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
Incorporation or Organization) |
(I.R.S. Employer Identification No.) | |
14111 SCOTTSLAWN ROAD, MARYSVILLE, OHIO | 43041 | |
(Address of Principal Executive Offices) | (Zip Code) |
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
(IN MILLIONS EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
Table of Contents
(IN MILLIONS)
(UNAUDITED)
Table of Contents
Table of Contents
Table of Contents
NINE MONTHS ENDED
JULY 1, 2006
JULY 2, 2005
801,400
949,600
182,000
101,000
30,000
126,000
147,000
1,139,400
1,197,600
$
20.4
$
14.9
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1, 2006
JULY 2, 2005
JULY 1, 2006
JULY 2, 2005
(IN MILLIONS)
(IN MILLIONS)
$
2.9
$
2.7
$
11.7
$
7.4
1.1
1.0
4.4
2.8
Weighted Average
Weighted Average
No. of Options
Exercise Price
Remaining
Aggregate
/ SARs
Per Share
Contractual Term
Intrinsic Value
(IN MILLIONS)
6.4
$
23.09
0.9
43.74
(0.8
)
20.14
(0.2
)
34.66
6.3
26.08
5.9 years
$
102.3
4.6
22.64
5.1 years
90.5
NINE MONTHS ENDED
JULY 1, 2006
JULY 2, 2005
23.0
%
23.9
%
4.4
%
3.7
%
1.2
%
6.19
6.15
$
12.09
$
10.57
Weighted
Average Grant-
Date Fair Value
No. of Shares
Per Share
114,400
$
32.07
212,000
43.50
(10,400
)
41.17
(9,200
)
42.51
306,800
39.38
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1, 2006
JULY 2, 2005
JULY 1, 2006
JULY 2, 2005
(IN MILLIONS, EXCEPT PER SHARE DATA)
67.5
67.0
67.7
66.5
and vesting
of restricted stock
1.9
1.6
2.0
1.9
69.4
68.6
69.7
68.4
$
1.97
$
1.33
$
2.59
$
1.64
1.92
1.29
2.52
1.59
Table of Contents
JULY 1,
JULY 2,
SEPTEMBER 30,
2006
2005
2005
(IN MILLIONS)
$
312.6
$
260.1
$
216.0
30.0
25.1
31.4
90.0
70.6
77.5
$
432.6
$
355.8
$
324.9
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1, 2006
JULY 2, 2005
JULY 1, 2006
JULY 2, 2005
(IN MILLIONS)
(IN MILLIONS)
$
31.5
$
31.2
$
49.7
$
53.4
(5.0
)
(6.3
)
(15.0
)
(18.8
)
(45.7
)
(45.7
)
(0.2
)
(0.8
)
(0.6
)
(2.5
)
26.3
(21.6
)
34.1
(13.6
)
11.5
12.0
29.7
32.6
$
37.8
$
(9.6
)
$
63.8
$
19.0
Table of Contents
NINE MONTHS ENDED
JULY 1, 2006
JULY 2, 2005
(IN MILLIONS)
$
5.5
$
6.7
1.4
(5.5
)
6.9
1.2
1.0
22.0
$
7.9
$
23.2
NINE MONTHS ENDED
JULY 1, 2006
JULY 2, 2005
(IN MILLIONS)
$
15.6
$
5.3
6.9
1.2
(15.3
)
3.4
$
7.2
$
9.9
JULY 1,
JULY 2,
SEPTEMBER 30,
2006
2005
2005
(IN MILLIONS)
$
401.7
$
$
166.2
396.0
200.0
200.0
200.0
6.1
8.7
8.1
9.9
10.1
6.8
8.5
7.0
12.4
626.2
621.8
393.5
13.0
18.1
11.1
$
613.2
$
603.7
$
382.4
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(IN MILLIONS)
(IN MILLIONS)
$
133.3
$
88.5
$
175.4
$
109.0
0.1
(0.9
)
0.2
1.3
1.7
(1.2
)
2.4
$
135.1
$
86.4
$
178.0
$
110.3
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(IN MILLIONS)
(IN MILLIONS)
$
0.5
$
0.6
$
1.4
$
1.9
2.0
1.6
6.0
4.8
0.6
0.8
2.2
2.3
that all significant sites that must be remediated have been identified;
that there are no significant conditions of contamination that are unknown to us; and
that with respect to the agreed judicial Consent Order in
Ohio, potentially contaminated soil can be remediated in place rather than having to be removed and only specific stream segments will require remediation as opposed to the entire
stream.
