled to severance pay becomes physically or mentally
incapable of receiving or acknowledging payment of such benefit, the Committee,
upon receipt of satisfactory evidence of such legal incapacity may, in its sole
discretion, cause such benefits to be paid to some other person, persons, or
institution on behalf of the Employee.
 
PAYMENT OF BENEFITS IN CASE OF DEATH
 
In the event that an eligible Employee dies after signing a Release of Claims
which has not been revoked by the Employee prior to death, but before receipt of
all severance pay benefits to which he or she was entitled under the Plan, a
lump sum payment of the severance pay will be distributed to the estate of the
Employee. If, however, an otherwise eligible Employee dies prior to signing a
Release of Claims, no severance pay benefits will be paid to the estate of the
Employee or to anyone else.
 
ASSIGNMENT OF BENEFITS
 
Any assignment of all or part of an eligible Employee's severance pay is void
under the terms of the Plan. For example, creditors cannot claim an Employee's
severance pay to satisfy such his or her debts. In addition, an Employee cannot
give, sell, assign, pledge or otherwise transfer his or her severance pay to
someone else or use it as collateral for a loan.
 
GOVERNING LAW
 
Except to the extent superseded by ERISA, the laws of the State of Michigan,
other than its laws regarding choice of law, will be controlling in all matters
relating to the Plan.
 
PLAN COSTS
 
Kellogg and its Affiliates pay the cost of providing benefits under the Plan out
of their general assets. There is no cost to the Plan participants.
 
PLAN AMENDMENT AND TERMINATION
 
Kellogg reserves the right to amend or terminate this Plan at any time, by
written resolution of its Board of Directors or by any committee or officer to
whom this authority has been expressly delegated by the Board of Directors. The
Plan may be amended in any way, including, but not limited to, changing the
amount of severance benefits that an Employee may receive, even if the amendment
reduces, in whole or in part, or terminates an amount of severance benefits, or
excludes one or more classes of individuals from coverage under the Plan. Except
as expressly authorized by the Plan or the Committee, in any action causing the
termination of any severance benefits or the entire Plan, no further severance
benefits will be provided other than for terminations occurring before the date
of such action. Notice of a Plan amendment or termination may, but need not, be
given unless required by law.
 
 
 
                                       7
<PAGE>
 
At any given time, amendments to the Plan may have been adopted by Kellogg that
have not yet been reflected in this written document. In addition, from time to
time the Committee may evidence the exercise of discretion on Plan matters in
the form of written "Administrative Rulings." Copies of any such ruling will
also be sent to you if you send a written request for them addressed to the
Committee. The Committee may assess a reasonable charge to provide any requested
copies.
 
HOW THE PLAN IS ADMINISTERED
 
COMMITTEE
 
The Plan is self-administered by the Committee. In its role as Plan
administrator, the Committee must administer the Plan in a uniform and
non-discriminatory manner, and in accordance with its terms. The Committee will
have full power to administer the Plan in all of its details. From time to time
as it deems necessary or advisable for effective plan administration, the
Committee may appoint a sub-committee or individuals to act as its
representatives in matters affecting the Plan. The Committee's powers will
include, but will not be limited to, the following authority, in addition to all
other powers provided by this Plan:
 
           1.     to make, enforce, amend or rescind such rules and regulations
                  as the Committee deems necessary or proper for the efficient
                  administration of the Plan;
 
           2.     to interpret the Plan, with the Committee's interpretations
                  thereof to be final and conclusive on all persons claiming
                  benefits under the Plan;
 
           3.     to decide all questions concerning the Plan and the
                  eligibility of any person to participate in the Plan and to
                  receive benefits provided under the Plan;
 
           4.     to authorize the payment of benefits; and
 
           5.     to appoint such agents, counsel, accountants, consultants, and
                  actuaries as may be required to assist in administering the
                  Plan.
 
