þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OHIO | 31-1414921 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
14111 SCOTTSLAWN ROAD, | ||
MARYSVILLE, OHIO | 43041 | |
(Address of principal executive offices) | (Zip Code) |
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
Class | Outstanding at February 8, 2010 | |
Common Shares, $0.01 stated value, no par value | 66,581,978 common shares |
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Exhibit 10.1 | ||||||||
Exhibit 10.2 | ||||||||
Exhibit 10.3 | ||||||||
Exhibit 10.4 | ||||||||
Exhibit 31.1 | ||||||||
Exhibit 31.2 | ||||||||
Exhibit 32 |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
Table of Contents
Table of Contents
JANUARY 2,
DECEMBER 27,
SEPTEMBER 30,
2010
2008
2009
UNAUDITED
(SEE NOTE 1)
$
52.5
$
48.4
$
71.6
265.1
279.2
384.3
9.7
45.9
17.0
657.9
643.4
458.9
169.6
149.3
159.1
1,154.8
1,166.2
1,090.9
372.1
338.4
369.7
375.0
370.5
375.2
359.8
367.1
364.2
24.3
20.7
20.1
$
2,286.0
$
2,262.9
$
2,220.1
$
166.7
$
98.1
$
160.4
296.1
272.7
190.0
265.3
288.9
406.4
728.1
659.7
756.8
798.8
1,039.3
649.7
220.6
195.2
229.1
1,747.5
1,894.2
1,635.6
437.7
460.7
451.5
271.1
150.8
337.5
(105.4
)
(172.9
)
(131.7
)
(64.9
)
(69.9
)
(72.8
)
538.5
368.7
584.5
$
2,286.0
$
2,262.9
$
2,220.1
Table of Contents
(1)
(2)
Table of Contents
Table of Contents
Table of Contents
THREE MONTHS ENDED
JANUARY 2, 2010
DECEMBER 27, 2008
$
14.7
$
31.9
22.8
39.5
17.1
(17.9
)
(0.8
)
(7.3
)
(6.8
)
0.6
(2.7
)
$
(7.9
)
$
(4.1
)
Table of Contents
JANUARY 2,
DECEMBER 27,
SEPTEMBER 30,
2010
2008
2009
(IN MILLIONS)
$
$
26.9
$
11.5
1.5
7.8
3.3
1.8
1.9
$
1.5
$
36.5
$
16.7
$
4.9
$
9.9
$
6.2
15.9
6.6
13.2
6.2
2.2
$
20.8
$
22.7
$
21.6
Table of Contents
THREE MONTHS ENDED
JANUARY 2, 2010
DECEMBER 27, 2008
$
$
(0.3
)
(0.2
)
0.9
1.3
(0.9
)
(1.4
)
1.7
6.2
(2.6
)
(7.6
)
0.9
2.7
$
(1.7
)
$
(4.9
)
ADDITIONAL
RESERVES AT
COSTS AND
RESERVES AT
SEPTEMBER 30,
CHANGES IN
RESERVES
JANUARY 2,
2009
ESTIMATE
USED
2010
$
4.1
$
0.4
$
(0.1
)
$
4.4
4.2
0.5
(0.6
)
4.1
1.4
1.7
(2.6
)
0.5
$
9.7
$
2.6
$
(3.3
)
$
9.0
JANUARY 2,
DECEMBER 27,
SEPTEMBER 30,
2010
2008
2009
(IN MILLIONS)
$
437.9
$
427.3
$
239.1
43.5
51.6
41.5
176.5
164.5
178.3
$
657.9
$
643.4
$
458.9
Table of Contents
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(IN MILLIONS)
$
$
(5.0
)
(5.0
)
(0.2
)
(0.2
)
(5.2
)
(5.2
)
16.7
15.6
$
11.5
$
10.4
JANUARY 2,
DECEMBER 27,
SEPTEMBER 30,
2010
2008
2009
(IN MILLIONS)
$
521.7
$
565.7
$
330.4
421.4
540.4
456.4
3.0
10.0
4.2
11.1
12.7
11.0
0.7
1.0
0.5
7.6
7.6
7.6
965.5
1,137.4
810.1
166.7
98.1
160.4
$
798.8
$
1,039.3
$
649.7
Table of Contents
NOTIONAL AMOUNT
EFFECTIVE
EXPIRATION
FIXED
(IN MILLIONS)
DATE (a)
DATE
RATE
$
200
3/30/2007
3/30/2010
4.87%
200
2/14/2007
2/14/2012
5.20%
50
2/14/2012
2/14/2016
3.78%
150 (b)
11/16/2009
5/16/2016
3.26%
50 (c)
2/16/2010
5/16/2016
3.05%
(a)
(b)
(c)
Table of Contents
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(IN MILLIONS)
$
(57.7
)
$
(57.0
)
2.4
(18.6
)
5.8
6.4
(0.3
)
9.4
$
(49.8
)
$
(59.8
)
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(IN MILLIONS)
$
1.1
$
0.9
1.9
1.8
0.6
0.5
Table of Contents
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
7,500
686,100
240,400
4,915
190,330
12,415
1,116,830
$
0.3
$
15.0
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
$
2.9
$
3.7
1.1
1.3
JANUARY 2,
SEPTEMBER 30,
2010
2009
(IN MILLIONS)
$
6.8
$
6.2
6.8
6.4
0.6
0.6
1.4
1.2
