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Exhibit 10(b)
THE J. M. SMUCKER COMPANY
TOP MANAGEMENT SUPPLEMENTAL RETIREMENT BENEFIT PLAN
MAY 1, 1994 RESTATEMENT
The J. M. Smucker Company Top Management Supplemental Retirement
Benefit Plan established effective January 1, 1985, as amended, for the purpose
of supplementing the retirement benefits of certain officers and other key
management employees of The J. M. Smucker Company and its subsidiaries who are
selected to participate in the Plan, is hereby amended and restated in its
entirety, effective May 1, 1994.
ARTICLE I
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DEFINITIONS
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For the purposes hereof, the following words and phrases shall have
the meanings indicated:
1. The "Plan" means the supplemental retirement benefit plan
as set forth herein, together with all amendments thereto, which Plan shall be
called " The J. M. Smucker Company Top Management Supplemental Retirement
Benefit Plan."
2. The "Company" means The J. M. Smucker Company, an Ohio
corporation, its corporate successors, and the surviving corporation resulting
from any merger or consolidation of The J. M. Smucker Company with any other
corporation or corporations.
3. A "subsidiary" means any corporation 50% or more of the
issued and outstanding voting stock of which is owned or controlled by the
Company, directly or indirectly.
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4. An "Employer" means the Company and any subsidiary.
5. A "Participant" means a key executive of the Company or
of a subsidiary who is selected from time to time by the Board of Directors to
participate in the Plan. A Participant's selection and approval to participate
in the Plan shall be evidenced in writing in the form of a contract between the
Participant and the Company.
6. The "Retirement Plan" means The J. M. Smucker Company
Employees' Retirement Plan.
7. The "final average monthly salary" of a Participant means
the Participant's "average monthly base compensation" under the Retirement Plan
but determined using the highest aggregate base compensation, incentive
compensation, deferred compensation and bonuses received by the Participant
during any 60 consecutive full calendar months within the period of 120
consecutive full calendar months immediately prior to the earlier of his
retirement or other termination of employment or the date of any termination of
the Retirement Plan.
8. A Participant's "normal retirement date" means the date
on which he attains age 65.
9. The "Social Security Offset Amount" of a Participant
means his estimated monthly Primary Insurance Amount under the federal Social
Security Act as in effect on the day immediately preceding the earlier of his
retirement or other termination of employment or any termination of the Plan;
moreover, if such event occurs before the Participant attains age 62, his
estimated monthly Primary Insurance Amount shall be equal to the amount he
would receive at age 62 on the
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assumption that from and after the date of his retirement or termination the
Participant will receive no further compensation which is treated as wages for
purposes of the Act. Provided, however, if an Employee previously had retired
due to permanent and total disability and was entitled to receive long-term
disability benefits under any plan maintained by an Employer, computation of
his monthly Primary Insurance Amount upon subsequent retirement under the Plan
shall be based on the Act in effect on his date of disability retirement and on
the assumption that from and after the date of his disability retirement, he
had continued to receive compensation which was treated as wages for purposes
of the Act at the rate of monthly compensation which was in effect immediately
prior to the date of his disability retirement throughout any period during
which he received Years of Service under the Plan on account of such disability
retirement. All estimates hereunder shall be made by the Company, upon the
advice of an actuary, using standards of uniform and non-discriminatory
application.
10. A Participant's "monthly retirement benefit" under the
Retirement Plan means the amount of monthly benefit commencing at normal
retirement date to which he is entitled under the Retirement Plan expressed in
the form of an annuity measured by the life of a Participant and calculated on
the assumption that the Participant has contributed to the Retirement Plan for
all periods of eligibility regardless of whether he did so contribute.
11. The "Years of Service" of a Participant means the
Participant's years of "benefit service" under the Retirement Plan but
determined including any periods of employment after his normal retirement
date.
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Wherever used herein, the masculine pronoun shall include the
feminine, the singular shall include the plural, and the plural shall include
the singular.
ARTICLE II
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SUPPLEMENTAL RETIREMENT BENEFITS
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1. NORMAL RETIREMENT. A Participant who retires from
employment with his Employer on or after his normal retirement date, or who has
left active employment prior to his normal retirement date under conditions of
eligibility for a long-term disability benefit under any plan maintained by an
Employer and is receiving long-term disability benefits on his normal
retirement date, shall be eligible for a monthly supplemental normal retirement
benefit in an amount equal to:
(a) two and one-half percent of his final average monthly
salary multiplied by his Years of Service, not to exceed 20
years,
less
(b) 100 percent of his Social Security Offset Amount,
less
(c) the amount of his monthly retirement benefit under the
Retirement Plan.