CLAIMS
 
Claims for benefits under the Plan must be submitted in writing to the People
Services Center or the Committee within 60 days of the effective date of
claimant's last day worked (or, if later, the date on which the claim arose).
The Committee will provide written notice to any claimant within 60 days of the
date a claim is filed if such claim for benefits hereunder has been denied. The
Committee's 60-day determination period may be extended under certain
circumstances. Any notice of adverse benefit determination under the Plan will
state the specific reason(s) for determination; reference specific Plan
provision(s) on which the determination is based; describe additional material
or information necessary to complete the claim and why such information is
necessary, describe Plan procedures and time limits for appealing the
determination, and your right to obtain information about those procedures and
the right to sue in federal court; and disclose any internal rule, guidelines,
protocol or similar criterion relied on in making the adverse determination (or
state that such information will be provided free of charge upon request).
 
If a claim is denied in whole or in part, the claimant may request a review of
the claim by the Committee by filing with or mailing to the Committee a written
request within 180 days after the claim has been denied. A claimant will have
the opportunity to submit written comments, documents, or other information in
support of his or her appeal. A claimant will have access to all relevant
documents as defined by applicable U.S. Department of Labor regulations. The
review of an adverse benefit determination will take into account all new
information, whether or not presented and available at the initial
determination. No deference will be afforded to the initial determination.
 
The claimant will receive a fair review of the claim by the Committee and be
advised in writing of the disposition of the claim within 60 days after the
request for review. Under special circumstances, a 60-day extension may be
requested by the Committee, in which case the claimant will be notified in
writing. If an extension is necessary due to the claimant's failure to submit
the information necessary to decide the appeal, the notice of extension will
 
 
 
                                       8
<PAGE>
 
specifically describe the required information, and the claimant will be
afforded at least 60 days from receipt of the notice to provide the specified
information. If the claimant delivers the requested information within the time
frame specified, the 60-day extension of the appeal period will begin after the
claimant has provided such information. If the claimant fails to provide the
requested information within the time frame specified, the Committee may decide
the claimant's appeal without that information.
 
SEVERABILITY
 
If any provision of the Plan is held invalid or unenforceable, its invalidity or
unenforceability will not affect any other provisions of the Plan and will be
construed and enforced as if such provision had not been included herein.
 
NO RIGHT TO EMPLOYMENT
 
Nothing in this Plan will be construed as giving any person the right to be
retained in the employment of Kellogg or any of its Affiliates.
 
IMPORTANT INFORMATION ABOUT YOUR SEVERANCE PAY PLAN
 
NAME OF PLAN                             Kellogg Company Severance Benefit Plan
 
TYPE OF PLAN                             The Plan is a welfare benefit plan
                                         providing specified severance benefits.
 
EMPLOYER IDENTIFICATION NO.              38-3020060
 
PLAN NUMBER                              701
 
PLAN SPONSOR                             Kellogg Company
 
PLAN ADMINISTRATOR                       ERISA Administrative Committee
                                         Kellogg USA Inc.
                                         P.O. Box 3599
                                         Battle Creek, Michigan  49016-3599
                                         Phone (616) 961-2000
 
AGENT FOR SERVICE OF
LEGAL PROCESS                            Service of legal process may be served
                                         upon the Committee.
 
PLAN RECORDS                             The fiscal records of the Plan are kept
                                         on a plan year basis, January 1 -
                                         December 31.
 
STATEMENT OF ERISA RIGHTS
 
The U.S. Department of Labor issued regulations that require Kellogg to provide
you with a statement of your rights under ERISA with respect to this Plan. The
following statement was designed by the Department of Labor to satisfy this
requirement and is presented accordingly:
 
As a participant in the Plan, you are entitled to certain rights and protections
under ERISA. ERISA provides that all Plan participants shall be entitled to:
 
           1.     examine, without charge, at the Committee's office, all Plan
                  documents, and copies of all documents filed by the Plan with
                  the U. S. Department of Labor, such as detailed annual reports
                  and Plan descriptions, and
 
           2.     obtain copies of all Plan documents and other Plan information
                  upon request to the Committee. The Committee may make a
                  reasonable charge for the copies.
 
 
 
                                       9
<PAGE>
 
In addition to creating rights for Plan participants, ERISA imposes duties upon
the people who are responsible for the operation of an employee benefit plan.
The people who operate your Plan, called "fiduciaries" of the Plan, have a duty
to do so prudently and in the best interest of Plan participants. No one,
including your Employer or any other person, may fire you or otherwise
discriminate against you in any way to prevent you from obtaining a benefit or
exercising your rights under ERISA.
 
