<PAGE> 1
Sequential Page
No. 1 of 12 Pages
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended October 31, 1998
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
------------ ------------
Commission File Number 1-5111
-------------------
THE J. M. SMUCKER COMPANY
Ohio 34-0538550
- ---------------------- ----------------------
State of Incorporation IRS Identification No.
STRAWBERRY LANE
ORRVILLE, OHIO 44667
(330) 682-3000
The Company has filed all reports required to be filed by Section 13 or 15 (d)
of the Securities Exchange Act of 1934 during the preceding 12 months and has
been subject to such filing requirements for the past 90 days.
The Company had 14,412,332 Class A Common Shares and 14,708,279 Class B Common
Shares outstanding on October 31, 1998.
The Exhibit Index is located at Sequential Page No. 12.
<PAGE> 2
Sequential Page
No. 2
PART I. FINANCIAL INFORMATION
THE J. M. SMUCKER COMPANY
CONDENSED STATEMENTS OF CONSOLIDATED INCOME
(Unaudited)
Item 1. Financial Statements
--------------------
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
October 31, October 31,
----------------------------- -----------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
(Dollars in thousands, except per share data)
<S> <C> <C> <C> <C>
Net sales $ 154,894 $ 145,187 $ 305,394 $ 292,576
Cost of products sold 103,204 95,974 199,842 191,967
------------ ------------ ------------ ------------
51,690 49,213 105,552 100,609
Selling, distribution, and
administrative expenses 37,378 35,346 74,720 70,736
------------ ------------ ------------ ------------
14,312 13,867 30,832 29,873
Other income (expense)
Interest income 438 482 1,063 1,180
Interest expense (256) (85) (260) (90)
Other - net 191 174 486 300
------------ ------------ ------------ ------------
Income before income taxes 14,685 14,438 32,121 31,263
Income taxes 5,622 5,836 12,642 12,688
------------ ------------ ------------ ------------
Net Income $ 9,063 $ 8,602 $ 19,479 $ 18,575
============ ============ ============ ============
Net income per Common Share $ .31 $ .30 $ .67 $ .64
============ ============ ============ ============
Net income per Common Share - assuming
dilution $ .31 $ .29 $ .67 $ .63
============ ============ ============ ============
Dividends declared on Class A and Class B
Common Shares $ .14 $ .13 $ .28 $ .26
============ ============ ============ ============
</TABLE>
See notes to condensed consolidated financial statements
<PAGE> 3
Sequential Page
No. 3
THE J. M. SMUCKER COMPANY
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
October 31, 1998 April 30,1998
(Unaudited) (Audited)
----------- ---------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 5,129 $ 36,484
Trade receivables, less allowances 53,606 48,732
Inventories:
Finished products 45,056 41,264
Raw materials, containers, and supplies 93,426 62,201
-------------- --------------
138,482 103,465
Other current assets 13,388 12,825
-------------- --------------
Total Current Assets 210,605 201,506
PROPERTY, PLANT, AND EQUIPMENT
Land and land improvements 15,318 15,058
Buildings and fixtures 79,089 78,658
Machinery and equipment 184,472 177,372
Construction in progress 31,088 13,147
-------------- --------------
309,967 284,235
Less allowances for depreciation (149,109) (140,521)
-------------- --------------
Total Property, Plant and Equipment 160,858 143,714
OTHER NONCURRENT ASSETS
Intangible assets 43,836 42,410
Other assets 19,084 20,343
-------------- --------------
Total Other Noncurrent Assets 62,920 62,753
-------------- --------------
$ 434,383 $ 407,973
============== ==============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 38,006 $ 41,410
Other current liabilities 64,485 43,490
-------------- --------------
Total Current Liabilities 102,491 84,900
NONCURRENT LIABILITIES 21,052 20,896
SHAREHOLDERS' EQUITY
Class A Common Shares 3,603 3,597
Class B Common Shares (Non-Voting) 3,677 3,689
Additional capital 14,817 14,608
Retained income 308,257 298,316
Less:
Deferred compensation (2,095) (2,255)
Amount due from ESOP (9,526) (9,787)
Accumulated other comprehensive loss (7,893) (5,991)
-------------- --------------
Total Shareholders' Equity 310,840 302,177
-------------- --------------
$ 434,383 $ 407,973
============== ==============
</TABLE>
See notes to condensed consolidated financial statements
<PAGE> 4
Sequential Page
No. 4
THE J. M. SMUCKER COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
October 31,
---------------------------------
1998 1997
---- ----
(Dollars in Thousands)
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 19,479 $ 18,575
Adjustments (36,087) (9,870)
-------------- --------------
Net cash (used for) provided by operating activities (16,608) 8,705
INVESTING ACTIVITIES
Businesses acquired - net of cash (10,077) ---
Additions to property, plant, and equipment (21,219) (17,359)
Proceeds from the sale of property, plant, and
equipment 210 244
Other - net 632 587
-------------- --------------
Net cash used for investing activities (30,454) (16,528)
FINANCING ACTIVITIES
Proceeds from short-term debt - net 25,457 7,259
Purchase of common shares (811) (3,308)
Dividends paid (8,123) (7,563)
Other - net 16 60
-------------- --------------
Net cash provided by (used for) financing activities 16,539 (3,552)
Cash flows used in operations (30,523) (11,375)
Effect of exchange rate changes (832) (894)
-------------- --------------
Net decrease in cash and cash equivalents (31,355) (12,269)
Cash and cash equivalents at beginning of period 36,484 24,091
-------------- --------------
Cash and cash equivalents at end of period $ 5,129 $ 11,822
============== ==============
</TABLE>
( ) Denotes use of cash
See notes to condensed consolidated financial statements
<PAGE> 5
Sequential Page
No. 5
THE J. M. SMUCKER COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Note A - Basis of Presentation
---------------------
The accompanying unaudited, condensed, consolidated financial
statements have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions to Form
10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, all
adjustments considered necessary for a fair presentation have been included.
Operating results for the six-month period ended October 31, 1998, are not
necessarily indicative of the results that may be expected for the year ended
April 30, 1999. For further information, reference is made to the consolidated
financial statements and footnotes included in the Company's Annual Report on
Form 10-K for the year ended April 30, 1998.
