(Mark One) | ||
þ
|
ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the fiscal year ended September 30, 2008 | ||
OR
|
||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the transition period from to | ||
Commission file number 1-13292 |
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) |
Title of Each Class
|
Name of Each Exchange On Which Registered
|
|
Common Shares, without par value
|
New York Stock Exchange |
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o |
ITEM 1. | BUSINESS |
Category | Brands | |
Lawns
|
Scotts ® ; Turf Builder ® | |
Gardens
|
Miracle-Gro ® ; Osmocote ® ; LiquaFeed ® ; Organic Choice ® | |
Growing Media
|
Miracle-Gro ® ; Scotts ® ; Hyponex ® ; Earthgro ® ; SuperSoil ® | |
Grass Seed
|
Scotts ® ; Turf Builder ® | |
Controls
|
Ortho ® ; Home Defense Max ® ; Weed-B-Gon Max ® ; Roundup ® * | |
Outdoor Living
|
Smith & Hawken ® | |
Wild Bird Food
|
Morning Song ® ; Scotts Songbird Selections ® |
| Global Consumer; | |
| Global Professional; |
| Scotts LawnService ® ; and | |
| Corporate & Other. |
| Even in a difficult economy, we continue to expand upon our strategy of strengthening our relationship with the consumer. This will allow us to leverage the cornerstone of our business our brands and drive higher usage of our products. Our strategy is to raise household penetration of our products, as well as the frequency with which existing consumers use our products. We believe this can be accomplished by pursuing an advertising strategy that increasingly relies on regional radio advertising, as well as a national approach on television. |
| Our strategic plan is heavily focused on driving innovation, which we believe is necessary to achieve higher sales and profits. In recent years, new products have been critical to our success. Our strategy is focused on continuing to leverage what we consider an unmatched commitment to innovation. This takes into account three strategic imperatives: all new products must be simple, sustainable and significant. |
| Our strategic plan also continues to focus on further assisting our retail partners in order to improve their sales and the productivity of the lawn and garden department. We believe this strategy makes us a more critical component to their success and helps to ensure our continued growth. |
| Our strategy will continue to transform our U.S. supply chain into a more regional model. We believe this effort can result in cost savings of $50 million annually and reduce inventories by more than $100 million. |
ITEM 1A. | RISK FACTORS |
| that we have identified all of the significant sites that must be remediated; | |
| that there are no significant conditions of potential contamination that are unknown to us; and | |
| that with respect to the agreed judicial consent order in Ohio relating to the remediation of the Marysville site, the 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. |
| make it more difficult for us to satisfy our obligations under outstanding indebtedness; | |
| increase our vulnerability to general adverse economic and industry conditions; | |
| require us to dedicate a substantial portion of cash flows from operating activities to payments on our indebtedness, which would reduce the cash flows available to fund working capital, capital expenditures, advertising, research and development efforts and other general corporate requirements; | |
| limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; | |
| place us at a competitive disadvantage compared to our competitors that have less debt; | |
| limit our ability to borrow additional funds; and | |
| expose us to risks inherent in interest rate fluctuations because some of our borrowings are at variable rates of interest, which could result in higher interest expense in the event of increases in interest rates. |
| fluctuations in currency exchange rates; |
| limitations on the remittance of dividends and other payments by foreign subsidiaries; | |
| additional costs of compliance with local regulations; and | |
| historically, in certain countries, higher rates of inflation than in the United States. |
ITEM 1B. | UNRESOLVED STAFF COMMENTS |
ITEM 2. | PROPERTIES |
| Global Consumer We own manufacturing and distribution and research and development facilities in Marysville, Ohio, research facilities in Apopka, Florida and Gervais, Oregon, and a production facility in Fort Madison, Iowa. We lease a spreader and other durable components manufacturing facility in Temecula, California. In addition, we operate 27 growing media facilities in North America 22 of which are owned by the Company and five of which are leased. Most of our growing media facilities include production lines, warehouses, offices and field processing areas. We own five production facilities for our wild bird food operations in Indiana, South Dakota, South Carolina and Texas. Further, we own a manufacturing facility in Sutton Bridge, the United Kingdom, a blending and bagging facility for growing media in Hautmont, France and a plant in Bourth, France that we use for formulating, blending and packaging plant protection products for the consumer market. We lease most of our general office space, including business development sales offices in Atlanta, Georgia, Mooresville, North Carolina, Rolling Meadows, Illinois and Bentonville, Arkansas; the headquarters for our Canadian subsidiary in Mississauga, Ontario; the headquarters for our U.K. business in Godalming (Surrey), the United Kingdom; the |
headquarters for our international business (which also serves as our local French operations office) in Ecully (Lyon), France; a business office in Ingelheim, Germany; a business office in Salzburg, Austria; and a sales office in Saint Niklaas, Belgium. |
| Global Professional We lease a controlled-release fertilizer manufacturing facility in Charleston, South Carolina, a corporate office in Waardenburg, the Netherlands and a sales office in Bramford, the United Kingdom, where we also have some supply chain services. Further, we lease sales offices in Nordhorn, Germany, Paris, France, Budapest, Hungary, Tarragona, Spain and Nairobi, Kenya, where we also lease warehouse space. | |
| Global Consumer and Global Professional In addition to the above, the Company owns or leases a number of properties that we use for both the Global Consumer and Global Professional segments of our business. We own manufacturing facilities in Howden (East Yorkshire) and Hatfield (South Yorkshire), both in the United Kingdom. Our site in Heerlen, the Netherlands includes a research facility, a distribution center and a manufacturing site for coated fertilizers for the consumer and professional markets (we own the land and the building for the manufacturing facility, but lease the distribution center building). We lease land for peat extraction in Manchester, England (Irlam Moss), Gretna, England (Solway Moss) and Dumfriesshire, Scotland (Nutberry Moss and Creca Moss), and we also lease land to stockpile harvested peat in South Lanarkshire, Scotland (Douglas Water). We own peat extraction facilities in Dumfriesshire, Scotland (Nutberry Moss), North Lanarkshire, England (Fannyside Muir), Stirlingshire, Scotland (Letham) and on two properties in South Lanarkshire, Scotland (Douglas Water & Carnwath). We own a grass seed production facility in Albany, Oregon. We lease a research and development facility in Morance, France and we own a research and development facility in Levington, the United Kingdom. We lease sales offices in Treviso, Italy and Warsaw, Poland, and we lease our Australian corporate office, located in Baulkan Hills (New South Wales), Australia. | |
| Scotts LawnService ® We conduct company-owned Scotts LawnService ® operations from 81 leased facilities, primarily located in industrial office parks, serving 46 metropolitan markets across the United States. | |
| Corporate & Other Our corporate headquarters are located in Marysville, Ohio. Including our Global Consumer manufacturing and distribution facilities and our research and development facilities, we own or lease approximately 750 acres in Marysville. Smith & Hawken ® operates 57 retail stores in the United States, which are all leased facilities, and leases its main headquarters in Novato, California. |
ITEM 3. | LEGAL PROCEEDINGS |
ITEM 4.
SUBMISSION OF
MATTERS TO A VOTE OF SECURITY HOLDERS
Years with
Name
Age
Position(s) Held
Company
53
Chief Executive Officer and Chairman of the Board
21
51
President and Chief Operating Officer
<1
58
Executive Vice President
26
45
Executive Vice President and Chief Financial Officer
15
50
Executive Vice President, Global Technologies and Operations
13
54
Executive Vice President, Global Human Resources
8
44
Executive Vice President, North American Business
7
47
Executive Vice President, International and Chief Marketing
Officer
7
45
Executive Vice President, General Counsel and Corporate Secretary
6
Table of Contents
Table of Contents
ITEM 5.
MARKET FOR
REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND
ISSUER PURCHASES OF EQUITY SECURITIES
Sale Prices
High
Low
$
46.90
$
33.50
$
40.65
$
30.51
$
36.76
$
17.79
$
30.17
$
16.12
$
54.72
$
44.02
$
57.45
$
40.57
$
47.30
$
42.80
$
49.69
$
40.60
Total Number of
Common Shares
Maximum Number of
Purchased as
Common Shares That
Total Number of
Part of Publicly
May Yet Be
Common Shares
Average Price Paid
Announced Plans or
Purchased Under the
Period
Purchased(1)
per Common Share
Programs
Plans or Programs
798
$
19.02
0
Not applicable
0
Not applicable
Not applicable
Not applicable
825
$
25.63
0
Not applicable
1,623
$
22.98
0
Not applicable
Table of Contents
(1)
Amounts in this column represent Common Shares purchased by the
trustee of the rabbi trust established by the Company as
permitted pursuant to the terms of The Scotts Company LLC
Executive Retirement Plan (the ERP). The ERP is an
unfunded, non-qualified deferred compensation plan which, among
other things, provides eligible employees the opportunity to
defer compensation above specified statutory limits applicable
to The Scotts Company LLC Retirement Savings Plan and with
respect to any Executive Incentive Pay (as defined in the ERP)
awarded to such eligible employees. Pursuant to the terms of the
ERP, each eligible employee has the right to elect an investment
fund, including a fund consisting of Common Shares (the
Scotts Miracle-Gro Common Stock Fund), against which
amounts allocated to such employees account under the ERP
will be benchmarked (all ERP accounts are bookkeeping accounts
only and do not represent a claim against specific assets of the
Company). Amounts allocated to employee accounts under the ERP
represent deferred compensation obligations of the Company. The
Company established the rabbi trust in order to assist the
Company in discharging such deferred compensation obligations.
When an eligible employee elects to benchmark some or all of the
amounts allocated to such employees account against the
Scotts Miracle-Gro Common Stock Fund, the trustee of the rabbi
trust purchases the number of Common Shares equivalent to the
amount so benchmarked. All Common Shares purchased by the
trustee are purchased on the open market and are held in the
rabbi trust until such time as they are distributed pursuant to
the terms of the ERP. All assets of the rabbi trust, including
any Common Shares purchased by the trustee, remain, at all
times, assets of the Company, subject to the claims of its
creditors. The terms of the ERP do not provide for a specified
limit on the number of Common Shares that may be purchased by
the trustee of the rabbi trust.
None of the Common Shares purchased during the three fiscal
months in the quarter ended September 30, 2008 were
purchased pursuant to a publicly announced plan or program.
Table of Contents
ITEM 6.
SELECTED
FINANCIAL DATA
For the fiscal year ended September 30,
(in millions, except per share amounts)
2008
2007
2006(2)
2005(2)
2004
$
2,981.8
$
2,871.8
$
2,697.1
$
2,369.3
$
2,106.5
939.6
1,004.5
955.9
860.4
792.4
98.0
277.1
252.5
200.9
252.8
(10.9
)
113.4
132.7
100.4
100.5
(10.9
)
113.4
132.7
100.6
100.9
70.3
67.5
67.0
67.2
57.7
$
366.8
$
412.7
$
445.8
$
301.6
$
396.7
1.5
1.7
1.9
1.6
1.9
344.1
365.9
367.6
337.0
328.0
2,156.3
2,277.2
2,217.6
2,018.9
2,047.8
69.6
%
70.0
%
30.8
%
27.7
%
41.9
%
999.5
1,117.8
481.2
393.5
630.6
436.7
479.3
1,081.7
1,026.2
874.6
$
200.9
$
246.6
$
182.4
$
226.7
$
214.2
56.1
54.0
57.0
40.4
35.1
4.1
2.7
21.4
122.9
84.6
20.5
$
(0.17
)
$
1.74
$
1.97
$
1.51
$
1.56
(0.17
)
1.69
1.91
1.47
1.52
32.5
543.6
33.5
8.6
0.50
8.50
0.50
0.125
23.64
42.75
44.49
43.97
32.08
46.90
57.45
50.47
43.97
34.28
16.12
40.57
37.22
30.95
27.63
$
318.4
$
382.6
$
385.9
$
291.5
$
310.5
3.9
5.4
9.7
7.0
6.4
64.5
65.2
67.5
66.8
64.7
64.5
67.0
69.4
68.6
66.6
(1)
All common share and per share information presented in the
above five-year summary have been adjusted to reflect the
2-for-1
stock split of the common shares which was distributed on
November 9, 2005 to shareholders of record on
November 2, 2005.
Table of Contents
(2)
Fiscal 2006 includes Rod McLellan Company, Gutwein &
Co., Inc. and certain brands and assets acquired from Turf-Seed,
Inc. and Landmark Seed Company from the dates of acquisition.
Fiscal 2005 includes Smith &
Hawken
®
from the October 2, 2004 date of acquisition. See further
discussion of acquisitions in NOTE 8.
ACQUISITIONS to the Consolidated Financial Statements
included in this Annual Report on
Form 10-K.
(3)
Operating results include the following items segregated by
lines affected as set forth on the Consolidated Statements of
Operations included with the Consolidated Financial Statements
included in this Annual Report on
Form 10-K.
For the Fiscal Year Ended September 30,
2008
2007
2006
2005
2004
$
44.3
$
41.9
$
39.9
$
40.4
$
28.5
58.0
47.7
37.6
40.7
40.1
(45.7
)
58.0
47.7
37.6
40.7
40.1
15.1
0.1
(0.3
)
0.6
27.2
2.7
9.3
9.8
9.1
121.7
35.3
66.4
23.4
12.7
18.3
1.3
45.5
(4)
The total debt to total book capitalization percentage is
calculated by dividing total debt by total debt plus
shareholders equity.
(5)
The Company began paying a quarterly dividend of 12.5 cents per
share in the fourth quarter of fiscal 2005.
(6)
The Company paid a special one-time cash dividend of $8.00 per
share on March 5, 2007. Stock prices have not been adjusted
for this special one-time cash dividend.
(7)
Given our significant borrowings, we view our credit facilities
as material to our ability to fund operations, particularly in
light of our seasonality. Please refer to ITEM 1A.
RISK FACTORS Debt in this Annual Report on
Form 10-K
for a more complete discussion of the risks associated with the
Companys debt and our credit facilities and related
covenants. Our ability to generate cash flows sufficient to
cover our debt service costs is essential to our ability to
maintain our borrowing capacity. We believe that Adjusted EBITDA
provides additional information for determining our ability to
meet debt service requirements. The presentation of Adjusted
EBITDA herein is intended to be consistent with the calculation
of that measure as required by our borrowing arrangements, and
used to calculate a leverage ratio (maximum of 4.25 at
September 30, 2008) and an interest coverage ratio
(minimum of 3.25 for the year ended September 30, 2008).
The Companys leverage ratio was 3.97 at September 30,
2008 and our interest coverage ratio was 3.87 for the year ended
September 30, 2008.
In accordance with the terms of our credit facilities, Adjusted
EBITDA is defined as net income before interest, taxes,
depreciation and amortization, as well as certain other items
such as the impact of discontinued operations, the cumulative
effect of changes in accounting, costs associated with debt
refinancings, and other non-recurring, non-cash items effecting
net income. Adjusted EBITDA does not represent and should not be
considered as an alternative to net income or cash flow from
operations as determined by accounting principles generally
accepted in the United States, and Adjusted EBITDA does not
necessarily indicate whether cash flow will be sufficient to
meet cash requirements.
Table of Contents
Interest coverage is calculated as Adjusted EBITDA divided by
interest expense excluding costs related to refinancings.
2008
2007
2006
2005
2004
$
(10.9
)
$
113.4
$
132.7
$
100.6
$
100.9
82.2
70.7
39.6
41.5
48.8
26.7
74.7
80.2
57.7
58.0
70.3
67.5
67.0
67.2
57.7
136.8
38.0
66.4
23.4
13.3
18.3
1.3
45.5
(0.2
)
(0.4
)
$
318.4
$
382.6
$
385.9
$
291.5
$
310.5
ITEM 7.
MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Executive summary
Results of operations
Managements outlook
Liquidity and capital resources
Critical accounting policies and estimates
Table of Contents
Percent of Net Sales
by Quarter
2008
2007
2006
10.4
%
9.5
%
9.3
%
32.1
%
34.6
%
33.6
%
39.3
%
38.2
%
38.9
%
18.2
%
17.7
%
18.2
%
Table of Contents
Table of Contents
2008
2007
2006
100.0
%
100.0
%
100.0
%
67.1
65.0
64.6
0.5
0.9
31.5
35.0
35.4
24.1
24.4
23.6
4.1
1.4
2.8
0.4
(0.4
)
(0.4
)
(0.4
)
3.3
9.6
9.4
0.6
2.8
2.5
1.5
0.5
6.5
7.9
0.9
2.6
3.0
(0.4
)%
3.9
%
4.9
%
2008
2007
3.8
%
6.3
%
(0.3
)
(1.3
)
(2.0
)
(1.6
)
0.8
2.3
%
3.4
%
Table of Contents
2008
2007
2006
$
142.4
$
150.9
$
137.3
4.8
%
5.3
%
5.1
%
$
547.1
$
519.2
$
468.7
12.5
15.5
15.7
15.6
15.3
15.2
$
717.6
$
700.9
$
636.9
Table of Contents
2008
2007
2006
$
120.0
$
35.3
$
66.4
1.7
12.7
9.3
2.7
$
134.4
$
38.0
$
75.7
Table of Contents
Table of Contents
2008
2007
2006
$
2,250.1
$
2,176.2
$
2,089.6
348.8
281.9
233.4
247.4
230.5
205.7
158.6
184.0
169.2
3,004.9
2,872.6
2,697.9
(0.8
)
(0.8
)
(0.8
)
(22.3
)
$
2,981.8
$
2,871.8
$
2,697.1
Table of Contents
2008
2007
2006
$
344.5
$
379.1
$
392.4
33.7
31.3
27.3
11.3
11.3
15.6
(87.2
)
(90.5
)
(91.0
)
302.3
331.2
344.3
(0.8
)
(0.8
)
(0.8
)
(15.6
)
(15.3
)
(15.2
)
(51.1
)
(136.8
)
(35.3
)
(66.4
)
(2.7
)
(9.4
)
$
98.0
$
277.1
$
252.5
Table of Contents
Table of Contents
Table of Contents
Notional
Amount in
USD
Expiration
Fixed
Currency
(In millions)
Term
Date
Rate
$
51.2
3 years
11/17/2008
4.76%
60.2
3 years
11/17/2008
2.98%
200.0
2 years
3/31/2009
4.90%
200.0
3 years
3/30/2010
4.87%
200.0
5 years
2/14/2012
5.20%
Table of Contents
Payments Due by Period
More than
Contractual Cash Obligations
Total
Less than 1 year
1-3 years
4-5 years
5 years
$
999.5
$
150.0
$
349.4
$
496.6
$
3.5
192.2
39.0
63.9
44.7
44.6
597.3
299.8
229.0
68.5
47.2
12.3
7.3
7.7
19.9
$
1,836.2
$
501.1
$
649.6
$
617.5
$
68.0
Table of Contents
Table of Contents
Table of Contents
ITEM 7A.
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Table of Contents
Expected Maturity Date
Fair
2008
2009
2010
2011
2012
After
Total
Value
$
146.7
$
154.1
$
193.2
$
485.0
$
$
979.0
$
979.0
6.2
%
6.2
%
6.2
%
6.2
%
6.2
%
6.2
%
$
(0.9
)
$
(4.6
)
$
$
(9.5
)
$
$
(15.0
)
$
(15.0
)
4.79
%
4.87
%
5.20
%
4.71
%
Expected Maturity Date
Fair
2007
2008
2009
2010
2011
After
Total
Value
$
82.6
$
84.0
$
154.0
$
193.2
$
578.4
$
1,092.2
$
1,092.2
6.5
%
6.5
%
6.5
%
6.5
%
6.5
%
6.5
%
$
1.9
$
(0.9
)
$
(1.4
)
$
$
(3.7
)
$
(4.1
)
$
(4.1
)
3.87
%
4.90
%
4.87
%
5.20
%
4.71
%
Table of Contents
ITEM 8.
FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
ITEM 9.
CHANGES IN AND
DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
ITEM 9A.
