Employment Agreement

Amendment to Employment Agreement

Severance Agreement

 

 

 

 

 

 

EMPLOYMENT AGREEMENT, DATED AS OF MAY 19, 1995, BETWEEN THE SCOTTS

                          COMPANY AND JAMES HAGEDORN

 

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                             EMPLOYMENT AGREEMENT

 

            EMPLOYMENT AGREEMENT (this "Agreement"), dated as of May 19, 1995,

by and between The Scotts Company,  an Ohio corporation  (the "Company"),  and

James Hagedorn (the "Employee").

 

            WHEREAS, the Company and Stern's Miracle-Gro Products, Inc., a New

Jersey corporation ("Miracle-Gro"), have entered into an Agreement and Plan of

Merger (the "Merger Agreement"),  dated as of January 26, 1995, and amended as

of May 1, 1995;

 

            WHEREAS,  in connection with the transactions  contemplated by the

Merger  Agreement  and  in  recognition  of  the  Employee's   experience  and

abilities,  the  Company  desires to assure  itself of the  employment  of the

Employee in accordance with the terms and conditions provided herein; and

 

            WHEREAS,  the  Company has entered  into an  Agreement  Containing

Consent  Order and an Agreement to Hold Separate  (collectively,  the "Consent

Order") with the Federal Trade Commission; and

 

            WHEREAS,  the Employee wishes to perform  services for the Company

in accordance with the terms and conditions provided herein.

 

            NOW,   THEREFORE,   in  consideration  of  the  premises  and  the

respective  covenants and  agreements  of the parties  herein  contained,  and

intending to be legally bound hereby, the parties hereto agree as follows:

 

     1.   EMPLOYMENT.  The Company  hereby agrees to employ the Employee,  and

          the Employee hereby agrees to perform  services for the Company,  in

 

          the terms and conditions set forth herein.

 

     2.   TERM.  This  Agreement  is for the  three-year  period (the  "Term")

          commencing at the earliest time  permissible  that does not conflict

          with the Consent Order (the "Effective Time") and terminating on the

          third  anniversary  of the Effective  Time,  or upon the  Employee's

          earlier  death,   disability  or  other  termination  of  employment

          pursuant to Section 7 hereof; PROVIDED,  HOWEVER, that commencing on

          the second  anniversary of the Effective  Time and each  anniversary

          thereafter  the  Term  shall   automatically  be  extended  for  one

          additional year beyond its otherwise  scheduled  expiration  unless,

          not later than 30 days prior to any such  anniversary,  either party

          hereto  shall have  notified  the other party hereto in writing that

          such extension shall not take effect.

 

     3.   POSITIONS.  During the Term,  the  Employee  shall serve as a Senior

          Vice President of the Company and Manager of the Company's  Consumer

 

          Garden Group.

 

     4.   DUTIES AND REPORTING RELATIONSHIP.

 

          (a)  During the Term, the Employee shall, on a full time basis,  use

               his skills and render  services to the best of his abilities in

               supervising  and  conducting  the  operations  of the  Company;

               PROVIDED,  HOWEVER,  that,  subject to  Section 10 hereof,  the

               foregoing  shall not  prevent  the  Employee  from  devoting  a

               portion  of his  time  and  efforts  to his  personal  business

               affairs so long as they do not  materially  interfere  with the

               performance of his duties hereunder.  The Employee shall report

               directly to the Chief Executive Officer of the Company.

 

          (b)  The Employee  will be permitted to serve on the boards of other

               for-profit  and  not-for-profit  organizations  so long as such

               activities do not materially  interfere with the performance of

               his duties hereunder.

 

     5.   PLACE OF  PERFORMANCE.  The  Employee  shall  primarily  perform his

          duties and  conduct  his  business  at the  offices of the  Company,

          located  in  Marysville,  Ohio,  except for  required  travel on the

          Company's business.

 

     6.   COMPENSATION AND RELATED MATTERS.

 

          (a)  ANNUAL BASE  SALARY.  Commending  on the  Effective  Time,  the

               Company  shall pay to the  Employee  an annual base salary (the

               "Base Salary") at a rate not less than $200,000, such salary to

               be paid in  conformity  with  the  Company's  payroll  policies

               relating to its senior executive officers. The Base Salary may,

               from time to time, be  increased,  subject to and in accordance

               with the  performance  review  procedures for senior  executive

               officers of the Company;  PROVIDED,  HOWEVER, if the Employee's

               Base Salary is increased,  it shall not thereafter be decreased

               during the Term.

 

          (b)  EXECUTIVE BENEFIT PLANS. During the Term, the Employee shall be

               entitled to participate in those incentive plans,  programs and

               arrangements  which are  available  to other  senior  executive

               officers of the Company (the "Benefit Plans"),  including,  but

               not limited to, (i) annual and long-term  bonus plans (payments

               in any  given  year with  respect  thereto,  collectively,  the

               "Bonus")   and  (ii)  stock   option  and  other   equity-based

               compensation  plans now or hereinafter in effect.  The Employee

               shall  be   provided   benefits   under   the   Benefit   Plans

               substantially  equivalent  (in the  aggregate)  to the benefits

               provided to other senior executive  officers of the Company and

               on substantially  similar terms and conditions as such benefits

               are provided to other senior executive officers of the Company.

 

          (c)  PENSION AND WELFARE  BENEFITS.  During the Term,  the  Employee

               shall be eligible to  participate in the pension and retirement

               plans (the "Pension  Plans") provided to other senior executive

               officers of the Company  (including,  without  limitation,  the

               Company's  Pension Plan and the Company's Excess Benefit Plan),

               and  participate  fully  in  all  health  benefits,   insurance

               programs   and   other   similar   employee   welfare   benefit

               arrangements  available to other senior  executive  officers of

               the Company and shall be provided benefits under such plans and

               arrangements substantially equivalent (in the aggregate) to the

               benefits  provided to other  senior  executive  officers of the

               Company and on  substantially  similar terms and  conditions as

               such benefits are provided to other senior  executive  officers

               of the  Company.  All service with  Miracle-Gro  accrued by the

               Employee during his employment therewith shall be preserved and

               maintained  for  eligibility  and  vesting  purposes  under the

               Pension Plans.

 

          (d)  STOCK  OPTIONS.  Effective as of the date  hereof,  the Company

               shall grant to the Employee a  non-qualified  stock option (the

               "Option")  to acquire  24,000 of the  Company's  common  shares

               without par value ("Common  Stock"),  pursuant to the terms and

               conditions of the Company's 1992 Long Term  Incentive  Plan, or

               any successor or  replacement  plan thereto (the  "Plan"),  and

               pursuant to a stock option  agreement which shall provide terms

               and conditions no less favorable to the Employee than any stock

               option  agreement  entered  into by and between the Company and

               its other senior executive officers.

