UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
| Date of Report (Date of Earliest Event Reported): | April 19, 2012 |
THE J. M. SMUCKER COMPANY
__________________________________________
(Exact name of registrant as specified in its charter)
| Ohio | 001-5111 | 34-0538550 |
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_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
| of incorporation) | File Number) | Identification No.) |
| One Strawberry Lane, Orrville, Ohio | 44667-0280 | |
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_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
| Registrant’s telephone number, including area code: | 330-682-3000 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Adoption of Clawback of Incentive Compensation Policy
On April 19, 2012, the Board of Directors (the "Board") of The J. M. Smucker Company (the "Company") adopted a Clawback of Incentive Compensation Policy (the "Clawback Policy"), effective as of April 30, 2012 (the "Effective Date"), for the recoupment of incentive-based compensation granted on or after the Effective Date ("Incentive Awards") from its current or former executive officers under certain circumstances. Pursuant to the Clawback Policy, the Company may demand repayment of any incentive-based compensation paid or granted to an "executive officer" of the Company, as such term is defined in accordance with Section 10D of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in the event of a required accounting restatement of a financial statement of the Company (whether or not based on misconduct) due to material noncompliance of the Company with any financial reporting requirement under the U.S. federal securities laws. Under the Clawback Policy, the Company may recover such amount of an Incentive Award as it deems appropriate, including the amount or number of shares of any Incentive Award in excess of the amount or number of shares that would have been paid or distributed (or if no amount or shares would have been paid or distributed, then the entire amount or number of shares) according to the financial statements, as restated. The foregoing description of the Clawback Policy is qualified in its entirety by reference to the full text of the Clawback Policy, which is attached hereto as Exhibit 99.1 and incorporated herein by reference.
Adoption of Policy — Payment of Tax Gross-Ups
Also on April 19, 2012, the Board adopted a Policy — Payment of Tax Gross-Ups (the "Tax Gross-Up Policy"), also effective as of the Effective Date, setting forth the Company’s policy with respect to gross-up payments for certain tax obligations incurred by the "executive officers" of the Company, as such term is defined in Rule 3b-7 of the Exchange Act (each, a "Covered Employee"). Except as otherwise set forth in the Tax Gross-Up Policy, on or after the Effective Date, neither the Company nor any of its subsidiaries or affiliates will (i) enter into any plan, program, agreement or arrangement providing for a 280G Gross-Up Payment or a Benefit Gross-Up Payment to any Covered Employee or (ii) otherwise make a 280G Gross-Up Payment or Benefit Gross-Up Payment to any Covered Employee.
For purposes of the Tax Gross-Up Policy, the term "280G Gross-Up Payment" means a tax gross-up payment relating to the excise tax imposed upon a Covered Employee pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), on "excess parachute payments" (as defined in Section 280G of the Code), or any federal, state, local or foreign taxes imposed upon the Covered Employee as a result of the excess parachute payment, including the amount of any additional taxes imposed due to the Covered Employee’s payment of the initial taxes on such excess parachute payment.
For purposes of the Tax Gross-Up Policy, the term "Benefit Gross-Up Payment" means a tax gross-up payment relating to any federal, state, local or foreign taxes imposed upon a Covered Employee as a result of perquisites, benefits or other compensation (including, but not limited to, financial and tax planning assistance, relocation benefits, reimbursement for specified club dues and expenses, annual examinations and personal use of Company aircraft) paid or made available to the Covered Employee by the Company or its subsidiaries or affiliates, including the amount of additional taxes imposed upon such Covered Employee due to the Covered Employee’s payment of the initial taxes on such compensation.
The foregoing description of the Tax Gross-Up Policy is qualified in its entirety by reference to the full text of the Tax Gross-Up Policy, which is attached hereto as Exhibit 99.2 and incorporated herein by reference.