Note B - Common Shares
-------------
At October 31, 1998, 35,000,000 Class A Common Shares and 35,000,000
Class B Common Shares were authorized. At October 31, 1998, there were
14,412,332 and 14,708,279 outstanding shares of Class A Common and Class B
Common, respectively, while 14,387,402 Class A and 14,754,734 Class B Common
Shares were outstanding at April 30, 1998. Outstanding shares of each class are
shown net of 1,799,956 Class A and 1,504,009 Class B treasury shares at October
31, 1998, and 1,824,886 Class A and 1,457,554 Class B treasury shares at April
30, 1998.
Note C - Credit Facilities
-----------------
The Company has available uncommitted lines of credit providing up to
$50,000,000 for short-term borrowings, of which $25,457,000 was outstanding at
October 31, 1998. The interest rate to be charged on any outstanding balance is
based on prevailing market rates.
<PAGE> 6
Sequential Page
No. 6
Note D - Income Per Share
----------------
The following table sets forth the computation of earnings per Common
Share and earnings per Common Share assuming dilution:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
October 31, October 31,
-------------------------------- --------------------------------
1998 1997 1998 1997
-------------- -------------- -------------- --------------
(Dollars in thousands, except per share data)
<S> <C> <C> <C> <C>
Numerator:
---------
Net income $ 9,063 $ 8,602 $ 19,479 $ 18,575
============== ============== ============== ==============
Denominator:
------------
Denominator for earnings per Common
Share - weighted-average shares 29,043,137 29,009,200 29,034,992 29,041,879
Effect of dilutive securities:
Stock options 163,529 297,651 201,564 206,445
Restricted stock 25,281 72,168 45,637 18,539
============== ============== ============== ==============
Denominator for earnings per Common
Share - assuming dilution 29,231,947 29,379,019 29,282,193 29,266,863
============== ============== ============== ==============
Net income per Common Share $ .31 $ .30 $ .67 $ .64
============== ============== ============== ==============
Net income per Common Share - assuming
dilution $ .31 $ .29 $ .67 $ .63
============== ============== ============== ==============
</TABLE>
Note E - Comprehensive Income
--------------------
The Company adopted Statement of Financial Accounting Standards No.
130, Reporting Comprehensive Income (SFAS 130), as of May 1, 1998, which
established standards for reporting and displaying comprehensive income and its
components in the financial statements. The adoption of SFAS 130, which had no
impact on the Company's net income or shareholders' equity, requires foreign
currency translation adjustments, which prior to adoption were reported
separately in shareholders' equity, to be included in other comprehensive
income. Prior year financial statements have been reclassified to conform to the
requirements of SFAS 130.
During the three-month periods ended October 31, 1998 and 1997, total
comprehensive income was $9,301,000 and $6,656,000, respectively. Total
comprehensive income for the six-month periods ended October 31, 1998 and 1997
was $17,577,000 and $15,762,000, respectively.
Note F - Recently Issued Accounting Standards
------------------------------------
The Financial Accounting Standards Board has issued final statements
that change the method of determining and reporting business segments, change
the disclosure requirements for pensions and other postretirement benefits, and
change the accounting for derivative instruments.
<PAGE> 7
Sequential Page
No. 7
The Company is currently evaluating the effects of these new standards
and will adopt the disclosure requirements of Statement of Financial Accounting
Standards No. 131 (SFAS 131), Disclosures about Segments of an Enterprise and
Related Information, and SFAS 132, Employers' Disclosure about Pensions and
Other Postretirement Benefits, in the fourth quarter of fiscal 1999, as
required. SFAS 133, Accounting for Derivative Instruments and Hedging
Activities, is required to be adopted in the first quarter of fiscal 2001.
- --------------------------------------------------------------------------------
Item 2. Management's Discussion and Analysis
------------------------------------
This discussion and analysis deals with comparisons of material changes
in the condensed, consolidated financial statements for the three-month and
six-month periods ended October 31, 1998 and 1997, respectively.
Results of Operations
- ---------------------
Sales for the second quarter ended October 31, 1998, were up
approximately 7%, to $154,894,000 from $145,187,000 in the same period last
year. Sales increased in all of the business areas, with the majority of the
increase occurring in the consumer, industrial, beverage, and international
areas.
In the consumer area, the majority of the increase was the result of
(i) a favorable mix of products sold within the fruit spreads category and (ii)
the launch of "Smucker's Snackers", the Company's new shelf-stable peanut butter
and jelly offering for lunches and snacks. Natural peanut butter sales were also
up over the prior year. In the industrial area, the growth came primarily from
sales of ingredients for new products of bakery and dairy customers. In
beverages, growth in "R. W. Knudsen Family" brand products and the addition of
sales from the recently acquired "Mrs. Wiggles Rocket Juice" beverage line
accounted for the majority of that area's increase.
In international, the Company realized sales growth, due in part to the
effect of acquisitions made in the last year, despite the fact that reported
sales continued to be adversely impacted by the strength of the American dollar
versus the Australian and Canadian currencies. Had the exchange rates held
constant with last year, consolidated sales for both the quarter and
year-to-date would have been approximately 2% higher.
Sales for the first six months of the fiscal year were $305,394,000
compared to $292,576,000 last year, an increase of over 4%. The consumer and
industrial areas accounted for nearly 70% of the growth.
The increase in earnings for both the three-month and six-month periods
resulted primarily from the growth in sales, offset by increases in distribution
and certain operations support costs. Margins also were impacted by investment
spending to support marketing and merchandising initiatives (including the
introduction of "Smucker's Snackers") and the Company's information technology
project. Marketing expenses, although up for the six-month period over the same
period last year, increased at a lesser rate than sales during the second
quarter.
<PAGE> 8
Sequential Page
No. 8
Financial Condition - Liquidity and Capital Resources
- -----------------------------------------------------
The financial position of the Company remains strong despite the
reduction in cash and cash equivalents of $31,355,000 during the first half of
the year. Historically, the first half of the year results in a net cash outflow
due to expenditures required for the seasonal procurement of fruit inventories.
More cash was used in the first six months for fruit procurement this year than
in the prior year, and that was due primarily to certain fruits (primarily
strawberries) being purchased in higher quantities and at increased costs this
year. In addition to fruit purchases, other significant uses of cash during the
first half of the year were capital expenditures, including capitalized software
and consulting costs, acquisitions costs, and the payment of dividends.
During the second quarter, the Company borrowed against existing lines
of credit in order to finance seasonal fruit purchases and other working capital
requirements. At October 31, 1998, the Company had $25,457,000 outstanding in
short-term debt. Based on projected investment spending through the remainder of
the fiscal year and assuming that the results of operations are as anticipated,
the Company expects (i) cash provided from operations and borrowing to be
sufficient to meet cash requirements and (ii) to have borrowings outstanding at
the end of the year.