Table of Contents
Date of Acquisition
Assets Acquired
Consideration
Reasons for the Acquisition
Certain brands and
assets of Landmark
Seed Company, a
leading producer
and distributor of
quality
professional seed
and turfgrasses.
Cash of $6.1 million
with an additional
$1.0 million deferred
to future periods.
Transaction enhances the
Companys position in the
global turfgrass seed
industry, and compliments
the acquisition of
Turf-Seed, Inc.
Certain brands, turfgrass
varieties, intellectual property
and other assets of
Turf-Seed, Inc., a
leading producer of
quality commercial
turfgrasses.
Cash of $9.3 million
with contingent
consideration based
on future
performance of the
business due in 2012
that may approximate
$15.0 million.
Integration of Turf-Seeds
extensive professional
seed sales and
distribution network with
the Companys existing
presence and industry
leading brands in the
consumer seed market will strengthen the Companys
overall global position in
the seed category. The Company also obtains rights to various
turfgrass varieties.
Table of Contents
Date of Acquisition
Assets Acquired
Consideration
Reasons for the Acquisition
All the outstanding
shares of Gutwein, whose Morning Song® brand is a leader in the
growing U.S. wild
bird food category.
$77.0 million in cash.
This acquisition gives the
Company its entry into the growing wild birdseed category.
We are leveraging the
strengths of both
organizations to accelerate growth in this
category.
All the outstanding
shares of Rod
McLellan Company
(RMC), a leading
branded producer
and marketer of
soil and landscape
products in the
western U.S. Key brands include
Supersoil®,
Whitney Farms and Black Magic®
$21.0 million in cash.
RMC compliments our
existing line of growing
media products and has
been integrated into that
business.
All the outstanding
shares of Smith
& Hawken®, a
leading brand in
the outdoor living
and gardening
lifestyle category.
$73.6 million in cash.
Our strategy is to
extend our reach into
adjacent lawn and garden
categories and to own
industry-leading brands in every category in which we
compete. We consider the Smith & Hawken brand to be the premier
brand in the fast-growing outdoor living category.
Table of Contents
THREE MONTHS
NINE MONTHS
ENDED
ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(IN MILLIONS)
(IN MILLIONS)
$
770.3
$
687.5
$
1,596.5
$
1,405.5
75.3
59.8
128.7
102.3
144.5
142.0
353.0
376.2
57.9
57.6
126.8
122.8
1,048.0
946.9
2,205.0
2,006.8
(45.7
)
(45.7
)
$
1,048.0
$
901.2
$
2,205.0
$
1,961.1
$
205.4
$
181.3
$
356.8
$
318.1
19.5
17.0
(5.4
)
(3.5
)
21.7
21.3
41.1
45.8
(11.3
)
(18.1
)
(56.7
)
(72.0
)
235.3
201.5
