FORM 8-K |
Delaware | 1-4171 | 38-0710690 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). | |||
Emerging growth company | o | ||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange | |||
Act. | o |
KELLOGG COMPANY | |||
Date: February 22, 2018 | /s/ Gary H. Pilnick | ||
Name: | Gary H. Pilnick | ||
Title: | Vice Chairman |
(a) | reasonably believes that a Participant has engaged in “Detrimental Conduct” (as defined below), then the Committee or an Authorized Officer may suspend the Participant’s right to participate in the Executive Performance Plan pending a determination of whether the Participant has engaged in Detrimental Conduct; |
(b) | determines the Participant has engaged in “Detrimental Conduct” (as defined below), then the grant of Performance Shares under the Plan and all rights thereunder shall terminate immediately without notice effective the date on which the Participant engages in such Detrimental Conduct, unless terminated sooner by operation of another term or condition of this document or the Plan; and/or |
(c) | determines the Participant has engaged in “Detrimental Conduct” (as defined below), then the Participant may be required to repay to the Company, in cash and upon demand, any payment of Performance Shares under the EPP made during and after the plan year in which the Detrimental Conduct occurred. |
1. | Type of Award: Restricted Stock Units (“RSU”) are granted to participants upon the approval of the Compensation and Talent Management Committee of the Board of Directors of Kellogg Company (the “Committee”). This RSU award will be forfeited if the participant is terminated, retired, on long-term disability, on a severance leave of absence or otherwise not an active employee on the date of grant. Employees who receive and accept an RSU grant are participants in the Kellogg Company 2017 Long-Term Incentive Plan “the Plan”). |
2. | Vesting: RSUs become unrestricted and no longer subject to forfeiture and will fully vest on the third anniversary of the grant date. Participants will immediately forfeit any non-vested RSUs upon termination of employment with the Company, including any of its subsidiaries, for any reason other than death, Disability, Retirement or Change of Control (as those terms are defined in the Kellogg Company 2017 Long-Term Incentive Plan (the “Plan”). In the case of a participant’s, death, Disability or Retirement, RSUs will partially vest. Vesting in those cases will be pro-rated based on the number of days the participant was actively employed during the vesting period. |
3. | Change of Control: Notwithstanding the above, in the event of a Change of Control, all outstanding RSUs will fully vest immediately as of the Change of Control and will be considered fully earned and will be payable promptly as practicable following the Change of Control if the grants have not been assumed or replaced by a Substitute Award, as defined below. |
4. | Non-solicitation: As a condition for receipt of this Award, and in consideration of the compensation and benefits provided pursuant to this Award, the sufficiency of which is hereby acknowledged, acceptance of this Award is agreement by the participant that during the participant’s active employment and thereafter for a period of two years, the participant shall not, without the prior written consent of the Chief Legal Officer, directly or indirectly employ, or solicit the employment of (whether as a participant, officer, director, agent, consultant or independent contractor) any person who is or was an officer, director, representative, agent or participant of the Company, including any of its subsidiaries, at any time during the two year period prior to the participant’s last day of employment. |
5. | Non-Disparagement of the Company: As a condition for receipt of this Award, and in consideration of the compensation and benefits provided pursuant to this Award, the sufficiency of which is hereby acknowledged, acceptance of this Award is agreement by the participant that during the term of the participant’s active employment and thereafter, the participant will not 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, including any of its subsidiaries, or its past, present and future subsidiaries, divisions, affiliates, successors, officers, directors, attorneys, agents and participants. |
6. | Payment: This RSU grant will be paid, when and as vested, in shares of Kellogg Company common stock based on the applicable number of RSUs unless Kellogg Company determines otherwise (see 'Tax and Legal Issues' below). Until the time of vesting, no shares of common stock will be issued for the RSUs. |
7. | Dividends: Dividends will be not earned or deemed earned on the RSUs. |
8. | Voting: RSUs do not give their holder any voting rights, or any other right of a holder of Kellogg Company common stock. The shares of Kellogg Company common stock that are issued for RSUs upon vesting will have voting rights. |
9. | Taxes: Taxes will be due when RSUs vest based on the Fair Market Value (as defined in the Plan) of the shares on the vesting date. This amount, considered taxable compensation, will be included in appropriate tax forms for the participant, for example, W2 income for U.S. employees and T4 income for Canadian employees. Participants will pay withholding taxes by selling shares. Taxes include, but are not limited to, Federal or national, social insurance or FICA taxes, state and local, if applicable, and as required by local requirements. FICA taxes may be due before the vesting date for U.S. and Puerto Rico employees who are retirement eligible. |
