EX-10.5






Exhibit 10.5




THE J. M. SMUCKER COMPANY

NONEMPLOYEE DIRECTOR DEFERRED COMPENSATION PLAN

(AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2007)




ARTICLE I

INTRODUCTION




     1. 1 Purpose of the Plan. The purpose of The J.M. Smucker Company Nonemployee Director
Deferred Compensation Plan is to provide the nonemployee Directors of The J. M. Smucker Company
(the “Company”) with the opportunity to defer receipt of all or a portion of compensation received
for services as a Director and to continue to align the common interest of Directors and
shareholders in enhancing the value of the Company’s Common Shares. The Plan has been operated in
good faith compliance with the provisions of Code §409A and the Treasury regulations, and other
guidance promulgated thereunder, and the Company adopts this amendment and restatement on December
19, 2008, effective January 1, 2007, in order to comply with Code §409A and the regulations and
other guidance promulgated thereunder.



ARTICLE II

DEFINITIONS




     As used herein, the terms set forth below shall have the following meanings:



     2.1 “Board” means the Board of Directors of the Company.



     2.2 “Change in Control” has the meaning assigned thereto in the Company’s 2006 Equity
Compensation Plan, except that for purposes of Article V, “Change in Control” is modified as
provided in Section 5.1.



     2.3 “Code” means the Internal Revenue Code of 1986, as amended.



     2.4 “Committee” means the Executive Compensation Committee of the Board



     2 5. “Common Shares” means the Common Shares, without par value, of the Company.



     2.6. “Company” means The J. M. Smucker Company.



     2.7. “Deferred Compensation Account” has the meaning assigned thereto in Section 3.1 hereof.



     2.8 “Deferred Stock Units” has the meaning assigned thereto in Section 4.1 hereof.



     2.9 “Director” means any nonemployee director of the Company.



     2.10 “Market Value per Share” means, as of any particular date, the average of the high and
low sales prices of the Common Shares as reported on the New York Stock Exchange



1









 







Composite Tape or, if not listed on such exchange, on any other national securities exchange on
which the Common Shares are listed, or if there are no sales on such day, on the immediately
preceding trading day during which a sale occurred. If there is no regular trading market for such
Common Shares, the Market Value per Share shall be determined by the Board.



     2.11 “Plan” means The J. M. Smucker Company Nonemployee Director Deferred Compensation Plan,
as amended from time to time.



ARTICLE III

ELECTIONS BY DIRECTORS




     3.1 Compensation Reduction for 2007 and Later Years. Not later than December 31 of any calendar year, beginning with December 31, 2006 for the calendar year 2007, a Director may,
by delivering an annual written election to the Corporate Secretary of the Company, direct the
Company (a) to reduce the cash compensation payable to him or her (determined without regard to the
provisions of this Section) for services as a Director during the next calendar year (including
annual retainer and committee and meeting fees) in such amount as elected by the Director and (b)
to credit the cash amount identified in subsection 3.1(a) above to an account established in the
name of the Director (a “Deferred Compensation Account”).



     3.2 Partial Years. If a Director first becomes a Director after January 1st of any calendar
year, the Director may, by delivering a written election to the Corporate Secretary of the Company,
direct the Company (a) to reduce the cash compensation payable to him or her for future services as
a Director during the year in such amount as elected by the Director and (b) to credit the amount
of such reduction to the Director’s Deferred Compensation Account. Any such election shall be made
within 30 calendar days after an individual becomes a Director, and shall apply only to cash
compensation for services as a Director performed after the date of such election.



     3.3 Elections. All deferral elections described in this Article shall be made on an election
form specified by the Committee and delivered to Corporate Secretary of the Company. The elections
described in this Article will remain in effect for future calendar years unless a new written
deferral election form is submitted. Any subsequent election or written termination of election
shall become effective as of the first day of the calendar year following the calendar year in
which the notice is given and is effective only for cash compensation earned in such following
calendar year and thereafter. If a Director does not have a deferral election form on file with the
Corporate Secretary, he or she will receive his or her Director compensation for the year (that
would otherwise be paid in cash) in cash on a current basis.