Subsequent to the end of the second quarter, the Company reached an
agreement in principle to acquire Nalley's Fine Foods' "Adams" brand peanut
butter business from Agrilink Foods. The acquisition, which is expected to be
completed in January, will not have a material impact on the future financial
results of the Company.
Impact of Year 2000
- -------------------
As part of the information technology reengineering (ITR) project
previously reported, the Company has completed an assessment of the Year 2000
problem as it may affect its information technology (IT) systems. The new IT
systems being installed are fully Year 2000 compliant and will replace 80% of
the Company's non-compliant IT systems. The total ITR project cost, which
includes an enterprise-wide information system and business process
reengineering, is estimated at approximately $34,000,000, excluding internal
staff costs. To date, the Company has incurred approximately 62% of these costs.
A substantial portion of the ITR project is expected to be completed
prior to any anticipated impact of the Year 2000 problem on the Company's IT
systems. Implementation of components of the ITR project has been prioritized to
ensure replacement of the IT systems most affected by the Year 2000 problem.
Implementation progress has proceeded as planned. The Company has all critical
components implemented in test locations and anticipates full implementation by
July 1999. With regard to the IT systems that either are not being replaced by
the ITR project or will not be replaced in time to meet the change in millenium,
the Company has plans in place to make corrections to the affected software. The
Company has engaged outside consultants to assist with these corrections, which
it estimates will cost approximately $2,000,000 in additional expense. The
Company expects to complete planned corrections by July 1999. The Company
believes that with conversion to the new software and with the scheduled
modifications to existing software, the Year 2000 issue will not pose
significant operational problems for its IT systems.
<PAGE> 9
Sequential Page
No. 9
The Company also has developed a plan to identify and replace all
non-compliant non-IT systems. The cost to replace non-IT systems has not yet
been determined, but is not expected to be material. In addition, the Company is
in the process of contacting all critical vendors to obtain status on their Year
2000 issues. The Company also has plans to contact all major customers in the
coming months.
The possible consequences of the Company, its vendors, or its customers
not being fully Year 2000 compliant include temporary plant closings, delays in
delivery of finished goods or receipt of raw materials, invoice and collection
errors, and possible inventory and supply obsolescence. Should these events
occur, the impact on the Company's results of operations, financial condition,
and cash flow could be material. The Company believes that its approach to the
Year 2000 issue should reduce the likelihood of any such disruptions and should
help to minimize the adverse effects if they do occur. Once developed,
contingency plans and related cost estimates will be continually updated as
additional information becomes available.
The costs of the ITR project, the date on which the Company believes it
will complete the Year 2000 modifications, and the statements with regard to the
potential effect of the Year 2000 issue on the Company's operations and
financial condition are based on management's best estimates, which were derived
utilizing numerous assumptions of future events, including the continued
availability of certain resources and other factors. However, there can be no
guarantee that these estimates will be achieved and actual results could differ
materially from those anticipated. Specific factors that might cause such
material differences include, but are not limited to, the availability and cost
of personnel trained in this area, the ability to locate and correct all
relevant computer codes, and similar uncertainties.
Recently Issued Accounting Standards
- ------------------------------------
The Financial Accounting Standards Board has issued final statements
that change the method of determining and reporting business segments, change
the disclosure requirements for pensions and other postretirement benefits, and
change the accounting for derivative instruments.
The Company is currently evaluating the effects of these new standards
and will adopt the disclosure requirements of Statement of Financial Accounting
Standards No. 131 (SFAS 131), Disclosures about Segments of an Enterprise and
Related Information, and SFAS 132, Employers' Disclosure about Pensions and
Other Postretirement Benefits, in the fourth quarter of fiscal 1999, as
required. SFAS 133, Accounting for Derivative Instruments and Hedging
Activities, is required to be adopted in the first quarter of fiscal 2001.
Certain Forward-Looking Statements
- ----------------------------------
This quarterly report includes certain forward-looking statements that
are based on current expectations and are subject to a number of risks and
uncertainties. Actual results may differ depending on a number of factors
including: the success of the Company's marketing programs during the year;
competitive activity; the mix of products sold; and level of marketing
expenditures needed to generate sales; an increase in fruit costs or costs of
other significant ingredients, including sweeteners; the ability of the Company
to maintain and/or improve sales and earnings performance of its non-retail
business areas; foreign currency exchange rate fluctuations; level of capital
resources required for and success of future acquisitions; and the successful
implementation of the Company's information technology reengineering project and
Year 2000 modifications.
<PAGE> 10
Sequential Page
No. 10
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
---------------------------------------------------
The annual meeting of shareholders of the Company was held on August
18, 1998. At the meeting, the names of Kathryn W. Dindo, Russell G. Mawby,
Richard K. Smucker, and William H. Steinbrink were placed in nomination for the
Board of Directors to serve three-year terms ending in 2001. All four nominees
were elected with the results as follows:
Votes For Votes Withheld
------------- --------------
Kathryn W. Dindo 61,328,801 418,918
Russell G. Mawby 61,315,306 432,413
Richard K. Smucker 61,328,541 419,178
William H. Steinbrink 61,318,463 429,256
The shareholders also voted on the ratification of the 1998 Equity and
Performance Incentive Plan and the appointment of Ernst & Young LLP as the
Company's independent auditors for the 1999 fiscal year. The measures were
approved as follows:
<TABLE>
<CAPTION>
Votes For Votes Against Abstentions Non-Votes
----------------- ---------------- -------------- -------------
<S> <C> <C> <C> <C>
1998 Equity and
Performance
Incentive Plan 59,569,762 1,737,493 440,461 3
Appointment of
Auditors 61,459,931 141,255 146,533 0
</TABLE>
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits
See the Index of Exhibits that appears on Sequential
Page No. 12 of this report.
(b) Reports on Form 8-K
No Reports on Form 8-K were required to be filed
during the quarter for which this report is filed.
<PAGE> 11
Sequential Page
No. 11
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
December 11, 1998 THE J. M. SMUCKER COMPANY
/s/ Steven J. Ellcessor
------------------------
BY STEVEN J. ELLCESSOR
Vice President-Administration, Secretary,
and General Counsel
/s/ Richard K. Smucker
------------------------
AND RICHARD K. SMUCKER
President
<PAGE> 12
Sequential Page
No. 12
INDEX OF EXHIBITS
That are filed with the Commission and
The New York Stock Exchange
<TABLE>
<CAPTION>
Assigned Sequential
Exhibit No. * Description Page No.