 

          (e)  FRINGE BENEFITS AND  PERQUISITES.  During the Term, the Company

               shall  provide to the Employee  all of the fringe  benefits and

               perquisites   that  are  provided  to  other  senior  executive

               officers of the Company,  and the Employee shall be entitled to

               receive any other fringe  benefits or  perquisites  that become

               available  to other  senior  executive  officers of the Company

               subsequent  to  the  Effective  Time.   Without   limiting  the

               generality  of the  foregoing,  the Company  shall  provide the

               Employee with the following  benefits during the Term: (i) paid

               vacation,  paid holidays and sick leave in accordance  with the

               Company's standard policies for its senior executive  officers,

               which policies shall provide the Employee with benefits no less

               favorable  (in the  aggregate)  than  those  provided  to other

               senior  executive  officers of the Company;  (ii) an automobile

               allowance no less than any such allowance provided to any other

               senior executive  officer of the Company;  (iii)  reimbursement

               for  living  accommodations  in the  general  Marysville,  Ohio

               vicinity,  for  a  period  of  eighteen  months  following  the

               Effective Time, while conducting the Company's business at such

               location,  substantially  equivalent to accommodations provided

               to any  other  senior  executive  officer  of the  Company  and

               reasonably satisfactory to the Employee; (iv) reimbursement for

               reasonable travel expenses (whether business or personal travel

               or otherwise),  for a period of eighteen  months  following the

               Effective Time,  associated  with the Employee's  travel by and

               between  Marysville,  Ohio,  New  York,  New York  and  Vermont

               (whether  by  commercial  aircraft,   the  Employee's  personal

               aircraft or  otherwise,  but in any case limited to the cost of

               undiscounted commercial airline travel);

 

          (f)  BUSINESS  EXPENSES.  The Employee  will be  reimbursed  for all

               ordinary and  necessary  business  expenses  incurred by him in

               connection with his employment  (including without  limitation,

               expenses for travel and entertainment incurred in conducting or

               promoting  business for the  Company)  upon  submission  by the

               Employee of receipts and other documentation in accordance with

               the Company's normal reimbursement procedures.

 

7.   TERMINATION.  The  Employee's  employment  hereunder  may  be  terminated

     without breach of this Agreement only under the following circumstances:

 

          (a)  DEATH. The Employee's employment hereunder shall terminate upon

               his death.

 

          (b)  DISABILITY. If, as a result of the Employee's incapacity due to

               physical or mental illness, the Employee shall have been absent

               from  his  duties  hereunder  for  the  entire  period  of  six

               consecutive  months,  and within thirty (30) days after written

               Notice of  Termination  (as defined in paragraph  (e) below) is

               given, shall not have returned to the performance of his duties

               hereunder,  the Company may terminate the Employee's employment

               hereunder for "Disability."

 

          (c)  CAUSE.  The Company may  terminate  the  Employee's  employment

               hereunder  for  "Cause." For  purposes of this  Agreement,  the

               Company  shall  have  "Cause"  to  terminate   the   Employee's

               employment hereunder (i) upon the Employee's conviction for the

               commission  of an act or acts  constituting  a felony under the

               laws of the United  States or any state  thereof,  or (ii) upon

               the Employee's  willful and continued  failure to substantially

               perform  his  duties  hereunder  (other  than any such  failure

               resulting  from the  Employee's  incapacity  due to physical or

               mental illness), after written notice has been delivered to the

               Employee by the Company,  which notice specifically  identifies

               the  manner  in  which  the  Employee  has  not   substantially

               performed   his   duties,   and  the   Employee's   failure  to

               substantially  perform  his  duties  is not  cured  within  ten

               business  days after  notice of such  failure has been given to

               the  Employee.  For purposes of this Section  7(c),  no act, or

               failure  to  act,  on  the  Employee's  part  shall  be  deemed

               "willful"  unless done,  or omitted to be done, by the Employee

               not in good  faith  and  without  reasonable  belief  that  the

               Employee's  act, or failure to act, was in the best interest of

               the Company.

 

          (d)  TERMINATION  BY THE  EMPLOYEE.  The Employee may  terminate his

               employment  hereunder  for "Good  Reason."  "Good  Reason"  for

               termination by the Employee of the Employee's  employment shall

               mean the  occurrence  (without the Employee's  express  written

               consent) of any one of the  following  acts by the Company,  or

               failures by the Company to act, unless,  in the case of any act

               or failure to act  described in paragraph  (i),  (v),  (vi), or

               (vii) below,  such act or failure to act is corrected  prior to

               the Date of Termination  specified in the Notice of Termination

               given in respect thereof:

 

               (i)  the assignment to the Employee of any duties  inconsistent

                    with the Employee's  status as a senior executive  officer

                    of the Company or a substantial adverse alternation in the

                    nature or status of the Employee's responsibilities;

 

               (ii) a reduction by the Company of the Base Salary as in effect

                    on the date  hereof or as the same may be  increased  from

                    time to time;

 

               (iii)the  relocation  of  the  Company's   principal  executive

                    offices  to a  location  that is  either  (i) more than 30

                    miles  from  Marysville,  Ohio or (ii)  outside of the New

                    York City metropolitan area;

 

               (iv) the  failure  by  the  Company,   without  the  Employee's

                    consent,  to  pay  to  the  Employee  any  portion  of the

                    Employee's current compensation, or to pay to the Employee

                    any portion of an  installment  of  deferred  compensation

                    under any  deferred  compensation  program of the Company,

                    within  seven  (7) days of the date such  compensation  is

                    due;

 

               (v)  the  failure  by the  Company  to  continue  in effect any

                    compensation  or  benefit  plan in which the  Employee  is

                    entitled   to   participate   which  is  material  to  the

                    Employee's   total   compensation,   unless  an  equitable

                    arrangement  has been made with  respect to such plan,  or

                    the  failure by the  Company to  continue  the  Employee's

                    participation   therein   (or  in   such   substitute   or

                    alternative   plan)  on  a  basis  not   materially   less

                    favorable,  both  in  terms  of  the  amount  of  benefits

                    provided  and the  level of the  Employee's  participation

                    relative to other participants;

 

               (vi) the  failure by the  Company to  continue  to provide  the

                    Employee  with  benefits  substantially  similar  to those

                    enjoyed  by  the  Employee  under  any  of  the  Company's

                    pension, life insurance,  medical, health and accident, or

                    disability  plans in which the  Employee  is  entitled  to

                    participate, the taking of any action by the Company which

                    would directly or indirectly materially reduce any of such

                    benefits or deprive the  Employee of any  material  fringe

                    benefit  or  perquisite  enjoyed by the  Employee,  or the

                    failure by the  Company to provide the  Employee  with the

                    number  of paid  vacation  days to which the  Employee  is

                    entitled pursuant to this Agreement; or

 

               (vii)any purported  termination  of the  Employee's  employment

                    which is not effected  pursuant to a Notice of Termination

                    satisfying the  requirements  of paragraph (e) below;  for

                    purposes of this Agreement,  no such purported termination

                    shall be effective.

