EX-10.1



 






Exhibit 10.1




THE
J. M. SMUCKER COMPANY DEFINED CONTRIBUTION


SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN




EFFECTIVE MAY 1, 2008




 









 





THE J. M. SMUCKER COMPANY DEFINED CONTRIBUTION




SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN




The J. M. Smucker Company Defined Contribution Supplemental Executive Retirement Plan (the “Plan”)
effective as of May 1, 2008, is hereby established and will be maintained by The J. M. Smucker
Company (the “Company”) for the purpose of supplementing the retirement benefits of certain
officers and key management employees of The J. M. Smucker Company and its subsidiaries who are
selected to participate in the Plan.



The Plan is intended to be an unfunded plan maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated employees, and is
subject to, and intended to comply with Section 409A of the Code, and regulations thereunder, and
other applicable laws.



ARTICLE I




DEFINITIONS




Whenever used in the Plan, the following words and phrases shall have the meanings set forth below
unless the context plainly requires a different meaning, and when a defined meaning is intended,
the term is capitalized in this document.



1.1 “Beneficiary” means the person or persons selected by the Participant on a form provided by the
Company to receive the benefits provided under this Plan in the event of the Participant’s death.



1.2 “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any
Regulations relating thereto.



1.3 “Company” means The J. M. Smucker Company and any of its subsidiaries or affiliated business
entities, as determined in accordance with the provisions contained in Section 414 of the Code.



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1.4 “Compensation” means total compensation, including base salary, Holiday Bonus and annual
bonuses from the Management Incentive Plan, paid during the entire Plan Year without regard to any
limits imposed by the Code under ERISA.



1.5 “Committee” means the Executive Committee of the Company.



1.6 “Disabled” or “Disability” means the first to occur of the following conditions:




(a) The Participant is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to result in death
or can be expect to last for a continuous period of not less than 12 months, or




(b) The Participant is, by reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last for a continuous period of
not less than 12 months, receiving income replacement benefits for a period of not less than
3 months under any plan covering employees of the Employer, or




(c) The Participant has been determined to be totally disabled by the Social Security
Administration.



1.7 “Effective Date” means May 1, 2008.



1.8 “Eligibility Service” means service completed to determine eligibility from date of hire to
date of termination, retirement, disability, or death.



1.9 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



1.10 “Officer Service” means service completed from the effective date of employment in an officer
position to the earlier of the date of termination, retirement, disability, or death, or date that
Participant ceases to serve as an officer.



1.11 “Participant” means any employee described in Article II of this Plan.



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1.12 “Plan” means The J. M. Smucker Company Defined Contribution Supplemental Executive Retirement
Plan, as of its original effective date, including any subsequent amendments thereto.



1.13 “Plan Year” means the Company’s fiscal year beginning May 1 and ending April 30.



1.14 “Separation from Service” means a separation from service as defined in Code section 409A,
which Code section 409A is incorporated herein by reference, and includes, without limitation, An
employee separation from service with the Company, and related companies, if the employee dies,
retires, or otherwise has a termination of employment with the Company. However, for purposes of
this paragraph, the employment relationship is treated as continuing intact while the individual is
on military leave, sick leave, or other bona fide leave of absence if the period of such leave does
not exceed six months, or if longer, so long as the individual retains a right to reemployment with
the service recipient under an applicable statute or by contract. Notwithstanding the foregoing,
where a leave of absence is due to any medically determinable physical or mental impairment that
can be expected to result in death or can be expected to last for a continuous period of not less
than six months, where such impairment causes the employee to be unable to perform the duties of
his or her position of employment or any substantially similar position of employment, a 29-month
period of absence may be substituted for such six-month period.



1.15 “Specified Employee” refers to an individual defined in Section 416(i) of the Code without
regard to paragraph (5) of that Section.



1.16 “Trust” means a rabbi trust which may be established by the Company in connection with this
Plan to provide the benefits described in the Plan.



1.17 “Trustee” means the corporation or individual selected by the Company to serve as Trustee for
the Trust.



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ARTICLE II




ELIGIBILITY AND PARTICIPATION




2.1 Eligible Participants




An employee who has been hired or promoted to serve as an officer or in an equivalent position and
has been designated by the Committee shall become a Participant in the Plan as of the date of
designation.



2.2 Designation of Beneficiary




A Participant shall file with the Committee a Beneficiary designation, on a form provided by the
Committee, on or before April 30th of the preceding Plan Year for which the designation shall take
effect. Such designation shall remain in effect until changed by the Participant.