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
10 1998 Equity and Performance Incentive Plan
27 Financial data schedules pursuant to Article 5 in Regulation S-X.
</TABLE>
* Exhibits 2, 3, 4, 11, 15, 18, 19, 22, 23, 24, and 99 are either
inapplicable to the Company or require no answer.
<PAGE> 1
Exhibit 10
THE J. M. SMUCKER COMPANY
1998 EQUITY AND PERFORMANCE INCENTIVE PLAN
1. PURPOSE. The purpose of the 1998 Equity and Performance Incentive Plan
is to attract and retain consultants, officers and other key employees for The
J. M. Smucker Company, an Ohio corporation, and its Subsidiaries and to provide
to such persons incentives and rewards for superior performance.
2. DEFINITIONS. As used in this Plan,
"Appreciation Right" means a right granted pursuant to Section 5 of this
Plan, and shall include both Tandem Appreciation Rights and Free-Standing
Appreciation Rights.
"Base Price" means the price to be used as the basis for determining the
Spread upon the exercise of a Free-Standing Appreciation Right and a Tandem
Appreciation Right.
"Board" means the Board of Directors of the Company and, to the extent of
any delegation by the Board to a committee (or subcommittee thereof) pursuant to
Section 15 of this Plan, such committee (or subcommittee).
"Change in Control" shall have the meaning provided in Section 11 of this
Plan.
"Class A Common Shares" means Class A Common Shares, without par value, of
the Company or any security into which such Common Shares may be changed by
reason of any transaction or event of the type referred to in Section 10 of this
Plan.
"Class B Common Shares" means Class B Common Shares, without par value, of
the Company or any security into which such Common Shares may be changed by
reason of any transaction or event of the type referred to in Section 10 of this
Plan.
"Common Shares" means Class A Common Shares, Class B Common Shares or both.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Company" means The J. M. Smucker Company, an Ohio corporation.
"Covered Employee" means a Participant who is, or is determined by the
Board to be likely to become, a "covered employee" within the meaning of Section
162(m) of the Code (or any successor provision).
"Date of Grant" means the date specified by the Board on which a grant of
Option Rights, Appreciation Rights, Performance Shares or Performance Units or a
grant or sale of Restricted Shares or Deferred Shares shall become effective
(which date shall not be earlier than the date on which the Board takes action
with respect thereto).
"Deferral Period" means the period of time during which Deferred Shares are
subject to deferral limitations under Section 7 of this Plan.
"Deferred Shares" means an award made pursuant to Section 7 of this Plan of
the right to receive Common Shares at the end of a specified Deferral Period.
"Director" means a member of the Board of Directors of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder, as such law, rules and regulations may be
amended from time to time.
"Free-Standing Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is not granted in tandem with an Option
Right.
"Incentive Stock Options" means Option Rights that are intended to qualify
as "incentive stock options" under Section 422 of the Code or any successor
provision.
1
<PAGE> 2
"Management Objectives" means the measurable performance objective or
objectives established pursuant to this Plan for Participants who have received
grants of Performance Shares or Performance Units or, when so determined by the
Board, Option Rights, Appreciation Rights, Restricted Shares and dividend
credits pursuant to this Plan. Management Objectives may be described in terms
of Company-wide objectives or objectives that are related to the performance of
the individual Participant or of the Subsidiary, division, department, region or
function within the Company or Subsidiary in which the Participant is employed.
The Management Objectives may be made relative to the performance of other
corporations. The Management Objectives applicable to any award to a Covered
Employee that is intended to comply with Section 162(m) of the Code shall be
based on specified levels of or growth in one or more of the following criteria:
1. cash flow/net assets ratio;
2. debt/capital ratio;
3. return on total capital;
4. return on equity;
5. return on assets;
6. earnings per share;
7. revenue;
8. total return to shareholders; and
9. margin performance.
If the Committee determines that a change in the business, operations,
corporate structure or capital structure of the Company, or the manner in which
it conducts its business, or other events or circumstances render the Management
Objectives unsuitable, the Committee may in its discretion modify such
Management Objectives or the related minimum acceptable level of achievement, in
whole or in part, as the Committee deems appropriate and equitable, except in
the case of a Covered Employee where such action would result in the loss of the
otherwise available exemption of the award under Section 162(m) of the Code. In
such case, the Committee shall not make any modification of the Management
Objectives or minimum acceptable level of achievement.
"Market Value per Share" means, as of any particular date, (i) the closing
sale price per Common Share as reported on The New York Stock Exchange, on the
Date of Grant, or if there are no sales on such day, on the next preceding
trading day during which a sale occurred, or (ii) if clause (i) does not apply,
the fair market value of the Common Shares as determined by the Board.
"Optionee" means the optionee named in an agreement evidencing an
outstanding Option Right.
"Option Price" means the purchase price payable on exercise of an Option
Right.
"Option Right" means the right to purchase Common Shares upon exercise of
an option granted pursuant to Section 4 of this Plan.
"Participant" means a person who is selected by the Board to receive
benefits under this Plan and who is at the time a consultant, an officer, or
other key employee of the Company or any one or more of its Subsidiaries, or who
has agreed to commence serving in any of such capacities within 90 days of the
Date of Grant.
"Performance Period" means, in respect of a Performance Share or
Performance Unit, a period of time established pursuant to Section 8 of this
Plan within which the Management Objectives relating to such Performance Share
or Performance Unit are to be achieved.
"Performance Share" means a bookkeeping entry that records the equivalent
of one Common Share awarded pursuant to Section 8 of this Plan.
2
<PAGE> 3
"Performance Unit" means a bookkeeping entry that records a unit equivalent
to $1.00 awarded pursuant to Section 8 of this Plan.
"Plan" means The J. M. Smucker Company 1998 Equity and Performance
Incentive Plan.
"Restricted Shares" means Common Shares granted or sold pursuant to Section
6 of this Plan as to which neither the substantial risk of forfeiture nor the
prohibition on transfers referred to in such Section 6 has expired.
"Rule 16b-3" means Rule 16b-3 under the Exchange Act (or any successor rule
to the same effect) as in effect from time to time.
"Spread" means the excess of the Market Value per Share on the date when an
Appreciation Right is exercised, or on the date when Option Rights are
surrendered in payment of the Option Price of other Option Rights, over the
Option Price or Base Price provided for in the related Option Right or
Free-Standing Appreciation Right, respectively.