Table of Contents
Table of Contents
Table of Contents
Commodity
Volume
51,000 tons
336,000 gallons
168,000 gallons
Assets/(Liabilities)
January 2, 2010
December 27, 2008
Balance Sheet Location
Fair Value
Balance Sheet Location
Fair Value
Other assets
$
3.4
Other assets
$
Other current liabilities
(14.1
)
Other current liabilities
(1.1
)
Other liabilities
(7.4
)
Other liabilities
(32.1
)
Prepaid and other assets
3.4
Prepaid and other assets
Other current liabilities
Other current liabilities
(14.8
)
$
(14.7
)
$
(48.0
)
Prepaid and other assets
$
1.2
Prepaid and other assets
$
Other current liabilities
Other current liabilities
(5.6
)
$
1.2
$
(5.6
)
$
(13.5
)
$
(53.6
)
(1)
Table of Contents
Amount of Gain/(Loss)
Recognized in OCI
Three Months Ended
Derivatives in Cash Flow Hedging Relationships
January 2, 2010
December 27, 2008
$
(1.6
)
$
(12.7
)
2.4
(8.0
)
$
0.8
$
(20.7
)
Amount of Gain/(Loss)
Reclassified From OCI Into Earnings
Derivatives in Cash Flow
Location of Gain/(Loss)
Three Months Ended
Hedging Relationships
Reclassified From OCI Into Earnings
January 2, 2010
December 27, 2008
Interest expense
$
(5.5
)
$
(2.4
)
Cost of sales
0.6
0.1
$
(4.9
)
$
(2.3
)
Amount of Gain/(Loss)
Recognized in Earnings
Derivatives not Designated As
Location of Gain/(Loss)
Three Months Ended
Hedging Instruments
Recognized in Income
January 2, 2010
December 27, 2008
Interest expense
$
0.7
$
(6.4
)
$
0.7
$
(6.4
)
Table of Contents
Quoted Prices in Active
Markets for Identical
Significant Other
Unobservable
Assets
Observable Inputs
Inputs
(Level 1)
(Level 2)
(Level 3)
Total
$
$
3.4
$
$
3.4
1.2
1.2
3.4
3.4
7.0
7.0
$
7.0
$
8.0
$
$
15.0
$
$
(21.5
)
$
$
(21.5
)
$
$
(21.5
)
$
$
(21.5
)
Table of Contents
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(IN MILLIONS)
$
214.0
$
188.3
55.4
59.5
33.0
38.8
302.4
286.6
(0.2
)
(0.2
)
(0.3
)
$
302.2
$
286.1
$
(37.0
)
$
(35.5
)
0.7
13.8
(6.9
)
(7.8
)
(18.9
)
(25.3
)
(62.1
)
(54.8
)
(0.2
)
(0.2
)
(2.7
)
(3.3
)
(2.6
)
(7.6
)
$
(67.6
)
$
(65.9
)
JANUARY 2,
DECEMBER 27,
SEPTEMBER 30,
2010
2008
2009
(IN MILLIONS)
$
1,621.5
$
1,615.9
$
1,504.5
316.0
281.9
334.1
155.3
163.3
176.1
193.2
201.8
205.4
$
2,286.0
$
2,262.9
$
2,220.1
Table of Contents
Table of Contents
Condensed, Consolidating Statement of Operations
for the three months ended January 2, 2010
(in millions)
Subsidiary
Non-
Parent
Guarantors
Guarantors
Eliminations
Consolidated
$
$
212.1
$
90.1
$
$
302.2
167.0
69.2
236.2
0.9
0.9
44.2
20.9
65.1
103.5
34.1
137.6
1.7
1.7
(4.8
)
(1.8
)
(6.6
)
(56.2
)
(11.4
)
(67.6
)
57.2
7.9
(65.1
)
(7.3
)
7.3
8.0
8.6
1.4
(7.3
)
10.7
(57.9
)
(72.7
)
(12.8
)
65.1
(78.3
)
(0.2
)
(23.6
)
(4.7
)
(28.5
)
(57.7
)
(49.1
)
(8.1
)
65.1
(49.8
)
(7.9
)
(7.9
)
$
(57.7
)
$
(57.0
)
$
(8.1
)
$
65.1
$
(57.7
)
Table of Contents
Condensed, Consolidating Statement of Cash Flows
for the three months ended January 2, 2010
(in millions)
Table of Contents
Condensed, Consolidating Balance Sheet
As of January 2, 2010
(in millions)
Table of Contents
Condensed, Consolidating Statement of Operations
for the three months ended December 27, 2008
(in millions)
Subsidiary
Non-
Parent
Guarantors
Guarantors
Eliminations
Consolidated
$
$
194.0
$
92.1
$
$
286.1
152.4
55.1
207.5
1.3
1.3
40.3
37.0
77.3
104.6
34.1
138.7
6.2
6.2
(1.9
)
0.2
(1.7
)
(68.6
)
2.7
(65.9
)
56.6
0.6
(57.2
)
(8.6
)
8.6
9.3
11.9
3.7
(8.6
)
16.3
(57.3
)
(81.1
)
(1.0
)
57.2
(82.2
)
(0.3
)
(28.6
)
(0.4
)
(29.3
)
(57.0
)
(52.5