CONTROLS AND
PROCEDURES
information required to be disclosed by the Registrant in this
Annual Report on
Form 10-K
and the other reports that the Registrant files or submits under
the Exchange Act would be accumulated and communicated to the
Registrants management, including its principal executive
officer and principal financial officer, as appropriate to allow
timely decisions regarding required disclosure;
information required to be disclosed by the Registrant in this
Annual Report on
Form 10-K
and the other reports that the Registrant 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
the Registrants disclosure controls and procedures were
effective as of the end of the fiscal year covered by this
Annual Report on
Form 10-K.
ITEM 9B.
OTHER
INFORMATION
Table of Contents
ITEM 10.
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Table of Contents
ITEM 11.
EXECUTIVE
COMPENSATION
ITEM 12.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
ITEM 13.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
Table of Contents
ITEM 14.
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
ITEM 15.
EXHIBITS,
FINANCIAL STATEMENT SCHEDULES
Table of Contents
Exhibit
No.
Description
Location
The Scotts Company LLC Excess Benefit Plan for Grandfathered
Associates as of January 1, 2005 (executed as of September 30,
2008)
*
The Scotts Company LLC Excess Benefit Plan for Non Grandfathered
Associates as of January 1, 2005 (executed as of November 20,
2008)
*
The Scotts Company LLC Amended and Restated Executive/Management
Incentive Plan (approved on November 7, 2007 and effective as of
October 30, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(b)(2)]
Amendment to The Scotts Company LLC Amended and Restated
Executive/Management Incentive Plan (effective as of November 5,
2008) [amended the name of the plan to be The Scotts Company LLC
Amended and Restated Executive Incentive Plan]
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed November 12, 2008 (File
No. 1-13292)
[Exhibit 10.2]
Specimen form of Employee Confidentiality, Noncompetition,
Nonsolicitation Agreement for employees participating in The
Scotts Company Executive/Management Incentive Plan (now known as
The Scotts Company LLC Amended and Restated Executive Incentive
Plan) [2005 version]
*
Specimen form of Employee Confidentiality, Noncompetition,
Nonsolicitation Agreement for employees participating in The
Scotts Company LLC Executive/Management Incentive Plan (now
known as The Scotts Company LLC Amended and Restated Executive
Incentive Plan) [post 2005 version]
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
July 1, 2006 (File No. 1-13292) [Exhibit 10.1]
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 Amended and Restated Executive Incentive Plan
*
The Scotts Company LLC Supplemental Incentive Plan for the
fiscal year ended September 30, 2008
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
June 28, 2008 (File No. 1-13292) [Exhibit 10(c)]
The Scotts Miracle-Gro Company Amended and Restated 1996 Stock
Option Plan (effective as of October 30, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(d)(4)]
Specimen form of Stock Option Agreement for Non-Qualified Stock
Options granted to employees under The Scotts Company 1996 Stock
Option Plan (now known as The Scotts Miracle-Gro Company Amended
and Restated 1996 Stock Option Plan)
Incorporated herein by reference to the Current Report of The
Scotts Company, an Ohio corporation (Scotts), on
Form 8-K filed November 19, 2004 (File No. 1-13292)
[Exhibit 10.7]
Table of Contents
Exhibit
No.
Description
Location
The Scotts Company Executive Retirement Plan (now known as The
Scotts Company LLC Executive Retirement Plan) [executed on
November 19, 1998 and effective as of January 1, 1999]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File
No. 333-153925)
[Exhibit 4.4]
First Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of December 23, 1998 and effective as of January 1,
1999]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File
No. 333-153925)
[Exhibit 4.5]
Second Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of January 14, 2000 and effective as of January 1,
2000]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File
No. 333-153925)
[Exhibit 4.6]
Third Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of December 1, 2002 and effective as of January 1,
2003]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File
No. 333-153925)
[Exhibit 4.7]
Fourth Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of May 5, 2004 and effective as of January 1, 2004]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File
No. 333-153925)
[Exhibit 4.8]
Fifth Amendment to The Scotts Company Executive Retirement Plan
(executed on May 6, 2005 and effective as of March 18, 2005)
[amended the name of the plan to be The Scotts Company LLC
Executive Retirement Plan]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File
No. 333-153925)
[Exhibit 4.9]
Sixth Amendment to The Scotts Company LLC Executive Retirement
Plan (executed and effective as of October 8, 2008)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed October 15, 2008
(File No. 1-13292)
[Exhibit 10.1.7]
Trust Agreement between The Scotts Company and Fidelity
Management Trust Company for The Scotts Company Nonqualified
Deferred Compensation Trust established to assist in discharging
obligations under The Scotts Company Nonqualified Deferred
Compensation Plan (now known as The Scotts Company LLC Executive
Retirement Plan), dated as of January 1, 1998
*
First Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Nonqualified Deferred Compensation Plan (now known as
The Scotts Company LLC Executive Retirement Plan), dated as of
March 24, 1998
*
Table of Contents
Exhibit
No.
Description
Location
Second Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Nonqualified Deferred Compensation Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [dated as of
January 15, 1999]
*
Third Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Nonqualified Deferred Compensation Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [dated as of
July 1, 1999]
*
Fourth Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Executive Retirement Plan (now known as The Scotts
Company LLC Executive Retirement Plan) [dated as of August 1,
1999]
*
Fifth Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Executive Retirement Plan (now known as The Scotts
Company LLC Executive Retirement Plan) [dated as of
December 20, 2000]
*
Sixth Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Executive Retirement Plan (now known as The Scotts
Company LLC Executive Retirement Plan) [effective as of November
29, 2001]
*
Seventh Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Executive Retirement Plan (now known as The Scotts
Company LLC Executive Retirement Plan) [dated as of
September 1, 2002]
*
Eighth Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Executive Retirement Plan (now known as The Scotts
Company LLC Executive Retirement Plan) [dated as of
December 31, 2002]
*
Ninth Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company with regard to The Scotts
Company Executive Retirement Plan (now known as The Scotts
Company LLC Executive Retirement Plan) [dated as of
October 15, 2004]
*
Table of Contents
Exhibit
No.
Description
Location
Tenth Amendment to Trust Agreement between Fidelity Management
Trust Company and The Scotts Company LLC with regard to The
Scotts Company Executive Retirement Plan (now known as The
Scotts Company LLC Executive Retirement Plan) [dated as of
October 2, 2006]
*
Eleventh Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company LLC with regard
to The Scotts Company LLC Executive Retirement Plan (dated as of
February 9, 2007)
*
Form of Executive Retirement Plan Retention Award Agreement
between The Scotts Company LLC and each of David C. Evans, Barry
W. Sanders, Denise S. Stump, Michael C. Lukemire and Vincent C.
Brockman (entered into on November 4, 2008)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed October 15, 2008
(File No. 1-13292)
[Exhibit 10.2]
The Scotts Miracle-Gro Company Amended and Restated 2003 Stock
Option and Incentive Equity Plan (effective as of October 30,
2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(j)(3)]
Specimen form of Award Agreement for Directors used to evidence
grants of Nonqualified Stock Options made under The Scotts
Company 2003 Stock Option and Incentive Equity Plan (now known
as The Scotts Miracle-Gro Company Amended and Restated 2003
Stock Option and Incentive Equity Plan) [2003 version]
Incorporated herein by reference to Scotts Current Report
on Form 8-K filed November 19, 2004
(File No. 1-13292)
[Exhibit 10.9]
Specimen form of Award Agreement for Directors used to evidence
grants of Nonqualified Stock Options made under The Scotts
Miracle-Gro Company 2003 Stock Option and Incentive Equity Plan
(now known as The Scotts Miracle-Gro Company Amended and
Restated 2003 Stock Option and Incentive Equity Plan) [post-2003
version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2005
(File No. 1-13292) [Exhibit 10(v)]
Specimen form of Award Agreement for Nondirectors used to
evidence grants of Incentive Stock Options, Nonqualified Stock
Options, Stock Appreciation Rights, Restricted Stock and
Performance Stock made under The Scotts Company 2003 Stock
Option and Incentive Equity Plan (now known as The Scotts
Miracle-Gro Company Amended and Restated 2003 Stock Option and
Incentive Equity Plan) [pre-December 1, 2004 version]
Incorporated herein by reference to Scotts Current Report
on Form 8-K filed November 19, 2004
(File No. 1-13292)
[Exhibit 10.8]
Specimen form of Award Agreement for Nondirectors used to
evidence grants of Incentive Stock Options, Nonqualified Stock
Options, Stock Appreciation Rights, Restricted Stock and
Performance Shares made under The Scotts Miracle-Gro Company
2003 Stock Option and Incentive Equity Plan (now known as The
Scotts Miracle-Gro Company Amended and Restated 2003 Stock
Option and Incentive Equity Plan) [ post-December 1, 2004
version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2005
(File No. 1-13292) [Exhibit 10(u)]
Table of Contents
Exhibit
No.
Description
Location
The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan (effective as of October 30, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(r)(2)]
Specimen form of Award Agreement for Nonemployee Directors used
to evidence grants of Time-Based Nonqualified Stock Options
which may be made under The Scotts Miracle-Gro Company 2006
Long-Term Incentive Plan (now known as The Scotts Miracle-Gro
Company Amended and Restated 2006 Long-Term Incentive Plan)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed February 2, 2006 (File
No. 1-13292)
[Exhibit 10.3]
Specimen form of Stock Unit Award Agreement for Nonemployee
Directors (with Related Dividend Equivalents) used to evidence
grants of Stock Units which may be made under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan (post-December 20, 2007 version)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(l)]
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 (post-February 3, 2008 version)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(m)]
Specimen form of Award Agreement used to evidence grants of
Restricted Stock Units, Performance Shares, Nonqualified Stock
Options, Incentive Stock Options, Restricted Stock and Stock
Appreciation Rights made under The Scotts Miracle-Gro Company
2006 Long-Term Incentive Plan (now known as The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan) [pre-October 30, 2007 version]
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 2005 (File
No. 1-13292)
[Exhibit 10(b)]
Specimen form of Award Agreement for Employees used to evidence
grants of Nonqualified Stock Options, Restricted Stock,
Performance Shares and Restricted Stock Units made under The
Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan (now
known as The Scotts Miracle-Gro Company Amended and Restated
2006 Long-Term Incentive Plan) [French Specimen] (pre-November
6, 2007 version)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 30, 2006 (File
No. 1-13292)
[Exhibit 10.4]
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-October 8, 2008 version)
*
Special Restricted Stock Unit Award Agreement for Employees
(with Related Dividend Equivalents) evidencing grant of
Restricted Stock Units made on October 8, 2008 to Mark R. Baker
under The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan
*
Table of Contents
Exhibit
No.
Description
Location
Special Restricted Stock Unit Award Agreement evidencing grant
of Restricted Stock Units made on November 4, 2008 to Claude
Lopez under The Scotts Miracle-Gro Company Amended and Restated
2006 Long-Term Incentive Plan
*
Specimen form of Performance Share Award Agreement for Employees
(with Related Dividend Equivalents) used to evidence grants of
Performance Shares which may be made under The Scotts
Miracle-Gro Company 2006 Long-Term Incentive Plan (now known as
The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan) [post-October 30, 2007 version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(t)(5)]
Special Performance Share Award Agreement (with Related Dividend
Equivalents) evidencing grant of Performance Shares made on
October 30, 2007 to Barry W. Sanders under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan (executed by The Scotts Miracle-Gro Company on
December 20, 2007 and by Barry W. Sanders on January 7, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(n)]
Specimen form of Nonqualified Stock Option Award Agreement for
Employees used to evidence grants of Nonqualified Stock Options
made under The Scotts Miracle-Gro Company 2006 Long-Term
Incentive Plan (now known as The Scotts Miracle-Gro Company
Amended and Restated 2006 Long-Term Incentive Plan) [October 30,
2007 through October 8, 2008 version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(t)(3)]
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-October 8,
2008 version)
*
Special Nonqualified Stock Option Award Agreement for Employees
evidencing grant of Nonqualified Stock Options made on October
8, 2008 to Mark R. Baker under The Scotts Miracle-Gro Company
Amended and Restated 2006 Long-Term Incentive Plan
*
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 (French Specimen)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 29, 2008 (File No. 1-13292) [Exhibit 10(c)(2)]
Form of letter agreement amending grants of Restricted Stock
made under The Scotts Miracle-Gro Company 2006 Long-Term
Incentive Plan (now known as The Scotts Miracle-Gro Company
Amended and Restated 2006 Long-Term Incentive Plan) [effective
as of October 30, 2007]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(t)(2)]
Table of Contents
Exhibit
No.
Description
Location
Specimen form of Restricted Stock Award Agreement for Employees
used to evidence grants of Restricted Stock made under The
Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan (now
known as The Scotts Miracle-Gro Company Amended and Restated
2006 Long-Term Incentive Plan) [October 30, 2007 through October
8, 2008 version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(t)(4)]
Specimen form of Restricted Stock Award Agreement for Employees
used to evidence grants of Restricted Stock which may be made
under The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan (effective October 8, 2008)
*
Special Restricted Stock Award Agreement for Employees
evidencing grant of Restricted Stock made on October 8, 2008 to
Dr. Michael Kelty under The Scotts Miracle-Gro Company
Amended and Restated 2006 Long-Term Incentive Plan
*
Special Restricted Stock Award Agreement for Employees
evidencing grant of Restricted Stock made on October 1, 2008 to
Mark R. Baker under The Scotts Miracle-Gro Company Amended and
Restated 2006 Long-Term Incentive Plan
*
Specimen form of Restricted Stock Award Agreement for Employees
used to evidence grants of Restricted Stock which may be made
under The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan (French Specimen) [post-November 6,
2007 version]
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 29, 2008
(File No. 1-13292)
[Exhibit 10(c)(1)]
The Scotts Miracle-Gro Company Discounted Stock Purchase Plan
(As Amended and Restated as of January 26, 2006; Reflects
2-for-1 Stock Split Distributed on November 9, 2005)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed February 2, 2006 (File
No. 1-13292)
[Exhibit 10.1]
Amendment to The Scotts Miracle-Gro Company Discounted Stock
Purchase Plan (effective as of November 6, 2008)
*
Summary of Compensation for Directors of The Scotts Miracle-Gro
Company (effective as of February 4, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(r)]
Employment Agreement, dated as of May 19, 1995, between The
Scotts Company and James Hagedorn
Incorporated herein by reference to Scotts Annual Report
on
Form 10-K
for the fiscal year ended September 30, 1995
(File No. 1-11593)
[Exhibit 10(p)]
Table of Contents
Exhibit
No.
Description
Location
Letter agreement, dated June 5, 2000 and accepted by Mr. Norton
on June 8, 2000, between The Scotts Company and Patrick J. Norton
Incorporated herein by reference to Scotts Annual Report
on
Form 10-K
for the fiscal year ended September 30, 2000
(File No. 1-13292)
[Exhibit 10(q)]
Letter agreement, dated November 5, 2002, and accepted by Mr.
Norton on November 22, 2002, pertaining to the terms of
employment of Patrick J. Norton through December 31, 2005, and
superseding certain provisions of the letter agreement, dated
June 5, 2000, between The Scotts Company and Mr. Norton
Incorporated herein by reference to Scotts Annual Report
on
Form 10-K
for the fiscal year ended September 30, 2002
(File No. 1-13292)
[Exhibit 10(q)]
Letter of Extension, dated October 25, 2005, between The Scotts
Miracle-Gro Company and Patrick J. Norton
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed December 14, 2005
(File No. 1-13292)
[Exhibit 10.3]
Employment Agreement, effective as of October 1, 2007, between
The Scotts Company LLC and Barry W. Sanders (executed by Mr.
Sanders on November 16, 2007 and on behalf of The Scotts Company
LLC on November 19, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(m)]
Employment Contract for an Unlimited Time, effective as of July
1, 2001, between The Scotts Company (now known as The Scotts
Company LLC) and Claude Lopez [English Translation -- Original
in French]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(n)]
Employment Agreement for David C. Evans, executed on behalf of
The Scotts Company LLC on November 19, 2007 and by David C.
Evans on December 3, 2007 and effective as of October 1, 2007
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed December 7, 2007 (File
No. 1-13292)
[Exhibit 10.1]
Employment Agreement for Denise S. Stump, executed on behalf of
The Scotts Company LLC on November 19, 2007 and by Denise S.
Stump on December 11, 2007 and effective as of October 1, 2007
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed December 17, 2007 (File
No. 1-13292)
[Exhibit 10.1]
Employment Agreement for Vincent Brockman, executed on behalf of
The Scotts Miracle-Gro Company and by Vincent Brockman on May
24, 2006 and effective as of March 1, 2006
(effective until June 1, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(q)]
Employment Agreement for Vincent C. Brockman, effective as of
June 1, 2008, between The Scotts Company LLC and Vincent C.
Brockman (executed by Mr. Brockman on June 26, 2008 and on
behalf of The Scotts Company LLC on June 27, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
June 28, 2008 (File No. 1-13292) [Exhibit 10(d)]
Table of Contents
Exhibit
No.
Description
Location
Employment Agreement for Mark R. Baker, effective October 1,
2008, between The Scotts Company LLC and Mark R. Baker (executed
by Mr. Baker on September 9, 2008 and on behalf of The Scotts
Company LLC on September 10, 2008)
*
*
Filed herewith.
(b)
EXHIBITS
(c)
FINANCIAL STATEMENT
SCHEDULE
Table of Contents
THE SCOTTS MIRACLE-GRO COMPANY
and Chairman of the Board
President, Chief Operating Officer and Director
November 25, 2008
Director
November 25, 2008
Executive Vice President and Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer)
November 25, 2008
Director
November 25, 2008
Chief Executive Officer, Chairman of the Board and Director
(Principal Executive Officer)
November 25, 2008
Director
November 25, 2008
Director
November 25, 2008
Director
November 25, 2008
Director
November 25, 2008
Director
November 25, 2008
Director
November 25, 2008
Table of Contents
Director
November 25, 2008
Director
November 25, 2008
*
The undersigned, by signing his name hereto, does hereby sign
this Report on behalf of each of the directors of the Registrant
identified above pursuant to Powers of Attorney executed by the
directors identified above, which Powers of Attorney are filed
with this Report as exhibits.