ARTICLE III




SUPPLEMENTAL RETIREMENT ACCOUNT




3.1 Establishment of Accounts




The Company shall establish and maintain an account for each Participant, or designated Beneficiary
of the Participant upon the death of the Participant, and shall credit such accounts each Plan Year
with a Contribution Credit and Interest Credit, as applicable, in accordance with the provision of
this Article III.



3.2 Contribution Credit




“Contribution Credit” means an amount equal to 7% of total Compensation paid in the full Plan Year
which shall be credited to a Participant’s account for each Plan Year the officer is a Participant,
including the Plan Year in which the designation by the Committee occurs. No Contribution shall be
based on Compensation paid after a participant ceases to be an officer.



3.3 Interest Credit




“Interest Credit” means the amount which shall be credited each Plan Year to the account maintained



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for a Participant or Beneficiary by calculating interest at a rate to be determined by the
Committee. The interest rate for the Plan Year beginning in 2008 is 6%. This rate will be reviewed
and may be increased or decreased on an annual basis by the Committee.



3.4 Prior Service Credit




For each officer who became a Participant as of the Effective Date of the Plan, an amount
indicated in Appendix A will be credited to such Participant’s account on May 1, 2008, recognizing
years of Officer Service prior to the Effective Date of this Plan.



3.5 Crediting Date




Accounts will be credited with Contribution Credits on April 30 of each Plan Year to each
Participant who is employed, as an officer as of April 30 of the Plan Year, except that in the year
Separation from Service due to retirement, disability, or death, a partial year Contribution Credit
will be made to their account reflecting the Compensation through the date of Separation from
Service due to retirement, disability, or death.



Interest Credits will be made through the date of first payment.



ARTICLE IV




DISTRIBUTIONS




4.1 Distribution Events




All amounts credited to a Participant’s account in accordance with Article III, including interest
credited in accordance with Section 3.4, shall be distributed to, or with respect to, a Participant
six (6) months following the Participant’s Separation from Service due to the events provided in
(a), (b), and (d) below and within 90 days of the event provided in (c) below. Payments will be
made on the earlier to occur of the following conditions:




	 	(a)	 	At retirement after having attained age 55 and after completing 10 years of
Eligibility Service;
	 
	 	(b)	 	Upon Disability and after completing 10 years of Eligibility Service;




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	 	(c)	 	Upon the death of a Participant who has at least five (5) years of Eligibility
Service on his or her date of death who dies prior to Separation from Service; or
	 
	 	(d)	 	The later of Separation from Service or age 55, provided that the Participant
has at least ten (10) years of Eligibility Service.





4.2 No Benefits Payable upon Certain Events





	 	(a)	 	If the Participant has completed fewer than 10 years of Eligibility Service as
of the date of Separation from Service (or five years in the case of death), the
Participant shall receive no benefit under the Plan.
	 
	 	(b)	 	The right of any Participant or Beneficiary to a benefit will be terminated,
or, if payment thereof has begun, all future payments will be discontinued and
forfeited, in the event the Participant (i) at any time wrongly discloses any secret
process or trade secret of the Company, or (ii) engages, either directly or indirectly,
as an officer, trustee, employee, partner, or substantial shareholder, on his own
account or in any other capacity, in a business venture within a ten-year period
following his retirement or Separation from Service 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.
	 
	 	(c)	 	Notwithstanding anything to the contrary contained in the Plan, if a
Participant’s employment is terminated because the Company determines the Participant
(i) engaged in dishonest or fraudulent acts against the Company, (ii) willfully injured
property of the Company, (iii) conspired against the Company, or (iv) disclosed
confidential information concerning the Company, then no benefit shall be payable to
the Participant or Beneficiary under the Plan.





4.3 Forms of Distribution




The benefit payable to or on behalf of a Participant under the Plan shall be payable pursuant to a
fixed schedule in accordance with the provisions of Section 409A of the Code. Each Participant
must elect the payment schedule from one of the options below within 30 days of becoming designated
to participate in the Plan. The possible payment options are as follows:



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	 	(a)	 	One single lump sum payment;
	 
	 	(b)	 	Equal monthly installments payable over a five year period
determined based on the Participant’s account balance and the interest
crediting rate in effect at the later of: the date of Separation from Service
due to termination, retirement, disability, or death, or, the date that
payments commence;
	 
	 	(c)	 	Equal monthly installments payable over a ten year period
determined based on the Participant’s account balance and the interest
crediting rate in effect at the later of: the date of Separation from Service
due to termination, retirement, disability, or death, or, the date that
payments commence;
	 
	 	(d)	 	Equal monthly installments payable over a fifteen year period
determined based on the Participant’s account balance and the interest
crediting rate in effect at the later of: the date of Separation from Service
due to termination, retirement, disability, or death, or, the date that
payments commence; or
	 
	 	(e)	 	Equal monthly installments payable over a twenty year period
determined based on the Participant’s account balance and the interest
crediting rate in effect at the later of: the date of Separation from Service
due to termination, retirement, disability, or death, or, the date that
payments commence.