)
(0.6
)
57.2
(52.9
)
(4.1
)
(4.1
)
$
(57.0
)
$
(56.6
)
$
(0.6
)
$
57.2
$
(57.0
)
Table of Contents
Condensed, Consolidating Statement of Cash Flows
for the three months ended December 27, 2008
(in millions)
Table of Contents
Condensed, Consolidating Balance Sheet
As of December 27, 2008
Table of Contents
Condensed, Consolidating Balance Sheet
As of September 30, 2009
(in millions)
Table of Contents
Table of Contents
Percent of Net Sales from
Continuing Operations by Quarter
2009
2008
2007
9.6
%
9.5
%
8.4
%
31.6
%
33.1
%
35.8
%
41.3
%
39.5
%
38.5
%
17.5
%
17.9
%
17.3
%
Table of Contents
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(UNAUDITED)
100.0
%
100.0
%
78.2
72.5
0.3
0.5
21.5
27.0
45.5
48.4
0.6
2.2
(2.2
)
(0.6
)
(22.4
)
(23.0
)
3.5
5.7
(25.9
)
(28.7
)
(9.4
)
(10.2
)
(16.5
)
(18.5
)
(2.6
)
(1.4
)
(19.1
)%
(19.9
)%
Table of Contents
Three Months
Ended January 2,
2010
5.6
%
(3.3
)
(0.1
)
2.2
%
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(IN MILLIONS)
(UNAUDITED)
$
12.2
$
10.3
122.8
125.1
2.6
3.3
$
137.6
$
138.7
Table of Contents
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(IN MILLIONS)
(UNAUDITED)
$
214.0
$
188.3
55.4
59.5
33.0
38.8
302.4
286.6
(0.2
)
(0.2
)
(0.3
)
$
302.2
$
286.1
Table of Contents
THREE MONTHS ENDED
JANUARY 2,
DECEMBER 27,
2010
2008
(IN MILLIONS)
(UNAUDITED)
$
(37.0
)
$
(35.5
)
0.7
13.8
(6.9
)
(7.8
)
(18.9
)
(25.3
)
(62.1
)
(54.8
)
(0.2
)
(0.2
)
(2.7
)
(3.3
)
(2.6
)
(7.6
)
$
(67.6
)
$
(65.9
)
Table of Contents
Table of Contents
NOTIONAL AMOUNT
EFFECTIVE
EXPIRATION
FIXED
(IN MILLIONS)
DATE (a)
DATE
RATE
$
200
3/30/2007
3/30/2010
4.87%
200
2/14/2007
2/14/2012
5.20%
50
2/14/2012
2/14/2016
3.78%
150 (b)
11/16/2009
5/16/2016
3.26%
50 (c)
2/16/2010
5/16/2016
3.05%
(a)
(b)
(c)
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Total Number of
Common Shares
Maximum Number of
Average Price
Purchased as
Common Shares That
Total Number of
Paid
Part of Publicly
May Yet Be
Common Shares
per Common
Announced Plans or
Purchased Under the
Period
Purchased(1)
Share
Programs
Plans or Programs
312
$
42.05
0
Not applicable
3,202
$
41.42
0
Not applicable
1,537
$
39.40
0
Not applicable
5,051
$
40.52
0
Not applicable
(1)
Table of Contents
VOTES
NOMINEE
VOTES FOR
WITHHELD
BROKER NON-VOTES
ABSTENTIONS
54,133,073
3,264,288
3,947,776
N/A
43,364,712
14,032,649
3,947,776
N/A
54,129,559
3,267,801
3,947,776
N/A
52,820,181
4,577,179
3,947,776
N/A
Votes For
Votes Against
Abstentions
Broker Non-Votes
61,025,168
299,840
20,129
N/A
Table of Contents
THE SCOTTS MIRACLE-GRO COMPANY
Date: February 11, 2010
/s/ DAVID C. EVANS
David C. Evans
Executive Vice President and Chief Financial Officer
(Principal Financial and Principal Accounting Officer)
(Duly Authorized Officer)
Table of Contents
QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED JANUARY 2, 2010
EXHIBIT
NO.
DESCRIPTION
LOCATION
Indenture, dated as of January 14, 2010, among The Scotts
Miracle-Gro Company, the guarantors from time to time party thereto
and U.S. Bank National Association, as trustee
Incorporated herein
by reference to the
Current Report on
Form 8-K of The
Scotts Miracle-Gro
Company (the
Registrant) filed
January 14, 2010
(File No. 1-11593)
[Exhibit 4.1]
First Supplemental Indenture, dated as of January 14, 2010, among
The Scotts Miracle-Gro Company, the guarantors named therein and
U.S. Bank National Association, as trustee
Incorporated herein
by reference to the
