SJM JM Smucker Company

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As filed with the Securities and Exchange Commission on June 30, 2015

Registration No. 333 -            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form S-4

 

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

The J. M. Smucker Company

(Exact name of registrant as specified in its charter)

 

 

 

Ohio		2033		34-0538550
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(IRS Employer Identification Number)

SEE TABLE OF SUBSIDIARY GUARANTOR REGISTRANTS LISTED ON FOLLOWING PAGE

One Strawberry Lane

Orrville, OH 44667-0280

(330) 682-3000

(Address, including zip code, and telephone number, including area code, of each of the registrants’ principal executive offices)

 

 

Jeannette L. Knudsen

Vice President, General Counsel and Corporate Secretary

One Strawberry Lane

Orrville, Ohio 44667-0280

(330) 682-3000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copy to:

Steven A. Rosenblum, Esq.

Ronald C. Chen, Esq.

Kathryn Gettles-Atwa, Esq.

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10019

(212) 403-1000

 

 

Approximate date of commencement of proposed sale to public: As soon as practicable after the effective date of this Registration Statement.

If any of the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.  ¨

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		x		Accelerated filer		¨
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ¨

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)  ¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered		Amount to be Registered		Proposed Maximum Offering Price per Unit		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee (1)
1.750% Notes due 2018		$500,000,000		100%		$500,000,000		$58,100
Guarantees of the 1.750% Notes due 2018 (2)		—		—		—		(3)
2.500% Notes due 2020		$500,000,000		100%		$500,000,000		$58,100
Guarantees of the 2.500% Notes due 2020 (2)		—		—		—		(3)
3.000% Notes due 2022		$400,000,000		100%		$400,000,000		$46,480
Guarantees of the 3.000% Notes due 2022 (2)		—		—		—		(3)
3.500% Notes due 2025		$1,000,000,000		100%		$1,000,000,000		$116,200
Guarantees of the 3.500% Notes due 2025 (2)		—		—		—		(3)
4.250% Notes due 2035		$650,000,000		100%		$650,000,000		$75,530
Guarantees of the 4.250% Notes due 2035 (2)		—		—		—		(3)
4.375% Notes due 2045		$600,000,000		100%		$600,000,000		$69,720
Guarantees of the 4.375% Notes due 2045 (2)		—		—		—		(3)
Total		$3,650,000,000		100%		$3,650,000,000		$424,130

(1)	Calculated pursuant to Rule 457(f) under the Securities Act.

(2)	The entities listed on the Table of Subsidiary Guarantor Registrants on the following page have guaranteed the notes being registered hereby.

(3)	No separate consideration will be received for the guarantees, and pursuant to Rule 457(n) under the Securities Act, no additional registration fee is due for guarantees.

 

 

The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

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TABLE OF SUBSIDIARY GUARANTOR REGISTRANTS

 

Exact Name of Registrant as Specified in its Charter

State or Other Jurisdiction of Incorporation or Organization

Primary Standard Industrial Classification Code Number

I.R.S. Employer Identification No.

J.M. Smucker LLC

Ohio

2033

03-0434070

The Folgers Coffee Company

Delaware

2090

26-1708101

 

*	Both subsidiary guarantor registrants have the following principal executive office:

c/o	The J. M. Smucker Company

One	Strawberry Lane

Orrville,

Ohio 44667-0280

(330)

682-3000

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The information in this prospectus is not complete and may be changed. We may not sell these securities or accept any offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

SUBJECT TO COMPLETION, DATED JUNE 30, 2015

PROSPECTUS

$3,650,000,000

 

EXCHANGE OFFER FOR

$ 500,000,000 1.750% NOTES DUE 2018

FOR

A LIKE PRINCIPAL AMOUNT OF OUTSTANDING

1.750% NOTES DUE 2018

$500,000,000 2.500% NOTES DUE 2020

FOR

A LIKE PRINCIPAL AMOUNT OF OUTSTANDING

2.500% NOTES DUE 2020

$400,000,000 3.000% NOTES DUE 2022

FOR

A LIKE PRINCIPAL AMOUNT OF OUTSTANDING

3.000% NOTES DUE 2022

$1,000,000,000 3.500% NOTES DUE 2025

FOR

A LIKE PRINCIPAL AMOUNT OF OUTSTANDING

3.500% NOTES DUE 2025

$650,000,000 4.250% NOTES DUE 2035

FOR

A LIKE PRINCIPAL AMOUNT OF OUTSTANDING

4.250% NOTES DUE 2035

$600,000,000 4.375% NOTES DUE 2045

FOR

A LIKE PRINCIPAL AMOUNT OF OUTSTANDING

4.375% NOTES DUE 2045

 

 

The J. M. Smucker Company is offering, upon the terms and subject to the conditions set forth in this prospectus and the accompanying letter of transmittal, to exchange an aggregate principal amount of up to (i) $500,000,000 of our 1.750% Notes due 2018 (the “2018 exchange notes”) for an equal principal amount of our outstanding 1.750% Notes due 2018 (the “2018 old notes”), (ii) $500,000,000 of our 2.500% Notes due 2020 (the “2020 exchange notes”) for an equal principal amount of our outstanding 2.500% Notes due 2020 (the “2020 old notes”), (iii) $400,000,000 of our 3.000% Notes due 2022 (the “2022 exchange notes”) for an equal principal amount of our outstanding 3.000% Notes due 2022 (the “2022 old notes”), (iv) $1,000,000,000 of our 3.500% Notes due 2025 (the “2025 exchange notes”) for an equal principal amount of our outstanding 3.500% Notes due 2025 (the “2025 old notes”), (v) $650,000,000 of our 4.250% Notes due 2035 (the “2035 exchange notes”) for an equal principal amount of our outstanding 4.250% Notes due 2035 (the “2035 old notes”), and (vi) $600,000,000 of our 4.375% Notes due 2045 (the “2045 exchange notes” and together with the 2018 exchange notes, the 2020 exchange notes, the 2022 exchange notes, the 2025 exchange notes and the 2035 exchange notes, the “exchange notes”) for an equal principal amount of our outstanding 4.375% Notes due 2045 (the “2045 old notes” and together with the 2018 old notes, the 2020 old notes, the 2022 old notes, the 2025 old notes and the 2035 old notes, the “old notes”). The exchange notes will represent the same debt as the old notes and we will issue the exchange notes under the same indenture as the old notes.

The exchange offer expires at 5:00 p.m., New York City time, on                     , 2015, unless extended.

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Terms of the Exchange Offer

 

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We will issue exchange notes for all old notes that are validly tendered and not withdrawn prior to the expiration of the exchange offer.

 

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You may withdraw tendered old notes at any time prior to the expiration of the exchange offer.

 

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The terms of the exchange notes are identical in all material respects (including principal amount, interest rate, maturity and redemption rights) to the old notes for which they may be exchanged, except that the exchange notes generally will not be subject to transfer restrictions or be entitled to registration rights and the exchange notes will not have the right to earn additional interest under circumstances relating to our registration obligations.

 

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Certain of our subsidiaries, which are the same subsidiaries that guarantee our old notes, will guarantee our obligations under the exchange notes, including the payment of principal of, premium, if any, and interest on the notes. These guarantees of the exchange notes will be unsecured, unsubordinated obligations of the subsidiary guarantors. Certain additional subsidiaries may be required to guarantee the exchange notes, and the guarantees of the subsidiary guarantors will terminate, in each case in the circumstances described under “Description of the Exchange Notes and Guarantees.”

 

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The exchange of old notes for exchange notes pursuant to the exchange offer will not be a taxable event for U.S. federal income tax purposes. See the discussion under the caption “Certain U.S. Federal Income Tax Considerations.”

 

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There is no existing market for the exchange notes to be issued, and we do not intend to apply for listing or quotation on any securities exchange or market.

 

 

See “Risk Factors” beginning on page 9 for a discussion of the factors you should consider in connection with the exchange offer.

 

 

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

Each broker-dealer that receives exchange notes for its own account pursuant to this exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. The accompanying letter of transmittal relating to the exchange offer states that by so acknowledging and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for old notes where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration date of the exchange offer, we will use commercially reasonable efforts to amend or supplement this prospectus in order to expedite or facilitate the disposition of any exchange notes by such broker-dealers. See “Plan of Distribution.”

The date of this prospectus is                     , 2015.

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In this prospectus, unless we indicate otherwise or the context requires, “we,” “us,” “our,” “Smucker,” and the “Company,” refer to The J. M. Smucker Company (and not its consolidated subsidiaries), including the Subsidiary Guarantors (as hereinafter defined); the term “Subsidiary Guarantors” refers to those subsidiaries of Smucker that guarantee the exchange notes and the old notes; and “notes” refers to the old notes and the exchange notes collectively.

You should rely only on the information contained in this prospectus. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any state or other jurisdiction where the offer is not permitted. You should not assume that the information contained in this prospectus is accurate as of any date other than the date printed on the front of this prospectus.

Information Incorporated by Reference

The Securities and Exchange Commission (the “SEC”) allows us to “incorporate by reference” in this prospectus the information in other documents that we file with it, which means that we can disclose important information to you by referring you to those publicly filed documents. The information incorporated by reference is considered to be a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information contained in documents filed earlier with the SEC or contained in this prospectus or a prospectus supplement. Accordingly, we incorporate by reference in this prospectus the documents listed below and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) after the date of the initial registration statement and prior to effectiveness of the registration statement and after the date of this prospectus and prior to the termination of the offering under this prospectus (excluding in each case information deemed to be furnished and not filed with the SEC):

 

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Annual Report on Form 10-K for the year ended April 30, 2015, filed on June 25, 2015;

 

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Definitive Proxy Statement on Schedule 14A, filed on July 2, 2014; and

 

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Current Reports on Form 8-K, filed on March 23, 2015 (other than Exhibit 99.4) and June 30, 2015.

We will provide without charge to each person to whom a copy of this prospectus has been delivered, upon written or oral request, a copy of any or all of the documents we incorporate by reference in this prospectus, other than any exhibit to any of those documents, unless we have specifically incorporated that exhibit by reference into the information this prospectus incorporates. You may request copies by writing or telephoning us at the following address:

The J. M. Smucker Company

One Strawberry Lane

Orrville, OH 44667-0280

(330) 682-3000

To obtain timely delivery of any of our filings, agreements or other documents, you must make your request to us no later than                     , 2015. In the event that we extend the exchange offer, you must submit your request at least five business days before the expiration date of the exchange offer, as extended. We may extend the exchange offer in our sole discretion. See “Exchange Offer” for more detailed information.

Except as expressly provided above, no other information is incorporated by reference into this prospectus.

 

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Where You Can Find More Information

We have filed with the SEC a registration statement on Form S-4 under the Securities Act that registers the exchange notes that will be offered in exchange for the old notes. The registration statement, including the attached exhibits and schedules, contains additional relevant information about us and the exchange notes. The rules and regulations of the SEC allow us to omit from this document certain information included in the registration statement.

We are subject to the informational requirements of the Exchange Act and file reports and other information with the SEC. The public may read and copy any reports or other information that we file with the SEC at the SEC’s public reference room, 100 F Street NE, Washington, D.C. 20549-2521. The public may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to the public from commercial document retrieval services and at the web site maintained by the SEC at http://www.sec.gov. In addition, the Company makes available, free of charge through its website at www.jmsmucker.com, its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (including related amendments) as soon as reasonably practicable after they have been electronically filed with (or furnished to) the SEC.

Neither the information on the Company’s website, nor the information on the website of any Smucker business, is incorporated by reference in this prospectus, or in any other filings with, or in any other information furnished or submitted to, the SEC.

Forward-Looking Information

This prospectus, including information incorporated by reference into this prospectus, contains forward-looking statements within the meaning of the federal securities laws. The forward-looking statements may include statements concerning our current expectations, estimates, assumptions, and beliefs concerning future events, conditions, plans and strategies that are not historical fact. Any statement that is not historical in nature is a forward-looking statement and may be identified by the use of words and phrases such as “expect,” “anticipate,” “believe,” “intend,” “will,” “plan,” and similar phrases.

Federal securities laws provide a safe harbor for forward-looking statements to encourage companies to provide prospective information. We are providing this cautionary statement in connection with the safe harbor provisions. Readers are cautioned not to place undue reliance on any forward-looking statements, as such statements are by nature subject to risks, uncertainties, and other factors, many of which are outside of our control and could cause actual results to differ materially from such statements and from our historical results and experience. These risks and uncertainties include, but are not limited to, those set forth under the heading “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended April 30, 2015, as well as the following:

 

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our ability to successfully integrate acquired and merged businesses in a timely and cost-effective manner and retain key suppliers, customers, and employees;

 

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our ability to achieve synergies and cost savings related to the Big Heart acquisition in the amounts and within the time frames currently anticipated;

 

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our ability to generate sufficient cash flow to meet our deleveraging objectives within the time frames currently anticipated;

 

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a change in outlook or downgrade in our public credit ratings by a rating agency below investment grade;

 

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our ability to obtain any required financing on a timely basis and on acceptable terms;

 

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•

volatility of commodity markets from which raw materials, particularly green coffee beans, peanuts, soybean oil, wheat, milk, corn, sugar, poultry meal, and soybean meal, are procured and the related impact on costs;

 

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risks associated with derivative and purchasing strategies we employ to manage commodity pricing risks, including the risk that such strategies could result in significant losses and adversely impact our liquidity;

 

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crude oil price trends and their impact on transportation, energy, and packaging costs;

 

•

the availability of reliable transportation, which may be affected by the cost of fuel, regulations affecting the industry, labor shortages, service failures by third-party service providers, accidents, or natural disasters, on acceptable terms;

 

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our ability to successfully implement and realize the full benefit of price changes that are intended to ultimately fully recover cost, including the competitive, retailer, and consumer response, and the impact of the timing of the price changes to profits and cash flow in a particular period;

 

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the success and cost of introducing new products and the competitive response;

 

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the success and cost of marketing and sales programs and strategies intended to promote growth in our businesses;

 

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general competitive activity in the market, including competitors’ pricing practices and promotional spending levels;

 

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the impact of food security concerns involving either our products or our competitors’ products;

 

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the impact of accidents, extreme weather, and natural disasters, including crop failures and storm damage;

 

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the concentration of certain of our businesses with key customers and suppliers, including single-source suppliers of certain key raw materials, such as packaging for our Folgers coffee products, and finished goods, such as K-Cup® pods, and the ability to manage and maintain key relationships;

 

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the loss of significant customers, a substantial reduction in orders from these customers, or the bankruptcy of any such customer;

 

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the timing and amount of capital expenditures and share repurchases;

 

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impairments in the carrying value of goodwill, other intangible assets, or other long-lived assets or changes in useful lives of other intangible assets;

 

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the impact of new or changes to existing governmental laws and regulations and their application;

 

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the impact of future legal, regulatory, or market measures regarding climate change;

 

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the outcome of current and future tax examinations, changes in tax laws, and other tax matters, and their related impact on our tax positions;

 

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foreign currency and interest rate fluctuations;

 

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political or economic disruption;

 

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other factors affecting share prices and capital markets generally; and

 

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risks related to other factors described under “Risk Factors” in other reports and statements we have filed with the Securities and Exchange Commission.

Readers are cautioned not to unduly rely on such forward-looking statements, which speak only as of the date made, when evaluating the information presented in this prospectus. We do not undertake any obligation to update or revise these forward-looking statements to reflect new events or circumstances.

 

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Market and Industry Data

We obtained the market and certain other data used in this prospectus and the information incorporated by reference herein from our own research, surveys or studies conducted by third parties and industry or general publications, and other publicly available sources. Industry and general publications and surveys generally state that they have obtained information from sources believed to be reliable, but do not guarantee the accuracy and completeness of such information. While we believe that each of these studies and publications is reliable, we have not independently verified such data. Similarly, we believe our internal research is reliable, but it has not been verified by any independent sources. As a result, you should be aware that the industry and market data included in this prospectus and the information incorporated by reference herein, and estimates and beliefs based on that data, may not be reliable. We cannot guarantee the accuracy or completeness of any such information.

 

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Risk Factors

You should consider carefully various risks, including those described below and all of the information about risks included in the documents incorporated by reference in this prospectus, including under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended April 30, 2015 along with the information provided elsewhere in this prospectus. These risks could adversely and materially affect our ability to meet our obligations under the exchange notes, and you, under the circumstances described in this section, could lose all or part of your investment in, and fail to achieve the expected return on, the exchange notes.

The risks and uncertainties described below and incorporated by reference into this prospectus are not the only ones that we face. Additional risks and uncertainties, including those generally affecting the industry in which we operate, risks that are unknown to us or that we currently deem immaterial and risks and uncertainties generally applicable to companies that have recently undertaken transactions similar to this offering, may also impair our business, the value of your investment and our ability to pay interest on, and repay or refinance, the exchange notes.

For a discussion of risks relating to our business, see “Risk Factors” in Part 1, Item 1A, in our Annual Report on Form 10-K for the fiscal year ended April 30, 2015, which is incorporated by reference herein. The risk factors described below and the risks relating to our business incorporated by reference herein could materially impact our business, financial condition and results of operations.

Risks Related to The Exchange Notes and This Exchange Offer

The exchange notes and the guarantees will be unsecured and effectively subordinated to our and our subsidiary guarantors’ existing and future secured indebtedness and structurally subordinated to any existing or future indebtedness and other liabilities of the Company’s non-guarantor subsidiaries (including the subsidiaries of the subsidiary guarantors).

The exchange notes and the guarantees will be unsecured, unsubordinated obligations of the Company and each subsidiary guarantor, respectively, ranking equally in right of payment to all of the Company’s or the applicable subsidiary guarantor’s respective existing and future unsecured, unsubordinated indebtedness but will be effectively subordinated to all of the Company’s and its subsidiaries’ existing and future secured indebtedness to the extent of the value of the Company’s assets and the assets of the Company’s subsidiaries securing such indebtedness and will be structurally subordinated to all of the existing and future indebtedness and other liabilities of the Company’s non-guarantor subsidiaries. The indenture governing the exchange notes and the guarantees will permit the Company and its subsidiaries to incur certain secured debt. If the Company or any of the subsidiary guarantors incur any secured debt, the assets and the assets of our subsidiaries securing such debt will be subject to prior claims by secured creditors. In the event of the Company’s or any of the subsidiary guarantor’s bankruptcy, liquidation, reorganization or other winding up, any assets of such entity that secure debt will be available to pay obligations on the exchange notes only after all debt secured by those assets has been repaid in full. Holders of the exchange notes will participate in the remaining assets of the Company or the applicable subsidiary guarantor, respectively, ratably with all of such entity’s unsecured, unsubordinated creditors, including trade creditors.

In addition, if the Company or any subsidiary guarantor incurs any additional debt that ranks equally with the exchange notes or the subsidiary guarantees, respectively, the holders of that debt will be entitled to share ratably with you in any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding-up of the Company or the applicable subsidiary guarantor, and, under the terms of the intercreditor agreement described herein, the holders of certain debt guaranteed by the Company’s subsidiaries will be entitled to share ratably with you in any payments made to any holders of such guaranteed debt upon any event of default in respect of such indebtedness or upon the making of a demand on any such guarantee. This may have the effect of reducing the amount of proceeds paid to you.

 

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Our credit ratings may not reflect all risks of your investment in the exchange notes.

Any credit ratings assigned to the exchange notes will be limited in scope and will not address all material risks relating to an investment in the exchange notes, but rather reflect only the view of each rating agency at the time the rating is issued. An explanation of the significance of a rating may be obtained from the rating agency. There can be no assurance that credit ratings will remain in effect or that a rating will not be lowered, suspended or withdrawn by the rating agency if, in the rating agency’s judgment, circumstances so warrant. Agency credit ratings are not a recommendation to buy, sell or hold any security. Each agency’s rating should be evaluated independently of any other agency’s rating. Actual or anticipated changes or downgrades in our credit ratings, including any announcement that our ratings are under review for a downgrade, could affect the market value of the exchange notes and increase our corporate borrowing costs.

The indenture does not limit the amount of indebtedness that the Company and its subsidiaries may incur.

The indenture under which the exchange notes will be issued does not limit the amount of indebtedness (other than certain secured indebtedness) that the Company and its subsidiaries may incur. Our incurrence of additional debt may have important consequences for you as a holder of the exchange notes, including making it more difficult for the Company and the subsidiary guarantors to satisfy their obligations with respect to the exchange notes and the guarantees, a loss in the market value of your exchange notes and a risk that the credit rating of the exchange notes is lowered or withdrawn.

The terms of the indenture and the exchange notes provide only limited protection against significant corporate events that could adversely impact your investment in the exchange notes.

While the indenture and the exchange notes contain terms intended to provide protection to the holders of the exchange notes upon the occurrence of certain events involving significant corporate transactions, such terms will be limited and may not be sufficient to protect your investment in the exchange notes. The definition of the term “change of control triggering event” (as defined in “Description of the Exchange Notes and Guarantees—Repurchase at the Option of the Holders of Notes upon a Change of Control Triggering Event”) does not cover a variety of transactions (such as acquisitions by us or recapitalizations) that could affect the value of your exchange notes. If we were to enter into a significant corporate transaction that would negatively affect the value of the exchange notes but would not constitute a change of control triggering event, we would not be required to offer to repurchase your exchange notes prior to their maturity.

Furthermore, the indenture for the exchange notes does not, among other things:

 

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require us to maintain any specified financial ratios or specified levels of net worth, revenues, income, cash flow or liquidity;

 

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limit our ability to incur indebtedness (other than certain secured indebtedness);

 

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restrict our non-guarantor subsidiaries’ ability to issue securities or otherwise incur indebtedness or other obligations that would be senior to our equity interests in such subsidiaries and therefore rank effectively senior to the exchange notes with respect to the assets of such subsidiaries;

 

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limit the ability of our subsidiaries to service our other indebtedness;

 

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restrict our ability to repurchase or prepay any of our other securities or other indebtedness; or

 

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restrict our ability to make investments or to repurchase or pay dividends or make other payments in respect of our common stock or other securities ranking junior to the exchange notes.

The Company and its subsidiaries may have very few, if any, properties that are principal properties under the indenture.

The indenture governing the exchange notes includes covenants that will, among other things, limit the Company’s ability and the ability of certain of its subsidiaries to create or permit to exist mortgages on and other

 

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liens and enter into sale and leaseback transactions with respect to certain principal properties. However, as of the date of this prospectus, the Company and its subsidiaries have very few properties that constitute principal properties under the indenture.

The Company’s board of directors has broad discretion to determine that a property is not a principal property and therefore not subject to certain covenants in the indenture.

The indenture governing the exchange notes includes covenants that will, among other things, limit the Company’s ability and the ability of certain of the Company’s subsidiaries to create or permit to exist mortgages on and other liens and enter into sale and leaseback transactions with respect to principal properties. The indenture provides that a principal property means any manufacturing or processing plant or facility, warehouse, office facility or distribution center that is located within the continental United States owned by the Company or certain limited subsidiaries of the Company, having a net book value which, on the date the determination as to whether a property is a principal property is being made, is in excess of 2% of the Company’s consolidated net tangible assets. The Company’s board of directors (or any duly authorized committee of the Company’s board of directors) by resolution may create an exception by declaring that a plant or facility, together with all other plants and facilities previously so declared, is not of material importance to the total business conducted by the Company and the subsidiaries of the Company as an entirety and therefore such property is not a principal property.

The Company may not have sufficient funds to purchase the exchange notes upon a change of control triggering event.

Holders of the exchange notes may require us to purchase their exchange notes upon a change of control triggering event as defined under “Description of the Exchange Notes and Guarantees—Repurchase at the Option of the Holders of Exchange Notes upon a Change of Control Triggering Event.” The Company cannot assure you that the Company will have sufficient financial resources, or will be able to arrange sufficient financing, to pay the purchase price of the exchange notes, particularly if a change of control event triggers a similar repurchase requirement for, or results in the acceleration of, our other then-existing debt. The Company’s failure to purchase the exchange notes as required under the indenture governing the exchange notes would result in an event of default under the indenture, which could have material adverse consequences for us and the holders of the exchange notes. See “Description of the Exchange Notes and Guarantees—Repurchase at the Option of the Holders of Exchange Notes upon a Change of Control Triggering Event.”

The trustee, on behalf of the noteholders, has entered into a joinder to the intercreditor agreement among the trustee under the Company’s senior public notes and the administrative agent under the Company’s revolving credit facility and term loan credit agreement, which may reduce your recovery under the notes.

In connection with the issuance of the old notes, the trustee entered into a joinder to an intercreditor agreement among the administrative agent under the Company’s revolving credit facility, the administrative agent under the Company’s term loan credit agreement and the trustee under the Company’s senior public notes. In addition, it is possible that the holders of debt of the Company or its subsidiaries after the date hereof could be joined to the intercreditor agreement in the future. Under the intercreditor agreement, each party thereto has agreed that any payment of any kind received by such party, on account of any of the guarantees made by the Company’s subsidiaries of the obligations under its revolving credit facility, term loan credit agreement, the indenture with respect to the senior public notes and any other future debt made a party to the intercreditor agreement from any guarantor is to be distributed among such parties, equally and ratably in accordance with the respective amounts of such obligations. See “Description of the Exchange Notes and Guarantees—Guarantees and Intercreditor Agreement.”

While the intercreditor agreement is designed to ensure that the parties thereto share ratably in any payments under guarantees or any set-off amounts, no assurance can be given that the holders of the exchange notes offered hereby will not recover less than they otherwise would have recovered had the notes not been subject to the intercreditor agreement.

 

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If the guarantees are deemed fraudulent conveyances or preferential transfers, a court may subordinate or void them.

If, under relevant federal and state fraudulent transfer and conveyance statutes, in a bankruptcy or reorganization case or a lawsuit by or on behalf of unpaid creditors of our company, a court were to find that, at the time any subsidiary guarantor incurred a guarantee:

 

•

the subsidiary guarantor did so with the intent of hindering, delaying or defrauding current or future creditors, or received less than reasonably equivalent value or fair consideration for incurring the guarantee; and

 

•

the subsidiary guarantor:

 

•

was insolvent or was rendered insolvent by reason of the incurrence of the indebtedness constituting the guarantee;

 

•

was engaged, or about to engage, in a business or transaction for which its assets constituted unreasonably small capital;

 

•

intended to incur, or believed that it would incur, debts beyond its ability to pay as such debts matured; or

 

•

was a defendant in an action for money damages, or had a judgment for money damages entered against it if, in either case, after final judgment the judgment is unsatisfied;

the court could void or subordinate the applicable guarantee to currently existing and future indebtedness of the subsidiary guarantor, and take other action detrimental to the holders of the exchange notes including, under certain circumstances, invalidating the applicable guarantee.

The measure of insolvency for purposes of the foregoing considerations will vary depending upon the law of the jurisdiction that is being applied in the relevant legal proceeding. Generally, however, a subsidiary guarantor would be considered insolvent if, at the time such subsidiary guarantor incurs the indebtedness constituting the guarantee either:

 

•

the sum of its debts, including contingent liabilities, is greater than its assets, at a fair valuation; or

 

•

the present fair saleable value of its assets is less than the amount required to pay the probable liability on its total existing debts and liabilities, including contingent liabilities, as they become absolute and matured.

We cannot give you any assurance as to what standards a court would use to determine whether a subsidiary guarantor was solvent at the relevant time or, regardless what standard was used, whether the applicable guarantee would not be avoided on another of the grounds described above.

The guarantees of the exchange notes by the subsidiary guarantors may be released upon the occurrence of certain events.

The Company’s subsidiaries that provide, or will provide, guarantees of the exchange notes will be automatically and unconditionally released from such guarantees upon the occurrence of certain events, including the following:

 

•

with respect to each series of exchange notes, the Company’s exercise of the defeasance provisions of the indenture described under “Description of the Exchange Notes and Guarantees—Satisfaction, Discharge and Covenant Defeasance” in respect of such series of exchange notes;

 

•

with respect to all series of exchange notes, upon the issuance, sale, exchange, transfer or other disposition (including through merger, consolidation, amalgamation or otherwise) of the capital stock of the applicable subsidiary guarantor (including any issuance, sale, exchange, transfer or other

 

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disposition following which the applicable subsidiary guarantor is no longer a subsidiary) if such issuance, sale, exchange, transfer or other disposition is made in a manner not in violation of the indenture; or

 

•

with respect to all series of exchange notes, upon the substantially simultaneous release or discharge of the guarantee by such subsidiary guarantor of all of our primary senior indebtedness as described under “Description of the Exchange Notes and Guarantees—Subsidiary Guarantees.”

If any such subsidiary guarantee is released, no holder of the exchange notes will have a claim as a creditor against the applicable subsidiary, and the indebtedness and other liabilities of such subsidiary will be structurally senior to the claim of any holders of the exchange notes. See “Description of the Exchange Notes and Guarantees—Subsidiary Guarantees.”

There may be no active trading markets for the exchange notes, and, if one develops, it may not be liquid.

The exchange notes will constitute new issues of securities for which there is no established trading market. We do not intend to apply for listing of the exchange notes on any national securities exchange or for inclusion of the exchange notes on any automated dealer quotation system. Trading markets for the exchange notes may not develop, or if markets for the exchange notes were to develop, the exchange notes may trade at a discount from their original offering prices, depending upon many factors, including prevailing interest rates, the market for similar securities, general economic conditions and our financial condition. There can be no assurance as to the development or liquidity of any market for the exchange notes, the ability of the holders to sell their exchange notes or the prices at which the holders would be able to sell their exchange notes.

The Company and certain of its subsidiaries will have substantial debt obligations that could restrict their operations and prevent the Company and the subsidiary guarantors from fulfilling their respective obligations under the exchange notes and guarantees.

As of April 30, 2015, the Company has approximately $6.2 billion of short-term borrowings and long-term debt.

We may also incur additional indebtedness in the future. Our substantial indebtedness could have adverse consequences, including:

 

•

making it more difficult for us to satisfy our financial obligations, including the Company and the subsidiary guarantors’ obligations with respect to the exchange notes and the guarantees, respectively;

 

•

increasing our vulnerability to adverse economic, regulatory and industry conditions, and placing us at a disadvantage compared to our competitors that are less leveraged;

 

•

limiting our ability to compete and our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;

 

•

limiting our ability to borrow additional funds for working capital, capital expenditures, acquisitions and general corporate or other purposes; and

 

•

exposing us to greater interest rate risk to the extent that the interest rate on the applicable borrowings is variable.

Our debt service obligations will require us to use a portion of our operating cash flow to pay interest and principal on indebtedness instead of for other corporate purposes, including funding future expansion of our business and ongoing capital expenditures, which could impede our growth. If our operating cash flow and capital resources are insufficient to service our debt obligations, including the exchange notes, we may be forced to sell assets, seek additional equity or debt financing or restructure our debt, which could harm our long-term business prospects. Our failure to comply with the terms of any existing or future indebtedness could result in an event of default which, if not cured or waived, could result in the acceleration of all of our debt, including the exchange notes.