10. | Administration: Participants will not receive stock certificates when RSUs vest. The shares of Kellogg Company common stock issued in payment for RSUs will initially be held via book entry at Merrill Lynch. Those shares will be registered in the participant’s name. Participants can change the registration of the shares after the vesting period. Contact Merrill Lynch within in the U.S. at 1-866-866-4050 or outside the U.S. at 1-609-818-8669. |
11. | Communication: Each participant will be provided with a written confirmation of the RSU Award. Participants will also receive a notice after vesting that explains the number of shares issued as well as the number of shares to be sold to pay the withholding tax. |
12. | Disposition at Vesting: After RSUs vest and shares are issued, participants can leave the shares with Merrill Lynch, ask Merrill Lynch to sell the shares, have a certificate issued to the participant or have the shares electronically transferred to another broker. Certain fees may apply to selling or transferring shares - contact Merrill Lynch for details. |
13. | Benefits: RSU grant or vesting income will not be included in earnings for the purposes of determining benefits, including pension, S&I, disability, life insurance and other survivor benefits (for U.S. participants). |
14. | Insiders: Insiders cannot dispose of the shares issued after vesting without prior approval of the Legal Department. |
15. | Tax and Legal Issues: Prior to vesting, the Company reserves the right to replace RSUs granted with a cash equivalent benefit if there are any adverse tax or legal consequences for either the participant or Company related to the ownership of Kellogg Company shares (generally for participants outside North America). This Award is also otherwise subject to the terms and conditions of the Plan, which prevail in the event of any inconsistency. |
16. | Recoupment: If at any time (including after the vesting date or after payment), the Committee, including any person authorized pursuant to Section 3.2 of the Plan (any such person, an “Authorized Officer”): |
(a) | reasonably believes that a Participant has engaged in “Detrimental Conduct” (as defined below), then the Committee or an Authorized Officer may suspend the Participant’s participation in this RSU Award pending a determination of whether the Participant has engaged in Detrimental Conduct; |
(b) | determines the Participant has engaged in “Detrimental Conduct” (as defined below), then the grant of RSUs under the Plan and all rights thereunder shall terminate immediately without notice effective the date on which the Participant engages in such Detrimental Conduct, unless terminated sooner by operation of another term or condition of this Award or the Plan; and/or |
(c) | determines the Participant has engaged in “Detrimental Conduct” (as defined below), then the Participant may be required to repay to the Company, in cash and upon demand, any payment in shares from any RSU Award made during and after the year in which the Detrimental Conduct occurred. |
17. | Assignability and Transfer: RSUs may not be assigned, transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or disposed of prior to vesting, except as provided in the Plan. |
1. | Kellogg Company (the “Company”) awards to you and you accept an option to purchase the number of shares of the Company’s Common Stock ($0.25 par value) (the “Common Stock”) at the option price per share on the date of award described in the Employee Compensation Statement and distributed to you by your manager (such document, together with the Terms and Conditions, being the “Option”). This Option will be forfeited if you are terminated, retired, on long-term disability, on a severance leave of absence or otherwise not an active employee on the date of grant. |
2. | This Option is not a tandem grant nor an Incentive Stock Option under the provisions of the U.S. Internal Revenue Code and, notwithstanding any other provision of this Option or the Kellogg Company 2017 Long Term Incentive Plan (the “Plan”), it must be exercised prior to or on the expiration date ten (10) years from the Award Date (the “Expiration Date”). This Option vests and becomes exercisable in equal installments over three (3) years: one-third on the first anniversary date of the grant, one-third on the second anniversary date of the grant and the remaining one-third on the third anniversary date of the grant. It is your responsibility to exercise this Option prior to or on its Expiration Date, just as is the case with any other employee stock option. The Company has no obligation to notify or contact you prior to the Expiration Date of this Option, or any other option. |
3. | This Option partially vests if your employment terminates because of death, Disability (as defined in the Plan) or Retirement (as defined in the Plan). Vesting in those cases will be pro-rated based on the number of days you were employed during the applicable vesting period of the award. If your employment terminates because of death, the legal representative of your estate or your beneficiary, if so designated, may exercise the vested portion of this Option on or before the first to occur of the Expiration Date and two days after the first anniversary of your death. If your employment terminates because of Disability or Retirement, you may exercise the vested portion of this Option on or before the first to occur of the Expiration Date and the day after the fifth anniversary of your termination of employment due to Disability or Retirement. |
