EXHIBIT 10.27
AMENDED AND RESTATED
1997 STOCK-BASED INCENTIVE PLAN OF
THE J. M. SMUCKER COMPANY
The purpose of the Amended and Restated 1997 Stock-Based Incentive
Plan of The J. M. Smucker Company is to enable The J. M. Smucker Company, an
Ohio corporation ("Smucker") and its subsidiaries to attract and retain officers
and key employees capable of assuring the future success of Smucker and to
provide opportunities for stock ownership by such officers and employees that
will increase their proprietary interest in Smucker and, consequently, their
identification with the interests of the stockholders of Smucker. The 1997
Stock-Based Incentive Plan of The J. M. Smucker Company shall be referred to
herein as the "Plan".
The Plan was initially adopted by the stockholders of International
Multifoods Corporation ("Multifoods"), a Delaware corporation and the
predecessor-in-interest to the Company, in 1997. On June 18, 2004, Multifoods
merged with and into a subsidiary of the Company (the "Merger"), and the Company
assumed the Plan. From and after the initial effective date of the Plan, no
awards of any kind were to be made under Part I of the Amended and Restated 1989
Stock-Based Incentive Plan of The J. M. Smucker Company, but all outstanding
awards previously granted under Part I of such plan were to remain outstanding
in accordance with the terms thereof. The Plan (but not Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units and Performance
Awards theretofore granted under the Plan) shall terminate on, and no Awards
shall be granted after, June 20, 2007.
SECTION 1. DEFINITIONS
For purposes of the Plan, the following terms shall have the
meanings set forth below:
"Award" shall mean an award granted to a Participant in accordance with
the provisions of the Plan in the form of Options, Stock Appreciation
Rights, Restricted Stock or Restricted Stock Units, or any combination
thereof.
"Award Agreement" shall mean the written agreement evidencing each Award
granted to a Participant under the Plan.
"Board" shall mean the Board of Directors of Smucker.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" shall mean the Compensation Committee of the Board or such
other committee of Directors as may be designated by the Board to
administer the Plan. The Committee shall be comprised of not less than
such number of Directors as shall be required to permit the Plan to
satisfy the requirements of Rule 16b-3, and each member of the Committee
shall be a "Non-Employee Director" within the meaning of Rule 16b-3 and an
"outside director" within the meaning of Section 162(m).
"Date of Grant" shall mean the date on which the Committee grants the
Award or such other date as the Committee may designate.
"Designated Event" shall mean any of the following:
(a) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (i) the
then outstanding shares of Stock (the "Outstanding Stock") or (ii)
the combined voting power of the then outstanding voting securities
of Smucker entitled to vote generally in the election of Directors
(the "Outstanding Voting Securities"); provided, however, that for
purposes of this provision (a), the following acquisitions shall not
constitute a Designated Event: (i) any acquisition directly from
Smucker, (ii) any acquisition by Smucker, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained
by Smucker or any corporation controlled by Smucker or (iv) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of provision (c) of this
definition; or
(b) individuals, who, as of the date hereof, constitute the
Board (the "Incumbent Board"), cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a Director subsequent to the date hereof whose
election, or nomination for election by Smucker's stockholders, was
approved by a vote of at least a majority of the Directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(c) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially
all of the assets of Smucker (a "Business Combination"), in each
case, unless, following such Business Combination, (i) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Stock and
Outstanding Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 60%
of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns Smucker or all or substantially all of
Smucker's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Stock and Outstanding Voting Securities, as the case may
be, (ii) no Person (excluding any employee benefit plan (or related
trust) of Smucker or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more
of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting
power of the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the
Business Combination and (iii) at least a majority of the members of
the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
(d) the approval by the stockholders of Smucker of a complete
liquidation or dissolution of Smucker.
"Director" or "Directors" shall mean a member, or more than one member, of
the Board of Directors of Smucker.
