Exhibit 5.1
THE J. M. SMUCKER COMPANY
Strawberry Lane
Orrville, Ohio 44667-0280
(330) 682-3000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
I am Vice President-- Finance and Administration, Secretary,
and General Counsel of The J. M. Smucker Company, an Ohio corporation (the
"Company").
This opinion is being furnished in connection with the
Registration Statement on Form S-4, as it may be amended (the "Registration
Statement"), filed by the Company with the Securities and Exchange Commission
(the "Commission") on March 22, 2002, pursuant to the Securities Act of 1933, as
amended (the "Securities Act").
The Registration Statement relates to the proposed issuance by
the Company of up to 49,370,000 Company common shares, without par value (the
"Shares"), pursuant to the Agreement and Plan of Merger, dated as of October 9,
2001, as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated
as of November 30, 2001 (as amended, the "Merger Agreement"), by and among the
Company, The Procter & Gamble Company, an Ohio corporation ("P&G"), and The
Procter & Gamble Ohio Brands Company, an Ohio corporation and wholly owned
subsidiary of P&G ("P&G Ohio").
The Merger Agreement provides for the merger (the "Merger") of
P&G Ohio with and into the Company, with the Company continuing as the surviving
corporation. The Registration Statement includes an information
statement-prospectus (the "Information Statement-Prospectus") to be furnished to
the shareholders of P&G in connection with the transactions contemplated by the
Merger Agreement.
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement attached as Annex A to the Registration
Statement.
In connection with rendering this opinion, I have examined and
am familiar with the originals or copies, certified or otherwise identified to
my satisfaction, of the following documents: (i) the Registration Statement
(including the Information Statement-Prospectus); (ii) the Amended Articles of
Incorporation of the Company, as amended to the date hereof and as will be
amended as of the effective date of the Merger; (iii) the Regulations of the
Company, as amended to the date hereof; (iv) the Merger Agreement; (v)
resolutions of the Board of Directors of the Company relating to the
transactions contemplated by the Merger Agreement and the Registration
Statement; (vi) specimen certificates of the Shares; and (vii) such other
certificates, instruments, and documents as I considered necessary or
appropriate for the purpose of this opinion.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original documents of
all documents submitted to me as certified, conformed, or photostatic copies,
and the authenticity of the originals of such copies. In making my examination
of documents executed by parties other than the Company, I have assumed that
such parties had the power, corporate or otherwise, to enter into and perform
all obligations thereunder. I also have assumed the due authorization by all
requisite action, corporate or otherwise, and the execution and delivery by such
parties of such documents and the validity and binding effect thereof on such
parties. As to any facts material to the opinion expressed herein which I have
not independently established or verified, I have relied upon statements and
representations of officers and other representatives of the Company and others.
For purposes of this opinion, I have assumed that prior to the
issuance of any of the Shares: (i) the Registration Statement, as finally
amended, will have become effective under the Securities Act; (ii) the Company's
shareholders shall have approved the Merger at the Company's special meeting
called for such approval; (iii) the Company's board of directors shall not have
changed its recommendation that the Company's shareholders vote for the Merger;
(iv) a Certificate of Merger will have been duly filed with the Secretary of
State of the State of Ohio; (v) the certificates representing the Shares will
have been duly executed by an authorized officer of the transfer agent for the
Shares, will have been registered by the registrar for the Shares, and will
conform to the specimen thereof examined by me, and (vi) the Shares to be
transferred by book entry will have been appropriately and effectively so
transferred.
I am admitted to the Bar of the State of Ohio, and I do not
express any opinion as to the law of any jurisdiction except for the laws of the
State of Ohio, including all statutory provisions of Chapter 1701 of the Ohio
Revised Code (often referred to as the Ohio General Corporation Law), the Ohio
Constitution as it relates to this opinion, and all judicial decisions
interpreting the foregoing.
Based upon and subject to the foregoing, I am of the opinion
that the Shares, when issued in accordance with the terms and conditions of the
Merger Agreement, will be validly issued, fully paid, and non-assessable.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to my name under the caption
"Legal Matters" in the Information Statement-Prospectus forming a part of the
Registration Statement. In giving this consent, however, I do not thereby admit
that I am within the category of persons whose consent is required under Section
7 of the Securities Act and the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Steven J. Ellcessor
Steven J. Ellcessor, Esq.