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Exhibit 10.13
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS FIRST AMENDMENT, dated as of November 30, 2001 (the
"AMENDMENT"),
to the separate Note Purchase Agreements,
dated as of June 16, 1999, is among
The J.M. Smucker Company, an Ohio
corporation (the "COMPANY"), and each of the
institutions which is a signatory to this
Amendment (collectively, the
"PURCHASERS").
RECITALS:
A. The Company and each of the Purchasers have heretofore entered
into
separate Note Purchase Agreements dated as
of June 16, 1999 (collectively, as
amended and in effect immediately prior to
the effectiveness of this Amendment,
the "EXISTING NOTE PURCHASE AGREEMENT"),
pursuant to which the Company issued to
the Purchasers its 6.77% Senior Notes due
June 1, 2009 in the aggregate
principal amount of $75,000,000 (the
"NOTES").
B. The Purchasers are the holders of all of the outstanding
Notes.
C. Capitalized terms used herein shall have the respective
meanings
ascribed thereto in the Existing Note
Purchase Agreement unless herein defined
or the context shall otherwise require.
D. The Company and the Purchasers now desire to amend the Existing
Note
Purchase Agreement in the respects, but
only in the respects, hereinafter set
forth.
E. All requirements of law have been fully complied with and all
other
acts and things necessary to make this
Amendment a legal, valid and binding
instrument according to its terms for the
purposes herein expressed have been
done or performed.
NOW THEREFORE, for good and valuable consideration the receipt
and
sufficiency of which are hereby
acknowledged, the Company and the Purchasers do
hereby agree as follows:
1.
AMENDMENTS.
1.1. AMENDMENT TO SCHEDULE B. The definition of "Change in
Control"
appearing in Schedule B to the Existing
Note Purchase Agreement is hereby
deleted in its entirety and replaced with
the following:
"CHANGE IN CONTROL" - means any of:
(a) (i) prior to the Merger, the failure of the
Smucker Family to hold, in the aggregate, not less than the
greater of: (A) 35% of the total voting power of all classes
of the Voting Stock of the Company; and (B) not less than
twice the amount of Ordinary Voting Power of all classes of
the Voting Stock of the Company possessed by the Largest Other
Shareholder; and
(ii) effective as of the Merger, the failure of the
Smucker Family to hold, in the aggregate, not less than the
greater of (A) 10% of the Special Voting Power of all classes
of Voting Stock of
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the Company and (B) not less than the amount of the Special
Voting Power of all classes of the Voting Stock of the Company
possessed by the Largest Other Shareholder, or
(iii) effective as of the Merger, the failure of the
Smucker Family to hold, in the aggregate, not less than the
greater of (A) 5% of the Ordinary Voting Power of all classes
of the Voting Stock of the Company and (B) not less than the
amount of Ordinary Voting Power of all classes of the Voting
Stock of the Company possessed by the Largest Other
Shareholder;
(b) all or substantially all of the assets of the Company are
sold or otherwise transferred, in a single transaction or a series
of
related transactions, to any person (as such term is used in
section
13(d) and section 14(d)(2) of the Exchange Act as in effect on the
date
of the Closing) or related persons constituting a group (as such
term
is used in Rule 13d-5 under the Exchange Act as in effect on the
date
of the Closing); or
(c) if, for any reason whatsoever, either Timothy P. Smucker
or Richard K. Smucker (or both) shall fail to serve on the board
of
directors of the Company at any time.
As used in this definition of "Change in
Control", the following terms shall
have the following meanings:
(I) "Largest
Other Shareholder" means, with respect to either Voting Stock
of the Company having Special Voting Power or Voting Stock of
the
Company
having Ordinary Voting Power, the person (as such term is used
in section 13(d) and section 14(d)(2) of the Exchange Act as in
effect
on the date of the Closing) or the related persons constituting a
group
(as such term is used in Rule 13d-5 under the Exchange Act as in
effect
on the date of the Closing), other than the Smucker Family,
possessing
Voting Stock of the Company with the greatest Special Voting Power
or
the greatest Ordinary Voting Power, as the case may be.
(II) "Merger" means
the closing of the transaction, and the filing of the
certificate of merger as set forth in the Agreement and Plan of
Merger,
dated as of October 9, 2001, by and among the Company, The Proctor
and
Gamble Company, and The Proctor & Gamble Ohio Brands
Company.
(III) "Ordinary Voting
Power" means the voting power attributable to all
shares of Voting Stock of the Company for purposes of electing
directors of the Company.
(IV) "Special Voting
Power" means the voting power attributable to those
shares of Voting Stock of the Company entitled to the special
voting
rights set forth in Division II, Section 2(a) of the Amended
Articles
of Incorporation of the Company which will be in effect on the date
of
the Merger in the form attached hereto as Schedule C.
2
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2. NO
OTHER MODIFICATIONS; CONFIRMATION.
All the provisions of the Notes, and, except as expressly
amended,
modified and supplemented hereby, all the
provisions of the Existing Note
Purchase Agreement, are and shall remain in
full force and effect. As of the
Effective Date (defined below), all
references in the Notes to the "Note
Purchase Agreements" shall be references to
the Existing Note Purchase
Agreement, as modified by this Amendment
and as hereafter amended, modified or
supplemented in accordance with its
terms.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Purchasers to execute and deliver this Amendment
(which
representations shall survive such
execution and delivery), the Company
represents and warrants to the Purchasers
that:
(a) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the state of
Ohio;
(b) this Amendment has been duly authorized, executed and
delivered by the Company and this Amendment constitutes a legal,
valid
and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization,
moratorium or similar laws or equitable principles relating to
or
limiting creditors' rights generally;
(c) the Existing Note Purchase Agreement, as amended by this
Amendment, constitutes the legal, valid and binding obligation,
contract and agreement of the Company enforceable against it in
accordance with its terms, except as enforcement may be limited
by
bankruptcy, insolvency, reorganization, moratorium or similar laws
or
equitable principles relating to or limiting creditors' rights
generally;
(d) the execution, delivery and performance by the Company of
this Amendment (i) has been duly authorized by all requisite
corporate
action and, if required, shareholder action, (ii) does not require
the
consent or approval of any governmental or regulatory body or
agency,
and (iii) will not (A) violate (1) any provision of law, statute,
rule
or regulation or its cer