If your claim for a benefit is denied in whole or in part, you must receive a
written explanation of the reason for the denial. You have the right to have
your claim reviewed and reconsidered.
 
Under ERISA, there are steps you can take to enforce the above rights. For
instance, if you request materials from the Plan and do not receive them within
30 days, you may file suit in a federal court. In such a case, the court may
require the Committee to provide the materials and pay you up to $110 a day
until you receive the materials, unless the materials were not sent because of
reasons beyond the control of the Committee. If you have a claim for benefits
that is denied or ignored, in whole or in part, you may file suit in a state or
federal court.
 
If you are discriminated against for asserting your rights, you may seek
assistance from the U.S. Department of Labor, or you may file suit in a federal
court. The court will decide who should pay court costs and legal fees. If you
are successful, the court may order the person you have sued to pay these costs
and fees. If you lose, the court may order you to pay these costs and fees; for
example, if it finds your claim is frivolous.
 
If you have any questions about your plan, you should contact the Committee. If
you have any questions about this statement or about your rights under ERISA,
you should contact the nearest office of the Pension and Welfare Benefits
Administration, U.S. Department of Labor, listed in your telephone directory or
the Division of Technical Assistance and Inquiries, Pension and Welfare Benefits
Administration, U.S. Department of Labor, 200 Constitution Avenue N.W.,
Washington, D.C. 20210. You may also obtain certain publications about your
rights and responsibilities under ERISA by calling the publications hotline of
the Pension and Welfare Benefits Administration.
 
 
 
 
                                       10
 
</TEXT>
</DOCUMENT>

 

  

 

 

 

EX-10.2 3 d835764dex102.htm EX-10.2

Exhibit 10.2

EXECUTION VERSION

AMENDMENT

TO

CHANGE OF CONTROL

WHEREAS, Kellogg Company, a Delaware corporation (the “Company”), and John A. Bryant (the “Employee”) previously entered into an agreement relating to Change of Control dated September 12, 2002 (as amended on December 19, 2008, the “Agreement”); and

WHEREAS, the Company and the Employee now deem it desirable to enter into this amendment (this “Amendment”) to amend the Agreement to (i) eliminate the excise taxes gross up; (ii) reduce the potential amount payable and the protection period following a Change of Control; and (iii) add restrictive covenants as a condition to receive any separation payment under the Agreement.

NOW, THEREFORE, the Company and the Employee agree that the Agreement is hereby amended, effective as of December 5, 2014, as follows:

 

1.

Eliminate Excise Tax Coverage

 

1.1

Employee and the Company agree that the Employee (and not the Company) shall be responsible for any excise taxes imposed as a result of the payment of separation benefits to Employee under this Agreement. Consequently, Section 8 of the Agreement is deleted and replaced with the following:

 

    

Section 8.    Eliminate Excise Tax Coverage. If a Change of Control occurs and the Executive becomes entitled to separation benefits under this Agreement that would be subject to the excise tax imposed under Section 4999 of the Code, the Company shall reduce its payment of separation benefits to the Executive to $1.00 less than that amount which would trigger the excise tax if such reduction would result in the Executive receiving an equal or greater after-tax benefit than he would receive if the full separation benefits were paid. The separation benefits shall be reduced in the following order of priority: (i) first from cash compensation under Section 5(a)(1)(B), (ii) next from cash compensation under Section 5(a)(1)(A), (iii) then from any additional SERP benefits under Section 5(a)(1)(C), then (iv) from equity-based awards under Section 5(a)(3), and then (v) pro-rata among all remaining payments and benefits, provided, however, that this payment structure complies with applicable law, including Section 409A of the Code.”

 

2.

Potential Payouts and Protection Period

 

2.1

To simplify the Company’s Change of Control severance program and to reduce the potential amount payable following a Change of Control, Section 1 of Agreement is amended to add the following definition:

 

    

“(e) “Target Annual Bonus Percentage” means the Executive’s target annual bonus percentage under the under the Company’s or an Affiliated Company’s annual incentive plans, or any comparable bonus under any predecessor or successor plan, in effect immediately prior to the Effective Date, or if higher, the year in which the Date of Termination occurs.”