 

                   The Employee's right to terminate the Employee's employment

for Good  Reason  shall not be affected by the  Employee's  incapacity  due to

physical or mental  illness.  The Employee's  continued  employment  shall not

constitute  consent  to, or a waiver of rights  with  respect  to,  any act or

failure to act constituting Good Reason hereunder.

 

          (e)  NOTICE  OF  TERMINATION.  Any  termination  of  the  Employee's

               employment  by the  Company  or by  the  Employee  (other  than

               termination under Section 7(a) hereof) shall be communicated by

               written  Notice of  Termination  to the other  party  hereto in

               accordance  with  Section  12  hereof.  For  purposes  of  this

               Agreement,  a "Notice of Termination"  shall mean a notice that

               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 Employee's employment under the provision so

               indicated.  Further,  a  Notice  of  Termination  for  Cause is

               required to include a copy of a resolution  duly adopted by the

               affirmative  vote of not less  than a  majority  of the  entire

               membership  of the  Board  at a  meeting  of the  Board  (after

               reasonable  notice to the Employee and an  opportunity  for the

               Employee,  together with the  Employee's  counsel,  to be heard

               before the Board)  finding  that,  in the good faith opinion of

               the Board,  the Employee was guilty of conduct set forth in the

               definition  of Cause herein,  and  specifying  the  particulars

               thereof.

 

          (f)  DATE OF TERMINATION.  "Date of  Termination"  shall mean (i) if

               the Employee's  employment is terminated by his death, the date

               of his death,  (ii) if the Employee's  employment is terminated

               pursuant to paragraph (b) above,  thirty (30) days after Notice

               of Termination  is given  (provided that the Employee shall not

               have returned to the  performance  of his duties on a full-time

               basis  during such thirty  (30) day  period),  and (iii) if the

               Employee's  employment is terminated  pursuant to paragraph (c)

               or (d) above,  the date specified in the Notice of Termination;

               PROVIDED,  HOWEVER,  that if within  thirty (30) days after any

               Notice of Termination is given the party  receiving such Notice

               of  Termination  notifies the other party that a dispute exists

               concerning the  termination,  the Date of Termination  shall be

               the date on which the dispute is finally determined.  If within

               fifteen (15) days after any Notice of Termination is given, or,

               if  later,  prior to the  Date of  Termination  (as  determined

               without regard to this Section 7(f)),  the party receiving such

               Notice of  Termination  notifies the other party that a dispute

               exists  concerning  the  termination,  the Date of  Termination

               shall be the date on which the  dispute  is  finally  resolved,

               either by mutual written agreement of the parties or by a final

               judgment,  order or decree of a court of competent jurisdiction

               (which is not  appealable or with respect to which the time for

               appeal therefrom has expired and no appeal has been perfected);

               provided further that the Date of Termination shall be extended

               by a notice  of  dispute  only if such  notice is given in good

               faith and the party giving such notice  pursues the  resolution

               of such dispute with reasonable diligence.

 

          (g)  COMPENSATION DURING DISPUTE. If a purported  termination occurs

               during  the term of this  Agreement,  and such  termination  is

               disputed in  accordance  with Section 7(f) hereof,  the Company

               shall  continue to pay the  Employee the full  compensation  in

               effect  when the notice  giving  rise to the  dispute was given

               (including,  but not limited to, Base  Salary) and continue the

               Employee  as a  participant  in all  compensation,  benefit and

               insurance  plans in which the Employee was  participating  when

               the notice  giving  rise to the  dispute  was given,  until the

               dispute is finally  resolved.  Amounts  paid under this Section

               7(g) are in  addition  to all  other  amounts  due  under  this

               Agreement  and shall not be offset  against or reduce any other

               amounts due under this Agreement.

 

8.   COMPENSATION UPON TERMINATION OR DURING DISABILITY

 

     (a)  DISABILITY  OR DEATH.  During any period that the Employee  fails to

          perform  his  duties  hereunder  as a result  of  incapacity  due to

          physical or mental  illness,  the Employee shall continue to receive

          his full Base Salary, as well as other applicable  employee benefits

          provided  to other  senior  executives  of the  Company,  until  his

          employment  is  terminated  pursuant to Section 7(b) hereof.  In the

          event the  Employee's  employment is terminated  pursuant to Section

          7(a) or 7(b) hereof,  then as soon as  practicable  thereafter,  the

          Company  shall pay the Employee or the  Employee's  Beneficiary  (as

          defined in Section 11(b) hereof), as the case may be, (i) all unpaid

          amounts,  if any, to which the  Employee was entitled as of the Date

          of Termination under Section 6(a) hereof and (ii) all unpaid amounts

          to which the Employee was then entitled under the Benefit Plans, the

          Pension Plans and any other unpaid employee benefits, perquisites or

          other  reimbursements (the amounts set forth in clauses (i) and (ii)

          above being hereinafter referred to as the "Accrued Obligation").

 

     (b)  TERMINATION FOR CAUSE; VOLUNTARY TERMINATION WITHOUT GOOD REASON. If

          the Employee's  employment is terminated by the Company for Cause or

          by the Employee  other than for Good Reason,  then the Company shall

          pay all Accrued  Obligations  to the Employee and the Company  shall

          have no further obligations to the Employee under this Agreement.