Registrants
Current Report on
Form 8-K filed
January 14, 2010
(File No. 1-11593)
[Exhibit 4.2]
Form of 7.25% Senior Notes due 2018 (included in Exhibit 4.2)
Incorporated herein
by reference to the
Registrants
Current Report on
Form 8-K filed
January 14, 2010
(File No. 1-11593)
[Included in
Exhibit 4.2]
Specimen form of Deferred Stock Unit Award Agreement for Nonemployee
Directors (with Related Dividend Equivalents) used to evidence
grants of Deferred Stock Units which may be made under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term Incentive
Plan (Deferral of Cash Retainer post-January 21, 2010 version)
*
Specimen form of Restricted Stock Unit Award Agreement for Employees
(with Related Dividend Equivalents) used to evidence grants of
Restricted Stock Units which may be made under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term Incentive
Plan (post-January 19, 2010 version)
*
Specimen form of Restricted Stock
Unit Award Agreement for Employees (with Related Dividend
Equivalents) used to evidence grants of Restricted Stock Units which
may be made under The Scotts Miracle-Gro Company Amended and Restated
2006 Long-Term Incentive Plan (French Specimen)
[post-January 19, 2010 version]
*
Specimen form of Nonqualified Stock Option Award Agreement for
Employees used to evidence grants of Nonqualified Stock Options
which may be made under The Scotts Miracle-Gro Company Amended and
Restated 2006 Long-Term Incentive Plan (post-January 19, 2010
version)
*
First Amendment to Employment Agreement of Mark R. Baker, effective
as of December 10, 2009
Incorporated herein
by reference to the
Registrants
Current Report on
Form 8-K filed
December 16, 2009
(File No. 1-11593)
[Exhibit 10.2]
Rule 13a-14(a)/15d-14(a) Certifications (Principal Executive Officer)
*
Rule 13a-14(a)/15d-14(a) Certifications (Principal Financial Officer)
*
Section 1350 Certifications (Principal Executive Officer and
Principal Financial Officer)
*
*
|
Read the Plan and this Award Agreement carefully; and
|
|
Contact [Title] at [Telephone Number] if you have any questions about your Award. Or, you may
send a written inquiry to the address shown below:
|
2
3
[Directors Name] | THE SCOTTS MIRACLE-GRO COMPANY | |||||||||
|
||||||||||
By:
|
By: | |||||||||
|
|
| ||||||||
Date signed:
|
[Name of Company Representative] | |||||||||
|
|
|||||||||
|
[Title of Company Representative] | |||||||||
|
Date signed: | |||||||||
|
|
4
|
Read the Plan and this Award Agreement carefully; and
|
|
Contact [Title] at [Telephone Number] if you have any questions about your Award. Or, you may
send a written inquiry to the address shown below:
|
2
3
4
[Grantees Name] | THE SCOTTS MIRACLE-GRO COMPANY | |||||||||
|
||||||||||
By:
|
By: | |||||||||
|
|
| ||||||||
Date signed:
|
[Name of Company Representative] | |||||||||
|
|
|||||||||
|
[Title of Company Representative] | |||||||||
|
Date signed: | |||||||||
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Exhibit 10.3
THE SCOTTS MIRACLE-GRO COMPANY
AMENDED AND RESTATED
2006 LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT FOR EMPLOYEES
(with related dividend equivalents)
RESTRICTED STOCK UNITS GRANTED TO
[Grantees Name] ON [Grant Date]