Approval of New Forms of Restricted Stock Agreement and Deferred Stock Units Agreement
Also on April 19, 2012, the Executive Compensation Committee of the Board approved new forms of the award agreements for restricted stock and deferred stock units (the "New Form Agreements") to be issued pursuant to The J. M. Smucker Company 2010 Equity and Incentive Compensation Plan. The New Form Agreements update prior form agreements to include references to, and acknowledgements of, the Clawback Policy and to make certain other conforming changes. The foregoing description of the New Form Agreements is qualified in its entirety by reference to the full text of the form of restricted stock agreement and form of deferred stock units agreement, which are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
Exhibit Number Exhibit Description
10.1 Form of Restricted Stock Agreement
10.2 Form of Deferred Stock Units Agreement
99.1 Clawback of Incentive Compensation Policy
99.2 Policy — Payment of Tax Gross-Ups
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| THE J. M. SMUCKER COMPANY | ||||
| April 20, 2012 | By: |
/s/ Jeannette L. Knudsen
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| Name: Jeannette L. Knudsen | ||||
| Title: Vice President, General Counsel and Corporate Secretary | ||||
Exhibit Index
Exhibit No.
Description
Form of Restricted Stock Agreement
Form of Deferred Stock Unit Agreement
Clawback of Incentive Compensation Policy
Policy - Payment of Tax Gross-Ups
THE J. M. SMUCKER COMPANY
RESTRICTED STOCK AGREEMENT
WHEREAS, (the “Grantee”) is an employee of The J. M. Smucker Company, an Ohio corporation (the “Company”), or one of its Subsidiaries; and
WHEREAS, the execution of an agreement in the form hereof (this “Agreement”) has been authorized by a resolution of the Executive Compensation Committee (the “Committee”) of the Board, pursuant to The J. M. Smucker Company 2010 Equity and Incentive Compensation Plan (the “Plan”), as of (the “Date of Grant”);
NOW, THEREFORE, the Company hereby grants to the Grantee shares of Restricted Stock (the “Restricted Stock”), effective as of the Date of Grant, subject to the terms and conditions of the Plan and the following additional terms, conditions, limitations and restrictions.
ARTICLE I
DEFINITIONS
All terms used herein with initial capital letters and not otherwise defined herein that are defined in the Plan shall have the meanings assigned to them in the Plan.
ARTICLE II
CERTAIN TERMS OF THE RESTRICTED STOCK
1. Issuance of Restricted Stock . The Restricted Stock covered by this Agreement shall be issued to the Grantee effective upon the Date of Grant. The Restricted Stock shall be registered in the Grantee’s name and shall be fully paid and nonassessable. Any certificates or evidence of award shall bear an appropriate legend referring to the restrictions hereinafter set forth.
2. Restrictions on Transfer of Shares . The Restricted Stock may not be sold, exchanged, assigned, transferred, pledged, encumbered or otherwise disposed of by the Grantee, except to the Company, unless the Restricted Stock has become nonforfeitable as provided in Article II, Section 3 hereof; provided , however , that the Grantee’s rights with respect to such Restricted Stock may be transferred by will or pursuant to the laws of descent and distribution. Any purported transfer or encumbrance in violation of the provisions of this Article II, Section 2 shall be void, and the other party to any such purported transaction shall not obtain any rights to or interest in such Restricted Stock. The Committee in its sole discretion, when and as permitted by the Plan, may waive the restrictions on transferability with respect to all or a portion of the Restricted Stock.
3. Vesting of Restricted Stock .
(a) All of the Restricted Stock covered by this Agreement shall become nonforfeitable on the fourth anniversary of the Date of Grant, which such date will be , if the Grantee shall have remained in the continuous employ of the Company or a Subsidiary during that four-year period.
(b) Notwithstanding the provisions of Article II, Section 3(a), all of the Restricted Stock covered by this Agreement shall immediately become nonforfeitable if (i) the Grantee dies or becomes permanently disabled while in the employ of the Company or a Subsidiary during the four-year period from the Date of Grant, (ii) [at any time during the four-year period from the Date of Grant, the Grantee is age 60 with at least ten years of service with the Company,] 1 or (iii) a Change in Control occurs during the four-year period from the Date of Grant while the Grantee is employed by the Company or a Subsidiary.