4. | Except as set forth in Section 6, if the Company terminates your employment for cause as that term is defined in the Plan, vesting stops as of the date of your termination of employment and any vested portion of this Option must be exercised by you on or before such termination date (or the Expiration Date, if earlier). Any unvested Options or any vested and unexercised Options outstanding on the date of termination shall be forfeited by you and cancelled by the Company. |
5. | Except as set forth in Section 6, if the Company terminates your employment without cause or if you voluntarily terminate employment, vesting stops as of your date of termination of employment and any vested portion of this Option must be exercised by you on or before the first to occur of the Expiration Date and the date that is three months and one day following the date of your termination of employment. |
6. | In the event of a Change of Control, as defined in the Plan, this Option becomes fully exercisable and vested as of the date of such Change of Control if the award has not been assumed or replaced by a Substitute Award, as defined below. |
7. | As a condition for receipt of this Option, and in consideration of the compensation and benefits provided pursuant to this Option, the sufficiency of which is hereby acknowledged, acceptance of this Option is agreement by you that during your active employment and thereafter for a period of two years, you shall not, without the prior written consent of the Chief Legal Officer, directly or indirectly employ, or solicit the employment of (whether as a participant, officer, director, agent, consultant or independent contractor) any person who is or was an officer, director, representative, agent or participant of the Company, including any of its subsidiaries, at any time during the two year period prior to your last day of employment. |
8. | As a condition for receipt of this Option, and in consideration of the compensation and benefits provided pursuant to this Option, the sufficiency of which is hereby acknowledged, acceptance of this Option is agreement by you that during the term of your active employment and thereafter, you will not 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, including any of its subsidiaries, or its past, present and future subsidiaries, divisions, affiliates, successors, officers, directors, attorneys, agents and participants. |
9. | If the exercise of this Option within the time periods set forth herein is prevented by the provisions of Section 16.6 of the Plan, the Option shall remain exercisable until thirty (30) days after the date such exercise first would no longer be prevented by such provisions, but in any event no later than the Expiration Date. |
10. | The Company shall have the right to deduct or otherwise require any payment by you of any Federal, state, local or foreign taxes required by law to be withheld. The Company has the right to deduct or require this payment prior to, and as a condition precedent to, issuing or delivering any shares of Common Stock, to you pursuant to this Option. Subject to any terms and conditions which the Committee (as defined in the Plan) may impose, the required withholding obligation may be satisfied by reducing the number of shares of Common Stock otherwise deliverable pursuant to this Option. You acknowledge that (i) the ultimate liability for any and all taxes is and remains your responsibility, (ii) the Company makes no representations or undertaking regarding the amount or timing of any taxes, (iii) the Company does not commit to structure the terms of this Option or any aspect of the transfer of the shares to reduce or eliminate your liability for taxes, and (iv) in no event shall the Company be liable for any tax or other costs to you that may arise under Section 409A of the Internal Revenue Code of 1986 (the “Code”). |
12. | This Option shall be construed according to the laws of the State of Delaware (regardless of the law that might otherwise govern under applicable Delaware principles of conflict laws) to the extent not superseded by Federal U.S. law. |
13. | If you exercise any portion of this Option and voluntarily leave employment of the Company or any of its subsidiaries within one (1) year of such exercise to work for a direct competitor of the Company or any of its subsidiaries, or you directly or indirectly solicit, hire, or otherwise encourage any present, former, or future employee of the Company or any of its subsidiaries to leave the Company or any of its subsidiaries, within one (1) year of such exercise, then the gain on exercise represented by the mean market price of the Common Stock on the date of exercise over the exercise price, multiplied by the number of shares purchased, less any tax withholding or tax obligations, without regard to any subsequent market price decrease or increase, shall be immediately due and payable by you without notice, to the Company. |
14. | If at any time (including after a notice of exercise has been delivered), the Committee, including any person authorized pursuant to Section 3.2 of the Plan (any such person, an “Authorized Officer”): |
(a) | reasonably believes that you have engaged in “Detrimental Conduct” (as defined below), then the Committee or an Authorized Officer may suspend your right to exercise this Option pending a determination of whether you have engaged in Detrimental Conduct; |