The Scotts Miracle-Gro Company (the Company) believes that its business interests are best served by ensuring that you have an opportunity to share in the Companys business success. To this end, the Company adopted The Scotts Miracle-Gro Company Amended and Restated 2006 Long-Term Incentive Plan (the Plan) through which key employees, like you, may acquire (or share in the appreciation of) common shares, without par value, of the Company (Shares). Capitalized terms that are not defined in this Award Agreement have the same meanings as in the Plan.
This Award Agreement describes the type of Award that you have been granted and the terms and conditions of your Award. To ensure you fully understand these terms and conditions, you should:
Read the Plan, this Award Agreement and the Plan Prospectus, as supplemented, carefully; and
Contact [Title] at [Telephone Number] if you have any questions about your Award. Or, you may send a written inquiry to the address shown below:
The Scotts Miracle-Gro Company
Attention: [Title]
14111 Scottslawn Road
Marysville, Ohio 43041
Also, no later than [Date 30 Days After Grant Date], you must return a signed copy of this Award Agreement to:
[Third Party Administrator]
Attention: [TPA Contacts Name]
[TPA Contacts Address]
[TPA Telephone Number]
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1. DESCRIPTION OF YOUR RESTRICTED STOCK UNITS
You have been granted [Number] Restricted Stock Units (RSUs) and an equal number of related dividend equivalent rights, subject to the terms and conditions of the Plan and this Award Agreement. The Grant Date of your Award is [Grant Date]. Each whole RSU represents the right to receive one full Share at the time and in the manner described in this Award Agreement. Subject to Section 3(g) of this Award Agreement, each dividend equivalent represents the right to receive an amount equal to the dividends that are declared and paid during the period beginning on the Grant Date and ending on the Settlement Date (as described in Section 2(b) of this Award Agreement) with respect to the Share represented by the related RSU.
2. VESTING AND SETTLEMENT
(a) Vesting . Subject to Sections 3(a) and 3(b) of this Award Agreement, your RSUs will become 100% vested on [Third Anniversary of Grant Date] (Vesting Date).
(b) Settlement . Subject to the terms of the Plan and this Award Agreement, your vested RSUs shall be settled in a lump sum as soon as administratively practicable, but no later than 90 days, following the earliest to occur of: (i) your death; (ii) the date you become Disabled (as defined in Section 2(c) of this Award Agreement); or (iii) [Vesting Date] (the Settlement Date). Your whole RSUs shall be settled in full Shares, and any fractional RSU shall be settled in cash, determined based upon the Fair Market Value of a Share on the Settlement Date.
(c) Definitions . For purposes of this Award Agreement, (i) Disabled means (A) any physical or mental condition that would qualify you for a disability benefit under any long-term disability plan maintained by the Company that is applicable to you, (B) if there is no such plan, such condition provided in any applicable governmental statute or regulation that constitutes Disabled, or (C) if there is no such applicable statute or regulation, such other condition as may be determined by the Company in its sole discretion to constitute Disabled; and (ii) Terminate (or any form thereof) means the date of notification of the cessation of the employee-employer relationship between you and the Company and all Affiliates and Subsidiaries for any reason.