By:
AND FINANCIAL STATEMENT SCHEDULE
Page
61
62
64
65
66
67
68
109
EX-4.4
EX-10.1.A
EX-10.1.B
EX-10.2.B.I
EX-10.2.C
EX-10.5.B.I
EX-10.5.B.II
EX-10.5.B.III
EX-10.5.B.IV
EX-10.5.B.V
EX-10.5.B.VI
EX-10.5.B.VII
EX-10.5.B.VIII
EX-10.5.B.IX
EX-10.5.B.X
EX-10.5.B.XI
EX-10.5.B.XII
EX-10.7.D.I
EX-10.7.D.II
EX-10.7.D.III
EX-10.7.F.II
EX-10.7.F.III
EX-10.7.G.III
EX-10.7.G.IV
EX-10.7.G.V
EX-10.8.B
EX-10.17
EX-10.18.B
EX-21
EX-23
EX-24
EX-31.1
EX-31.B
EX-32
Table of Contents
CONTROL OVER FINANCIAL REPORTING
David C. Evans
Executive Vice President
and Chief Financial Officer
Dated: November 25, 2008
Table of Contents
The Scotts Miracle-Gro Company
Marysville, Ohio
Table of Contents
The Scotts Miracle-Gro Company
Marysville, Ohio
Table of Contents
Consolidated
Statements of Operations
for the fiscal years ended September 30, 2008, 2007 and
2006
(in millions, except per share data)
2008
2007
2006
$
2,981.8
$
2,871.8
$
2,697.1
1,999.9
1,867.3
1,741.1
15.1
0.1
27.2
939.6
1,004.5
955.9
717.6
700.9
636.9
121.7
38.0
75.7
12.7
(10.4
)
(11.5
)
(9.2
)
98.0
277.1
252.5
18.3
82.2
70.7
39.6
15.8
188.1
212.9
26.7
74.7
80.2
$
(10.9
)
$
113.4
$
132.7
$
(0.17
)
$
1.74
$
1.97
$
(0.17
)
$
1.69
$
1.91
Table of Contents
Consolidated
Statements of Cash Flows
for the fiscal years ended September 30, 2008, 2007 and
2006
(in millions)
2008
2007
2006
$
(10.9
)
$
113.4
$
132.7
136.8
38.0
66.4
18.3
12.5
13.3
15.7
53.9
51.4
51.0
16.4
16.1
16.0
(16.5
)
6.3
(0.4
)
1.0
(0.4
)
(0.5
)
(15.7
)
(4.2
)
(37.6
)
(17.9
)
13.2
(60.6
)
(2.6
)
(6.9
)
(3.6
)
9.4
(3.5
)
34.3
31.7
(2.0
)
(33.4
)
(1.4
)
(5.0
)
(9.2
)
14.4
6.8
2.0
(10.2
)
(8.2
)
9.6
200.9
246.6
182.4
1.1
0.5
1.3
(56.1
)
(54.0
)
(57.0
)
(4.1
)
(18.7
)
(118.4
)
(59.1
)
(72.2
)
(174.1
)
942.1
2,519.2
746.9
(1,042.0
)
(1,710.5
)
(691.7
)
(209.6
)
(13.0
)
(32.5
)
(543.6
)
(33.5
)
(2.7
)
(2.7
)
(4.5
)
(246.8
)
(87.9
)
2.9
19.0
6.2
9.2
29.2
17.6
(123.0
)
(158.8
)
(46.9
)
(2.0
)
4.2
6.5
16.8
19.8
(32.1
)
67.9
48.1
80.2
$
84.7
$
67.9
$
48.1
(82.0
)
(75.9
)
(38.2
)
(36.8
)
(65.2
)
(60.3
)
Table of Contents
Consolidated Balance
Sheets
September 30, 2008 and 2007
(in millions except per share data)
Table of Contents
for the fiscal years ended September 30, 2008, 2007 and
2006
(in millions)
Accumulated
Capital in
Other
Common Stock
Excess of
Deferred
Retained
Treasury Stock
Comprehensive
Shares
Amount
Stated Value
Compensation
Earnings
Shares
Amount
Income/(loss)
Total
67.8
0.3
503.2
(12.2
)
591.5
(56.6
)
1,026.2
132.7
132.7
(1.5
)
(1.5
)
(12.2
)
12.2
6.5
6.5
137.7
15.7
15.7
(33.5
)
(33.5
)
2.0
(87.9
)
(87.9
)
(21.4
)
(0.5
)
21.4
0.3
23.5
23.5
68.1
0.3
508.8
690.7
1.5
(66.5
)
(51.6
)
1,081.7
113.4
113.4
4.9
4.9
(2.4
)
(2.4
)
20.4
20.4
136.3
(13.3
)
(13.3
)
13.3
13.3
(543.6
)
(543.6
)
4.5
(246.8
)
(246.8
)
(42.1
)
(2.0
)
93.8
51.7
68.1
0.3
480.0
260.5
4.0
(219.5
)
(42.0
)
479.3
(10.9
)
(10.9
)
8.5
8.5
(13.5
)
(13.5
)
(20.1
)
(20.1
)
(36.0
)
(0.4
)
(0.4
)
12.5
12.5
(32.5
)
(32.5
)
(20.4
)
(0.6
)
34.2
13.8
68.1
$
0.3
$
472.1
$
$
216.7
3.4
$
(185.3
)
$
(67.1
)
$
436.7
Table of Contents
NOTE 1.
SUMMARY OF
SIGNIFICANT ACCOUNTING POLICIES
Table of Contents
Table of Contents
10 25 years
10 40 years
3 15 years
6 10 years
3 8 years
Table of Contents
Table of Contents
Table of Contents
Table of Contents
NOTE 2.
PRODUCT
REGISTRATION AND RECALL MATTERS
Table of Contents
Year Ended
September 30,
2008
$
(22.3
)
(11.1
)
27.2
(38.4
)
12.7
(51.1
)
(17.9
)
$
(33.2
)
Reserves
Established
Additional
During the
Costs and
Reserves at
Second Quarter of
Changes in
Reserves
September 30,
Fiscal 2008
Estimate
Used
2008
$
19.0
$
3.3
$
(22.1
)
$
0.2
(12.0
)
0.9
11.0
(0.1
)
14.1
(0.8
)
(7.4
)
5.9
8.5
5.4
(10.7
)
3.2
1.2
11.5
(8.4
)
4.3
$
30.8
$
20.3
$
(37.6
)
$
13.5
NOTE 3.
IMPAIRMENT,
RESTRUCTURING AND OTHER CHARGES
Table of Contents
2008
2007
2006
$
1.0
$
2.7
$
9.4
15.8
120.0
35.3
66.4
$
136.8
$
38.0
$
75.8
$
2.5
$
6.4
$
15.6
1.0
2.7
9.4
(2.4
)
(6.6
)
(18.6
)
$
1.1
$
2.5
$
6.4
NOTE 4.
GOODWILL AND
INTANGIBLE ASSETS, NET
Table of Contents
Table of Contents
September 30, 2008
September 30, 2007
Weighted
Gross
Net
Gross
Net
Average
Carrying
Accumulated
Carrying
Carrying
Accumulated
Carrying
Life
Amount
Amortization
Amount
Amount
Amortization
Amount
16
$
49.9
$
(39.1
)
$
10.8
$
56.7
$
(37.1
)
$
19.6
13
83.5
(38.0
)
45.5
89.0
(29.6
)
59.4
17
11.3
(9.0
)
2.3
11.3
(5.6
)
5.7
13
101.2
(71.2
)
30.0
117.7
(82.0
)
35.7
88.6
120.4
278.6
298.4
367.2
418.8
377.7
462.9
$
744.9
$
881.7
Global
Global
Scotts
Corporate
Consumer
Professional
LawnService
®
& Other
Total
$
267.0
$
57.9
$
108.6
$
24.6
$
458.1
4.3
14.9
19.2
(2.2
)
(24.6
)
(26.8
)
7.9
4.5
12.4
$
277.0
$
62.4
$
123.5
$
$
462.9
0.3
0.3
(61.0
)
(19.8
)
(80.8
)
(0.9
)
(3.8
)
(4.7
)
$
215.1
$
38.8
$
123.8
$
$
377.7
$
13.1
11.2
9.3
8.6
8.3
NOTE 5.
RECAPITALIZATION
Table of Contents
Pro Forma Financial Information (Unaudited)
Year Ended September 30,
2007
2006
(In millions, except per share data)
$
188.1
$
212.9
70.7
39.6
18.3
(94.3
)
(100.8
)
182.8
151.7
72.5
57.3
$
110.3
$
94.4
$
1.74
$
1.50
$
1.68
$
1.45
$
70.7
$
39.6
21.8
53.0
1.5
7.4
0.3
0.8
$
94.3
$
100.8
39.7
%
37.8
%
Table of Contents
Pro Forma Shares
Year Ended September 30,
2007
2006
(In millions)
65.2
67.5
(1.8
)
(4.5
)
63.4
63.0
67.0
69.4
(1.8
)
(4.5
)
0.3
0.3
65.5
65.2
NOTE 6.
DETAIL OF CERTAIN
FINANCIAL STATEMENT ACCOUNTS
September 30,
2008
2007
(In millions)
$
277.3
$
289.9
29.9
28.3
108.7
87.7
$
415.9
$
405.9
$
61.0
$
58.9
165.1
162.8
432.0
417.4
36.2
39.2
92.0
88.6
18.4
17.8
804.7
784.7
(460.6
)
(418.8
)
$
344.1
$
365.9
$
50.3
$
44.0
144.1
138.8
119.8
104.0
$
314.2
$
286.8
$
108.4
$
79.8
42.6
67.9
41.0
32.2
$
192.0
$
179.9
Table of Contents
September 30,
2008
2007
2006
(In millions)
$
(14.1
)
$
(0.6
)
$
1.8
(34.1
)
(47.1
)
(27.0
)
(5.9
)
(14.4
)
(19.3
)
$
(67.1
)
$
(42.0
)
$
(51.6
)
NOTE 7.
MARKETING
AGREEMENT
2008
2007
2006
$
65.1
$
62.7
$
60.7
(20.0
)
(20.0
)
(20.0
)
(0.8
)
(0.8
)
(0.8
)
44.3
41.9
39.9
58.0
47.7
37.6
$
102.3
$
89.6
$
77.5
Table of Contents
Table of Contents
NOTE 8.
ACQUISITIONS
Date of Acquisition
Assets Acquired
Consideration
Reasons for the Acquisition
Certain brands and assets of Landmark Seed Company, a producer
and distributor of quality professional seed and turfgrasses.
Cash of $6.2 million with an additional $1.0 million deferred to
future periods.
Enhanced the Companys position in the global turfgrass
seed industry and complemented the acquisition from Turf-Seed,
Inc.
Certain brands and assets of Turf-Seed, Inc., a leading producer
of quality commercial turfgrasses, including 49% equity interest
in Turf-Seed Europe, which distributes Turf-Seeds grass
varieties throughout the European Union and other countries in
the region.
Cash of $10.0 million plus assumed liabilities of $4.5 million.
Contingent consideration based on future performance of the
business due in 2012 that may approximate $15 million which
would be recorded as additional purchase price.
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
strengthened the Companys overall global position in the
seed category.
All the outstanding shares of Gutwein & Co., Inc.
(Gutwein), a branded producer and marketer in the
North American wild bird food category.
$78.3 million in cash plus assumed liabilities of $4.7 million.
Gutweins Morning
Song
®
branded products are sold at leading mass retailers, grocery,
pet and general merchandise stores. This acquisition gave the
Company its entry into the North American wild bird food
category, a large, fragmented category with opportunity for
branding and innovation.
All the outstanding shares of Rod McLellan Company
(RMC), a branded producer and marketer of soil and
landscape products in the western United States.
$20.5 million in cash plus assumed liabilities of $6.8 million.
RMC complemented our existing line of growing media products and
has been integrated into that business.
Table of Contents
NOTE 9.
RETIREMENT
PLANS
Table of Contents
Curtailed Defined
International
Benefit Plans
Benefit Plans
2008
2007
2008
2007
$
90.8
$
93.4
$
179.5
$
178.7
2.8
3.9
5.4
5.3
10.0
9.2
0.9
0.9
(0.8
)
(0.6
)
0.5
(1.5
)
10.2
(23.8
)
(6.5
)
(6.4
)
(6.6
)
(6.0
)
(0.6
)
0.2
0.1
0.5
(19.6
)
17.3
$
90.2
$
90.8
$
176.7
$
179.5
$
90.2
$
90.8
$
152.4
$
158.6
$
77.9
$
70.9
$
142.7
$
116.1
(10.3
)
9.3
(11.5
)
10.4
4.8
4.1
9.1
9.6
0.9
0.9
(6.5
)
(6.4
)
(6.6
)
(6.0
)
(15.0
)
11.9
(0.7
)
(0.2
)
$
65.9
$
77.9
$
118.9
$
142.7
$
(24.3
)
$
(12.9
)
$
(57.8
)
$
(36.8
)
$
90.2
$
90.8
$
157.0
$
28.1
90.2
90.8
135.9
26.5
65.9
77.9
102.0
7.0
$
(0.2
)
$
(0.2
)
$
(1.0
)
$
(1.0
)
(24.1
)
(12.7
)
(56.8
)
(35.8
)
$
(24.3
)
$
(12.9
)
$
(57.8
)
$
(36.8
)
Table of Contents
Curtailed Defined
International
Benefit Plans
Benefit Plans
2008
2007
2008
2007
$
37.7
$
22.0
$
46.3
$
21.7
(1.1
)
(1.1
)
$
37.7
$
22.0
$
45.2
$
20.6
$
3.0
$
1.3
$
2.4
$
0.6
(0.1
)
(0.1
)
$
3.0
$
1.3
$
2.3
$
0.5
Curtailed Defined
International
Benefit Plans
Benefit Plans
2008
2007
2008
2007
6.46
%
6.11
%
6.06
%
5.67
%
n/a
n/a
4.1
%
3.5
%
Curtailed Defined
International
Benefit Plan
Benefit Plans
2008
2007
2006
2008
2007
2006
$
$
$
$
2.8
$
3.9
$
4.2
5.4
5.3
5.2
10.0
9.2
7.7
(6.2
)
(5.6
)
(5.5
)
(9.3
)
(8.2
)
(7.0
)
1.3
2.1
2.2
0.4
2.1
2.0
0.5
1.8
1.9
3.9
7.0
6.9
0.1
0.6
(1.1
)
$
0.5
$
1.8
$
1.9
$
4.0
$
7.6
$
5.8
6.11
%
5.93
%
5.63
%
5.67
%
4.86
%
4.68
%
8.0
%
8.0
%
8.0
%
5.8
%
6.6
%
6.9
%
n/a
n/a
n/a
3.5
%
3.5
%
3.5
%
Table of Contents
International
Curtailed Defined
Benefit
Benefit Plans
Plans
60
%
49
%
40
%
51
%
56
%
48
%
43
%
52
%
1
%
0
%
61
%
50
%
38
%
49
%
1
%
1
%
1.5
8.4
0.9
6.6
5.4
6.6
5.6
6.7
6.1
6.8
6.4
6.8
7.0
35.2
42.1
NOTE 10.
ASSOCIATE MEDICAL
BENEFITS
Table of Contents
2008
2007
$
30.4
$
33.2
0.5
0.6
1.8
1.8
0.9
0.9
(4.5
)
(3.4
)
(2.9
)
(2.7
)
$
26.2
$
30.4
$
$
2.3
2.1
0.9
0.9
(3.2
)
(3.0
)
$
(26.2
)
$
(30.4
)
$
(2.4
)
$
(2.5
)
(23.8
)
(27.9
)
$
(26.2
)
$
(30.4
)
$
(4.2
)
$
0.3
7.54
%
6.22
%
2008
2007
2006
$
0.5
$
0.6
$
0.7
1.8
1.8
1.9
0.1
$
2.3
$
2.4
$
2.7
6.22
%
5.86
%
5.51
%
Table of Contents
Gross
Medicare
Net
Benefit
Retiree
Part D
Company
Payments
Contributions
Subsidy
Payments
$
3.6
$
(0.9
)
$
(0.3
)
$
2.4
3.8
(1.0
)
(0.4
)
2.4
4.0
(1.2
)
(0.4
)
2.4
4.2
(1.4
)
(0.4
)
2.4
4.5
(1.6
)
(0.5
)
2.4
27.0
(11.7
)
(3.0
)
12.3
Prior to
Effect of
As Reported
Adopting
Adopting
under
SFAS 158
SFAS 158
SFAS 158
(In millions)
$
136.8
$
(9.1
)
$
127.7
283.1
3.7
286.8
179.4
0.5
179.9
1,793.7
4.2
1,797.9
(28.7
)
(13.3
)
(42.0
)
Table of Contents
NOTE 11.
DEBT
September 30,
2008
2007
(In millions)
$
375.8
$
469.2
540.4
558.6
62.1
64.4
12.8
15.1
0.7
7.7
10.5
999.5
1,117.8
150.0
86.4
$
849.5
$
1,031.4
$
150.0
155.8
193.6
496.1
0.5
3.5
$
999.5
Table of Contents
Notional
Currency
Amount in USD
Term
Expiration Date
Fixed Rate
(In millions)
$
51.2
3 years
11/17/2008
4.76
%
60.2
3 years
11/17/2008
2.98
%
200.0
2 years
3/31/2009
4.90
%
200.0
3 years
3/30/2010
4.87
%
200.0
5 years
2/14/2012
5.20
%
Table of Contents
NOTE 12.
SHAREHOLDERS
EQUITY
2008
2007
(In millions)
0.2 shares
0.2 shares
0.0 shares
0.0 shares
100.0 shares
100.0 shares
68.1 shares
68.1 shares
Table of Contents
Year Ended September 30,
2008
2007
2006
889,700
821,200
835,640
872,147
154,900
193,550
184,595
40,000
30,000
30,271
127,000
126,000
202,649
1,114,871
2,216,546
1,176,235
recapitalization
$
18.7
$
22.3
$
20.9
Table of Contents
Year Ended September 30,
2008
2007
2006
$
12.5
$
15.5
$
15.7
4.8
6.2
5.9
WTD.
Avg.
No. of
Exercise
Options/SARs
Price
5.8
$
26.63
0.9
$
38.63
(0.6
)
$
17.24
(0.3
)
$
37.32
5.8
$
29.01
3.6
$
23.41
Awards Outstanding
Awards Exercisable
No. of
WTD. Avg.
WTD. Avg.
No. of
WTD. Avg.
Range of
Options/
Remaining
Exercise
Options/
Remaining
Exercise Price
SARs
Life
Price
SARS
Exercise Price
Life
0.4
1.41
$
13.69
0.4
$
13.69
1.41
0.8
2.57
16.79
0.8
16.79
2.57
1.5
4.91
23.63
1.5
23.63
4.91
0.6
6.20
29.08
0.6
29.03
6.17
0.6
7.14
35.71
1.6
8.57
38.63
0.3
7.90
43.31
0.3
43.26
7.85
5.8
5.87
$
29.01
3.6
$
23.41
4.43
2008
$
9.7
9.7
Table of Contents
Year Ended September 30,
2008
2007
2006
30.2
%
26.3
%
23.0
%
4.0
%
4.8
%
4.4
%
1.3
%
1.1
%
1.2
%
6.19
5.83
6.19
$
12.34
$
11.42
$
12.04
WTD. Avg.
Grant Date
No. of
Fair Value
Shares
per Share
277,080
$
43.74
187,000
39.99
(29,215
)
34.91
(53,300
)
43.23
381,565
$
42.65
Table of Contents
NOTE 13.
EARNINGS (LOSS)
PER COMMON SHARE
Year Ended September 30,
2008
2007
2006
$
(10.9
)
$
113.4
$
132.7
64.5
65.2
67.5
$
(0.17
)
$
1.74
$
1.97
64.5
65.2
67.5
1.8
1.9
64.5
67.0
69.4
$
(0.17
)
$
1.69
$
1.91
NOTE 14.
INCOME
TAXES
Year Ended
September 30,
2008
2007
2006
$
27.9
$
54.5
$
68.3
2.8
5.4
6.0
12.5
8.5
6.3
43.2
68.4
80.6
(13.6
)
6.5
(0.5
)
(1.9
)
(0.6
)
1.6
(1.0
)
0.4
(1.5
)
(16.5
)
6.3
(0.4
)
$
26.7
$
74.7
$
80.2
Table of Contents
Year Ended
September 30,
2008
2007
2006
$
75.0
$
175.3
$
253.6
(59.2
)
12.8
(40.7
)
$
15.8
$
188.1
$
212.9
Year Ended September 30,
2008
2007
2006
35.0
%
35.0
%
35.0
%
(4.5
)
(0.5
)
(0.5
)
0.6
1.6
2.3
(1.3
)
(0.2
)
0.1
(4.7
)
(0.5
)
0.0
106.9
1.0
0.4
42.3
4.8
0.0
(5.7
)
(1.5
)
0.4
168.6
%
39.7
%
37.7
%
September 30,
2008
2007
$
18.5
$
12.0
64.0
56.0
40.0
26.5
8.4
3.4
0.1
4.6
5.4
45.9
38.6
12.7
19.1
194.1
161.1
(65.8
)
(41.0
)
128.3
120.1
(34.3
)
(38.4
)
(52.9
)
(72.5
)
(5.6
)
(7.5
)
(92.8
)
(118.4
)
$
35.5
$
1.7
Table of Contents
September 30,
2008
2007
$
78.1
$
69.6
(42.6
)
(67.9
)
$
35.5
$
1.7
Table of Contents
$
10.0
2.2
0.6
(0.1
)
(1.8
)
(1.8
)
(1.9
)
$
7.2
NOTE 15.