(c) Notwithstanding the provisions of Article II, Section 3(a), if the Grantee leaves the employ of the Company or a Subsidiary within four years from the Date of Grant under circumstances determined by the Committee to be for the convenience of the Company, the Committee may, when and as permitted by the Plan, determine that all of the Restricted Stock covered by this Agreement shall become nonforfeitable.
4. Forfeiture of Shares . The Restricted Stock shall be forfeited, except as otherwise provided in Article II, Section 3 above, if the Grantee ceases to be employed by the Company or a Subsidiary prior to the fourth anniversary of the Date of Grant or in the event the Committee determines the Grantee has engaged in Detrimental Activity as such term is defined in the Plan. In the event of a forfeiture, any certificate(s) representing the Restricted Stock or any evidence of direct registration of the Restricted Stock covered by this Agreement shall be cancelled.
5. Dividend, Voting and Other Rights .
(a) Except as otherwise provided herein, from and after the Date of Grant, the Grantee shall have all of the rights of a shareholder with respect to the Restricted Stock covered by this Agreement, including the right to vote such Restricted Stock and receive any dividends that may be paid thereon; provided , however , that any additional Common Shares or other securities that the Grantee may become entitled to receive pursuant to a stock dividend, stock split, combination of shares, recapitalization, merger, consolidation, separation, or reorganization or any other change in the capital structure of the Company shall be subject to the same restrictions as the Restricted Stock covered by this Agreement.
(b) Cash dividends on the Restricted Stock covered by this Agreement shall be paid to the Grantee pursuant to the Company’s then-current articles of incorporation and reported on the Grantee’s annual wage and tax statement (Form W-2) as compensation.
6. Retention of Restricted Stock in Book Entry Form . The Restricted Stock will be held at the Company’s transfer agent in book entry form with appropriate restrictions relating to the transfer of such Restricted Stock until all restrictions thereon will have lapsed.
ARTICLE III
GENERAL PROVISIONS
7. Compliance with Law . The Company shall make reasonable efforts to comply with all applicable federal and state securities laws; provided , however , notwithstanding any other provision of this Agreement, the Company shall not be obligated to issue any Common Shares pursuant to this Agreement if the issuance thereof would result in a violation of any such law.
8. Withholding Taxes . To the extent that the Company or any Subsidiary is required to withhold federal, state, local or foreign taxes in connection with the Restricted Stock or any delivery of Common Shares pursuant to this Agreement, and the amounts available to the Company or such Subsidiary for such withholding are insufficient, it will be a condition to the receipt of Restricted Stock or such delivery that the Grantee make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld. The Grantee hereby elects to satisfy this withholding obligation by having withheld, from the Common Shares otherwise deliverable to the Grantee, Common Shares having a value equal to the amount required to be withheld (except where the Grantee has made an election under Section 83(b) of the Code with respect to the Common Shares subject to delivery). The Common Shares so retained shall be credited against such withholding requirement at the Market Value per Share on the date of such retention. In no event, however, shall the Company withhold Common Shares for payment of taxes in excess of the minimum amount of taxes required to be withheld.
9. Continuous Employment . For purposes of this Agreement, the continuous employment of the Grantee with the Company or a Subsidiary shall not be deemed to have been interrupted, and the Grantee shall not be deemed to have ceased to be an employee of the Company or Subsidiary, by reason of the (a) transfer of his employment among the Company and its Subsidiaries or (b) a leave of absence approved by a duly constituted officer of the Company or a Subsidiary.
10. Right to Terminate Employment . No provision of this Agreement shall limit in any way whatsoever any right that the Company or a Subsidiary may otherwise have to terminate the employment of the Grantee at any time. Nothing herein shall be deemed to create a contract or a right to employment with respect to the Grantee.
11. Relation to Other Benefits . Any economic or other benefit to the Grantee under this Agreement or the Plan shall not be taken into account in determining any benefits to which the Grantee may be entitled under any profit-sharing, retirement, or other benefit or compensation plan maintained by the Company or a Subsidiary and shall not affect the amount of any life insurance coverage available to any beneficiary under any life insurance plan covering employees of the Company or a Subsidiary.