ARTICLE IV

DEFERRED COMPENSATION ACCOUNTS




     4.1 Deferred Compensation Accounts. Upon reduction of a Director’s cash compensation in a
particular year, the Director’s Deferred Compensation Account will be credited with a number of
deferred stock units equal to the cash amount that would have been paid to the Director divided by
the Market Value per Share of one Common Share on the date on



2









 







which such cash amount would have been paid (the “Deferred Stock Units”) The Deferred Stock Units
credited to a Director’s Deferred Compensation Account (plus any shares credited pursuant to
Section 4.3 below) will represent the number of Common Shares that the Company will issue to the
Director at the times provided in Article V.



     4.2 Nonforfeitable Right. Each Director who has elected to have his or her cash compensation
reduced under this Plan shall have a nonforfeitable right to the balance from time to time of his
or her Deferred Compensation Account and all Deferred Stock Units credited to Deferred Compensation
Accounts under this Plan will be 100% vested on the date such Deferred Stock Units are credited to
the Director’s Deferred Compensation Account. Each Director’s Deferred Compensation Account shall
be subdivided into separate subaccounts for each year of participation (an “Annual Subaccount”).



     4.3 Dividend Equivalents. Dividend equivalents shall be earned on Deferred Stock Units
provided under this Plan. Such dividend equivalents shall be converted into equivalent amounts of
Deferred Stock Units and credited to each Director. Such dividend equivalents will be 100% vested
at all times and will be paid as provided in Section 5.1(b) below.



ARTICLE V

PAYMENT OF ACCOUNTS




     5.1. Time of Payment.



     (a) Distribution of each Annual Subaccount included in a Director’s Deferred Compensation
Account shall commence or be made in the manner described in Section 5.2 hereof as soon as is
reasonably practicable, but not later than 60 calendar days, after a Director’s “separation from
service” (as defined under Section 409A of the Code and Treasury Regulation Section
§1.409A-1(h)(2), (“Separation from Service”)), except for any delay in payments required by Section
409A of the Code, as provided in Section 5.6 of the Plan. Notwithstanding anything to the contrary
contained in this Plan (or in any election relating to this Plan), (i) if the aggregate amount
credited to any Director’s Deferred Compensation Account is less than $50,000 on the date of the
Director’s Separation from Service, or (ii) if a Change in Control of the Company occurs (but only
to the extent the event constitutes a “change in the ownership or effective control” of the
Company, or “in the ownership of a substantial portion of the assets” of the Company (as determined
under Section 409A of the Code and the regulations promulgated thereunder)), the distribution of
the Director’s entire Deferred Compensation Account shall be made, as soon as practicable, but not
later than sixty (60) calendar days, except for any delay in payments required by Section 409A of
the Code, as provided in Section 5.6, in a lump sum upon Separation from Service or the date of the
Change in Control, as the case may be.



     (b) Notwithstanding anything to the contrary contained in this Plan (or in any election
relating to this Plan), dividend equivalents credited to a Director pursuant to Section 4.3 above
shall be paid to the Director in a single lump sum as soon as is reasonably practicable, but not
later than 60 calendar days, after a Director’s Separation from Service, except for any delay in
payment required by Section 409A of the Code, as provided in Section 5.6 of the Plan. Thereafter,
any dividend equivalents earned on Deferred Stock Units that are paid to the Director



3









 







in installments following the Director’s Separation from Service, as described in Section 5.2
below, shall be paid to the Director on a current basis.



     5.2 Method of Distribution. Prior to December 31 of each year, beginning with December 31,
2006, a Director shall deliver an annual election to the Corporate Secretary of the Company to
specify whether Deferred Stock Units credited to his or her Deferred Compensation Account (other
than additional Deferred Stock Units credited pursuant to Section 4.3) for the following year shall
be distributed to him or her (or his or her beneficiary): (a) in a single lump sum payment, (b) in
up to ten annual installments or (c) a combination of (a) and (b). The Director shall designate the
percentage payable under each option. Subsequent changes to an election of an alternative form of
distribution with respect to amounts in a Director’s Annual Subaccount, shall not be effective
unless the election satisfies the following requirements: (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 Director
with the Company; and (b) A change of election with respect to a payment commencing on, or made
on, a specified date may not be filed with the Company less than twelve (12) months prior to such
date; and (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 a payment
made on account of the Participant’s death or total disability (as defined in Section 409A of the
Code and regulations promulgated thereunder). The Deferred Stock Units credited to the Director’s
Annual Subaccount of his or her Deferred Compensation Account such year shall be distributed or
commence to be distributed to the Director or the Director’s beneficiary at the time described in
Section 5.1 and, except for additional Deferred Stock Units credited pursuant to Section 4.3, in
the manner so specified. The amount of each installment payment with respect to an Annual
Subaccount shall be calculated by dividing the number of Deferred Stock Units that are to be paid
in installments from such Annual Subaccount in the Director’s Deferred Compensation Account at the
time of each such payment by the number of remaining installments in such Annual Subaccount
(including the current installment). If a Director does not file an election under this Section
5.2, the payment of the Deferred Stock Units will be made in a single lump sum distribution. It is
intended that amounts credited to each Annual Subaccount shall be considered a “separate payment”
under Section 409A of the Code.