335.8
288.4
(45.7
)
(45.7
)
(4.9
)
(3.4
)
(12.2
)
(10.6
)
(1.0
)
(22.0
)
(1.1
)
(0.1
)
(6.9
)
(1.2
)
$
229.3
$
152.3
$
315.7
$
208.9
JULY 1,
JULY 2,
SEPTEMBER 30,
2006
2005
2005
(IN MILLIONS)
$
1,589.7
$
1,482.1
$
1,219.3
164.4
148.8
146.7
581.5
537.1
463.1
210.9
191.3
189.8
$
2,546.5
$
2,359.3
$
2,018.9
Table of Contents
CONDENSED, CONSOLIDATING STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED JULY 1, 2006
(IN MILLIONS)
(UNAUDITED)
SUBSIDIARY
NON-
PARENT
GUARANTORS
GUARANTORS
ELIMINATIONS
CONSOLIDATED
$
$
866.6
$
181.4
$
$
1,048.0
524.5
117.5
642.0
342.1
63.9
406.0
142.1
38.1
180.2
0.1
1.0
1.1
(136.6
)
136.6
(10.2
)
10.2
(4.1
)
(0.5
)
(4.6
)
136.6
214.2
15.1
(136.6
)
229.3
3.3
5.2
4.7
13.2
133.3
209.0
10.4
(136.6
)
216.1
81.3
1.5
82.8
$
133.3
$
127.7
$
8.9
$
(136.6
)
$
133.3
Table of Contents
CONDENSED, CONSOLIDATING STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED JULY 1, 2006
(IN MILLIONS)
(UNAUDITED)
SUBSIDIARY
NON-
PARENT
GUARANTORS
GUARANTORS
ELIMINATIONS
CONSOLIDATED
$
$
1,765.0
$
440.0
$
$
2,205.0
1,115.9
283.1
1,399.0
0.1
0.1
649.1
156.8
805.9
384.7
104.7
489.4
4.5
3.3
7.8
(185.3
)
185.3
(18.7
)
18.7
(6.0
)
(1.0
)
(7.0
)
185.3
284.6
31.1
(185.3
)
315.7
9.9
11.3
11.6
32.8
175.4
273.3
19.5
(185.3
)
282.9
94.5
13.0
107.5
$
175.4
$
178.8
$
6.5
$
(185.3
)
$
175.4
Table of Contents
CONDENSED, CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE NINE MONTH PERIOD ENDED JULY 1, 2006
(IN MILLIONS)
(UNAUDITED)
SUBSIDIARY
NON-
PARENT
GUARANTORS
GUARANTORS
ELIMINATIONS
CONSOLIDATED
$
175.4
$
178.8
$
6.5
$
(185.3
)
$
175.4
1.0
1.0
11.7
11.7
33.0
5.4
38.4
7.0
5.2
12.2
(185.3
)
185.3
1.3
(186.7
)
(69.3
)
(254.7
)
6.9
13.2
20.1
(8.6
)
50.7
(38.0
)
4.1
(27.3
)
(9.3
)
(36.6
)
(97.1
)
(22.2
)
(119.3
)
(97.1
)
(49.5
)
(9.3
)
(155.9
)
417.0
289.4
706.4
(411.5
)
(84.2
)
(495.7
)
(25.2
)
(25.2
)
(73.3
)
(73.3
)
(3.5
)
(3.5
)
5.6
5.6
15.6
15.6
188.6
(38.8
)
(149.8
)
105.7
(31.2
)
55.4
129.9
5.6
5.6
(30.0
)
13.7
(16.3
)
42.5
37.7
80.2
$
$
12.5
$
51.4
$
$
63.9
Table of Contents
CONDENSED, CONSOLIDATING BALANCE SHEET
AS OF JULY 1, 2006
(IN MILLIONS)
(UNAUDITED)
Table of Contents
CONDENSED, CONSOLIDATING STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED JULY 2, 2005
(IN MILLIONS)
(UNAUDITED)
SUBSIDIARY
NON-
PARENT
GUARANTORS
GUARANTORS
ELIMINATIONS
CONSOLIDATED
$
390.5
$
337.6
$
173.1
$
$
901.2
285.1
173.1
109.2
567.4
105.4
164.5
63.9
333.8
111.4
38.7
38.5
188.6
(0.6
)
0.5
(0.1
)
(83.9
)
83.9
(15.2
)
6.6
8.6
(4.7
)
(1.6
)
(0.7
)
(7.0
)
98.4
120.8
17.0
(83.9
)
152.3
9.0
(0.1
)
2.7
11.6
89.4
120.9
14.3
(83.9
)
140.7
1.3
45.9
5.4
52.6
88.1
75.0
8.9
(83.9
)
88.1
0.4
0.4
$
88.5
$
75.0
$
8.9