12. Amendments . Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided , however , that no amendment shall impair the rights of the Grantee under this Agreement without the Grantee’s consent; further provided , however , that the Grantee’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with (or exemption from) Section 409A of the Code or the Dodd-Frank Wall Street Reform and Consumer Protection Act or any regulations promulgated thereunder.
13. Severability . In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.
14. Relation to Plan . This Agreement is subject to the terms and conditions of the Plan. In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern. The Committee acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein, have the right to determine any questions which arise in connection with the grant of the Restricted Stock.
15. Nature of Grant . The Grantee agrees that: (a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time; (b) the grant of Restricted Stock is voluntary and occasional and does not create any contractual or other right to receive future grants of Restricted Stock, or benefits in substitution of Restricted Stock, even if Restricted Stock have been granted repeatedly in the past; (c) all decisions with respect to future Restricted Stock grants will be at the sole discretion of the Company; (d) participation in the Plan is voluntary; (e) the Restricted Stock are not a part of normal or expected pay package for any purposes; (f) if he or she is a Covered Employee, within the meaning of the Company’s Clawback of Incentive Compensation Policy (the “Policy”), he or she acknowledges and accepts the terms and conditions of the Policy as in effect on the Date of Grant; and (g) in consideration of the grant of Restricted Stock, no claim or entitlement to compensation or damages will be created by any forfeiture or other termination of the Restricted Stock or diminution in value of the Restricted Stock, and the Grantee releases the Company and its Subsidiaries from any such claim that may arise. If any such claim is found by a court of competent jurisdiction to have been created, then, by signing this Agreement, the Grantee will be deemed irrevocably to have waived the Grantee’s entitlement to pursue such claim.
16. Electronic Delivery . The Company may, in its sole discretion, deliver any documents related to the Restricted Stock and the Grantee’s participation in the Plan, or future awards that may be granted under the Plan, by electronic means or to request the Grantee’s consent to participate in the Plan by electronic means. The Grantee consents to receive such documents by electronic delivery and, if requested, agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
17. Governing Law . This Agreement is made under, and shall be governed by and construed in accordance with the internal substantive laws of the State of Ohio.
This Agreement is executed by the Company as of the day of .
THE J. M. SMUCKER COMPANY
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By:
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Title:
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— |
The undersigned hereby acknowledges receipt of an executed original of this Agreement, together with a copy of the prospectus for the Plan, dated , summarizing key provisions of the Plan, and accepts the award of Restricted Stock granted hereunder on the terms and conditions set forth herein and in the Plan.
Date:
Grantee:
| 1 | For employees of the Folgers business, use: [at any time during the four-year period from the Date of Grant, the Grantee has either (A) reached the age of 60 with at least ten years of combined service with the Folgers business and the Company or (B) reached the age of 57 1/2 years of age and has at least 20 years of combined service with the Folgers business and the Company, provided, further, that the Grantee was at least 48 years of age as of November 19, 2008,] |
THE J. M. SMUCKER COMPANY
DEFERRED STOCK UNITS AGREEMENT
(For Non-U.S. Taxpayers)
[(With Dividend Equivalents)]
WHEREAS, (the “Grantee”) is an employee of The J. M. Smucker Company, an Ohio corporation (the “Company”), or one of its Subsidiaries; and
WHEREAS, the execution of an a greement in the form hereof (this “Agreement”) has been authorized by a resolution of the Executive Compensation Committee (the “Committee”) of the Board, pursuant to The J. M. Smucker Company 2010 Equity and Incentive Compensation Plan (the “Plan”), as of (the “Date of Grant”);
NOW, THEREFORE, the Company hereby grants to the Grantee Deferred Stock Units (the “Deferred Stock Units”), effective as of the Date of Grant, subject to the terms and conditions of the Plan and the following additional terms, conditions, limitations and restrictions.