 

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To service our indebtedness, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control.

Our ability to make payments on, and to refinance, our indebtedness, including the exchange notes, and to fund planned capital expenditures will depend on our ability to generate cash in the future. This is subject to general economic, financial, competitive, legislative, regulatory and other factors, many of which are beyond our control.

Our business may not generate sufficient cash flow from operations, and we may not have available to us future borrowings in an amount sufficient to enable us to pay our indebtedness, including the exchange notes, or to fund our other liquidity needs. In these circumstances, we may need to refinance all or a portion of our indebtedness, including the exchange notes, on or before maturity. Any refinancing of our debt could be at higher interest rates and may require make-whole payments and compliance with more onerous covenants, which could further restrict our business operations. Our ability to refinance our indebtedness or obtain additional financing will depend on, among other things:

 

•

our financial condition at the time;

 

•

restriction in the agreements governing our indebtedness, including the indenture governing the exchange notes; and

 

•

the condition of the financial markets and the industry in which we operate.

As a result, we may not be able to refinance any of our indebtedness, including the exchange notes, on commercially reasonable terms or at all. Without this financing, we could be forced to sell assets to make up for any shortfall in our payment obligations under unfavorable circumstances. In addition, we may not be able to sell assets quickly enough or for sufficient amounts to enable us to meet our obligations, including our obligations under the exchange notes.

The market prices of the exchange notes may be volatile.

The market prices of the exchange notes will depend on many factors that may vary over time, some of which are beyond our control, including:

 

•

our financial performance;

 

•

the amount of indebtedness we have outstanding;

 

•

market interest rates;

 

•

the market for similar securities;

 

•

competition;

 

•

the size and liquidity of the markets for the exchange notes; and

 

•

general economic conditions.

As a result of these factors, you may only be able to sell your exchange notes at prices below those you believe to be appropriate, including prices below the price you paid for them.

Any decline in our corporate credit ratings or the rating of the exchange notes could adversely affect the value of the exchange notes.

Any decline in the ratings of our corporate credit or the exchange notes or any indications from the rating agencies that their ratings on our corporate credit or the exchange notes are under surveillance or review with possible negative implications could adversely affect the values of the exchange notes. Subsequent to our announcement regarding the BAG Acquisition and the financing thereof, on February 3, 2015, S&P lowered our

 

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corporate credit rating one notch to BBB, with a stable outlook, and Moody’s downgraded our senior unsecured debt rating two notches to Baa2, with a stable outlook. Although we do not expect this to have a significant impact on our liquidity or ability to access additional liquidity in the future, any future ratings downgrade or an indication from the rating agencies that their ratings are under surveillance or review could adversely affect our ability to access capital and the value of the exchange notes.

The Company’s credit ratings may not reflect all risks of your investment in the exchange notes.

Any credit ratings assigned or that will be assigned to the exchange notes are limited in scope, and do not address all material risks relating to an investment in the exchange notes, but rather reflect only the view of each rating agency at the time the rating is issued. An explanation of the significance of such rating may be obtained from such rating agency. There can be no assurance that such credit ratings will remain in effect for any given period of time or that a rating will not be lowered, suspended or withdrawn entirely by the applicable rating agencies, if, in such rating agency’s judgment, circumstances so warrant.

Agency credit ratings are not a recommendation to buy, sell or hold any security. Each agency’s rating should be evaluated independently of any other agency’s rating. Actual or anticipated changes or downgrades in the Company’s or the exchange notes’ credit ratings, including any announcement that its ratings are under further review for a downgrade, could affect the market value of the exchange notes and increase our corporate borrowing costs.

You may not receive the exchange notes in the exchange offer if the exchange offer procedures are not properly followed.

We will issue the exchange notes in exchange for your old notes only if you properly tender the old notes before expiration of the exchange offer. Neither we nor the exchange agent are under any duty to give notification of defects or irregularities with respect to the tenders of the old notes for exchange. If you are the beneficial holder of old notes that are held through your broker, dealer, commercial bank, trust company or other nominee, and you wish to tender such notes in the exchange offer, you should promptly contact the person through whom your old notes are held and instruct that person to tender on your behalf.

Broker-dealers may become subject to the registration and prospectus delivery requirements of the Securities Act and any profit on the resale of the exchange notes may be deemed to be underwriting compensation under the Securities Act.

Any broker-dealer that acquires exchange notes in the exchange offer for its own account in exchange for old notes which it acquired through market-making or other trading activities must acknowledge that it will comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction by that broker-dealer. Any profit on the resale of the exchange notes and any commission or concessions received by a broker-dealer may be deemed to be underwriting compensation under the Securities Act.

If you do not exchange your old notes, they may be difficult to resell.

It may be difficult for you to sell old notes that are not exchanged in the exchange offer, since any old notes not exchanged will continue to be subject to the restrictions on transfer described in the legend on the global security representing the outstanding old notes. These restrictions on transfer exist because we issued the old notes pursuant to an exemption from the registration requirements of the Securities Act and applicable state securities laws. Generally, the old notes that are not exchanged for exchange notes will remain restricted securities. Accordingly, those old notes may not be offered or sold, unless registered under the Securities Act and applicable state securities laws, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws.

 

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Selected Financial Data

The following selected historical consolidated financial information for each of the years ended April 30, 2015, 2014, 2013, 2012 and 2011 and has been derived from our consolidated financial statements. Our audited consolidated financial statements for each of the years ended April 30, 2015, 2014 and 2013, are included in our Form 10-K, filed June 25, 2015, which is incorporated by reference herein.

You should read all of the information presented below with the information under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements, including the notes thereto, included in our Annual Report on Form 10-K for the year ended April 30, 2015, which is incorporated by reference in this prospectus. Results for prior periods may not be indicative of results that may be achieved in future periods.

 

		Years ended April 30,
(In millions, except per share data)		2015				2014				2013				2012				2011
Statements of Income
Net Sales		$	5,692.7			$	5,610.6			$	5,897.7			$	5,525.8			$	4,825.7
Gross profit			1,968.7				2,031.0				2,027.6				1,845.2				1,798.5
Operating income			772.0				919.0				910.4				778.3				784.3
Net income			344.9				565.2				544.2				459.7				479.5
Financial Position
Cash and cash equivalents			125.6				153.5				256.4				229.7				319.8
Total assets			16,882.6				9,060.2				9,024.1				9,106.5				8,322.1
Total debt			6,170.9				2,216.3				2,010.1				2,061.8				1,301.5
Shareholders’ equity			7,086.9				5,029.6				5,148.8				5,163.4				5,292.3
Share Data
Weighted-average shares outstanding			103,691,978				104,332,241				108,827,897				113,263,951				118,165,751
Weighted-average shares outstanding- assuming dilution			103,697,261				104,346,587				108,851,153				113,313,567				118,276,086
Dividends declared per common share		$	2.56			$	2.32			$	2.08			$	1.92			$	1.68
Earnings per Common Share
Net income		$	3.33			$	5.42			$	5.00			$	4.06			$	4.06
Net income-assuming dilution			3.33				5.42				5.00				4.06				4.05

 

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Ratio of Earnings to Fixed Charges

The following table below presents Smucker’s ratio of earnings to fixed charges for the years ended April 30, 2015, 2014, 2013, 2012, and 2011. For purposes of determining the ratio of earnings to fixed charges, earnings consist of income before income taxes plus fixed charges, less capitalized interest. Fixed charges consist of interest expense plus capitalized interest and the portion of rental expense which is representative of interest expense. For purposes of this calculation, management estimates approximately one-third of rent expense is representative of interest expense. The information set forth below should be read together with our financial statements, including the notes thereto, included in our Form 10-K for the year ended April 30, 2015, filed June 25, 2015, which is incorporated by reference into this prospectus.

 

		Year ended April 30,
		2015				2014				2013				2012				2011
Ratio of earnings to fixed charges			5.8x				9.1x				7.8x				7.6x				8.9x

 

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Use of Proceeds

We will not receive cash proceeds from the issuance of the exchange notes under the exchange offer. In consideration for issuing the exchange notes in exchange for old notes as described in this prospectus, we will receive old notes of equal principal amount. The old notes surrendered in exchange for the exchange notes will be retired and cancelled.

 

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Description of the Exchange Notes and Guarantees

The terms of the notes and guarantees will include those set forth in the indenture (as defined below) and those required to be made a part of the indenture by the Trust Indenture Act of 1939, upon registration of the notes. You should carefully read the summary below and the provisions of the indenture that may be important to you before investing in the notes. This summary is not complete and is qualified in its entirety by reference to the indenture. We urge you to read the indenture because the indenture, not this description, defines your rights as holders of the notes.

For the avoidance of doubt, references to “the Company,” “we,” “us” and “our” in this section are only to The J. M. Smucker Company and not The J. M. Smucker Company together with any of its subsidiaries. References to the “guarantors” or “subsidiary guarantors” are only to J.M. Smucker LLC and The Folgers Coffee Company and not J.M. Smucker LLC and The Folgers Coffee Company together with any of their respective subsidiaries.

General

We issued the old notes and will issue $500,000,000 aggregate principal amount of 1.750% senior notes due 2018 (the “2018 Exchange Notes”), $500,000,000 aggregate principal amount of 2.500% senior notes due 2020 (the “2020 Exchange Notes”), $400,000,000 aggregate principal amount of 3.000% senior notes due 2022 (the “2022 Exchange Notes”), $1,000,000,000 aggregate principal amount of 3.500% senior notes due 2025 (the “2025 Exchange Notes”), $650,000,000 aggregate principal amount of 4.250% senior notes due 2035 (the “2035 Exchange Notes”) and $600,000,000 aggregate principal amount of 4.375% senior notes due 2045 (the “2045 Exchange Notes”). We collectively refer to the 2018 Exchange Notes, the 2020 Exchange Notes, the 2022 Exchange Notes, the 2025 Exchange Notes, the 2035 Exchange Notes and the 2045 Exchange Notes as the “notes.”

The notes constitute multiple series of debt securities to be issued under the indenture, as supplemented by the supplemental indenture, each dated March 20, 2015 between us, the subsidiary guarantors and U.S. Bank National Association, as trustee (collectively, the “indenture”).

The notes are not subject to any sinking fund.

The indenture does not limit the amount of debt that we may issue under the indenture, nor the amount of other debt or securities that we or any of our subsidiaries may issue. We may issue debt securities under the indenture from time to time in one or more series, each in an amount authorized prior to issuance. Among other things, we may, without the consent of the existing holders of the notes, issue additional notes of the same series as any series of notes offered hereby having the same terms (other than some or all of the issue price, issue date, initial interest payment date, initial interest accrual date and amount of the first interest payment) so that in either case the existing notes of a series and the new notes of such series form a single series under the indenture. Any such additional notes of such series, together with the notes of such series offered hereby, will constitute a single series of debt securities under the indenture, provided that if the additional notes are not fungible with the notes for United States federal income tax purposes, the additional notes will have a separate CUSIP number.

The notes of each series will be issued in the form of one or more permanent global notes in definitive, fully registered, book-entry form in minimum denominations of $2,000 and additional incremental multiples of $1,000 in excess thereof. The trustee will initially act as paying agent and registrar for the notes. The notes may be presented for registration of transfer and exchange at the offices of the registrar, which will be the trustee’s corporate trust office. We may change any paying agent and registrar without notice to holders of the notes and we may act as a paying agent or registrar.

We may redeem some or all of the notes at any time and from time to time at the redemption price described under “—Optional Redemption.”

 

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Ranking

The notes will be our direct unsecured obligations and will rank equally and pari passu with all of our other unsecured and unsubordinated debt. The notes are our general unsecured, unsubordinated debt securities, but our assets include equity in our subsidiaries. As a result, our ability to make payments on the notes depends in part on our receipt of dividends, loan payments and other funds from our subsidiaries. Certain of our subsidiaries are guarantors under our revolving credit facility, term loan credit agreement and our outstanding senior public notes, and such subsidiaries will also guarantee the notes on the issue date. In addition, if any of our subsidiaries becomes insolvent, the direct creditors of that subsidiary will have a prior claim on its assets. Our rights and the rights of our creditors, including your rights as an owner of notes, will be subject to that prior claim, unless we or you are also a direct creditor of that subsidiary. This subordination of creditors of a parent company to prior claims of creditors of its subsidiaries is commonly referred to as structural subordination. In addition, the notes will effectively rank junior in right of payment to any of our secured indebtedness to the extent of the assets securing such indebtedness.

The notes will be our unsecured, unsubordinated obligations and will:

 

•

rank equally in right of payment to all of our existing and future senior unsecured and unsubordinated indebtedness;

 

•

rank senior in right of payment to all of our existing and future subordinated indebtedness that is subordinated in right of payment to the notes;

 

•

be effectively subordinated to all of our and our subsidiaries’ existing and future secured indebtedness to the extent of the value of our assets and the assets of our subsidiaries securing such indebtedness; and

 

•

be structurally subordinated to all of the existing and future indebtedness and other liabilities of our non-guarantor subsidiaries.

Interest Provisions Relating to the Notes

Each series of notes will mature and bear interest, with interest payment dates and record dates, as provided in the following table:

 

Series

Maturity

Interest Rate

Interest Payment Dates

Record Dates

2018 notes

March 15, 2018

1.750

%

March 15 and September 15

March 1 and September 1

2020 notes

March 15, 2020

2.500

%

March 15 and September 15

March 1 and September 1

2022 notes

March 15, 2022

3.000

%

March 15 and September 15

March 1 and September 1

2025 notes

March 15, 2025

3.500

%

March 15 and September 15

March 1 and September 1

2035 notes

March 15, 2035

4.250

%

March 15 and September 15

March 1 and September 1

2045 notes

March 15, 2045

4.375

%

March 15 and September 15

March 1 and September 1

We will pay interest on each series of the notes from and including March 20, 2015 or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on the dates set forth above, commencing September 15, 2015, until the principal is paid or made available for payment. Interest will be paid to the persons in whose names the notes are registered at the close of business on the record date (whether or not a business day), as the case may be, immediately preceding the relevant interest payment date. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.

In the event that any date on which interest is payable on the note is not a business day, then payment of interest payable on such date will be made on the next succeeding day that is a business day (and without any interest in respect of any such delay) with the same force and effect as if made on such interest payment date. For the notes, “business day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the place of payment are authorized or obligated by law or executive order to close.

 

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Subsidiary Guarantees

The notes will initially be fully and unconditionally guaranteed, jointly and severally on an unsecured and unsubordinated basis, by J.M. Smucker LLC and The Folgers Coffee Company. The guarantee of each subsidiary guarantor will be an unsecured, unsubordinated obligation of that subsidiary guarantor and will:

 

•

rank equally in right of payment to all existing and future senior unsecured and unsubordinated indebtedness of that guarantor;

 

•

rank senior in right of payment to all existing and future subordinated indebtedness that is subordinated in right of payment to the guarantee of that guarantor;

 

•

be effectively subordinated to all existing and future secured indebtedness of that guarantor to the extent of the value of the assets securing such indebtedness; and

 

•

be structurally subordinated to all of the existing and future indebtedness and other liabilities of our non-guarantor subsidiaries.

Each subsidiary guarantor will jointly and severally guarantee our obligations under the notes. The noteholders ability to collect on the subsidiary guarantees is limited by the sharing provisions and other applicable terms of the intercreditor agreement among our outstanding debtholders as described under “—Guarantees and Intercreditor Agreement.” The obligations of each subsidiary guarantor under its guarantee will be limited as necessary to prevent such guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law. See “Risk Factors—Risks Relating to the Exchange Notes and this Exchange Offer—If the guarantees are deemed fraudulent conveyances or preferential transfers, a court may subordinate or void them.”

Each subsidiary guarantee will be a continuing guarantee and will inure to the benefit of and be enforceable by the trustee, the holders of the notes and their successors, transferees and assigns.

A subsidiary guarantor will be automatically and unconditionally released from its obligations under the indenture:

 

(a)

with respect to each series of notes, as applicable, if we exercise our legal defeasance option or our covenant defeasance option as described under “—Satisfaction, Discharge and Covenant Defeasance” with respect to such series of notes or if our obligations under the indenture are discharged in accordance with the terms of the indenture in respect of such series of notes;

 

(b)

with respect to all series of notes, upon the issuance, sale, exchange, transfer or other disposition (including through merger, consolidation, amalgamation or otherwise) of the capital stock of the applicable subsidiary guarantor (including any issuance, sale, exchange, transfer or other disposition following which the applicable subsidiary guarantor is no longer a subsidiary) if such issuance, sale, exchange, transfer or other disposition is made in a manner not in violation of the indenture; or

 

(c)

with respect to all series of notes, upon the substantially simultaneous release or discharge of the guarantee by such subsidiary guarantor of all of our Primary Senior Indebtedness other than through discharges as a result of payment by such guarantor on such guarantees (but including any release or discharge that would be conditioned only on the release or discharge of the guarantee hereunder or of the guarantee of other Primary Senior Indebtedness).

“Primary Senior Indebtedness” means (a) indebtedness under our revolving credit facility, term loan credit agreement and our senior public notes and (b) any future credit, loan or borrowing facility or any indenture, note purchase agreement or similar agreement by us or any of our subsidiaries providing, in each case for the incurrence of indebtedness for money borrowed in a principal amount equal to or greater than $120 million.

At our request, and upon delivery to the trustee of an officers’ certificate and an opinion of counsel, each stating that all conditions precedent under the indenture relating to such release have been complied with, the trustee will execute any documents reasonably requested by us evidencing such release.

 

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If at any time after the issuance of the notes, including following any release of a subsidiary guarantor from its guarantee under the indenture, a domestic subsidiary of ours (including any future subsidiary, but excluding any excluded subsidiary) guarantees any existing or future Primary Senior Indebtedness of the Company or any of its subsidiaries, we will cause such subsidiary to guarantee the notes by promptly executing and delivering a supplemental indenture in accordance with the indenture. For the notes, “excluded subsidiary” means any domestic subsidiary (i) that owns no material assets (directly or through its subsidiaries) other than equity interests of one or more foreign subsidiaries that are “controlled foreign corporations” within the meaning of Section 957 of the Code (“CFCs”) or (ii) that is a direct or indirect subsidiary of a foreign subsidiary that is a CFC. The term “foreign subsidiary” means a subsidiary not organized or existing under the laws of the United States of America or any state thereof or the District of Columbia. The term “domestic subsidiary” means a subsidiary that is not a foreign subsidiary.

The notes will be structurally subordinated to the indebtedness and other liabilities of our non-guarantor subsidiaries. As of April 30, 2015, the indebtedness and other liabilities of our non-guarantor subsidiaries were approximately $2,936 million. The assets of our non-guarantor subsidiaries (excluding the effect of intercompany transactions and investments in subsidiaries and the goodwill of our non-guarantor subsidiaries) represented approximately 44% of our total consolidated assets as of January 31, 2015 and approximately 52% of our total consolidated assets as of April 30, 2015.

Guarantees and Intercreditor Agreement

Our senior indebtedness under our revolving credit facility, term loan credit agreement and outstanding senior public notes is guaranteed by J.M. Smucker LLC and The Folgers Coffee Company. The administrative agents, holders or trustees, as applicable, under our revolving credit facility, term loan credit agreement and senior public notes are parties to an intercreditor agreement, which has been joined by the trustee of the old notes and the notes offered hereby, on behalf of the holders of the old notes and the notes offered hereby, in connection with the issuance of the old notes on March 20, 2015, as contemplated by the terms of the intercreditor agreement. Holders (or their agents) of Primary Senior Indebtedness incurred in the future may also become parties to the intercreditor agreement pursuant to the terms thereof.

Under the terms of the intercreditor agreement among the administrative agents under our revolving credit facility and our term loan credit agreement, the trustee on behalf of the holders of the senior public notes, the trustee on behalf of the holders of the old notes and the notes offered hereby, and any holders of Primary Senior Indebtedness entered into by us or our subsidiaries which are subsequently joined to the intercreditor agreement (collectively, the “Lenders”), each Lender has agreed that any payment of any kind (including, without limitation, any payment resulting from a set-off of a deposit account or any payment or distribution made in the context of any insolvency or reorganization proceeding) received by such Lender on account of any of the guarantees made by our subsidiaries of our obligations under the credit facilities, the indenture with respect to the senior public notes, the old notes or the notes offered hereby and any other future Primary Senior Indebtedness made a party to the intercreditor agreement (collectively, the “Guaranteed Obligations”) from any guarantor (such payment, a “Shared Payment”) is to be distributed among the Lenders, equally and ratably in accordance with the respective amounts of the Guaranteed Obligations. In the event that a Lender receives a Shared Payment and in certain other circumstances described in the intercreditor agreement, the applicable agent on behalf of a majority of the lenders under the applicable credit facility, the trustee on behalf of a majority in aggregate principal amount of the senior public notes and the trustee on behalf of a majority in aggregate principal amount of the old notes or the notes offered hereby and a majority of the lenders (or, to the extent applicable, the agent on behalf of the holders of a majority in aggregate principal amount of) any debt joined to the intercreditor agreement, collectively, will appoint an agent to distribute Shared Payments to the Lenders.

Each Lender has agreed to provide each other Lender written notice of any (i) event of default arising under the revolving credit facility, term loan credit agreement, credit agreements, indentures, or other debt agreements, as

 

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applicable, to which such Lender is a party, and (ii) receipt by such Lender, including the trustee on behalf of the holders of the old notes and the notes offered hereby, of a Shared Payment, promptly within two business days of obtaining knowledge of such event of default or receiving a Shared Payment.

Each Lender has also agreed not to (a) take or receive a lien upon any of our or any subsidiary guarantor’s property or assets as security for the payment of the obligations owing to such Lender, including the trustee on behalf of the holders of the old notes and the notes offered hereby, that are subject to the intercreditor agreement without also securing the other Lenders on a pari passu basis and subject to acceptable intercreditor arrangements (as further described in the intercreditor agreement), or (b) except for our or any subsidiary guarantor’s obligations, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the obligations owing to such Lender, including the trustee on behalf of the holders of the old notes and the notes offered hereby, that are subject to the intercreditor agreement.

We will indemnify the trustee against any costs, expenses or liabilities incurred by the trustee under the provisions of the intercreditor agreement. The holders of the old notes and the notes offered hereby will indemnify the trustee for those liabilities incurred by the trustee as a result of Shared Payments distributed pursuant to the intercreditor agreement that are subsequently invalidated (whether by court order, settlement or otherwise).

Optional Redemption

The notes will be redeemable as a whole or in part, at our option, at any time and from time to time, at a redemption price equal to the greater of

 

(i)

100% of the principal amount of such notes to be redeemed; and

 

(ii)

the sum (a) of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (not including interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus (b) 15 basis points in the case of the 2018 Exchange Notes, 15 basis points in the case of the 2020 Exchange Notes, 20 basis points in the case of the 2022 Exchange Notes, 25 basis points in the case of the 2025 Exchange Notes, 25 basis points in the case of the 2035 Exchange Notes and 30 basis points in the case of the 2045 Exchange Notes;

plus in each case accrued and unpaid interest on the notes to be redeemed to, but excluding, the date of redemption.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such notes.

“Comparable Treasury Price” means, with respect to any redemption date for the notes, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by us.

“Primary Treasury Dealer” has the meaning set forth in the definition of “Reference Treasury Dealer.”

“Reference Treasury Dealer” means (1) each of J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors; provided, however, that if any of the foregoing ceases to be a primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”), we will substitute therefor another Primary Treasury Dealer and (2) any other Primary Treasury Dealers selected by us.

 

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“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such redemption date.

“Treasury Rate” means, with respect to any redemption date for the notes, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated yield to maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

Notice of any redemption will be mailed or delivered electronically if held by DTC in accordance with DTC’s customary procedures at least 30 days but not more than 60 days before the redemption date to each registered holder of notes to be redeemed. If fewer than all of the notes are to be redeemed, the particular notes to be redeemed will be selected by the trustee by such method as the trustee will deem fair and appropriate. If any note is to be redeemed only in part, the notice of redemption that relates to such note will state the principal amount thereof to be redeemed. A new note in principal amount equal to and in exchange for the unredeemed portion of the principal of the note surrendered will be issued in the name of the holder of the note upon surrender of the original note.

Unless we default in payment of the redemption price, on and after the redemption date interest will cease to accrue on the notes or portions thereof called for redemption.

Events of Default

Each of the following will be an event of default with respect to a series of the notes (“Events of Default”):

 

(1)

default in the payment of any interest on any note of such series when it becomes due and payable, and continuance of such default for a period of 30 days or more;

 

(2)

default in the payment of the principal amount of (or premium, if any, on) any note of such series as and when the same shall become due, either at maturity, upon redemption, by declaration, or otherwise;

 

(3)

default in the payment of any sinking or purchase fund or analogous obligation when the same becomes due by the terms of the notes of such series, and continuance of such default for a period of 30 days or more;

 

(4)

default in our or any guarantor’s performance, or breach by us or any guarantor, of any covenant in the indenture applicable to that series (other than defaults specified elsewhere in the Events of Default and the default or breach continues for a period of 90 days or more after we receive written notice from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding notes of the series;

 

(5)

default under any agreement or instrument evidencing, or under which we or any restricted subsidiary has outstanding at the time, any indebtedness for money borrowed by us or a restricted subsidiary, which default or defaults, individually or in the aggregate, have resulted in the acceleration of any portion of such indebtedness having an aggregate principal amount in excess of $150 million;

 

(6)

any guarantee with respect to the notes of such series ceases for any reason to be, or is asserted by us or the guarantor not to be, in full force and effect and enforceable in accordance with its terms except to the extent contemplated by the indenture and any such guarantee; or

 

(7)

certain events of bankruptcy, insolvency, reorganization or similar proceedings with respect to us have occurred.

 

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If an Event of Default (other than an Event of Default specified in clause (7) with respect to us) under the indenture occurs with respect to the notes of any series and is continuing, then the trustee or the holders of at least 25% in aggregate principal amount of the outstanding notes of that series may by written notice declare the principal amount of the outstanding notes of that series (or such lesser amount as may be provided in the terms of the securities), together with all accrued and unpaid interest due and payable immediately.

If an Event of Default under the indenture specified in clause (7) with respect to us occurs and is continuing, then the entire principal amount of the outstanding notes (or such lesser amount as may be provided in the terms of the securities), together with all accrued and unpaid interest, will automatically become due and payable immediately without any declaration or other act on the part of the trustee or any holder.

After a declaration of acceleration, the holders of a majority in aggregate principal amount of outstanding notes of any series may rescind this accelerated payment requirement if all existing Events of Default, except for nonpayment of the principal and interest on the notes of that series that has become due solely as a result of the accelerated payment requirement, have been cured or waived, if all sums paid or advanced by the trustee and the reasonable compensation, expenses, disbursements and advances of the trustee, its agents and counsel have been paid and if the rescission of acceleration would not conflict with any judgment or decree. The holders of a majority in aggregate principal amount of the outstanding notes of any series also have the right to waive past defaults, except a default theretofore not cured in paying principal or interest on any outstanding note, or in respect of a covenant or a provision that cannot be modified or amended without the consent of all holders of the notes of that series.

Holders of at least 25% in aggregate principal amount of the outstanding notes of a series may seek to institute a proceeding only after they have notified the trustee of a continuing Event of Default in writing and made a written request, and offered reasonable indemnity, to the trustee to institute a proceeding and the trustee has failed to do so within 60 days after it received this notice. In addition, within this 60-day period the trustee must not have received directions inconsistent with this written request by holders of a majority in aggregate principal amount of the outstanding notes of that series. These limitations do not apply, however, to a suit instituted by a holder of a note for the enforcement of the payment of principal, interest or any premium on or after the due dates for such payment.

During the existence of an Event of Default, the trustee is required to exercise the rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would under the circumstances in the conduct of that person’s own affairs. If an Event of Default has occurred and is continuing, the trustee is not under any obligation to exercise any of its rights or powers at the request or direction of any of the holders unless the holders have offered to the trustee reasonable security or indemnity. Subject to certain provisions, the holders of a majority in aggregate principal amount of the outstanding notes of any series have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust, or power conferred on the trustee.

The trustee will, within 90 days after receiving notice of the occurrence of any default, give notice of the default to the holders of the notes of that series, unless the default was already cured or waived. Unless there is a default in paying principal, interest or any premium when due, the trustee can withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the holders.

Modification and Waiver

The indenture may be amended or modified without the consent of any holder of notes in order to:

 

•

evidence a succession to the trustee;

 

•

cure ambiguities, defects or inconsistencies;

 

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•

provide for the assumption of our obligations (or those of any subsidiary guarantor) in the case of a merger or consolidation or transfer of all or substantially all of our assets (or those of a subsidiary guarantor) permitted under the indenture;

 

•

make any change that would provide any additional rights or benefits to the holders of the notes of a series;

 

•

evidence the addition of any subsidiary as a guarantor or the release of any guarantor and its obligations;

 

•

secure the notes of a series;

 

•

establish the form or forms of notes of any series;

 

•

provide for the issuance of any series of notes and to set the terms thereof;

 

•

add to the rights of the holders of any series of notes;

 

•

add any additional events of default in respect of the notes of any or all series;

 

•

maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended; or

 

•

make any change that does not adversely affect in any material respect the interests of any holder.

Other amendments and modifications of the indenture or the notes issued may be made with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding notes of each series affected by the amendment or modification. However, no modification or amendment may, without the consent of the holder of each outstanding note affected:

 

•

reduce the principal amount or any interest or premium payable thereon, or extend the fixed maturity or the stated payment date of any payment of principal, premium or interest, of the notes (in each case other than in connection with any amendments to redemption provisions);

 

•

alter or waive the redemption provisions of the notes;

 

•

if a change of control triggering event occurs, limit a holder’s right, if any, to repayment of notes at the holder’s option in connection therewith;

 

•

change the method of computing the amount of principal of any note or any interest payable thereon on any date;

 

•

change the place of payment or currency in which principal, any premium or interest is paid;

 

•

reduce the percentage in principal amount outstanding of notes of any series which must consent to an amendment, supplement or waiver or consent to take any action;

 

•

impair the right to institute suit for the enforcement of any payment on the notes;

 

•

waive a payment default with respect to the notes;

 

•

reduce the interest rate or extend the time for payment of interest on the notes;

 

•

modify any of the foregoing requirements contained in the indenture or those related to waivers of default or compliance with covenants contained in the indenture except to increase the percentage required for any such waiver or to provide that other provisions of the indenture cannot be modified or waived without the consent of the holder of each note affected thereby;

 

•

except for releases in compliance with the terms of the indenture, amend or modify the terms of any of the guarantee provisions of the indenture in a manner adverse to the holders; or

 

•

release any guarantor from any of its obligations under its guarantee or the indenture, except in compliance with the terms of the indenture.

 

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Under the indenture, the holders of at least a majority of the aggregate principal amount of the outstanding notes of each series of notes affected by a particular covenant or condition, acting as one class, may, on behalf of all holders of such series of notes, waive compliance by us with any covenant or condition contained in the indenture unless we specify that such covenant or condition cannot be so waived at the time we establish such series.