4.4 Subsequent Election of Time or Form of Payment




During the month of April of each Plan Year (or at such other time as may be approved by the
Committee but no later than April 30 of each Plan Year), a Participant who is then still an
employee of the Company may change, on a form and in a manner approved by the Committee, a form of
payment election that he or she made pursuant to Section 4.2 or delay a commencement date that he
or she elected pursuant to Section 4.1; provided, however, a Participant may make only one change,
that applies to either form of payment or time of payment or both, with respect to the deferred
amounts subject to a deferral election made for any one Plan Year, and no further changes may be
made to the form of payment or time of payment of such deferred amounts; and provided, further,
that no change of election made under this Section 4.4 shall be effective unless it satisfies the
following requirements:



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	 	(a)	 	A change of election will not be effective until at least twelve (12) months
after the date on which it is filed by the Participant with the Committee.
	 
	 	(b)	 	A change of election with respect to a payment commencing on, or made on, a
specified date may not be filed with the Committee less than twelve (12) months prior
to such date.
	 
	 	(c)	 	A change of election with respect to a time of payment or a method of payment
must provide that the payment subject to the change be deferred for a period of not
less than five (5) years from the date such payment would otherwise have been made,
except in the event of the Participant’s death.





4.5 Death Prior to Commencement of Distributions




If a Participant who has at least five (5) years of Eligibility Service should die after his
retirement or termination of employment but prior to the commencement of benefits payments under
the Plan, and if the Participant had designated a Beneficiary, the Beneficiary shall be eligible
for payments as if the Participant had elected the lump sum payment option.



4.6 Death after Commencement of Distributions




If a Participant dies before the entire amount credited to the Participant under the Plan has been
paid to the Participant, the amount remaining shall be distributed to the Participant’s Beneficiary
by the method designated by the Participant in the beneficiary designation form and if no
designation has been made, in a lump sum distribution within 90 days following such Participant’s
death. If a Participant has not designated a beneficiary, or if the designated Beneficiary is
deceased, then the amount remaining shall be distributed to the Participant’s lineal descendents
per stirpes, or if none, then to the Participant’s estate, in a lump sum within 90 days following
such Participant’s death. However, no acceleration of the time or schedule of any payment under the
Plan shall be permitted.



4.7 Six-Month Delay on Distributions to Specified Employees




Under no circumstances, other than death, will a Participant who is a Specified Employee receive a
distribution under the Plan earlier than six (6) months following their Separation from Service.



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4.8 No Distributions In Excess of Code §162(m)




Notwithstanding the above provisions, no amount may be distributed from the Plan if such amount
would not be deductible under Code §162(m), as determined by the Board of Directors in its sole
discretion.



ARTICLE V




ADMINISTRATION




5.1 Authority to Interpret Plan




The Plan shall be administered by the Company, which shall have the authority to interpret and
construe the terms of the Plan as it deems appropriate including the authority to determine
eligibility for benefits under the Plan. The Company shall have the duty and responsibility of
maintaining records, making the requisite calculations and disbursing the payments hereunder. The
Company’s interpretations, determinations, regulations and calculations shall be final and binding
on all interested persons and parties. Any benefits payable under this Plan will be paid only if
the Plan Administrator decides in its discretion that the applicant is entitled to them.



5.2 Employment of Advisors




The Company may employ such attorneys, agents, and accountants as it may deem necessary or
advisable to assist in carrying out its duties hereunder. The Company by action of its Board of
Directors may designate a person or persons other than the Company to carry out any of such powers,
authority, or responsibility. Expenses of administration shall be paid by the Company. The Company
shall be entitled to rely on all tables, valuations, certifications, opinions, data and reports
furnished by any actuary, accountant, controller, counsel or other person employed or engaged by
the Company with respect to the Plan. Any act authorized, permitted, or required to be taken under
the Plan by the Company and which has not been delegated in
accordance with this, may be taken by a majority of the members of its Board of Directors, or a committee delegated to act by the Board of
Directors, or notices, advice, directions, certifications, approvals, and instructions required or
authorized to be a person authorized to act for the Company in accordance with this Section.