2.2

The first sentence of Section 2 is amended by deleting the word “third” and replacing it with the word “second.”

 

2.3

The first sentence of Section 3(b)(2) is deleted and replaced with the following:

 

    

“In addition to the Annual Base Salary, the Executive shall be awarded, for each fiscal year ending during the Employment Period, an annual bonus (the “Annual Bonus”) in cash at least equal to the Executive’s target bonus in effect under the Company’s or an Affiliated Company’s annual incentive plans, or any comparable bonus under any predecessor or successor plan, immediately prior to the Effective Date (annualized in the event that the Executive was not employed by the Company for the whole of such fiscal year).”

 

2.4

The first sentence of Section 5(a)(1) is amended by deleting the words “within 30 days after the Date of Termination.”

 

2.5

Section 5(a)(1)(A)(ii)(x) is deleted and replaced with the following:

(x)  The Annual Bonus equal to the product of

(1) The Executive’s Annual Base Salary; and

(2) The Executive’s Target Annual Bonus Percentage; and”

 

2.6

Section 5(a)(1)(B)(y) is deleted and replaced with the following:

(y)  The Executive’s Annual Bonus equal to the product of (1) Executive’s Annual Base Salary and (2) Executive’s Target Annual Bonus Percentage; and”

 

2.7

The following is added to the end of Section 5(a)(1):

 

    

“Notwithstanding the first sentence of Section 5(a)(1), the benefits described in Section 5(a)(1) shall be paid in equal bi-weekly installments over a two-year period if the circumstances entitling the Executive to benefits under this Agreement do not meet the definition of a “change in control” under Section 409A of the Code.”

 

3.

Restrictive Covenants

 

3.1

To add certain restrictive covenants as a condition to receiving payment of separation benefits under this Agreement, a new Section 12 is added to the Agreement as follows:

 

    

Section 12.    Separation Payments Contingency. Upon a Change of Control and termination of employment under the circumstances described in Section 5(a), the obligations of the Company to pay or provide separation benefits under this Agreement to the Employee are contingent on the following:

 

2


(a)  Non-Solicitation. The Executive’s entering into and adhering to a written agreement providing that the Executive will not solicit any employee of the Company or an Affiliated Company to leave the Company or an Affiliated Company and to work for any other entity, whether as an employee, independent contractor or in any other capacity, for a period of up to one year following the Executive’s Date of Termination. Should the Executive violate this non-solicitation agreement, the Executive will be obligated to pay back to the Company all payments received hereunder, and the Company will have no further obligation to pay or provide the Executive any separation benefits that may be remaining due hereunder;

(b)  Non-Disparagement. The Executive’s entering into and adhering to a written agreement providing that, in discussing the Executive’s relationship with the Company, the Executive will not disparage, discredit or otherwise treat in a detrimental manner the Company, the Affiliate Companies or their officers, directors and employees. In this written agreement the Company shall also agree that, in discussing its relationship with the Executive, the Company will not disparage, discredit or otherwise treat the Executive in a detrimental way. Should the Executive violate this non-disparagement agreement, the Executive will be obligated to pay back to the Company all payments received hereunder, and the Company will have no further obligation to pay or provide the Executive any separation benefits that may be remaining due hereunder; and

(c)  General Release of Claims. The Executive’s execution of a general release of claims in the form and substance to be reasonably acceptable to the Company, releasing the Company, the Affiliated Companies and their officers, directors, agents and employees from any claims or causes of action of any kind that the Executive might have against any one or more of them regarding the Executive’s employment or the termination of that employment as of the date of the release of claims, and provided the Executive does not thereafter revoke the release of claims.

Payment of separation benefits shall commence promptly after the release of claims is executed, but in no event later than 90 days following the date the release of claims is executed.”

 

4.

Except as expressly modified by this Amendment, the Agreement shall remain in full force. In the event of any conflict between the terms of this Amendment and the Agreement, this Amendment shall control.

*            *             *

 

3


IN WITNESS WHEREOF, the Executive has hereunto set his hand, and the Company has caused this Amendment to be executed in its name and on its behalf, as of the effective date set forth above.

 

EMPLOYEE

/s/ John A. Bryant

John A. Bryant

KELLOGG COMPANY

/s/ Gordon Gund

 

4