A monthly supplemental normal retirement benefit shall be paid to an
eligible Participant commencing as of the first day of the month following the
month in which he retires and shall be payable monthly thereafter during his
life, the last payment being for the month in which his death occurs.
Notwithstanding the foregoing, a Participant who is still employed
by an Employer on the April 1 following the calendar year in which he attains
age 70-1/2 shall commence
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receiving the monthly supplemental normal retirement benefit provided under
this Section 1 of Article II as of the April 1 following the calendar year in
which he attains age 70-1/2.
2. EARLY RETIREMENT. A Participant who retires from
employment with his Employer at or after age 55, but prior to his normal
retirement date, who has at least ten Years of Service, and who is not eligible
for a short- or long-term disability benefit under any plan maintained by an
Employer, shall be eligible for a monthly supplemental early retirement benefit
in an amount determined at his early retirement in the same manner as provided
for a monthly supplemental normal retirement benefit, except that the amount
determined in (a) shall be reduced by one-third of one percent for each full
month by which commencement of payment of the benefit precedes the month
following the date on which the Participant attains age 62. A monthly
supplemental early retirement benefit shall be paid to an eligible Participant
commencing as of the first day of the month following the month in which he
retires and shall be payable monthly thereafter during his life, the last
payment being for the month in which his death occurs.
3. TERMINATION OF EMPLOYMENT. The Plan is intended to
provide benefits for career employees of an Employer. Therefore, a Participant
who terminates his employment with his Employer for any reason other than death
and who is not eligible for any retirement benefit under the Plan or a short-
or long-term disability benefit under any plan maintained by an Employer, shall
not be eligible for any supplemental retirement benefit under the Plan, except
that the Company may, in its discretion, determine that such a Participant, who
has at least ten Years of Service, is eligible for a monthly supplemental
deferred retirement benefit in an amount determined at his termination of
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employment in the same manner as provided for a monthly supplemental early
retirement benefit. A monthly supplemental deferred retirement benefit shall
be paid to an eligible Participant commencing as of the first day of the month
following the month in which he attains age 55 and shall be payable monthly
thereafter during his life, the last payment being for the month in which his
death occurs.
4. JOINT AND SURVIVOR FORM OF PAYMENT. A Participant who
becomes eligible to receive a monthly supplemental retirement benefit and who
is married at the time payment of his monthly supplemental retirement benefit
commences shall receive payment of such benefit in the form of a qualified
joint and survivor annuity that in the event of the Participant's death would
provide a benefit to the Participant's surviving spouse equal to 50 percent of
the benefit the Participant was receiving at the time of his death. To receive
a benefit under the qualified joint and survivor form of payment, a
Participant's surviving spouse must be the same spouse to whom the Participant
was married at the time payment of his monthly supplemental retirement benefit
commenced. The present value of the qualified joint and survivor annuity
payable to a Participant hereunder shall be the actuarial equivalent of the
present value of the benefit otherwise payable to him under the Plan.
ARTICLE III
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SURVIVOR BENEFITS
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If a Participant who has at least ten Years of Service should die
after his retirement or termination of employment but prior to the commencement
of benefit payments under the Plan, and if the Participant had a surviving
spouse as defined in the Retirement Plan, the surviving spouse shall be
eligible for payments as if the Participant had effectively
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elected the 50 percent joint and survivor option described under the Retirement
Plan and designated his spouse as his Contingent Annuitant, commencing at the
earliest date that the Participant would have been eligible for payments if the
Participant had survived.
If a Participant who has at least ten Years of Service should die
prior to retirement or termination of employment, and if the Participant had a
surviving spouse as defined in the Retirement Plan, the surviving spouse shall
be eligible for payments as if the Employee had retired or terminated on the
day before his death.
ARTICLE IV
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SPECIAL CREDITING
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Employees who are Participants under the Plan as of its effective
date of January 1, 1985 automatically will be credited with 20 Years of Service
as of the date of retirement.
ARTICLE V
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ADMINISTRATION
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The Company shall be responsible for the administration of the Plan.
The Company shall have all such powers as may be necessary to carry out the
Plan, including the power to determine all questions relating to eligibility
for and the amount of any benefit and all questions pertaining to claims for
benefits and procedures for claim review; to resolve all other questions
arising under the Plan, including any questions of construction; and to take
such further action as the Company shall deem advisable in the administration
of the Plan. The actions taken and the decisions made by the Company hereunder
shall be final and binding upon all interested parties.
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ARTICLE VI
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FUNDING
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Benefits under the Plan shall be paid out of the general assets of
the Employers including any trust or fund created for that purpose.