3. GENERAL TERMS AND CONDITIONS
(a) YOU MAY FORFEIT YOUR RSUs IF YOU TERMINATE. Except as otherwise provided in Section 3(b) of this Award Agreement:
(i) if, prior to the Vesting Date, you (A) Terminate after reaching either (I) age 55 and completing at least 10 years of employment with the Company, its Affiliates and/or its Subsidiaries or (II) age 62 regardless of your years of service, (B) die, or (C) become Disabled, your RSUs will become 100% vested as of the date of such event and will be settled in accordance with Section 2(b) of this Award Agreement; and
(ii) if, prior to the Vesting Date, you Terminate for any reason not described in Section 3(a)(i) of this Award Agreement, your RSUs will be forfeited immediately.
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(b) CHANGE IN CONTROL. Normally, your RSUs will vest and be settled only under the circumstances described in Sections 2 and 3(a)(i) of this Award Agreement. However, if there is a Change in Control, your RSUs will vest and be settled as described in the Plan. You should read the Plan carefully to ensure that you understand how this may happen.
(c) NO RIGHT TO EMPLOYMENT . Your RSU award is a voluntary, discretionary bonus being made on a one-time basis and it does not constitute a commitment to make any future awards. This Award and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law. Nothing in this Award Agreement will give you any right to continue employment with the Company or any Subsidiary or Affiliate, as the case may be, or interfere in any way with the right of the Company or a Subsidiary or an Affiliate to terminate your employment.
(d) DATA PRIVACY . Information about you and your participation in the Plan, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of your RSUs or other entitlement to shares of stock awarded, cancelled, exercised, vested, unvested or outstanding in your favor, may be collected, recorded, held, used and disclosed for any purpose related to the administration and management of the Plan and in order to satisfy legal and regulatory requirements. You understand that the Company will keep your personal data in accordance with the rules set forth by Law No. 78-17, dated January 6, 1978, related to software, files and liberties (the Law). The Company will also take reasonable measures in order to protect your personal data and to observe the requirements set forth by the Commission Nationale de lInformatique et des Libertés . Pursuant to the Law, you have the right to access, correct and request deletion of any of your personal data that is inaccurate, incomplete, ambiguous, obsolete or whose collection, use, communication or conservation is prohibited. You also understand that the Company and its Subsidiaries or Affiliates may transfer such information to any third party administrators, regardless of whether such persons are located within your country of residence, the European Economic Area or in countries outside of the European Economic Area, including the United States of America, where the rules protecting such data are less stringent than those applicable within the European Economic Area. You expressly consent and agree to the collection, holding, use, disclosure, transfer in electronic or other form, and processing of information relating to you and your participation in the Plan.
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French translation:
(d) PROTECTION DES DONNES PERSONNELLES . Les informations vous concernant ainsi que votre participation dans le Plan, y compris mais non limitativement, votre nom, votre adresse personnelle et numéro de téléphone, date de naissance, numéro de sécurité sociale, salaire, nationalité, intitulé de poste, toutes participations ou tous mandats détenus dans la Société, les renseignements sur le RSUs ou sur tout autre droit à des participations octroyées, annulées, exercées, disponibles ou non disponbiles ou en circulation en votre faveur, peuvent être rassemblées, enregistrées, détenues, utilisées et divulguées pour toute raison liée à ladministration et la gestion du Plan et afin de satisfaire aux exigences légales et réglementaires. Vous comprenez que la Société conservera vos données personnelles conformément aux règles posées par la Loi No. 78-17 du 7 janvier 1978 relative à linformatique, aux fichiers et aux libertés (la Loi). La Société pendra également toutes les mesures raisonnables afin de protéger vos données personnelles et dobserver les exigences posées par la Commission Nationale de lInformatique et des Libertés. En application de la Loi, vous bénéficiez dun droit daccès, de modification et de suppression de vos données personelles qui seraient incorrectes, incomplètes, ambigües, obsolètes ou dont la collecte, lutilisation, la communication ou la conservation seraient prohibées. Vous comprenez également que la Société et ses Filiales ou Sociétés Affiliées peuvent transférer ces informations à des tiers administrateurs, peu importe que ces personnes soient situées dans votre pays de résidence, lEspace Economique Européen ou dans des pays autres que lEspace Economique Européen, y compris, les Etas-Unis dAmérique, où les règles de protection de telles données personnelles sont moins contraingrantes que celles applicables dans lEspace Economique Européen. Vous consentez expressément et vous acceptez la collecte, la détention, lutilisation, la divulgation, le transfert sous forme électronique ou autre et plus généralement le traitement des informations vous concernant et concernant votre participation au Plan.
