EXHIBIT 10.2
THE J. M. SMUCKER COMPANY
RESTRICTED SHARES AGREEMENT
WHEREAS, ___________________ (the "Grantee") is an employee of The J.
M. Smucker Company, an Ohio corporation (the "Company"); 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 of Directors of the Company, pursuant
to the Company's 1998 Equity and Performance and Incentive Plan as amended (the
"Plan"), as of __________________ (the "Date of Grant");
NOW, THEREFORE, the Company hereby grants to the Grantee __________
Restricted Shares (as defined in the Plan) (the "Restricted Shares"), 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 SHARES
1. Issuance of Restricted Shares. The Restricted Shares covered
by this Agreement shall be issued to the Grantee effective upon the Date of
Grant. The Common Shares subject to this grant of Restricted Shares shall be
fully paid and nonassessable and shall be, as determined by the Company, either
represented by a certificate or certificates or by electronic direct
registration, registered in the Grantee's name, and endorsed with an appropriate
legend referring to the restrictions hereinafter set forth.
2. Restrictions on Transfer of Shares. The Common Shares subject
to this grant of Restricted Shares may not be sold, exchanged, assigned,
transferred, pledged, encumbered or otherwise disposed of by the Grantee, except
to the Company, until the Restricted Shares have become nonforfeitable as
provided in Section 3 hereof; provided, however, that the Grantee's rights with
respect to such Common Shares 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 Section 2 of this Article II shall be void, and the
other party to any such purported transaction shall not obtain any rights to or
interest in such Common Shares. The Company 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 Common Shares subject to this grant of
Restricted Shares.
3. Vesting of Restricted Shares.
(a) All of the Restricted Shares covered by this
Agreement shall become nonforfeitable as follows: [INSERT VESTING SCHEDULE], if
the Grantee shall have remained in the continuous employ of the Company or a
Subsidiary during that period.
(b) Notwithstanding the provisions of Section 3(a) of
this Article II, all of the Restricted Shares covered by this Agreement shall
immediately become nonforfeitable (i) if the Grantee dies or becomes permanently
disabled while in the employ of the Company or a Subsidiary during the [INSERT
VESTING PERIOD] period from the Date of Grant, (ii) if, at any time during the
[INSERT VESTING PERIOD] period from the Date of Grant, the Grantee is age 60
with at least ten years of service with the Company, or (iii) if a Change in
Control occurs during the [INSERT VESTING PERIOD] period from the Date of Grant
while the Grantee is employed by the Company or a Subsidiary.
(c) Notwithstanding the provisions of Section 3(a) of
this Article II, if the Grantee leaves the employ of the Company or a Subsidiary
within [INSERT VESTING PERIOD] 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 Shares covered by this Agreement shall become nonforfeitable.
4. Forfeiture of Shares. The Restricted Shares shall be
forfeited, except as otherwise provided in Section 3 above, if the Grantee
ceases to be employed by the Company or a Subsidiary prior to [INSERT VESTING
PERIOD] years from the Date of Grant. In the event of a forfeiture, any
certificate(s) representing the Restricted Shares or any evidence of direct
registration representing the Restricted Shares 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 Shares covered by
this Agreement, including the right to vote such Restricted Shares 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 Shares covered by this Agreement.
(a) Cash dividends on the Restricted Shares covered by
this Agreement shall be paid to the Grantee pursuant to the Company's Amended
Articles of Incorporation and reported on the Grantee's annual wage and tax
statement (Form W-2) as compensation.
6. Retention of Stock Certificate(s) by the Company. Certificates
representing the Common Shares, if any, will be held in custody by the Company
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together with a stock power endorsed in blank by the Grantee with respect
thereto, until those shares have become nonforfeitable in accordance with
Section 3.
ARTICLE III
GENERAL PROVISIONS
1. 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.
2. Withholding Taxes. To the extent that the Company or any
Subsidiary is required to withhold any federal, state, local or foreign tax in
connection with any delivery of Common Shares pursuant to this Agreement, and
the amounts available to the Company or such Subsidiary are insufficient, it
shall be a condition to the receipt of such delivery that the Grantee make
arrangements satisfactory to the Company or such Subsidiary for payment of the
balance of such taxes required to be withheld. This tax withholding obligation
shall be satisfied by the Company withholding Common Shares otherwise
deliverable pursuant to this award in order to satisfy the minimum tax
withholding amount permissible under the method that results in the least amount
withheld.
3. 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 (i)
transfer of his employment among the Company and its Subsidiaries or (ii) a
leave of absence approved by the Board or the Committee.
4. 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.
5. 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.
6. 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 adversely affect the rights
of the Grantee under this Agreement without the Grantee's consent.
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7. 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 form
the other provisions hereof, and the remaining provisions hereof shall continue
to be valid and fully enforceable.
8. 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 Board 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 Shares.
9. Governing Law. This Agreement is made under, and shall be
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
By:
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Name: M. Ann Harlan
Title: Vice President, General Counsel
and Secretary
The undersigned hereby acknowledges receipt of an executed original of
this Restricted Shares Agreement, together with a copy of the Plan, and accepts
the award of Restricted Shares granted hereunder on the terms and conditions set
forth herein and in the Plan.
Date:
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Grantee
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