 

     (c)  TERMINATION  WITHOUT CAUSE;  TERMINATION FOR GOOD REASON. If (i) the

          Company shall  terminate the Employee's  employment,  other than for

          Disability or for Cause,  or (ii) the Employee  shall  terminate his

          employment for Good Reason, then:

 

          (1)  the  Company  shall pay to the  Employee,  within ten (10) days

               after the Date of Termination, the Accrued Obligations;

 

          (2)  the  Company  shall pay to the  Employee,  within ten (10) days

               after the Date of Termination,  a lump sum amount in cash equal

               to three (3) multiplied by the sum of (i) the  Employee's  Base

               Salary  as in  effect  immediately  prior to the  circumstances

               giving rise to the Notice of Termination  plus (ii) the highest

               annual Bonus paid to the Employee in respect of the three years

               preceding the Date of Termination;

 

          (3)  to the extent  permitted under the terms and conditions of each

               applicable  plan or  arrangement,  the Company shall pay to the

               Employee  a lump sum  payment,  in cash,  within  ten (10) days

               after the Date of Termination,  equal to the Employee's accrued

               benefits (or the actuarial  equivalent if applicable) as of the

               Date of  Termination  under the  Pension  Plans and the Benefit

               Plans, In addition, to the extent permitted under the terms and

               conditions of each applicable plan or arrangement, for purposes

               of  computing  the benefits  payable to the Employee  under the

               Pension   Plans  and  Benefit   Plans  in  which  the  Employee

               participated as of the Date of Termination,  the Employee shall

               be treated as if he had continued in  employment  for three (3)

               years following the Date of Termination; and

 

          (4)  for  a  period  of  three  (3)  years  following  the  Date  of

               Termination  the  Company  shall  pay all  costs  and  expenses

               associated  with the  continuation  of coverage of the Employee

               (as  contemplated  under Section 4980B of the Internal  Revenue

               Code of 1986, as amended) under applicable medical,  disability

               and life insurance  plans as existed  immediately  prior to the

               circumstances   giving  rise  to  the  Notice  of  Termination;

               PROVIDED,  HOWEVER,  that such coverage shall be reduced to the

               extent that the Employee  obtains  similar  coverage  paid by a

               subsequent employer.

 

9.   NON-DISCLOSURE.  The parties hereto agree, recognize and acknowledge that

     during the Term the  Employee  shall  obtain  knowledge  of  confidential

     information  regarding  the business  and affairs of the  Company.  It is

     therefore   agreed  that  the  Employee  will  respect  and  protect  the

     confidentiality  of  all  confidential   information  pertaining  to  the

     Company,  and will not (i)  without  the  prior  written  consent  of the

     Company,  (ii) unless required in the course of the Employee's employment

     hereunder, or (iii) unless required by applicable law, rules, regulations

     or court,  governmental or regulatory authority order or decree, disclose

     in any fashion such confidential  information to any person (other than a

     person who is a director  of, or who is  employed  by, the Company or any

     subsidiary  or who is engaged to render  services  to the  Company or any

     subsidiary) at any time during the Term.

 

10.  COVENANT NOT TO COMPETE.  (a) Employee hereby agrees that for a period of

     three (3) years following the termination of this Agreement (other than a

     termination  of the  Employee's  employment  (i) by the Employee for Good

     Reason,  or (ii) by the Company other than for Cause or Disability)  (the

     "Restricted  Period") the  Employee  shall not,  directly or  indirectly,

     whether acting  individually  or through any person,  firm,  corporation,

     business or any other entity:

 

     (i)  engage in, or have any  interest in any person,  firm,  corporation,

          business or other entity (as an officer, director,  employee, agent,

          stockholder  or  other  security  holder,  creditor,  consultant  or

          otherwise) that engages in any business activity where any aspect of

          the  business  of  the  Company  is  conducted,  or  planned  to  be

          conducted,  at any time during the Restricted Period, which business

          activity is the same as, similar to or competitive  with the Company

          as the same may be conducted from time to time;

 

     (ii) interfere with any contractual relationship that may exist from time

          to time of the business of the Company,  including,  but not limited

          to,  any  contractual  relationship  with  any  director,   officer,

          employee, or sales agent, or supplier of the Company; or

 

     (iii)solicit,  induce or influence,  or seek to induce or influence,  any

          person who currently is, or from time to time may be,  engaged in or

          employed by the Company (as an officer, director, employee, agent or

          independent  contractor)  to  terminate  his  or her  employment  or

          engagement by the Company.

 

          (b)  Notwithstanding  anything  to the  contrary  contained  herein,

               Employee, directly or indirectly, may own publicly traded stock

               constituting   not  more  than  three   percent   (3%)  of  the

               outstanding  shares of such  class of stock of any  corporation

               if,  and as long  as,  Employee  is not an  officer,  director,

               employee or agent of, or  consultant  or advisor to, or has any

               other relationship or agreement with such corporation.

 

          (c)  Employee  acknowledges  that  the  non-competition   provisions

               contained in this Agreement are  reasonable  and necessary,  in

               view of the nature of the Company and his knowledge thereof, in

               order to protect the legitimate interests of the Company.

 

11.  SUCCESSORS; BINDING AGREEMENT.

 

     (a)  The Company shall require any successor (whether direct or indirect,

          by  purchase,   merger,   consolidation  or  otherwise)  to  all  or

          substantially  all of the business and/or assets of the Company,  by

          agreement  in form  and  substance  reasonably  satisfactory  to the

          Employee, to expressly assume and agree to perform this Agreement in

          the same manner and to the same  extent  that the  Company  would be

          required  to  perform  it if no such  succession  had  taken  place.

          Failure of the Company to obtain such assumption and agreement prior

          to the  effectiveness  of any such  succession  shall be a breach of

          this Agreement and shall entitle the Employee to  compensation  from

          the  Company in the same amount and on the same terms as he would be

          entitled to  hereunder  if he  terminated  his  employment  for Good

          Reason, except that for purposes of implementing the foregoing,  the

          date on which any such succession  becomes effective shall be deemed

          the Date of Termination.  As used in the Agreement,  "Company" shall

          mean the Company as  hereinbefore  defined and any  successor to its

          business  and/or assets as aforesaid  that executes and delivers the

          agreement  provided for in this Section 11 or that otherwise becomes

          bound by all the terms and provisions of this Agreement by operation

          of law.

 

     (b)  This Agreement and all rights of the Employee  hereunder shall inure

          to the benefit of and be enforceable  by the Employee's  personal or

          legal representatives, executors, administrators, successors, heirs,

          distributees, devises and legatees. If the Employee should die while

          any  amounts  would  still be  payable  to him  hereunder  if he had

          continued  to live,  all such  amounts,  unless  otherwise  provided

          herein, shall be paid in accordance with the terms of this Agreement

          to the Employee's  devisee,  legatee, or other designee or, if there

          be no such  designee,  to the  Employee's  estate  (any of  which is

          referred to herein as a "Beneficiary").