FINANCIAL
INSTRUMENTS
Table of Contents
Table of Contents
2008
2007
Carrying
Fair
Carrying
Fair
Amount
Value
Amount
Value
$
375.8
$
375.8
$
469.2
$
469.2
0.7
0.7
540.4
540.4
558.6
558.6
62.1
62.1
64.4
64.4
(0.4
)
(0.4
)
(1.3
)
(1.3
)
(15.0
)
(15.0
)
(4.1
)
(4.1
)
(8.5
)
(8.5
)
1.0
1.0
2008
2007
$
12.8
$
15.1
7.7
10.5
NOTE 16.
OPERATING
LEASES
Table of Contents
$
39.0
33.5
30.4
24.5
20.2
44.6
$
192.2
Amount of
Lease
Guarantee
Termination Date
$
19.5 million
2012
15.7 million
2010 and 2012
NOTE 17.
COMMITMENTS
$
299.8
150.9
78.1
36.9
31.6
$
597.3
NOTE 18.
CONTINGENCIES
Table of Contents
Table of Contents
NOTE 19.
CONCENTRATIONS OF
CREDIT RISK
Table of Contents
Largest
2nd Largest
3rd Largest
Customer
Customer
Customer
21.0
%
13.5
%
13.4
%
20.2
%
10.9
%
10.2
%
21.5
%
11.2
%
10.5
%
NOTE 20.
OTHER (INCOME)
EXPENSE
2008
2007
2006
$
(9.6
)
$
(9.9
)
$
(6.8
)
(1.2
)
(1.0
)
(0.9
)
(0.2
)
(0.2
)
(0.2
)
0.9
(0.2
)
(0.7
)
(0.3
)
(0.2
)
(0.6
)
$
(10.4
)
$
(11.5
)
$
(9.2
)
NOTE 21.
SEGMENT
INFORMATION
Table of Contents
2008
2007
2006
$
2,250.1
$
2,176.2
$
2,089.6
348.8
281.9
233.4
247.4
230.5
205.7
158.6
184.0
169.2
3,004.9
2,872.6
2,697.9
(0.8
)
(0.8
)
(0.8
)
(22.3
)
$
2,981.8
$
2,871.8
$
2,697.1
$
344.5
$
379.1
$
392.4
33.7
31.3
27.3
11.3
11.3
15.6
(87.2
)
(90.5
)
(91.0
)
302.3
331.2
344.3
(0.8
)
(0.8
)
(0.8
)
(15.6
)
(15.3
)
(15.2
)
(51.1
)
(136.8
)
(35.3
)
(66.4
)
(2.7
)
(9.4
)
$
98.0
$
277.1
$
252.5
$
42.2
$
39.1
$
41.0
3.3
3.6
2.8
5.2
4.1
3.8
19.6
20.7
19.4
$
70.3
$
67.5
$
67.0
Table of Contents
2008
2007
2006
$
50.2
$
37.8
$
35.2
1.0
1.2
1.0
1.8
3.8
3.0
7.2
11.2
17.8
$
60.2
$
54.0
$
57.0
$
1,483.8
$
1,551.9
289.9
308.0
186.5
189.2
196.1
228.1
$
2,156.3
$
2,277.2
2008
2007
2006
$
2,435.7
$
2,402.0
$
2,288.6
546.1
469.8
408.5
$
2,981.8
$
2,871.8
$
2,697.1
$
297.3
$
313.9
$
324.1
46.8
52.0
43.5
$
344.1
$
365.9
$
367.6
NOTE 22.
QUARTERLY
CONSOLIDATED FINANCIAL INFORMATION (UNAUDITED)
First
Second
Third
Fourth
Quarter
Quarter
Quarter
Quarter
Full Year
$
308.7
$
958.0
$
1,170.9
$
544.2
$
2,981.8
71.3
322.8
423.8
121.7
939.6
(56.8
)
58.0
22.6
(34.7
)
(10.9
)
$
(0.89
)
$
0.90
$
0.35
$
(0.54
)
$
(0.17
)
64.2
64.4
64.6
64.7
64.5
$
(0.89
)
$
0.88
$
0.35
$
(0.54
)
$
(0.17
)
64.2
65.6
65.3
64.7
64.5
Table of Contents
First
Second
Third
Fourth
Quarter
Quarter
Quarter
Quarter
Full Year
$
271.2
$
993.3
$
1,098.4
$
508.9
$
2,871.8
55.3
368.4
422.7
158.1
1,004.5
(59.4
)
83.4
129.7
(40.3
)
113.4
$
(0.88
)
$
1.26
$
2.04
$
(0.63
)
$
1.74
67.2
66.1
63.6
63.9
65.2
$
(0.88
)
$
1.23
$
1.98
$
(0.63
)
$
1.69
67.2
67.8
65.4
63.9
67.0
Table of Contents
Schedule II
Valuation and Qualifying Accounts
for the fiscal year ended September 30, 2008
(in millions)
Column B
Column C
Column D
Column E
Column F
Balance
Additions
Deductions
at
Charged
Credited
Balance
Beginning
Reserves
to
and
at End of
Classification
of Period
Acquired
Expense
Write-Offs
Period
$
15.6
$
$
13.3
$
(11.4
)
$
17.5
16.7
(8.0
)
8.7
11.4
4.7
(5.5
)
10.6
41.0
27.0
(2.2
)
65.8
for the fiscal year ended September 30, 2007
(in millions)
Column B
Column C
Column D
Column E
Column F
Balance
Additions
Deductions
at
Charged
Credited
Balance
Beginning
Reserves
to
and
at End of
Classification
of Period
Acquired
Expense
Write-Offs
Period
$
15.1
$
$
9.6
$
(9.1
)
$
15.6
11.3
4.1
1.3
(5.3
)
11.4
35.4
8.5
(2.9
)
41.0
for the fiscal year ended September 30, 2006
(in millions)
Column B
Column C
Column D
Column E
Column F
Balance
Additions
Deductions
at
Charged
Credited
Balance
Beginning
Reserves
to
and
at End of
Classification
of Period
Acquired
Expense
Write-Offs
Period
$
16.3
$
0.3
$
9.4
$
(10.9
)
$
15.1
11.4
0.5
3.5
(4.1
)
11.3
33.0
5.1
(2.7
)
35.4
Table of Contents
Exhibit
No.
Description
Location
Amended and Restated Agreement and Plan of Merger, dated as of
May 19, 1995, among Sterns Miracle-Gro Products,
Inc., Sterns Nurseries, Inc., Miracle-Gro Lawn Products
Inc., Miracle-Gro Products Limited, Hagedorn Partnership, L.P.,
the general partners of Hagedorn Partnership, L.P., Horace
Hagedorn, Community Funds, Inc., and John Kenlon, The Scotts
Company and ZYX Corporation
Incorporated herein by reference to the Current Report on Form
8-K of The Scotts Company, a Delaware corporation, filed June 2,
1995 (File No. 0-19768) [Exhibit 2(b)]
First Amendment to Amended and Restated Agreement and Plan of
Merger, made and entered into as of October 1, 1999, among
The Scotts Company, Scotts Miracle-Gro Products, Inc. (as
successor to ZYX Corporation and Sterns Miracle-Gro
Products, Inc.), Miracle-Gro Lawn Products Inc., Miracle-Gro
Products Limited, Hagedorn Partnership, L.P., Community Funds,
Inc., Horace Hagedorn and John Kenlon, and James Hagedorn,
Katherine Hagedorn Littlefield, Paul Hagedorn, Peter Hagedorn,
Robert Hagedorn and Susan Hagedorn
Incorporated herein by reference to the Current Report on Form
8-K of The Scotts Company, an Ohio corporation
(Scotts), filed October 5, 1999 (File No. 1-11593)
[Exhibit 2]
Agreement and Plan of Merger, dated as of December 13,
2004, by and among The Scotts Company, The Scotts Company LLC
and The Scotts Miracle-Gro Company
Incorporated herein by reference to Scotts Current Report
on Form 8-K filed February 2, 2005 (File
No. 1-13292)
[Exhibit 2.1]
Initial Articles of Incorporation of The Scotts Miracle-Gro
Company as filed with the Ohio Secretary of State on
November 22, 2004
Incorporated herein by reference to the Current Report on Form
8-K of The Scotts Miracle-Gro Company (the
Registrant) filed March 24, 2005 (File No. 1-13292)
[Exhibit 3.1]
Certificate of Amendment by Shareholders to Articles of
Incorporation of The Scotts Miracle-Gro Company as filed with
the Ohio Secretary of State on March 18, 2005
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed March 24, 2005 (File No.
1-13292) [Exhibit 3.2]
Code of Regulations of The Scotts Miracle-Gro Company
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed March 24, 2005 (File No.
1-13292) [Exhibit 3.3]
Amended and Restated Credit Agreement, dated as of
February 7, 2007, by and among The Scotts Miracle-Gro
Company as the Borrower; the Subsidiary Borrowers
(as defined in the Amended and Restated Credit Agreement); the
several banks and other financial institutions from time to time
parties to the Amended and Restated Credit Agreement; Bank of
America, N.A., as Syndication Agent; The Bank of
Tokyo-Mitsubushi UFJ. Ltd, BNP Paribas, CoBank, ACB, BMO Capital
Markets Financing, Inc., LaSalle Bank N.A., Cooperatieve
Centrale Raiffeisen Boerenleenbank, B.A. Rabobank
Nederland, New York Branch, Citicorp North America, Inc.
and The Bank of Nova Scotia, as Documentation Agents; and
JPMorgan Chase Bank, N.A., as Administrative Agent
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2007 (File
No. 1-13292)
[Exhibit 4(a)]
Table of Contents
Exhibit
No.
Description
Location
First Amendment, dated as of April 10, 2007, to the Amended
and Restated Credit Agreement, dated as of February 7,
2007, by and among The Scotts Miracle-Gro Company as the
Borrower; the Subsidiary Borrowers (as defined in
the Amended and Restated Credit Agreement); the several banks
and other financial institutions from time to time parties to
the Amended and Restated Credit Agreement; the Syndication Agent
and the Documentation Agents named in the Amended and Restated
Credit Agreement; and JPMorgan Chase Bank, N.A., as
Administrative Agent
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2007 (File
No. 1-13292)
[Exhibit 4(b)]
Amended and Restated Guarantee and Collateral Agreement, dated
as of February 7, 2007, made by The Scotts Miracle-Gro
Company and each Domestic Subsidiary Borrower (and certain of
the Subsidiary Borrowers domestic subsidiaries) under the
Amended and Restated Credit Agreement in favor of JPMorgan Chase
Bank, N.A., as Administrative Agent
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2007 (File
No. 1-13292)
[Exhibit 4(c)]
Foreign Pledge Agreement Acknowledgement and Confirmation, dated
as of March 30, 2007, entered into by Scotts Sierra
Investments, Inc. and OMS Investments, Inc. in favor of JPMorgan
Chase Bank, N.A., as Administrative Agent
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2007 (File
No. 1-13292)
[Exhibit 4(d)]
Agreement to furnish copies of instruments and agreements
defining rights of holders of long-term debt
*
The Scotts Company LLC Excess Benefit Plan for Grandfathered
Associates as of January 1, 2005 (executed as of
September 30, 2008)
*
The Scotts Company LLC Excess Benefit Plan for Non Grandfathered
Associates as of January 1, 2005 (executed as of
November 20, 2008)
*
The Scotts Company LLC Amended and Restated Executive/Management
Incentive Plan (approved on November 7, 2007 and effective
as of October 30, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(b)(2)]
Amendment to The Scotts Company LLC Amended and Restated
Executive/Management Incentive Plan (effective as of
November 5, 2008) [amended the name of the plan to be The
Scotts Company LLC Amended and Restated Executive Incentive Plan]
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed November 12, 2008 (File No.
1-13292) [Exhibit 10.2]
Specimen form of Employee Confidentiality, Noncompetition,
Nonsolicitation Agreement for employees participating in The
Scotts Company Executive/Management Incentive Plan (now known as
The Scotts Company LLC Amended and Restated Executive Incentive
Plan) [2005 version]
*
Table of Contents
Exhibit
No.
Description
Location
Specimen form of Employee Confidentiality, Noncompetition,
Nonsolicitation Agreement for employees participating in The
Scotts Company LLC Executive/Management Incentive Plan (now
known as The Scotts Company LLC Amended and Restated Executive
Incentive Plan) [post-2005 version]
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
July 1, 2006 (File No. 1-13292) [Exhibit 10.1]
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 Amended and Restated Executive Incentive Plan
*
The Scotts Company LLC Supplemental Incentive Plan for the
fiscal year ended September 30, 2008
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
June 28, 2008 (File
No. 1-13292)
[Exhibit 10(c)]
The Scotts Miracle-Gro Company Amended and Restated 1996 Stock
Option Plan (effective as of October 30, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(d)(4)]
Specimen form of Stock Option Agreement for Non-Qualified Stock
Options granted to employees under The Scotts Company 1996 Stock
Option Plan (now known as The Scotts Miracle-Gro Company Amended
and Restated 1996 Stock Option Plan)
Incorporated herein by reference to Scotts Current Report
on Form 8-K filed November 19, 2004 (File
No. 1-13292)
[Exhibit 10.7]
The Scotts Company Executive Retirement Plan (now known as The
Scotts Company LLC Executive Retirement Plan) [executed on
November 19, 1998 and effective as of January 1, 1999]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File No. 333-153925) [Exhibit 4.4]
First Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of December 23, 1998 and effective as of
January 1, 1999]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File No. 333-153925) [Exhibit 4.5]
Second Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of January 14, 2000 and effective as of
January 1, 2000]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File No. 333-153925) [Exhibit 4.6]
Third Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of December 1, 2002 and effective as of
January 1, 2003]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File No. 333-153925) [Exhibit 4.7]
Fourth Amendment to The Scotts Company Executive Retirement Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[executed as of May 5, 2004 and effective as of
January 1, 2004]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File No. 333-153925) [Exhibit 4.8]
Table of Contents
Exhibit
No.
Description
Location
Fifth Amendment to The Scotts Company Executive Retirement Plan
(executed on May 6, 2005 and effective as of March 18,
2005) [amended the name of the plan to be The Scotts Company LLC
Executive Retirement Plan]
Incorporated herein by reference to the Registrants
Registration Statement on Form S-8 filed on October 9, 2008
(File No. 333-153925) [Exhibit 4.9]
Sixth Amendment to The Scotts Company LLC Executive Retirement
Plan (executed and effective as of October 8, 2008)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed October 15, 2008 (File No.
1-13292) [Exhibit 10.1.7]
Trust Agreement between The Scotts Company and Fidelity
Management Trust Company for The Scotts Company
Nonqualified Deferred Compensation Trust established to assist
in discharging obligations under The Scotts Company Nonqualified
Deferred Compensation Plan (now known as The Scotts Company LLC
Executive Retirement Plan), dated as of January 1, 1998
*
First Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Nonqualified Deferred Compensation Plan
(now known as The Scotts Company LLC Executive Retirement Plan),
dated as of March 24, 1998
*
Second Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Nonqualified Deferred Compensation Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[dated as of January 15, 1999]
*
Third Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Nonqualified Deferred Compensation Plan
(now known as The Scotts Company LLC Executive Retirement Plan)
[dated as of July 1, 1999]
*
Fourth Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Executive Retirement Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [dated as of
August 1, 1999]
*
Fifth Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Executive Retirement Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [dated as of
December 20, 2000]
*
Table of Contents
Exhibit
No.
Description
Location
Sixth Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Executive Retirement Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [effective as
of November 29, 2001]
*
Seventh Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Executive Retirement Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [dated as of
September 1, 2002]
*
Eighth Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Executive Retirement Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [dated as of
December 31, 2002]
*
Ninth Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company with regard
to The Scotts Company Executive Retirement Plan (now known as
The Scotts Company LLC Executive Retirement Plan) [dated as of
October 15, 2004]
*
Tenth Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company LLC with
regard to The Scotts Company Executive Retirement Plan (now
known as The Scotts Company LLC Executive Retirement Plan)
[dated as of October 2, 2006]
*
Eleventh Amendment to Trust Agreement between Fidelity
Management Trust Company and The Scotts Company LLC with
regard to The Scotts Company LLC Executive Retirement Plan
(dated as of February 9, 2007)
*
Form of Executive Retirement Plan Retention Award Agreement
between The Scotts Company LLC and each of David C. Evans, Barry
W. Sanders, Denise S. Stump, Michael C. Lukemire and Vincent C.
Brockman (entered into on November 4, 2008)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed October 15, 2008 (File No.
1-13292) [Exhibit 10.2]
The Scotts Miracle-Gro Company Amended and Restated 2003 Stock
Option and Incentive Equity Plan (effective as of
October 30, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(j)(3)]
Specimen form of Award Agreement for Directors used to evidence
grants of Nonqualified Stock Options made under The Scotts
Company 2003 Stock Option and Incentive Equity Plan (now known
as The Scotts Miracle-Gro Company Amended and Restated 2003
Stock Option and Incentive Equity Plan) [2003 version]
Incorporated herein by reference to Scotts Current Report
on Form 8-K filed November 19, 2004 (File No. 1-13292) [Exhibit
10.9]
Table of Contents
Exhibit
No.
Description
Location
Specimen form of Award Agreement for Directors used to evidence
grants of Nonqualified Stock Options made under The Scotts
Miracle-Gro Company 2003 Stock Option and Incentive Equity Plan
(now known as The Scotts Miracle-Gro Company Amended and
Restated 2003 Stock Option and Incentive Equity Plan) [post-2003
version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2005
(File No. 1-13292) [Exhibit 10(v)]
Specimen form of Award Agreement for Nondirectors used to
evidence grants of Incentive Stock Options, Nonqualified Stock
Options, Stock Appreciation Rights, Restricted Stock and
Performance Stock made under The Scotts Company 2003 Stock
Option and Incentive Equity Plan (now known as The Scotts
Miracle-Gro Company Amended and Restated 2003 Stock Option and
Incentive Equity Plan) [pre-December 1, 2004 version]
Incorporated herein by reference to Scotts Current Report
on Form 8-K filed November 19, 2004 (File No. 1-13292) [Exhibit
10.8]
Specimen form of Award Agreement for Nondirectors used to
evidence grants of Incentive Stock Options, Nonqualified Stock
Options, Stock Appreciation Rights, Restricted Stock and
Performance Shares made under The Scotts Miracle-Gro Company
2003 Stock Option and Incentive Equity Plan (now known as The
Scotts Miracle-Gro Company Amended and Restated 2003 Stock
Option and Incentive Equity Plan) [post-December 1, 2004
version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2005
(File No. 1-13292) [Exhibit 10(u)]
The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan (effective as of October 30, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(r)(2)]
Specimen form of Award Agreement for Nonemployee Directors used
to evidence grants of Time-Based Nonqualified Stock Options
which may be made under The Scotts Miracle-Gro Company 2006
Long-Term Incentive Plan (now known as The Scotts Miracle-Gro
Company Amended and Restated 2006 Long-Term Incentive Plan)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed February 2, 2006 (File No.
1-13292) [Exhibit 10.3]
Specimen form of Stock Unit Award Agreement for Nonemployee
Directors (with Related Dividend Equivalents) used to evidence
grants of Stock Units which may be made under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan (post-December 20, 2007 version)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(l)]
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 (post-February 3, 2008 version)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(m)]
Table of Contents
Exhibit
No.
Description
Location
Specimen form of Award Agreement used to evidence grants of
Restricted Stock Units, Performance Shares, Nonqualified Stock
Options, Incentive Stock Options, Restricted Stock and Stock
Appreciation Rights made under The Scotts Miracle-Gro Company
2006 Long-Term Incentive Plan (now known as The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan) [pre-October 30, 2007 version]
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 2005 (File
No. 1-13292)
[Exhibit 10(b)]
Specimen form of Award Agreement for Employees used to evidence
grants of Nonqualified Stock Options, Restricted Stock,
Performance Shares and Restricted Stock Units made under The
Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan (now
known as The Scotts Miracle-Gro Company Amended and Restated
2006 Long-Term Incentive Plan) [French Specimen]
(pre-November 6, 2007 version)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 30, 2006 (File
No. 1-13292)
[Exhibit 10.4]
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-October 8, 2008 version)
*
Special Restricted Stock Unit Award Agreement for Employees
(with Related Dividend Equivalents) evidencing grant of
Restricted Stock Units made on October 8, 2008 to Mark R.