In addition, under the indenture, the holders of a majority in aggregate principal amount of the outstanding notes of any series of notes may, on behalf of all holders of that series, waive any past default under the indenture, except:

 

•

a default in the payment of the principal of any sinking or purchase fund or any analogous obligation or any premium or interest on any notes of that series; or

 

•

a default under any provision of the indenture which itself cannot be modified or amended without the consent of the holders of each outstanding note of that series.

Repurchase at the Option of the Holders of Notes upon a Change of Control Triggering Event

If a change of control triggering event occurs, unless we have exercised our right to redeem the notes in whole as described above, holders of notes will have the right to require us to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of their notes pursuant to the offer described below (the “change of control offer”) on the terms set forth in the notes. In the change of control offer, we will offer payment in cash equal to 101% of the aggregate principal amount of notes repurchased plus accrued and unpaid interest, if any, on the notes repurchased to but not including the date of purchase (the “change of control payment”).

Within 30 days following any change of control triggering event, or, at our option, prior to the date of consummation of any change of control, but after public announcement of the pending change of control, we will mail a notice to holders of notes, with a copy to the trustee, describing the transaction or transactions that constitute or may constitute the change of control and offering to repurchase the notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “change of control payment date”), pursuant to the procedures required by the notes and described in such notice. The repurchase obligation with respect to any notice mailed prior to the consummation of the change of control will be conditioned on the change of control triggering event occurring on or prior to the payment date specified in the notice.

We will comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the notes as a result of a change of control triggering event. To the extent that the provisions of any securities laws or regulations conflict with the change of control provisions of the notes, we will comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations under the change of control provisions of the notes by virtue of such conflicts.

On the change of control payment date, we will, to the extent lawful:

 

•

accept or cause a third party to accept for payment all notes or portions of notes properly tendered pursuant to the change of control offer;

 

•

deposit with the paying agent an amount equal to the change of control payment in respect of all notes or portions of notes properly tendered; and

 

•

deliver or cause to be delivered to the trustee the notes properly accepted together with an officer’s certificate stating the aggregate principal amount of notes or portions of notes being repurchased and that all conditions precedent to the change of control offer and to the repurchase by us of notes pursuant to the change of control offer have been complied with.

 

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The paying agent will promptly pay to each holder of notes properly tendered the purchase price for the notes, and the trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each holder a new note equal in principal amount to any unpurchased portion of any notes surrendered; provided that each new note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.

We will not be required to make a change of control offer upon a change of control triggering event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by us and such third party purchases all notes properly tendered and not withdrawn under its offer.

For purposes of the foregoing discussion of a repurchase at the option of holders, the following definitions are applicable:

“below investment grade rating event” means the rating on the notes is lowered by each of the rating agencies and the notes are rated below an investment grade rating by each of the rating agencies on any date during the period (the “trigger period”) commencing upon the first public announcement by us of any change of control (or pending change of control), and ending 60 days following consummation of such change of control (which trigger period will be extended following consummation of a change of control for so long as either of the rating agencies has publicly announced that it is considering the possible downgrade of the notes, and a downgrade by each of the rating agencies that has made such an announcement would result in a below investment grade rating event).

“change of control” means the occurrence of any of the following: (1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one transaction or a series of related transactions, of all or substantially all of the assets of us and our subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than us or one of our subsidiaries; (2) the adoption of a plan relating to our liquidation or dissolution; (3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of our outstanding voting stock, measured by voting power rather than number of shares; provided that this clause (3) will not apply to acquisitions of capital stock by the Smucker Family so long as the acquisition by the Smucker Family of such capital stock will not result, directly or indirectly, in a “going private transaction” within the meaning of the Exchange Act; (4) we consolidate with, or merge with or into, any person, or any person consolidates with, or merges with or into us, in any such event pursuant to a transaction in which any of our outstanding voting stock or the voting stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of our voting stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the voting stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction; or (5) the first day on which a majority of the members of our board of directors cease to be continuing directors. Notwithstanding the foregoing, a transaction will not be deemed to involve a change of control under clause (3) or (4) above if (i) we become a direct or indirect wholly owned subsidiary of a holding company or other person and (ii) (A) the direct or indirect holders of the voting stock of such holding company or other person immediately following that transaction are substantially the same as the holders of our voting stock immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company or other person.

“change of control triggering event” means the occurrence of both a change of control and a below investment grade rating event.

“continuing directors” means, as of any date of determination, any member of our board of directors who (1) was a member of such board of directors on the date the notes were issued or (2) was nominated for election, elected or appointed to such board of directors with the approval of a majority of the continuing directors who were

 

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members of such board of directors at the time of such nomination, election or appointment (either by a specific vote or by approval of our proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

“investment grade rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by us.

“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation and its successors.

“rating agencies” means each of Moody’s and S&P; provided that if either Moody’s or S&P ceases to rate the notes or fails to make a rating of the notes publicly available for reasons outside of our control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by us as a replacement agency for Moody’s or S&P, or either of them, as the case may be.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

“Smucker Family” means any of (i) Timothy P. Smucker, Richard K. Smucker, Susan Smucker Wagstaff and Marcella Smucker Clark, (ii) any member of the immediate family, heirs, legatees, descendants and blood relatives to the fifth degree of consanguinity of any individual mentioned in clause (i) and (iii) any trust (or other entity created for estate planning purposes) established for the benefit of any one or more of the individuals mentioned in clause (i), the members of their immediate families and the lineal descendants of any of them (and the trustees of any such trust).

“voting stock” of any specified person means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

The definition of change of control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of “all or substantially all” of our assets and those of our subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of this phrase under applicable law. Accordingly, the ability of a holder of notes to require us to purchase such holder’s notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of our assets and those of our subsidiaries taken as a whole to another “person” may be uncertain.

Reports by the Company

So long as any notes are outstanding, we shall file with the trustee, within 15 days after filing with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that we may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. We will be deemed to have complied with the previous sentence to the extent that such information, documents and reports are filed with the Commission via EDGAR (or any successor electronic delivery procedure) or posted on our website; provided, however, that the trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR system (or its successor).

Delivery of such reports, information and documents to the trustee is for informational purposes only and the trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including our compliance with any of our covenants hereunder (as to which the trustee is entitled to rely exclusively on officer’s certificates).

 

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Covenants

Limitation of Liens Applicable to Notes

The indenture provides that with respect to the notes, we will not, and will not permit any of our restricted subsidiaries to, issue, assume or guarantee any indebtedness for borrowed money secured by a lien on any principal property owned by us or any restricted subsidiary or upon any shares of stock or indebtedness of any restricted subsidiary owned by us or any restricted subsidiary (whether such principal property, share of stock or indebtedness are now owned or hereafter acquired) unless we or that first-mentioned restricted subsidiary secures or causes such restricted subsidiary to secure the notes (and any of our or such restricted subsidiary’s other debt, at our option or such restricted subsidiary’s option, as the case may be, not subordinate to the notes), equally and ratably with (or, at our option, prior to) such secured debt, for as long as such secured debt will be so secured.

These restrictions will not, however, apply to debt secured by:

 

•

liens on property, shares of stock or indebtedness (herein referred to as “property”) of any corporation or other entity existing at the time such corporation or other entity becomes a restricted subsidiary;

 

•

liens on property existing at the time of acquisition of such property by us or a restricted subsidiary or on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with us or a restricted subsidiary, provided that such liens do not attach to or affect property theretofore owned by us or such restricted subsidiary;

 

•

liens to secure the payment of all or any part of the purchase price of the property subject to such liens, or liens consisting of the interests of lessors in property under capital leases of such property;

 

•

liens on property of a restricted subsidiary securing debt owed to us or to another restricted subsidiary;

 

•

with respect to each series of notes, liens existing on the first date on which the notes of such series are authenticated by the trustee;

 

•

liens in favor of the United States, any State, any foreign country or any department, agency or instrumentality or political subdivision of any such jurisdiction, or in favor of holders of securities issued by any of the foregoing, to secure partial, progress, advance or other payments pursuant to any contract or statute (including specifically liens to secure industrial revenue bonds and similar debt);

 

•

liens on property (and improvements thereto) to secure any debt incurred for the purpose of financing all or part of the purchase price or cost of construction, development or substantial repair, alteration or improvement of such property if such debt is incurred prior to, at the time of or within one year after (or pursuant to a commitment obtained within one year after) the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property;

 

•

liens arising in connection with contracts with or made at the request of U.S. governmental entities;

 

•

mechanics’, materialmen’s, carriers, growers’, producers’, farmers’ and similar liens arising in the ordinary course of business (including construction of facilities) in respect of obligations not due or being contested in good faith;

 

•

liens arising from deposits with or the giving of any form of security to any governmental authority required by law or governmental regulation as a condition to the transaction of business or exercise of any privilege, franchise or license;

 

•

liens for taxes, assessments or governmental charges or levies which, if delinquent, are being contested in good faith;

 

•

liens (including judgment liens) arising from legal proceedings;

 

•

liens incurred or deposits made in the ordinary course of business in connection with or to secure the performance of bids, tenders, leases or trade contracts (other than for the payment of debt) or to secure surety, appeal, indemnity, performance or other similar bonds;

 

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•

liens of any depositary bank consisting of statutory, common law or contractual rights of setoff or recoupment with respect to any deposit account; or

 

•

any extension, renewal or replacement of these categories of liens, so long as such lien does not extend to any other property and the amount of debt secured is not increased (other than by the amount equal to any costs and expenses incurred in connection with any extension, renewal or replacement).

However, if the total amount of our debt and the debt of our restricted subsidiaries secured by liens that would otherwise be subject to the foregoing restriction and any attributable debt (as defined below and not including any debt permitted to be secured as per above) deemed to be debt subject to the provisions of this paragraph would not exceed 15% of our consolidated net tangible assets (as defined below) this requirement does not apply.

Sale and Leaseback

We will not enter, nor will we permit any restricted subsidiary to enter, into a sale and leaseback transaction of any principal property more than 120 days after our or such restricted subsidiary’s acquisition or completion of construction and commencement of full operation of such principal property (except for temporary leases for a term of not more than three years and except for leases between us and a restricted subsidiary or between restricted subsidiaries) unless:

 

•

we or such restricted subsidiary would be entitled to incur, assume or guarantee debt secured by such principal property at least equal in amount to the attributable debt in respect of such transaction without equally and ratably securing the notes (provided that such attributable debt will thereupon be deemed to be debt subject to the provisions of the preceding paragraph); or

 

•

an amount in cash equal to such attributable debt is applied, within 120 days of the effective date of such transaction, to the non-mandatory retirement of our long-term unsubordinated debt or long-term unsubordinated debt of a restricted subsidiary.

Definitions. The following are definitions of some terms used in the above description. We refer you to the indenture for a full description of all of these terms, as well as any other terms used herein for which no definition is provided.

The term “attributable debt” means the present value (discounted at the inherent interest rate as determined by us in good faith, compounded semi-annually) of the obligation of a lessee for rental payments during the remaining term of any lease (including any period for which such lease has been extended).

The term “consolidated net tangible assets” means the total assets appearing on our latest consolidated balance sheet contained in our most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, filed with the SEC, excluding the sum of (1) all current liabilities and (2) all goodwill, patents, copyrights, trademarks and other like intangibles.

The term “debt” means any indebtedness for money borrowed.

The term “subsidiary” means any corporation of which at least a majority of the outstanding stock having voting power under ordinary circumstances to elect a majority of the board of directors of that corporation is at the time owned by us or in conjunction with or by one or more subsidiaries, and any other entity of which at least a majority of the voting interest under ordinary circumstances is at the time owned or controlled solely by us or in conjunction with or by one or more subsidiaries. The term “restricted subsidiary” means each guarantor and any other subsidiary:

 

•

substantially all of the property of which is located within the continental United States;

 

•

that owns a principal property; and

 

•

in which our investment exceeds 5% of our consolidated assets as shown on our latest quarterly financial statements.

 

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However, the term “restricted subsidiary” shall not include any subsidiary which is principally engaged in leasing or which is principally engaged in financing our operations.

The term “principal property” means any manufacturing or processing plant or facility, warehouse, office facility or distribution center that is located within the continental United States, having a net book value which, on the date the determination as to whether a property is a principal property is being made, is in excess of 2% of our consolidated net tangible assets. Our board of directors (or any duly authorized committee of our board of directors) by resolution may create an exception by declaring that a plant or facility, is not of material importance to the total business conducted by us and our subsidiaries as an entirety.

Consolidation, Merger or Sale of Assets

The indenture provides that we or any guarantor may consolidate with or merge into any other person, or convey or transfer all or substantially all of our properties and assets or the properties and assets of such guarantor, as the case may be, to, any person (including, without limitation, a limited partnership or a limited liability company); provided that:

 

•

we or such guarantor, as the case may be, will be the surviving person or, if not, that the successor will be a person that is organized and existing under the laws of any state of the United States or the District of Columbia and will expressly assume by a supplemental indenture our or such guarantor’s, as the case may be, obligations under the indenture and the notes or guarantees of the notes, as the case may be;

 

•

immediately after giving effect to such transaction, no event of default or other event which, after notice or lapse of time, or both, would become an event of default, will have happened and be continuing; and

 

•

we will have delivered to the trustee an opinion of counsel and an officers’ certificate, stating that such consolidation, merger, conveyance or transfer and any assumption complies with the indenture.

In the event of any such consolidation, merger, conveyance, transfer or lease, any such successor or acquiring entity will succeed to and be substituted for us or any guarantor, as the case may be, as obligor on the notes or guarantees of the notes with the same effect as if it had been named in the indenture as obligor. As a result, we or such guarantor, as the case may be, will be released from all liabilities and obligations under the indenture, the notes or the guarantees of the notes. For the purposes of the notes, “person” means any individual, corporation, partnership, limited liability company, business trust, association, joint-stock company, joint venture, trust, incorporated or unincorporated organization or other entity, or government or any agency or political subdivision thereof.

There are no other restrictive covenants contained in the indenture. Except as described herein, the indenture does not contain any provision that will restrict us or any guarantor, as the case may be, from entering into one or more additional indentures providing for the issuance of debt securities or warrants, or from incurring, assuming, or becoming liable with respect to any indebtedness or other obligation, whether secured or unsecured, or from paying dividends or making other distributions on our capital stock, or from purchasing or redeeming our capital stock. The indenture does not contain any financial ratios or specified levels of net worth or liquidity to which we or such guarantor, as the case may be, must adhere. In addition, except as described herein, the indenture does not contain any provision that would require us to repurchase, redeem, or otherwise modify the terms of any of the notes upon a change in control or other event involving us that may adversely affect our creditworthiness or the value of the notes.

 

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Satisfaction, Discharge and Covenant Defeasance

We may terminate our obligations under the indenture with respect to the notes of any series issued thereunder, when:

 

•

either:

 

•

all notes of such series issued that have been authenticated and delivered have been canceled or delivered to the trustee for cancellation; or

 

•

all the notes of such series issued that have not been canceled or delivered to the trustee for cancellation have become due and payable, will become due and payable within one year, or are to be called for redemption within one year and we have made arrangements satisfactory to the trustee for the giving of notice of redemption by such trustee in our name and at our expense, and in each case, we have irrevocably deposited or caused to be deposited with the trustee sufficient funds to pay and discharge the entire indebtedness on such series of the notes with respect to principal, interest and any premium; provided that in connection with any discharge relating to any redemption that requires the payment of a premium based on the U.S. treasury rate or other floating rate, the amount deposited shall be sufficient for purposes of the indenture to the extent that an amount is deposited with the trustee equal to the premium calculated as of the date of the notice of redemption, with any deficit as of the redemption date only required to be deposited with the trustee on or prior to the redemption date; and

 

•

we have paid or caused to be paid all other sums then due and payable under the indenture; and

 

•

we have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been complied with.

We may elect to have our obligations under the indenture discharged with respect to the outstanding notes of any series (“legal defeasance”). Legal defeasance means that we will be deemed to have paid and discharged the entire indebtedness represented by the outstanding notes of such series under the indenture, except for:

 

•

the rights of holders of such series of notes to receive principal, interest and any premium when due and any remaining rights to receive mandatory sinking fund payments;

 

•

our obligations with respect to such series of notes concerning issuing temporary notes, registration of transfer of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment for security payments held in trust;

 

•

the rights, powers, trusts, duties and immunities of the trustee; and

 

•

the defeasance provisions of the indenture.

In addition, we may elect to have our obligations released with respect to certain covenants in the indenture (“covenant defeasance”). Any omission to comply with these obligations will not constitute a default or an event of default with respect to the notes of any series. In the event covenant defeasance occurs, certain events, not including non-payment, bankruptcy and insolvency events, described under “—Events of Default” above will no longer constitute an event of default for that series. Additionally, with limited exceptions, we would not have to comply with covenants applicable to such note series (including, without limitation, those covenants relating to consolidation, merger or sale, limitation on liens, and sale and leaseback transactions).

In order to exercise either legal defeasance or covenant defeasance with respect to outstanding notes of any series:

 

•

we must irrevocably have deposited or caused to be deposited with the trustee as trust funds for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of, the holders of the notes of that series:

 

•

money in an amount;

 

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•

U.S. government obligations (or equivalent government obligations in the case of notes denominated in other than U.S. dollars or a specified currency) that will provide, not later than one day before the due date of any payment, money in an amount; or

 

•

a combination of money and U.S. government obligations (or equivalent government obligations, as applicable),

in each case sufficient, in the written opinion (with respect to U.S. or equivalent government obligations or a combination of money and U.S. or equivalent government obligations, as applicable) of a nationally recognized firm of independent registered public accountants to pay and discharge, and which will be applied by the trustee to pay and discharge, all of the principal (including mandatory sinking fund payments), interest and any premium at due date or maturity;

 

•

in the case of legal defeasance, we have delivered to the trustee an opinion of counsel stating that, under then applicable U.S. federal income tax law, the beneficial owners of the notes of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be subject to the same U.S. federal income tax as would be the case if the deposit, defeasance and discharge did not occur;

 

•

in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the beneficial owners of the notes of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same U.S. federal income tax as would be the case if the deposit and covenant defeasance did not occur;

 

•

no Event of Default or default with respect to the outstanding notes of that series has occurred and is continuing at the time of such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the 91st day after the date of such deposit, it being understood that this condition is not deemed satisfied until after the 91st day;

 

•

the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust Indenture Act, assuming all notes of a series were in default within the meaning of such Act;

 

•

the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which we are a party;

 

•

if notes are to be redeemed before the stated maturity date (other than from mandatory sinking fund payments or analogous payments), we have delivered satisfactory notice of redemption to the trustee;

 

•

the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration; and

 

•

we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with respect to the legal defeasance or covenant defeasance have been complied with.

Concerning our Relationship with the Trustee

We and our subsidiaries maintain ordinary banking relationships with U.S. Bank National Association.

Book-Entry, Form and Delivery

Except as set forth below, the notes will be issued in registered, global form in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

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The notes will be represented by one or more notes in registered, global form without interest coupons (collectively, the “Global Notes”). The Global Notes will be deposited upon issuance with the trustee as custodian for DTC, and registered in the name of DTC or its nominee, in each case for credit to an account of a direct or indirect participant in DTC as described below. DTC will be the depositary for the Global Notes. Except as set forth below, the Global Notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes may not be exchanged for notes in certificated form except in the limited circumstances described below. See “—Exchange of Global Notes for Certificated Notes.”

In addition, transfers of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of Euroclear and Clearstream), which may change from time to time.

Exchange of Global Notes for Certificated Notes

A Global Note is exchangeable for definitive notes in registered certificated form (“Certificated Notes”) if: (1) DTC (a) notifies us that it is unwilling or unable to continue as depositary or clearing system for the Global Notes or (b) has ceased to be a clearing agency registered under the Exchange Act, and in each case we fail to appoint a successor depositary or clearing system within 90 days of that notice or becoming aware that DTC is no longer so registered; (2) we, in our sole discretion, determine not to have the notes represented by a Global Note and provide written notice thereof to the trustee; or (3) there shall have occurred and be continuing an event of default with respect to the notes and DTC requests such exchange.

In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be in registered form, registered in such names as the Depositary shall direct, and issued only in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.

Depository Procedures

The following description of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. We and the trustee take no responsibility for these operations and procedures and urge investors to contact the system or their participants directly to discuss these matters.

DTC has advised us that DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the “Participants”) and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the initial purchasers), banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants. DTC has also advised us that, pursuant to procedures established by it: (1) upon deposit of the Global Notes, DTC will credit the accounts of Participants designated by the initial purchasers with portions of the principal amount of the Global Notes; and (2) ownership of these interests in the Global Notes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interest in the Global Notes).

Investors in the Global Notes who are Participants in DTC’s system may hold their interests therein directly through DTC. Investors in the Global Notes who are not Participants may hold their interests therein indirectly

 

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through organizations (including Euroclear and Clearstream) which are Participants in such system. All interests in a Global Note, including those held through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream may also be subject to the procedures and requirements of such systems.

The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such persons will be limited to that extent. Because DTC can act only on behalf of the Participants, which in turn act on behalf of the Indirect Participants, the ability of a person having beneficial interests in a Global Note to pledge such interests to persons that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.

Except as described above, owners of interests in the Global Notes will not have notes registered in their names, will not receive physical delivery of notes in certificated form and will not be considered the registered owners or “holders” thereof under the indenture for any purpose.

Payments in respect of the principal of, and interest, premium or additional interest, if any, on a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered holder under the indenture. Under the terms of the indenture, we and the trustee will treat the persons in whose names the notes, including the Global Notes, are registered as the owners thereof for the purpose of receiving payments and for all other purposes. Consequently, neither we, the trustee, nor any agent of ours or the trustee has or will have any responsibility or liability for: (1) any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of beneficial ownership interest in the Global Notes or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in the Global Notes; or (2) any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.

DTC has advised us that its current practice, upon receipt of any payment in respect of securities such as the notes (including principal, interest and additional interest, if any), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of the notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the trustee or us. Neither we nor the trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the notes, and we and the trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.

Transfers between Participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.

Cross-market transfers between the Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream.

 

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DTC has advised us that it will take any action permitted to be taken by a holder of the notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given such direction. However, if there is an Event of Default under the indenture, DTC reserves the right to exchange the Global Notes for legended notes in certificated form, and to distribute such notes to its Participants.

Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in each Global Note among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such procedures at any time. Neither we nor the trustee nor any of our or their respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.

Same Day Settlement and Payment

We will make payments in respect of the notes represented by the Global Notes, including principal, premium, if any, and interest by wire transfer of immediately available funds to the accounts specified by DTC or its nominee. We will make all payments of principal, premium, if any, and interest with respect to Certificated Notes by wire transfer of immediately available funds to the accounts specified by the holders of the Certificated Notes or, if no such account is specified, by mailing a check to each such holder’s registered address. The notes represented by the Global Notes are expected to be eligible to trade in DTC’s Same-Day Funds Settlement System, and any permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds. We expect that secondary trading in any Certificated Notes will also be settled in immediately available funds.

Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised us that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.

 

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Exchange Offer

In connection with the issuance of the old notes on March 20, 2015, we entered into a registration rights agreement with the initial purchasers, which provides for the exchange offer. The exchange offer will permit eligible holders of notes to exchange the old notes for the exchange notes that are identical in all material respects with the old notes, except that:

 

•

the exchange notes have been registered under the U.S. federal securities laws and will not bear any legend restricting their transfer;

 

•

the exchange notes bear a different CUSIP number from the old notes;

 

•

the exchange notes will not be subject to transfer restrictions or entitled to registration rights; and

 

•

the holders of the exchange notes will not be entitled to certain rights under the registration rights agreement, including the provisions for an increase in the interest rate on the old notes in some circumstances relating to the timing of the exchange offer.

The exchange notes will evidence the same debt as the old notes. Holders of exchange notes will be entitled to the benefits of the indenture.

General

We are making the exchange offer to comply with our contractual obligations under the registration rights agreement. Except under limited circumstances, upon completion of the exchange offer, our obligations with respect to the registration of the old notes will terminate.

We agreed, pursuant to the registration rights agreement, to file with the SEC a registration statement covering the exchange by us of the exchange notes for the old notes, pursuant to the exchange offer. The registration rights agreement provides that we will file with the SEC an exchange offer registration statement on an appropriate form under the Securities Act and offer to holders of old notes who are able to make certain representations the opportunity to exchange their old notes for exchange notes.

We will commence the exchange offer promptly after the exchange offer registration statement is declared effective by the SEC and use our commercially reasonable efforts to complete the exchange offer not later than 60 days after the effective date.

We will keep the exchange offer open for 20 business days after the date notice of the exchange offer is mailed to the holders of the old notes. For each old note surrendered to us pursuant to the exchange offer, the holder of such old note will receive an exchange note having a principal amount equal to that of the surrendered old note. Interest on each exchange note will accrue from the last interest payment date on which interest was paid on the old note surrendered in exchange thereof or, if no interest has been paid on the old note, from the date of its original issue.

In connection with the issuance of the old notes, we have arranged for the old notes to be issued in the form of global notes through the facilities of DTC acting as depositary. The exchange notes will also be issued in the form of global notes registered in the name of DTC or its nominee and each beneficial owner’s interest in it will be transferable in book-entry form through DTC.

Holders of old notes do not have any appraisal or dissenters’ rights in connection with the exchange offer. Old notes which are not tendered for exchange or are tendered but not accepted in connection with the exchange offer will remain outstanding and be entitled to the benefits of the indenture under which they were issued, including accrual of interest, but, subject to limited exceptions, will not be entitled to any registration rights under the applicable registration rights agreement. See “—Consequences of Failure to Tender.”

 

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We will be deemed to have accepted validly tendered old notes when and if we have given written notice to the exchange agent of our acceptance. The exchange agent will act as agent for the tendering holders for the purpose of receiving the exchange notes from us. If any tendered old notes are not accepted for exchange because of an invalid tender, the occurrence of other events described in this prospectus or otherwise, we will return the certificates for any unaccepted old notes, at our expense, to the tendering holder promptly after the expiration of the exchange offer.

The exchange offer is not being made to, nor will we accept tenders for exchange from, holders of the old notes in any jurisdiction in which the exchange offer or the acceptance of it would not be in compliance with the securities or blue sky laws of that jurisdiction.

Eligibility; Transferability

We are making this exchange offer in reliance on interpretations of the staff of the SEC set forth in several no-action letters. However, we have not sought our own no-action letter. Based upon these interpretations, we believe that you, or any other person receiving exchange notes, may offer for resale, resell or otherwise transfer such exchange notes without complying with the registration and prospectus delivery requirements of the U.S. federal securities laws, if:

 

•

you are, or the person or entity receiving such exchange notes is, acquiring such exchange notes in the ordinary course of business;

 

•

you do not, nor does any such person or entity, have an arrangement or understanding with any person or entity to participate in any distribution of the exchange notes (within the meaning of the Securities Act);

 

•

you are not, or the person or entity receiving such exchange notes is not, engaged in, and you do not, or such person or entity does not, intend to engage in, a distribution of the exchange notes (within the meaning of the Securities Act);

 

•

you are not, nor is any such person or entity, our “affiliate” (as such term is defined under Rule 405 under the Securities Act); and

 

•

you are not acting on behalf of any person or entity who could not truthfully make these statements.

To participate in the exchange offer, you must represent as the holder of old notes that each of these statements is true.

Any holder of old notes who is our affiliate or who intends to participate in the exchange offer for the purpose of distributing the exchange notes:

 

•

will not be able to rely on the interpretation of the staff of the SEC set forth in the no-action letters described above; and

 

•

must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the exchange notes, unless the sale or transfer is made pursuant to an exemption from those requirements.

Each broker-dealer that receives exchange notes in exchange for old notes acquired for its own account through market-making or other trading activities must acknowledge that it will deliver (or, to the extent permitted by law, make available) a prospectus in connection with any resale of the exchange notes. The letter of transmittal states that by acknowledging that it will deliver, and by delivering, a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resale of the exchange notes received in exchange for the old notes where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration date of the exchange offer, we will use commercially reasonable efforts to amend or supplement this prospectus in order to expedite or facilitate the disposition of any exchange notes by such broker-dealers.

 

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Expiration of the Exchange Offer; Extensions; Amendments

The exchange offer will expire at 5:00 p.m., New York City time, on                     , 2015, or the expiration date, unless we extend the exchange offer. To extend the exchange offer, we will notify the exchange agent and each registered holder of any extension before 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. We reserve the right to extend the exchange offer, delay accepting any tendered old notes or, if any of the conditions described below under the heading “—Conditions” have not been satisfied, to terminate the exchange offer. We also reserve the right to amend the terms of the exchange offer in any manner. We will give written notice of such delay, extension, termination or amendment to the exchange agent.

If we amend the exchange offer in a manner that we consider material, we will disclose such amendment by means of a prospectus supplement, and we will extend the exchange offer for a period of five to ten business days.

Any extension, delay, termination, waiver or amendment of the exchange offer will be followed as promptly as practicable by public announcement thereof by the making of a release through an appropriate news agency, such announcement in the case of an extension to be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.

If we delay accepting any old notes or terminate the exchange offer, we promptly will pay the consideration offered, or return any old notes deposited, pursuant to the exchange offer as required by Rule 14e-1(c) under the Exchange Act.

Conditions

Notwithstanding any other term of the exchange offer, we will not be required to accept for exchange, or issue any exchange notes for, any old notes, and may terminate or amend the exchange offer before the acceptance of the old notes, if:

 

•

we determine that the exchange offer violates any law, statute, rule, regulation or interpretation by the staff of the SEC or any order of any governmental agency or court of competent jurisdiction; or

 

•

any action or proceeding is instituted or threatened in any court or by or before any governmental agency relating to the exchange offer which, in our judgment, could reasonably be expected to impair our ability to proceed with the exchange offer.

The conditions listed above are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any of these conditions. We may waive these conditions in our reasonable discretion in whole or in part at any time and from time to time prior to the expiration date. The failure by us at any time to exercise any of the above rights shall not be considered a waiver of such right, and such right shall be considered an ongoing right which may be asserted at any time and from time to time.

In addition, we will not accept for exchange any old notes tendered, and no exchange notes will be issued in exchange for those old notes, if at any time any stop order is threatened or issued with respect to the registration statement for the exchange offer and the exchange notes or the qualification of the indenture under the Trust Indenture Act of 1939. In any such event, we must use commercially reasonable efforts to obtain the withdrawal of any stop order as soon as practicable.

In addition, we will not be obligated to accept for exchange the old notes of any holder that has not made to us the representations described under “—Eligibility; Transferability” and “Plan of Distribution.”