 

12.  NOTICE.  For the  purposes of this  Agreement,  notices,  demands and all

     other  communications  provided for in this Agreement shall be in writing

     and shall be deemed to have been duly  given  when  delivered  or (unless

     otherwise  specified)  mailed by United  States  certified or  registered

     mail, return receipt requested, postage prepaid, addressed as follows:

 

            If to the Company:

 

                  The Scotts Company

                  14111 Scottslawn Road

                  Marysville, Ohio  43201

                  Attn: General Counsel

 

            If to the Employee:

 

                  James Hagedorn

                  Beach Road

 

                  Sands Point, New York  11050

 

     or to such other address as either party may have  furnished to the other

     in writing  in  accordance  herewith,  except  that  notices of change of

     address shall be effective only upon receipt.

 

13.  MISCELLANEOUS. No provisions of this Agreement may be modified, waived or

     discharged unless such waiver,  modification or discharge is agreed to in

     writing  signed by the Employee and such officer of the Company as may be

     specifically designated by the Board. No waiver by either party hereto at

     any time of any breach by the other party hereto of, or compliance  with,

     any  condition  or  provision  of this  Agreement to be performed by such

     other party shall be deemed a waiver of similar or dissimilar  provisions

     or  conditions  at the  same  or at any  prior  or  subsequent  time.  No

     agreements or  representations,  oral or  otherwise,  express or implied,

     with respect to the subject  matter hereof have been made by either party

     which  are not set  forth  expressly  in this  Agreement.  The  validity,

     interpretation,  construction  and performance of this Agreement shall be

     governed by the laws of the state of Ohio without regard to its conflicts

     of law principles.

 

14.  VALIDITY.   The  invalidity  or  unenforceability  of  any  provision  or

     provisions   of  this   Agreement   shall  not  affect  the  validity  or

     enforceability  of any other  provision  of this  Agreement,  which shall

     remain in full force and effect. To the extent that any of the provisions

     hereof are  inconsistent  with the provisions of the Consent  Order,  the

     provisions of the Consent Order shall govern in all respects.

 

15.  COUNTERPARTS. This Agreement may be executed in one or more counterparts,

     each of which shall be deemed to be an original but all of which together

 

     will constitute one and the same instrument.

 

16.  ENTIRE  AGREEMENT.  This Agreement sets forth the entire agreement of the

     parties  hereto in respect of the  subject  matter  contained  herein and

     supersedes  any and all  other  prior  agreements,  promises,  covenants,

     arrangements,  communications representations or warranties, whether oral

     or  written,  by any  officer,  employee or  representative  of any party

     hereto;  and any prior  agreement of the parties hereto in respect of the

     subject matter contained herein is hereby terminated and cancelled.

 

            IN WITNESS WHEREOF, the parties here executed this Agreement as of

the date and year first above written.

 

                                    THE SCOTTS COMPANY

 

                                    By: /S/ CRAIG D. WALLEY

                                    Name: ___________________________

                                    Title: __________________________

 

                                    EMPLOYEE

 

                                    /S/ JAMES HAGEDORN

                                        JAMES HAGEDORN

 

 

 

 

EX-10.16 4 l35226aexv10w16.htm EX-10.16

Exhibit 10.16

AMENDMENTS TO
EMPLOYMENT AGREEMENT

     WHEREAS, an Employment Agreement, dated as of May 19, 1995 (the “Agreement”), was entered into by and between The Scotts Company, an Ohio corporation, and James Hagedorn (the “Employee”);

     WHEREAS, The Scotts Company was merged with and into The Scotts Company LLC, an Ohio limited liability company (the “Company”), a wholly-owned subsidiary of The Scotts Miracle-Gro Company (the “Corporation”);

     WHEREAS, effective as of October 1, 2008, the Company, the Corporation and Employee (collectively the “parties”) desire to amend the Agreement, to bring it into compliance with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”).

     NOW, THEREFORE, the parties agree as follows:

 

1.

 

Section 7(f) is amended by adding the following at the end thereof:

 

 

 

 

Notwithstanding the foregoing, for purposes of this Agreement, a termination of employment occurs when Employee and the Company reasonably anticipate that (i) no further services will be performed by Employee after a certain date, or (ii) the level of bona fide services which Employee is expected to perform for the Company, the Corporation and their affiliates, as an employee or otherwise, as of a certain date is expected to permanently decrease to a level equal to twenty (20) percent or less of the average level of services performed by Employee during the immediately preceding thirty-six (36) month period (or Employee’s entire period of service if less than thirty-six (36) months). Whether there has been a termination of employment will be determined by the Board of Directors of the Corporation taking into account all of the facts and circumstances at the time of the termination of employment in accordance with the guidelines described in Treas. Regs. Section 1.409-1(h).

 

 

2.

 

Section 8 is amended by adding the following new subsection (d) at the end thereof:

 

(d)

 

Notwithstanding anything in this Agreement to the contrary, if Employee is a “specified employee” of the Corporation (within the meaning of Section 409A and as determined under the Corporation’s policy for determining specified employees) on the Date of Termination, the payment due under Section 8(c)(3) that is required to be delayed under Section 409A shall be delayed for six (6) months following the Date of Termination, and the accumulated postponed amounts paid in a lump sum Payment within five (5) days after the end of such six (6) month period. If Employee dies during the postponement period prior to the payment of such amounts, the amounts postponed on account of Section 409A shall be

 


 

 

 

 

paid to Employee’s Beneficiary within sixty (60) days after the date of Employee’s death.

 

3.

 

The following new Section 17 is added in sequence.

 

 

17.

 

Section 409A. This Agreement is intended to be fully compliant with the requirements of Section 409A, the final regulations promulgated thereunder, taking into account any and all transition rules and relief promulgated by the Internal Revenue Service or the U.S. Department of Treasury regarding compliance therewith, and, to the maximum extent permitted by law, shall be administered, operated and construed consistent with this intent. For purposes of the limitations on nonqualified deferred compensation under Section 409A, each payment of compensation under the Agreement shall be treated as a separate payment of compensation for purposes of applying the Section 409A deferral election rules and the exclusion from Section 409A for certain short-term deferral amounts. Any amounts payable solely on account of an involuntary separation from service within the meaning of Section 409A shall be excludible from the requirements of Section 409A, either as involuntary separation pay or as short-term deferral amounts (e.g., amounts payable under the schedule prior to March 15 of the calendar year following the calendar year of involuntary separation) to the maximum possible extent. Further, any reimbursements or in-kind benefits provided under the Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in the Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.


 

          IN WITNESS WHEREOF, the parties have executed this Amendment Agreement effective as of October 1, 2008, except to the extent an earlier or later date is required to comply with Section 409A or other applicable law. The parties have executed this document on separate signature pages intentionally.