Baker under The Scotts Miracle-Gro Company Amended and Restated
2006 Long-Term Incentive Plan
*
Special Restricted Stock Unit Award Agreement (with Related
Dividend Equivalents) evidencing grant of Restricted Stock Units
made on November 4, 2008 to Claude Lopez under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan
*
Specimen form of Performance Share Award Agreement for Employees
(with Related Dividend Equivalents) used to evidence grants of
Performance Shares which may be made under The Scotts
Miracle-Gro Company 2006 Long-Term Incentive Plan (now known as
The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan) [post-October 30, 2007 version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(t)(5)]
Special Performance Share Award Agreement (with Related Dividend
Equivalents) evidencing grant of Performance Shares made on
October 30, 2007 to Barry W. Sanders under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan (executed by The Scotts Miracle-Gro Company on
December 20, 2007 and by Barry W. Sanders on
January 7, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007
(File No. 1-13292)
[Exhibit 10(n)]
Table of Contents
Exhibit
No.
Description
Location
Specimen form of Nonqualified Stock Option Award Agreement for
Employees used to evidence grants of Nonqualified Stock Options
made under The Scotts Miracle-Gro Company 2006 Long-Term
Incentive Plan (now known as The Scotts Miracle-Gro Company
Amended and Restated 2006 Long-Term Incentive Plan)
[October 30, 2007 through October 8, 2008 version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(t)(3)]
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-October 8,
2008 version)
*
Special Nonqualified Stock Option Award Agreement for Employees
evidencing grant of Nonqualified Stock Options made on
October 8, 2008 to Mark R. Baker under The Scotts
Miracle-Gro Company Amended and Restated 2006 Long-Term
Incentive Plan
*
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 (French Specimen)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 29, 2008
(File No. 1-13292)
[Exhibit 10(c)(2)]
Form of letter agreement amending grants of Restricted Stock
made under The Scotts Miracle-Gro Company 2006 Long-Term
Incentive Plan (now known as The Scotts Miracle-Gro Company
Amended and Restated 2006 Long-Term Incentive Plan) [effective
as of October 30, 2007]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292)
[Exhibit 10(t)(2)]
Specimen form of Restricted Stock Award Agreement for Employees
used to evidence grants of Restricted Stock made under The
Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan (now
known as The Scotts Miracle-Gro Company Amended and Restated
2006 Long-Term Incentive Plan) [October 30, 2007 through
October 8, 2008 version]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(t)(4)]
Specimen form of Restricted Stock Award Agreement for Employees
used to evidence grants of Restricted Stock which may be made
under The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan (effective October 8, 2008)
*
Special Restricted Stock Award Agreement for Employees
evidencing grant of Restricted Stock made on October 8,
2008 to Dr. Michael Kelty under The Scotts Miracle-Gro
Company Amended and Restated 2006 Long-Term Incentive Plan
*
Table of Contents
Exhibit
No.
Description
Location
Special Restricted Stock Award Agreement for Employees
evidencing grant of Restricted Stock made on October 1,
2008 to Mark R. Baker under The Scotts Miracle-Gro Company
Amended and Restated 2006 Long-Term Incentive Plan
*
Specimen form of Restricted Stock Award Agreement for Employees
used to evidence grants of Restricted Stock which may be made
under The Scotts Miracle-Gro Company Amended and Restated 2006
Long-Term Incentive Plan (French Specimen)
[post-November 6, 2007 version]
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
March 29, 2008
(File No. 1-13292)
[Exhibit 10(c)(1)]
The Scotts Miracle-Gro Company Discounted Stock Purchase Plan
(As Amended and Restated as of January 26, 2006; Reflects
2-for-1
Stock Split Distributed on November 9, 2005)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed February 2, 2006 (File No.
1-13292) [Exhibit 10.1]
Amendment to The Scotts Miracle-Gro Company Discounted Stock
Purchase Plan (effective as of November 6, 2008)
*
Summary of Compensation for Directors of The Scotts Miracle-Gro
Company (effective as of February 4, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007
(File No. 1-13292)
[Exhibit 10(r)]
Employment Agreement, dated as of May 19, 1995, between The
Scotts Company and James Hagedorn
Incorporated herein by reference to Scotts Annual Report
on Form 10-K for the fiscal year ended September 30, 1995 (File
No. 1-11593) [Exhibit 10(p)]
Letter agreement, dated June 5, 2000 and accepted by
Mr. Norton on June 8, 2000, between The Scotts Company
and Patrick J. Norton
Incorporated herein by reference to Scotts Annual Report
on Form 10-K for the fiscal year ended September 30, 2000 (File
No. 1-13292) [Exhibit 10(q)]
Letter agreement, dated November 5, 2002, and accepted by
Mr. Norton on November 22, 2002, pertaining to the
terms of employment of Patrick J. Norton through
December 31, 2005, and superseding certain provisions of
the letter agreement, dated June 5, 2000, between The
Scotts Company and Mr. Norton
Incorporated herein by reference to Scotts Annual Report
on Form 10-K for the fiscal year ended September 30, 2002 (File
No. 1-13292) [Exhibit 10(q)]
Letter of Extension, dated October 25, 2005, between The
Scotts Miracle-Gro Company and Patrick J. Norton
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed December 14, 2005 (File No.
1-13292) [Exhibit 10.3]
Employment Agreement, effective as of October 1, 2007,
between The Scotts Company LLC and Barry W. Sanders (executed by
Mr. Sanders on November 16, 2007 and on behalf of The
Scotts Company LLC on November 19, 2007)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(m)]
Employment Contract for an Unlimited Time, effective as of
July 1, 2001, between The Scotts Company (now known as The
Scotts Company LLC) and Claude Lopez [English
Translation Original in French]
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2007
(File No. 1-13292) [Exhibit 10(n)]
Table of Contents
Exhibit
No.
Description
Location
Employment Agreement for David C. Evans, executed on behalf of
The Scotts Company LLC on November 19, 2007 and by David C.
Evans on December 3, 2007 and effective as of
October 1, 2007
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed December 7, 2007 (File No.
1-13292) [Exhibit 10.1]
Employment Agreement for Denise S. Stump, executed on behalf of
The Scotts Company LLC on November 19, 2007 and by Denise
S. Stump on December 11, 2007 and effective as of
October 1, 2007
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed December 17, 2007 (File No.
1-13292) [Exhibit 10.1]
Employment Agreement for Vincent Brockman, executed on behalf of
The Scotts Miracle-Gro Company and by Vincent Brockman on
May 24, 2006 and effective as of March 1, 2006
(effective until June 1, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007 (File
No. 1-13292)
[Exhibit 10(q)]
Employment Agreement for Vincent C. Brockman, effective as of
June 1, 2008, between The Scotts Company LLC and Vincent C.
Brockman (executed by Mr. Brockman on June 26, 2008
and on behalf of The Scotts Company LLC on June 27, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
June 28, 2008 (File
No. 1-13292)
[Exhibit 10(d)]
Employment Agreement for Mark R. Baker, effective
October 1, 2008, between The Scotts Company LLC and Mark R.
Baker (executed by Mr. Baker on September 9, 2008 and
on behalf of The Scotts Company LLC on September 10, 2008)
*
Amended and Restated Exclusive Agency and Marketing Agreement,
effective as of September 30, 1998, between Monsanto
Company and The Scotts Company LLC (as successor to The Scotts
Company)
Incorporated herein by reference to the Registrants Annual
Report on Form 10-K for the fiscal year ended September 30, 2005
(File No. 1-13292) [Exhibit 10(x)]
Letter Agreement, dated March 28, 2008, amending the
Amended and Restated Exclusive Agency and Marketing Agreement,
dated as of September 30, 1998, between Monsanto Company
and The Scotts Company LLC
*
Master Accounts Receivable Purchase Agreement, dated as of
April 11, 2007, by and among The Scotts Company LLC as
seller, The Scotts Miracle-Gro Company as guarantor and LaSalle
Bank National Association as purchaser (terminated as of
April 9, 2008)
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed April 17, 2007
(File No. 1-13292) [Exhibit 10.1]
First Amendment to Master Accounts Receivable Purchase Agreement
and Waiver, entered into as of October 22, 2007, among The
Scotts Company LLC, The Scotts Miracle-Gro Company and LaSalle
Bank National Association (terminated as of April 9, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007
(File No. 1-13292)
[Exhibit 10(s)]
Second Amendment to Master Accounts Receivable Purchase
Agreement, entered into as of November 30, 2007, among The
Scotts Company LLC, The Scotts Miracle-Gro Company and LaSalle
Bank National Association (terminated as of April 9, 2008)
Incorporated herein by reference to the Registrants
Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 2007
(File No. 1-13292)
[Exhibit 10(t)]
Table of Contents
Exhibit
No.
Description
Location
Termination and Release Agreement, dated as of April 9,
2008, by and among The Scotts Company LLC, The Scotts
Miracle-Gro Company and LaSalle Bank National Association
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed April 15, 2008
(File No. 1-13292)
[Exhibit 10.1]
Master Accounts Receivable Purchase Agreement, dated as of
April 9, 2008, among The Scotts Company LLC as seller, The
Scotts Miracle-Gro Company as guarantor and Bank of America,
N.A. as purchaser
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed April 15, 2008
(File No. 1-13292)
[Exhibit 10.2]
Code of Business Conduct and Ethics of The Scotts Miracle-Gro
Company, as amended on November 2, 2006
Incorporated herein by reference to the Registrants
Current Report on Form 8-K filed November 8, 2006
(File No. 1-13292)
[Exhibit 14]
Subsidiaries of The Scotts Miracle-Gro Company
*
Consent of Independent Registered Public Accounting
Firm Deloitte & Touche LLP
*
Powers of Attorney of Executive Officers and Directors of The
Scotts Miracle-Gro Company
*
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.
Re: | The Scotts Miracle-Gro Company Annual Report on Form 10-K for the fiscal year ended September 30, 2008 |
Very truly yours,
THE SCOTTS MIRACLE-GRO COMPANY |
||||
/s/ David C. Evans | ||||
David C. Evans | ||||
Executive Vice President and Chief Financial Officer | ||||
3.1 | Right to Grandfathered Benefits . At such time as a Participant or Beneficiary receives benefits under the Base Plan, the Employer will pay to the Participant or Beneficiary benefits under this Plan equal to the amount that would have been payable to the |
2
Participant or Beneficiary under the Base Plan without regard to the Base Plan Limit, less the amount paid under the Base Plan (the Grandfathered Benefit). | |
Effective January 1, 1998: |
(a) | If greater than the benefit provided under the preceding paragraph, Craig D. Walley and Paul E. Yeager (or their Beneficiaries) shall each receive, in lieu of the benefit provided under the preceding paragraph, a benefit equal to: |
(i) | the amount that would have been payable to the individual (or his Beneficiary) under the Base Plan assuming the individual were credited with service to the date listed and without regard to: |
(A) | the Base Plan Limit; and | ||
(B) | the freeze of the Base Plan as of December 31, 1997; less |
(ii) | the amount paid under the Base Plan. |
Name | Date | Associate Number | ||||||
Craig D. Walley
|
5/31/98 | 841251 | ||||||
Paul E. Yeager
|
5/31/98 | 690857 |
(b) | Richard D. Bergum, Robert L. Hughes, and William F. ONeil (or their Beneficiaries) shall each receive a benefit equal to: |
(i) | the amount that would have been payable to the individual (or his Beneficiary) under the Base Plan assuming the individual were credited with service to the date listed and without regard to the freeze of the Base Plan as of December 31,1997; less | ||
(ii) | the amount paid under the Base Plan. |
Name | Date | Associate Number | ||||||
Richard D. Bergum
|
12/31/98 | 861154 | ||||||
Robert L. Hughes
|
11/30/99 | 760855 | ||||||
William F. ONeil
|
3/31/98 | 890755 |
3.2 | Right of Offset . If the Committee determines that a person entitled to payment under this Plan or the Participant of whom such person is the Beneficiary is, for any reason, indebted to the Employer or any affiliate, the Committee and the Employer may offset such indebtedness, including any interest accruing thereon, against payments otherwise due under the Plan. | |
3.3 | Reserve . The Company may, but shall not be required to, establish a reserve of assets to provide funds for payments under the Plan. Any such reserve will be on such terms and conditions as are intended to prevent the establishment of the reserve from creating taxable income to the Participants in the Plan. Participants and Beneficiaries will have no interest in such reserve, and the interests of Participants and Beneficiaries under the Plan |
3
will be solely those of general creditors of the Company. Notwithstanding any contrary provision contained herein, this Plan shall be treated as nonqualified and unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended. | ||
3.4 | Reports . The Committee will provide a report of the accrued benefit under this Plan to any Participant on written request. No Participant may request any such report more often than once in any calendar year. | |
3.5 | Withholding . The Employer shall withhold from payments due under the Plan all applicable income and employment taxes. |
4.1 | Membership; Procedures; Authority and Responsibilities . The Administrative Committee will have, in addition to the powers and responsibilities specifically provided for in this Plan, all of the powers and responsibilities provided under the Base Plan that would also apply to the administration and operation of this Plan. Any determination under the Base Plan that is relevant to the administration of this Plan shall also be effective under this Plan. | |
4.2 | Claims and Standard of Review . Participants and Beneficiaries must make any claims for benefits under the Plan under the rules and procedures then in effect under the Base Plan. Any claim for benefits under the Base Plan by a Participant or Beneficiary will be a claim for benefits under this Plan. Notwithstanding any contrary provision in the Base Plan, all decisions regarding eligibility, benefits, vesting, payment time and form, administration and any interpretation of Plan terms, including the resolution of inconsistent provisions or insertion of omitted provisions, shall be those of the Administrative Committee and such Committees acts and decisions shall not be overturned and shall be binding on all individuals and parties unless such acts and decisions are ruled by a court of competent jurisdiction to be arbitrary and capricious. | |
4.3 | Incorporation by Reference . Subject to Plan Section 5.16, the provisions of the Base Plan are hereby incorporated by reference in this Plan to the extent not inconsistent with this Plans terms. | |
4.4 | Suspension of Payments in Event of Dispute . If the Committee is in doubt concerning the right of any person to any payment claimed under this Plan, the Committee may direct the Company to suspend the payment until satisfied as to the right of such person to the payment. The Committee or the Company may file or cause to be filed in any court of competent jurisdiction an appropriate legal action or process in such form as the Committee or the Company deems appropriate, including an interpleader action or an action for declaratory judgment, for a legal determination of the entitlement of any person to any payment claimed to be due under the Plan. The Company and the Committee will comply with any final order of the court in any such suit, subject to appellate review, and the Participant and Beneficiaries will be similarly bound thereby. |
4
5.1 | Amendment and Termination . The Compensation and Organization Committee of the Board or its delegate may at any time and from time to time alter, amend, suspend, or terminate this Plan with or without the consent of any Participant or Beneficiary. Any amendment or termination of the Plan will become effective as to a Participant on the date established by the Company. The Committee may, if it deems it to be in the best interests of the Employer, direct early payment of the actuarial equivalent of the benefits accrued under this Plan based on the actuarial methods, rates and assumptions used in determining the application of the Base Plan Limit under the Base Plan. | |
5.2 | No Contract of Employment . The establishment of the Plan, any modification thereof and/or the making of any payments under the Plan will not give any Participant or other person the right to remain in the service of any Employer, and all Participants and other persons will remain subject to discharge to the same extent as if the Plan had never been adopted. | |
5.3 | Tax Effects . None of the Employer, the Committee, or any firm, person, or corporation represents or guarantees that any particular federal, state or local tax consequences will occur as a result of any Participants participation in this Plan. Each Participant should consult with such Participants own advisors regarding the tax consequences of participation in this Plan. | |
5.4 | Nonalienation of Benefits . Unless required by applicable law, none of the payments, benefits, or rights of any Participant or Beneficiary will be subject to any claim of any creditor of such Participant or Beneficiary, and, to the fullest extent permitted by law, all such payments, benefits, and rights will be free from attachment, garnishment, or any other legal or equitable process available to any creditor of such Participant or Beneficiary. No Participant or Beneficiary will have the right to alienate, anticipate, commute, pledge, encumber, or assign any of the benefits or payments that the Participant or Beneficiary may expect to receive, contingently or otherwise, under the Plan, except the right of a Participant to designate a Beneficiary. | |
5.5 | Assumption . Unless distributions are accelerated pursuant to Section 5.1, the Company will require any successor or assign of the Employer to assume its obligations under this Plan. | |
5.6 | No Trust Created . No term or provision of the Plan or any instrument under the Plan, including but not limited to the establishment of any reserve, shall be deemed to create a trust or fiduciary relationship of any kind. Any reserves maintained in conjunction with the Plan will continue to be part of the assets of the Employer. To the extent that anyone acquires a right to receive payment from the Employer of any amount payable under the Plan, such right will be no greater than the right of an unsecured general creditor of the Employer. | |
5.7 | Limitation of Liability . The liability of the Employer under this Plan is limited to the obligations expressly set forth in the Plan. No term or provision of this Plan may be |
5
construed to impose any further or additional duties, obligations or costs on the Employer or the Committee not expressly set forth in the Plan. |
5.8 | Payments to Minors, etc. The Employer may pay any amount payable to or for the benefit of a minor, an incompetent person or any other person incapable of receipting therefore to such persons guardian, to any trustee or custodian holding assets for the benefit of such person, or to any person providing, or reasonably appearing to provide, for the care of such person, and such payment will fully discharge the Committee and the Employer with respect thereto. | |
5.9 | Notices . Notices under the Plan will be sufficiently made if sent by first class, registered or certified mail addressed (a) to a Participant or Beneficiary at such persons address as set forth in the books and records of the Employer, or (b) to the Employer or the Committee at the principal office of the Company. Participants may change their addresses by notice in the manner above. | |
5.10 | Captions . The headings and captions appearing herein are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of the Plan. | |
5.11 | Entire Agreement; Successors . This Plan reflects the entire agreement or contract between the Employer and the Participants and Beneficiaries regarding the Plan. No Participant or Beneficiary may rely on any oral statement regarding the Plan. This Plan will be binding on the Employer, Participants and Beneficiaries and their respective heirs, administrators, trustees, successors and assigns. | |
5.12 | Partial Invalidity . If any term or provision hereof or the application thereof to any person or circumstance is invalid or unenforceable, the remainder of this Plan, or the application of such term or provision to persons or circumstances other than those as to which it is invalid, will both be unaffected and each term or provision hereof will be valid and be enforced to the fullest extent permitted by law. | |
5.13 | Governing Law . The laws of the State of Ohio applicable to agreements to be performed in the State of Ohio will apply in determining the construction and validity of the Plan and all rights and obligations under the Plan to the extent not preempted under federal law. | |
5.14 | Third Parties . No person may construe anything expressed or implied in this Plan construed to give any person other than Participants and Beneficiaries any rights or remedies under this Plan. | |
5.15 | Saturdays, Sundays and Holidays . Where this Plan authorizes or requires a payment or performance on a Saturday, Sunday or public or banking holiday, such payment or performance may be made on the next succeeding business day. | |
5.16 | Amendment to Base Plan . Notwithstanding any contrary provision in this Plan, with respect to any post October 3, 2004 change, addition, deletion, or modification (together, an Amendment) to the underlying Base Plan where such Amendment is determined to |
6
be or is a material modification, as described under the IRC Section 409A and the regulations promulgated thereunder, such Amendment shall not be applied with respect to the Grandfathered Benefits under this Plan or any form or time of payment applicable to the Grandfathered Benefit. |
THE SCOTTS COMPANY LLC
|
||||
By: | /s/ Denise S. Stump | |||
Denise S. Stump, Executive Vice President, Global Human Resources | ||||
7
8
(a) | Board Composition . Individuals who, as of July 1, 2008, constitute the Board (the Incumbent Board) cease, within a 12-month period, for any reason (other than death) to constitute at least a majority of the Board; provided , however , that any individual becoming a director subsequent to such date whose appointment, election, or nomination for election by the Corporations shareholders, was endorsed by at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board; or | ||
(b) | Stock Acquisition . (A) One or more acquisitions, by any individual, entity or group (within the meanings of Treas. Reg. §§ 1.409A-3(i)(5)(v)(B) and (vi)(D)) (a Person) of 30% or more of the then outstanding voting securities of the Corporation (the Outstanding Voting Securities), during any 12-month period ending on the date of the most recent acquisition by that Person; or (B) an acquisition that results in ownership by a Person of either ( y ) shares representing more than 50% of the total fair market value of the Corporations then outstanding stock (the Outstanding Stock) or ( z ) shares representing more than 50% of the then Outstanding Voting Securities; provided , however , that for purposes of this paragraph (b), the following acquisitions of shares of the Corporation shall not be taken into account in the determination of whether a Change of Control has occurred: (1) any acquisition directly from the Corporation; (2) any cash acquisition by the Corporation or an Affiliate; (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Corporation or an Affiliate; (4) an acquisition by a Person that prior to the acquisition had already acquired more shares than necessary to satisfy the applicable 30% or 50% threshold; or (5) any acquisition by the Hagedorn Partnership, L.P. or any party related to the Hagedorn Partnership, L.P., as determined by the Committee; or |
2
(c) | Business Combination . Consummation of a reorganization, merger or consolidation of the Corporation (a Business Combination), in each case, that results in either a change in ownership contemplated in subparagraph (B) of paragraph (b) above or a change in the Incumbent Board contemplated by paragraph (a) above; or | ||
(d) | Sale or Disposition of Assets . One or more Persons acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Persons) assets from the Corporation that have a total gross fair market value equal to more than 40% of the total gross fair market value of all of the assets of the Corporation (without regard to liabilities of the Corporation or associated with such assets) immediately before such acquisition or acquisitions; provided that such sale or disposition is not to: |
(i) | a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to the Corporations Outstanding Stock; | ||
(ii) | an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by the Corporation; | ||
(iii) | a Person that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Corporation; or | ||
(iv) | an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a Person described in paragraph (d)(iii) above. |
Except as otherwise specifically provided in paragraph (d)(i) above, a Persons status is determined immediately after the transfer. |
3
4