ARTICLE I
DEFINITIONS
All terms used herein with initial capital letters and not otherwise defined herein that are defined in the Plan shall have the meanings assigned to them in the Plan.
ARTICLE II
CERTAIN TERMS OF THE DEFERRED STOCK UNITS
| 1. | Grant of Deferred Stock Units . The Deferred Stock Units covered by this Agreement are granted to the Grantee effective on the Date of Grant and are subject to and granted upon the terms, conditions and restrictions set forth in this Agreement and in the Plan. The Deferred Stock Units shall become vested in accordance with Article II, Section 3 hereof. Each Deferred Stock Unit shall represent the right to receive one Common Share when the Deferred Stock Unit vests and shall at all times be equal in value to one hypothetical Common Share. The Deferred Stock Units will be credited to the Grantee in an account established for the Grantee until payment in accordance with Article II, Section 4 hereof. |
| 2. | Restrictions on Transfer of Deferred Stock Units . Neither the Deferred Stock Units granted hereby [(and any applicable dividend equivalents)], nor any interest therein or in the Common Shares related thereto, shall be transferable prior to payment other than by will or pursuant to the laws of descent and distribution (or to a designated beneficiary in the event of the Grantee’s death). |
| 3. | Vesting of Deferred Stock Units . |
| (a) | The Deferred Stock Units shall become vested on the fourth anniversary of the Date of Grant, which such date will be (the “Vesting Date”), if the Grantee shall have remained in the continuous employ of the Company or a Subsidiary during that four-year period. Any Deferred Stock Units not vested will be forfeited, except as provided in Article II, Section 3(b) below. Deferred Stock Units may also be forfeited in the event the Committee determines the Grantee has engaged in Detrimental Activity as such term is defined in the Plan. |
| (b) | Notwithstanding the provisions of Article II, Section 3(a), all of the Deferred Stock Units shall immediately become nonforfeitable if (i) the Grantee dies or becomes permanently disabled while in the employ of the Company or a Subsidiary during the four-year period from the Date of Grant, (ii) at any time during the four-year period from the Date of Grant, the Grantee is age 60 with at least ten years of service with the Company, or (iii) a Change in Control occurs during the four-year period from the Date of Grant while the Grantee is employed by the Company or a Subsidiary (each, a “Vesting Event”). |
| 4. | Issuance of the Common Shares . |
| (a) | The Company will issue to the Grantee the Common Shares underlying the vested Deferred Stock Units as soon as practicable, but not later than 10 days, after the Vesting Date or, if earlier, upon the occurrence of a Vesting Event. |
| (b) | Except to the extent permitted by the Company and the Plan, no Common Shares may be issued to the Grantee at a time earlier than otherwise expressly provided in this Agreement. |
| (c) | The Company’s obligations to the Grantee with respect to the Deferred Stock Units will be satisfied in full upon the issuance of the Common Shares corresponding to such Deferred Stock Units. |
| 5. | Dividend, Voting and Other Rights . |
| (a) | The Grantee shall have no rights of ownership in the Deferred Stock Units [except for a right to dividend equivalents payable in cash on a current basis on the Common Shares underlying the Deferred Stock Units as provided in Article II, Section 5(b) below (“dividend equivalents”), ] and shall have [no right to dividends and ] no right to vote Deferred Stock Units until the date on which the Common Shares underlying the Deferred Stock Units are transferred to the Grantee pursuant to Article II, Section 4 above. |
| [(b) Subject to the forfeiture of Deferred Stock Units as provided for in this Agreement, the Company shall pay the Grantee dividend equivalents on the Common Shares underlying the Deferred Stock Units on a current basis in cash as if such Common Shares were actually issued to the Grantee.] |
| ( [c] ) The obligations of the Company under this Agreement will be merely that of an unfunded and unsecured promise of the Company to deliver Common Shares in the future, and the rights of the Grantee will be no greater than that of an unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement. |
ARTICLE III
GENERAL PROVISIONS
| 6. | Compliance with Law . The Company shall make reasonable efforts to comply with all applicable federal, state and foreign securities laws; provided , however , notwithstanding any other provision of this Agreement, the Company shall not be obligated to issue any Common Shares pursuant to this Agreement if the issuance thereof would result in a violation of any such law. |
| 7. | Compliance with Section 409A of the Code . To the extent that the Grantee is or becomes subject to payment of U.S. tax, then appropriate adjustments may be made if necessary to make the awards comply with (or be exempt from) Section 409A of the Code. Reference to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. |