 

 

 

 

 

 

THE SCOTTS MIRACLE-GRO COMPANY
THE SCOTTS COMPANY LLC
 

 

December 22, 2008 

By:  

/s/ Denise Stump  

 

 

 

Denise Stump, Executive Vice President 

 

 

 

Global Human Resources 

 

 

 

 

December 30, 2008  

By:  

/s/ Vincent C. Brockman  

 

 

 

Vincent C. Brockman, Executive Vice President 

 

 

 

General Counsel 

 

 

December 22, 2008 

EMPLOYEE
 

 

 

/s/ James Hagedorn  

 

 

James Hagedorn 

 

 

 

 

 

 

 

 

 

EX-10.1 2 smg2013-12x178kex101.htm EXHIBIT 10.1

 

 

Exhibit 10.1

 

EXECUTIVE SEVERANCE AGREEMENT

 

THIS SEVERANCE AGREEMENT (this “Agreement”) is made and entered into as of December 11, 2013, by and between James Hagedorn (“Executive”) and The Scotts Company LLC, an Ohio limited liability company (the “Company”), and is effective December 11, 2013 (“Effective Date”).

WHEREAS, Executive and The Scotts Company, the predecessor both to The Scotts Miracle-Gro Company (“SMG”) and the Company, entered into an employment agreement dated May 19, 1995, as amended in 2008 (the “Employment Agreement”); and

WHEREAS, SMG, the Company and Executive have agreed to supersede the Employment Agreement in favor of entering into this Agreement.

NOW THEREFORE, the Company and Executive, intending to be legally bound, agree that the terms of this Agreement are as provided below and no other promises or terms exist other than as stated below.

1.Termination of the Employment Agreement. Executive agrees that the Employment Agreement is terminated and of no further force or effect and hereby accepts the terms of this Agreement as set forth below. Executive agrees to forego any other benefits or payments to which he may otherwise be entitled under the terms of any other plan, program or agreement, of SMG or the Company, or any of their subsidiaries or affiliates, which provides for the payment of severance or severance benefits, or salary continuation, in the event of his termination of employment whether in connection with a change in control of SMG or the Company, or otherwise.

2.Termination of Employment/Good Reason.

2.1    Executive acknowledges that he will be eligible for the severance compensation and benefits and non-compete payments set forth in Section 3 only if (i) he receives a written notice of termination from the Company without Cause (as defined below in Section 2.2), or (ii) he provides the Company with a notice of Good Reason (as defined below in Section 2.3), as to which the Company fails to cure, as provided below. Executive further acknowledges that he will be entitled to the Non-Compete Payments in accordance with Section 3.2 if Executive provides Notice of Termination other than for Good Reason (as defined below in Section 3.2) and the Board of Directors of SMG (the “Board”), in its sole discretion, notifies Executive in writing within 30 days following Executive’s Notice of Termination other than for Good Reason that it intends to enforce the Employee Confidentiality, Noncompetition, Nonsolicitation Agreement, which Executive is required to enter into contemporaneously with this Agreement, and is incorporated herein by reference and attached hereto as Exhibit A (the “Employee Agreement”). Executive acknowledges that he will not be eligible for any Severance Payments, or the Non-Compete Payments, as specified herein, in the event that he does not execute, or he revokes, a Release, substantially in the form attached hereto asExhibit B, with such changes as counsel to the Company advises are required by applicable law, or his employment is terminated by the Company for Cause.

 

1

______

Initials

 


 

2.2    Cause means that Executive has (i) willfully and materially breached the terms of the Employee Agreement; (ii) engaged in willful misconduct that has materially injured the business of SMG, the Company, or any of their subsidiaries, or any affiliates of those entities, on a consolidated basis, with SMG or the Company, (collectively, the “Company Group”); (iii) willfully committed a material act of fraud or material breach of Executive’s duty of loyalty to the Company Group; (iv) willfully and continually failed to attempt in good faith to perform Executive’s duties hereunder (other than any such failure resulting from Executive’s incapacity due to physical or mental illness), after written notice has been delivered to Executive by the Board, which notice specifically identifies the manner in which Executive has not attempted in good faith to perform his duties; or (v) been convicted, or plead guilty or nolo contendere for the commission of an act or acts constituting a felony under the laws of the United States or any state thereof. For purposes of subsections (i) - (iv) no act, or failure to act, on Executive’s part shall be deemed “willful” unless, the Board reasonably determines, in good faith, that it was done, or omitted to be done, by Executive not in good faith and without reasonable belief that his act, or failure to act, was in the best interest of the Company Group.

 

2.3    “Good Reason means, without Executive’s consent, the existence of one or more of the following conditions:

 

(i)    the assignment to Executive of any duties inconsistent with his status as a Chief Executive Officer of the Company or a substantial adverse alteration in the nature or status of Executive’s responsibilities;

(ii)    a reduction by the Company of Executive’s total direct compensation at target for a fiscal year in the aggregate, which is equal to the sum of Executive’s base salary, Executive’s target bonus opportunity (meaning, for such fiscal year, the amount of money determined by multiplying Executive’s bonus target percentage with respect to his annual bonus award by Executive’s then base salary), and the grant date value of any long term awards for such year, based on the standard grant practices of the Compensation and Organization Committee of the Board (the “Committee”) for such year, to an amount less than $5,328,000, it being understood and agreed that the Committee shall have the discretion (to be applied in good faith) to (A) determine the form and terms of any such long term awards, to the extent they are not less favorable to Executive than to other executive officers of the Company, (B) make reasonable allocations of value among Executive’s base salary, target bonus opportunity and long term award, and (C) reduce the total direct compensation paid or granted to Executive for a particular fiscal year, even if the aggregate total direct compensation at target is lower than $5,328,000, but only if comparable reductions are made for the other senior executives of the Company taking into account Executive’s overall compensation in relation to the others;

 

2

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Initials

        

 


 

(iii)    the requirement by the Company that Executive relocate his primary personal residence;

(iv)    the failure by the Company, without Executive’s consent, to pay to Executive any portion of Executive’s current compensation, or to pay to Executive any portion of an installment of deferred compensation under any deferred compensation program of the Company, within seven days of the date such compensation is due, taking into account any delays required pursuant to applicable law (or regulation);

(v)    the failure by the Company to continue in effect any compensation or benefit plan in which Executive is entitled to participate as of the Effective Date or thereafter which is material to his total compensation, unless an equitable arrangement has been made with respect to such plan, or the failure by the Company to continue his participation therein (or in such substitute or alternative plan) on a basis not materially less favorable, both in terms of the amount of benefits provided and the level of his participation relative to other participants;

(vi)    the failure by the Company to continue to provide Executive with benefits substantially similar to those enjoyed by him as of the Effective Date or thereafter under any of the Company’s pension, life insurance, medical, health and accident, or disability plans in which he is entitled to participate, the taking of any action by the Company which would directly or indirectly materially reduce any of such benefits or deprive Executive of any material fringe benefit or perquisite that he enjoys, or the failure by the Company to provide Executive with the number of paid vacation days to which he is entitled on an annual basis as of the Effective Date; or

(vii)    any purported termination of Executive’s employment without Cause that is not effected pursuant to a Notice of Termination; for purposes of this Agreement, no such purported termination shall be effective.