$
(83.9
)
$
88.5
Table of Contents
CONDENSED, CONSOLIDATING STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED JULY 2, 2005
(IN MILLIONS)
(UNAUDITED)
SUBSIDIARY
NON-
PARENT
GUARANTORS
GUARANTORS
ELIMINATIONS
CONSOLIDATED
$
893.4
$
619.3
$
448.4
$
$
1,961.1
599.0
358.1
281.4
1,238.5
0.1
0.1
294.4
261.2
166.9
722.5
287.3
101.4
108.1
496.8
0.6
22.5
23.1
(102.5
)
102.5
(29.0
)
8.0
21.0
(4.9
)
(3.6
)
2.2
(6.3
)
142.9
155.4
13.1
(102.5
)
208.9
31.5
(4.9
)
8.2
34.8
111.4
160.3
4.9
(102.5
)
174.1
2.5
60.9
1.9
65.3
108.9
99.4
3.0
(102.5
)
108.8
0.1
0.1
0.2
$
109.0
$
99.4
$
3.1
$
(102.5
)
$
109.0
Table of Contents
CONDENSED, CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE NINE MONTHS ENDED JULY 2, 2005
(IN MILLIONS)
(UNAUDITED)
SUBSIDIARY
NON-
PARENT
GUARANTORS
GUARANTORS
ELIMINATIONS
CONSOLIDATED
$
109.0
$
99.4
$
3.1
$
(102.5
)
$
109.0
22.0
22.0
7.4
7.4
26.5
5.3
5.7
37.5
2.7
4.4
3.5
10.6
5.8
2.3
(0.9
)
7.2
(102.5
)
102.5
(17.8
)
(48.7
)
(67.5
)
(134.0
)
1.6
4.4
1.5
7.5
32.7
67.1
(32.6
)
67.2
57.2
57.2
(13.8
)
(3.0
)
(2.5
)
(19.3
)
(76.7
)
(76.7
)
43.4
(79.7
)
(2.5
)
(38.8
)
44.2
410.4
454.6
(45.3
)
(389.2
)
(434.5
)
(3.0
)
(3.0
)
(0.4
)
(0.1
)
(0.5
)
(0.7
)
(5.1
)
(5.8
)
23.7
23.7
(46.6
)
19.9
26.7
(28.1
)
14.8
47.8
34.5
(1.7
)
(1.7
)
48.0
2.2
11.0
61.2
82.4
1.3
31.9
115.6
$
130.4
$
3.5
$
42.9
$
$
176.8
Table of Contents
CONDENSED, CONSOLIDATING BALANCE SHEET
AS OF JULY 2, 2005
(IN MILLIONS)
(UNAUDITED)
Table of Contents
CONDENSED, CONSOLIDATING BALANCE SHEET
AS OF SEPTEMBER 30, 2005
(IN MILLIONS)
Table of Contents
EXECUTIVE SUMMARY
Results of operations
Segment results
Liquidity and capital resources
Percent Net Sales by Quarter
2005
2004
2003
10.4
%
8.7
%
9.0
%
34.3
%
35.2
%
35.1
%
38.0
%
38.2
%
37.7
%
17.3
%
17.9
%
18.2
%
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(UNAUDITED)
(UNAUDITED)
100.0
%
100.0
%
100.0
%
100.0
%
61.3
63.0
63.5
63.2
38.7
37.0
36.5
36.8
17.1
20.9
22.1
25.2
0.1
0.4
1.2
(0.4
)
(0.8
)
(0.3
)
(0.3
)
21.9
16.9
14.3
10.7
1.3
1.3
1.5
1.8
20.6
15.6
12.8
8.9
7.9
5.8
4.9
3.3
12.7
%
9.8
%
7.9
%
5.6
%
Fiscal 2006
Third Quarter
First Nine-Months
16.3
%
12.4
%
(5.6
)
(2.5
)
(3.7
)
(3.6
)
(0.6
)
0.6
6.4
%
6.9
%
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(IN MILLIONS)
(IN MILLIONS)
(UNAUDITED)
(UNAUDITED)
$
50.9
$
49.8
$
115.4
$
105.5
124.6
136.2
362.4
383.2
4.7
2.6
11.6
8.1
$
180.2
$
188.6
$
489.4
$
496.8
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(IN MILLIONS)
(IN MILLIONS)
(UNAUDITED)
(UNAUDITED)
$
$
$
1.0
$
22.0
1.1
(0.1
)
6.8
1.1
$
1.1
$
(0.1
)
$
7.8
$
23.1
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(IN MILLIONS)
(IN MILLIONS)
(UNAUDITED)