"Eligible Employee" shall mean, prior to the Merger, any officer or key
employee of Multifoods or any subsidiary of Multifoods designated by the
Committee to receive an Award. Following the Merger, only officers or key
employees of Smucker or any Subsidiary who were, prior to the Merger,
employees of Multifoods or any of its subsidiaries or affiliates will be
eligible to receive an Award under the Plan.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Fair Market Value" shall mean, as of any date, the mean of the high and
low sale prices of a share of Stock on The New York Stock Exchange, Inc.,
or its successor on such date (or, if no sale took place on such exchange
on such date, the mean between the high and low sale prices on such
exchange on the most recent preceding date on which a sale took place).
"Incentive Stock Option" shall mean an Option which is designated as such
by the Committee and which meets the requirements of Section 422 of the
Code on the Date of Grant.
"Multifoods" shall mean International Multifoods Corporation, a Delaware
corporation.
"Non-Qualified Stock Option" shall mean an Option other than an Incentive
Stock Option.
"Option" shall mean a stock option awarded pursuant to the Plan to
purchase Stock.
"Participant" shall mean an Eligible Employee who receives an Award that
has not been terminated, expired or been fully exercised.
"Plan" shall mean this Amended and Restated 1997 Stock-Based Incentive
Plan of The J. M. Smucker Company.
"Restricted Stock" shall mean the award of Stock pursuant to the Plan.
"Restricted Stock Unit" shall mean a unit awarded pursuant to the Plan
having a value equal to the Fair Market Value of one share of Stock (plus,
if so determined by the Committee, the value of any dividends or other
rights or property received by holders of Stock after the Date of Grant of
such Restricted Stock Unit).
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act or any successor rule or
regulation.
"Section 162(m)" shall mean Section 162(m) of the Code.
"Smucker" shall mean The J. M. Smucker Company, an Ohio corporation.
"Stock" shall mean common stock (no par value per share) of Smucker.
"Stock Appreciation Right" shall mean a stock appreciation right awarded
pursuant to the Plan, which need not be granted in tandem with an Option.
"Subsidiary" shall mean any subsidiary or affiliate of Smucker.
SECTION 2. SHARES OF STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 10 hereof, an aggregate
of 1,282,314 shares of Stock shall be available to Participants under the Plan.
Of such shares of Stock, a maximum of 128,231 shares shall be available for
issuance pursuant to Awards of Restricted Stock and Restricted Stock Units. The
shares of Stock deliverable upon the exercise of any Award may be made available
from authorized but unissued shares or shares reacquired by Smucker, including
shares of Stock purchased in the open market or in private transactions. For
purposes of this Section 2, if an Award entitles the holder thereof to receive
or purchase shares of Stock, the number of shares subject to such Award shall
reduce as of the Date of Grant the aggregate number of shares available for
granting Awards under the Plan by the number of shares subject to such Award. If
Stock Appreciation Rights are granted in tandem with an option under Section 4
hereof and the exercise of the Option would cancel the Stock Appreciation Rights
and vice versa, then the grant of such Stock Appreciation Rights shall not
reduce the number of shares of Stock available for granting Awards under the
Plan. Any shares of Stock that are used by a Participant as full or partial
payment to Smucker of the purchase price relating to an Award, or in connection
with the satisfaction of tax obligations relating to an Award, shall again be
available for granting Awards (other than Incentive Stock Options) to Eligible
Employees. If any Award granted under the Plan shall terminate, the shares of
Stock subject to, but not delivered under, such Award shall be available for
other Awards.
SECTION 3. GRANTS OF AWARDS; EXPIRATION OF AND LIMITATIONS ON AWARDS
(a) Eligible Employees shall be eligible to be selected by the
Committee to participate in the Plan. The Committee may require any
Participant to remain in the employ of Smucker or a Subsidiary for a
stated period or periods of time before an Award may be exercised;
provided that nothing in the Plan or in any Award Agreement shall
confer upon any Participant any right to remain in the employ of
Smucker or any of its Subsidiaries, and nothing herein shall be
construed in any manner to interfere in any way with the right of
Smucker or any Subsidiary to terminate such Participant's employment
at any time.
(b) Subject to the provisions of the Plan, the Committee shall:
(i) determine and designate from time to time those Eligible
Employees to whom Awards are to be granted;
(ii) determine the form or forms of Award to be granted;
(iii) determine the amount or number of shares of Stock
subject to each Award; and
(iv) determine the terms and conditions of each Award,
provided that no Award shall have a term that extends beyond
10 years from the Date of Grant.