Notwithstanding the foregoing, an event described in this Section 2.3 shall constitute “Good Reason” only if Executive provides written notice to the Company within 90 days following Executive’s knowledge of the purported act or failure to act constituting the grounds Executive believes gives rise to Good Reason and the Company fails to cure such purported act or failure to act within 30 days after receipt from Executive of such notice. If the Company does not correct the purported act or failure to act, Executive must terminate his employment for Good Reason within 30 days following the end of the Company’s 30-day cure period, in order for the termination to be considered a Good Reason termination.

 

3

______

Initials

        

 


 

3.Amount of Severance Payments, Non-Compete Payments, etc.

3.1    If the Company determines to terminate Executive’s employment without Cause or Executive determines to terminate his employment for Good Reason, the initiating party will provide the other with a written notice (the “Notice of Termination”) specifying the circumstances and the date of termination (the “Effective Date of Termination”). In the event of a termination of Executive’s employment by the Company without Cause or by Executive for Good Reason, and provided that Executive timely executes and does not revoke the Release, Executive’s severance payments (the “Severance Payments”) shall equal (i) a lump sum amount in cash equal to three multiplied by the sum of (A) Executive’s base salary as in effect immediately prior to the circumstances giving rise to the Notice of Termination, plus (B) the highest annual bonus award paid to Executive in respect of the three completed plan years preceding the Effective Date of Termination, (ii) to the extent permitted under the terms and conditions of each applicable plan or arrangement, a lump sum cash payment equal to Executive’s accrued benefits (or the actuarial equivalent if applicable) as of the Effective Date of Termination under the pension plans of the Company, and (iii) a lump sum cash payment equal to the monthly premiums (calculated as described below) for a period of three years following the Effective Date of Termination that Executive would incur if he continued coverage under applicable medical, disability and life insurance plans as existed immediately prior to the circumstances giving rise to the Notice of Termination. For purposes of Section 3.1(iii), the monthly premiums shall be determined as 100% of the applicable monthly premiums for Executive’s medical, disability and life insurance coverage.

Payments of items in Sections 3.1(i) through (iii) shall be made on the effective date of the release; provided that any amount considered to be non-qualified deferred compensation for purposes of Section 409A of the Code shall be made on the 60th day after the Effective Date of Termination.

3.2    In the event that Executive terminates his employment other than for Good Reason upon written notice to the Company (“Notice of Termination other than for Good Reason”), or the Company terminates Executive’s employment for Cause, Executive understands that he is not eligible for the Severance Payments set forth in Section 3.1. However, in the event that Executive provides the Company a Notice of Termination other than for Good Reason, and the Board, in its sole discretion, notifies Executive in writing within 30 days following Executive’s Notice of Termination other than for Good Reason that it intends to enforce the restrictions set forth in Section 5 of the Employee Agreement, the Company shall pay Executive the Non-Compete Payments set forth in Section 3.7 below, which Executive hereby agrees is adequate consideration solely for his execution and compliance with the terms of the Employee Agreement and are not payments related to past services Executive provided to the Company. In the event the Company does not provide such notice and make the Non-Compete Payments, the provisions of Section 5 of the Employee Agreement shall not apply or be enforceable. Executive understands that he will not be eligible for the Non-Compete Payments, however, in accordance with this Section 3.2, unless he timely executes and does not revoke the Release or if the Board does not notify Executive within 30 days following Executive’s Notice of Termination other than for Good Reason that it intends to enforce Section 5 of the Employee

 

4

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Agreement. For the avoidance of doubt, the restrictions set forth in Sections 2, 3 and 4 of the Employee Agreement shall continue to apply irrespective of whether the payment is made. Notwithstanding anything contrary herein, Executive acknowledges and agrees in the event that Executive is terminated for Cause, all restrictions in the Employee Agreement shall continue to apply, including but not limited to the restrictions set forth in Sections, 2, 3, 4, and 5 of the Employee Agreement, no payments shall be made under Section 3.1 or 3.7 of this Agreement, and this Agreement is adequate consideration for Executive’s execution and compliance with the terms of the Employee Agreement.

3.3    In the event that a Notice of Termination or a Notice of Termination other than for Good Reason is given for any reason, or the Company terminates Executive’s employment for Cause, Executive will immediately resign from any director or employee or officer positions which he holds with the Company Group other than his position as a member of the Board, except as set forth in the following sentence. Executive hereby agrees that in the event Executive and his Affiliated Group cease to own, in the aggregate, at least 5% of the voting power of SMG’s outstanding securities, Executive will also immediately resign from the Board, if requested by the Board upon a termination of his employment by the Company for Cause. For purposes hereof, “Affiliated Group” means (i) Executive, (ii) the Hagedorn Partnership L.P., (iii) Executive’s wife, (iv) Executive’s lineal descendents, (v) Executive’s brothers and sisters and their lineal descendants and (vi) any trust or other estate planning device established for the benefit of, or controlled by any, of the individuals/entities listed in clauses (i) - (v).             

3.4    Executive hereby agrees that the Non-Compete Payments due under Section 3.7, will be repaid within 10 business days of a request of the Company, and all future payments, if any, will cease, in the event that the Board determines in its reasonable and good faith judgment that Executive has materially breached any post-employment obligations owed to the Company under Section 5 of the Employee Agreement. To the extent that a court finally determines that Executive did not materially breach any of his material post-employment obligations owed to the Company under Section 5 of the Employee Agreement, the Company will (i) reimburse Executive for reasonable legal fees incurred in connection with obtaining the judgment, (ii) reimburse Executive for the repayments made in accordance with the prior sentence and (iii) make the other Non-Compete Payments that would otherwise have been made to Executive.

3.5    Executive hereby agrees that, to the extent required by applicable law, including implementing regulations, and whether or not then employed, any incentive-based compensation, whether cash or equity, received within the three-year period preceding the event giving rise to a repayment requirement will be repaid or returned by Executive, or the after tax value (to the extent permissible under applicable law, including implementing regulations) repaid in the event that any equity has then been sold. For the avoidance of doubt, this Section 3.5 shall apply only to cash compensation received or equity awards granted after the Effective Date, except as otherwise required by applicable law or implementing regulations.