ARTICLE VII
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AMENDMENT AND TERMINATION
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The Company reserves the right to amend or terminate the Plan at any
time by action of its Board of Directors. Notwithstanding any such action, the
Company shall be obligated to pay any benefits already accrued to any
Participant under the Plan at the date of amendment or termination of the Plan
and to continue making payments in the amounts determined to any retired
Participant or his beneficiary, and shall be obligated to pay benefits in
amounts not less than the benefits to which a Participant or his beneficiary
would be entitled hereunder upon retirement, death or other termination of
employment at the time of such amendment or termination. If a trust is being
used to fund assets under the Plan and the Plan is terminated, any excess
assets remaining in the trust after the full value of benefits already accrued
to Participants under the Plan have been paid to such Participants or their
beneficiaries shall revert to the Company.
ARTICLE VIII
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MISCELLANEOUS
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1. NON-ALIENATION OF RETIREMENT RIGHTS OR BENEFITS. Neither
the Participant nor any beneficiary shall encumber or dispose of his right to
receive any payments
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hereunder, which payments or the right thereto are expressly declared to be
non-assignable and non-transferable. If a Participant or beneficiary without
the written consent of the Company attempts to assign, transfer, alienate or
encumber his right to receive any payment hereunder, or permits the same to be
subject to alienation, garnishment, attachment, execution or levy of any kind,
then thereafter during the life of such Participant or of such beneficiary, as
the case may be, and also during any period in which any Participant or
beneficiary is incapable in the judgment of the Company of attending to his
financial affairs, any payment which the Company is required to make hereunder
may be made, in the discretion of the Company, directly to him or to such
beneficiary or to any other person for his use or benefit or that of his
dependents, if any, including any person furnishing goods or services to or for
his use or benefit or the use of benefit of his dependents, if any. Each such
payment may be made without the intervention of a guardian, the receipt of the
payee shall constitute a complete acquittance to the Company with respect
thereto, and the Company shall have no responsibility for the proper
application thereof.
2. NO EMPLOYMENT GUARANTEED. Nothing herein contained shall
be construed as a commitment or agreement on the part of any person employed by
the Company or any subsidiary to continue his employment with the Company or
any subsidiary, and nothing herein contained shall be construed as a commitment
on the part of the Company or any subsidiary to continue the employment or the
annual salary rate of any such person for any period, and all Participants
shall remain subject to discharge to the same extent as if the Plan was never
put into effect.
3. INTEREST OF PARTICIPANT. The obligation of the Company
under the Plan to provide the Participant with
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benefits hereunder merely constitutes the unsecured promise of the Company to
make payments as provided herein, and the Participant shall have no interest
in, and no lien or prior claim upon, any property of the Company or of any
subsidiary.
4. CLAIMS OF OTHER PERSONS. The provisions of the Plan
shall in no event be construed as giving any person, firm or corporation, any
legal or equitable rights as against the Company, its officers, employees, or
directors, except any such rights as are specifically provided for in the Plan
or are hereafter created in accordance with the terms of the Plan.
5. NO COMPETITION. The right of any Participant, surviving
spouse, or other beneficiary to a supplemental retirement benefit under the
Plan will be terminated, or, if payment thereof has begun, all further payments
will be discontinued and forfeited, in the event the Participant (i) at any
time wrongfully discloses any secret process or trade secret of the Company or
any of its subsidiaries, or (ii) engages, either directly or indirectly, as an
officer, trustee, employee, consultant, partner, or substantial shareholder, on
his own account or in any other capacity, in a business venture within the
ten-year period following his retirement or termination of employment that the
Company's Board of Directors reasonably determines to be competitive with the
Company to a degree materially contrary to the Company's best interest.
6. SEVERABILITY. The invalidity or unenforceability of any
particular provision of the Plan shall not affect any other provision hereof,
and the Plan shall be construed in all respects as if such invalid or
unenforceable provision were omitted herefrom.
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7. GOVERNING LAW. The Plan shall be governed by and
construed in accordance with the laws of the State of
Ohio.
8. SUCCESSORS AND ASSIGNS. The Plan and the obligations
created hereunder shall be binding upon the Company and its successors and
assigns.
9. DISHONEST CONDUCT OF A PARTICIPANT. Notwithstanding
anything to the contrary contained in the Plan, if a Participant's employment
with an Employer is terminated because the Company determines the Participant
(i) engaged in dishonest or fraudulent acts against an Employer, (ii) willfully
injured property of an Employer, (iii) conspired against an Employer, or (iv)
disclosed confidential information concerning an Employer, then no supplemental
retirement benefit shall be payable to the Participant or his surviving spouse
under the Plan.
EXECUTED at Orrville, Ohio, this first day of May, 1994.
The J. M. Smucker Company
/s/ Richard K. Smucker
By ------------------------
Title: President
/s/ Steven J. Ellcessor
And ------------------------
Title: Secretary
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