 

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Procedures for Tendering

We have forwarded to you, along with this prospectus, a letter of transmittal relating to this exchange offer. A holder need not submit a letter of transmittal if the holder tenders old notes in accordance with the procedures mandated by DTC’s ATOP. To tender old notes without submitting a letter of transmittal, the electronic instructions sent to DTC and transmitted to the exchange agent must contain your acknowledgment of receipt of and your agreement to be bound by and to make all of the representations contained in the letter of transmittal. In all other cases, a letter of transmittal must be manually executed and delivered as described in this prospectus.

Only a holder of record of old notes may tender old notes in the exchange offer. To tender in the exchange offer, a holder must comply with all applicable procedures of DTC and either:

 

•

complete, sign and date the letter of transmittal, have the signature on the letter of transmittal guaranteed if the letter of transmittal so requires and deliver the letter of transmittal or facsimile to the exchange agent prior to the expiration date; or

 

•

in lieu of delivering a letter of transmittal, instruct DTC to transmit on behalf of the holder a computer-generated message to the exchange agent in which the holder of the old notes acknowledges and agrees to be bound by the terms of the letter of transmittal, which computer-generated message must be received by the exchange agent prior to 5:00 p.m., New York City time, on the expiration date.

In addition, either:

 

•

the exchange agent must receive the old notes along with the letter of transmittal;

 

•

with respect to the old notes, the exchange agent must receive, before expiration of the exchange offer, timely confirmation of book-entry transfer of old notes into the exchange agent’s account at DTC, according to the procedure for book-entry transfer described below; or

 

•

the holder must comply with the guaranteed delivery procedures described below.

For old notes to be tendered effectively, the exchange agent must receive any physical delivery of the letter of transmittal and other required documents at the address set forth below under “—Exchange Agent” before expiration of the exchange offer.

The tender by a holder that is not withdrawn before expiration of the exchange offer will constitute an agreement between that holder and us in accordance with the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal. Only a registered holder of old notes may tender the old notes in the exchange offer. If a holder completing a letter of transmittal tenders less than all of the old notes held by this holder, this tendering holder should fill in the applicable box of the letter of transmittal. The amount of old notes delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated.

The method of delivery of old notes and the letter of transmittal and all other required documents to the exchange agent is at the election and sole risk of the holder. Instead of delivery by mail, you should use an overnight delivery service. In all cases, you should allow for sufficient time to ensure delivery to the exchange agent before the expiration of the exchange offer. You may request your broker, dealer, commercial bank, trust company or nominee to effect these transactions for you. You should not send any note, letter of transmittal or other required document to us.

Any beneficial owner whose old notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender should contact the registered holder promptly and instruct it to tender on the owner’s behalf. If the beneficial owner wishes to tender on its own behalf, it must, prior to completing and executing the letter of transmittal and delivering its old notes, either:

 

•

make appropriate arrangements to register ownership of the old notes in the owner’s name; or

 

•

obtain a properly completed bond power from the registered holder of old notes.

 

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The transfer of registered ownership may take considerable time and may not be completed prior to the expiration date.

If the applicable letter of transmittal is signed by the record holder(s) of the old notes tendered, the signature must correspond with the name(s) written on the face of the old notes without alteration, enlargement or any change whatsoever. If the applicable letter of transmittal is signed by a participant in DTC, the signature must correspond with the name as it appears on the security position listing as the holder of the old notes.

A signature on a letter of transmittal or a notice of withdrawal must be guaranteed by an eligible guarantor institution. Eligible guarantor institutions include banks, brokers, dealers, municipal securities dealers, municipal securities brokers, government securities dealers, government securities brokers, credit unions, national securities exchanges, registered securities associations, clearing agencies and savings associations. The signature need not be guaranteed by an eligible guarantor institution if the old notes are tendered:

 

•

by a registered holder who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal; or

 

•

for the account of an eligible institution.

If the letter of transmittal is signed by a person other than the registered holder of any old notes, the old notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder’s name appears on the old notes, and an eligible guarantor institution must guarantee the signature on the bond power.

If the letter of transmittal or any old notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, these persons should so indicate when signing. Unless we waive this requirement, they should also submit evidence satisfactory to us of their authority to deliver the letter of transmittal.

We will determine in our sole discretion all questions as to the validity, form, eligibility, including time of receipt, acceptance and withdrawal of the tendered old notes. Our determination will be final and binding. We reserve the absolute right to reject any old notes not properly tendered or any old notes the acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular old notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties.

Unless waived, any defects or irregularities in connection with tenders of old notes must be cured within the time that we determine. Although we intend to notify holders of defects or irregularities with respect to tenders of old notes, neither we, the exchange agent nor any other person will incur any liability for failure to give such notification. Tenders of old notes will not be deemed made until those defects or irregularities have been cured or waived. Any old notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the exchange agent without cost to the tendering holder, unless otherwise provided in the letter of transmittal, promptly following the expiration date.

In all cases, we will issue exchange notes for old notes that we have accepted for exchange under the exchange offer only after the exchange agent timely receives:

 

•

the old notes or a timely book-entry confirmation that the old notes have been transferred into the exchange agent’s account at DTC; and

 

•

a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent’s message.

Holders should receive copies of the applicable letter of transmittal with the prospectus. A holder may obtain copies of the applicable letter of transmittal for the old notes from the exchange agent at its offices listed under “—Exchange Agent.”

 

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By signing the letter of transmittal, or causing DTC to transmit an agent’s message to the exchange agent, each tendering holder of old notes will, among other things, make the representations in the letter of transmittal described under “—Eligibility; Transferability.”

DTC Book-Entry Transfer

The exchange agent will make a request to establish an account with respect to the old notes at DTC for purposes of the exchange offer within three business days after the date of this prospectus.

With respect to the old notes, the exchange agent and DTC have confirmed that any financial institution that is a participant in DTC may utilize the DTC ATOP procedures to tender old notes.

With respect to the old notes, any participant in DTC may make book-entry delivery of old notes by causing DTC to transfer the old notes into the exchange agent’s account in accordance with DTC’s ATOP procedures for transfer.

However, the exchange for the old notes so tendered will only be made after a book-entry confirmation of such book-entry transfer of old notes into the exchange agent’s account and timely receipt by the exchange agent of an agent’s message and any other documents required by the letter of transmittal. The term “agent’s message” means a message, transmitted by DTC and received by the exchange agent and forming part of a book-entry confirmation, which states that DTC has received an express acknowledgment from a participant tendering old notes that are the subject of the book-entry confirmation that the participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce that agreement against the participant.

Guaranteed Delivery Procedures

Holders wishing to tender their old notes but whose old notes are not immediately available or who cannot deliver their old notes, the letter of transmittal or any other required documents to the exchange agent or cannot comply with the applicable procedures described above before expiration of the exchange offer may tender if:

 

•

the tender is made through an eligible guarantor institution, which is defined above under “—Procedures for Tendering”;

 

•

before expiration of the exchange offer, the exchange agent receives from the eligible guarantor institution either a properly completed and duly executed notice of guaranteed delivery, by facsimile transmission, mail, or a properly transmitted agent’s message and notice of guaranteed delivery, in each case:

 

•

setting forth the name and address of the holder and the registered number(s) and the principal amount of old notes tendered;

 

•

stating that the tender is being made by guaranteed delivery; and

 

•

guaranteeing that, within three New York Stock Exchange trading days after expiration of the exchange offer, the letter of transmittal, together with the old notes or a book-entry transfer confirmation, and any other documents required by the letter of transmittal will be deposited by the eligible guarantor institution with the exchange agent; and

 

•

the exchange agent receives the properly completed and executed letter of transmittal, as well as all tendered old notes in proper form for transfer or a book-entry transfer confirmation, and all other documents required by the letter of transmittal, within three New York Stock Exchange trading days after expiration of the exchange offer.

Upon request to the exchange agent, a notice of guaranteed delivery will be sent to holders who wish to tender their old notes according to the guaranteed delivery procedures set forth above.

 

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Withdrawal of Tenders

Except as otherwise provided in this prospectus, holders of old notes may withdraw their tenders at any time before expiration of the exchange offer.

For a withdrawal to be effective, the exchange agent must receive a computer-generated notice of withdrawal transmitted by DTC on behalf of the holder in accordance with the standard operating procedures of DTC, or a written notice of withdrawal, which may be by telegram, telex, facsimile transmission or letter, at one of the addresses set forth below under “—Exchange Agent.”

Any notice of withdrawal must:

 

•

specify the name of the person having tendered the old notes to be withdrawn;

 

•

identify the old notes to be withdrawn (including the certificate number(s) of the outstanding notes physically delivered) and principal amount of such notes, or, in the case of notes transferred by book-entry transfer, the name of the account at DTC; and

 

•

be signed by the holder in the same manner as the original signature on the letter of transmittal by which such old notes were tendered, with any required signature guarantees, or be accompanied by documents of transfer sufficient to have the trustee with respect to the old notes register the transfer of such old notes into the name of the person withdrawing the tender.

If old notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn old notes and otherwise comply with the procedures of the facility.

We will determine all questions as to the validity, form and eligibility, including time of receipt, of notices of withdrawal, and our determination shall be final and binding on all parties. We will deem any old notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offer. We will return any old notes that have been tendered for exchange but that are not exchanged for any reason to their holder without cost to the holder. In the case of old notes tendered by book-entry transfer into the exchange agent’s account at DTC, according to the procedures described above, those old notes will be credited to an account maintained with DTC for old notes, promptly after withdrawal, rejection of tender or termination of the exchange offer. You may retender properly withdrawn old notes by following one of the procedures described under “—Procedures for Tendering” above at any time before expiration of the exchange offer.

A holder may provide notice of withdrawal to the exchange agent at its offices listed under “—Exchange Agent.”

 

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Exchange Agent

U.S. Bank National Association has been appointed as exchange agent for the exchange offer. We only accept hard copies of the letter of transmittal or presentations via ATOP through DTC.

 

By Mail:   U.S. Bank National Association Attn: Corporate Actions 111 Fillmore Avenue St. Paul, MN 55107-1402		By Registered, Certified or Express Mail or by Overnight Courier:   U.S. Bank National Association Attn: Corporate Actions 111 Fillmore Avenue St. Paul, MN 55107-1402
By Facsimile (for Eligible Institutions Only for Guarantee of Delivery Only)   U.S. Bank National Association Facsimile: (651) 466-7367 Confirm By Telephone: (800) 934-6802

DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SHOWN ABOVE OR TRANSMISSION VIA FACSIMILE DOES NOT CONSTITUTE A VALID DELIVERY OF THE LETTER OF TRANSMITTAL.

Fees and Expenses

We will bear the expenses of soliciting tenders. The principal solicitation is being made by mail. However, we may make additional solicitations by telegraph, telephone or in person by our officers and regular employees and those of our affiliates.

We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to broker-dealers or others soliciting acceptances of the exchange offer. We may, however, pay the exchange agent reasonable and customary fees for its services and reimburse it for its related reasonable out-of-pocket expenses.

We will pay the cash expenses to be incurred in connection with the exchange offer, including the following:

 

•

SEC registration fees;

 

•

fees and expenses of the exchange agent and trustee;

 

•

our accounting and legal fees; and

 

•

our printing and mailing costs.

Transfer Taxes

We will pay all transfer taxes, if any, applicable to the exchange of old notes for exchange notes in the exchange offer. The tendering holder, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if:

 

•

exchange notes are to be delivered to, or issued in the name of, any person other than the registered holder of the old notes so exchanged;

 

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•

tendered old notes are registered in the name of any person other than the person signing the letter of transmittal; or

 

•

a transfer tax is imposed for any reason other than the exchange of old notes for exchange notes in the exchange offer.

If satisfactory evidence of payment of transfer taxes is not submitted with the letter of transmittal, the amount of any transfer taxes will be billed to the tendering holder.

Accounting Treatment

We will record the exchange notes at the same carrying value as the old notes as reflected in our accounting records on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon completion of the exchange offer.

Consequences of Failure to Tender

All untendered old notes will remain subject to the restrictions on transfer provided for in the old notes and in the indenture. Generally, the old notes that are not exchanged for exchange notes pursuant to the exchange offer will remain restricted securities. Accordingly, such old notes may be resold only:

 

•

to us (upon redemption thereof or otherwise);

 

•

pursuant to a registration statement which has been declared effective under the Securities Act;

 

•

for so long as the old notes are eligible for resale pursuant to Rule l44A, to a person the holder of the old notes and any person acting on its behalf reasonably believes is a “qualified institutional buyer” as defined in Rule l44A, that purchases for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the transfer is being made in reliance on Rule l44A;

 

•

for so long as the old notes are eligible for resale pursuant to Regulation S of the Securities Act, in an offshore transaction complying with Rule 903 or Rule 904 of Regulation S, in each case if notice is given to purchasers that the transfer is being made in reliance on Regulation S; or

 

•

pursuant to any other available exemption from the registration requirements of the Securities Act (in which case we and the trustee shall have the right to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to us and the trustee),

in each case subject to compliance with any applicable foreign, state or other securities laws.

Upon completion of the exchange offer, due to the restrictions on transfer of the old notes and the absence of such restrictions applicable to the exchange notes, it is likely that the market, if any, for old notes will be relatively less liquid than the market for exchange notes. Consequently, holders of old notes who do not participate in the exchange offer could experience significant diminution in the value of their old notes, compared to the value of the exchange notes. The holders of old notes not tendered will have no further registration rights, except that, under limited circumstances, we may be required to file a shelf registration statement for a continuous offer of old notes.

Governing Law

The indenture, the exchange notes and old notes are governed by, and construed in accordance with, the laws of the State of New York.

 

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Information Regarding the Registration Rights Agreement

As noted above, we are effecting the exchange offer to comply with the registration rights agreement. The registration rights agreement requires us to:

 

•

file a registration statement on an appropriate registration form with respect to registered offers to exchange the old notes for exchange notes;

 

•

use commercially reasonable efforts to cause the registration statement to be declared effective under the Securities Act; and

 

•

use commercially reasonable efforts to cause to become effective a shelf registration statement relating to resales of the old notes under certain circumstances and to keep that shelf registration statement effective until the third anniversary of the issue date, or such shorter period that will terminate when all notes covered by the shelf registration statement cease to be “registrable securities” as defined in the registration rights agreement.

The requirements described in the first two bullets above under the registration rights agreement will be satisfied when we complete the exchange offer.

In the event that (i) the exchange offer is not completed on or prior to the 365th day after the issue date, (2) if a shelf registration statement is required and is not declared effective on or prior to the 365th day after the issue date or 90 days after a shelf registration demand is delivered, whichever is later, or (3) if applicable, a shelf registration statement covering resales of the old notes has been declared effective and such shelf registration statement ceases to be effective or the prospectus contained therein ceases to be usable (a) on more than two occasions of at least 15 consecutive days in any 12-month period during the required effectiveness period or (b) at any time in any 12-month period during the required effectiveness period and such failure to remain effective or be usable exists for more than 30 days (whether or not consecutive), then additional interest shall accrue on the principal amount of the old notes that are “registrable securities” at a rate of 0.25% per annum for the first 90-day period and an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue (provided that the rate at which such additional interest accrues may in no event exceed 1.00% per annum), until the exchange offers are completed or the shelf registration statement is declared effective or the prospectus again becomes usable, as applicable, or such old notes cease to be “registrable securities.”

Under the registration rights agreement, we have also agreed to keep the registration statement for the exchange offer effective for 20 business days (or longer, if required by applicable law) after the date on which notice of the exchange offer is mailed to holders.

Our obligations to register the exchange notes will terminate upon the completion of the exchange offer. However, under certain circumstances specified in the registration rights agreement, we may be required to file a shelf registration agreement for a continuous offer in connection with the old notes.

 

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Certain U.S. Federal Income Tax Considerations

The following is a general discussion of certain material U.S. federal income tax considerations relating to the exchange of old notes for exchange notes in the exchange offer, but does not purport to be a complete analysis of all the potential tax considerations. This discussion is based upon the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury Regulations promulgated thereunder, judicial interpretations thereof and administrative rulings and published positions of the Internal Revenue Service (the “IRS”), each as in effect as of the date hereof. These authorities are subject to change, possibly on a retroactive basis, and any such change could affect the accuracy of the statements and conclusions set forth herein. We have not sought and will not seek any rulings from the IRS with respect to the statements made and the conclusions reached in the following discussion, and accordingly, there can be no assurance that the IRS will not successfully challenge the tax consequences described below.

This discussion only applies to holders that are beneficial owners of old notes that purchased old notes in the initial offering at their original “issue price” (the first price at which a substantial amount of the notes is sold for cash (excluding sales to bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers)) for cash and that hold such old notes as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). This summary does not address the tax considerations that may be relevant to subsequent purchasers of old notes or exchange notes. This discussion does not purport to address all aspects of U.S. federal income taxation that might be relevant to particular holders in light of their particular circumstances or status or that may be relevant to holders subject to special rules under the U.S. federal income tax laws (including, for example, financial institutions, broker-dealers, traders in securities that elect mark-to-market tax treatment, insurance companies, entities or arrangements treated as partnerships or other pass-through entities for U.S. federal income tax purposes, United States expatriates, tax-exempt organizations, persons liable for the alternative minimum tax, U.S. holders that have a functional currency other than the United States dollar, “controlled foreign corporations,” “passive foreign investment companies” or persons who hold old notes as part of a straddle, hedge, conversion or other risk reduction transaction or integrated investment). This discussion does not address any state, local or foreign income tax consequences, nor does it address any U.S. federal tax considerations other than those pertaining to the income tax. In addition, this discussion does not address any tax consequences arising under the unearned income Medicare contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010.

If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds old notes, the tax treatment of a person treated as a partner in such partnership will generally depend upon the status of the partner and the activities of the partnership. Persons that for U.S. federal income tax purposes are treated as a partner in a partnership holding old notes should consult their tax advisors regarding the tax consequences to them of exchanging old notes for exchange notes in the exchange offer.

THIS SUMMARY IS FOR GENERAL INFORMATION ONLY AND IS NOT INTENDED TO CONSTITUTE A COMPLETE DESCRIPTION OF ALL TAX CONSEQUENCES RELATING TO THE EXCHANGE OF THE OLD NOTES FOR EXCHANGE NOTES IN THE EXCHANGE OFFER. YOU ARE ADVISED TO CONSULT YOUR OWN TAX ADVISOR WITH RESPECT TO THE PARTICULAR U.S. FEDERAL INCOME TAX CONSEQUENCES TO YOU OF EXCHANGING THE OLD NOTES FOR EXCHANGE NOTES IN THE EXCHANGE OFFER AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER THE U.S. FEDERAL ESTATE, GIFT OR ALTERNATIVE MINIMUM TAX RULES OR UNDER THE LAWS OF ANY STATE, LOCAL, FOREIGN OR OTHER TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.

Exchange Offer

The exchange of old notes for exchange notes in the exchange offer will not constitute a taxable exchange for U.S. federal income tax purposes. Consequently, you will not recognize gain or loss upon the receipt of exchange

 

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notes in the exchange offer, your basis in the exchange notes received in the exchange offer will be the same as your basis in the old notes surrendered in exchange therefor immediately before the exchange, and your holding period in the exchange notes will include your holding period in the old notes surrendered in exchange therefor.

 

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Plan of Distribution

Each broker-dealer that receives exchange notes for its own account pursuant to this exchange offer must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for old notes where such old notes were acquired as a result of market-making activities or other trading activities. We have agreed that we will make this prospectus, as amended or supplemented, available to any broker-dealer upon request for use in connection with any such resale until 180 days after the expiration date of the exchange offer.

We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any exchange notes. Any broker-dealer that resells exchange notes that were received by it for its own account pursuant to this exchange offer and any broker or dealer that participates in a distribution of such exchange notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of exchange notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

Pursuant to the registration rights agreement, we have agreed to pay certain expenses incident to this exchange offer and will indemnify the holders of the old notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

 

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Legal Matters

The validity of the exchange notes and guarantees offered hereby will be passed upon for us by Wachtell, Lipton, Rosen & Katz, New York, New York, in respect of the laws of the State of New York. In rendering its opinion, Wachtell, Lipton, Rosen & Katz will rely upon the opinion of Calfee, Halter & Griswold LLP as to all matters governed by the laws of the State of Ohio and the opinion of Potter Anderson  & Corroon LLP as to all matters governed by the laws of the State of Delaware.

Experts

The consolidated financial statements of The J. M. Smucker Company appearing in the Form 10-K filed by the Company on June 25, 2015, and management’s assessment of the effectiveness of the Company’s internal control over financial reporting as of April 30, 2015 appearing in the Annual Report on Form 10-K for the year ended April 30, 2015 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting as of April 30, 2015 are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.

The consolidated financial statements of Blue Acquisition Group, Inc. as of April 27, 2014 and April 28, 2013 and for the fiscal years ended April 27, 2014, April 28, 2013, and April 29, 2012, incorporated by reference in this prospectus from the Form 8-K filed by the Company on March 23, 2015 have been audited by KPMG LLP, independent auditors, as stated in their report which is incorporated herein by reference.

 

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The J. M. Smucker Company

Offer to Exchange

1.750% Notes due 2018

Registered under the Securities Act

for

A Like Principal Amount Of Outstanding 1.750% Notes Due 2018

2.500% Notes due 2020

Registered under the Securities Act

for

A Like Principal Amount Of Outstanding 2.500% Notes Due 2020

3.000% Notes due 2022

Registered under the Securities Act

for

A Like Principal Amount Of Outstanding 3.000% Notes Due 2022

3.500% Notes Due 2025

Registered under the Securities Act

for

A Like Principal Amount Of Outstanding 3.500% Notes Due 2025

4.250% Notes due 2035

Registered under the Securities Act

for

A Like Principal Amount Of Outstanding 4.250% Notes Due 2035

4.375% Notes due 2045

Registered under the Securities Act

for

A Like Principal Amount Of Outstanding 4.375% Notes Due 2045

 

 

PROSPECTUS

 

 

                    , 2015

 

 

 

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THE J. M. SMUCKER COMPANY

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 20.

Indemnification of Directors and Officers

The J. M. Smucker Company

Article V of our amended regulations provides that any person made a party to or threatened to be made a party to or otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or an officer of ours, or is or was serving at our request as a director, officer, employee or agent of another company or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such action, suit or proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, will be indemnified and held harmless by us to the fullest extent permitted or required by the Ohio General Corporation Law, as the same exists or may in the future be amended to provide broader rights to indemnification, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by the indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of Article V of our amended regulations with respect to actions, suits or proceedings to enforce rights to indemnification, we will indemnify any such indemnitee in connection with an action, suit or proceeding (or part thereof) initiated by the indemnitee only if the action, suit or proceeding (or part thereof) was authorized by our board of directors.

The indemnification rights conferred in Article V of our amended regulations include the right to be paid by the Company the expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending any action, suit or proceeding in advance of its final disposition; provided, however, that, if the Ohio General Corporation Law so requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by the indemnitee, including, without limitation, service to an employee benefit plan) will be made only upon delivery to us of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it is ultimately determined by final judicial decision from which there is no further right to appeal that the indemnitee is not entitled to be indemnified for the expenses.

The rights to indemnification conferred by our amended regulations are not exclusive of any other right to which any person seeking indemnification may have or acquire under any statute, our amended articles of incorporation, our amended regulations, or any agreement, vote of shareholders or disinterested directors, or otherwise, and will continue as to a person who has ceased to be a director, officer, employee or agent and will inure to the benefit of the heirs, executors and administrators of such person.

Section 1701.13(E) of the Ohio Revised Code provides as follows:

(E)(1) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney’s fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if the person had no reasonable cause to believe the person’s conduct was unlawful.

 

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The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, the person had reasonable cause to believe that the person’s conduct was unlawful.

(2) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney’s fees, actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any of the following:

(a) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of the person’s duty to the corporation unless, and only to the extent that, the court of common pleas or the court in which such action or suit was brought determines, upon application, that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper;

(b) Any action or suit in which the only liability asserted against a director is pursuant to section 1701.95 of the Revised Code.

(3) To the extent that a director, trustee, officer, employee, member, manager, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, or in defense of any claim, issue, or matter in the action, suit, or proceeding, the person shall be indemnified against expenses, including attorney’s fees, actually and reasonably incurred by the person in connection with the action, suit, or proceeding.

(4) Any indemnification under division (E)(1) or (2) of this section, unless ordered by a court, shall be made by the corporation only as authorized in the specific case, upon a determination that indemnification of the director, trustee, officer, employee, member, manager, or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in division (E)(1) or (2) of this section. Such determination shall be made as follows:

(a) By a majority vote of a quorum consisting of directors of the indemnifying corporation who were not and are not parties to or threatened with the action, suit, or proceeding referred to in division (E)(1) or (2) of this section;

(b) If the quorum described in division (E)(4)(a) of this section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the corporation or any person to be indemnified within the past five years;

(c) By the shareholders; or

(d) By the court of common pleas or the court in which the action, suit, or proceeding referred to in division (E)(1) or (2) of this section was brought.

Any determination made by the disinterested directors under division (E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the corporation under division (E)(2) of this

 

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section, and, within ten days after receipt of that notification, the person shall have the right to petition the court of common pleas or the court in which the action or suit was brought to review the reasonableness of that determination.

(5)(a) Unless at the time of a director’s act or omission that is the subject of an action, suit, or proceeding referred to in division (E)(1) or (2) of this section, the articles or the regulations of a corporation state, by specific reference to this division, that the provisions of this division do not apply to the corporation and unless the only liability asserted against a director in an action, suit, or proceeding referred to in division (E)(1) or (2) of this section is pursuant to section 1701.95 of the Revised Code, expenses, including attorney’s fees, incurred by a director in defending the action, suit, or proceeding shall be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the director in which the director agrees to do both of the following:

(i) Repay that amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that the director’s action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation; and

(ii) Reasonably cooperate with the corporation concerning the action, suit, or proceeding.

(b) Expenses, including attorney’s fees, incurred by a director, trustee, officer, employee, member, manager, or agent in defending any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, may be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, as authorized by the directors in the specific case, upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, member, manager, or agent to repay that amount, if it ultimately is determined that the person is not entitled to be indemnified by the corporation.

(6) The indemnification or advancement of expenses authorized by this section shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification or advancement of expenses under the articles, the regulations, any agreement, a vote of shareholders or disinterested directors, or otherwise, both as to action in their official capacities and as to action in another capacity while holding their offices or positions, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, member, manager, or agent and shall inure to the benefit of the heirs, executors, and administrators of that person. A right to indemnification or to advancement of expenses arising under a provision of the articles or the regulations shall not be eliminated or impaired by an amendment to that provision after the occurrence of the act or omission that becomes the subject of the civil, criminal, administrative, or investigative action, suit, or proceeding for which the indemnification or advancement of expenses is sought, unless the provision in effect at the time of that act or omission explicitly authorizes that elimination or impairment after the act or omission has occurred.

(7) A corporation may purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any liability asserted against the person and incurred by the person in any such capacity, or arising out of the person’s status as such, whether or not the corporation would have the power to indemnify the person against that liability under this section. Insurance may be purchased from or maintained with a person in which the corporation has a financial interest.

(8) The authority of a corporation to indemnify persons pursuant to division (E)(1) or (2) of this section does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to divisions (E)(5), (6), and (7) of this section. Divisions (E)(1) and (2) of this section do not create any obligation to repay or return payments made by the corporation pursuant to division (E)(5), (6), or (7).

 

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(9) As used in division (E) of this section, “corporation” includes all constituent entities in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, trustee, member, manager, or agent of such a constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, shall stand in the same position under this section with respect to the new or surviving corporation as the person would if the person had served the new or surviving corporation in the same capacity.

We currently maintain insurance coverage for the benefit of directors and executive officers with respect to many types of claims that may be made against them; however, there is no assurance of the continuation or renewal of such insurance. In addition, we may enter into indemnification agreements with each of our directors and executive officers that indemnify them to the maximum extent permitted by law.

Subsidiary Guarantor Registrants

J.M. Smucker LLC

Article V, Section 5.01(d) of the Third Amended and Restated Operating Agreement (the “Operating Agreement”) of J.M. Smucker LLC (“Smucker LLC”) provides for indemnification by Smucker LLC to the member and the officers of Smucker LLC for any loss or liability paid or incurred by the member or any such officer, and all fees, costs and expenses associated therewith, including, without limitation, reasonable attorneys’ fees, costs and expenses arising out of or related to any act performed by them within the scope of the authority conferred upon the member or such officer by the Operating Agreement; provided, however, that such indemnity is payable only if the member or officer, as applicable, (i) acted in good faith and in a manner he, she or it reasonably believed to be in, or not opposed to, the best interests of Smucker LLC, and (ii) had no reasonable grounds to believe that his, her or its conduct was negligent or unlawful. No indemnification may be made with respect to any act or omission of the member or such officer for which the member or officer has been adjudged to be liable for gross negligence or willful misconduct in the performance of his, her or its duty to Smucker LLC unless, and only to the extent that, the court in which such action or suit was brought determines that in view of all the circumstances of the case, despite the adjudication of liability for gross negligence or willful misconduct, the member or such officer is fairly and reasonably entitled to indemnity for those expenses which the court deems proper. To the extent not covered by insurance maintained by Smucker LLC, any indemnity under Section 5.01(d) of the Operating Agreement will be paid from, and only to the extent of, Smucker LLC’s assets, and neither the member nor such officer will have any personal liability to indemnify the member or Smucker LLC on account thereof.

Section 1705.32 of the Ohio Revised Code provides as follows:

(A) A limited liability company may indemnify or agree to indemnify any person who was or is a party, or who is threatened to be made a party, to any threatened, pending, or completed civil, criminal, administrative, or investigative action, suit, or proceeding, other than an action by or in the right of the company, because he is or was a manager, member, partner, officer, employee, or agent of the company or is or was serving at the request of the company as a manager, director, trustee, officer, employee, or agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise. The company may indemnify or agree to indemnify a person in that position against expenses, including attorney’s fees, judgments, fines, and amounts paid in settlement that actually and reasonably were incurred by him in connection with the action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the company and, in connection with any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent does not create of itself a presumption that the person did not act in good faith

 

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and in a manner he reasonably believed to be in or not opposed to the best interests of the company and, in connection with any criminal action or proceeding, a presumption that he had reasonable cause to believe that his conduct was unlawful.

(B) A limited liability company may indemnify or agree to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the company to procure a judgment in its favor, because he is or was a manager, officer, employee, or agent of the company or is or was serving at the request of the company as a manager, member, partner, director, trustee, officer, employee, or agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise. The company may indemnify or agree to indemnify a person in that position against expenses, including attorney’s fees, that were actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the company, except that an indemnification shall not be made in respect of any claim, issue, or matter as to which the person is adjudged to be liable for negligence or misconduct in the performance of his duty to the company unless and only to the extent that the court of common pleas or the court in which the action or suit was brought determines, upon application, that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnification for expenses that the court considers proper.

(C) To the extent that a manager, officer, employee, or agent of a limited liability company has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in division (A) or (B) of this section or has been successful in defense of any claim, issue, or matter in an action, suit, or proceeding referred to in those divisions, he shall be indemnified against expenses, including attorney’s fees, that were actually and reasonably incurred by him in connection with the action, suit, or proceeding.