(UNAUDITED)
$
770.3
$
687.5
$
1,596.5
$
1,405.5
75.3
59.8
128.7
102.3
144.5
142.0
353.0
376.2
57.9
57.6
126.8
122.8
1,048.0
946.9
2,205.0
2,006.8
(45.7
)
(45.7
)
$
1,048.0
$
901.2
$
2,205.0
$
1,961.1
Table of Contents
THREE MONTHS ENDED
NINE MONTHS ENDED
JULY 1,
JULY 2,
JULY 1,
JULY 2,
2006
2005
2006
2005
(IN MILLIONS)
(IN MILLIONS)
(UNAUDITED)
(UNAUDITED)
$
205.4
$
181.3
$
356.8
$
318.1
19.5
17.0
(5.4
)
(3.5
)
21.7
21.3
41.1
45.8
(11.3
)
(18.1
)
(56.7
)
(72.0
)
235.3
201.5
335.8
288.4
(45.7
)
(45.7
)
(4.9
)
(3.4
)
(12.2
)
(10.6
)
(1.0
)
(22.0
)
(1.1
)
(0.1
)
(6.9
)
(1.2
)
$
229.3
$
152.3
$
315.7
$
208.9
Table of Contents
Table of Contents
(A)
information required to be disclosed by the Company in this Quarterly Report on Form 10-Q
and the other reports that the Company files or submits under the Exchange Act would be
accumulated and communicated to the Companys management, including its principal executive
officer and principal financial officer, as appropriate to allow timely decisions regarding
required disclosure; and
(B)
information required to be disclosed by the Company in this Quarterly Report on Form 10-Q
and the other reports that the Company files or submits under the Exchange Act would be
recorded, processed, summarized, and reported within the time periods specified in the SECs
rules and forms; and
(C)
the Companys disclosure controls and procedures are effective as of the end of the
fiscal quarter covered by this Quarterly Report on Form 10-Q to ensure that material
information relating to the Company and its consolidated subsidiaries is made known to them,
particularly during the period in which the Companys periodic reports, including this
Quarterly Report on Form 10-Q, are being prepared.
Table of Contents
Approximate Dollar
Total Number of
Value of Common Shares
Common Shares
that May Yet Be
Total Number of
Purchased as Part
Purchased
Common Shares
Average Price
of Publicly Announced
Under the Plans or
Period
Purchased
Paid Per Share
Plans or Programs(1)
Programs
190,000
$
45.57
190,000
$
45,434,352
210,000
43.61
210,000
36,275,458
220,000
41.39
220,000
27,169,856
620,000
$
43.43
620,000
1
Scotts Miracle-Gro repurchases its common shares under a share repurchase program that was
approved by the Board of Directors
Table of Contents
Name and Principal Position
Date of Employee Confidentiality,
with
The Scotts Miracle-Gro Company
Noncompetition, Nonsolicitation Agreement
August 7, 2006
May 11, 2006
August 8, 2006
Table of Contents
THE SCOTTS MIRACLE-GRO COMPANY
/s/ Christopher L. Nagel
Date: August 10, 2006
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 JULY 1, 2006
EXHIBIT NO.