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5.3 Annual Statements




The Company shall furnish individual annual statements of accrued benefits to each Participant, or
current Beneficiary, in such form as determined by the Company or as required by law.



5.4 Claims Procedures




Whenever the Company decides for whatever reason to deny, whether in whole or in part, a claim for
benefits under the Plan filed by any person (herein referred to as the “Claimant”), it shall
transmit a written notice of such decision to the Claimant, in most cases no later than 90 days
after the Plan receives the claim for benefits, or within 180 days after the Plan receives the
claim for benefits if there are special circumstances and if within 90 days the Company provides
notice of the reason for the delay and the date a decision can be expected, which notice shall be
written in a manner calculated to be understood by the Claimant and shall contain a statement of
the specific reasons for the denial of the claim and a statement advising the Claimant that, within
60 days of the date on which he receives such notice, he may obtain review of such decision in
accordance with the procedures hereinafter set forth. Within such 60-day period, the Claimant may
request that the claim denial be reviewed by filing with the Committee a written request therefore,
which request shall contain the following information:




	 	(a)	 	The date on which the Claimant’s request was filed with the Company; provided,
however, that the date on which the Claimant’s request for review was in fact filed
with the Company shall control in the event that the date of the actual filing is later
than the dates stated by the Claimant pursuant to this Subsection (a);
	 
	 	(b)	 	The specific portions of the denial of his claim which the Claimant requests
the Company to review;
	 
	 	(c)	 	A statement by the Claimant setting forth the basis upon which he believes the
Company should reverse the previous denial of his claim for benefits and accept his
claim as made; and
	 
	 	(d)	 	Any written material (offered as exhibits) which the Claimant desires the
Company to examine in its consideration of his position as stated pursuant to
Subsection (c) of this Section.





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Within 60 days of the date determined pursuant to Subsection (a) of this Section, the Committee
shall conduct a full and fair review of the initial claim for the benefits and the decisions
denying the Claimant’s claim for benefits, or within 120 days if special circumstances require more
time and if within 60 days the Committee provides notice of reason for the delay, and the date a
decision can be expected. Within 60 days (or 120 days if extended as provided herein) of the date
of such review, the Committee shall render its written decision on review, written in a manner
calculated to be understood by the Claimant, specifying the reasons and Plan provisions upon which
its decision was based.



ARTICLE VI




AMENDMENT OR TERMINATION




6.1 Company Reserves Right to Terminate




The Company intends the Plan to be permanent but reserves the right to amend or terminate the Plan
at any time by action of its Board of Directors. The termination of the Plan shall be permitted
only under the circumstances provided and in accordance with Section 409A of the Code and the
regulations issued thereunder.



6.2 Amendment or Termination




No amendment or termination of the Plan shall directly or indirectly reduce the balance of any
account described in Article III as of the effective date of such amendment or termination. Upon
termination of the Plan, distribution of amounts credited to such account shall be made to the
Participant or his or her Beneficiary in accordance with Section 409A of the Code and the
regulations issued thereunder. No amounts will be credited to any account under the Plan after
termination of the Plan, but interest will continue to be credited to a Participant’s account under
the Plan until all amounts are distributed to the Participant or to his or her Beneficiary.



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ARTICLE VII




MISCELLANEOUS




7.1 Trust Authorized




The Company may establish a Trust which may be used to pay benefits arising under this Plan and all
costs, charges and expenses relating thereto; except that, to the extent that the funds held in the
Trust are insufficient to pay such benefits, costs, charges and expenses, the Company shall pay
such benefits, costs, charges and expenses.



7.2 Restriction against Assignment




The benefits payable hereunder or the right to receive future benefits under the Plan may not be
anticipated, alienated, sold, transferred, assigned, pledged, encumbered, or subjected to any
charge or legal process; no interest or right to receive a benefit may be taken, either voluntarily
or involuntarily, for the satisfaction of the debts of, or other obligations or claims against,
such person or entity, including claims for alimony, support, separate maintenance and claims in
bankruptcy proceedings.



7.3 Grantor Trust




The Plan at all times shall be considered entirely unfunded both for tax purposes and for
purposes of ERISA and no provision shall at any time be made with respect to segregating any
assets of the Company for payment of any benefits hereunder. Funds invested hereunder shall
continue for all purposes to be part of the general assets of the Company. No Participant,
Beneficiary or any other person shall have any interest in any particular assets of the
Company by reason of the right to receive a benefit under the Plan and to the extent the
Participant, Beneficiary or any other person acquires a right to receive benefits under this
Plan, such right shall be no greater than the right of any unsecured general creditor of the
Company.