(D)(1) Unless ordered by a court and subject to division (C) of this section, any indemnification under division (A) or (B) of this section shall be made by the limited liability company only as authorized in the specific case, upon a determination that indemnification of the manager, officer, employee, or agent is proper under the circumstances because he has met the applicable standard of conduct set forth in division (A) or (B) of this section. The determination shall be made in any of the following ways:

(a) By a majority vote of a quorum consisting of managers of the indemnifying company who were not and are not parties to or threatened to be made parties to the action, suit, or proceeding referred to in division (A) or (B) of this section;

(b) Whether or not a quorum as described in division (D)(1)(a) of this section is obtainable and if a majority vote of a quorum of disinterested managers so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the company or any person to be indemnified within the past five years;

(c) By the members;

(d) By the court of common pleas or the court in which the action, suit, or proceeding referred to in division (A) or (B) of this section was brought.

(2) Any determination made by the disinterested managers under division (D)(1)(a) of this section or by independent legal counsel under division (D)(1)(b) of this section shall be promptly communicated to the person who threatened or brought an action or suit by or in the right of the limited liability company under division (B) of this section. Within ten days after receipt of that notification, the person has the right to petition the court of common pleas or the court in which the action or suit was brought to review the reasonableness of the determination.

(E) The indemnification authorized by this section is not exclusive of and shall be in addition to any other rights granted to those seeking indemnification under the operating agreement, any other agreement, a vote of members or disinterested managers of the limited liability company, or otherwise, both as to action

 

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in their official capacities and as to action in another capacity while holding their offices or positions. The indemnification shall continue as to a person who has ceased to be a manager, officer, employee, or agent of the company and shall inure to the benefit of his heirs, executors, and administrators.

(F) A limited liability company may purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit, or self-insurance, for or on behalf of any person who is or was a manager, member, partner, officer, employee, or agent of the company or who is or was serving at the request of the company as a manager, director, trustee, officer, employee, or agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise. The insurance or similar protection purchased or maintained for those persons may be for any liability asserted against them and incurred by them in any capacity described in this division or for any liability arising out of their status as described in this division, whether or not the company would have the power to indemnify them against that liability under this section. Insurance may be so purchased from or so maintained with a person in which the company has a financial interest.

(G) The authority of a limited liability company to indemnify persons pursuant to division (A) or (B) of this section does not limit the payment of expenses as they are incurred, in advance of the final disposition of an action, suit, or proceeding, or the payment of indemnification, insurance, or other protection that may be provided pursuant to division (E) or (F) of this section. Divisions (A) and (B) of this section do not create any obligation to repay or return payments made by the company pursuant to division (E) or (F) of this section.

(H) As used in this section, “limited liability company” includes all constituent limited liability companies in a consolidation or merger and the new or surviving entity. Any person who is or was a manager, officer, employee, or agent of a constituent limited liability company or who is or was a manager, officer, employee, or agent of a constituent limited liability company as a manager, director, trustee, officer, employee, or agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise stands in the same position under this section with respect to the new or surviving entity as he would if he had served the new or surviving entity in the same capacity.

The Folgers Coffee Company

Pursuant to the Delaware General Corporation Law (the “DGCL”), a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than a derivative action by or in the right of such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or serving at the request of such corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

The DGCL also permits indemnification by a corporation under similar circumstances for expenses (including attorneys’ fees) actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action or suit, except that no indemnification will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable to such corporation unless the Delaware Court of Chancery or the court in which such action or suit was brought will determine upon application that such person is fairly and reasonably entitled to indemnity for such expenses which such court will deem proper.

To the extent a present or former director or officer is successful in the defense of such an action, suit or proceeding, the corporation is required by the DGCL to indemnify such person for actual and reasonable expenses incurred thereby. Expenses (including attorneys’ fees) incurred by an officer or director in defending

 

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any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that such person is not entitled to be so indemnified. Such expenses (including attorney’s fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.

The DGCL provides that the indemnification described above will not be deemed exclusive of other indemnification that may be granted by a corporation pursuant to its by-laws, disinterested directors’ vote, stockholders’ vote, and agreement or otherwise.

The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability as described above.

The Certificate of Incorporation of The Folgers Coffee Company (“Folgers”) also provides that the directors of Folgers will incur no personal liability to Folgers or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that such director liability will not be limited or eliminated (i) for any breach of the director’s duty of loyalty to Folgers or its stockholders; (ii) for any acts or omissions by the director not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL; or (iv) for any transaction from which the director derived an improper personal benefit.

 

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Item 21.

Exhibits

 

Exhibit No.		Description of Exhibit
3.1		Amended Articles of Incorporation of The J. M. Smucker Company (incorporated herein by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q, filed on August 28, 2013)
3.2		Amended Regulations of The J. M. Smucker Company (incorporated herein by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q, filed on August 27, 2014)
3.3*		Articles of Organization of J.M. Smucker LLC
3.4*		Third Amended and Restated Operating Agreement of J.M. Smucker LLC
3.5*		Certificate of Incorporation of The Folgers Coffee Company
3.6*		Bylaws of The Folgers Coffee Company
4.1		Indenture, dated as of March 20, 2015, between The J. M. Smucker Company and U.S. Bank National Association, as trustee (incorporated herein by reference to Exhibit 4.1 to our Current Report on Form 8-K, filed on March 23, 2015)
4.2		First Supplemental Indenture, dated as of March 20, 2015, by and among The J. M. Smucker Company, the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated herein by reference to Exhibit 4.2 to our Current Report on Form 8-K, filed on March 23, 2015)
4.3		Third Amended and Restated Intercreditor Agreement, dated June 11, 2010, among KeyBank National Association and Bank of Montreal, as administrative agents, and the other parties identified therein (incorporated by reference to Exhibit 4.7 to our Form S-3, filed on October 13, 2011)
4.4		In accordance with Item 601(b)(4)(iii)(A) of Regulation S-K, certain instruments relating to long-term obligations of the Registrant have been omitted but will be furnished to the Commission upon request.
5.1*		Legal Opinion of Wachtell, Lipton, Rosen & Katz
5.2*		Legal Opinion of Calfee, Halter & Griswold LLP
5.3*		Legal Opinion of Potter Anderson & Corroon LLP
12.1*		Computation of Ratio of Earnings to Fixed Charges
23.1*		Consent of Wachtell, Lipton, Rosen & Katz (contained in Exhibit 5.1)
23.2*		Consent of Calfee, Halter & Griswold LLP (contained in Exhibit 5.2)
23.3*		Consent of Potter Anderson & Corroon LLP (contained in Exhibit 5.3)
23.4*		Consent of Ernst & Young LLP
23.5*		Consent of KPMG LLP
24.1*		Power of Attorney (included on signature pages attached hereto)
25.1*		Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of U.S. Bank National Association
99.1*		Form of Letter of Transmittal
99.2*		Form of Notice of Guaranteed Delivery
99.3*		Form of Letter from The J. M. Smucker Company to Brokers, Dealers
99.4*		Form of Letter to Clients

 

*	Filed herewith

 

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Item 22.

Undertakings

Each of the undersigned registrants hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and/or

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

Each of the undersigned registrants hereby undertakes that, for the purpose of determining liability of such registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of such undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of such undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of such undersigned registrant or used or referred to by such undersigned registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about such undersigned registrant or its securities provided by or on behalf of such undersigned registrant; and

(iv) Any other communication that is an offer in the offering made by such undersigned registrant to the purchaser.

Each of the undersigned registrants hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of its annual report pursuant to Section 13(a) or 15(d) of the Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Each of the undersigned registrants hereby undertakes that, for purposes of determining liability under the Securities Act to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule

 

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424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of any of the registrants, pursuant to the foregoing provisions, or otherwise, each of the undersigned registrants has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by any such director, officer or controlling person in connection with the securities being registered, the corresponding registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether or not such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

Each of the undersigned registrants hereby undertakes to respond to requests for information that are incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.

Each of the undersigned registrants hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orville, State of Ohio, on June 30, 2015.

 

POWER OF ATTORNEY

Each person whose signature appears above and below constitutes and appoints Richard K. Smucker, Mark R. Belgya and Jeannette L. Knudsen and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

 

Signature		Title		Date
/s/ Richard K. Smucker Richard K. Smucker		Chief Executive Officer and Director (Principal Executive Officer)		June 30, 2015
/s/ Mark R. Belgya Mark R. Belgya		Senior Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)		June 30, 2015
/s/ Timothy P. Smucker Timothy P. Smucker		Chairman of the Board (Chairman of the Board)		June 30, 2015
/s/ Vincent C. Byrd Vincent C. Byrd		Director (Vice Chairman)		June 30, 2015
/s/ Kathryn W. Dindo Kathryn W. Dindo		Director		June 30, 2015
/s/ Paul J. Dolan Paul J. Dolan		Director		June 30, 2015
/s/ Robert B. Heisler, Jr. Robert B. Heisler, Jr.		Director		June 30, 2015

 

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Signature		Title		Date
/s/ Nancy Lopez Knight Nancy Lopez Knight		Director		June 30, 2015
/s/ Elizabeth Valk Long Elizabeth Valk Long		Director		June 30, 2015
/s/ Gary A. Oatey Gary A. Oatey		Director		June 30, 2015
/s/ Sandra Pianalto Sandra Pianalto		Director		June 30, 2015
/s/ Alex Shumate Alex Shumate		Director		June 30, 2015
/s/ Mark T. Smucker Mark T. Smucker		Director		June 30, 2015
/s/ David J. West David J. West		Director		June 30, 2015

 

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SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orville, State of Ohio, on June 30, 2015.

 

POWER OF ATTORNEY

Each person whose signature appears above and below constitutes and appoints Richard K. Smucker, Mark R. Belgya and Jeannette L. Knudsen and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

 

Signature		Title		Date
/s/ Richard K. Smucker Richard K. Smucker		Chief Executive Officer (Principal Executive Officer) of J.M. Smucker LLC, and Chief Executive Officer of Smucker Foods, Inc. (its sole member)		June 30, 2015
/s/ Mark R. Belgya Mark R. Belgya		Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) of J.M. Smucker LLC, and Vice President and Chief Financial Officer of Smucker Foods, Inc. (its sole member)		June 30, 2015
/s/ Mark T. Smucker Mark T. Smucker		President and Director of Smucker Foods, Inc. (its sole member)		June 30, 2015

 

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SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Orrville, State of Ohio, on June 30, 2015.

 

POWER OF ATTORNEY

Each person whose signature appears above and below constitutes and appoints Richard K. Smucker, Mark R. Belgya and Jeannette L. Knudsen and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

 

Signature		Title		Date
/s/ Richard K. Smucker Richard K. Smucker		Chief Executive Officer and Director (Principal Executive Officer)		June 30, 2015
/s/ Mark R. Belgya Mark R. Belgya		Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)		June 30, 2015
/s/ Steven Oakland Steven Oakland		President and Director		June 30, 2015

 

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Table of Contents

EXHIBIT INDEX

 

Exhibit No.		Description of Exhibit
3.1		Amended Articles of Incorporation of The J. M. Smucker Company (incorporated herein by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q, filed on August 28, 2013)
3.2		Amended Regulations of The J. M. Smucker Company (incorporated herein by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q, filed on August 27, 2014)
3.3*		Articles of Organization of J.M. Smucker LLC
3.4*		Third Amended and Restated Operating Agreement of J.M. Smucker LLC
3.5*		Certificate of Incorporation of The Folgers Coffee Company
3.6*		Bylaws of The Folgers Coffee Company
4.1		Indenture, dated as of March 20, 2015, between The J. M. Smucker Company and U.S. Bank National Association, as trustee (incorporated herein by reference to Exhibit 4.1 to our Current Report on Form 8-K, filed on March 23, 2015)
4.2		First Supplemental Indenture, dated as of March 20, 2015, by and among The J. M. Smucker Company, the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated herein by reference to Exhibit 4.2 to our Current Report on Form 8-K, filed on March 23, 2015)
4.3		Third Amended and Restated Intercreditor Agreement, dated June 11, 2010, among KeyBank National Association and Bank of Montreal, as administrative agents, and the other parties identified therein (incorporated by reference to Exhibit 4.7 to our Form S-3, filed on October 13, 2011)
4.4		In accordance with Item 601(b)(4)(iii)(A) of Regulation S-K, certain instruments relating to long-term obligations of the Registrant have been omitted but will be furnished to the Commission upon request.
5.1*		Legal Opinion of Wachtell, Lipton, Rosen & Katz
5.2*		Legal Opinion of Calfee, Halter & Griswold LLP
5.3*		Legal Opinion of Potter Anderson & Corroon LLP
12.1*		Computation of Ratio of Earnings to Fixed Charges
23.1*		Consent of Wachtell, Lipton, Rosen & Katz (contained in Exhibit 5.1)
23.2*		Consent of Calfee, Halter & Griswold LLP (contained in Exhibit 5.2)
23.3*		Consent of Potter Anderson & Corroon LLP (contained in Exhibit 5.3)
23.4*		Consent of Ernst & Young LLP
23.5*		Consent of KPMG LLP
24.1*		Power of Attorney (included on signature pages attached hereto)
25.1*		Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of U.S. Bank National Association
99.1*		Form of Letter of Transmittal
99.2*		Form of Notice of Guaranteed Delivery
99.3*		Form of Letter from The J. M. Smucker Company to Brokers, Dealers
99.4*		Form of Letter to Clients

 

*	Filed herewith

Exhibit 3.3

 

DATE: DOCUMENT ID DESCRIPTION FILING EXPED PENALTY CERT COPY
04/25/2002 200211500478 ARTICLES OF ORGANIZATION/DOM.LLC (LCA) 125.00 .00 .00 .00 .00
Receipt
This is not a bill. Please do not remit payment.
C.T. CORPORATION SYSTEM
17 S. HIGH STREET
JAMES TANKS
COLUMBUS, OH 43215
STATE OF OHIO
Ohio Secretary of State, J. Kenneth Blackwell
1314485
It is hereby certified that the Secretary of State of Ohio has custody of the business records for
J.M. SMUCKER LLC and, that said business records show the filing and recording of:
Document(s) Document No(s):
ARTICLES OF ORGANIZATION/DOM.LLC 200211500478
United States of America State of Ohio Office of the Secretary of State Witness my hand and the seal of the Secretary of State at Columbus, Ohio this 25th day of April, A.D. 2002. Ohio Secretary of State

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www.state.oh.us/sos
e-mail: busserv@sos.state.oh.us
Prescribed by J. Kenneth Blackwell
Ohio Secretary of State
Central Ohio: (614) 466-3910
ww.state.oh.us/sos
Toll Free: 1-877-SOS-FILE (1-877-767-3453) Expedite this Form: (Select One) PO Box 1390 Yes Columbus, OH 43216 *** Requires an additional fee of $100 *** No PO Box 670 Columbus, OH 43216
ORGANIZATION / REGISTRATION OF LIMITED LIABILITY COMPANY
(Domestic or Foreign)
Filing Fee $125.00
THE UNDERSIGNED DESIRING TO FILE A:
(CHECK ONLY ONE (1) BOX)
(1) X Articles of Organization for
Domestic Limited Liability Company (115-LCA) ORC 1705 (2) Application for Registration of Foreign Limited Liability Company (106-LFA) ORC 1705 (Date of Formation) (State)
Complete the general information in this section for the box checked above.
Name J.M. Smucker LLC
Check here if additional provisions are attached
Complete the information in this section if box (1) is checked.
This limited liability company shall exist for
(Optional)
Purpose
(Optional)
The address to which interested persons may direct requests for copies of any operating agreement and any bylaws of this limited liability company is
(Optional)
(Name)
(Street) NOTE: P.O. Box Addresses are NOT acceptable.
(City) (State) (Zip Code)
533 Page 1 of 5 Last Revised: Jan. 2002
OR057 - 03/06/02 C T System Online
RECEIVED SECRETARY OF STATE
2002 APR 22 PM 3:58
CLIENT SERVICE CENTER
RECEIVED SECRETARY OF STATE
2002 APR 24 PM 4:08
CLIENT SERVICE CENTER

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Complete the information in this section if box (2) is checked.
The address to which interested persons may direct requests for copies of any operating agreement and any bylaws of this limited liability company is
(Optional)
(Name)
(Street) NOTE: P.O. Box Addresses are NOT acceptable.
(City) (State) (Zip Code)
The name under which the foreign limited liability company desires to transact business in Ohio is
The limited liability company hereby appoints the following as its agent upon whom process against the limited liability company may be served in the state of Ohio. The name and complete address of the agent is
(Name)
(Street) NOTE: P.O. Box Addresses are NOT acceptable.
Ohio
(City) (State) (Zip Code)
The limited liability company irrevocably consents to service of process on the agent listed above as long as the authority of the agent continues, and to service of process upon the OHIO SECRETARY OF STATE if:
a. the agent cannot be found, or
b. the limited liability company fails to designate another agent when required to do so, or
c. the limited liability company’s registration to do business in Ohio expires or is cancelled.
Must be authenticated by an authorized representative Authorized Representative Steven J. Ellcessor 4-19-02 Date
Authorized Representative Date
533 Page 3 of 5 Last Revised: Jan. 2002
OH087 - 03/06/02 C T System Online

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Complete the information in this section if box (1) is checked Cont.
ORIGINAL APPOINTMENT OF AGENT
The undersigned, being at least a majority of the members of
J.M. Smucker LLC
(name of limited liability) hereby appoint the following to be statutory agent upon whom any process, notice or demand required or permitted by statute to be served upon the limited liability company may be served. The name and address of the agent is:
C T Corporation System
(Name of Agent)
1300 East 9th Street
NOTE: P.O. Box Addresses are NOT acceptable.
Cleveland Ohio 44114
(City) (State) (Zip Code)
Must be authenticated by an
authorized representative 4-19-02
Authorized Representative Date
Steven J. Ellcessor
Authorized Representative Date
ACCEPTANCE OF APPOINTMENT
The undersigned, named herein as the statutory agent for J.M. Smucker LLC
(name of limited liability company) hereby acknowledges and accepts the appointment of agent for said limited liability Company.
C T Corporation System JOYCE A. GILBERT
ASSISTANT SECRETARY
By: (Agent’s signature)
533
Page 2 of 5 Last Revised: Jan. 2002
OH067 - 03/06/02 C T System Online

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www.state.oh.us/sos
e-mail: busserv@sos.state.oh.us
Prescribed by J. Kenneth Blackwell
Ohio Secretary of State
Central Ohio: (614) 466-3910 Toll Free: 1-877-SOS-FILE (1-877-767-3453)
CONSENT FOR USE OF SIMILAR NAME
(For Domestic / Foreign, Profit or Non-Profit)
Must Be Accompanied By Another Form
THE UNDERSIGNED DESIRING TO FILE A:
(CHECK ONLY ONE (1) BOX) This filing does not extend the registration period
X Where consenting entity is a Where consenting entity is a Where consenting entity is a
a corporation Limited Liability Company
Trade Name Limited Partnership
Service Mark Partnership Having Limited Liability
Trade Mark
(147-CSC) (149-CSN) (148-CSL)
Check here if additional provisions are attached
Charter or Registration No.of Entity Giving Consent 98575
Name of Entity
Giving Consent The J. M. Smucker Company
Gives Its Consent To J.M. Smucker LLC
To Use The Name J.M. Smucker LLC
Must be authenticated by an authorized representative 4/19/02
Authorized Representative Steven J. Ellcessor Date
Authorized Representative Dale
If the consenting party is a partnership, all general partners must sign. If only one partner is authorized to sign, a copy of the resolution authorizing the signature must be included.
590 Page 1 of 1 Last Revised: Jan. 2002
OR039 - 03/19/02 C T System Online

Exhibit 3.4

THIRD AMENDED AND RESTATED

OPERATING AGREEMENT

OF

J.M. SMUCKER LLC

This Third Amended and Restated Operating Agreement of J.M. Smucker LLC (the “Company”) is made and entered into effective as of April 30, 2012 by Smucker Foods, Inc., the sole member of the Company (the “Member”).

WHEREAS, The J. M. Smucker Company, the initial member of the Company (the “Initial Member”), formed and established the Company as a limited liability company under the laws of the State of Ohio and filed Articles of Organization with the Ohio Secretary of State for that purpose in accordance with the Ohio Revised Code;

WHEREAS, the Initial Member entered that certain Operating Agreement of the Company, dated as of April 25, 2002 (the “Original Agreement”), to govern the Company;

WHEREAS, the Initial Member amended and restated the Original Agreement by entering into that certain Amended and Restated Operating Agreement of the Company, dated as of March 6, 2007 (the “Amended Agreement”), to govern the Company;

WHEREAS, in connection with a corporate restructuring, the Initial Member transferred 100% of its membership interests in the Company to JMS Manufacturing, Inc. (the “New Member”), and the New Member amended and restated the Amended Agreement by entering into that certain Second Amended and Restated Operating Agreement of the Company, dated as of April 30, 2010 (the “Second Amended Agreement”), to govern the Company; and

WHEREAS, in connection with a corporate restructuring, the New Member transferred 100% of its membership interests in the Company to the Member, and the Member now desires to enter into this Agreement to supersede and replace the Second Amended Agreement.

NOW, THEREFORE, the Member hereby sets forth and declares in writing the following operating agreement for the Company, pursuant to the provisions of the laws of the State of Ohio:

ARTICLE I

Definitions

As used in this Agreement, the following terms shall have the following meanings:

1.01 “Act” means the Ohio Revised Code, as amended from time to time.

1.02 “Affiliate” means, with respect to the Member, (i) any Person that directly, or indirectly through any other Person or Persons, controls or is controlled by or is under common control with the Member; or (ii) any Person that is an officer of, member in or trustee of, or serves in a similar capacity with respect to the Member, or with respect to which the Member serves in such a capacity. For purposes of this Section 1.02, the term “control” means, with respect to any non-individual Person, the direct or indirect ownership of fifty percent (50%) or more of the voting stock or other voting interests of or in such Person.

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1.03 “Agreement” means this Third Amended and Restated Operating Agreement as originally executed and as amended, modified, supplemented or restated from time to time, as the context requires.

1.04 “Amended Agreement” is defined in the recitals above.

1.05 “Capital Contribution” means any contribution of cash or other property which is required to be made to the Company pursuant to the provisions of Section 3.01 hereof.

1.06 “Code” means the Internal Revenue Code of 1986, as amended from time to time unless otherwise indicated.

1.07 “Company” means J.M. Smucker LLC formed pursuant to the terms of the Original Agreement and the provisions of the Act, as such Company may from time to time be constituted.

1.08 “Fiscal Year” means the fiscal year commencing May 1 and ending April 30th or such other fiscal year of the Company as may be determined by the Member for federal income tax reporting purposes. Such term shall also refer to any short taxable year of the Company.

1.09 “Initial Member” is defined in the recitals above.

1.10 “Interest” means interest of the Member in the Company as set forth on Schedule A attached hereto.

1.11 “Member” means the Person set forth on Schedule A attached hereto in its capacity as a Member of the Company.

1.12 “New Member” is defined in the recitals above.

1.13 “Original Agreement” is defined in the recitals above.

1.14 “Person” means an individual, corporation, company, limited liability company, joint venture, trust, estate or unincorporated business association or organization or other legal entity.

1.15 “Second Amended Agreement” is defined in the recitals above.

1.16 “Subscription Agreement” means the agreement between the Company and the Initial Member evidencing the exchange of an Interest in the Company for the Member’s Capital Contribution.

 

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ARTICLE II

General Provisions

2.01 Name of the Company. The name of the Company shall be J.M. Smucker LLC, or such other name as the Member may from time to time determine. The Member shall cause to be filed on behalf of the Company such assumed or fictitious name certificate or certificates as may from time to time be required by law.

2.02 Purposes of the Company.

(a) Business. The business of the Company shall, to the extent permitted by law, be (i) to have and exercise all the powers necessary or convenient in connection with its business and purposes; and (ii) to engage in any lawful business, whether or not related or incidental to any of the foregoing activities or any activities related thereto. The Company may directly carry on any such activities or may do so as a joint venturer or partner with any other Person or Persons.

(b) Authorized Activities. In carrying out the purposes of the Company, but subject to all other provisions of this Agreement, and without limitation, the Company is authorized to:

(i) perform any and all activities which are permissible for an operating limited liability company;

(ii) borrow money and issue evidences of indebtedness in furtherance of any or all of the purposes of the Company, and to extend, repay, and renegotiate the terms of any such indebtedness, and to secure the same by mortgage, assignment, pledge, or grant of other security interest on assets of the Company;

(iii) enter into, perform, and carry out contracts and agreements of any kind, including contracts with the Member or any of its Affiliates, necessary or convenient or incidental to the accomplishment of the purposes of the Company;

(iv) bring and defend actions at law or in equity;

(v) make prudent interim investments, including, without limitation, obligations of federal, state and local governments or their agencies, mutual funds, commercial paper, money-market funds, and bank certificates of deposit; and

(vi) engage in any kind of lawful activity, and perform and carry out contracts of any kind and execute, acknowledge, and deliver instruments of any kind that are necessary or convenient and permitted by the Act in connection with the accomplishment of the purposes of the Company.

 

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2.03 Agent for Service of Process. Subject to removal and replacement by the Member at any time, CT Corporation System shall be the Company’s agent for service of process within the State of Ohio and shall have for such purpose the address of 1300 East 9th Street, Cleveland, Ohio 44114.

2.04 Place of Business of the Company. The principal place of business of the Company shall be located in Orrville, Ohio. The Member may, at any time and from time to time, change the location of the Company’s principal place of business, and may establish such additional place or places of business of the Company as it may from time to time determine.

2.05 Duration of the Company. The duration of the Company commenced on the date of filing of the Articles of Organization with the Ohio Secretary of State’s Office and shall continue in perpetuity thereafter until terminated or dissolved in accordance with Article IX hereof, or as otherwise provided by law.

2.06 Member Name and Address. The name and address of the Member are set forth on Schedule A attached hereto.

2.07 Title to Company Property. All property owned by the Company, whether real or personal, tangible or intangible, shall be deemed to be owned by the Company as an entity, and the Member, individually, shall not have any ownership of such property. The Company may hold any of its assets in its own name or in the name of a nominee, which nominee may be one or more Persons.

ARTICLE III

Capital Contributions, Member Loans

3.01 Initial Capital Contribution. The Initial Member made an initial contribution of $1,000 to the capital of the Company. Such Capital Contribution was exchanged for an Interest in the Company pursuant to the Subscription Agreement. No interest shall accrue on any contributions to the capital of the Company, and the Member shall not have the right to withdraw or to be repaid any capital contributed by it, except as specifically provided in this Agreement. The Member shall not be required to make any additional contributions to the capital of the Company.

3.02 Member Loans. In the event that funds are needed by the Company for its operations, the Member may loan such funds to the Company under such terms and conditions as may be agreed to between the Member and the Company.

ARTICLE IV

Distributions

4.01 Distribution of Profits. The Company, with consent of the Member, shall cause distributions to be made at such times and in such amounts as it may determine.

 

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ARTICLE V

Management

5.01 Management of the Company.

(a) Management and Duties. The Member will manage the Company. In addition, the Company may have such officer or officers as the Member may from time to time appoint, including, without limitation, one or more Chief Executive Officers, a President, a Chief Financial Officer, one or more Vice Presidents, a Treasurer and a Secretary. Each officer shall hold office at the pleasure of the Member and may be removed at any time from any office or offices, with or without cause, by and in the discretion of the Member. All officers shall possess and exercise the duties and authority of their respective offices subject to the authority and direction of the Member. All officers shall have such duties and authority with respect to the affairs of the Company as are customarily possessed by such officers of an Ohio corporation, except as such duties or authority may be limited or expanded by action of the Member from time to time.

(b) General Powers. The Company, acting through its Member or officers, shall have all the powers permitted by law which are necessary or desirable in carrying out the purposes of the Company, except as otherwise set forth in Section 5.01(c) hereof.

(c) Limitations on Powers. The powers set out in the preceding sections shall be exercised subject to certain limitations. Neither the Member nor any officer shall on behalf of the Company use the Company name or property in any way, except for the transaction of legitimate Company business, nor do any act in contravention of this Agreement.

(d) Indemnification. The Member and the officers of the Company shall be indemnified by the Company for any loss or liability paid or incurred by the Member or any such officer, and all fees, costs and expenses associated therewith, including, without limitation, reasonable attorneys’ fees, costs and expenses arising out of or related to any act performed by them within the scope of the authority conferred upon the Member or such officer by this Agreement; provided, however, such indemnity shall be payable only if the Member or officer, as applicable, (i) acted in good faith and in a manner he, she or it reasonably believed to be in, or not opposed to, the best interests of the Company, and (ii) had no reasonable grounds to believe that his, her or its conduct was negligent or unlawful. No indemnification may he made with respect to any act or omission of the Member or such officer for which the Member or officer shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of his, her or its duty to the Company unless, and only to the extent that, the court in which such action or suit was brought determines that in view of all the circumstances of the case, despite the adjudication of liability for gross negligence or willful misconduct, the Member or such officer is fairly and reasonably entitled to indemnity for those expenses which the court deems proper. To the extent not covered by insurance maintained by the Company, any indemnity under this subsection shall be paid from, and only to the extent of, Company assets, and neither the Member nor such officer shall have any personal liability to indemnify the Member or the Company on account thereof.

 

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5.02 Services of Member and Officers. During the existence of the Company, the Member and each officer appointed by the Member shall devote such time and effort to the Company business as may be necessary to promote adequately the interests of the Company and the Member.

ARTICLE VI

Books, Records and Bank Accounts

6.01 Books and Records. The Member shall keep at the Company’s principal place of business just and true books of account with respect to the operation of the Company. The Member, and its duly authorized representatives, shall at all reasonable times have access to such books. The books of the Company shall be kept on basis of accounting as the Member may determine, and otherwise in accordance with accounting methods employed for federal income tax reporting purposes for corporate entities, and shall be closed and balanced at the end of each Fiscal Year of the Company and at such other times as the Member may determine is appropriate.

6.02 Fiscal Year. The Fiscal Year of the Company shall be from May 1 to April 30.

6.03 Bank Accounts. The Member shall be responsible for causing any necessary or appropriate accounts to be maintained in a bank (or banks), which accounts may be used for the payment of the expenditures incurred in connection with the business of the Company, and in which may be deposited any and all cash receipts. All such amounts shall be and remain the property of the Company, and shall be received, held and disbursed by the Member for the purposes specified in this Agreement. There shall not be deposited in any of said accounts any funds other than funds belonging to the Company, and no other funds shall in any way be commingled with such funds.

ARTICLE VII

Tax Returns, Elections, Allocations

7.01 Company Tax Returns. The Member shall arrange for the preparation and filing of all necessary tax returns of the Company.