DESCRIPTION
LOCATION
Specimen form of Employee Confidentiality, Noncompetition,
Nonsolicitation Agreement for employees participating in The
Scotts Company LLC Executive/Management Incentive Plan
*
Executive Officers of The Scotts
Miracle-Gro Company who are parties to form of Employee Confidentiality, Noncompetition,
Nonsolicitation Agreement for employees participating in The
Scotts Company LLC Executive/Management Incentive Plan
*
Specimen form of Award Agreement for Third Party Service
Providers to evidence awards under The Scotts Miracle-Gro
Company 2006 Long-Term Incentive Plan to third party service
providers
*
Rule 13a-14(a)/15d-14(a) Certification (Principal Executive Officer)
*
Rule 13a-14(a)/15d-14(a) Certification (Principal Financial Officer)
*
Section 1350 Certification (Principal Executive Officer and Principal Financial Officer)
*
*
Filed herewith
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EMPLOYEE: | THE SCOTTS COMPANY LLC | |||||||
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By: | |||||||
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Signature | Signature | |||||||
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Printed Name | Printed Name | |||||||
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||||||||
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5
Scotts Miracle-Gro Company
who are parties to form of
Employee Confidentiality, Noncompetition,
Nonsolicitation Agreement for employees
participating in The Scotts Company LLC
Executive/Management Incentive Plan
Name and Principal Position
Date of Employee Confidentiality,
with The Scotts Miracle-Gro Company
Noncompetition, Nonsolicitation Agreement
August 7, 2006
May 11, 2006
August 8, 2006
| Read the Plan and the Plans Prospectus carefully to ensure you understand how the Plan works; | ||
| Read this Award Agreement carefully to ensure you understand the nature of your Award and what you must do to earn it; and | ||
| Contact [Contacts Name at Company], [Contacts Title] at [Telephone Number] if you have any questions about your Award. Or, you may send a written inquiry to the address shown below: |
1
2
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| A copy of the Plan has been made available to me; | ||
| I have received a copy of the Plans Prospectus; | ||
| I understand and accept the conditions placed on my RSUs and understand what I must do to earn my RSUs; | ||
| I understand that my Award and the terms and conditions of my Award do not alter my status as an independent contractor of the Company and do not entitle me to any employee benefits that the Company may offer its employees; | ||
| I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my RSUs or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the Internal Revenue Code, even if those changes affect the terms of my RSUs and reduce their value or potential value; and | ||
| If I do not return a signed copy of this Award Agreement to the address shown below on or before [30 Days Post Grant Date], my RSUs will be forfeited and I will not be entitled to receive anything on account of this Award. |
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| A copy of the Plan has been made available to me; | ||
| I have received a copy of the Plans Prospectus; | ||
| I understand and accept the conditions placed on my Performance Shares and understand what I must do to earn my Performance Shares; | ||
| I understand that my Award and the terms and conditions of my Award do not alter my status as an independent contractor of the Company and do not entitle me to any employee benefits that the Company may offer its employees; | ||
| I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my Performance Shares or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the Internal Revenue Code, even if those changes affect the terms of my Performance Shares and reduce their value or potential value; and | ||
| If I do not return a signed copy of this Award Agreement to the address shown below on or before [30 Days Post Grant Date], my Performance Shares will be forfeited and I will not be entitled to receive anything on account of this Award. |
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| A copy of the Plan has been made available to me; | ||
| I have received a copy of the Plans Prospectus; | ||
| I understand and accept the conditions placed on my NSOs and understand what I must do to earn and exercise my NSOs; | ||
| I understand that my Award and the terms and conditions of my Award do not alter my status as an independent contractor of the Company and do not entitle me to any employee benefits that the Company may offer its employees; | ||
| I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my NSOs or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the Internal Revenue Code, even if those changes affect the terms of my NSOs and reduce their value or potential value; and | ||
| If I do not return a signed copy of this Award Agreement to the address shown below on or before [30 Days Post Grant Date], my NSOs will be forfeited and I will not be entitled to receive anything on account of this Award. |
15
|
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 of exercise, you must also 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 the taxes due. | ||
| If you select either the Cashless Exercise and Sell or the Combination Exercise methods of |
16
paying the Exercise Price, 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 common shares of the Company you will receive. |
17
| I fully understand the effect (including the investment effect) of exercising my NSOs and buying common shares of the Company and understand that there is no guarantee that the value of these common shares will appreciate or will not depreciate; | ||
| This Exercise Notice will have no effect if it is not returned to [Third Party Administrator] at the address given below before the Expiration Date specified in the Award Agreement under which these NSOs were granted; and | ||
| The common shares of the Company I am buying by completing and returning this Exercise Notice will be issued to me as soon as administratively practicable. |
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Date signed:
