SMUCKER J M CO 8-K 2011
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 16, 2011
The J. M. Smucker Company
(Exact Name of Registrant as Specified in Charter)
Registrants telephone number, including area code: (330) 682-3000
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.):
As previously disclosed on a Current Report on Form 8-K of The J. M. Smucker Company (the Company) filed March 8, 2011, effective August 16, 2011 (the Transition Date), Timothy P. Smucker, Chairman of the Board and Co-Chief Executive Officer of the Company, will no longer serve as a Co-Chief Executive Officer but will continue to serve as Chairman of the Board of Directors of the Company. Following the Transition Date, it is expected that Mr. Smucker will focus his efforts on corporate strategy, succession planning, serving as an ambassador of the Company with employees and other constituents, and other matters as requested by the Companys Board of Directors.
In connection with this transition, Mr. Smuckers base salary was reduced from $853,000 to $600,000, and, as a result of the reduction in his base salary, there was a proportionate reduction in the value of his short-term and long-term incentives, which incentives are a percentage of his then base salary.
As disclosed in our 2011 Proxy Statement filed July 7, 2011, the Company maintains The J. M. Smucker Company Top Management Supplemental Retirement Plan (the SERP) which provides Mr. Smucker with supplemental retirement benefits upon his cessation of service with the Company. In consideration of the services described above, for purposes of determining Mr. Smuckers benefits under the SERP, Mr. Smucker will receive a payment under the SERP of approximately $11.4 million, which is approximately the same amount he would have received under the SERP had he retired on the Transition Date. The SERP amount will generally be paid 3 years after separation of service or no later than April 1 of the calendar year after Mr. Smucker reaches age 70 1/2. Mr. Smucker will not receive any severance benefits in connection with this transition.
On August 17, 2011, the Board of Directors approved and adopted amendments (the Amendments) to the Companys Amended Regulations (the Regulations). The Amendments modify existing provisions of the Regulations relating to (i) advance notice procedures for shareholders to propose business or nominations for election of Directors to be considered at annual or special meetings of the Company, and (ii) indemnification of the Companys directors and officers. The Amendments also fix the number of Directors of the Company at 13. The Amendments became effective on August 17, 2011.
Advance Notice of Nominations and Shareholder Proposals
The Amendments expand and modify the existing advance notice provisions contained in Article I, Section 7 of the Regulations. The Amendments require shareholders to provide notice of nominations of persons for election to the Board of Directors or other business no earlier than 120 days, nor later than 90 days, prior to the anniversary date of the prior years annual meeting (unless the annual meeting date is more than 30 days before or 60 days after the prior years annual meeting date, in which case the Amendments provide for alternative notice deadlines).
The shareholders notice must set forth certain information about the shareholder, including:
The notice must also include information concerning the business to be brought before the meeting, including:
Article I, Section 7 provides that it will not apply to a prospective nomination as to which a notice of intent for the shareholder to receive access to the form of proxy and proxy statement of the Board of Directors of the Company is received in accordance with Rule 14a-11 of the Securities Exchange Act of 1934, as amended, to the extent, and only to the extent, it is not feasible to comply with both requirements or the effectiveness of Article I, Section 7 to such prospective nomination is as a matter of law superseded by Rule 14a-11.
Article I, Section 7 provides that compliance with its provisions will be the exclusive means for shareholders to make nominations or submit other business at the meeting (other than shareholder proposals submitted in conformity with Rule 14a-8 of the Securities Exchange Act of 1934, as amended), and provides that nothing in Article I, Section 7 will be construed to limit the rights of shareholders to request inclusion of proposals in the proxy statement pursuant to Rule 14a-8, or to limit the rights of holders or preferred stock to elect directors in accordance with the Companys charter documents. Article I, Section 7 further provides that nothing contained in the regulations will be construed to give any shareholder a right to include a nomination or a proposal in the Companys proxy statement.
The Amendments also extend similar advance notice requirements to proposals made in connection with special meetings of shareholders.
Indemnification of Directors and Officers
The Amendments modify the existing indemnification provisions contained in Article V of the Regulations. The Amendments continue to provide that the Company will indemnify the Directors and officers to the fullest extent permitted by law, but modify the existing arrangements to:
The Amendments to Article V also add new language tracking the standards of proof required to impose liability on Directors for breach of fiduciary duty, the limitations on Director liability for damages, and the various matters and constituencies that may be considered by Directors in the discharge of their fiduciary duties, set forth in Section 1701.59 of the Ohio Revised Code.
Fixing the Number of Directors
The Amendments also amend Article II, Section 1 of the Regulations to fix the number of Directors of the Company at 13.
The foregoing is a summary of the Amendments and is qualified in its entirety by reference to the full text of the Regulations. A copy of the Regulations is attached to this Current Report on Form 8-K as Exhibit 3.1 and is incorporated herein by reference.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 19, 2011