(e) AMENDMENT AND TERMINATION. Subject to the terms of the Plan, the Company may amend or terminate this Award Agreement or the Plan at any time.
(f) RIGHTS BEFORE YOUR RSUs ARE SETTLED. Except as provided in Section 3(g) of this Award Agreement, you will have none of the rights of a shareholder with respect to Shares underlying the RSUs unless and until you become the record holder of such Shares.
(g) DIVIDEND EQUIVALENTS. You will be entitled to receive a dividend equivalent equal to any dividends declared and paid on each Share represented by a related RSU, subject to the same terms and conditions as the related RSU. Any dividend equivalents described in this Section 3(g) will be distributed to you in accordance with Section 2(b) of this Award Agreement or forfeited, depending on whether or not you have met the conditions described in this Award Agreement and the Plan. Any such distributions will be made in (i) cash, for any dividend equivalents relating to cash dividends and (ii) Shares, for any dividend equivalents relating to Share dividends.
(h) BENEFICIARY DESIGNATION. You may name a beneficiary or beneficiaries to receive any RSUs and related dividend equivalents that vest before you die but are settled after you die. This may be done only on the attached Beneficiary Designation Form and by following the rules described in that Form. The Beneficiary Designation Form does not need to be completed now and is not required as a condition of receiving your Award. However, if you die without completing a Beneficiary Designation Form or if you do not complete that Form correctly, your beneficiary will be your surviving spouse or, if you do not have a surviving spouse, your estate.
(i) TRANSFERRING YOUR RSUs AND RELATED DIVIDEND EQUIVALENTS. Normally, your RSUs and related dividend equivalents may not be transferred to another person. However, as described in Section 3(h) of this Award Agreement, you may complete a Beneficiary Designation Form to name the person to receive any RSUs and related dividend equivalents that are vested before you die but are settled after you die. Also, the Committee may allow you to place your RSUs and related dividend equivalents into a trust established for your benefit or the benefit of your family. Contact [Third Party Administrator] at [TPA Telephone Number] or at the address given above if you are interested in doing this.
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(j) ELECTRONIC DELIVERY . The Company may, in its sole discretion, deliver any documents related to your RSUs and your participation in the Plan, or future awards that may be granted under the Plan, by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
(k) GOVERNING LAW. This Award Agreement shall be governed by the laws of the State of Ohio, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan to the substantive law of another jurisdiction.
(l) OTHER AGREEMENTS. Your RSUs and related dividend equivalents will be subject to the terms of any other written agreements between you and the Company or any Affiliate or Subsidiary to the extent that those other agreements do not directly conflict with the terms of the Plan or this Award Agreement.
(m) ADJUSTMENTS TO YOUR RSUs. Subject to the terms of the Plan, your RSUs and related dividend equivalents will be adjusted, if appropriate, to reflect any change to the Companys capital structure ( e.g. , the number of Shares underlying your RSUs will be adjusted to reflect a stock split).
(n) OTHER RULES. Your RSUs and related dividend equivalents are subject to more rules described in the Plan. You should read the Plan carefully to ensure you fully understand all the terms and conditions of the grant of RSUs and related dividend equivalents under this Award Agreement.
4. YOUR ACKNOWLEDGMENT OF AWARD CONDITIONS
By signing below, you acknowledge and agree that:
(a) Copies of the Plan and the Plan Prospectus, as supplemented, have been made available to you;
(b) You understand and accept the terms and conditions of your Award;
(c) You will consent (on your own behalf and on behalf of your beneficiaries and transferees and without any further consideration) to any necessary change to your Award or this Award Agreement to comply with any law; and
(d) You must return a signed copy of this Award Agreement to the address given above before [Date 30 Days After Grant Date].
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Read the Plan and this Award Agreement carefully; and
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Contact [Title] at [Telephone Number] if you have any questions about your Award. Or,
you may send a written inquiry to the address shown below:
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[Grantees Name] | THE SCOTTS MIRACLE-GRO COMPANY | |||||||||
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BY:
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BY: | |||||||||
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Date signed: | [Name of Company representative] | |||||||||
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[Title of Company representative] | |||||||||
Date signed: |
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Cashless Exercise and Sell.