| 8. | Withholding Taxes . To the extent that the Company or any Subsidiary is required to withhold federal, state, local or foreign taxes in connection with the Deferred Stock Units [, any applicable dividend equivalents] or the issuance of Common Shares pursuant to this Agreement, and the amounts available to the Company or such Subsidiary for such withholding are insufficient, it will be a condition to the issuance of such Common Shares that the Grantee make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld. The Grantee hereby elects to satisfy this withholding obligation by having withheld, from the Common Shares otherwise deliverable to the Grantee, Common Shares having a value equal to the amount required to be withheld. The Common Shares so retained shall be credited against such withholding requirement at the Market Value per Share on the date of such retention. In no event, however, shall the Company withhold Common Shares for payment of taxes in excess of the minimum amount of taxes required to be withheld. |
| 9. | Continuous Employment . For purposes of this Agreement, the continuous employment of the Grantee with the Company or a Subsidiary shall not be deemed to have been interrupted, and the Grantee shall not be deemed to have ceased to be an employee of the Company or Subsidiary, by reason of the (a) transfer of his employment among the Company and its Subsidiaries or (b) a leave of absence approved by a duly constituted officer of the Company or a Subsidiary. |
| 10. | Right to Terminate Employment . No provision of this Agreement shall limit in any way whatsoever any right that the Company or a Subsidiary may otherwise have to terminate the employment of the Grantee at any time. Nothing herein shall be deemed to create a contract or a right to employment with respect to the Grantee. |
| 11. | Relation to Other Benefits . Any economic or other benefit to the Grantee under this Agreement or the Plan shall not be taken into account in determining any benefits to which the Grantee may be entitled under any profit-sharing, retirement, or other benefit or compensation plan maintained by the Company or a Subsidiary and shall not affect the amount of any life insurance coverage available to any beneficiary under any life insurance plan covering employees of the Company or a Subsidiary. |
| 12. | Amendments . Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided , however , that no amendment shall impair the rights of the Grantee under this Agreement without the Grantee’s consent; further provided , however , that the Grantee’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code or the Dodd-Frank Wall Street Reform and Consumer Protection Act or any regulations promulgated thereunder. |
| 13. | Severability . In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable. |
| 14. | Relation to Plan . This Agreement is subject to the terms and conditions of the Plan. In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern. The Committee acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein, have the right to determine any questions which arise in connection with the grant of the Deferred Stock Units. |
| 15. | Nature of Grant . The Grantee agrees that: (a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time; (b) the grant of Deferred Stock Units is voluntary and occasional and does not create any contractual or other right to receive future grants of Deferred Stock Units, or benefits in substitution of Deferred Stock Units, even if Deferred Stock Units have been granted repeatedly in the past; (c) all decisions with respect to future Deferred Stock Unit grants will be at the sole discretion of the Company; (d) participation in the Plan is voluntary; (e) the Deferred Stock Units are not a part of normal or expected pay package for any purposes; (f) if he or she is a Covered Employee, within the meaning of the Company’s Clawback of Incentive Compensation Policy (the “Policy”), he or she acknowledges and accepts the terms and conditions of the Policy as in effect on the Date of Grant; and (g) in consideration of the grant of Deferred Stock Units, no claim or entitlement to compensation or damages will be created by any termination of the Deferred Stock Units or diminution in value of the Deferred Stock Units, and the Grantee releases the Company and its Subsidiaries from any such claim that may arise. If any such claim is found by a court of competent jurisdiction to have been created, then, by signing this Agreement, the Grantee will be deemed irrevocably to have waived the Grantee’s entitlement to pursue such claim. |
