Employment Agreement [Amendment] - Keebler Foods Co., Kellogg Co. and David Vermylen
AMENDMENT
AMENDMENT ("Amendment") dated and effective as of the 22nd day of
February, 2001, to the Employment Agreement entered into by David Vermylen (the
"Executive"), Keebler Foods Company ("Keebler"), and Kellogg Company ("Kellogg")
dated as of October 26, 2000 (the "Agreement").
WHEREAS, the parties desire to amend the Agreement;
NOW, THEREFORE: the parties hereto, in consideration of the mutual
covenants contained herein and in the Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, agree as follows:
1. Clause (ii) of the third sentence of Section 5(c) of the Agreement shall be
replaced with the following language, which clarifies the definition of
"Competitor" by adding the words "(including but not limited to
ready-to-eat cereal)":
(ii) a "Competitor" means any grain-based convenience foods
(including but not limited to ready-to-eat cereal) business of
Campbell's, Danone, General Mills, Kraft, Nabisco, Nestle, Parmalat,
PepsiCo, Quaker, or any of their respective affiliates and
successors; and
2. The following text shall be added to your Agreement as a new Section 5(e),
and the existing Section 5(e) shall become Section 5(f):
Nondisparagement. The Executive shall not, and the Company and the
Affiliated Companies shall not, in each case except as otherwise
required by applicable law, make or cause to be made any statement to
any person or entity that disparages, casts in a negative light, or
otherwise impugns the other party and/or damages the reputation of
the Company or any of the Affiliated Companies, agents, officers,
directors, managers, or employees, or the Executive, as the case may
be.
3. The grant of Options described in Exhibit B to the Agreement shall be
subject to the terms and conditions of an option agreement in the form of
the option agreement attached to this Amendment (and such Exhibit B shall
be deemed to so provide), and the following sentence from the first bullet
point in Exhibit B to the Agreement shall be modified so that the items
crossed out below are deleted:
Vested Options shall remain exercisable for one year from the date of
employment termination.
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The Agreement shall remain in full force and effect, except to the
extent expressly provided herein. This Amendment may be executed simultaneously
or in two or more counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of its Board of Directors, each of Keebler
and Kellogg has caused this Amendment to be executed in its name and on its
behalf, all as of the day and year first written above.
EXECUTIVE
--------------------------------
KEEBLER FOODS COMPANY
By:
----------------------------
Name:
Title:
KELLOGG COMPANY
By:
----------------------------
Name:
Title:
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EXHIBIT B
OPTIONS TO BE GRANTED TO DAVID VERMYLEN (the "Executive")
Number of Options: 500,000 shares of common stock of Kellogg.
Per-share exercise price: The "Fair Market Value," as defined in the LTIP, of a
share of common stock of Kellogg on the grant date.
Vesting schedule before termination of employment as follows: (1) 50% of the
Options vest on January 1, 2002 if all of the following performance conditions
are achieved for calendar year 2001: (a) Net Sales Value (NSV) growth of 3% over
the preceding 12 month period, (b) EBITDA growth of 12% over the same period,
and (c) effective integration and testing of Rice Krispie Treats, Snackums,
Nutrigrain Bars and other Kellogg products, from warehouse to direct store
delivery; and (2) an additional 25% of the Options vest on January 1, 2003 if
both of the following performance conditions are achieved for calendar year
2002: (a) NSV growth of 5% (as measured against an NSV for 2001 that equals the
annualized sales of Kellogg products under the control of the Company plus the
total sales of Company products) and (b) EBITDA growth of 15% over the same
period. If any of the performance conditions are not achieved for a given year,
the Options available for vesting in that year will be made available for
vesting in the subsequent year. All Options will vest on January 1, 2004
regardless of the achievement of the performance conditions provided the
Executive's employment has not previously terminated for any reason.
Effect of a termination of the Executive's employment:
- Termination of employment by the Company without Cause or by the
Executive for Good Reason: A percentage of the Executive's unvested
Options vest, equal to the percentage determined by dividing (i) the
number of calendar months ending during the period from the Effective
Time to the Date of Termination, by (ii) the number of calendar months
ending in the period between the Effective Time and January 1, 2004.
Vested Options shall remain exercisable for one year from the Date of
Termination, subject to compliance with the covenants of Section 5 of
the Employment Agreement.
- Termination of employment by the Company for Cause or by the Executive
without Good Reason: all Options (whether vested or not) are forfeited
on the Date of Termination.
- Termination of employment due to the Executive's Retirement (as defined
in the Company pension plan in which the Executive is then
participating, and also including voluntary termination at the end of
the Employment Period): all unvested Options vest as of the Date of
Termination, and all Options remain exercisable until the fifth
anniversary of the date of Retirement.
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- Termination of employment due to the Executive's death: all unvested
Options vest as of the Date of Termination, and all Options remain
exercisable until the fifth anniversary of the date of death.
- Termination of employment due to the Executive's disability (as defined
in the Company long-term disability plan then covering the Executive):
all unvested Options vest as of the Date of Termination, and all
Options remain exercisable until the fifth anniversary of the date of
disability.
- Notwithstanding the foregoing, in no event will any Options remain
exercisable beyond their original term.
Reloads: The Options will be granted with a reload feature that, as provided in
the LTIP, will be available only to the extent the Options are exercised while
the Executive is an active employee. Reloads are not available for any Options
exercised after a termination of employment for any reason.