(c) Each Award granted under the Plan shall be evidenced by a
written Award Agreement. Each Award Agreement shall be subject to
the applicable terms and conditions of the Plan and any other terms
and conditions (not inconsistent with the Plan) determined by the
Committee.
(d) In case of termination of employment, the following provisions
shall apply:
(i) if a Participant who has been granted an Option or Stock
Appreciation Rights shall die before such Option or Stock
Appreciation Rights have expired, his or her Option or Stock
Appreciation Rights may be exercised, to the extent
exercisable at the date of death, by the personal
representatives or administrators of the Participant or by any
person or persons to whom the Participant's rights under the
Option or Stock Appreciation Rights pass by will or the
applicable laws of descent and distribution, as follows:
(A) in the case of an Incentive Stock Option and Stock
Appreciation Rights granted in tandem with such
Incentive Stock Option, at any time, or from time to
time, within 12 months after the date of the
Participant's death or such shorter period as the
Committee may specify as set forth in the Award
Agreement; and
(B) in the case of a Non-Qualified Stock Option, Stock
Appreciation Rights granted in tandem with a
Non-Qualified Stock Option and Stock Appreciation Rights
not granted in tandem with an Option, at any time, or
from time to time, within such period as the Committee
may specify as set forth in the Award Agreement;
but, in either event, not later than the expiration of
the applicable exercise period.
(ii) if a Participant's employment terminates because of any
reason other than his or her death, such Participant may
exercise his or her Options or Stock Appreciation Rights, to
the extent exercisable at the date of termination of
employment as follows:
(A) in the case of an Incentive Stock Option and Stock
Appreciation Rights granted in tandem with such
Incentive Stock Option, at any time, or from time to
time, within three months after the date of termination
of employment or such shorter period as the Committee
may specify as set forth in the Award Agreement; and
(B) in the case of a Non-Qualified Stock Option, Stock
Appreciation Rights granted in tandem with a
Non-Qualified Stock Option and Stock Appreciation Rights
not granted in tandem with an Option, at any time, or
from time to time, within such period as the Committee
may specify as set forth in the Award Agreement;
but, in either event, not later than the expiration of
the applicable exercise period.
(e) No Eligible Employee may be granted any Award or Awards under
the Plan, the value of which Award or Awards is based solely on an
increase in the value of the Stock after the Date of Grant thereof,
for more than 102,585 shares of Stock in the aggregate in any
calendar year. The foregoing annual limitation specifically includes
the grant of any Award or Awards representing
"qualified-performance-based compensation" within the meaning of
Section 162(m).
(f) No Award granted under the Plan shall be transferable other
than by will or by the laws of descent and distribution. During the
lifetime of a Participant, an Option or Stock Appreciation Right
shall be exercisable only by the Participant to whom the Option or
Stock Appreciation Right is granted.
SECTION 4. OPTIONS
(a) Subject to the provisions of paragraph (d) of this Section 4,
any Option granted by the Committee may be either an Incentive Stock
Option or a Non-Qualified Stock Option, as the Committee shall
determine.
(b) The option price of the shares of Stock covered by each Option
shall not be less than 100% of the Fair Market Value of such shares
on the Date of Grant.
(c) Subject to the other provisions of the Plan, any Option may be
exercised in whole or in part at such time or times, and the
Participant may make payment of the option price in such form or
forms, including without limitation payment by delivery of Stock
having a Fair Market Value on the exercise date equal to the total
option price, or by a combination of Stock and other consideration,
as the Committee may specify in the applicable Award Agreement.
(d) To the extent that the aggregate Fair Market Value (determined
as of the Date of Grant) of the Stock with respect to which all
Incentive Stock Options are exercisable for the first time by a
Participant during any calendar year (under all plans described in
Section 422(d) of the Code of Smucker and its Subsidiaries) exceeds
$100,000, such Option shall be treated as an Option which does not
qualify as an Incentive Stock Option.