"Subsidiary" means a corporation, company or other entity (i) more than 50
percent of whose outstanding shares or securities (representing the right to
vote for the election of directors or other managing authority) are, or (ii)
which does not have outstanding shares or securities (as may be the case in a
partnership, joint venture or unincorporated association), but more than 50
percent of whose ownership interest representing the right generally to make
decisions for such other entity is, now or hereafter, owned or controlled,
directly or indirectly, by the Company except that for purposes of determining
whether any person may be a Participant for purposes of any grant of Incentive
Stock Options, "Subsidiary" means any corporation in which at the time the
Company owns or controls, directly or indirectly, more than 50 percent of the
total combined voting power represented by all classes of stock issued by such
corporation.
"Tandem Appreciation Right" means an Appreciation Right granted pursuant to
Section 5 of this Plan that is granted in tandem with an Option Right.
"Voting Power" means at any time, the total votes relating to the
then-outstanding securities entitled to vote generally in the election of
Directors.
3. SHARES AVAILABLE UNDER THE PLAN. (a) Subject to adjustment as provided
in Section 3(b) and Section 10 of this Plan, the number of Class A Common Shares
and Class B Common Shares that may be issued or transferred (i) upon the
exercise of Option Rights or Appreciation Rights, (ii) as Restricted Shares and
released from substantial risks of forfeiture thereof, (iii) as Deferred Shares,
(iv) in payment of Performance Shares or Performance Units that have been earned
or (v) in payment of dividend equivalents paid with respect to awards made under
the Plan shall not exceed in the aggregate 700,000 Class A Common Shares and
700,000 Class B Common Shares(1), plus any shares described in Section 3(b).
Such shares may be shares of original issuance or treasury shares or a
combination of the foregoing.
(b) The number of shares available in Section 3(a) above shall be adjusted
to account for shares relating to awards that expire, are forfeited or are
transferred, surrendered or relinquished upon the payment of any Option Price by
the transfer to the Company of Common Shares or upon satisfaction of any
withholding amount. Upon payment in cash of the benefit provided by any award
granted under this Plan, any shares that were covered by that award shall again
be available for issue or transfer hereunder.
(c) Notwithstanding anything in this Section 3, or elsewhere in this Plan,
to the contrary and subject to adjustment as provided in Section 10 of this
Plan, (i) the aggregate number of Common Shares actually issued or transferred
by the Company upon the exercise of Incentive Stock Options shall not exceed
700,000 Class A Common Shares and 700,000 Class B Common Shares;
- ---------------
(1) Neither figure is to exceed 5% of the shares of the class outstanding on the
record date for voting at the meeting at which the Plan is to be presented.
3
<PAGE> 4
(ii) no Participant shall be granted Option Rights and Appreciation Rights, in
the aggregate, for more than 600,000 Common Shares during any period of 3 years;
(iii) the number of shares issued as Restricted Shares and Deferred Shares shall
not in the aggregate exceed 225,000 Class A Common Shares and 225,000 Class B
Common Shares.
(d) Notwithstanding any other provision of this Plan to the contrary, in no
event shall any Participant in any calendar year receive an award of Performance
Shares or Performance Units having an aggregate maximum value as of their
respective Dates of Grant in excess of $1,000,000.
4. OPTION RIGHTS. The Board may, from time to time and upon such terms and
conditions as it may determine, authorize the granting to Participants of
options to purchase Common Shares. Each such grant may utilize any or all of the
authorizations, and shall be subject to all of the requirements contained in the
following provisions:
(a) Each grant shall specify the number and class of Common Shares to
which it pertains subject to the limitations set forth in Section 3 of this
plan.
(b) Each grant shall specify an Option Price per share, which may not
be less than the Market Value per Share on the Date of Grant.
(c) Each grant shall specify whether the Option Price shall be payable
(i) in cash or by check acceptable to the Company, (ii) by the actual or
constructive transfer to the Company of Common Shares owned by the Optionee
for at least 6 months (or other consideration authorized pursuant to
Section 4(d)) having a value at the time of exercise equal to the total
Option Price, or (iii) by a combination of such methods of payment.
(d) The Board may determine, at or after the Date of Grant, that
payment of the Option Price of any Option Right (other than an Incentive
Stock Option) may also be made in whole or in part in the form of
Restricted Shares or other Common Shares that are forfeitable or subject to
restrictions on transfer, Deferred Shares, Performance Shares (based, in
each case, on the Market Value per Share on the date of exercise), other
Option Rights (based on the Spread on the date of exercise) or Performance
Units. Unless otherwise determined by the Board at or after the Date of
Grant, whenever any Option Price is paid in whole or in part by means of
any of the forms of consideration specified in this Section 4(d), the
Common Shares received upon the exercise of the Option Rights shall be
subject to such risks of forfeiture or restrictions on transfer as may
correspond to any that apply to the consideration surrendered, but only to
the extent, determined with respect to the consideration surrendered, of
(i) the number of shares or Performance Shares, (ii) the Spread of any
unexercisable portion of Option Rights, or (iii) the stated value of
Performance Units.
(e) Any grant may provide for deferred payment of the Option Price
from the proceeds of sale through a bank or broker on a date satisfactory
to the Company of some or all of the shares to which such exercise relates.
(f) Successive grants may be made to the same Participant whether or
not any Option Rights previously granted to such Participant remain
unexercised.
(g) Each grant shall specify the period or periods of continuous
service by the Optionee with the Company or any Subsidiary that is
necessary before the Option Rights or installments thereof will become
exercisable and may provide for the earlier exercise of such Option Rights
in the event of a Change in Control.
(h) Any grant of Option Rights may specify Management Objectives that
must be achieved as a condition to the exercise of such rights.
(i) Option Rights granted under this Plan may be (i) options,
including, without limitation, Incentive Stock Options, that are intended
to qualify under particular provisions of the Code, (ii) options that are
not intended so to qualify, or (iii) combinations of the foregoing.
4
<PAGE> 5
(j) The Board may, at or after the Date of Grant of any Option Rights
(other than Incentive Stock Options), provide for the payment of dividend
equivalents to the Optionee on either a current or deferred or contingent
basis or may provide that such equivalents shall be credited against the
Option Price.
(k) The exercise of an Option Right shall result in the cancellation
on a share-for-share basis of any Tandem Appreciation Right authorized
under Section 5 of this Plan.