3.1. | Non Grandfathered Benefits . The Employer will pay to a Participant or Beneficiary benefits under this Plan equal to the amount that would have been payable to the Participant or Beneficiary under the Base Plan without regard to the Base Plan Limit, less the amount paid under the Base Plan (the Non Grandfathered Benefit). The Non Grandfathered Benefit under this Plan shall be based on the actuarial methods, rates and assumptions used in determining the Base Plan benefit. | |
3.2. | Right of Offset . If the Committee determines that a person entitled to payment under this Plan or the Participant of whom such person is the Beneficiary is, for any reason, indebted to the Company or its Affiliate, the Committee and the Company may offset such indebtedness, including any interest accruing thereon, against payments otherwise due under the Plan provided that: |
(A) | such debt is incurred in the ordinary course of the service relationship between the Participant and the Company; | ||
(B) | in any taxable year of the Company the entire amount of reduction does not exceed $5,000; and | ||
(C) | the reduction is made at the same time and in the same amount as the debt otherwise would have been due and collected from the Participant. |
An election by the Company not to offset such indebtedness against the Plan payment will not constitute a waiver of the Companys claim for such indebtedness or obligation. | ||
3.3. | Forfeiture . If a Participant at any time (a) is convicted of a felony or a misdemeanor involving dishonesty or fraud on the part of such Participant, or commits any act of dishonesty or breach of good faith with respect to the Employer, (b) conducts, or becomes associated in any capacity with, a business which competes with the Employer, or (c) discloses to any person not associated with the Employer other than as required for the performance of the Participants job with the Employer any confidential information of the Employer, all benefits of such Participant under the Plan will be forfeited. Notwithstanding the foregoing, a Participant will not forfeit benefits solely because the Participant (1) owns a non-controlling block of publicly traded shares of stock of a corporation that competes with the Employer, or (2) (a) acts as a consultant for, (b) has an investment in, or (c) is a board member or officer of a business, where after the Participant notifies the Company in writing in advance of his potential involvement, the Company consents to such association. | |
3.4. | Time and Form of Payment . |
5
3.5. | Reserve . The Company may, but shall not be required to, establish a reserve of assets to provide funds for payments under the Plan. Any such reserve will be on such terms and conditions as are intended to prevent the establishment of the reserve from creating taxable income to the Participants in the Plan. Participants and Beneficiaries will have no interest in such reserve, and the interests of Participants and Beneficiaries under the Plan will be solely those of general creditors of the Company. Notwithstanding any contrary provision contained herein, this Plan shall be treated as nonqualified and unfunded for tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended. |
6
3.6. | Reports . The Committee will provide a report of the accrued benefit under this Plan to any Participant on written request. No Participant may request any such report more often than once in any calendar year. | |
3.7. | Withholding . The Employer shall withhold from payments due under the Plan all applicable income and employment taxes. |
4.1. | Membership; Procedures; Authority and Responsibilities . The Administrative Committee will have, in addition to the powers and responsibilities specifically provided for in this Plan, all of the powers and responsibilities provided under the Base Plan that would also apply to the administration and operation of this Plan. Any determination under the Base Plan that is relevant to the administration of this Plan shall also be effective under this Plan. | |
4.2. | Claims and Standard of Review . Participants and Beneficiaries must make any claims for benefits under the Plan under the rules and procedures then in effect under the Base Plan. Notwithstanding any contrary provision in the Base Plan, all decisions regarding eligibility, benefits, vesting, administration and any interpretation of Plan terms, including the resolution of inconsistent provisions or insertion of omitted provisions, shall be those of the Administrative Committee and such Committees acts and decisions shall not be overturned and shall be binding on all individuals and parties unless such acts and decisions are ruled by a court of competent jurisdiction to be arbitrary and capricious. | |
4.3. | Incorporation by Reference . The provisions of the Base Plan are incorporated by reference in this Plan only to the extent so stated. | |
4.4. | Suspension of Payments in Event of Dispute . If the Committee is in doubt concerning the right of any person to any payment claimed under this Plan, the Committee may direct the Company to suspend the payment until satisfied as to the right of such person to the payment. The Committee or the Company may file or cause to be filed in any court of competent jurisdiction an appropriate legal action or process in such form as the Committee or the Company deems appropriate, including an interpleader action or an action for declaratory judgment, for a legal determination of the entitlement of any person to any payment claimed to be due under the Plan. The Company and the Committee will comply with any final order of the court in any such suit, subject to appellate review, and the Participant and Beneficiaries will be similarly bound thereby. |
5.1. | Amendment and Termination . The Company or its delegate may at any time and from time to time alter, amend, or suspend the terms of the Plan without the consent of the Participant or Beneficiary provided that no such alteration, amendment, or suspension either accelerates the payment of the Non Grandfathered Benefit or delays such payment resulting in a subsequent deferral of compensation. The Company may also terminate and liquidate the Plan without the consent of the Participant or Beneficiary. Any such liquidation and termination of the Plan shall be made in accordance with the termination |
7
and liquidation requirements of and under the circumstances described under Treasury Regulations 1.409A-3(j)(4)(ix). Any amendment or termination of the Plan will become effective as to a Participant on the date established by the Company. If the Company curtails or terminates this Plan, or suspends permanently the making of additional credits, the benefits due Participants will be the lesser of the amounts payable based on the terms of the Base Plan in effect and the Participants compensation and service history at the time of the curtailment, termination or suspension or such amount determined at the time benefits are payable, and the Company will continue to be responsible for making payments attributable to such rights. | ||
5.2. | No Contract of Employment . The establishment of the Plan, any modification thereof and/or the making of any payments under the Plan will not give any Participant or other person the right to remain in the service of any Employer, and all Participants and other persons will remain subject to discharge to the same extent as if the Plan had never been adopted. | |
5.3. | Tax Effects . None of the Employer, the Committee, or any firm, person, or corporation represents or guarantees that any particular federal, state or local tax consequences will occur as a result of any Participants participation in this Plan. Each Participant should consult with such Participants own advisors regarding the tax consequences of participation in this Plan. | |
5.4. | Nonalienation of Benefits . Except to the extent required by law or as provided in Section 3.2., none of the payments, benefits, or rights of any Participant or Beneficiary will be subject to any claim of any creditor of such Participant or Beneficiary, and, to the fullest extent permitted by law, all such payments, benefits, and rights will be free from attachment, garnishment, or any other legal or equitable process available to any creditor of such Participant or Beneficiary. No Participant or Beneficiary will have the right to alienate, anticipate, commute, pledge, encumber, or assign any of the benefits or payments that the Participant or Beneficiary may expect to receive, contingently or otherwise, under the Plan, except the right of a Participant to designate a Beneficiary. | |
5.5. | Assumption . The Company will require any successor or assign of the Employer to assume its obligations under this Plan. | |
5.6. | No Trust Created . No term or provision of the Plan or any instrument under the Plan, including but not limited to the establishment of any reserve, shall be deemed to create a trust or fiduciary relationship of any kind. Any reserves maintained in conjunction with the Plan will continue to be part of the assets of the Employer. To the extent that anyone acquires a right to receive payment from the Employer of any amount payable under the Plan, such right will be no greater than the right of an unsecured general creditor of the Employer. | |
5.7. | Limitation of Liability . The liability of the Employer under this Plan is limited to the obligations expressly set forth in the Plan. No term or provision of this Plan may be construed to impose any further or additional duties, obligations or costs on the Employer or the Committee not expressly set forth in the Plan. |
8
5.8. | Payments to Minors, etc . The Employer may pay any amount payable to or for the benefit of a minor, an incompetent person or any other person incapable of receipting therefore to such persons guardian, to any trustee or custodian holding assets for the benefit of such person, or to any person providing, or reasonably appearing to provide, for the care of such person, and such payment will fully discharge the Committee and the Employer with respect thereto. | |
5.9. | Notices . Notices under the Plan will be sufficiently made if sent by first class, registered or certified mail addressed (a) to a Participant or Beneficiary at such persons address as set forth in the books and records of the Employer, or (b) to the Employer or the Committee at the principal office of the Company. Participants may change their addresses by notice in the manner above. | |
5.10. | Captions . The headings and captions appearing herein are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of the Plan. | |
5.11. | Entire Agreement; Successors . This Plan reflects the entire agreement or contract between the Employer and the Participants and Beneficiaries regarding the Plan. No Participant or Beneficiary may rely on any oral statement regarding the Plan. This Plan will be binding on the Employer, Participants and Beneficiaries and their respective heirs, administrators, trustees, successors and assigns. | |
5.12. | Partial Invalidity . If any term or provision hereof or the application thereof to any person or circumstance is invalid or unenforceable, the remainder of this Plan, or the application of such term or provision to persons or circumstances other than those as to which it is invalid, will both be unaffected and each term or provision hereof will be valid and be enforced to the fullest extent permitted by law. | |
5.13. | Governing Law . The laws of the State of Ohio applicable to agreements to be performed in the State of Ohio will apply in determining the construction and validity of the Plan and all rights and obligations under the Plan to the extent not preempted under federal law. | |
5.14. | Third Parties . No person may construe anything expressed or implied in this Plan construed to give any person other than Participants and Beneficiaries any rights or remedies under this Plan. | |
5.15. | Saturdays, Sundays and Holidays . Where this Plan authorizes or requires a payment or performance on a Saturday, Sunday or public or banking holiday, such payment or performance may be made on the next succeeding business day. |
9
THE SCOTTS COMPANY LLC | ||||||
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By: | /s/ Denise S. Stump | ||||
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Name: |
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Its: | Executive Vice President, Global Human | ||||
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Resources |
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AGREED AND ACKNOWLEDGED:
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EMPLOYEE: | THE SCOTTS COMPANY | |||||||
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By: | /s/ Denise Stump | ||||||
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Denise Stump, EVP Human Resources | ||||||||
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Printed Name | Printed Name | |||||||
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Date
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Date of Employee Confidentiality, | ||
Name and Principal Position | Noncompetition, Nonsolicitation | |
with The Scotts Miracle-Gro Company | Agreement | |
Barry W. Sanders, Executive Vice President, North America
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April 22, 2005 | |
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Vincent C. Brockman, Executive Vice President, General Counsel and Corporate
Secretary
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May 11, 2006 | |
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David C. Evans, Executive Vice President, Chief Financial Officer
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May 20, 2006 | |
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Michael C. Lukemire, Executive Vice President, Global Technology & Operations
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June 26, 2006 | |
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Denise S. Stump, Executive Vice President, Global Human Resources
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August 8, 2006 | |
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Mark R. Baker, President and Chief Operating Officer
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September 29, 2008 | |
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Michael P. Kelty, Executive Vice President
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November 13, 2008 |
Section | Page | |||
1 Trust
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2 | |||
(a) Establishment
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(b) Grantor Trust
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(c) Trust Assets
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(d) Non-Assignment
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(e) Irrevocability
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(f) Income
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2 Payments to Sponsor
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3 | |||
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3 Disbursements
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3 | |||
(a) Directions from Sponsor
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(b) Plan Claims
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(c) Limitations
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4 Investment of Trust
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4 | |||
(a) Selection of investment Options
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(b) Available Investment Options
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(c) Investment Directions
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(d) Mutual Funds
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(e) Sponsor Stock
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(f) Trustee Powers
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5 Recordkeeping and Administrative Services to Be Performed
|
10 | |||
(a) General
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(b) Accounts
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(c) Inspection and Audit
|
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(d) Effect of Plan Amendment
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(e) Returns, Reports and Information
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|
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6 Compensation and Expenses
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11 | |||
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7 Directions and Indemnification
|
11 | |||
(a) Identity of Administrator
|
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(b) Directions from Administrator
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(c) Directions from Participants
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(d) Indemnification
|
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(e) Survival
|
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|
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8 Resignation or Removal of Trustee
|
12 | |||
(a) Resignation
|
||||
(b) Removal
|
||||
(c) Transfer of Trust Assets
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(d) Successor
|
||||
|
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9 Successor Trustee
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13 | |||
(a) Appointment
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i
Section | Page | |||
9 Successor Trustee
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(b) Acceptance
|
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(c) Corporate Action
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10 Termination
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13 | |||
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11 Resignation, Removal, and Termination Notices
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13 | |||
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12 Duration
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13 | |||
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13 Insolvency of Sponsor
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13 | |||
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14 Amendment or Modification
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15 | |||
|
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15 General
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15 | |||
(a) Performance by Trustee, its Agents or Affiliates
|
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(b) Entire Agreement
|
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(c) Waiver
|
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(d) Successors and Assigns
|
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(e) Partial Invalidity
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(f) Section Headings
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16
Governing Law
|
16 | |||
(a) Massachusetts Controls
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(b) Trust Agreement Controls
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Schedules
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|
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A. Recordkeeping and Administrative Services
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B. Fee Schedule
|
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C. Administrators Authorization Letter
|
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D. Telephone Exchange Guidelines
|
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E. Operational Guidelines for Non-Fidelity Mutual Funds
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ii
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3
4
5
6
7
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10
11
12
13
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15
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THE SCOTTS COMPANY | ||||||||
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Attest:
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/s/ Susan Duvall | By: | /s/ Rosemary L. Smith | |||||
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FIDELITY MANAGEMENT TRUST | ||||||||
COMPANY | ||||||||
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Attest:
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/s/ Douglas O. Kent | By: | /s/ Joseph DiBenedetto | |||||
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17
| Establishment and maintenance of participant account and election percentages. | |
| Maintenance of 12 plan investment options: |
| Fidelity Puritan | ||
| Fidelity Spartan US Equity Index | ||
| Fidelity Blue Chip Growth | ||
| Fidelity Contrafund | ||
| Barron Asset Fund | ||
| Fidelity World Wide | ||
| Scotts Stock Fund | ||
| Freedom Retirement Income | ||
| Freedom 2000 | ||
| Freedom 2010 | ||
| Freedom 2020 | ||
| Freedom 2030 |
| Maintenance of 6 money classifications: |
| Employee Pre-Tax | ||
| Employee After-Tax | ||
| Bonus Deferral | ||
| Rollover | ||
| Employer Match | ||
| Retirement Contributions |
| Processing of mutual fund trades. | |
| The Trustee will provide only the recordkeeping and administrative services set forth on this Schedule A and no others. |
| Monthly processing of contribution data. | |
| Daily processing of transfers and changes of future allocations. | |
| Monthly processing of withdrawals. | |
| Monthly processing of transfers and changes of future allocations from stock fund |
| Prepare and mail to the participant, a confirmation of the transactions (exchanges and changes to investment mix elections) within five (5) business days of the participants instructions. |
18
| Prepare, reconcile and deliver a monthly Trial Balance Report presenting all money classes and investments. This report is based on the market value as of the last business day of the month. The report will be delivered not later than thirty (30) days after the end of each month in the absence of unusual circumstances. | |
| Prepare, reconcile and deliver a Quarterly Administrative Report presenting both on a participant and a total plan basis all money classes, investment positions and a summary of all activity of the participant and plan as of the last business day of the quarter. The report will be delivered not later that thirty (30) days after the end of each quarter in the absence of unusual circumstances. | |
| Prepare and distribute, either to the Sponsor or to each plan participant directly, a quarterly detailed participant statement reflecting all activity for the period. Statements will be delivered not later than thirty (30) days after each quarter in the absence of unusual circumstances. | |
| Reconcile and process, on a quarterly basis, participant withdrawal requests as approved and directed by the Sponsor. | |
| Handle Federal and State income tax reporting and withholding on benefit payments to participants and their beneficiaries. | |
| Issuance of a Form 1099-DIV and Form 1099-B to the Sponsor for each mutual fund for the calendar year end. | |
| Employee communications describing available investment options, including multimedia informational materials and group presentations. |
ADMINISTRATOR | FIDELITY MANAGEMENT TRUST | |||||||||
COMPANY | ||||||||||
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By:
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/s/ Rosemary L. Smith 1/7/97 | By: | /s/ Joseph DiBenedetto | 1/23/98 | ||||||
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Date | Vice President | Date |
19
|
Annual Participant Fee | $5,000 per year*, billed and payable quarterly. | ||
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Remote Access Fee (optional) | $1,000 per year, plus a monthly charge for TYMNET usage. A one-time installation fee of $1,500 will also be charged to the Sponsor in the first year. |
| This fee will be imposed pro rata for each calendar quarter, or any part thereof, that it remains necessary to maintain a participants account(s) as part of the Plans records, e.g., vested, deferred, forfeiture, top-heavy and terminated participants who must remain on file through calendar year-end for reporting purposes. |
|
Outside Mutual Funds | An annual administrative service fee shall be paid to Fidelity by each mutual fund not advised by Fidelity Management & Research Company equal to a percentage (currently 25 basis points) of the Plan assets invested in that mutual fund. |
| An annual fee equal to .02 percent of the assets held in the Trust, subject to a $2,500.00 minimum and a $5,000.00 maximum per year, billed and payable quarterly. |
ADMINISTRATOR | FIDELITY MANAGEMENT TRUST | |||||||||
COMPANY | ||||||||||
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By:
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/s/ Rosemary L. Smith 1/7/97 | By: | /s/ Joseph DiBenedetto | 1/23/98 | ||||||
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Date | Vice President | Date |
20
21
Exchanges Between Mutual Funds | ||
Participants may call on any business day to exchange between the mutual funds. If the request is received before 4:00 p.m. (ET), it will receive that days trade date. Calls received after 4:00 p.m. (ET) will be processed on a next business day basis. |
I. | Exchanges from Mutual Funds Into Sponsor Stock | |
Sponsor Stock exchanges are processed on a monthly cycle. Participants who wish to exchange out of a mutual fund into Sponsor Stock may call at any time. However, such requests shall be processed only between the 1st and the 15th of the month. No calls will be accepted after 4:00 p.m. (ET) on the 15th (or previous business day if the 15th is not a business day). | ||
Mutual fund shares are sold on the 15th of the month (or the previous business day if the 15th is not a business day) and the Sponsor Stock is purchased within two (2) business days after the date on which the mutual fund shares are sold. | ||
II. | Exchanges from Sponsor Stock into Mutual Funds | |