     5.3 Form of Payment. The Deferred Stock Units shall be distributed in Common Shares on a
one-for-one basis. Fractional shares shall be rounded down to the nearest whole Common Share, and
such fractional amount shall be paid in cash.



     5 .4 Designation of Beneficiary. Each Director participating in this Plan shall designate a
beneficiary or beneficiaries to whom distribution shall be made in the event of the death of the
Director before his or her entire Deferred Compensation Account is distributed and, in such case,
the balance of the Director’s Deferred Compensation Account shall be distributed to the beneficiary
or beneficiaries in a single lump sum distribution as soon as is reasonably practicable, but not
later than sixty (60) days following the Director’s death, even if the Director elected
distribution in installments. If there is no designated beneficiary, or no designated beneficiary
surviving at a Director’s death the Director’s beneficiary shall be his or her estate. Beneficiary
designations shall be made in writing. A Director may designate a new beneficiary



4









 







or beneficiaries at any time by delivering a new election to the Corporate Secretary of the
Company.



     5.5 Taxes. In the event any taxes are required by law to be withheld or paid from any
distributions made pursuant to the Plan, the Company (or any trustee, if applicable) shall deduct
such amounts from such distributions and shall transmit the withheld amounts to the appropriate
taxing authority.



     5.6 Delayed Payments Pursuant to Code Section 409A. Notwithstanding any provision of
the Plan to the contrary, in accordance with and subject to the provisions of Code Section 409A and
Treasury regulation 1.409A-1(h)(2)(ii), and to the extent that a payment to a Director meets the
requirements of that Code Section and regulation, in no event shall any amount be paid to a
Director before a date at least twelve (12) months after the day on which the Director’s term
expires or the Director performs services for the Company (the “Delayed Distribution Date”), and no
amount payable to the Director on the Delayed Distribution Date will be paid to the Director if,
after the expiration of the Director’s term and before the Delayed Distribution Date, the Director
performs services for the Company as a Director, an independent contractor or an employee.



ARTICLE VI

FUNDING; CREDITORS AND INSOLVENCY




     6.1 Funding Mechanism for Deferred Stock Units. The Company shall be entitled, but not
obligated, to establish a grantor trust or similar funding mechanism to fund the Company’s obligations under this Plan; provided, however, that any funds contained therein shall
remain subject to the claims of the Company’s general creditors. The funding mechanism shall
constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan
maintained for the purpose of providing compensation for a select group of management for purposes
of Title I of the Employee Retirement Income Securities Act of 1974.



     6.2 Claims of the Company’s Creditors. The Company’s obligation under the Plan shall be merely that of an unfunded and unsecured promise of the Company to pay benefits in the
future. All Deferred Stock Units (and any corresponding assets held in a trust established for the
Plan), and any payment to be made pursuant to the Plan, shall be subject to the claims of the
general creditors of the Company, including judgment creditors and bankruptcy creditors. Neither
any Director, nor his or her beneficiaries, nor his or her heirs, successors or assigns, shall have
any secured interest in or, claim on any property or assets of the Company (or of any trust). The
rights of a Director or his or her beneficiaries to his or her Deferred Compensation Account and to
the Deferred Stock Units (and to any assets held in trust) shall be no greater than the rights of
an unsecured creditor of the Company.



ARTICLE VII

ADMINISTRATION




     7. 1. Powers of the Committee. The Committee shall administer the Plan and resolve all
questions of interpretation arising under the Plan. The Committee shall have no discretion with
respect to Plan contributions or distributions, but shall act in an administrative capacity only.



5









 





     7.2 Indemnity of Committee. The Company shall indemnify the members of the Committee against
all claims, losses, damages, expenses and liabilities arising from any action or failure to act
with respect to the Plan to the extent provided in the Code of Regulations of the Company and any
applicable indemnification agreement between the Company and such member.