(e) Notwithstanding anything else contained herein, any Option may
be exercised in full at any time following the occurrence of a
Designated Event.
SECTION 5. STOCK APPRECIATION RIGHTS
(a) Stock Appreciation Rights granted under the Plan may, but need
not, relate to a specific option granted under Section 4 hereof. Any
Stock Appreciation Right related to a Non-Qualified Stock Option may
be granted at the same time the Option is granted or at any time
thereafter before exercise or expiration of the Option. Any Stock
Appreciation Right related to an Incentive Stock Option must be
granted at the same time the Option is granted. Any Stock
Appreciation Right related to any Option shall be exercisable only
to the extent the related Option is exercisable. The Committee may
impose such conditions or restrictions on the exercise of Stock
Appreciation Rights as it shall deem appropriate.
(b) Upon the exercise of each Stock Appreciation Right, Smucker
shall pay to the Participant the excess of (i) the Fair Market Value
of one share of Stock on the date of exercise over (ii) the Fair
Market Value of one share of Stock on the Date of Grant (the "Base
Value"). Any such payment by Smucker may be made in cash, in shares
of Stock (valued at the Fair Market Value on the date of exercise)
or in a combination thereof, as the Committee shall determine.
(c) Notwithstanding anything else contained herein, any Stock
Appreciation Right may be exercised in full at any time following
the occurrence of a Designated Event.
SECTION 6. RESTRICTED STOCK AND RESTRICTED STOCK UNITS
The Committee may grant Awards of Restricted Stock and Restricted
Stock Units to Participants with the following terms and conditions and with
such additional terms and conditions not inconsistent with the provisions of the
Plan as the Committee shall determine:
(a) Shares of Restricted Stock and Restricted Stock Units shall be
subject to such restrictions as the Committee may impose (including,
without limitation, any limitation on the right to vote a share of
Restricted Stock or the right to receive any dividend or other right
or property with respect thereto), which restrictions may lapse
separately or in combination at such time or times, in such
installments or otherwise as the Committee may deem appropriate.
(b) Any Restricted Stock granted under the Plan shall be evidenced
by issuance of a stock certificate or certificates, which
certificate or certificates shall be held by Smucker. Such
certificate or certificates shall be registered in the name of the
Participant and shall bear an appropriate legend referring to the
restrictions applicable to such Restricted Stock. In the case of
Restricted Stock Units, no shares of Stock shall be issued at the
time such Awards are granted.
(c) Except as otherwise determined by the Committee, upon
termination of employment (as determined under criteria established
by the Committee) during the applicable restriction period, all
shares of Restricted Stock and all Restricted Stock Units at such
time subject to restriction shall be forfeited and reacquired by
Smucker; provided, however, that the Committee may, when it finds
that a waiver would be in the best interest of Smucker, waive in
whole or in part any or all remaining restrictions with respect to
shares of Restricted Stock or Restricted Stock Units. Shares
representing Restricted Stock that is no longer subject to
restrictions shall be delivered to the holder thereof promptly after
the applicable restrictions lapse or are waived. Upon the lapse or
waiver of restrictions and the restricted period relating to
Restricted Stock Units evidencing the right to receive shares of
Stock, such shares shall be issued and delivered to the holders of
the Restricted Stock Units.
(d) Without limiting the generality of the foregoing, the
Committee may specify in an Award Agreement granting an Award of
Restricted Stock or Restricted Stock Units, or subsequently
determine in its discretion, that, upon the occurrence of a
Designated Event, the restrictions applicable to such Award shall
lapse with respect to, and the Participant shall be unconditionally
vested in, all or any part of the Award.
SECTION 7. ADMINISTRATION OF THE PLAN
The Committee shall have the full power and authority to interpret
and administer the Plan. The Committee may adopt such rules, regulations and
procedures with respect to the administration of the Plan as it deems
appropriate. Any decisions, determinations or actions made or taken by the
Committee pursuant to the Plan shall be final, conclusive and binding on all
persons for all purposes. The Committee may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem desirable to carry the Plan into effect.