(l) No Option Right shall be exercisable more than 10 years from the
Date of Grant.
(m) Each grant of Option Rights shall be evidenced by an agreement
executed on behalf of the Company by an officer and delivered to the
Optionee and containing such terms and provisions, consistent with this
Plan, as the Board may approve.
5. APPRECIATION RIGHTS. (a) The Board may authorize the granting (i) to any
Optionee, of Tandem Appreciation Rights in respect of Option Rights granted
hereunder, and (ii) to any Participant, of Free-Standing Appreciation Rights. A
Tandem Appreciation Right shall be a right of the Optionee, exercisable by
surrender of the related Option Right, to receive from the Company an amount
determined by the Board, which shall be expressed as a percentage of the Spread
(not exceeding 100 percent) at the time of exercise. Tandem Appreciation Rights
may be granted at any time prior to the exercise or termination of the related
Option Rights; provided, however, that a Tandem Appreciation Right awarded in
relation to an Incentive Stock Option must be granted concurrently with such
Incentive Stock Option. A Free-Standing Appreciation Right shall be a right of
the Participant to receive from the Company an amount determined by the Board,
which shall be expressed as a percentage of the Spread (not exceeding 100
percent) at the time of exercise.
(b) Each grant of Appreciation Rights may utilize any or all of the
authorizations, and shall be subject to all of the requirements, contained in
the following provisions:
(i) Any grant may specify that the amount payable on exercise of an
Appreciation Right may be paid by the Company in cash, in Common Shares or
in any combination thereof and may either grant to the Participant or
retain in the Board the right to elect among those alternatives.
(ii) Any grant may specify that the amount payable on exercise of an
Appreciation Right may not exceed a maximum specified by the Board at the
Date of Grant.
(iii) Any grant may specify waiting periods before exercise and
permissible exercise dates or periods.
(iv) Any grant may specify that such Appreciation Right may be
exercised only in the event of, or earlier in the event of, a Change in
Control.
(v) Any grant may provide for the payment to the Participant of
dividend equivalents thereon in cash or Common Shares on a current,
deferred or contingent basis.
(vi) Any grant of Appreciation Rights may specify Management
Objectives that must be achieved as a condition of the exercise of such
Rights.
(vii) Each grant of Appreciation Rights shall be evidenced by an
agreement executed on behalf of the Company by an officer and delivered to
and accepted by the Participant, which agreement shall describe such
Appreciation Rights, identify the related Option Rights (if applicable),
state that such Appreciation Rights are subject to all the terms and
conditions of this Plan, and contain such other terms and provisions,
consistent with this Plan, as the Board may approve.
(c) Any grant of Tandem Appreciation Rights shall provide that such Rights
may be exercised only at a time when the related Option Right is also
exercisable and at a time when the Spread is positive, and by surrender of the
related Option Right for cancellation.
5
<PAGE> 6
(d) Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of each Free-standing
Appreciation Right a Base Price, which shall be equal to or greater or less
than the Market Value per Share on the Date of Grant;
(ii) Successive grants may be made to the same Participant regardless
of whether any Free-standing Appreciation Rights previously granted to the
Participant remain unexercised; and
(iii) No Free-standing Appreciation Right granted under this Plan may
be exercised more than 10 years from the Date of Grant.
6. RESTRICTED SHARES. The Board may also authorize the grant or sale of
Restricted Shares to Participants. Each such grant or sale may utilize any or
all of the authorizations, and shall be subject to all of the requirements,
contained in the following provisions:
(a) Each such grant or sale shall constitute an immediate transfer of
the ownership of Common Shares to the Participant in consideration of the
performance of services, entitling such Participant to voting, dividend and
other ownership rights, but subject to the substantial risk of forfeiture
and restrictions on transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall provide that the Restricted Shares
covered by such grant or sale shall be subject to a "substantial risk of
forfeiture" within the meaning of Section 83 of the Code for a period of
not less than 3 years to be determined by the Board at the Date of Grant
and may provide for the earlier lapse of such substantial risk of
forfeiture in the event of a Change in Control.
(d) Each such grant or sale shall provide that during the period for
which such substantial risk of forfeiture is to continue, the
transferability of the Restricted Shares shall be prohibited or restricted
in the manner and to the extent prescribed by the Board at the Date of
Grant (which restrictions may include, without limitation, rights of
repurchase or first refusal in the Company or provisions subjecting the
Restricted Shares to a continuing substantial risk of forfeiture in the
hands of any transferee).
(e) Any grant of Restricted Shares may specify Management Objectives
that, if achieved, will result in termination or early termination of the
restrictions applicable to such shares. Each grant may specify in respect
of such Management Objectives a minimum acceptable level of achievement and
may set forth a formula for determining the number of Restricted Shares on
which restrictions will terminate if performance is at or above the minimum
level, but falls short of full achievement of the specified Management
Objectives.
(f) Any such grant or sale of Restricted Shares may require that any
or all dividends or other distributions paid thereon during the period of
such restrictions be automatically deferred and reinvested in additional
Restricted Shares, which may be Subject to the same restrictions as the
underlying award.
(g) Each grant or sale of Restricted Shares shall be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and shall contain such terms and
provisions, consistent with this Plan, as the Board may approve. The Board
may require that certificates representing Restricted Shares shall be held
in custody by the Company until all restrictions thereon shall have lapsed,
together with a stock power or powers executed by the Participant in whose
name such certificates are registered, endorsed in blank and covering such
Shares. Such Shares shall bear an appropriate legend indicating the nature
of the restrictions provided for in this Section.
6
<PAGE> 7
7. DEFERRED SHARES. The Board may also authorize the granting or sale of
Deferred Shares to Participants. Each such grant or sale may utilize any or all
of the authorizations, and shall be subject to all of the requirements contained
in the following provisions:
(a) Each such grant or sale shall constitute the agreement by the
Company to deliver Common Shares to the Participant in the future in
consideration of the performance of services, but subject to the
fulfillment of such conditions during the Deferral Period as the Board may
specify.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale shall be subject to a Deferral Period of
not less than 1 year, as determined by the Board at the Date of Grant, and
may provide for the earlier lapse or other modification of such Deferral
Period in the event of a Change in Control.
(d) During the Deferral Period, the Participant shall have no right to
transfer any rights under his or her award and shall have no rights of
ownership in the Deferred Shares and shall have no right to vote them, but
the Board may, at or after the Date of Grant, authorize the payment of
dividend equivalents on such Shares on either a current or deferred or
contingent basis, either in cash or in additional Common Shares.