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Combination Exercise.
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Exercise and Hold.
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If you select the Exercise and Hold method, you must follow the procedures
described in the Award Agreement to pay the Exercise Price and the taxes related to
this exercise. You should contact [Third Party Administrator] at the address given
below to find out the amount of taxes due.
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If you select either the Cashless Exercise and Sell method or the Combination
Exercise method, you should contact [Third Party Administrator] at the address
given below to be sure you understand how your choice of payment will affect the
number of Shares you will receive.
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You fully understand the effect (including the investment effect) of exercising your NSO
and buying Shares and understand that there is no guarantee that the value of these Shares
will appreciate or will not depreciate;
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This Exercise Notice will have no effect if it is not returned to [Third Party
Administrator] at the address given below before the NSO expires, as specified in the Award
Agreement under which the NSO was granted; and
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The Shares you are buying by completing and returning this Exercise Notice will be
issued to you as soon as administratively practicable. You will not have any rights as a
shareholder of the Company until the Shares are issued.
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(signature) | ||||
Date signed:
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By:
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Date:
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1. |
I have reviewed this Quarterly Report on Form 10-Q of The Scotts Miracle-Gro Company for
the quarterly period ended January 2, 2010;
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the
period covered by this report;
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3. |
Based on my knowledge, the financial statements, and other financial information included
in this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
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4. |
The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is
being prepared;
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(b) |
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles;
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Evaluated the effectiveness of the registrants disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
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(d) |
Disclosed in this report any change in the registrants internal control over
financial reporting that occurred during the registrants most recent fiscal quarter (the
registrants fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrants internal control
over financial reporting; and
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5. |
The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and
the audit committee of the registrants board of directors (or persons performing the
equivalent functions):
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All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information;
and
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Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrants internal control over financial reporting.
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Date: February 11, 2010 | By: | /s/ JAMES HAGEDORN | ||
Printed Name: | James Hagedorn | |||
Title: | Chief Executive Officer and Chairman of the Board |
1. |
I have reviewed this Quarterly Report on Form 10-Q of The Scotts Miracle-Gro Company for
the quarterly period ended January 2, 2010;
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the
period covered by this report;
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3. |
Based on my knowledge, the financial statements, and other financial information included
in this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
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4. |
The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being
prepared;
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(b) |
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles;
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Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this report based on such
evaluation; and
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Disclosed in this report any change in the registrants internal control over financial
reporting that occurred during the registrants most recent fiscal quarter (the
registrants fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrants internal control
over financial reporting; and
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The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and
the audit committee of the registrants board of directors (or persons performing the
equivalent functions):
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(a) |
All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information;
and
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Any fraud, whether or not material, that involves management or other employees who
have a significant role in the registrants internal control over financial reporting.
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Date: February 11, 2010 | By: | /s/ DAVID C. EVANS | ||
Printed Name: | David C. Evans | |||
Title: | Executive Vice President and Chief Financial Officer |
1) |
The Report fully complies with the requirements of Section 13(a) of the Securities
Exchange Act of 1934; and
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2) |
The information contained in the Report fairly presents, in all material respects, the
consolidated financial condition and results of operations of the Company and its
subsidiaries.
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/s/ JAMES HAGEDORN
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/s/ DAVID C. EVANS
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Chief Executive Officer and
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Executive Vice President and | |||
Chairman of the Board
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Chief Financial Officer | |||
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February 11, 2010
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February 11, 2010 |
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THESE CERTIFICATIONS ARE BEING FURNISHED AS REQUIRED BY RULE 13a-14(b) UNDER THE SECURITIES
EXCHANGE ACT OF 1934 (THE EXCHANGE ACT) AND SECTION 1350 OF CHAPTER 63 OF TITLE 18 OF THE
UNITED STATES CODE, AND SHALL NOT BE DEEMED FILED FOR PURPOSES OF SECTION 18 OF THE EXCHANGE
ACT OR OTHERWISE SUBJECT TO THE LIABILITY OF THAT SECTION. THESE CERTIFICATIONS SHALL NOT BE
DEEMED TO BE INCORPORATED BY REFERENCE INTO ANY FILING UNDER THE SECURITIES ACT OF 1933 OR THE
EXCHANGE ACT, EXCEPT TO THE EXTENT THAT THE COMPANY SPECIFICALLY INCORPORATES THESE
CERTIFICATIONS BY REFERENCE.
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