| 16. | Data Privacy . The Grantee explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Grantee’s personal data as described in this Agreement by and among the Company and its Subsidiaries for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Grantee understands that the Company and its Subsidiaries hold (but only process or transfer to the extent required or permitted by local law) the following personal information about the Grantee: the Grantee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Common Shares or directorships held in the Company, details of all options or any other entitlement to Common Shares awarded, canceled, exercised, vested, unvested or outstanding in the Grantee’s favor, for the purpose of implementing, administering and managing the Plan (“Data”). The Grantee understands that Data may be transferred to third parties assisting in the implementation, administration and management of the Plan, including [List administrator(s)] , that these recipients may be located in the Grantee’s country or elsewhere (including countries outside of the European Union or the European Economic Area, such as the United States of America), and that the recipient’s country may have different data privacy laws and protections than those that apply in the Grantee’s country. The Grantee understands that the Grantee may request a list with the names and addresses of any potential recipients of the Data by contacting the Grantee’s local human resources representative. The Grantee authorizes these recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Grantee’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Grantee may elect to deposit any shares acquired upon the vesting of the Deferred Stock Units. The Grantee understands that Data will be held only as long as is necessary to implement, administer and manage the Grantee’s participation in the Plan and in accordance with local law. The Grantee understands that the Grantee may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Grantee’s local human resources representative. The Grantee understands, however, that refusing or withdrawing the Grantee’s consent may affect the Grantee’s ability to participate in the Plan. For more information on the consequences of the Grantee’s refusal to consent or withdrawal of consent, the Grantee hereby understands that the Grantee may contact the Grantee’s local human resources representative. |
| 17. | Electronic Delivery . The Company may, in its sole discretion, deliver any documents related to the Deferred Stock Units and the Grantee’s participation in the Plan, or future awards that may be granted under the Plan, by electronic means or to request the Grantee’s consent to participate in the Plan by electronic means. The Grantee consents to receive such documents by electronic delivery and, if requested, agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company. |
| 18. | Governing Law . This Agreement is made under, and shall be governed by and construed in accordance with the internal substantive laws of the State of Ohio. |
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1
This Agreement is executed by the Company as of the _____ day of __________.
THE J. M. SMUCKER COMPANY
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By:
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Title:
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The undersigned hereby acknowledges receipt of an executed original of this Agreement, together with a copy of the prospectus for the Plan, dated , summarizing key provisions of the Plan, and accepts the award of Deferred Stock Units granted hereunder on the terms and conditions set forth herein and in the Plan.
Date:
Grantee:
2
THE J. M. SMUCKER COMPANY
COMPANY POLICY
Clawback of Incentive Compensation
The Board of Directors (the “Board”) of The J. M. Smucker Company (the “Company”) has adopted this Company Policy—Clawback of Incentive Compensation (this “Policy”), effective as of April 30, 2012 (the “Effective Date”), relating to the recoupment of incentive-based compensation granted on or after the Effective Date (“Incentive Awards”) to current or former “executive officers” of the Company (each, a “Covered Employee”), as such term is defined in accordance with Section 10D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as described in this Policy.
The Board reserves the right to amend or deviate from this Policy in its sole discretion.
Acknowledgement of this Policy
Each agreement documenting an Incentive Award that is granted to a Covered Employee on or after the Effective Date will include a provision requiring that the Covered Employee acknowledge and accept the terms and conditions of this Policy, as in effect on the date the Incentive Award is granted.
Recovery of Incentive Awards
The Board or the Executive Compensation Committee of the Board (the “Committee”) may demand repayment of an Incentive Award from any Covered Employee in the event of a required accounting restatement of a financial statement of the Company (whether or not based on misconduct) due to the material noncompliance of the Company with any financial reporting requirement under the U.S. federal securities laws.