(e) Each grant or sale of Deferred Shares shall be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and shall contain such terms and
provisions, consistent with this Plan, as the Board may approve.
8. PERFORMANCE SHARES AND PERFORMANCE UNITS. The Board may also authorize
the granting of Performance Shares and Performance Units that will become
payable to a Participant upon achievement of specified Management Objectives.
Each such grant may utilize any or all of the authorizations, and shall be
subject to all of the requirements, contained in the following provisions:
(a) Each grant shall specify the number of Performance Shares or
Performance Units to which it pertains, which number may be subject to
adjustment to reflect changes in compensation or other factors; provided,
however, that no such adjustment shall be made in the case of a Covered
Employee where such action would result in the loss of the otherwise
available exemption of the award under Section 162(m) of the Code.
(b) The Performance Period with respect to each Performance Share or
Performance Unit shall be such period of time (not less than 3 years),
commencing with the Date of Grant as shall be determined by the Board at
the time of grant which may be subject to earlier lapse or other
modification in the event of a Change in Control as set forth in the
agreement specified in Section 8(g).
(c) Any grant of Performance Shares or Performance Units shall specify
Management Objectives which, if achieved, will result in payment or early
payment of the award, and each grant may specify in respect of such
specified Management Objectives a minimum acceptable level of achievement
and shall set forth a formula for determining the number of Performance
Shares or Performance Units that will be earned if performance is at or
above the minimum level, but falls short of full achievement of the
specified Management Objectives. The grant of Performance Shares or
Performance Units shall specify that, before the Performance Shares or
Performance Units shall be earned and paid, the Board must certify that the
Management Objectives have been satisfied.
(d) Each grant shall specify the time and manner of payment of
Performance Shares or Performance Units that have been earned. Any grant
may specify that the amount payable with respect thereto may be paid by the
Company in cash, in Common Shares or in any combination thereof and may
either grant to the Participant or retain in the Board the right to elect
among those alternatives.
7
<PAGE> 8
(e) Any grant of Performance Shares may specify that the amount
payable with respect thereto may not exceed a maximum specified by the
Board at the Date of Grant. Any grant of Performance Units may specify that
the amount payable or the number of Common Shares issued with respect
thereto may not exceed maximums specified by the Board at the Date of
Grant.
(f) The Board may, at or after the Date of Grant of Performance
Shares, provide for the payment of dividend equivalents to the holder
thereof on either a current or deferred or contingent basis, either in cash
or in additional Common Shares.
(g) Each grant of Performance Shares or Performance Units shall be
evidenced by an agreement executed on behalf of the Company by any officer
and delivered to and accepted by the Participant, which agreement shall
state that such Performance Shares or Performance Units are subject to all
the terms and conditions of this Plan, and contain such other terms and
provisions, consistent with this Plan, as the Board may approve.
9. TRANSFERABILITY. (a) Except as otherwise determined by the Board, no
Option Right, Appreciation Right or other derivative security granted under the
Plan shall be transferable by a Participant other than by will or the laws of
descent and distribution. Except as otherwise determined by the Board, Option
Rights and Appreciation Rights shall be exercisable during the Optionee's
lifetime only by him or her or by his or her guardian or legal representative.
(b) The Board may specify at the Date of Grant that part or all of the
Common Shares that are (i) to be issued or transferred by the Company upon the
exercise of Option Rights or Appreciation Rights, upon the termination of the
Deferral Period applicable to Deferred Shares or upon payment under any grant of
Performance Shares or Performance Units or (ii) no longer subject to the
substantial risk of forfeiture and restrictions on transfer referred to in
Section 6 of this Plan, shall be subject to further restrictions on transfer.
10. ADJUSTMENTS. The Board may make or provide for such adjustments in the
numbers of Common Shares covered by outstanding Option Rights, Appreciation
Rights, Deferred Shares, and Performance Shares granted hereunder, in the prices
per share applicable to such Option Rights and Appreciation Rights and in the
kind of shares covered thereby, as the Board, in its sole discretion, exercised
in good faith, may determine is equitably required to prevent dilution or
enlargement of the rights of Participants or Optionees that otherwise would
result from (a) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, or (b)
any merger, consolidation, spin-off, split-off, spin-out, split-up,
reorganization, partial or complete liquidation or other distribution of assets,
issuance of rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of the foregoing.
Moreover, in the event of any such transaction or event, the Board, in its
discretion, may provide in substitution for any or all outstanding awards under
this Plan such alternative consideration as it, in good faith, may determine to
be equitable in the circumstances and may require in connection therewith the
surrender of all awards so replaced. The Board may also make or provide for such
adjustments in the numbers of shares specified in Section 3 of this Plan as the
Board in its sole discretion, exercised in good faith, may determine is
appropriate to reflect any transaction or event described in this Section 10;
provided, however, that any such adjustment to the number specified in Section
3(c)(i) shall be made only if and to the extent that such adjustment would not
cause any Option intended to qualify as an Incentive Stock Option to fail so to
qualify.
8
<PAGE> 9
11. CHANGE IN CONTROL. For purposes of this Plan, except as may be
otherwise prescribed by the Board in an agreement evidencing a grant or award
made under the Plan, a "Change in Control" shall have occurred if at any time
any of the following events shall have occurred:
(a) A filing pursuant to any federal or state law in connection with
any tender offer for shares of the Company (other than a tender offer by
the Company);
(b) The occurrence of or the signing of any agreement for a merger,
consolidation, combination (as defined in Section 1701.01(Q), Ohio Revised
Code), or majority share acquisition (as defined in Section 1701.01(R),
Ohio Revised Code) involving the Company and as a result of which the
holders of shares of the Company prior to the transaction become, or will
become, by reason of the transaction, the holders of such number of shares
of the surviving or acquiring corporation as entitle them to exercise less
than one-third of the voting power of such corporation in the election of
directors;
(c) The signing of any agreement for the sale of all or substantially
all of the assets of the Company;
(d) The adoption of any resolution of reorganization or dissolution of
the Company by the shareholders;
(e) The occurrence of any other event or series of events, which, in
the opinion of the Board of Directors, will, or is likely to, if carried
out, result in a change of control of the Company;
(f) If during any period of two consecutive years, individuals who at
the beginning of such period constitute the Directors of the Company cease
for any reason to constitute a majority thereof (unless the election, or
the nomination for election by the Company's shareholders, of each Director
of the Company first elected during such period was approved by a vote of
at least two-thirds of the Directors then still in office who were
Directors of the Company at the beginning of any such period); or
(g) The acquisition by any person (including a group within the
meaning of Sections 13(d)(3) or 14(d)(2) of the Exchange Act other than the
Company (or any of its Subsidiaries) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
the combined voting power of the Company's then outstanding voting
securities, unless such acquisition is approved by the vote of at least
two-thirds of the Directors of the Company then in office.