Participants who wish to exchange out of Sponsor Stock into mutual funds may call at any time. However, such requests shall be processed only between the 1st and the 15th of the month. No calls will be accepted after 4:00 p.m. (ET) on the 15th (or previous business day if the 15th is not a business day). | ||
The Sponsor Stock is sold on the 16th (or the next business day if the 16th is not a business day) and the subsequent purchase into mutual funds will take place three (3) business days later. This allows for settlement of the stock trade at the custodian and the corresponding transfer to Fidelity. |
22
23
24
(1) | Amending the investment options section of Schedule A to add the following: |
- | Fidelity Money Market Trust: Retirement Money Market Portfolio |
(2) | Amending the money classifications section of Schedule A to add the following: |
- | Incentive Deferral |
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
|||||||||||
|
||||||||||||
By:
|
/s/ Rosemary L. Smith 3/23/98 | By: | /s/ Joseph DiBenedetto | 4/7/08 | ||||||||
|
Date | Vice President | Date |
(1) | Amending and restating the money classifications section of Schedule A as follows: | ||
Maintenance of the following money classifications: |
- | Salary Deferral | ||
- | Excess Employer Match | ||
- | Excess Retirement Contributions | ||
- | Excess Transitional Contributions | ||
- | Incentive Deferral |
THE SCOTTS COMPANY | ||||||||||||
|
||||||||||||
By:
|
/s/ Rosemary L. Smith 1/15/99 | By: | /s/ Rosemary L. Smith | 1/15/99 | ||||||||
|
Date | Vice President | Date | |||||||||
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FIDELITY MANAGEMENT TRUST
COMPANY |
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|
By: | /s/ Carolyn Redden | 2/19/99 | |||||||||
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Vice President |
|
(1) | Adding a new Section 15, Electronic Services , as follows, and renumbering all subsequent subsections accordingly: | ||
Section 15. Electronic Services . |
(2) | Amending the investment options portion of Schedule A by adding the following: |
| PIMCO Total Return Fund |
(3) | Amending Schedule B by restating the first bullet point as follows: |
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
|||||||||||
|
||||||||||||
By:
|
/s/ Rosemary L. Smith 6/11/99 | By: | /s/ Carolyn Redden | 6/28/99 | ||||||||
|
Date | Vice President | Date |
-2-
(1) | Amending the first WHEREAS Clause to read as follows: | ||
WHEREAS, the Sponsor is the sponsor of The Scotts Company Executive Retirement Plan (the Plan); and | |||
(2) | Amending the first sentence of Section 1 to read as follows: | ||
Section 1. Trust . The Sponsor hereby establishes The Scotts Company Executive Retirement Plan Trust (the Trust), with the Trustee. | |||
(3) | Amending Section 7(d), Indemnification to add the following. | ||
Special Indemnification for Fidelity PortfolioPlanner(SM). The Trustee shall indemnify the Sponsor against and hold the Sponsor harmless from any and all such loss, damage, penalty, liability, cost, and expense, including without limitation, reasonable attorneys fees and disbursements, that may be incurred by, imposed upon, or asserted against the Sponsor solely as a result of a) any defects in the investment methodology embodied in the target asset allocation or model portfolio provided through Fidelity PortfolioPlanner, except to the extent that any such loss, damage, penalty, liability, cost or expense arises from information provided by the participant, the Sponsor or third parties; or b) any prohibited transactions resulting from the provision by the Trustee of Fidelity PortfolioPlanner. |
(4) | Amending the Other section of Schedule A by adding the following: |
| Fidelity PortfolioPlanner (SM), an internet-based educational service for participants that generates target asset allocations and recommended model portfolios customized to investment options in the Plan(s) based upon methodology provided by Strategic Advisers, Inc., an affiliate of the Trustee. The Sponsor acknowledges that it has received the ADV Part II for Strategic Advisers, Inc. more than 48 hours prior to executing the Trust amendment. |
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
|||||||||||
|
||||||||||||
By:
|
/s/ Rosemary L. Smith 7/30/99 | By: | /s/ Carolyn Redden | 8/25/99 | ||||||||
|
Date | Vice President | Date |
-2-
1. | Adding the following at the end of Section 1(a): | |
This Trust also will serve as a source of funds to assist any Affiliate to meet its liabilities under the Plan. For purposes of the Plan, Affiliate means any entity that is under common control with the Sponsor within the meaning of Sections 414(b) and (c) of the Internal Revenue Code of 1986, as amended. Any property that is contributed to the Trust by the Sponsor (including Sponsor Stock) to meet any liability accrued by Plan participants who are employed by an Affiliate and which is not distributed during the term of this Trust to meet liabilities under the Plan will revert to the Sponsor when the Trust is liquidated as provided in Section 10. | ||
2. | Adding the following new subsection to Section 13: |
THE SCOTTS COMPANY | FIDELITY MANAGEMENT TRUST COMPANY | |||||||||
|
||||||||||
By:
|
/s/ George A. Murphy | By: | /s/ Carolyn Redden | |||||||
|
|
|
||||||||
|
Global Compensation and Benefits | Title: | Vice President | |||||||
|
||||||||||
|
||||||||||
Date:
|
12/20/2000 | Date: | 5/16/01 | |||||||
|
(1) | Restating Section 4(e) in its entirety, as follows: |
2
3
(2) | Restating Schedule D in its entirety as attached hereto. | ||
(3) | Adding Schedule F as attached hereto. |
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
|||||||||||
|
||||||||||||
By:
|
/s/ Karen Barrett 11/29/01 | By: | /s/ Carolyn Redden | 12/20/01 | ||||||||
|
Date | Vice President | Date |
4
5
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
|||||||||||
|
||||||||||||
By:
|
/s/ Karen Barrett 11/28/01 | By: | /s/ Carolyn Redden | 12/20/01 | ||||||||
|
Date | Vice President | Date |
6
1. | Withdrawals and distributions will be aggregated and placed first in the hierarchy. If Available Liquidity is sufficient for the aggregate of such transactions, all such withdrawals and distributions will be honored. If Available Liquidity is not sufficient for the aggregate of such transactions, then such transactions will be suspended, and no transactions requiring a sale of Sponsor Stock Fund units shall be honored for that day. |
2. | If Available Liquidity has not been exhausted by the aggregate of withdrawals and distributions, then all remaining transactions involving a sale of units in the Sponsor Stock Fund (exchanges out) shall be grouped on the basis of when such requests were received, in accordance with standard procedures maintained by the Trustee for such grouping as they may be amended from time to time. To the extent of Available Liquidity, groups of exchanges out of the Sponsor Stock Fund shall be honored, by group, on a first in, first out basis. If Available Liquidity is insufficient to honor all exchanges out within a group, then none of the exchanges out in such group shall be honored, and no exchanges out in a later group shall be honored. |
3. | Transactions not honored on a particular day due to insufficient Available Liquidity shall be honored, using the hierarchy specified above, on the next business day on which there is Available Liquidity. |
7
(1) | Amending the investment options section of Schedule A, to add the following: |
| Fidelity Low-Priced Stock Fund | ||
| Fidelity Freedom 2040 Fund® | ||
| Managers Special Equity Fund | ||
| Dodge & Cox Stock Fund | ||
| EuroPacific Growth Fund Class A |
(2) | Effective October 1, 2002 , amending the investment options section of Schedule A, to reflect that the Baron Asset Fund and the Fidelity Worldwide Fund are frozen to incoming contributions and exchanges in . | ||
(3) | Amending and restating the Outside Mutual Funds section of Schedule B, as follows: |
|
Non-Fidelity Mutual Funds: | Non-Fidelity Mutual Fund vendors shall pay fees directly to Fidelity Investments Institutional Operations Company, Inc. (FIIOC) or its affiliates equal to such percentage (generally 25 to 50 basis points) of plan assets invested in such Non-Fidelity Mutual Funds as may be disclosed periodically, or, in the case of the following |
|
investment options, in the amounts listed below: | |||
|
||||
|
Dodge & Cox Stock Fund: 10 basis points. | |||
|
||||
|
EuroPacific Growth Fund Class A: 25 basis points, and $3.00 per Participant, per year. | |||
|
||||
|
Unless otherwise noted, disclosure shall be posted and updated quarterly on Plan Sponsor Webstation at https://psw.fidelity.com or a successor site. |
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
|||||||||||
|
||||||||||||
By:
|
/s/ George A. Murphy | 8/20/02 | By: | /s/ Roberta Coen | 9/5/02 | |||||||
|
Date | FMTC Authorized Signatory | Date |
2
(1) | Amending the investment options section of Schedule A, to delete the following: |
| Baron Asset Fund | ||
| Fidelity Worldwide Fund |
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
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By:
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/s/ George A. Murphy 12/31/02 | By: | /s/ Rina Mayman | 2/4/03 | ||||||||
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Date | FMTC Authorized Signatory | Date |
(1) | Amending the investment options section of Schedule A, to add the following: |
| CRM Small Cap Value Fund Investor Class |
THE SCOTTS COMPANY |
FIDELITY MANAGEMENT TRUST
COMPANY |
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By:
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/s/ Pam Kuryla | By: | /s/ Linda Trent | 11/10/2004 | ||||||||
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FMTC Authorized Signatory | Date | ||||||||||
Name:
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Title:
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Director, Benefits | |||||||||||
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Date:
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10/8/2004 | |||||||||||
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(1) | Restating Section 4(e) Sponsor Stock , in its entirety, as follows: | ||
(e) | Sponsor Stock. |
(i) | Acquisition Limit. |
(ii) | Duty. |
(iii) | Purchases and Sales of Sponsor Stock for Batch Activity. |
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(v) | Use of an Affiliated Broker. |
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(vi) | Securities Law Reports. |
(vii) | Voting and Tender Offers. |
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(viii) | General. |
(ix) | Conversion. |
(2) | Restating the Non-Fidelity Mutual Funds section of Schedule B, in its entirety, as follows: |
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Non-Fidelity Mutual Funds: | Fees paid directly to Fidelity Investments Institutional Operations Company, Inc. (FIIOC) or its affiliates by Non-Fidelity Mutual Fund vendors shall be posted and updated quarterly on Plan Sponsor Webstation at http://psw.fidelity.com or a successor site. |
(3) | Deleting the Remote Access Fee section of Schedule B in its entirety. | ||
(4) | Restating the Trustee Fees section of Schedule B in its entirety, as follows: |
(5) | Restating Schedule D, Exchange Guidelines, in its entirety, as attached hereto. | ||
(6) | Deleting Schedule F in its entirety. |
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THE SCOTTS COMPANY LLC |
FIDELITY MANAGEMENT TRUST
COMPANY |
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By:
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/s/ Pam Kuryla | By: | /s/ Stephanie Sheehan | 11/20/06 | ||||||||
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FMTC Authorized Signatory | Date | ||||||||||
Name:
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Pam Kuryla | |||||||||||
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Title:
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Director, Benefits | |||||||||||
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Date:
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9/26/06 | |||||||||||
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| Exchanges from Other Investment Options into Sponsor Stock | |
Exchanges from a Plan investment option into Sponsor Stock will be processed after execution of the buy trade, at the next calculated net asset value (NAV) of the Plan investment option. | ||
Sponsor Stock will be reflected in the Participants individual account in the Plan on the Business Day following execution of the trade. | ||
| Exchanges from Sponsor Stock into Other Plan Investment Options |
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Exchanges out of Sponsor Stock will be processed after execution of the sell trade. Except as otherwise provided in this Schedule, the subsequent exchange into the other Plan investment option will be processed upon settlement day of the sell trade, at the last calculated NAV for such date. | ||
Shares of the other Plan investment option will be reflected in the Participants account on the following Business Day. | ||
| Additional Real Time Trading Restrictions | |
All exchange requests involving Sponsor Stock must be made in shares of stock, even if the Plan allows for percentage and dollar amount exchanges. If a Participant wishes to exchange out his or her entire balance in Sponsor Stock (or, if applicable, his or her entire balance in Sponsor Stock in a single source), the associated trade must be placed in whole shares, and fractional shares will be processed at the price determined by the Participant-directed trade. Exchange requests accompanied by certain order types may not be accepted outside of normal trading hours. Trade requests accompanying exchange requests that do not adhere to the Trustees standard guidelines, or that would violate securities exchange rules, may result in rejection or cancellation of the associated exchange request. | ||
Exchanges from one stock fund to another or from a Participant-directed brokerage account to Sponsor Stock are not permitted. | ||
Exchanges into Sponsor Stock shall be subject to minimum reserves on the investment option used to fund the exchange, as established by the Trustee from time to time (or such higher reserves as the Sponsor directs in writing). Exchanges in excess of the minimum reserve are prohibited. |
THE SCOTTS COMPANY LLC | ||||
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By:
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/s/ Pam Kuryla | |||
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Name:
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Pam Kuryla | |||
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Title:
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Director, Benefits | |||
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Date:
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9/26/06 | |||
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(1) | Effective March 18, 2005, changing the title of the Trust to The Scotts Company LLC Executive Retirement Plan Trust. | ||
(2) | Effective March 18, 2005, amending and restating the first paragraph of the Trust Agreement, as follows: | ||
TRUST AGREEMENT, dated as of the first day of January, 1998, between THE SCOTTS COMPANY LLC, an Ohio limited liability company, having an office at 14111 Scottslawn Road, Marysville, OH 43041 (the Sponsor) and FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an office at 82 Devonshire Street, Boston, Massachusetts 02109 (the Trustee). |
(3) | Effective March 18, 2005, amending and restating the first WHEREAS clause, in its entirety, as follows: | |
WHEREAS, the Sponsor is the sponsor of The Scotts Company LLC Executive Retirement Plan (the Plan); and | ||
(4) | Effective March 18, 2005, amending the first sentence of Section 1 to read as follows: | |
Section 1. Trust . The Sponsor hereby establishes The Scotts Company LLC Executive Retirement Plan Trust, with the Trustee. | ||
(5) | Amending the second sentence of Section 4, part (b) to read as follows; | |
The Sponsor may determine to offer as investment options only (i) equity securities issued by the Sponsor or an Affiliate which are publicly traded (Sponsor Stock), and (ii) securities issued by any investment companies advised by Fidelity Management & Research Company and certain investment companies not advised by Fidelity Management & Research Company (Mutual Funds), identified on Schedule A attached hereto; provided, however, that the Trustee shall not be considered a fiduciary with investment discretion. | ||
(6) | Amending the first sentence of Section 13, part (b)(i) as follows: | |
The Board of Directors, the Chief Executive Officer, or another officer of the Sponsor with an equivalent authority shall have the duty to inform Trustee in writing of Sponsors Insolvency. |
THE SCOTTS COMPANY
LLC
(F/K/A THE SCOTTS COMPANY) |
FIDELITY MANAGEMENT TRUST
COMPANY |
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By:
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/s/ Pam Kuryla 2/9/07 | By: | /s/ Stephanie Sheehan | 3/2/07 | ||||||
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Its Authorized Signatory Date | Its Authorized Signatory | Date |
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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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MARK R. BAKER | THE SCOTTS MIRACLE-GRO COMPANY | |||||||
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By:
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/s/ Mark R. Baker | By: | /s/ Denise S. Stump | |||||
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Date signed: | 10/30/08 | [Name of Company Representative] | ||||||
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[Title of Company Representative] | ||||||||
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Date signed: | 10/20/08 | ||||||
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CLAUDE LOPEZ | THE SCOTTS MIRACLE-GRO COMPANY | |||||||
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/s/
Claude Lopez
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By: | /s/ Denise S. Stump | ||||||
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Date signed: | 11/13/08 | [Name of Company Representative] | ||||||
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[Title of Company Representative] | ||||||||
Date signed: 11/5/08 | ||||||||
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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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| 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. | ||
| 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. |
| 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; | ||
| 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 | ||
| 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. |
[Grantees Name] | ||||
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(signature) | ||||
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Date signed: | ||||
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By:
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Date:
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Mark R. Baker
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THE SCOTTS MIRACLE-GRO COMPANY | |
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BY: /s/
Mark R. Baker
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BY: /s/ Denise S. Stump | |
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Date
signed: 10/30/08
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[Name of Company representative] | |
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[Title of Company representative] | |
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Date signed: 10/20/08 | |
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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. | ||
| 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. |
| 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; | ||
| 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 | ||
| 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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By:
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Date:
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[Grantees Name]
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THE SCOTTS MIRACLE-GRO COMPANY | |
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By:
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By: | |
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Date signed:
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[Name of Company Representative] | |
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[Title of Company Representative] | |
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Date signed: | |
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DR. MICHAEL KELTY
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THE SCOTTS MIRACLE-GRO COMPANY | |
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By:
/s/ Michael Kelty
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By: /s/ Denise S. Stump | |
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Date
signed: 11/21/08
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[Name of Company Representative] | |
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[Title of Company Representative] | |
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Date signed: 10/20/08 | |
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Mark R. Baker
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THE SCOTTS MIRACLE-GRO COMPANY | |
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By:
/s/ Mark R. Baker
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By: /s/ Denise S. Stump | |
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Date
signed: 10/30/08
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[Name of Company Representative] | |
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[Title of Company Representative] | |
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Date signed: 10/20/08 | |
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transferred in one or more certificates for whole shares or by such other method(s) permitted by applicable laws, rules and regulations, as determined by the Committee in its sole discretion, and cash in lieu of fractional shares will be paid directly to the former Participant as determined under Section 7.02[1]. | ||
4. | Section 9.01 is hereby deleted and replaced in its entirety with the following: | |
9.01 Amendment, Modification, Termination of Plan. The Plan will automatically terminate after all available shares of Stock have been sold. Also, the Board or the Committee (provided that the Committee is comprised solely of members of the Board) may terminate, suspend or amend the Plan at any time without shareholder approval except to the extent that shareholder approval is required to satisfy applicable requirements imposed by [1] Rule 16b-3 under the Act, or any successor rule or regulation, [2] applicable requirements of the Code or [3] any securities exchange, market or other quotation system on or through which the Companys securities are listed or traded. Also, no Plan amendment may [4] result in the loss of a Committee members status as a non-employee director as defined in Rule 16b-3 under the Act, or any successor rule or regulation, with respect to any employee benefit plan of the Company, [5] cause the Plan to fail to meet requirements imposed by Rule 16b-3 under the Act or [6] without the consent of the affected Participant, adversely affect any Purchase Right issued before the amendment. However, nothing in this Section 9.01 will restrict the Committees right to exercise the discretion retained in Section 4.00. |
THE SCOTTS MIRACLE-GRO COMPANY | ||||||
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By: | /s/ Denise S. Stump | ||||
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Name: | Denise S. Stump | ||||
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Title: | Executive Vice President, Global Human Resources |
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Article 1. Term of Employment
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1 | |||
Article 2. Definitions
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2 | |||
Article 3. Position and Responsibilities
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6 | |||
Article 4. Standard of Care
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6 | |||
Article 5. Compensation
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6 | |||
Article 6. Expenses
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8 | |||
Article 7. Employment Terminations
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9 | |||
Article 8. Assignment
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13 | |||
Article 9. Notice
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13 | |||
Article 10. Confidentiality, Noncompetition, and Nonsolicitation
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13 | |||
Article 11. Miscellaneous
|
13 | |||
Article 12. Governing Law
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15 | |||
Article 13. Indemnification
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2.1 | Agreement means this Employment Agreement for Mark R. Baker. | ||
2.2 | Annual Bonus Award means the annual bonus to be paid to the Executive in accordance with the terms of the annual bonus program(s) maintained by the Company, Scotts or any of their affiliates in which the Executive is a participant. | ||
2.3 | Award Period means the performance period applicable to Long-Term Incentive Awards granted under the relevant Company long-term incentive plan. | ||
2.4 | Base Salary means the salary of record paid to the Executive as annual salary, pursuant to Section 5.1, excluding all other amounts received, including under incentive or other bonus plans, whether or not deferred. | ||