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7.4 No Employment Rights




The sole rights of a Participant or Beneficiary under this Plan shall be to have this Plan
administered according to its provisions, to receive whatever benefits he or she may be entitled to
hereunder, and nothing in this Plan shall be interpreted as a guaranty that any funds in a Trust or
assets of the Company will be sufficient to pay any such benefit. Further, the adoption and
maintenance of this Plan shall not be construed as creating any contract of employment between the
Company and any Participant. The Plan shall not affect the right of the Company to deal with any
Participants in employment respects, including their hiring, discharge, compensation, and
conditions of employment.



7.5 Discharge of Liability




The Company may from time to time establish rules and procedures which it determines to be
necessary for the proper administration of the Plan and the benefits payable to an individual in
the event that individual is declared incompetent and a conservator or other person legally charged
with such individual’s care is appointed. Except as otherwise provided herein, when the Company
determines that such individual is unable to manage his or her financial affairs, the Company may
pay such individual’s benefits to such conservator, person legally charged with such individual’s
care, or institution then contributing toward or providing for the care and maintenance of such
individual. Any such payment shall constitute a complete discharge of any liability of the Company
and the Plan for such individual.



7.6 Location of Participant




Each Participant shall keep the Company informed of his or her current address and the current
address of his or her Beneficiary. The Company shall not be obligated to search for any person. If
such person is not located within one (1) year after the date on which the Participant’s benefits
are to be paid in accordance with the terms of the Plan, such benefits may be distributed as though
the Participant or his or her Beneficiary had died at the end of such period.



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7.7 Limitation of Liability




Notwithstanding any provision herein to the contrary, neither the Company nor any individual acting
as an employee or agent of the Company shall be liable to any Participant, former Participant,
Beneficiary, or any other person for any claim, loss, liability or expense incurred in
connection with the Plan, unless attributable to fraud or willful misconduct on the part of
the Company or any such employee or agent of the Company.



7.8 Plan Documents




Each Participant shall receive a copy of the Plan and the Company will make available for
inspection by any Participant or designated Beneficiary a copy of the rules and regulations used by
the Company in administering the Plan.



7.9 Construction




All questions pertaining to the construction, validity and effect of the Plan shall be determined
in accordance with the laws of the United States and to the extent not preempted by such laws, by
the laws of the State of Ohio.



7.10 Unsecured General Creditor




Any and all of the Company’s assets shall be, and remain, the general unpledged, unrestricted
assets of the Company. The Company’s obligation under this Plan shall be merely that of an
unfunded and unsecured promise of the Company to pay money in the future, and the rights of the
Participants and beneficiaries shall be no greater than those of unsecured general creditors. It
is the intention of the Company that this Plan be unfunded for purposes of the Code and for
purposes of Title I of ERISA.



7.11 Headings Not Part of Plan




Headings and subheadings in this Plan are inserted for convenience of reference only and are not to
be considered in the construction of the provisions hereof.



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7.12 Terms Used in the Plan




Any term used in this Plan which is defined in the Plan shall have the meaning set forth in the
Plan for all purposes of this Plan. The singular form of any word shall include the plural and the
masculine gender shall include the feminine wherever necessary for the proper interpretation of
this Plan.



The Company hereby adopts this Plan as set forth above.



THE J. M. SMUCKER COMPANY




	 	 	 	 	 
	By:

	 	/s/ Robert E. Ellis
 

Robert E. Ellis
	 	 
	 

	 	Vice President, Human Resources	 	 
	 
	 	 	 	 
	Dated:

	 	November 9, 2007	 	 






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Appendix A — Initial Account Balances




	 	 	 	 	 
	Dennis Armstrong:
	 	$	37,208	 
	 
	 	 	 	 
	John Denman
	 	$	74,933	 
	 
	 	 	 	 
	John Mayer
	 	$	67,507	 
	 
	 	 	 	 
	Kenneth Miller
	 	$	34,522	 
	 
	 	 	 	 
	Andrew Platt
	 	$	97,352	 
	 
	 	 	 	 
	Christopher Resweber
	 	$	69,089	 
	 
	 	 	 	 
	Julia Sabin
	 	$	42,721	 
	 
	 	 	 	 
	Albert Yeagley
	 	$	31,175	 







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