7.02 Tax Elections; Accounting. The Company shall elect to be treated as a corporation for purposes of the Code. The accrual basis of accounting shall be used as the Company’s accounting method. The Member shall, from time to time, make such other tax elections as it deems necessary or desirable in its sole discretion to carry out the business of the Company or the purposes of this Agreement.

 

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ARTICLE VIII

Transfers of Interest

8.01 Transfers of Interest. The Member will make no sale, exchange, disposition or other transfer of its Interest (or any interest therein) until this Agreement is amended to contemplate same.

ARTICLE IX

Dissolution

9.01 Dissolution. The Company shall be dissolved upon the earliest to occur of the following:

(i) The date of the written consent of the Member authorizing the dissolution of the Company;

(ii) The cessation of the Company as a going concern;

(iii) The cessation of the carrying on by the Company of any and all business, financial operations, and ventures of the Company;

(iv) The entry of a decree or order by a court of competent jurisdiction adjudging the Company as bankrupt or insolvent; or the institution by the Company of any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or similar proceeding under the law of any jurisdiction; or the institution of any such proceedings against the Company which shall remain undismissed for a period of sixty (60) days; or the application for or consent to the appointment of any receiver, trustee, custodian or similar officer for the Company, or for all or any substantial part of its property; or the appointment of any such receiver, trustee, custodian or any similar officer without the application or consent of the Company, as the case may be, and such appointment shall continue undischarged for a period of sixty (60) days; or

(v) The occurrence of any other event resulting in dissolution under the Act or any other applicable law of the State of Ohio.

9.02 Distribution Upon Dissolution.

(a) Upon the dissolution of the Company, its affairs shall be wound up and it shall be liquidated and the proceeds of such liquidation and the Company’s other assets shall be distributed as follows:

(i) All of the Company’s ascertained debts and liabilities to creditors shall be promptly paid and discharged in the order provided by applicable law;

(ii) A reserve shall be set aside in an amount reasonably required to provide for contingent or other liabilities; and

(iii) The remainder of the Company’s assets shall be distributed to the Member in liquidation of the Interests of the Member.

 

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(b) Distribution of cash or property to the Member in accordance with the provisions of Section 9.02(a) hereof shall constitute a complete return to the Member of its interest in the Company assets.

(c) The winding up of the Company’s affairs and the liquidation and distribution of its assets shall, subject to the provisions of the Code, be conducted by the Member, which is authorized to do any and all acts authorized by law for these purposes, or by a duly authorized liquidator.

9.03 Liquidation for Tax Purposes. Notwithstanding other provisions of this Agreement, in the event there is a liquidation of the Company for purposes of Section 331 or Section 332 of the Code, a distribution made to the Member upon complete liquidation shall be treated as full payment in exchange for the Member’s Interest.

ARTICLE X

Miscellaneous

10.01 Successors and Assigns. Subject to the restrictions on transfer set forth herein, this Agreement, and each and every provision hereof, shall be binding upon and shall inure to the benefit of the Member, its respective successors, successors-in-title, heirs and assigns, and each and every successor-in-interest by way of gift, purchase, foreclosure, or by any other method, shall hold such interest subject to all of the terms and provisions of this Agreement.

10.02 Amendment of Operating Agreement. No amendment shall become effective unless it has been approved in writing and executed by the Member.

10.03 Captions. Titles or captions of Articles or Sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

10.04 Applicable Law. This Agreement and the rights and obligations hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Ohio.

[The remainder of this page has been intentionally left blank.]

 

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IN WITNESS WHEREOF, the Member has executed this Third Amended and Restated Operating Agreement as of the day and year first above written.

 

MEMBER:
SMUCKER FOODS, INC.
By:		/s/ Jeannette L. Knudsen
		Name:		Jeannette L. Knudsen
		Title:		Vice President and Secretary

 

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SCHEDULE A

Company Interests

 

Name and Address of Member		Percent of Company Interest
Smucker Foods, Inc. One Strawberry Lane Orrville, OH 44667			100	%

 

Exhibit 3.5

CERTIFICATE OF INCORPORATION

OF

THE FOLGERS COFFEE COMPANY

FIRST

The name of the Corporation is The Folgers Coffee Company.

SECOND

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.

THIRD

The nature of the business or purpose to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law. In connection therewith, the Corporation shall possess and exercise all of the powers and privileges granted by the Delaware General Corporation Law or by this Certificate of Incorporation together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation.

FOURTH

The total number of shares of stock which the Corporation shall have the authority to issue is Three Thousand (3,000) shares of Common Stock, $.01 par value per share.

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FIFTH

The name and mailing address of the sole incorporator of the Corporation is as follows:

 

NAME		MAILING ADDRESS
Peter Farah		1 Strawberry Lane
		Orrville, Ohio 44667

SIXTH

The board of directors of the Corporation shall have the power to adopt, amend or repeal the by-laws of the Corporation.

SEVENTH

Section 203 of the Delaware General Corporation Law shall not apply to any business combination (as defined in Section 203(c)(3) of the Delaware General Corporation Law, as amended from time to time, or in any successor thereto, however denominated) in which the Corporation shall engage.

EIGHTH

The directors of the Corporation shall incur no personal liability to the Corporation or its stockholders for monetary damages for the breach of fiduciary duty as a director; provided, that such director liability shall not be limited or eliminated (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for any acts or omissions by the director not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit

 

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NINTH

The Certificate of Incorporation shall be effective on April 30, 2012 at 6:12 p.m., EST.

THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the Delaware General Corporation Law, does make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true under penalties of perjury, and accordingly I have hereunto set my hand this 30th day of April, 2012.

 

 

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Exhibit 3.6

THE FOLGERS COFFEE COMPANY

BYLAWS

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TABLE OF CONTENTS

 

				Page
ARTICLE I		MEETINGS OF STOCKHOLDERS			1
Section 1.		Time and Place of Meetings.			1
Section 2.		Annual Meeting.			1
Section 3.		Special Meetings.			1
Section 4.		Notice of Meetings.			1
Section 5.		Quorum.			1
Section 6.		Voting.			2
ARTICLE II		DIRECTORS			2
Section 1.		Powers.			2
Section 2.		Number and Term of Office.			2
Section 3.		Vacancies and New Directorships.			2
Section 4.		Regular Meetings.			3
Section 5.		Special Meetings.			3
Section 6.		Quorum.			3
Section 7.		Written Action.			3
Section 8.		Participation in Meetings by Conference Telephone.			3
Section 9.		Committees.			3
Section 10.		Compensation.			4
Section 11.		Rules.			4
ARTICLE III		NOTICES			4
Section 1.		Generally.			4
Section 2.		Waivers.			4
ARTICLE IV		OFFICERS			4
Section 1.		Generally.			4
Section 2.		Compensation.			5
Section 3.		Succession.			5
Section 4.		Authority and Duties.			5
Section 5.		Execution of Documents and Action with Respect to Securities of Other Corporations.			5
ARTICLE V		STOCK			5
Section 1.		Certificates.			5
Section 2.		Transfer.			6

 

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Section 3.		Lost Stolen or Destroyed Certificates.			6
Section 4.		Record Date.			6
ARTICLE VI		GENERAL PROVISIONS			7
Section 1.		Fiscal Year.			7
Section 2.		Corporate Seal.			7
Section 3.		Reliance upon Books, Reports and Records.			7
Section 4.		Time Periods.			7
Section 5.		Dividends.			7
ARTICLE VII		AMENDMENTS			8
Section 1.		Amendments.			8

 

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BYLAWS

ARTICLE I

MEETINGS OF STOCKHOLDERS

Section 1. Time and Place of Meetings. All meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, within or without the State of Delaware, as may be designated by the Board of Directors, or by the Chairman of the Board of Directors, the President or the Secretary in the absence of a designation by the Board of Directors, and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Stockholders may participate in an annual or special meeting of the stockholders by use of any means of communication by which all stockholders participating may simultaneously hear each other during the meeting. A stockholder’s participation in a meeting by any such means of communication constitutes presence in person at the meeting.

Section 2. Annual Meeting. An annual meeting of the stockholders shall be held at such date and time as shall be designated from time to time by the Board of Directors, at which meeting the stockholders shall elect by a plurality vote the directors to succeed those whose terms expire and shall transact such other business as may properly be brought before the meeting.

Section 3. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law or by the Certificate of Incorporation, may be called by the Board of Directors, the Chairman of the Board of Directors or the President.

Section 4. Notice of Meetings. Written notice of every meeting of the stockholders, stating the place, if any, date and hour of the meeting, the means of remote communication, if any, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting, except as otherwise provided herein or by law. When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof, and the means of remote communication, if any, are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, written notice of the place, date and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.

Section 5. Quorum. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by law or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present

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in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.

Section 6. Voting. Except as otherwise provided by law or by the Certificate of Incorporation, each stockholder shall be entitled at every meeting of the stockholders to one vote for each share of stock having voting power standing in the name of such stockholder on the books of the Corporation on the record date for the meeting and such votes may be cast either in person or by written proxy. Every proxy must be duly executed and filed with the Secretary of the Corporation. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. The vote upon any question brought before a meeting of the stockholders may be by voice vote, unless the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting shall so determine. When a quorum is present at any meeting, the vote of the holders of a majority of the stock that has voting power present in person or represented by proxy shall decide any question properly brought before such meeting, unless the question is one upon which by express provision of law, the Certificate of Incorporation or these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question.

ARTICLE II

DIRECTORS

Section 1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation directed or required to be exercised or done by the stockholders.

Section 2. Number and Term of Office. The Board of Directors shall consist of one or more members. The number of directors shall be fixed by resolution from time to time of the Board of Directors or by the stockholders at the annual meeting or a special meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3 of this Article, and each director elected shall hold office until his successor is elected and qualified, except as required by law. The Board of Directors may, at its discretion, elect a Chairman of the Board of Directors from the directors currently in office by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the Chairman so elected shall hold office until the next annual meeting of the stockholders and until his/her successor is elected and qualified, except as required by law. Any decrease in the authorized number of directors shall not be effective until the expiration of the term of the directors then in office, unless, at the time of such decrease, there shall be vacancies on the Board of Directors which are being eliminated by such decrease.

Section 3. Vacancies and New Directorships. Vacancies and newly created directorships resulting from any increase in the authorized number of directors which occur

 

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between annual meetings of the stockholders may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so elected shall hold office until the next annual meeting of the stockholders and until their successors are elected and qualified, except as required by law.

Section 4. Regular Meetings. Regular meetings of the Board of Directors may be held without notice immediately after the annual meeting of the stockholders and at such other time and place as shall from time to time be determined by the Board of Directors.

Section 5. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or the President on one day’s written notice to each director by whom such notice is not waived, given either personally or by mail or telegram, and shall be called by the President or the Secretary in like manner and on like notice on the written request of any two directors.

Section 6. Quorum. At all meetings of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time to another place, time or date, without notice other than announcement at the meeting, until a quorum shall be present.

Section 7. Written Action. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes or proceedings of the Board of Directors or Committee.

Section 8. Participation in Meetings by Conference Telephone. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any such committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 9. Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation and each to have such lawfully delegable powers and duties as the Board of Directors may confer. Each such committee shall serve at the pleasure of the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Except as otherwise provided by law, any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be

 

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affixed to all papers which may require it. Any committee or committees so designated by the Board of Directors shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Unless otherwise prescribed by the Board of Directors, a majority of the members of the committee shall constitute a quorum for the transaction of business, and the act of a majority of the members present at a meeting at which there is a quorum shall be the act of such committee. Each committee shall prescribe its own rules for calling and holding meetings and its method of procedure, subject to any rules prescribed by the Board of Directors, and shall keep a written record of all actions taken by it.

Section 10. Compensation. The Board of Directors may establish such compensation for, and reimbursement of the expenses of, directors for attendance at meetings of the Board of Directors or committees, or for other services by directors to the Corporation, as the Board of Directors may determine.

Section 11. Rules. The Board of Directors may adopt such special rules and regulations for the conduct of their meetings and the management of the affairs of the Corporation as they may deem proper, not inconsistent with law or these bylaws.

ARTICLE III

NOTICES

Section 1. Generally. Whenever by law or under the provisions of the Certificate of Incorporation or these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by facsimile, by telephone or by a form of electronic transmission consented to by the stockholder or director to whom the notice is given.

Section 2. Waivers. Whenever any notice is required to be given by law or under the provisions of the Certificate of Incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to such notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

ARTICLE IV

OFFICERS

Section 1. Generally. The officers of the Corporation shall be elected by the Board of Directors and shall consist of a President, a Secretary and a Treasurer. The Board of Directors may also elect such other officers as the Board of Directors deems desirable, including the election of a Chief Executive Officer and a Chief Financial Officer. Any number of offices may be held by the same person.

 

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Section 2. Compensation. The compensation of all officers and agents of the Corporation who are also directors of the Corporation shall be fixed by the Board of Directors. The Board of Directors may delegate the power to fix the compensation of other officers and agents of the Corporation to an officer of the Corporation.

Section 3. Succession. The officers of the Corporation shall hold office until their successors are elected and qualified or until such officers’ earlier resignation or removal. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the directors. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.

Section 4. Authority and Duties. Each of the officers of the Corporation shall have such authority and shall perform such duties as are customarily incident to their respective offices, or as may be specified from time to time by the Board of Directors in a resolution which is not inconsistent with these bylaws.

Section 5. Execution of Documents and Action with Respect to Securities of Other Corporations. The President shall have and is hereby given, full power and authority, except as otherwise required by law or directed by the Board of Directors, (a) to execute, on behalf of the Corporation, all duly authorized contracts, agreements, deeds, conveyances or other obligations of the Corporation, applications, consents, proxies and other powers of attorney, and other documents and instruments, and (b) to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders, members, partners or other equity holders (or with respect to any action of such stockholders, members, partners or other equity holders) of any other corporation, limited liability company, partnership or other entity in which the Corporation may hold securities and otherwise to exercise any and all rights and powers which the Corporation may possess by reason of its ownership of securities. In addition, the President may delegate to other officers, employees and agents of the Corporation the power and authority to take any action which the President is authorized to take under this Section 5, with such limitations as the President may specify; such authority so delegated by the President shall not be re-delegated by the person to whom such execution authority has been delegated.

ARTICLE V

STOCK

Section 1. Certificates. Certificates representing shares of stock of the Corporation shall be in such form as shall be determined by the Board of Directors, subject to applicable legal requirements. Such certificates shall be numbered and their issuance recorded in the books of the Corporation, and such certificate shall exhibit the holder’s name and the number of shares and shall be signed by, or in the name of the Corporation by the Chairman or Vice-Chairman of the Board of Directors or the President or Vice-President and the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the Corporation. Any or all of the signatures upon such certificates may be facsimiles, engraved or printed.

 

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Section 2. Transfer. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue, or to cause its transfer agent to issue, a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

Section 3. Lost Stolen or Destroyed Certificates. The Secretary may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may require the owner of such lost, stolen or destroyed certificate or certificates to give the Corporation a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate.

Section 4. Record Date.

(a) In order that the Corporation is able to determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

(b) In order that the Corporation may determine the stockholders entitled to consent to Corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation’s registered office shall be by hand or by certified

 

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or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

(c) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

ARTICLE VI

GENERAL PROVISIONS

Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by the Board of Directors.

Section 2. Corporate Seal. The Board of Directors may adopt a corporate seal and use the same by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 3. Reliance upon Books, Reports and Records. Each director, each member of a committee designated by the Board of Directors and each officer of the Corporation will, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board of Directors, or by any other person as to matters the director, committee member or officer reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

Section 4. Time Periods. In applying any provision of these bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded and the day of the event shall be included.

Section 5. Dividends. The Board of Directors may from time to time declare and the Corporation may pay dividends upon its outstanding shares of capital stock, in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation.

 

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ARTICLE VII

AMENDMENTS

Section 1. Amendments. These bylaws may be altered, amended or repealed, or new bylaws may be adopted, by the stockholders or by the Board of Directors.

 

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Exhibit 5.1

[Letterhead of Wachtell, Lipton, Rosen & Katz]

June 30, 2015

The J. M. Smucker Company

One Strawberry Lane

Orrville, OH 44667

 

Re:

The J. M. Smucker Company Registration Statement on Form S-4 filed on June 30, 2015

Ladies and Gentlemen:

We have acted as special counsel to The J. M. Smucker Company, an Ohio corporation (the “Company”), in connection with the registration, pursuant to a registration statement on Form S-4 (the “Registration Statement”), filed with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended (the “Act”), on the date hereof, of the proposed offer by the Company and certain subsidiaries of the Company who will act as guarantors (the “Registrant Guarantors”) to exchange (the “Exchange Offer”) (i) an aggregate principal amount of up to $500,000,000 of the Company’s outstanding 1.750% notes due 2018 (the “2018 Outstanding Notes”) for an equal principal amount of the Company’s registered 1.750% notes due 2018 (“2018 Registered Notes”), (ii) an aggregate principal amount of up to $500,000,000 of the Company’s outstanding 2.500% notes due 2020 (the “2020 Outstanding Notes”) for an equal principal amount of the Company’s registered 2.500% notes due 2020 (the “2020 Registered Notes”), (iii) an aggregate principal amount of up to $400,000,000 of the Company’s outstanding 3.000% notes due 2022 (the “2022 Outstanding Notes”) for an equal principal amount of the Company’s registered 3.000% notes due 2022 (the “2022 Registered Notes”), (iv) an aggregate principal amount of up to $1,000,000,000 of the Company’s outstanding 3.500% notes due 2025 (the “2025 Outstanding Notes”) for an equal principal amount of the Company’s registered 3.500% notes due 2025 (the “2025 Registered Notes”), (v) an aggregate principal amount of up to $650,000,000 of the Company’s outstanding 4.250% notes due 2035 (the “2035 Outstanding Notes”) for an equal principal amount of the Company’s registered 4.250% notes due 2035 (the “2035 Registered Notes”) and (vi) an aggregate principal amount of up to $600,000,000 of the Company’s outstanding 4.375% notes due 2045 (the “2045 Outstanding Notes” and, together with the 2018 Outstanding Notes, the 2020 Outstanding Notes, the 2022 Outstanding Notes, the 2025 Outstanding Notes and the 2035 Outstanding Notes, the “Outstanding Notes”) for an equal principal amount of the Company’s registered 4.375% notes due 2045 (the “2045 Registered Notes” and together with the 2018 Registered Notes, the 2020 Registered Notes, the 2022 Registered Notes, the 2025 Registered Notes and the 2035 Registered Notes, the “Registered Notes”) and the related guarantees thereof (the “Outstanding Guarantees”) for guarantees (the “Registered Guarantees”) of the guarantors listed in the Registration Statement pursuant to the Indenture referred to below, in each case the sale of which will be registered under the Act.

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The Company is proposing the Exchange Offer in accordance with the terms of a Registration Rights Agreement with respect to the Outstanding Notes by and among the Company, the Registrant Guarantors, J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representative of the initial purchasers referenced therein, dated as of March 20, 2015 (the “Registration Rights Agreement”). The Outstanding Notes and the Outstanding Guarantees have been, and the Registered Notes and the Registered Guarantees will be, issued pursuant to an Indenture, dated as of March 20, 2015 (the “Indenture”), by and among the Company, the guarantors party thereto and U.S. Bank National Association, as trustee (the “Trustee”).

We have examined originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter. The Registered Notes, the Registered Guarantees and the Indenture are referred to herein as the “Transaction Documents.” We have also conducted such investigations of fact and law as we have deemed necessary or advisable for purposes of this opinion letter. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies and the legal capacity of all individuals executing such documents. As to any facts material to this opinion that we did not independently establish or verify, we have, with your consent, relied upon the statements, certificates and representations of officers and other representatives of parties to the Transaction Documents and of the Company and the Registrant Guarantors. We have also assumed the valid authorization, execution and delivery of the Transaction Documents by each party thereto, and we have assumed that each such other party (in the case of parties which are not natural persons) has been duly organized and is validly existing and in good standing under its jurisdiction of organization, that each such other party has the legal capacity, power and authority to perform its obligations thereunder and that the Indenture constitutes the valid and binding obligation of the Trustee, enforceable against it in accordance with its terms. We have also assumed that the execution, delivery and performance by each of the Company and the Registrant Guarantors of the Transaction Documents to which it is a party have been duly authorized by all necessary action (corporate or otherwise) and do not contravene its respective certificate or articles of incorporation, limited liability company agreement, bylaws or other organizational documents; except with respect to Relevant Laws, violate any law, rule or regulation applicable to it; or result in any conflict with, or breach of any agreement or document binding on it. In addition, the enforceability of indemnification provisions may be subject to public policy considerations. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it.

We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, the Registrant Guarantors, the Transaction Documents or the transactions governed by the Transaction Documents and the federal securities laws of the United States of America, in each case as in effect on the date hereof (the “Relevant Laws”). Without limiting the generality of the foregoing definition of

 

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Relevant Laws, the term “Relevant Law” does not include any law, rule or regulation that is applicable to the Company, the Registrant Guarantors and the Transaction Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Transaction Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.

Insofar as the opinions expressed herein relate to or are dependent upon matters governed by (i) the laws of the State of Delaware, we have relied upon the letter dated June 30, 2015 of Potter Anderson & Corroon LLP and (ii) the laws of the State of Ohio, we have relied upon the letter dated June 30, 2015 of Calfee, Halter & Griswold LLP, in each case of clauses (i) through (ii), which are being filed as exhibits to the Registration Statement.

Based upon the foregoing, and subject to the qualifications set forth in this letter, it is our opinion that when (i) the Registration Statement has become effective under the Act, (ii) the Outstanding Notes have been exchanged in the manner described in the prospectus forming a part of the Registration Statement and in accordance with the Registration Rights Agreement, (iii) the Registered Notes have been duly executed, authenticated, issued and delivered by the Company in accordance with the terms of the Indenture against receipt of the Outstanding Notes surrendered in exchange therefor, (iv) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and (v) applicable provisions of “blue sky” laws have been complied with,

 

(a)

the Registered Notes proposed to be issued pursuant to the Exchange Offer will constitute valid and legally binding obligations of the Company, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law); and

 

(b)

the Registered Guarantees proposed to be issued pursuant to the Exchange Offer will constitute valid and legally binding obligations of each Registrant Guarantor, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).

We hereby consent to the filing of a copy of this letter as an exhibit to the Registration Statement and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder. This letter speaks as of its date, and we undertake no (and hereby disclaim any) obligation to update this letter.

Very truly yours,

/s/ Wachtell, Lipton, Rosen & Katz

 

3

Exhibit 5.2

Date: June 30, 2015

To: The J. M. Smucker Company

Strawberry Lane

Orrville, OH 44667-0280

Ladies and Gentlemen:

We have acted as special Ohio counsel to (i) The J. M. Smucker Company, an Ohio corporation (the “Company”), and (ii) J.M. Smucker LLC, an Ohio limited liability company (the “Ohio Guarantor”, and together with the Company, the “Opinion Parties”), in connection with a note exchange transaction whereby the Company and certain subsidiaries of the Company, including the Ohio Guarantor, who will act as guarantors, will exchange (i) the Company’s outstanding 1.750% notes due 2018 (the “2018 Outstanding Notes”) for an equal principal amount of the Company’s registered 1.750% notes due 2018 (“2018 Registered Notes”), (ii) an aggregate principal amount of up to $500,000,000 of the Company’s outstanding 2.500% notes due 2020 (the “2020 Outstanding Notes”) for an equal principal amount of the Company’s registered 2.500% notes due 2020 (the “2020 Registered Notes”), (iii) an aggregate principal amount of up to $400,000,000 of the Company’s outstanding 3.000% notes due 2022 (the “2022 Outstanding Notes”) for an equal principal amount of the Company’s registered 3.000% notes due 2022 (the “2022 Registered Notes”), (iv) an aggregate principal amount of up to $1,000,000,000 of the Company’s outstanding 3.500% notes due 2025 (the “2025 Outstanding Notes”) for an equal principal amount of the Company’s registered 3.500% notes due 2025 (the “2025 Registered Notes”), (v) an aggregate principal amount of up to $650,000,000 of the Company’s outstanding 4.250% notes due 2035 (the “2035 Outstanding Notes”) for an equal principal amount of the Company’s registered 4.250% notes due 2035 (the “2035 Registered Notes”) and (vi) an aggregate principal amount of up to $600,000,000 of the Company’s outstanding 4.375% notes due 2045 (the “2045 Outstanding Notes” and, together with the 2018 Outstanding Notes, the 2020 Outstanding Notes, the 2022 Outstanding Notes, the 2025 Outstanding Notes and the 2035 Outstanding Notes, the “Outstanding Notes”) for an equal principal amount of the Company’s registered 4.375% notes due 2045 (the “2045 Registered Notes” and together with the 2018 Registered Notes, the 2020 Registered Notes, the 2022 Registered Notes, the 2025 Registered Notes and the 2035 Registered Notes, the “Registered Notes”) and the related guarantees thereof (the “Outstanding Guarantees”) for guarantees (the “Registered Guarantees”) of the guarantors listed in the Registration Statement on Form S-4 (the Registration Statement”) pursuant to the Indenture referred to below, in each case the sale of which will be registered under the Act (the “Exchange Offer”) as more specifically described in the Registration Statement for the Company proposed to be filed on the date hereof.

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In rendering the opinions set forth herein, we have examined the following documents dated of even date herewith, or dated with such other date as set forth below, as applicable:

(a) An executed copy of the Purchase Agreement, dated as of March 12, 2015 (the “Purchase Agreement”), among the Opinion Parties, The Folgers Coffee Company, a Delaware corporation (“Folgers”), and J.P. Morgan Securities LLC (“JPM”) and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“ML”, and together with JPM, the “Representatives”), for themselves and on behalf of the several Initial Purchasers listed in Schedule 1 to the Purchase Agreement;

(b) An executed copy of the Registration Rights Agreement, dated as of March 20, 2015 (the “Registration Rights Agreement”), executed by the Opinion Parties, Folgers, and the Representatives;

(c) An executed copy of the Indenture, dated as of March 20, 2015 (the “Indenture”), executed by the Company and U.S. Bank National Association, as trustee (the “Trustee”);

(d) An executed copy of the First Supplemental Indenture, dated as of March 20, 2015 (the “First Supplemental Indenture”), executed by the Opinion Parties, Folgers, and the Trustee;

(e) A copy of the Amended Articles of Incorporation of the Company, issued by the Secretary of State of Ohio and certified as being true and correct as of February 19, 2015 (the “Company Articles of Incorporation”), certified as true and complete as of the date hereof by the Corporate Secretary of the Company;

(f) A copy of the Amended Regulations of the Company (the “Company Regulations”), certified as true and complete as of the date hereof by the Corporate Secretary of the Company;

(g) A copy of resolutions adopted by the board of directors of the Company at a meeting and a copy of resolutions adopted by the pricing committee of the board of the directors of the Company by written consent, authorizing, inter alia, the execution and delivery of the Transaction Documents (as defined below) to which Company is a party, certified as unmodified and in full force and effect as of the date hereof by the Corporate Secretary of the Company;

(h) A certificate from the Secretary of State of Ohio, dated June 26, 2015, with respect to the status of the Company as a corporation in good standing under the laws of the State of Ohio as of such date (the “Company Good Standing Certificate”);

(i) A copy of the Articles of Organization of the Ohio Guarantor, issued by the Secretary of State of Ohio and certified as being true and correct as of February 19, 2015 (the “Ohio Guarantor Articles of Organization”, and together with the Company Articles of Incorporation, the “Formation Documents”), certified as true and complete as of the date hereof by the Secretary of the Ohio Guarantor;

(j) A copy of the Third Amended and Restated Operating Agreement of the Ohio Guarantor (the “Ohio Guarantor Operating Agreement”, and together with the Company Regulations, the “Operative Documents”), certified as true and complete as of the date hereof by the Secretary of the Ohio Guarantor;

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(k) A copy of resolutions adopted by the sole member of the Ohio Guarantor by written consent, authorizing, inter alia, the execution and delivery of the Transaction Documents to which the Ohio Guarantor is a party, certified as unmodified and in full force and effect as of the date hereof by the Secretary of the Ohio Guarantor;

(l) A certificate from the Secretary of State of Ohio, dated June 26, 2015, with respect to the status of the Ohio Guarantor as a limited liability company in full force and effect under the laws of the State of Ohio as of such date (the “Ohio Guarantor Good Standing Certificate”, and together with the Company Good Standing Certificate, the “Good Standing Certificates”);

(m) The Officer’s Certificate, the form of which is attached hereto as Schedule 1 (“Opinion Certificate”); and

(n) Such other business entity documents of the Opinion Parties and records certifications or representations as to factual matters of public officials and officers of Opinion Parties and such other documents as we have deemed necessary or appropriate for the purpose of this opinion.

The Registered Notes, the Registered Guarantees of the Ohio Guarantor, the Purchase Agreement, the Registration Rights Agreement, the Indenture and the First Supplemental Indenture are collectively referred to herein as the “Transaction Documents.”

The opinions expressed herein are limited to the laws of the State of Ohio (the “State”). In rendering our opinions, we have not conducted any investigation into the types of businesses and activities in which any Opinion Party engages or the manner in which any Opinion Party conducts its business. Accordingly, our opinions with respect to the laws of the State are expressly limited to laws or governmental regulations of general applicability to corporations for profit (“General Laws”). We are not expressing any opinion concerning laws of particular applicability including, without limitation, municipal ordinances, zoning regulations, applicable municipal or quasi-municipal licenses, permits or approvals, taxation or any orders or judgments relating to any Opinion Party.

The opinions hereinafter expressed are premised upon the assumptions that (i) all records and documents examined by us in connection with the preparation of this opinion letter are authentic and, to the extent material to any opinion hereinafter expressed, accurate, and, to the extent represented by photostatic or certified copies, conform to the respective originals; (ii) all signatures contained in such records and documents are genuine signatures of the parties purporting to have signed the same; (iii) all natural persons signing said documents and records had, at the time of such signing, full legal capacity to sign and deliver said documents and records; (iv) each of the Transaction Documents are the legal, valid and binding obligations of each of the parties thereto (other than the Opinion Parties), enforceable against such party in accordance with their respective terms; (v) each party to any of the Transaction Documents (other than the Opinion Parties) has been duly incorporated, organized or formed, and is validly

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existing under the laws of the jurisdiction in which such party is incorporated, organized or formed; (vi) each party to any of the Transaction Documents (other than the Opinion Parties) has all requisite power and authority as an entity to own and lease assets and to enter into and perform the Transaction Documents to which it is a party; (vii) the execution, delivery and performance of the Transaction Documents have been duly authorized by each party thereto (other than the Opinion Parties) and the Transaction Documents have been duly executed and delivered by each party thereto (other than the Opinion Parties); (viii) no action has been taken which amends, revokes or terminates any of the corporate and organizational documents and records, certificates and representations which we have reviewed, and all representations and warranties in the Transaction Documents are true in all respects; (ix) each party to any of the Transaction Documents (other than the Opinion Parties with respect to the General Laws) has complied, and will continue to comply, with all laws, rules and regulations of the State applicable to it as a corporation or other entity doing business in, or required to file a notice with, the State; (x) with respect to each party to any of the Transaction Documents, the execution, delivery and/or performance of the Transaction Documents to which it is a party will not (a) violate any provision of law applicable to such party (other than the Opinion Parties with respect to the General Laws), (b) violate any order, judgment or decree of any court or other agency of government binding on such party, (c) constitute tortious interference with any contractual obligation binding on such party, or (d) conflict with, result in a breach of, constitute (with or without notice or lapse of time or both) a default under, or require the termination of, any contractual obligation of such party; and (xi) documents (other than the Transaction Documents and the Business Entity Documents (as defined below)) examined by us in connection with the preparation of this opinion were or are, to the extent material to any opinion hereinafter expressed, accurate.