(b) | determines that you have engaged in “Detrimental Conduct” (as defined below), then this Option and all rights thereunder shall terminate immediately without notice effective the date on which you engage in such Detrimental Conduct, unless terminated sooner by operation of another term or condition of this Option or the Plan; and/or |
(c) | determines you have engaged in “Detrimental Conduct” (as defined below), then you may be required to repay to the Company, in cash and upon demand, the Option Proceeds (as defined below) resulting from the sale or other disposition (including to the Company) of shares of Common Stock issued or issuable upon exercise of this Option if the sale or disposition was effected after the Detrimental Conduct occurred. |
18. | The Plan and this Option shall be administered and interpreted by the Committee, as provided in the Plan. Any decision, interpretation or other action made or taken in good faith by the Committee, arising out of or in connection with the Plan shall be final, binding and conclusive on the Company and all employees and their respective heirs, executors, administrators, successors and assigns. Determinations by the Committee, including without limitation determinations of employee eligibility, the form, amount and timing of awards, the terms and provisions of awards, and the agreements evidencing awards, need not be uniform and may be made selectively among eligible employees who receive or are eligible to receive awards, hereunder, whether or not such eligible employees are similarly situated. The Committee may amend this Option to the extent provided in the Plan or this Option. |
19. | You agree and understand that applicable securities laws and stock option exchange rules may restrict your right to exercise this Option or to dispose of any shares, which you may acquire upon any such exercise and may govern the manner in which such shares must be sold. You acknowledge access to a copy of the Plan and the prospectus (including all supplements and amendments thereto) most recently issued by the Company under the Securities Act of 1933, as amended relating to the Plan. The prospectus consists of a Statement of General Information and a Statement of Availability of Information. You also acknowledge that you have no right to receive any future option grants. |
20. | This document does not confer on you any right to continue in the employ of the Company or any subsidiary, nor does it interfere with the Company’s or any subsidiary’s right to terminate your employment or alter other duties at any time. This Option will not be deemed to be compensation for purposes of computing benefits under any retirement plan of the Company or any of its subsidiaries or affiliates, nor will it affect benefits under any other benefit plan, including any benefit plan under which the availability or amount of benefits is related to compensation. The grant of this Option is voluntary and occasional and does not create any contractual or other right to receive future grants of options. All decisions with respect to future option grants, if any, will be at the sole discretion of the Company. |
21. | The Committee shall have the ability to substitute, without receiving your permission, Stock Appreciation Rights to be paid only in shares of Common Stock for any or all outstanding Options on a one-for-one basis; so long as the term of the substituted Stock Appreciation Rights is the same as the term of the |
22. | For employees who are Senior Vice Presidents of Kellogg Company or an equivalent or higher level, upon the approval by the Company’s Legal and Compliance Department, you can transfer this Option to (a) members of your immediate family (spouse, children, stepchildren, grandchildren); (b) a trust of the benefit of such family members; (c) a partnership whose only partners are such family members; and (d) pursuant to decrees of domestic relations orders from tribunals or agencies of competent jurisdiction authorized by laws in the state to provide such orders. The Company shall not be obligated to provide any family member notices regarding this Option, including, but not limited to, early termination of this Option due to termination of the transferor’s employment. Consideration cannot be paid for the transfer of this Option. All terms and conditions applicable to this Option prior to its transfer shall remain in place. Subsequent transfers by the transferee are not permitted except by the laws of descent and distribution, and by will. |
23. | By entering into and accepting receipt of this Option, you (i) authorize the Company and any agent of the Company administering the Plan or providing Plan recordkeeping services to disclose to the Company or any of its subsidiaries such information and data as the Company or any such subsidiary shall request in order to facilitate the grant of options and the administration of the Plan; (ii) waive any data privacy rights you may have with respect to such information; and (iii) authorize the Company to store and transmit such information in electronic form. |
24. | The provisions of this Option are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially unenforceable provision to the extent enforceable in any jurisdiction, shall nevertheless be binding and enforceable. |
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