Amount of Recovery
In the event that the Board or the Committee determines that an Incentive Award is repayable as set forth in this Policy, the Board or the Committee may recover such amount of the Incentive Award as it deems appropriate, including the amount or number of shares of any Incentive Award in excess of the amount or number of shares that would have been paid or distributed (or if no amount or shares would have been paid or distributed, then the entire amount or number of shares) according to the financial statements, as restated.
Limitations on Recovery
The right to recovery will be limited to Incentive Awards paid or distributed during the three years prior to the date on which the Company is required to prepare an accounting restatement of its financial statement.
Means of Recovery
The Board or the Committee may, in its sole discretion, recover Incentive Awards by reducing future payments or by seeking repayment or return of prior Incentive Awards made to the Covered Employee. All actions by the Company to recover Incentive Awards will be taken in accordance with applicable law and consistent with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
Final Rules Under the Dodd-Frank Act
This Policy has been adopted by the Board in advance of final rules or regulations (“Final Regulations”) expected to be issued by the U.S. Securities and Exchange Commission and/or the New York Stock Exchange that would implement the incentive-based compensation recovery requirements set forth in Section 10D of the Exchange Act, as added by Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
The Board will revise or restate this Policy to the extent necessary to comply with the Final Regulations. Such revision or restatement may be made on a retroactive basis to the extent necessary to comply with the Final Regulations.
No Duplication of Recovery
There shall be no duplication of recovery under this Policy and any of 15 U.S.C. Section 7243 (Section 304 of the Sarbanes-Oxley Act of 2002) and Section 10D of the Exchange Act.
THE J. M. SMUCKER COMPANY
COMPANY POLICY
Payment of Tax Gross-Ups
The Board of Directors (the “Board”) of The J. M. Smucker Company (the “Company”) has adopted this Company Policy—Payment of Tax Gross-Ups (this “Policy”), effective as of April 30, 2012 (the “Effective Date”), setting forth the Company’s policy with respect to reimbursement and gross-up payments for certain tax obligations incurred by “executive officers” of the Company, as that term is defined in Rule 3b-7 under the Securities Exchange Act of 1934 (each, a “Covered Employee”), as described in this Policy.
The Board reserves the right to amend or deviate from this Policy in its sole discretion.
Payment of Tax Gross-Ups
Except as otherwise set forth in this Policy, on and after the Effective Date, neither the Company nor any of its subsidiaries or affiliates will (i) enter into any plan, program, agreement or arrangement providing for a 280G Gross-Up Payment or a Benefit Gross-Up Payment (each as defined below) to any Covered Employee or (ii) otherwise make a 280G Gross-Up Payment or Benefit Gross-Up Payment to any Covered Employee.
Meaning of Certain Terms Used in this Policy
For purposes of this Policy, the term “280G Gross-Up Payment” means a tax-gross-up payment relating to the excise tax imposed upon a Covered Employee pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), on “excess parachute payments” (as defined in Section 280G of the Code), or any Federal, state, local or foreign taxes imposed upon the Covered Employee as a result of the excess parachute payment, including the amount of any additional taxes imposed due to the Covered Employee’s payment of the initial taxes on such excess parachute payment.
For purposes of this Policy, the term “Benefit Gross-Up Payment” means a tax gross-up payment relating to any Federal, state, local or foreign taxes imposed upon a Covered Employee as a result of perquisites, benefits or other compensation (including, but not limited to, financial and tax planning assistance, relocation benefits, reimbursement for specified club dues and expenses, annual examinations and personal use of Company aircraft) paid or made available to the Covered Employee by the Company or its subsidiaries or affiliates, including the amount of additional taxes imposed upon the Covered Employee due to the Covered Employee’s payment of the initial taxes on such compensation.
Coordination with Other Company Policies
In the event that the Board determines to exercise its discretion under this Policy to make a 280G Gross-Up Payment or a Benefit Gross-Up Payment to a Covered Employee, the payment shall be made in accordance with the terms of The J. M. Smucker Company—Company Policy—Expense Reimbursement, Provision of In-Kind Benefits, and Tax Gross-Ups, as in effect from time to time, or any successor policy.