12. FRACTIONAL SHARES. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for the
elimination of fractions or for the settlement of fractions in cash.
13. WITHHOLDING TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for such withholding are insufficient, it
shall be a condition to the receipt of such payment or the realization of such
benefit that the Participant or such other person make arrangements satisfactory
to the Company for payment of the balance of such taxes required to be withheld,
which arrangements (in the discretion of the Board) may include relinquishment
of a portion of such benefit. The Company and a Participant or such other person
may also make similar arrangements with respect to the payment of any taxes with
respect to which withholding is not required.
14. FOREIGN EMPLOYEES. In order to facilitate the making of any grant or
combination of grants under this Plan, the Board may provide for such special
terms for awards to Participants who are foreign nationals or who are employed
by the Company or any Subsidiary outside of the United States of America as the
Board may consider necessary or appropriate to accommodate differences in local
law, tax policy or custom. Moreover, the Board may approve such supplements to
or amendments, restatements or alternative versions of this Plan as it may
9
<PAGE> 10
consider necessary or appropriate for such purposes, without thereby affecting
the terms of this Plan as in effect for any other purpose, and the Secretary or
other appropriate officer of the Company may certify any such document as
having been approved and adopted in the same manner as this Plan. No such
special terms, supplements, amendments or restatements, however, shall include
any provisions that are inconsistent with the terms of this Plan as then in
effect unless this Plan could have been amended to eliminate such inconsistency
without further approval by the shareholders of the Company.
15. ADMINISTRATION OF THE PLAN. (a) This Plan shall be administered by the
Board, which may from time to time delegate all or any part of its authority
under this Plan to a committee of the Board (or subcommittee thereof) consisting
of not less than three Non-Employee Directors appointed by the Board. A majority
of the committee (or subcommittee) shall constitute a quorum, and the action of
the members of the committee (or subcommittee) present at any meeting at which a
quorum is present, or acts unanimously approved in writing, shall be the acts of
the committee (or subcommittee). To the extent of any such delegation,
references in this Plan to the Board shall be deemed to be references to any
such committee or subcommittee.
(b) The interpretation and construction by the Board of any provision of
this Plan or of any agreement, notification or document evidencing the grant of
Option Rights, Appreciation Rights, Restricted Shares, Deferred Shares,
Performance Shares or Performance Units and any determination by the Board
pursuant to any provision of this Plan or of any such agreement, notification or
document shall be final and conclusive. No member of the Board shall be liable
for any such action or determination made in good faith.
16. AMENDMENTS, ETC. (a) The Board may at any time and from time to time
amend the Plan in whole or in part; provided, however, that any amendment which
must be approved by the shareholders of the Company in order to comply with
applicable law or a specific rule of the New York Stock Exchange if the Common
Shares are not traded on the New York Stock Exchange, the principal national
securities exchange upon which the Common Shares are traded or quoted, shall not
be effective unless and until such approval has been obtained. Presentation of
this Plan or any amendment hereof for shareholder approval shall not be
construed to limit the Company's authority to offer similar or dissimilar
benefits under other plans without shareholder approval.
(b) The Board shall not, without the further approval of the shareholders
of the Company, authorize the amendment of any outstanding Option Right to
reduce the Option Price. Furthermore, no Option Right shall be canceled and
replaced with awards having a lower Option Price without further approval of the
shareholders of the Company. This Section 17(b) is intended to prohibit the
repricing of "underwater" Option Rights and shall not be construed to prohibit
the adjustments provided for in Section 10 of this Plan.
(c) The Board also may permit Participants to elect to defer the issuance
of Common Shares or the settlement of awards in cash under the Plan pursuant to
such rules, procedures or programs as it may establish for purposes of this
Plan. The Board also may provide that deferred issuances and settlements include
the payment or crediting of dividend equivalents or interest on the deferral
amounts.
(d) The Board may condition the grant of any award or combination of awards
authorized under this Plan on the surrender or deferral by the Participant of
his or her right to receive a cash bonus or other compensation otherwise payable
by the Company or a Subsidiary to the Participant.
(e) In case of termination of employment by reason of death, disability or
normal or early retirement, or in the case of hardship or other special
circumstances, of a Participant who holds an Option Right or Appreciation Right
not immediately exercisable in full, or any Restricted Shares as to which the
substantial risk of forfeiture or the prohibition or restriction on transfer has
not lapsed, or any Deferred Shares as to which the Deferral Period has not been
completed, or any Performance Shares or Performance Units which have not been
10
<PAGE> 11
fully earned, or who holds Common Shares subject to any transfer restriction
imposed pursuant to Section 9(b) of this Plan, the Board may, in its sole
discretion, accelerate the time at which such Option Right or Appreciation
Right may be exercised or the time at which such substantial risk of forfeiture
or prohibition or restriction on transfer will lapse or the time when such
Deferral Period will end or the time at which such Performance Shares or
Performance Units will be deemed to have been fully earned or the time when
such transfer restriction will terminate or may waive any other limitation or
requirement under any such award.
(f) This Plan shall not confer upon any Participant any right with respect
to continuance of employment or other service with the Company or any
Subsidiary, nor shall it interfere in any way with any right the Company or any
Subsidiary would otherwise have to terminate such Participant's employment or
other service at any time.
(g) To the extent that any provision of this Plan would prevent any Option
Right that was intended to qualify as an Incentive Stock Option from qualifying
as such, that provision shall be null and void with respect to such Option
Right. Such provision, however, shall remain in effect for other Option Rights
and there shall be no further effect on any provision of this Plan.
11
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<TOTAL-LIABILITY-AND-EQUITY> 405,666
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<TOTAL-REVENUES> 292,576
<CGS> 191,967
<TOTAL-COSTS> 191,967
<OTHER-EXPENSES> 70,736
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 90
<INCOME-PRETAX> 31,263
<INCOME-TAX> 12,688
<INCOME-CONTINUING> 18,575
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<CHANGES> 0
<NET-INCOME> 18,575
<EPS-PRIMARY> .64
<EPS-DILUTED> .63
</TABLE>