SECTION 8. DELIVERY OF SHARES: SECURITIES LAW COMPLIANCE
(a) No shares of Stock shall be issued or delivered pursuant to
any exercise of an Award hereunder until the requirements of such
laws and regulations as may be deemed by the Committee to be
applicable thereto are satisfied.
(b) Without limiting the generality of the foregoing, all
certificates for shares of Stock delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such
restrictions as the Committee may deem advisable under
the Plan or the rules, regulations and other requirements of the
Securities and Exchange Commission and any applicable federal or
state securities laws.
SECTION 9. WITHHOLDING
Upon exercise or receipt of (or the lapse of restrictions relating
to) any Award, the delivery of shares of Stock subject to such Award shall be
subject to payment of any required withholding taxes. A Participant receiving
shares of Stock subject to withholding taxes may, as a condition precedent to
receiving the shares of Stock, be required to pay Smucker a cash amount equal to
the amount of required withholdings. In lieu of all or any part of such a cash
payment, the Committee may permit the Participant to elect to cover all or any
part of the required withholdings, and to cover any additional withholdings up
to the amount needed to cover the Participant's full Federal Insurance
Contributions Act and federal, state and local income taxes with respect to
income arising from exercise of Options or receipt of Restricted Stock or shares
of Stock in payment of Performance Awards, through a reduction of the number of
shares of Stock delivered to the Participant and/or through the return to
Smucker of shares of Stock delivered to the Participant in connection with the
Award or shares otherwise held by such Participant.
SECTION 10. ADJUSTMENT OF AND CHANGES IN STOCK
In the event of a reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation, distribution of
assets, or any other changes in the corporate structure or stock of Smucker, the
Committee shall make such adjustments as it deems appropriate in the number and
kind of shares of Stock authorized by the Plan, in the number and kind of shares
of Stock covered by the Awards granted and in the exercise price of outstanding
Options or the Base Value of outstanding Stock Appreciation Rights.
SECTION 11. NO RIGHTS OF STOCKHOLDERS
Except with respect to Restricted Stock, neither a Participant nor
the Participant's legal representative shall be, or have any of the rights and
privileges of, a stockholder of Smucker in respect of any shares of Stock
receivable upon the exercise of any Award, in whole or in part, unless and until
certificates for such shares of Stock shall have been issued.
SECTION 12. AMENDMENTS
(a) The Board may, at any time, amend or terminate the Plan,
subject to the following:
(i) No such amendment may adversely affect the rights
of any Participant under an Award which has not
terminated, expired or been fully exercised
without the consent of such Participant or
beneficiary thereof.
(ii) It is intended that the Plan qualify as an
incentive stock option plan meeting the
requirements of Section 422 of the Code or any
successor thereto, and that certain Awards
constitute "qualified performance-based
compensation" within the meaning of Section
162(m). Unless otherwise determined by the Board,
amendments to the Plan shall be subject to
approval of the stockholders of Smucker to the
extent necessary to satisfy such requirements and
meet such qualifications as in effect from time to
time.
(iii) Unless otherwise determined by the Board,
amendments to the Plan shall be subject to
approval of the stockholders of Smucker to the
extent necessary to satisfy the requirements of
the listing rules of The New York Stock Exchange,
Inc.
(b) The Committee may not amend, alter, suspend, discontinue or
terminate any outstanding Award if such action would adversely
affect the rights of the holder of such Award, without the consent
of the Participant or beneficiary thereof.
(c) Any re-pricing, replacement, re-granting through cancellation,
or modification of any Option awarded under this Plan is subject to
the approval of the stockholders of Smucker (except in connection
with the adjustments of and changes in Stock described in Section 10
of the Plan), if the effect of such re-pricing, replacement,
re-granting or modification would be to reduce the exercise price
for the Stock covered by the Option.
SECTION 13. GOVERNING LAW.
The validity, construction and effect of the Plan and any Award
shall be determined in accordance with the laws of the State of Delaware.
SECTION 14. SEVERABILITY.
If any provision of the Plan or any Award is or becomes or is deemed
to be invalid, illegal or unenforceable or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the Committee,
materially altering the purpose or intent of the Plan or the Award, such
provision shall be stricken, and the remainder of the Plan or any such Award
shall remain in full force and effect.