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Exhibit 10
CERTIFICATE OF ADOPTION
OF AMENDMENT
TO AMENDED ARTICLES OF INCORPORATION
OF
THE J.M. SMUCKER COMPANY
We, Richard K. Smucker, President, and Steven J. Ellcessor, Secretary,
of The J.M. Smucker Company, an Ohio corporation (the "Company"), do hereby
certify that pursuant to the authority conferred upon the Directors of the
Company (the "Directors") by the Articles of Incorporation of the Company, the
Directors at a meeting duly called and held on April 22, 1999 at which a quorum
was present and acting throughout, adopted the following resolution to amend the
Amended Articles of Incorporation of the Company pursuant to Section
1701.70(B)(1) of the Ohio Revised Code to create a series of Serial Preferred
Shares designated as Series A Junior Participating Preferred Shares:
RESOLVED, that Article Fourth of the Amended Articles of Incorporation
of this Company be, and it hereby is, amended by adding after Division I of
Article Fourth of the Amended Articles of Incorporation a new Division I-A as
set forth below:
DIVISION I-A
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
Section 1. There is established hereby a series of Serial Preferred
Shares that shall be designated Series A Junior Participating Preferred Shares
(hereinafter sometimes called this "Series" or the "Series A Junior
Participating Preferred Shares") and that shall have the terms set forth in this
Division I-A.
Section 2. The number of shares of this Series shall be 700,000.
Section 3. (a) The holders of record of Series A Junior Participating
Preferred Shares shall be entitled to receive, when and as declared by the
Directors in accordance with the terms hereof, out of funds legally available
for the purpose, cumulative quarterly dividends payable in cash on the first day
of March, June, September, and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a Series A
Junior Participating Preferred Share or fraction of a Series A Junior
Participating Preferred Share. Such quarterly dividend payments shall be in an
amount per share (rounded to the nearest cent) equal to the greater of (i) $1.00
per share or (ii) subject to the provision for adjustment hereinafter set
forth,
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100 times the aggregate per share amount of all cash dividends, plus 100 times
the aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions (other than a dividend payable in Common Shares, or a
subdivision of the outstanding Common Shares (by reclassification or
otherwise)), declared on the Common Shares since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any Series A Junior
Participating Preferred Share or fraction of a Series A Junior Participating
Preferred Share. In the event the Company shall at any time declare or pay any
dividend on the Common Shares payable in Common Shares, or effect a subdivision
or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
amount to which holders of Series A Junior Participating Preferred Shares were
entitled immediately prior to such event under clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of Common Shares outstanding immediately after
such event and the denominator of which is the number of Common Shares that
were outstanding immediately prior to such event.
(b) Dividends shall begin to accrue and be cumulative on
outstanding Series A Junior Participating Preferred Shares from the Quarterly
Dividend Payment Date next preceding the date of issue of such Series A Junior
Participating Preferred Shares, unless (i) the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or (ii) the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Shares entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. No dividends shall be paid upon or declared and set apart for any
Series A Junior Participating Preferred Shares for any dividend period unless at
the same time a dividend for the same dividend period, ratably in proportion to
the respective annual dividend rates fixed therefor, shall be paid upon or
declared and set apart for all Serial Preferred Shares of all series then
outstanding and entitled to receive such dividend. The Directors may fix a
record date for the determination of holders of Series A Junior Participating
Preferred Shares entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 40 days prior to the
date fixed for the payment thereof.
Section 4. The Series A Junior Participating Preferred Shares are not
redeemable.
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Section 5. (a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company
(hereinafter referred to as a "Liquidation"), no distribution shall be made to
the holders of shares ranking junior (either as to dividends or upon
Liquidation) to the Series A Junior Participating Preferred Shares, unless,
prior thereto, the holders of Series A Junior Participating Preferred Shares
shall have received at least an amount per share equal to one hundred times the
then applicable Purchase Price as defined in the Rights Agreement, dated as of
April 22, 1999 between the Company and Harris Trust and Savings Bank, as the
same may be from time to time amended in accordance with its terms (which
Purchase Price is $90.00 as of April 22, 1999), subject to adjustment from time
to time as provided in the Rights Agreement, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not earned or declared,
to the date of such payment; provided that the holders of Series A Junior
Participating Preferred Shares shall be entitled to receive at least an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed per share
to holders of Common Shares (the "Series A Junior Participating Preferred Shares
Liquidation Preference").
(b) In the event, however, that the net assets of the Company
are not sufficient to pay in full the amount of the Series A Junior
Participating Preferred Shares Liquidation Preference and the liquidation
preferences of all other series of Serial Preferred Shares, if any, which rank
on a parity with the Series A Junior Participating Preferred Shares as to
distribution of assets in Liquidation, all shares of this Series and of such
other series of Serial Preferred Shares shall share ratably in the distribution
of assets (or proceeds thereof) in Liquidation in proportion to the full amounts
to which they are respectively entitled.
(c) In the event the Company shall at any time declare or pay
any dividend on the Common Shares payable in consolidation of the outstanding
Common Shares (by reclassification or otherwise than by payment of a dividend in
Common Shares) into a greater or lesser number of Common Shares, then in each
such case the amount to which holders of Series A Junior Participating Preferred
Shares were entitled immediately prior to such event pursuant to the provision
set forth in paragraph (a) above, shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.
(d) The merger or consolidation of the Company into or with
any other corporation, or the merger of any other corporation into it, or the
sale, lease or conveyance of all or substantially all the property or business
of the Company,
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shall not be deemed to be a Liquidation for the purpose of this Section 5.
Section 6. The Series A Junior Participating Preferred Shares shall not
be convertible into Common Shares.
IN WITNESS WHEREOF, Richard K. Smucker, President, and Steven J.
Ellcessor, Secretary, of The J.M. Smucker Company, acting for and on behalf of
the Company, have hereunto subscribed their names this 7th day of June, 1999.
/s/ Richard K. Smucker
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Richard K. Smucker
President
/s/ Steven J. Ellcessor
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Steven J. Ellcessor
Secretary
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