We have further assumed, without independent investigation, that each party to any of the Transaction Documents will perform each of the Transaction Documents to which it is a party in good faith and will act reasonably in exercising any discretion thereunder.

We have relied upon the above-referenced (a) Formation Documents, (b) Operative Documents, and (c) the Good Standing Certificates (collectively, the “Business Entity Documents”). We have not conducted an independent review or investigation of the matters set forth therein. Any opinion hereinafter set forth relative to the organization, valid existence, good standing, full force and effect, or authorization to do business of any Opinion Party is based solely upon the Business Entity Documents. Although we have neither independently investigated nor attempted to verify or establish the accuracy or completeness of the matters set forth in the items referred to in the Business Entity Documents, nothing has come to the attention of those attorneys in our firm who have, as attorneys, devoted substantive attention to the transactions contemplated by the Transaction Documents which would lead us to question the accuracy of such matters.

Insofar as an opinion relates to our knowledge, we have relied solely upon the Opinion Certificate with respect to the accuracy and completeness of the factual matters contained in such certificate and we have not independently verified or established the accuracy or completeness of such factual matters, but in the course of our representation of the Opinion Parties nothing has come to the attention of those attorneys in our firm who have, as attorneys, devoted substantive attention to the transactions contemplated by the Transaction Documents that makes such reliance unwarranted or that leads us to question the accuracy or completeness of the Opinion

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Certificate. In each place where the phrase “to our knowledge” or similar language appears, such reference is based upon the actual knowledge of the attorneys in this office who have, as attorneys, devoted substantive attention to the representation of the Opinion Parties.

Based upon and subject to the foregoing, and upon such further investigation of law as we have deemed necessary, and subject to the qualifications, exceptions, limitations and further assumptions set forth below, we are of the opinion that:

1. The Company is incorporated, is validly existing as a corporation and is in good standing under the laws of the State. The Ohio Guarantor is a limited liability company validly existing and in full force and effect under the laws of the State. Each Opinion Party has the corporate or limited liability company power and authority (a) to own and operate its properties and assets and to engage in its business as presently conducted, and (b) as applicable, to execute, deliver and perform each of the Transaction Documents to which such Opinion Party is a party.

2. The execution, delivery and performance of each of the Transaction Documents to which an Opinion Party is a party have been duly authorized by all necessary corporate or limited liability company action, as applicable, on the part of such Opinion Party.

3. Each Opinion Party has duly executed and delivered the Transaction Documents to which it is a party (other than the Registered Notes and the Registered Guarantees of the Ohio Guarantor to be executed and delivered upon completion of the Exchange Offer).

4. Neither the execution nor delivery by any Opinion Party of the Transaction Documents to which it is a party, nor the performance by any Opinion Party of its obligations thereunder: (i) violates any provision of the Formation Documents or Operative Documents; (ii) violates any General Laws of the State applicable to any Opinion Party, (iii) to our knowledge, violates any order of any Ohio governmental authority or court having jurisdiction over the Opinion Parties or any of their respective properties; or (iv) pursuant to the General Laws applicable to any Opinion Party (including any securities or Blue Sky law of the State), requires the consent or approval of, or any filing or registration with, any governmental body, agency or authority other than those which have been obtained.

The foregoing opinions are subject to the following further assumptions, limitations, qualifications and exceptions:

a) Our opinions are subject to and affected by (i) applicable bankruptcy, insolvency, avoidance, reorganization, bulk transfer, moratorium or similar laws affecting the rights of creditors generally including, without limitation, statutory and other laws regarding fraudulent transfers and conveyances and preferential transfers, and (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law).

b) Our opinion in Section 4 above relates only to consents, approvals, authorizations, registrations, declarations and filings which, in our experience, without our having made any special investigation with respect thereto, are generally applicable to business corporations for profit or limited liability companies entering into transactions of the type provided for in the Transaction Documents.

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c) Except to the extent specifically set forth in our opinion in Section 4 above, we express no opinion as to the effect of, or compliance with, any United States federal or state laws regarding securities or Blue Sky laws, rules or regulations.

We express no opinion as to the effect or applicability of any law of any other jurisdiction or as to any provision in any of the Transaction Documents providing for the application of any other law. To the extent the laws of the State of New York govern the matters as to which the opinions expressed herein are rendered, you may rely upon our opinions as opinions with respect to the laws of the State of New York to the extent such laws are the same as or are construed or applied so as to have the same effect as the comparable laws of the State. We express no opinion as to whether the laws of the State of New York are the same as or may be construed or applied so as to have the same effect as the comparable laws of the State.

This opinion is limited to the matters expressly stated herein. Nothing is intended to be implied herein, and no inference may be drawn from this opinion to extend this opinion beyond the matters expressly stated herein. This opinion is being delivered to you in connection with the Registration Statement.

We hereby consent to the filing of a copy of this opinion as an exhibit to the Registration Statement, and to the use of our name in the prospectus forming a part of such Registration Statement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 and the rules and regulations thereunder. We also consent to the reliance by Wachtell, Lipton, Rosen & Katz on the opinions expressed herein. This letter speaks as of its date, and we undertake no (and hereby disclaim any) obligation to update this letter.

Very truly yours,

/s/ CALFEE, HALTER & GRISWOLD LLP

Exhibit 5.3

[Letterhead of Potter Anderson & Corroon LLP]

June 30, 2015

The J. M. Smucker Company

Strawberry Lane

Orrville, OH 44667-0280

 

RE:

The Folgers Coffee Company

Ladies and Gentlemen:

We have acted as Delaware counsel for The Folgers Coffee Company, a Delaware corporation (the “Company”), in connection with the Indenture and First Supplemental Indenture, each dated as of March 20, 2015 (jointly, the “Indenture”), among The J. M. Smucker Company, an Ohio corporation (“Smucker Co”), J.M. Smucker LLC, an Ohio limited liability company, the Company and U.S. Bank National Association, as indenture trustee. This opinion is being provided to you at the request of the Company.

For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of executed or conformed counterparts, or copies or forms otherwise proved to our satisfaction, of the following:

(a) the Certificate of Incorporation of the Company as filed with the office of the Secretary of State of the State of Delaware (the “Delaware Secretary of State”) on April 30, 2012;

(b) the Bylaws of the Company;

(c) the unanimous written consent/resolutions of the Board of Directors of the Company adopted on March 2, 2015;

(d) the Secretary’s Certificate of the Company dated June 30, 2015;

(e) the Indenture;

(f) the Registration Statement on Form S-4 filed with the Securities and Exchange Commission (the “Commission”) by Smucker Co on June 30, 2015 pursuant to the Securities Act of 1933, as amended (the “Securities Act”), covering, among other things, the guarantee by the Company of debt securities offered from time to time by affiliates thereof (the “Registration Statement”); and

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The Folgers Coffee Company

June 30, 2015

Page 2

 

(g) a certificate of good standing for the Company issued by the Delaware Secretary of State on or about the date hereof.

For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (g) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (g) above) that is referred to in or incorporated by reference into any document reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that bears upon or is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein, and the additional matters recited or assumed herein, all of which we have assumed to be true, complete, and accurate in all material respects.

With respect to all documents examined by us, we have assumed that (i) all signatures on documents examined by us are genuine, (ii) all documents submitted to us as originals are authentic, and (iii) all documents submitted to us as copies or drafts conform to the originals of those documents.

For purposes of this opinion, we have assumed (i) the legal capacity of all natural persons who are signatories to the documents examined by us, (ii) except to the extent set forth in opinion paragraph 1 below, the due organization or due formation, as the case may be, and valid existence and good standing of each party to the documents examined by us, (iii) except to the extent set forth in opinion paragraph 2 below, that each party to the documents examined by us has all necessary power and authority to enter into and deliver such documents and to perform its respective obligations thereunder, (iv) except to the extent set forth in opinion paragraphs 3 and 4 below, the due authorization, execution, and delivery by all parties thereto of all documents examined by us, and (v) that the documents examined by us set forth the entire understanding among the parties thereto with respect to the subject matter thereof, are in full force and effect, and have not been amended, revoked, or modified (except as herein referenced).

This opinion is limited to the laws of the State of Delaware (excluding the securities and blue sky laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including, without limitation, federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations, and orders thereunder that are currently in effect. Our opinions are rendered only as of the date hereof, and we expressly disclaim any obligation to update such opinions with regard to changes in law or events occurring after the date hereof.

Based upon the foregoing, and subject to the assumptions, qualifications, limitations, and exceptions set forth herein, we are of the opinion that, under Delaware law:

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The Folgers Coffee Company

June 30, 2015

Page 3

 

1. The Company is duly incorporated, validly existing, and in good standing as a corporation under the laws of the State of Delaware.

2. The Company has the necessary corporate power and authority to execute and deliver, and to perform its obligations under, the Indenture.

3. The execution, delivery, and performance by the Company of the Indenture have been duly authorized by all necessary corporate action on behalf of the Company.

4. The Company has duly executed and delivered the Indenture.

The opinions in this letter are subject to the following assumptions, qualifications, limitations and exceptions, in addition to those above:

We express no opinion (a) as to the Uniform Commercial Code or as to whether any filings may be required thereunder in connection with any of the documents examined by us (including, without limitation, the Indenture), (b) as to any person’s or entity’s ownership of, title to, or interests in any property, or (c) as to any document that is referred to or incorporated by reference into any document reviewed by us.

We consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to the reliance by Wachtell, Lipton, Rosen & Katz on the opinions expressed herein. In addition, we hereby consent to the use of our name under the heading “Legal Matters” in the Registration Statement. In giving the foregoing consents, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Potter Anderson & Corroon LLP

Exhibit 12.1

The J. M. Smucker Company

Computation of Ratio of Earnings to Fixed Charges

(in millions of dollars)

 

		Year Ended April 30,
		2015				2014				2013				2012				2011
Earnings before fixed charges:
Income before income taxes		$	523.0			$	849.7			$	817.3			$	701.2			$	717.2
Total fixed charges			108.8				104.4				119.4				105.8				90.6
Less: capitalized interest			(4.9	)			(3.2	)			(4.7	)			(5.7	)			(1.8	)
Earnings available for fixed charges		$	626.9			$	950.9			$	932.0			$	801.3			$	806.0
Fixed charges:
Interest and other debt expense, net of capitalized interest		$	81.5			$	81.0			$	95.0			$	81.3			$	69.6
Capitalized interest			4.9				3.2				4.7				5.7				1.8
Estimated interest portion of rent expense (a)			22.4				20.2				19.7				18.8				19.2
Total fixed charges		$	108.8			$	104.4			$	119.4			$	105.8			$	90.6
Ratio of earnings to fixed charges			5.8				9.1				7.8				7.6				8.9

 

(a)	For purposes of this calculation, management estimates approximately one-third of rent expense is representative of interest expense.

Exhibit 23.4

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-4) and related Prospectus of The J. M. Smucker Company for the registration of debt securities and to the incorporation by reference therein of our reports dated June 25, 2015, with respect to the consolidated financial statements of The J. M. Smucker Company, and the effectiveness of internal control over financial reporting of The J. M. Smucker Company, incorporated by reference in its Annual Report (Form 10-K) for the year ended April 30, 2015, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Akron, Ohio

June 29, 2015

Exhibit 23.5

Consent of Independent Auditors

We consent to the incorporation by reference in this registration statement on Form S-4 of The J. M. Smucker Company of our report dated March 5, 2015, with respect to the consolidated balance sheets of Blue Acquisition Group, Inc. as of April 27, 2014 and April 28, 2013, and the related consolidated statements of operations, comprehensive income (loss), temporary equity and stockholders’ equity and cash flows for the years ended April 27, 2014, April 28, 2013, and April 29, 2012, which report appears in the Current Report on Form 8-K of The J. M. Smucker Company dated March 23, 2015 and to the reference to our firm under the heading “Experts” in the prospectus.

/s/ KPMG LLP

San Francisco, California

June 30, 2015

Exhibit 25.1

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM T-1

 

 

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939

OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

¨	Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)

 

 

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

 

 

31-0841368

I.R.S. Employer Identification No.

 

800 Nicollet Mall Minneapolis, Minnesota		55402
(Address of principal executive offices)		(Zip Code)

Holly H. Pattison

U.S. Bank National Association

1350 Euclid Avenue

Cleveland, OH 44115

(216) 623-5976

(Name, address and telephone number of agent for service)

 

 

The J. M. Smucker Company

(Issuer with respect to the Securities)

 

 

 

Ohio		34-0538550
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

One Strawberry Lane Orville, Ohio		44667
(Address of Principal Executive Offices)		(Zip Code)

1.750% Notes Due 2018

2.500% Notes Due 2020

3.000% Notes Due 2022

3.500% Notes Due 2025

4.250% Notes Due 2035

4.375% Notes Due 2045

 

 

(Title of the Indenture Securities)

 

 

 

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See Table of Additional Registrants

(As Guarantors)

Table of Additional Registrants

The following domestic subsidiaries of The J. M. Smucker Company are guarantors of the new notes and are co-registrants:

 

Exact Name of Registrant as Specified in its Charter		State or Other Jurisdiction of Incorporation or Organization		Primary Standard Industrial Classification Code Number		I.R.S. Employer Identification No.
J.M. Smucker LLC		Ohio		2033		03-0434070
The Folgers Coffee Company		Delaware		2090		26-1708101

 

*	Both subsidiary guarantor registrants have the following principal executive office:

c/o The J. M. Smucker Company

One Strawberry Lane

Orrville, Ohio 44667-0280

(330) 682-3000

 

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FORM T-1

 

Item 1.

GENERAL INFORMATION. Furnish the following information as to the Trustee.

 

a)

Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency

Washington, D.C.

 

b)

Whether it is authorized to exercise corporate trust powers.

Yes

 

Item 2.

AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.

None

 

Items 3-15

Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16.

LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.

A copy of the Articles of Association of the Trustee.*

 

2.

A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

 

3.

A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

 

4.

A copy of the existing bylaws of the Trustee.**

 

5.

A copy of each Indenture referred to in Item 4. Not applicable.

 

6.

The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

 

7.

Report of Condition of the Trustee as of March 31, 2015 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

 

*	Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

**	Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.

 

3

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SIGNATURE

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cleveland, Ohio on the 30th of June, 2015.

 

 

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Exhibit 2

 

CERTIFICATE OF CORPORATE EXISTENCE

I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:

1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.

 

		IN TESTIMONY WHEREOF, today, January 21, 2015, 1 have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
		Comptroller of the Currency

 

5

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Exhibit 3

 

CERTIFICATION OF FIDUCIARY POWERS

I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:

1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No, 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.

 

		IN TESTIMONY WHEREOF, today, January 21, 2015, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
		Comptroller of the Currency

 

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Exhibit 6

CONSENT

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

Dated: June 30, 2015

 

 

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Exhibit 7

U.S. Bank National Association

Statement of Financial Condition

As of 3/31/2015

($000’s)

 

		3/31/2015
Assets
Cash and Balances Due From Depository Institutions		$	14,048,386
Securities			101,980,067
Federal Funds			48,958
Loans & Lease Financing Receivables			248,152,881
Fixed Assets			4,794,618
Intangible Assets			12,898,132
Other Assets			23,440,131
Total Assets		$	405,363,173
Liabilities
Deposits		$	297,444,787
Fed Funds			1,856,185
Treasury Demand Notes			0
Trading Liabilities			1,179,175
Other Borrowed Money			46,898,693
Acceptances			0
Subordinated Notes and Debentures			3,650,000
Other Liabilities			12,682,543
Total Liabilities		$	363,711,383
Equity
Common and Preferred Stock			18,200
Surplus			14,266,400
Undivided Profits			26,511,651
Minority Interest in Subsidiaries			855,539
Total Equity Capital		$	41,651,790
Total Liabilities and Equity Capital		$	405,363,173

 

8

Exhibit 99.1

 

THE J. M. SMUCKER COMPANY

LETTER OF TRANSMITTAL

OFFER TO EXCHANGE

$500,000,000 PRINCIPAL AMOUNT OF ITS 1.750% NOTES DUE 2018, THE ISSUANCE OF WHICH

HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 1.750% NOTES DUE 2018

$500,000,000 PRINCIPAL AMOUNT OF ITS 2.500% NOTES DUE 2020, THE ISSUANCE OF WHICH

HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 2.500% NOTES DUE 2020

$400,000,000 PRINCIPAL AMOUNT OF ITS 3.000% NOTES DUE 2022, THE ISSUANCE OF WHICH

HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 3.000% NOTES DUE 2022

$1,000,000,000 PRINCIPAL AMOUNT OF ITS 3.500% NOTES DUE 2025, THE ISSUANCE OF WHICH

HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 3.500% NOTES DUE 2025

$650,000,000 PRINCIPAL AMOUNT OF ITS 4.250% NOTES DUE 2035, THE ISSUANCE OF WHICH

HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 4.250% NOTES DUE 2035

$600,000,000 PRINCIPAL AMOUNT OF ITS 4.375% NOTES DUE 2045, THE ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 4.375% NOTES DUE 2045

 

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The Exchange Agent is:

U.S. BANK NATIONAL ASSOCIATION

 

By Mail:		By Registered, Certified or Express Mail or by Overnight Courier:
U.S. Bank National Association Attn: Corporate Actions 111 Fillmore Avenue St. Paul, MN 55107-1402		U.S. Bank National Association Attn: Corporate Actions 111 Fillmore Avenue St. Paul, MN 55107-1402
By Facsimile (for Eligible Institutions Only) for Guarantee of Delivery Only:
U.S. Bank National Association Facsimile: (651) 466-7367 Confirm By Telephone: (800) 934-6802

Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a valid delivery. Only hard copies of this Letter of Transmittal or presentations via ATOP through the Depository Trust Company will be accepted.

Questions and requests for assistance or for additional copies of the Prospectus or of the Letter of Transmittal and or related materials must be directed to the Exchange Agent by calling (800) 934-6802.

The undersigned acknowledges receipt of the Prospectus dated [●], 2015 (the “Prospectus”) of The J. M. Smucker Company (the “Issuer”), and this Letter of Transmittal (the “Letter of Transmittal”), which together describe the Issuer’s offer (the “Exchange Offer”) to exchange its (i) 1.750% Notes due 2018 that have been registered under the Securities Act of 1933, as amended (the “Securities Act”) (the “2018 exchange notes”) for its outstanding 1.750% Notes due 2018 that were issued in a private placement (the “2018 old notes”), (ii) 2.500% Notes due 2020 that have been registered under the Securities Act (the “2020 exchange notes”) for its outstanding 2.500% Notes due 2020 that were issued in a private placement (the “2020 old notes”), (iii) 3.000% Notes due 2022 that have been registered under the Securities Act (the “2022 exchange notes”) for its outstanding 3.000% Notes due 2022 that were issued in a private placement (the “2022 old notes”), (iv) 3.500% Notes due 2025 that have been registered under the Securities Act (the “2025 exchange notes”) for its outstanding 3.500% Notes due 2025 that were issued in a private placement (the “2025 old notes”), (v) 4.250% Notes due 2035 that have been registered under the Securities Act (the “2035 exchange notes”) for its outstanding 4.250% Notes due 2035 that were issued in a private placement (the “2035 old notes”), and (vi) 4.375% Notes due 2045 that have been registered under the Securities Act (the “2045 exchange notes” and together with the 2018 exchange notes, the 2020 exchange notes, the 2022 exchange notes, the 2025 exchange notes, and the 2035 exchanges, the “Exchange Notes”) for its outstanding 4.375% Notes due 2045 that were issued in a private placement (the “2045 old notes” and, together with the 2018 old notes, the 2020 old notes, the 2022 old notes, the 2025 old notes and the 2035 old notes, the “Old Notes” and, together with the Exchange Notes, the “Notes”) from the holders thereof.

The Old Notes are unconditionally guaranteed (the “Old Guarantees”) by J.M. Smucker LLC and The Folgers Coffee Company (the “Guarantors”), and the Exchange Notes will be unconditionally guaranteed (the “New Guarantees”) by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and this Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Old Notes for which such

 

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Exchange Notes are issued in the Exchange Offer. Throughout this Letter of Transmittal, unless the context otherwise requires and whether so expressed or not, references to the “Exchange Offer” include the Guarantors’ offer to exchange the New Guarantees for the Old Guarantees, references to the “Exchange Notes” include the related New Guarantees and references to the “Old Notes” include the related Old Guarantees.

The terms of the Exchange Notes are substantially identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Old Notes for which they may be exchanged pursuant to the Exchange Offer, except that the issuance of the Exchange Notes is registered under the Securities Act and the Exchange Notes are not subject to any covenant regarding exchange registration rights under the Securities Act.

The Issuer is not making the Exchange Offer to holders of the Old Notes in any jurisdiction in which the Exchange Offer or the acceptance of the Exchange Offer would not be in compliance with the securities or Blue Sky laws of such jurisdiction. The Issuer also will not accept surrenders for exchange from holders of the Old Notes in any jurisdiction in which the Exchange Offer or the acceptance of the Exchange Offer would not be in compliance with the securities or Blue Sky laws of such jurisdiction.

Capitalized terms used but not defined herein shall have the same meaning given them in the Prospectus.

YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS RELATING TO THE PROCEDURE FOR TENDERING AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.

The undersigned has checked the appropriate boxes below and signed this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer.

 

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PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY BEFORE CHECKING ANY BOX BELOW.

List below the Old Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, the certificate numbers and aggregate principal amounts should be listed on a separate signed schedule affixed hereto.

 

DESCRIPTION OF OLD NOTES TENDERED HEREWITH
Name(s) and Address(es) of Registered Holder(s) (Please fill in)		Certificate Number(s)*				Aggregate Principal Amount Represented by Old Notes*		Principal Amount Tendered**
			Total:
*  Need not be completed by book-entry holders. **  Unless otherwise indicated, the holder will be deemed to have tendered the full aggregate principal amount represented by such Old Notes. See instruction 2.

Holders of Old Notes whose Old Notes are not immediately available or who cannot deliver all other required documents to the Exchange Agent on or prior to the Expiration Date, or who cannot complete the procedures for book-entry transfer on a timely basis, must tender their Old Notes according to the guaranteed delivery procedures set forth in the Prospectus.

Unless the context otherwise requires, the term “holder” for purposes of this Letter of Transmittal means any person in whose name Old Notes are registered or any other person who has obtained a properly completed bond power from the registered holder or any person whose Old Notes are held of record by The Depository Trust Company (“DTC”).

 

 

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¨	CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:

 

 

¨	CHECK HERE IF EXCHANGE NOTES ARE TO BE ISSUED TO A PERSON OTHER THAN THE PERSON SIGNING THIS LETTER OF TRANSMITTAL:

 

 

¨	CHECK HERE IF EXCHANGE NOTES ARE TO BE DELIVERED TO AN ADDRESS DIFFERENT FROM THAT LISTED ELSEWHERE IN THIS LETTER OF TRANSMITTAL:

 

 

¨	CHECK HERE IF YOU ARE A BROKER-DEALER THAT ACQUIRED OLD NOTES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.

 

If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes. If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Old Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. A broker-dealer may not participate in the Exchange Offer with respect to Old Notes acquired other than as a result of market-making activities or other trading activities. Any holder who is an “affiliate” of the Issuer or who has an arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, or any broker-dealer that purchased Old Notes from the Issuer to resell pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act must comply with the registration and prospectus delivery requirements under the Securities Act.

 

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PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY

Ladies and Gentlemen:

Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Issuer the principal amount of the Old Notes indicated above. Unless otherwise indicated above, the undersigned will be deemed to have tendered the full aggregate principal amount represented by the Old Notes. Subject to, and effective upon, the acceptance for exchange of any portion of the Old Notes tendered herewith in accordance with the terms and conditions of the Exchange Offer (including, if the Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment), the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Issuer all right, title and interest in and to such Old Notes as are being tendered herewith. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Issuer, in connection with the Exchange Offer) to cause the Old Notes to be assigned, transferred and exchanged.

The undersigned represents and warrants that it has full power and authority to tender, exchange, assign and transfer the Old Notes and to acquire Exchange Notes issuable upon the exchange of such tendered Old Notes, and that, when the same are accepted for exchange, the Issuer will acquire good and unencumbered title to the tendered Old Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned also warrants that it will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Issuer to be necessary or desirable to complete the exchange, assignment and transfer of the tendered Old Notes or transfer ownership of such Old Notes on the account books maintained by the book-entry transfer facility. The undersigned further agrees that acceptance of any and all validly tendered Old Notes by the Issuer and the issuance of Exchange Notes in exchange therefor shall constitute performance in full by the Issuer of its obligations under the Registration Rights Agreement dated as of March 20, 2015 (the “Registration Rights Agreement”), between the Issuer, the Guarantors (as defined in the Prospectus) and J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representative of the several initial purchasers named in the Purchase Agreement (as defined in the Registration Rights Agreement) (collectively, the “Initial Purchasers”), and that the Issuer shall have no further obligations or liabilities thereunder. The undersigned will comply with its obligations under the Registration Rights Agreement.

The undersigned understands that tenders of Old Notes pursuant to any one of the procedures described in the Prospectus and in the instructions attached hereto will, upon the Issuer’s acceptance for exchange of such tendered Old Notes, constitute a binding agreement between the undersigned and the Issuer upon the terms and subject to the conditions of the Exchange Offer. The undersigned recognizes that, under circumstances set forth in the Prospectus, the Issuer may not be required to accept for exchange any of the Old Notes.

By tendering Old Notes and executing this Letter of Transmittal, the undersigned represents that (i) the holder is not an “affiliate” of the Issuer or the guarantors within the meaning of Rule 405 under the Securities Act; (ii) the holder is not engaged and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes in violation of the provisions of the Securities Act; (iii) the holder is acquiring the Exchange Notes in its ordinary course of business; and (iv) if the holder is a broker-dealer that will receive the Exchange Notes for its own account in exchange for the Old Notes that were acquired as a result of market-making activities or other trading activities, such holder will deliver a prospectus (or, to the extent permitted by law, make available a prospectus) meeting the requirements of the Securities Act in connection with any resales of the Exchange Notes. If the undersigned or the person receiving such Exchange Notes, whether or not such person is the undersigned, is a broker-dealer that will receive Exchange Notes for its own account in exchange for Old Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

 

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The undersigned understands that all resales of the Exchange Notes must be made in compliance with applicable state securities or Blue Sky laws. If a resale does not qualify for an exemption from these laws, the undersigned acknowledges that it may be necessary to register or qualify the Exchange Notes in a particular state or to make the resale through a licensed broker-dealer in order to comply with these laws. The undersigned further understands that the Issuer assumes no responsibility regarding compliance with state securities or Blue Sky laws in connection with resales.

Any holder of Old Notes using the Exchange Offer to participate in a distribution of the Exchange Notes (i) cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in its interpretive letter with respect to Exxon Capital Holdings Corporation (available April 13, 1989) or similar interpretive letters and (ii) must comply with the registration and prospectus requirements of the Securities Act in connection with a secondary resale transaction.

All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as stated in the Prospectus, this tender is irrevocable but tendered Old Notes may be withdrawn at any time prior to the Expiration Date in accordance with the terms of this Letter of Transmittal.

Certificates for all Exchange Notes delivered in exchange for tendered Old Notes and any Old Notes delivered herewith but not exchanged, in each case if registered in the name of the undersigned, shall be delivered to the undersigned at the address shown below the signature of the undersigned.

The undersigned, by completing the box entitled “Description of Old Notes Tendered Herewith” above and signing this letter, will be deemed to have tendered the Old Notes as set forth in such box.

 

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INSTRUCTIONS

FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER

 

1.	Delivery of this Letter of Transmittal and Certificates; Guaranteed Delivery Procedures.

A holder of Old Notes may tender the same by (i) properly completing and signing this Letter of Transmittal and delivering the same, together with the certificate or certificates, if applicable, representing the Old Notes being tendered and any required signature guarantees and any other documents required by this Letter of Transmittal, to the Exchange Agent at its address set forth above on or prior to the Expiration Date, (ii) complying with the procedure for book-entry transfer described below, or (iii) complying with the guaranteed delivery procedures described below.

Holders of Old Notes may tender Old Notes by book-entry transfer by crediting the Old Notes to the Exchange Agent’s account at DTC in accordance with DTC’s Automated Tender Offer Program (“ATOP”) and by complying with applicable ATOP procedures with respect to the Exchange Offer. DTC participants that are accepting the Exchange Offer should transmit their acceptance to DTC, which will edit and verify the acceptance and execute a book-entry delivery to the Exchange Agent’s account at DTC. DTC will then send a computer-generated message (an “Agent’s Message”) to the Exchange Agent for its acceptance in which the holder of the Old Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal or the DTC participant confirms on behalf of itself and the beneficial owners of such Old Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owners as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent. Delivery of the Agent’s Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participants identified in the Agent’s Message. DTC participants may also accept the Exchange Offer by submitting a Notice of Guaranteed Delivery through ATOP.

The method of delivery of this Letter of Transmittal, the Old Notes and any other required documents is at the election and risk of the holder, and except as otherwise provided below, the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If such delivery is by mail, it is suggested that registered mail with return receipt requested, properly insured, be used. In all cases, sufficient time should be allowed to permit timely delivery. No Old Notes or Letters of Transmittal should be sent to the Issuer.

Holders whose Old Notes are not immediately available or who cannot deliver their Old Notes and all other required documents to the Exchange Agent on or prior to the Expiration Date or comply with book-entry transfer procedures on a timely basis must tender their Old Notes pursuant to the guaranteed delivery procedure set forth in the Prospectus. Pursuant to such procedure: (i) such tender must be made by or through an Eligible Guarantor Institution (as defined below); (ii) prior to the Expiration Date, the Exchange Agent must have received from such Eligible Guarantor Institution a notice of guaranteed delivery, acceptable to the Issuer, by facsimile transmission (receipt confirmed by telephone and an original delivered by guaranteed overnight courier), or mail delivery, setting forth the name and address of the tendering holder, the names in which such Old Notes are registered, the certificate numbers of the Old Notes to be tendered, if applicable, and the amount of the Old Notes being tendered. The notice of guaranteed delivery shall state that the tender is being made and guarantee that within three New York Stock Exchange trading days after the Expiration Date, the certificates for all physically tendered Old Notes, in proper form for transfer, or a book-entry confirmation, as the case may be, together with this properly completed and duly executed Letter of Transmittal or Agent’s Message with any required signature guarantees and any other documents required by this Letter of Transmittal will be deposited by the Eligible Guarantor Institution with the Exchange Agent. The Exchange Agent must receive the certificates for all physically tendered Old Notes, in proper form for transfer, or a book-entry confirmation, as the case may be, together with this properly completed and duly executed Letter of Transmittal or Agent’s Message with any required signature guarantees and any other documents required by this Letter of Transmittal, within three New York Stock Exchange trading days after the Expiration Date, all as provided in the Prospectus.