ARTICLE VIII

MISCELLANEOUS




     8 1. Term of Plan. The Company reserves the right to amend the Plan or terminate the Plan at any time; provided, however, that no amendment or termination shall affect the rights of
Directors to amounts previously credited to their Deferred Compensation Accounts or to additional
credits of Deferred Stock Units pursuant to Section 4.3 hereof; and provided further, that no
amendment or termination shall apply to the then current plan year, except as permitted under
Section 409A of the Code. The Plan shall remain in effect until such time as all Deferred Stock
Units are distributed pursuant to Article V hereof.



     8.2 Adjustments. In the event that, after the effective date of the Plan (as provided in
Section 8.9 below), the number of outstanding Common Shares is increased or decreased or such
shares are exchanged for a different number or kind of shares or other securities by reason of a
recapitalization, reclassification, stock split-up or combination of shares, adjustments will be
made by the Board in the number and kind of shares or other securities that are underlying Deferred
Stock Units and/or credited to Deferred Compensation Accounts hereunder and that shall be issued
under this Plan.



     8.3 Assignment. No right or interest of any Director or his or her beneficiary (or any person
claiming through or under such Director or his or her beneficiary) in any benefit or payment
herefrom shall be assignable or transferable in any manner or be subject to alienation,
anticipation, sale, pledge, encumbrance or other legal process or in any manner be liable for or
subject to the debts or liabilities of such Director.



     8.4. Tax Effect. This Plan is intended to be treated as an unfunded deferred compensation plan
under the Code. It is the intention of the Company that the amounts by which Directors elect to
have their compensation reduced pursuant to this Plan shall not be included in the gross income of
the Directors or their beneficiaries until such time as the Deferred Stock Units and amounts
credited to Directors’ Deferred Compensation Accounts hereunder are distributed from the Plan. If,
at any time, it is determined by the Company that the Deferred Stock Units, or amounts attributable
to Directors’ compensation reduction elections or Deferred Compensation Accounts are includible in
the gross income of the Directors or their beneficiaries before distribution pursuant to Article V
hereof due to a failure to comply with Section 409A of the Code, such amounts to the extent
required to be included in income shall be immediately distributed to the respective Directors or,
in the case of deceased Directors, their beneficiaries.



     8.5 Governing Law. This Plan shall be governed by and construed in accordance with the Laws
of the United States, and to the extent not preempted by such Laws, by the internal substantive
laws of the State of Ohio.



6









 





     8.6 Successors. The provisions of this Plan shall bind and inure to the benefit of the
Company and its successors and assigns The term “successors” as used herein shall include any
corporate or other business entity which shall, whether by merger, consolidation, purchase or
otherwise, acquire all or substantially all of the business and assets of the Company and
successors of any such corporation or other business entity.



     8.7 No Right to Continued Service. Nothing contained herein shall be construed to confer upon
any Director the right to continue to serve as a Director of the Company or in any other capacity.



     8.8 Section 409A of the Code. It is intended that the Plan (including any amendments thereto)
comply with the provisions of Section 409A of the Code so as to prevent the inclusion in gross
income of any Deferred Stock Units or any amount credited to a Director’s Deferred Compensation
Account hereunder in a taxable year that is prior to the taxable year or years in which such
amounts would otherwise be actually distributed or made available to the Director. The Plan shall
be administered in a manner that will comply with Section 409A of the Code, including proposed,
temporary or final regulations or any other guidance issued by the Secretary of the Treasury and
the Internal Revenue Service with respect thereto. Any Plan provision that would cause the Plan to
fail to satisfy Section 409A of the Code shall have no force and effect.



     8.9 Effective Date. The effective date of the Plan and the Amendment and Restatement of the
Plan is January 1, 2007.



     8.10 Distributions Subject to Tax. Notwithstanding the above provisions, if, at any time, a
court or the Internal Revenue Service determines that an amount in a Participant’s Deferred
Compensation Account is includable in the gross income of the Participant and subject to tax, the
Board of Directors of the Company may, in its sole discretion, permit a lump sum distribution of an
amount equal to the amount determined to be includable in the Participant’s gross income.



     8.11 Distributions in Violation of Securities Laws. Notwithstanding the above provisions, a
payment under the Plan may be delayed if the Company reasonably anticipates that the making of such
payment will violate Federal securities laws or other applicable law, in the Company’s sole
discretion, provided that the payment is made on the earliest at which the Company reasonably
anticipates that the making of the payment will not cause such violation.




7