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Has effectively exercised the NSOs described in this Notice; or | |||||
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Has not effectively exercised the NSOs described in this Notice | |||||
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because
|
|||||
|
describe deficiency |
By:
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||||
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||||
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||||
Date:
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||||
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| A copy of the Plan has been made available to me; | ||
| I have received a copy of the Plans Prospectus; | ||
| I understand and accept the conditions placed on my Restricted Stock and understand what I must do to earn my Restricted Stock; | ||
| I understand that my Award and the terms and conditions of my Award do not alter my status as an independent contractor of the Company and do not entitle me to any employee benefits that the Company may offer its employees; | ||
| I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my Restricted Stock or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the Internal Revenue Code, even if those changes affect the terms of my Restricted Stock and reduce their value or potential value; and | ||
| If I do not return a signed copy of this Award Agreement to the address shown below on or before [30 Days Post Grant Date], my Restricted Stock will be forfeited and I will not be entitled to receive anything on account of this Award. |
23
1. | The name, address, taxpayer identification number and taxable year of the undersigned are as follows: | |
NAME OF TAXPAYER: [GRANTEES NAME] |
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ADDRESS: | |||||||
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IDENTIFICATION NUMBER OF TAXPAYER:
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||||||||
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TAXABLE YEAR: Calendar year |
2. | The property with respect to which the election is made is: | |
[NUMBER GRANTED] common shares of The Scotts Miracle-Gro Company, an Ohio corporation (Company). | ||
3. | The date on which the property was transferred is: [GRANT DATE] | |
4. | The property is subject to the following restrictions: | |
Forfeiture of: | ||
[NUMBER GRANTED] common shares in favor of the Company if your engagement for service terminates before [Vesting Date]. | ||
5. | The fair market value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms will never lapse, of such property is: $ . | |
6. | The amount (if any) paid for such property: $00.00 |
Dated:
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||||||||
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||||||||
|
[GRANTEES NAME] |
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| A copy of the Plan has been made available to me; | ||
| I have received a copy of the Plans Prospectus; | ||
| I understand and accept the conditions placed on my SARs and understand what I must do to earn my SARs; | ||
| I understand that my Award and the terms and conditions of my Award do not alter my status as an independent contractor of the Company and do not entitle me to any employee benefits that the Company may offer its employees; | ||
| I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my SARs or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the Internal Revenue Code, even if those changes affect the terms of my SARs and reduce their value or potential value; and | ||
| If I do not return a signed copy of this Award Agreement to the address shown below on or before [30 Days Post Grant Date], my SARs will be forfeited and I will not be entitled to receive anything on account of this Award. |
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| I fully understand the effect (including the investment effect) of exercising my SARs; and | ||
| This Exercise Notice will have no effect if it is not returned to [Third Party Administrator] at the address given below before the Expiration Date specified in the Award Agreement under which these SARs were granted. |
[Grantees Name] | ||||
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(signature)
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Date signed:
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Has effectively exercised the SARs described in this Exercise Notice; or | ||||||||
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Has not effectively exercised the SARs described in this Exercise Notice | ||||||||
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because | |||||||
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By:
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Date:
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| A copy of the Plan has been made available to me; | ||
| I have received a copy of the Plans Prospectus; | ||
| I understand and accept the conditions placed on my SARs and understand what I must do to earn my SARs; | ||
| I understand that my Award and the terms and conditions of my Award do not alter my status as an independent contractor of the Company and do not entitle me to any employee benefits that the Company may offer its employees; | ||
| I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my SARs or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the Internal Revenue Code, even if those changes affect the terms of my SARs and reduce their value or potential value; and | ||
| If I do not return a signed copy of this Award Agreement to the address shown below on or before [30 Days Post Grant Date], my SARs will be forfeited and I will not be entitled to receive anything on account of this Award. |
37
|
Combination Exercise. | |||
|
||||
|
Exercise and Hold. |
| If you select the Exercise and Hold method of exercise, you must also follow one of the procedures described in the Award Agreement to pay the taxes related to this exercise. You should contact [Third Party Administrator] at the address given below to find out the amount of these taxes. | ||
| If you select the Combination Exercise method of exercise, you should contact [Third Party Administrator] at the address given below to be sure you understand how your choice will affect the number of common shares of the Company you will receive. |