2.5 | Beneficiary means the individuals or entities designated or deemed designated by the Executive pursuant to Section 11.6 herein. | ||
2.6 | Board or Board of Directors means the Board of Directors of Scotts. | ||
2.7 | Cause means the Executives: |
(a) | Continued failure to substantially perform his duties with the Company, Scotts or any of their affiliates after a written demand for substantial performance is delivered to the Executive that specifically identifies the manner in which the Company believes that the Executive has failed to substantially perform his duties, and after the Executive has failed to resume substantial performance of his duties on a continuous basis within thirty (30) calendar days of receiving such demand; or | ||
(b) | Conviction of a felony; or | ||
(c) | Engagement in illegal conduct, a material act of dishonesty, a material violation of Scotts policies or other similar conduct, that in the Companys sole discretion, which shall be exercised in good faith, is injurious to the Company, Scotts or any of their affiliates; or | ||
(d) | Material breach of any provision of this Agreement; provided, however, that the Executives willful and material breach of Article 4 shall not constitute Cause unless the Executive has first been provided with written notice detailing such breach and a thirty (30) calendar day period to cure such breach; or | ||
(e) | Material breach of Scotts code of business conduct or ethics as determined in good faith by the Company; or |
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(f) | Violation of Scotts insider-trading policies as determined in good faith by the Company; or | ||
(g) | Material breach of his fiduciary duties to the Company, Scotts or any of their affiliates as determined in good faith by the Company. |
For purposes of determining Cause, no act or omission by the Executive shall be considered willful unless it is done or omitted in bad faith or without reasonable belief that the Executives action or omission was in the best interests of the Company. Any act or failure to act based upon: (i) authority given pursuant to a resolution duly adopted by the Board; or (ii) advice of counsel for the Company, shall be conclusively presumed to be done or omitted to be done by the Executive in good faith and in the best interests of the Company. |
2.8 | Change in Control means the occurrence of any of the following events after the Effective Date of this Agreement: |
(a) | Any person or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) other than Scotts, subsidiaries of Scotts, an employee benefit plan sponsored by Scotts, or Hagedorn Partnership, L.P. or its successor or any party related to Hagedorn Partnership, L.P. (as determined by the Board of Directors) becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than thirty percent (30%) of the combined voting stock of Scotts; | ||
(b) | The shareholders of Scotts adopt or approve a definitive agreement or series of related agreements for the merger or other business consolidation with another person, the agreement(s) become effective and, immediately after giving effect to the merger or consolidation, (i) less than fifty percent (50%) of the total voting power of the outstanding voting stock of the surviving or resulting person is then beneficially owned (within the meaning of Rule l3d-3 under the Exchange Act) in the aggregate by (x) the shareholders of Scotts immediately prior to such merger or consolidation, or (y) if a record date has been set to determine the shareholders of Scotts entitled to vote with respect to such merger or consolidation, the shareholders of Scotts as of such record date and (ii) any person or group (as defined in Section 13(d)(3) and 14(d)(2) of the Exchange Act) has become the direct or indirect beneficial owner (as defined in Rule l3d-3 under the Exchange Act) of more than fifty percent (50%) of the voting power of the voting stock of the surviving or resulting person; | ||
(c) | Scotts, either individually or in conjunction with one or more of its subsidiaries, sells, assigns, conveys, transfers, leases or otherwise disposes of, or the subsidiaries sell, assign, convey, transfer, lease or otherwise dispose of, all or substantially all of the properties and assets of Scotts and the subsidiaries, taken as a whole (either in one transaction or a series of related transactions), to any person (other than Scotts or a wholly owned subsidiary); |
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(d) | For any reason, Hagedorn Partnership, L.P. or its successor or any party related to Hagedorn Partnership, L.P. (as determined by the Board of Directors) becomes the beneficial owner, as defined above, directly or indirectly, of securities of Scotts representing more than forty-nine percent (49%) of the combined voting power of Scotts then-outstanding voting securities; or | ||
(e) | The adoption or authorization by the shareholders of Scotts of a plan providing for the liquidation or dissolution of Scotts. |
2.9 | Code means the U.S. Internal Revenue Code of 1986, as amended from time to time. For purposes of this Agreement, references to sections of the Code shall be deemed to include references to any applicable regulations thereunder and any successor or similar provision. | ||
2.10 | Committee means the Compensation and Organization Committee of the Board or a subcommittee thereof, or any other committee designated by the Board to take any actions referenced in this Agreement. The members of the Committee shall be appointed from time to time by and shall serve at the discretion of the Board. If the Committee does not exist or cannot function for any reason, the Board may take any action under this Agreement that would otherwise be the responsibility of the Committee. | ||
2.11 | Company means The Scotts Company LLC, an Ohio corporation, or any successor company thereto as provided in Section 8.1 herein. | ||
2.12 | Director means any individual who is a member of the Board of Directors of Scotts. | ||
2.13 | Disability or Disabled means for all purposes of this Agreement, a consecutive period of ninety (90) calendar days during which the Executive is unable to perform his duties. | ||
2.14 | Effective Date means October 1, 2008. | ||
2.15 | Effective Date of Termination means the date on which a termination of the Executives employment occurs. For purposes of this Agreement, references to a termination of employment or any form thereof shall mean a separation from service as defined under Section 409A of the Code. | ||
2.16 | Executive means Mark R. Baker. | ||
2.17 | Good Reason means, without the Executives consent, the existence of one or more of the following conditions: |
(a) | A material diminution in the Executives Base Salary; | ||
(b) | A material diminution in the Executives authority, duties, or responsibilities; | ||
(c) | A material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report; |
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(d) | A material diminution in the budget over which the Executive retains authority; | ||
(e) | A material change in the geographic location at which the Executive must perform services; or | ||
(f) | Any other action or inaction that constitutes a material breach by the Company of this Agreement (including under Section 8.1). |
Notwithstanding the foregoing, (i) an event described in this Section 2.17 shall constitute Good Reason only if the Company fails to cure such event within thirty (30) days after receipt from the Executive of written notice of the event which constitutes Good Reason and (ii) Good Reason shall cease to exist for an event on the ninetieth (90 th ) day following the later of its occurrence or the Executives knowledge thereof, unless the Executive has given the Company written notice of such event prior to such date. |
2.18 | Long-Term Incentive Award means the Long-Term Incentive Award to be paid to the Executive in accordance with the Companys long-term incentive plan as described in Section 5.3 herein. | ||
2.19 | Notice of Termination means a written notice which shall indicate the specific termination provision in this Agreement relied upon, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executives employment under the provisions so indicated. | ||
2.20 | Prorated Annual Bonus Award means, for any fiscal year, the Annual Bonus Award that the Executive would have received had the Executive remained employed for the entire fiscal year/performance period, but prorated based on the actual Base Salary paid to the Executive during such fiscal year for services rendered through the Effective Date of Termination. | ||
2.21 | Prorated Target Annual Bonus Award means, for any fiscal year, the amount of money determined by multiplying the Executives bonus target percentage with respect to his Annual Bonus Award by the actual Base Salary paid to the Executive during such fiscal year for services rendered through the Effective Date of Termination. For example, if the Executives Base Salary is $100,000.00, but only $40,000.00 of the Base Salary was earned for services rendered during the fiscal year through the Effective Date of Termination, and the Executives bonus target percentage with respect to his Annual Bonus Award is 25%, then the Executives Prorated Target Annual Bonus Award is $10,000.00. | ||
2.22 | Scotts means The Scotts Miracle-Gro Company, an Ohio corporation. | ||
2.23 | Specified Executive means a specified employee within the meaning of Treasury Regulation §1.409A-1(i) and as determined under the Companys policy for determining specified employees. | ||
2.24 | Target Annual Bonus Award means, for any fiscal year, the amount of money determined by multiplying the Executives bonus target percentage with respect to his Annual Bonus Award by the Executives then Base Salary. For example, if the |
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Executives Base Salary is $100,000.00 and the Executives bonus target percentage with respect to his Annual Bonus Award is 25%, then the Executives Target Annual Bonus Award is $25,000.00. |
(a) | Devote his full and best efforts to the fulfillment of his employment obligations; and | ||
(b) | Adhere to Scotts code of business conduct or ethics as determined by the Board, the Committee or the Company and exercise the highest standards of conduct in the performance of his duties. |
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(a) | Base Salary through the Effective Date of Termination within thirty (30) days following such Effective Date of Termination; | ||
(b) | Subject to the Executives estate signing and not revoking a release of claims satisfactory to the Company (a Release) within sixty (60) days following the Effective Date of Termination, the Prorated Target Annual Bonus Award. Such amount shall be paid no later than seventy (70) days following the Effective Date of Termination; and | ||
(c) | All other rights and benefits the Executive is vested in, pursuant to other plans and programs of the Company. Such rights and benefits shall be paid or provided, as applicable, in accordance with the terms of the applicable plan or program. |
(a) | Base Salary through the Effective Date of Termination (subject to an offset for any disability payments that the Executive receives during this period) within thirty (30) days following such Effective Date of Termination; | ||
(b) | Subject to the Executive signing and not revoking a Release within sixty (60) days following the Effective Date of Termination, the Prorated Target Annual Bonus Award. Such amount shall be paid no later than seventy (70) days following the Effective Date of Termination; and | ||
(c) | All other rights and benefits the Executive is vested in, pursuant to other plans and programs of the Company. Such rights and benefits shall be paid or provided, as applicable, in accordance with the terms of the applicable plan or program. |
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(a) | An amount equal to the Executives accrued and unpaid Base Salary through the Effective Date of Termination within thirty (30) days following such Effective Date of Termination. |
(i) | A lump sum payment equal to three (3) times the sum of the Executives Base Salary, at the rate in effect on the Effective Date of Termination, and the average actual Annual Bonus Award(s) paid to the Executive for the last three completed fiscal years prior to the Effective Date of Termination (or, if less, the number of completed fiscal years prior to the Effective Date of Termination). If the Effective Date of Termination occurs prior to October 1, 2009, the bonus amount shall equal six hundred seventy-five thousand dollars ($675,000) for purposes of this Section 7.4(b)(i); | ||
(ii) | A lump sum payment equal to the Prorated Annual Bonus Award; and |
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(iii) | A lump sum payment equal to the product of (A) the then current cost of one (1) months premiums for COBRA continuation coverage under the medical and dental insurance plans in which the Executive and his dependents were participating on the Effective Date of Termination (assuming the same coverage level as in effect as of the Effective Date of Termination), and (B) twelve (12). |
Except as otherwise required by Section 7.8, the lump sum payments described in this Section 7.4(b) (i) and (iii) shall be made by the Company no later than seventy (70) days following the Effective Date of Termination and the lump sum payment described in this Section 7.4(b) (ii) shall be made no later than the fifteenth (15 th ) day of the third (3 rd ) month following the end of the fiscal year in which the Effective Date of Termination occurs. The Company shall provide the Release to the Executive on or shortly after the Effective Date of Termination, and the Executive shall execute the Release during the time period permitted by applicable law. | |||
(c) | All other benefits to which the Executive has a vested right as of the Effective Date of Termination, according to the provisions of the governing plan or program. Such rights and benefits shall be paid or provided, as applicable, in accordance with the terms of the applicable plan or program. |
(a) | An amount equal to the Executives accrued and unpaid Base Salary through the Effective Date of Termination within thirty (30) days following such Effective Date of Termination. |
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(b) | Subject to the Executive signing and not revoking a Release within sixty (60) days following the Effective Date of Termination: |
(i) | A lump sum payment equal to two (2) times the Executives Base Salary at the rate in effect on the Effective Date of Termination; | ||
(ii) | A lump sum payment equal to two (2) times the Target Annual Bonus Award; | ||
(iii) | A lump sum payment that is equal to the Prorated Target Annual Bonus Award; and | ||
(iv) | A lump sum payment equal to the product of (A) the then current cost of one (1) months premiums for COBRA continuation coverage under the medical and dental insurance plans in which the Executive and his dependents were participating on the Effective Date of Termination (assuming the same coverage level as in effect as of the Effective Date of Termination), and (B) eighteen (18). |
Except as otherwise required by Section 7.7, the lump sum payments described in this Section 7.6(b) shall be made by the Company within seventy (70) days following the Effective Date of Termination. The Company shall provide the Release to the Executive on or shortly after the Effective Date of Termination, and the Executive shall execute the Release during the time period permitted by applicable law. | |||
(c) | All other benefits (including any outstanding equity based compensation awards) to which the Executive has a vested right as of the Effective Date of Termination, according to the provisions of the governing plan or program. Such rights and benefits shall be paid or provided, as applicable, in accordance with the terms of the applicable plan or program. |
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Executive | |||
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/s/ Mark R. Baker | |||
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Mark R. Baker | |||
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Date: 9/9/08 | |||
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The Scotts Company LLC | |||
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/s/ James Hagedorn | |||
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James Hagedorn, Chief Executive Officer | |||
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Date: 10 Sep 08 |
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(Name)
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(Relationship) | |||
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Address:
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(Name)
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(Relationship) | |||
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Address:
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To be Completed by the Company: | ||||||
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Received on: | ||||||
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By:
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Re: | Renewal of EU Term of the Amended and Restated Exclusive Agency and Marketing Agreement dated as of September 30, 1998 between The Scotts Company LLC and Monsanto Company (Agreement). |
2
Sincerely,
THE SCOTTS COMPANY LLC |
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By: | /s/ James Hagedorn | |||
James Hagedorn | ||||
President and Chief Executive Officer | ||||
By:
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/s/ Carl M. Casale | |||
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Name:
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Carl M. Casale | |||
Title:
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EVP, Strategy & Operations | |||
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cc:
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Ag Counsel | |||
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Ronald A. Robins, Jr. |
3
Gutwein & Co., Inc., an Indiana corporation
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Scotts Global Investments, Inc.
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Scotts Switzerland Holdings, SA
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SMG Brands, Inc., a Delaware corporation
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SMG Growing Media, Inc., an Ohio corporation
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Rod McLellan Company, a California corporation
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SMGM LLC, an Ohio limited liability company
|
The Scotts Company LLC, an Ohio limited liability company
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EG Systems, Inc., dba Scotts LawnService, an Indiana corporation
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Hyponex Corporation, a Delaware corporation
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OMS Investments, Inc., a Delaware corporation
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Scotts Temecula Operations, LLC, a Delaware limited liability company
|
Sanford Scientific, Inc., a New York corporation
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Scotts Global Services, Inc., an Ohio corporation
|
Scotts Manufacturing Company, a Delaware corporation
|
Miracle-Gro Lawn Products, Inc., a New York corporation
|
Scotts Products Co., an Ohio corporation
|
Scotts Servicios, S.A. de C.V. (Mexico)
1
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Scotts Professional Products Co., an Ohio corporation
|
Scotts Servicios, S.A. de C.V. (Mexico)
2
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Scotts-Sierra Horticultural Products Company, a California corporation
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Scotts-Sierra Crop Protection Company, a California corporation
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Scotts-Sierra Investments, Inc., a Delaware corporation
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ASEF BV (Netherlands)
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Scotts Australia Pty Ltd. (Australia)
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Scotts Benelux BVBA (Belgium)
3
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Scotts Canada Ltd. (Canada)
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Scotts Czech s.r.o. (Czech Republic)
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Scotts de Mexico SA de CV (Mexico)
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Scotts France Holdings SARL (France)
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Scotts France SARL (France)
4
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Scotts France SAS (France)
5
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Scotts Holding GmbH (Germany)
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Scotts Celaflor GmbH & Co. KG (Germany)
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Scotts Celaflor HGmbH (Austria)
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Scotts Holdings Limited (United Kingdom)
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Levington Group Ltd. (United Kingdom)
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The Scotts Company (UK) Ltd. (United Kingdom)
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1 | Not wholly-owned, Scotts Professional Products Co. owns 50% | |
2 | Not wholly-owned, Scotts Products Co. owns 50% | |
3 | Not wholly-owned, OMS Investments, Inc. owns .01% | |
4 | Not wholly-owned, Scotts Holdings Ltd. owns .01% | |
5 | Not wholly-owned, Scotts France SARL owns .01% |
The Scotts Company (Manufacturing) Ltd. (United Kingdom)
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OM Scott International Investments Ltd. (United Kingdom)
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Scotts International B.V. (Netherlands )
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Scotts Deutschland GmbH (Germany)
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Scott O.M. España, S.A. (Spain)
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Scotts Italia S.r.l. (Italy)
6
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Scotts Horticulture Ltd. (Ireland)
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Scotts Hungary KFT (Hungary)
7
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Scotts PBG Malaysia Sdn. Bhd. (Malaysia)
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Scotts Poland Sp.z.o.o. (Poland)
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Scotts Sweden AB (Sweden)
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The Scotts Company (Nordic) A/S (Denmark)
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The Scotts Company Italia S.r.l. (Italy)
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The Scotts Company Kenya Ltd. (Kenya)
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Turf-Seed Europe (Ireland)
8
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Smith & Hawken, Ltd., a Delaware corporation
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Swiss Farms Products, Inc., a Delaware corporation
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6 | Not wholly-owned, James Hagedorn owns .05% | |
7 | Not wholly-owned, OMS Investments, Inc. owns 3% | |
8 | Not wholly-owned, Owned 51% by Tempoverde, Srl. |
2
/s/ Mark R. Baker | ||||
Mark R. Baker | ||||
/s/ Arnold W. Donald | ||||
Arnold W. Donald | ||||
/s/ David C. Evans | ||||
David C. Evans | ||||
/s/ Joseph P. Flannery | ||||
Joseph P. Flannery | ||||
/s/ James Hagedorn | ||||
James Hagedorn | ||||
/s/ Thomas N. Kelly Jr. | ||||
Thomas N. Kelly Jr. | ||||
/s/ Carl F. Kohrt, Ph.D. | ||||
Carl F. Kohrt, Ph.D. | ||||
/s/ Katherine Hagedorn Littlefield | ||||
Katherine Hagedorn Littlefield | ||||
/s/ Karen G. Mills | ||||
Karen G. Mills | ||||
/s/ Nancy G. Mistretta | ||||
Nancy G. Mistretta | ||||
/s/ Patrick J. Norton | ||||
Patrick J. Norton | ||||
/s/ Stephanie M. Shern | ||||
Stephanie M. Shern | ||||
/s/ John S. Shiely | ||||
John S. Shiely | ||||
1. | I have reviewed this Annual Report on Form 10-K of The Scotts Miracle-Gro Company for the fiscal year ended September 30, 2008; | ||
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 (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 |
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: November 25, 2008 | By: | /s/ James Hagedorn | ||
Printed Name: James Hagedorn | ||||
Title: Chief Executive Officer and Chairman of the Board |
1. | I have reviewed this Annual Report on Form 10-K of The Scotts Miracle-Gro Company for the fiscal year ended September 30, 2008; | ||
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 (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 |
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: November 25, 2008 | 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, as amended; and | ||
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. |
/s/ James Hagedorn
|
/s/ David C. Evans | |
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James Hagedorn
|
David C. Evans | |
Chief Executive Officer
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Executive Vice President | |
and Chairman of the Board
|
and Chief Financial Officer | |
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November 25, 2008
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November 25, 2008 |
* | THIS CERTIFICATION IS BEING FURNISHED AS REQUIRED BY RULE 13a-14(b) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (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, AS AMENDED, OR THE EXCHANGE ACT, EXCEPT TO THE EXTENT THAT THE COMPANY SPECIFICALLY INCORPORATES THIS CERTIFICATION BY REFERENCE. |