 

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No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders, by execution of this Letter of Transmittal, shall waive any right to receive notice of the acceptance of the Old Notes for exchange.

 

2.	Partial Tenders; Withdrawals.

If less than the entire principal amount of Old Notes evidenced by a submitted certificate is tendered, the tendering holder must fill in the aggregate principal amount of Old Notes tendered in the box entitled “Description of Old Notes Tendered Herewith.” A newly issued certificate for the Old Notes submitted but not tendered will be sent to such holder as soon as practicable after the Expiration Date. All Old Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise clearly indicated.

If not yet accepted, a tender pursuant to the Exchange Offer may be withdrawn prior to the Expiration Date.

To be effective with respect to the tender of Old Notes, a written notice of withdrawal must: (i) be received by the Exchange Agent at the address for the Exchange Agent set forth above before the Issuer notifies the Exchange Agent that they have accepted the tender of Old Notes pursuant to the Exchange Offer; (ii) specify the name of the person who tendered the Old Notes to be withdrawn; (iii) identify the Old Notes to be withdrawn (including the principal amount of such Old Notes, or, if applicable, the certificate numbers shown on the particular certificates evidencing such Old Notes and the principal amount of Old Notes represented by such certificates); (iv) include a statement that such holder is withdrawing its election to have such Old Notes exchanged; and (v) be signed by the holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantee). The Exchange Agent will return the properly withdrawn Old Notes promptly following receipt of notice of withdrawal. If Old Notes have been tendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn Old Notes or otherwise comply with the book-entry transfer facility’s procedures. All questions as to the validity of notices of withdrawals, including time of receipt, will be determined by the Issuer, and such determination will be final and binding on all parties.

Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Old Notes which have been tendered for exchange but which are not exchanged for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Old Notes tendered by book-entry transfer into the Exchange Agent’s account at the book entry transfer facility pursuant to the book-entry transfer procedures described above, such Old Notes will be credited to an account with such book-entry transfer facility specified by the holder) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Old Notes may be retendered by following one of the procedures described under the caption “The Exchange Offer—Procedures for Tendering” in the Prospectus at any time prior to the Expiration Date.

 

3.	Signature on this Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures.

If this Letter of Transmittal is signed by the registered holder(s) of the Old Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the certificates without alteration, enlargement or any change whatsoever. If any of the Old Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.

If a number of Old Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of Old Notes.

When this Letter of Transmittal is signed by the registered holder or holders (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Old Notes) of Old Notes listed and tendered hereby, no endorsements of certificates or separate written instruments of transfer or exchange are required.

 

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If this Letter of Transmittal is signed by a person other than the registered holder or holders of the Old Notes listed, such Old Notes must be endorsed or accompanied by separate written instruments of transfer or exchange in form satisfactory to the Issuer and duly executed by the registered holder, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the Old Notes.

If this Letter of Transmittal, any certificates or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Issuer, proper evidence satisfactory to the Issuer of their authority so to act must be submitted.

Endorsements on certificates or signatures on separate written instruments of transfer or exchange required by this Instruction 3 must be guaranteed by an Eligible Guarantor Institution.

Signatures on this Letter of Transmittal must be guaranteed by an Eligible Guarantor Institution, unless Old Notes are tendered: (i) by a holder who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on this Letter of Transmittal; or (ii) for the account of an Eligible Guarantor Institution (as defined below). In the event that the signatures in this Letter of Transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, such guarantees must be by an eligible guarantor institution which is a member of a firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, a commercial bank or trust company having an office or correspondent in the United States or another “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (an “Eligible Guarantor Institution”). If Old Notes are registered in the name of a person other than the signer of this Letter of Transmittal, the Old Notes surrendered for exchange must be endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange, in satisfactory form as determined by the Issuer, in its sole discretion, duly executed by the registered holder with the signature thereon guaranteed by an Eligible Guarantor Institution.

 

4.	Special Issuance and Delivery Instructions.

Tendering holders should indicate, as applicable, the name and address to which the Exchange Notes or certificates for Old Notes not exchanged are to be issued or delivered, if different from the name and address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification number of the person named must also be indicated and, as described in Instruction 8, a duly completed IRS Form W-9 or IRS Form W-8, as applicable, must be provided. Holders tendering Old Notes by book-entry transfer may request that Old Notes not exchanged be credited to such account maintained at the book-entry transfer facility as such holder may designate.

 

5.	Transfer Taxes.

Except as otherwise provided in this Instruction 5, the Issuer shall pay or cause to be paid all transfer taxes, if any, applicable to the transfer and exchange of Old Notes for Exchange Notes pursuant to the Exchange Offer. If, however, certificates representing Exchange Notes or Old Notes for principal amounts not tendered or accepted for exchange are to be registered or issued in the name of any person other than the registered holder of the Old Notes tendered, or if tendered Old Notes are to be registered in the name of any person other than the person signing the Letter of Transmittal, or if a transfer tax is imposed for any reason other than the transfer and exchange of Old Notes for Exchange Notes pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other person) will be payable by the applicable holder. If satisfactory evidence of payment of such taxes or exception therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such applicable holder.

 

6.	Waiver of Conditions.

The Issuer reserves the absolute right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.

 

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7.	Mutilated, Lost, Stolen or Destroyed Securities.

Any holder whose Old Notes have been mutilated, lost, stolen or destroyed, should contact the Exchange Agent at the address indicated below for further instructions.

 

8.	Taxpayer Information; IRS Form W-9; IRS Form W-8.

Under U.S. federal income tax law, a holder of Exchange Notes may be subject to backup withholding on reportable payments received in respect of the Exchange Notes unless the holder provides the Exchange Agent with its correct taxpayer identification number (“TIN”) and certain other information on Internal Revenue Service (“IRS”) Form W-9, which is provided below, or otherwise establishes an exemption. If the Issuer is not provided with the correct TIN or an adequate basis for an exemption, a holder may be subject to a penalty imposed by the IRS, and backup withholding (currently at a rate of 28%) may apply to any reportable payments made to such holder. Backup withholding is not an additional tax. Rather, the U.S. federal income tax liability of a person subject to backup withholding will be reduced by the amount withheld. If withholding results in an overpayment of taxes, a refund may be obtained, provided that the required information is timely provided to the IRS.

To prevent backup withholding on reportable payments in respect of the Exchange Notes, each holder that is a U.S. person for U.S. federal income tax purposes must provide such holder’s correct TIN by completing the enclosed IRS Form W-9 certifying that (i) the TIN provided on the IRS Form W-9 is correct (or that such holder is awaiting a TIN), (ii) the holder is not subject to backup withholding because (x) such holder is exempt from backup withholding, (y) such holder has not been notified by the IRS that he or she is subject to backup withholding as a result of a failure to report all interest or dividends, or (z) the IRS has notified the holder that he or she is no longer subject to backup withholding, and (iii) the holder is a U.S. person for U.S. federal income tax purposes (including a U.S. resident alien). Please see the instructions to the enclosed IRS Form W-9.

Certain holders (including, among others, corporations and certain non-U.S. persons) are not subject to backup withholding. Exempt U.S. holders should indicate their exempt status on IRS Form W-9. A non-U.S. holder may qualify as an exempt recipient by submitting to the Exchange Agent a properly completed Form W-8BEN, W-8ECI, W-8EXP or W-8IMY, as the case may be, signed under penalties of perjury, attesting to that holder’s exempt status. The applicable IRS Form W-8 can be obtained from the IRS website at http://www.irs.gov.

 

9.	Requests for Assistance or Additional Copies.

Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number set forth above. In addition, all questions relating to the Exchange Offer, as well as requests for assistance or additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number indicated above.

IMPORTANT: This Letter of Transmittal (together with certificates of Old Notes or confirmation of book-entry transfer and all other required documents) or a Notice of Guaranteed Delivery must be received by the Exchange Agent on or prior to the Expiration Date.

 

13

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Form      W-9 (Rev. December 2014) Department of the Treasury Internal Revenue Service		Request for Taxpayer Identification Number and Certification		Give Form to the requester. Do not send to the IRS.

 

Part I		Taxpayer Identification Number (TIN)

Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3.   Note. If the account is in more than one name, see the instructions for line 1 and the chart on page 4 for guidelines on whose number to enter.

Social security number

–

–

or

Employer Identification Number

–

Part II		Certification

Under penalties of perjury, I certify that:

 

1.

The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and

 

2.

I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and

 

3.

I am a U.S. citizen or other U.S. person (defined below); and

The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.

Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions on page 3.

 

Sign Here		Signature of U.S. person  u		Date  u

 

 

 

 

		Cat. No. 10231X		Form W-9 (Rev. 12-2014)

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Form W-9 (Rev. 12-2014)

  

 

 

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Form W-9 (Rev. 12-2014)

  

 

 

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Form W-9 (Rev. 12-2014)

  

 

 

 

Privacy Act Notice

Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.

Exhibit 99.2

 

FORM OF NOTICE OF GUARANTEED DELIVERY

NOTICE OF GUARANTEED DELIVERY

FOR OFFER TO EXCHANGE

$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 1.750% NOTES DUE 2018, THE

ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 1.750% NOTES DUE 2018

$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 2.500% NOTES DUE 2020, THE

ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 2.500% NOTES DUE 2020

$400,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 3.000% NOTES DUE 2022, THE

ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 3.000% NOTES DUE 2022

$1,000,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 3.500% NOTES DUE 2025, THE

ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 3.500% NOTES DUE 2025

$650,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 4.250% NOTES DUE 2035, THE

ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 4.250% NOTES DUE 2035

$600,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 4.375% NOTES DUE 2045, THE

ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,

AS AMENDED,

FOR

A LIKE PRINCIPAL AMOUNT OF 4.375% NOTES DUE 2045

 

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Registered holders of (i) outstanding 1.750% Notes due 2018 (the “2018 Outstanding Notes”) who wish to tender their 2018 Outstanding Notes in exchange for a like principal amount of new 1.750% Notes due 2018 (the “2018 Exchange Notes”), (ii) outstanding 2.500% Notes due 2020 (the “2020 Outstanding Notes”) who wish to tender their 2020 Outstanding Notes in exchange for a like principal amount of new 2.500% Notes due 2020 (the “2020 Exchange Notes”), (iii) outstanding 3.000% Notes due 2022 (the “2022 Outstanding Notes”) who wish to tender their 2022 Outstanding Notes in exchange for a like principal amount of new 3.000% Notes due 2022 (the “2022 Exchange Notes”), (iv) outstanding 3.500% Notes due 2025 (the “2025 Outstanding Notes”) who wish to tender their 2025 Outstanding Notes in exchange for a like principal amount of new 3.500% Notes due 2025 (the “2025 Exchange Notes”), (v) outstanding 4.250% Notes due 2035 (the “2035 Outstanding Notes”) who wish to tender their 2035 Outstanding Notes in exchange for a like principal amount of new 4.250% Notes due 2035 (the “2035 Exchange Notes”) and (vi) outstanding 4.375% Notes due 2045 (the “2045 Outstanding Notes” and, together with the 2018 Outstanding Notes, the 2020 Outstanding Notes, the 2022 Outstanding Notes, the 2025 Outstanding Notes and the 2035 Outstanding Notes, the “Outstanding Notes”) who wish to tender their 2045 Outstanding Notes in exchange for a like principal amount of new 4.375% Notes due 2045 (the “2045 Exchange Notes” and, together with the 2018 Exchange Notes, the 2020 Exchange Notes, the 2022 Exchange Notes, the 2025 Exchange Notes and the 2035 Exchange Notes, the “Exchange Notes”), and whose Outstanding Notes are not immediately available or who cannot deliver their Outstanding Notes and Letter of Transmittal (and any other documents required by the Letter of Transmittal) to U.S. Bank National Association (the “Exchange Agent”) prior to the Expiration Date, may use this Notice of Guaranteed Delivery.

This Notice of Guaranteed Delivery may be delivered by hand or sent by facsimile transmission (receipt confirmed by telephone and an original delivered by guaranteed overnight courier) or mailed to the Exchange Agent. See “Exchange Offer—Guaranteed delivery procedures” in the Prospectus.

The Exchange Agent is:

U.S. BANK NATIONAL ASSOCIATION

 

By Mail:   U.S. Bank National Association Attn: Corporate Actions 111 Fillmore Avenue St. Paul, MN 55107-1402   By Registered, Certified or Express Mail Or by Overnight Courier:   U.S. Bank National Association Attn: Corporate Actions 111 Fillmore Avenue St. Paul, MN 55107-1402		By Facsimile (for Eligible Institutions Only):   U.S. Bank National Association Facsimile: (651) 466-7367 Confirm by Telephone: (800) 934-6802

Delivery of this Notice of Guaranteed Delivery to an address other than as set forth above or transmission via a facsimile transmission to a number other than as set forth above will not constitute a valid delivery.

This Notice of Guaranteed Delivery is not to be used to guarantee signatures. If a signature on a Letter of Transmittal is required to be guaranteed by an Eligible Guarantor Institution (as defined in the Prospectus), such signature guarantee must appear in the applicable space provided on the Letter of Transmittal for Guarantee of Signatures.

 

2

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Ladies and Gentlemen:

The undersigned hereby tenders the principal amount of Outstanding Notes indicated below, upon the terms and subject to the conditions contained in the Prospectus dated [●], 2015 of The J. M. Smucker Company (the “Prospectus”), receipt of which is hereby acknowledged.

 

DESCRIPTION OF OUTSTANDING NOTES TENDERED
Name of Tendering Holder		Name and address of registered holder as it appears on the Outstanding Notes (Please Print)		Certificate Number(s) of Outstanding Notes Tendered (or Account Number at Book-Entry Facility)		Principal Amount of Outstanding Notes Tendered
Form of Notice of Guaranteed Delivery

SIGN HERE

 

Name of Registered or Acting Holder:

Signature(s):

Name(s) (please print):

Address:

Telephone Number:

Date:

If Outstanding Notes will be tendered by book-entry transfer, provide the following information:

DTC Account Number:

Date:

 

3

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THE FOLLOWING GUARANTEE MUST BE COMPLETED

GUARANTEE OF DELIVERY

(Not to be used for signature guarantee)

The undersigned, a member of a recognized signature guarantee medallion program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended, hereby guarantees to deliver to the Exchange Agent at its address set forth on the reverse hereof, the certificates representing the Outstanding Notes (or a confirmation of book-entry transfer of such Outstanding Notes into the Exchange Agent’s account at the book-entry transfer facility), together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, and any other documents required by the Letter of Transmittal within three New York Stock Exchange trading days after the Expiration Date (as defined in the Letter of Transmittal).

 

Name of Firm:				(Authorized Signature)
Address:				Title:
(Zip Code)				Name:   (Please type or print)
Area Code and Telephone No.:				Date:

 

NOTE:		DO NOT SEND OUTSTANDING NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. OUTSTANDING NOTES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.

 

4

Exhibit 99.3

 

THE J. M. SMUCKER COMPANY

OFFER TO EXCHANGE

$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF 1.750% NOTES DUE 2018

FOR ANY AND ALL OF THE OUTSTANDING 1.750% NOTES DUE 2018

$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF 2.500% NOTES DUE 2020

FOR ANY AND ALL OF THE OUTSTANDING 2.500% NOTES DUE 2020

$400,000,000 AGGREGATE PRINCIPAL AMOUNT OF 3.000% NOTES DUE 2022

FOR ANY AND ALL OF THE OUTSTANDING 3.000% NOTES DUE 2022

$1,000,000,000 AGGREGATE PRINCIPAL AMOUNT OF 3.500% NOTES DUE 2025 FOR ANY AND

ALL OF THE OUTSTANDING 3.500% NOTES DUE 2025

$650,000,000 AGGREGATE PRINCIPAL AMOUNT OF 4.250% NOTES DUE 2035

FOR ANY AND ALL OF THE OUTSTANDING 4.250% NOTES DUE 2035

$600,000,000 AGGREGATE PRINCIPAL AMOUNT OF 4.375% NOTES DUE 2045

FOR ANY AND ALL OF THE OUTSTANDING 4.375% NOTES DUE 2045

[●], 2015

To Brokers, Dealers, Commercial Banks,

Trust Companies and other Nominees:

As described in the enclosed Prospectus, dated [●], 2015 (as the same may be amended or supplemented from time to time, the “Prospectus”), and Letter of Transmittal (the “Letter of Transmittal”), The J. M. Smucker Company, an Ohio corporation (the “Issuer”) and certain subsidiaries of the Issuer (the “Guarantors”), are offering to exchange (the “Exchange Offer”) (i) an aggregate principal amount of up to $500,000,000 of 1.750% Notes due 2018 (the “2018 Exchange Notes”) for any and all of the outstanding 1.750% Notes due 2018 (the “2018 Old Notes”), (ii) an aggregate principal amount of up to $500,000,000 of 2.500% Notes due 2020 (the “2020 Exchange Notes”) for any and all of the outstanding 2.500% Notes due 2020 (the “2020 Old Notes”), (iii) an aggregate principal amount of up to $400,000,000 of 3.000% Notes due 2022 (the “2022 Exchange Notes”) for any and all of the outstanding 3.000% Notes due 2022 (the “2022 Old Notes”), (iv) an aggregate principal amount of up to $1,000,000,000 of 3.500% Notes due 2025 (the “2025 Exchange Notes”) for any and all of the outstanding 3.500% Notes due 2025 (the “2025 Old Notes”), (v) an aggregate principal amount of up to $650,000,000 of 4.250% Notes due 2035 (the “2035 Exchange Notes”) for any and all of the outstanding 4.250% Notes due 2035 (the “2035 Old Notes”) and (vi) an aggregate principal amount of up to $600,000,000 of 4.375% Notes due 2045 (the “2045 Exchange Notes” and, together with the 2018 Exchange Notes, the 2020 Exchange Notes, the 2022 Exchange Notes, the 2025 Exchange Notes and the 2035 Exchange Notes, the “Exchange Notes”) for any and all of the outstanding 4.375% Notes due 2045 (the “2045 Old Notes” and, together with the 2018 Old Notes, the 2020 Old Notes, the 2022 Old Notes, the 2025 Old Notes and the 2035 Old Notes, the “Old Notes”) in denominations of $2,000 and integral multiples of $1,000 in excess thereof upon the terms and subject to the conditions of the enclosed Prospectus and Letter of Transmittal. The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Old Notes for which they may be exchanged pursuant to the Exchange Offer, except that the Exchange Notes are freely transferable by holders thereof, upon the terms and subject to the conditions of the enclosed Prospectus and the related Letter of Transmittal, are not entitled to registration rights and do not have the right to earn additional interest under circumstances relating to the Issuer’s registration obligations. The Old Notes are unconditionally guaranteed (the “Old Guarantees”) by the Guarantors, and the Exchange Notes will be unconditionally guaranteed (the “New Guarantees”) by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Old Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the “Exchange Offer” include the

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Guarantors’ offer to exchange the New Guarantees for the Old Guarantees, references to the “Exchange Notes” include the related New Guarantees and references to the “Old Notes” include the related Old Guarantees. The Issuer will accept for exchange any and all Old Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.

WE URGE YOU TO PROMPTLY CONTACT YOUR CLIENTS FOR WHOM YOU HOLD OLD NOTES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE. PLEASE BRING THE EXCHANGE OFFER TO THEIR ATTENTION AS PROMPTLY AS POSSIBLE.

Enclosed are copies of the following documents:

 

1.	The Prospectus;

 

2.	The Letter of Transmittal for your use in connection with the tender of Old Notes and for the information of your clients, including an IRS Form W-9;

 

3.	A form of Notice of Guaranteed Delivery; and

 

4.

A form of letter, including a letter of instructions to a registered holder from a beneficial owner, which you may use to correspond with your clients for whose accounts you hold Old Notes that are registered in your name or the name of your nominee, with space provided for obtaining such clients’ instructions regarding the Exchange Offer.

Your prompt action is requested. Please note that the Exchange Offer will expire at 5:00 p.m., New York City time, on [●], 2015 (the “Expiration Date”), unless the Issuer otherwise extends the Exchange Offer.

To participate in the Exchange Offer, certificates for Old Notes, together with a duly executed and properly completed Letter of Transmittal, or a timely confirmation of a book-entry transfer of such Old Notes into the account of U.S. Bank National Association (the “Exchange Agent”), at the book-entry transfer facility, with any required signature guarantees, and any other required documents, must be received by the Exchange Agent by the Expiration Date as indicated in the Prospectus and the Letter of Transmittal. Questions and requests for assistance must be directed to the Exchange Agent by calling (800) 934-6802.

The Issuer will not pay any fees or commissions to any broker or dealer or to any other persons (other than the Exchange Agent) in connection with the solicitation of tenders of the Old Notes pursuant to the Exchange Offer. However, the Issuer will pay or cause to be paid any transfer taxes, if any, applicable to the tender of the Old Notes to it or its order, except as otherwise provided in the Prospectus and Letter of Transmittal.

If holders of the Old Notes wish to tender, but it is impracticable for them to forward their Old Notes prior to the Expiration Date or to comply with the book-entry transfer procedures on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus and in the Letter of Transmittal.

Any inquiries you may have with respect to the Exchange Offer should be addressed to the Exchange Agent at its address and telephone number set forth in the enclosed Prospectus and Letter of Transmittal. Additional copies of the enclosed materials may be obtained from the Exchange Agent.

Very truly yours,

The J. M. Smucker Company

NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS AN AGENT OF THE ISSUER OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM IN CONNECTION WITH THE EXCHANGE OFFER, OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS EXPRESSLY CONTAINED THEREIN.

 

2

Exhibit 99.4

 

THE J. M. SMUCKER COMPANY

OFFER TO EXCHANGE

$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF

1.750% NOTES DUE 2018 FOR

ANY AND ALL OF THE OUTSTANDING 1.750% NOTES DUE 2018

$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF

2.500% NOTES DUE 2020 FOR

ANY AND ALL OF THE OUTSTANDING 2.500% NOTES DUE 2020

$400,000,000 AGGREGATE PRINCIPAL AMOUNT OF

3.000% NOTES DUE 2022 FOR

ANY AND ALL OF THE OUTSTANDING 3.000% NOTES DUE 2022

$1,000,000,000 AGGREGATE PRINCIPAL AMOUNT OF

3.500% NOTES DUE 2025 FOR

ANY AND ALL OF THE OUTSTANDING 3.500% NOTES DUE 2025

$650,000,000 AGGREGATE PRINCIPAL AMOUNT OF

4.250% NOTES DUE 2035 FOR

ANY AND ALL OF THE OUTSTANDING 4.250% NOTES DUE 2035

$600,000,000 AGGREGATE PRINCIPAL AMOUNT OF

4.375% NOTES DUE 2045 FOR

ANY AND ALL OF THE OUTSTANDING 4.375% NOTES DUE 2045

[●], 2015

To Our Clients:

Enclosed for your consideration are a Prospectus, dated [●], 2015 (as the same may be amended or supplemented from time to time, the “Prospectus”), and a Letter of Transmittal (the “Letter of Transmittal”), relating to the offer by The J. M. Smucker Company, an Ohio corporation (the “Issuer”) and certain subsidiaries of the Issuer (the “Guarantors”), to exchange (i) an aggregate principal amount of up to $500,000,000 of 1.750% Notes due 2018 (the “2018 Exchange Notes”) for any and all of the outstanding 1.750% Notes due 2018 (the “2018 Old Notes”), (ii) an aggregate principal amount of up to $500,000,000 of 2.500% Notes due 2020 (the “2020 Exchange Notes”) for any and all of the outstanding 2.500% Notes due 2020 (the “2020 Old Notes”), (iii) an aggregate principal amount of up to $400,000,000 of 3.000% Notes due 2022 (the “2022 Exchange Notes”) for any and all of the outstanding 3.000% Notes due 2022 (the “2022 Old Notes”), (iv) an aggregate principal amount of up to $1,000,000,000 of 3.500% Notes due 2025 (the “2025 Exchange Notes”) for any and all of the outstanding 3.500% Notes due 2025 (the “2025 Old Notes”), (v) an aggregate principal amount of up to $650,000,000 of 4.250% Notes due 2035 (the “2035 Exchange Notes”) for any and all of the outstanding 4.250% Notes due 2035 (the “2035 Old Notes”) and (vi) an aggregate principal amount of up to $600,000,000 of 4.375% Notes due 2045 (the “2045 Exchange Notes” and, together with the 2018 Exchange Notes, the 2020 Exchange Notes, the 2022 Exchange Notes, the 2025 Exchange Notes and the 2035 Exchange Notes, the “Exchange Notes”) for any and all of the outstanding 4.375% Notes due 2045 (the “2045 Old Notes” and, together with the 2018 Old Notes, the 2020 Old Notes, the 2022 Old Notes, the 2025 Old Notes and the 2035 Old Notes, the “Old Notes”), in denominations of $2,000 and integral multiples of $1,000 in excess thereof upon the terms and subject to the conditions of the enclosed Prospectus and Letter of Transmittal. The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Old Notes for which they may be exchanged pursuant to the Exchange Offer, except that the Exchange Notes are freely transferable by holders thereof, upon the terms and subject to the conditions of the enclosed Prospectus

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and the related Letter of Transmittal, are not entitled to registration rights and do not have the right to earn additional interest under circumstances relating to the Issuer’s registration obligations. The Old Notes are unconditionally guaranteed (the “Old Guarantees”) by the Guarantors, and the Exchange Notes are unconditionally guaranteed (the “New Guarantees”) by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Old Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the “Exchange Offer” include the Guarantors’ offer to exchange the New Guarantees for the Old Guarantees, references to the “Exchange Notes” include the related New Guarantees and references to the “Old Notes” include the related Old Guarantees. The Issuer will accept for exchange any and all Old Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.

PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON [●], 2015 (THE “EXPIRATION DATE”), UNLESS THE ISSUER EXTENDS THE EXCHANGE OFFER.

The enclosed materials are being forwarded to you as the beneficial owner of the Old Notes held by us for your account but not registered in your name. A tender of such Old Notes may only be made by us as the registered holder and pursuant to your instructions. Therefore, the Issuer urges beneficial owners of Old Notes registered in the name of a broker, dealer, commercial bank, trust company or other nominee to contact such registered holder promptly if such beneficial owners wish to tender their Old Notes in the Exchange Offer.

Accordingly, we request instructions as to whether you wish to tender any or all such Old Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. If you wish to have us tender any or all of your Old Notes, please so instruct us by completing, signing and returning to us the “Instructions to Registered Holder from Beneficial Owner” form that appears below. We urge you to read the Prospectus and the Letter of Transmittal carefully before instructing us as to whether or not to tender your Old Notes.

The accompanying Letter of Transmittal is furnished to you for your information only and may not be used by you to tender Old Notes held by us and registered in our name for your account or benefit.

If we do not receive written instructions in accordance with the below and the procedures presented in the Prospectus and the Letter of Transmittal, we will not tender any of the Old Notes on your account.

 

2

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INSTRUCTIONS TO REGISTERED HOLDER FROM BENEFICIAL OWNER

The undersigned beneficial owner acknowledges receipt of your letter and the accompanying Prospectus dated [●], 2015 (as the same may be amended or supplemented from time to time, the “Prospectus”), and a Letter of Transmittal (the “Letter of Transmittal”), relating to the offer (the “Exchange Offer”) by The J. M. Smucker Company, an Ohio corporation (the “Issuer”) and certain subsidiaries of the Issuer (the “Guarantors”) to exchange (i) an aggregate principal amount of up to $500,000,000 of 1.750% Notes due 2018 (the “2018 Exchange Notes”) for any and all of the outstanding 1.750% Notes due 2018 (the “2018 Old Notes”), (ii) an aggregate principal amount of up to $500,000,000 of 2.500% Notes due 2020 (the “2020 Exchange Notes”) for any and all of the outstanding 2.500% Notes due 2020 (the “2020 Old Notes”), (iii) an aggregate principal amount of up to $400,000,000 of 3.000% Notes due 2022 (the “2022 Exchange Notes”) for any and all of the outstanding 3.000% Notes due 2022 (the “2022 Old Notes”), (iv) an aggregate principal amount of up to $1,000,000,000 of 3.500% Notes due 2025 (the “2025 Exchange Notes”) for any and all of the outstanding 3.500% Notes due 2025 (the “2025 Old Notes”), (v) an aggregate principal amount of up to $650,000,000 of 4.250% Notes due 2035 (the “2035 Exchange Notes”) for any and all of the outstanding 4.250% Notes due 2035 (the “2035 Old Notes”) and (vi) an aggregate principal amount of up to $600,000,000 of 4.375% Notes due 2045 (the “2045 Exchange Notes” and, together with the 2018 Exchange Notes, the 2020 Exchange Notes, the 2022 Exchange Notes, the 2025 Exchange Notes and the 2035 Exchange Notes, the “Exchange Notes”) for any and all of the outstanding 4.375% Notes due 2045 (the “2045 Old Notes” and, together with the 2018 Old Notes, the 2020 Old Notes, the 2022 Old Notes, the 2025 Old Notes and the 2035 Old Notes, the “Old Notes”), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal. Capitalized terms used but not defined herein have the meanings ascribed to them in the Prospectus.

This will instruct you, the registered holder, to tender the principal amount of the Old Notes indicated below held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal.

 

Principal Amount Held for Account Holder(s)		Principal Amount to be Tendered*

 

*	Unless otherwise indicated, the entire principal amount held for the account of the undersigned will be tendered.

If the undersigned instructs you to tender the Old Notes held by you for the account of the undersigned, it is understood that you are authorized (a) to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner of the Old Notes, including but not limited to the representations that the undersigned (i) is not an “affiliate,” as defined in Rule 405 under the Securities Act of 1933, of the Issuer or the Guarantors, (ii) is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of Exchange Notes, (iii) is acquiring the Exchange Notes in the ordinary course of its business and (iv) if the undersigned is a broker-dealer that will receive the Exchange Notes for its own account in exchange for the Old Notes that were acquired as a result of market-making activities or other trading activities, it will deliver a prospectus (or, to the extent permitted by law, make available a prospectus) meeting the requirements of the Securities Act in connection with any resales of the Exchange Notes. If a holder of the Old Notes is an affiliate of the Issuer or the Guarantors, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in or intends to engage in a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such holder may not rely on the applicable interpretations of the staff of the Securities and Exchange Commission relating to exemptions from the registration and prospectus delivery requirements of the Securities Act of 1933 and must comply with such requirements in connection with any secondary resale transaction.

 

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