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| I fully understand the effect (including the investment effect) of exercising my SARs and buying common shares of the Company and understand that there is no guarantee that the value of these shares common will appreciate or will not depreciate; | ||
| This Exercise Notice will have no effect if it is not returned to [Third Party Administrator] at the address given below before the Expiration Date specified in the Award Agreement under which these SARs were granted; and | ||
| Any common shares of the Company I am acquiring by completing and returning this Exercise Notice will be issued to me as soon as administratively practicable. |
[Grantees Name] | ||||
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(signature)
|
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Date signed:
|
||||
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Has effectively exercised the SARs described in this Notice; or | ||||||||
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||||||||
Has not effectively exercised the SARs described in this Notice | ||||||||
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because | |||||||
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By:
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Date:
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Has complied with the conditions imposed on the grant and the Award Agreement remains in effect; or | ||
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Has not complied with the conditions imposed on the grant and the [Name of Award(s)] are forfeited | ||
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because
|
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describe deficiency |
By:
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Date:
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% to | ||||||||
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(Name) | (Relationship) | |||||
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Address: | ||||||||
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% to | ||||||||
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(Name) | (Relationship) | |||||
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Address: | ||||||||
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% to | ||||||||
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(Name) | (Relationship) | |||||
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Address: |
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% to | ||||||||
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(Name) | (Relationship) | |||||
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|||||||
Address: | ||||||||
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Be paid to my other named Primary Beneficiaries in proportion to the allocation given above (ignoring | ||||||||
the interest allocated to the deceased Primary Beneficiary); or | ||||||||
Be distributed among the following Contingent Beneficiaries: | ||||||||
% to | ||||||||
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(Name) | (Relationship) | |||||
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Address: | ||||||||
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% to | ||||||||
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(Name) | (Relationship) | |||||
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Address: | ||||||||
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% to | ||||||||
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(Name) | (Relationship) | |||||
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Address: | ||||||||
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% to | ||||||||
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(Name) | (Relationship) | |||||
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Address: |
[Grantees Name] | ||||||
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Date of Birth: | ||||||
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Address:
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Received on:
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By:
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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 July 1, 2006; | ||
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; | ||
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; | ||
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: |
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; | ||
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; | ||
c. | 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 | ||
d. | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
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): |
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 | ||
b. | 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. |
Dated:
August 10, 2006
|
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 July 1, 2006; | ||
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; | ||
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; | ||
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: |
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; | ||
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; | ||
c. | 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 | ||
d. | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
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): |
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 | ||
b. | 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. |
Dated:
August 10, 2006
|
By: |
/s/ Christopher L. Nagel
|
||||
Printed Name: Christopher L. Nagel | ||||||
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 | ||
2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/ James Hagedorn
|
/s/ Christopher L. Nagel | |||
|
||||
James Hagedorn
|
Christopher L. Nagel | |||
Chief Executive Officer
|
Executive Vice President | |||
and Chairman of the Board
|
and Chief Financial Officer | |||
|
||||
August
10, 2006
|
August 10, 2006 |
* | THIS CERTIFICATION IS 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. THIS CERTIFICATION 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 THIS CERTIFICATION BY REFERENCE IN SUCH FILING. |