 

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3.6    Executive hereby agrees that during the course of his employment and on and after the Effective Date of Termination, that he will not publicly disparage in any material respect any member of the Company Group, or its respective officers or directors, or make any public statement reflecting negatively on any member of the Company Group or its respective officers or directors (in their capacity as officers or directors, as applicable) to third parties, including, but not limited to, any matters relating to the operation or management of any member of the Company Group, irrespective of the truthfulness of such statement; provided, however, that this shall not preclude truthful testimony in a court proceeding or administrative hearing with subpoena power or truthful statements in response to disparaging statements made in respect of Executive. Likewise, the Company and SMG agree to cause the members of their boards of directors and the senior executive officers of each member of the Company Group not to publicly disparage in any material respect Executive in his capacity as an executive, or former executive, of the Company and SMG, in any public statement external to the Company or SMG which would reflect negatively on Executive including, but not limited to, any matters relating to Executive’s performance, irrespective of the truthfulness of any such statement; provided, however, that this shall not preclude truthful testimony in a court proceeding or administrative hearing with subpoena power or truthful statements in response to disparaging statements made in respect of any member of the Company Group, or its respective officers or directors.

3.7    Solely in exchange for Executive entering into the Employee Agreement and not as payment for past services Executive provided to the Company, if Executive’s employment is terminated either in accordance with the provisions of Section 3.1, or Section 3.2, if applicable, Executive will receive cash installment payments of $100,000 per month over 36 months, which equals an aggregate amount of $3,600,000 (“Non-Compete Payments”). Executive hereby agrees such Non-Compete Payments are adequate consideration for his execution and compliance with the terms of the Employee Agreement. The total amount of $3,600,000 in Non-Compete Payments will be paid to Executive as follows: the first payment of $200,000, which will cover the first two months will be paid to Executive in a lump sum cash payment on the effective date of the Release; provided that any amount considered to be non-qualified deferred compensation under Section 409A of the Code shall be made on the 60th day following the Effective Date of Termination, or such later date as is required by applicable law (or regulation), and the remaining 34 months of $100,000 per month will be paid to Executive on a monthly basis during each succeeding month, or such later date as is required in accordance with Section 3.8 below.

3.8    It is the Company’s intent that amounts paid under this Agreement shall not constitute “deferred compensation,” as that term is defined under Section 409A of the Internal Revenue Code of 1986, as amended (“Code Section 409A”), and the regulations promulgated thereunder, or shall comply with Code Section 409A, and each payment shall be treated as a separate payment for that purpose. However, if any amount paid under this Agreement is determined to be “deferred compensation” within the meaning of Code Section 409A and compliance with one or more of the provisions of this Agreement would cause or would result in a violation of Code Section 409A, then such provision shall be interpreted or reformed in the manner necessary to achieve compliance with Code Section 409A, including but not limited to, the imposition of a six-month delay in payment to Executive if Executive is a

 

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“specified employee” (as defined in Code Section 409A) following Executive’s Effective Date of Termination which entitles Executive to a payment under this Agreement. All payments considered to be non-qualified deferred compensation under Section 409A that are to be made upon a termination of Executive’s employment may only be made upon a “separation from service” under Code Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of a payment and where payment may occur in one year or the next, it shall be made in the second year.

4.    Miscellaneous.

4.1    Executive acknowledges that the validity, construction and interpretation of this Agreement shall be governed by the laws of the State of Ohio.

4.2    The Company agrees to require any successor to all or substantially all of the business and/or assets of the Company (whether direct or indirect, by purchase, merger, consolidation or otherwise), by agreement in form and substance reasonably satisfactory to Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Executive to compensation from the Company in the same amount and on the same terms as Executive would be entitled to hereunder if he terminated his employment for Good Reason, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Effective Date of Termination. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that executes and delivers the agreement provided for in this Section 4.2 or that otherwise becomes bound by all the terms and provisions of this Agreement by operation of law.

 

4.3    All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or regulation. Executive shall bear all expense of, and be solely responsible for, all federal, state and local taxes due with respect to any payment received under this Agreement.

    

4.4    Severance Payments and/or Non-Compete Payments payable under this Agreement shall not be subject to Executive’s anticipation, alienation, pledge, sale, transfer, assignment, garnishment, attachment, execution, encumbrance, levy, lien, or charge, and any attempt to cause such Severance Payments and/or Non-Compete Payments to be so subjected shall not be recognized, except to the extent required by law.

 

4.5    This Agreement shall not confer employment rights on Executive. Executive is not entitled, by virtue of this Agreement, to remain in the employ of the Company

 

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and nothing in this Agreement shall restrict the right of the Company to terminate his employment at any time, for any reason and with or without notice or cause.

 

4.6    This Agreement may be changed only by a written document signed by Executive and the Company.

 

4.7    This Agreement does not grant Executive any right in or title to any assets, funds, or property of the Company. Any payment which becomes due under this Agreement is an unfunded obligation and shall be paid from the general assets of the Company. No employee, officer, director or agent of the Company personally guarantees in any manner the payment of Severance Payments or Non-Compete Payments.

 

4.8    If any provision of this Agreement is found, held or deemed by a court of competent jurisdiction to be void, unlawful or unenforceable under any applicable statute or other controlling law, the remainder of this Agreement shall continue in full force and effect.

[Signature Page Follows]

 

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This Agreement has been duly executed as of the day and year first written above. 

THE SCOTTS COMPANY LLC

 

By:     /s/ DENISE S. STUMP        Title:    EVP, Global Human Resources

By signing below, Executive hereby agrees that the Employment Agreement is terminated and of no further force or effect, Executive has no “good reason” as defined in the Employment Agreement as of the date of this Agreement and Executive accepts his right to receive potential Severance Payments and/or the Non-Compete Payments described in this Agreement and agrees to be bound by the terms of this Agreement, including the Employee Agreement incorporated herein.

/s/ IVAN C. SMITH                /s/ JAMES HAGEDORN    

Witness                    Executive

 

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EXHIBIT A

 

http://www.sec.gov/Archives/edgar/data/825542/000144398413000030/smg201312168kex102image1.gif

 

 

 

EMPLOYEE CONFIDENTIALITY, NONCOMPETITION,

NONSOLICITATION AGREEMENT

 

This Employee Confidentiality, Noncompetition, Nonsolicitation Agreement (“Agreement”), is by and between The Scotts Company LLC, and all companies controlled by, controlling or under common control with the Scotts Company LLC (collectively, the “Company”), and James Hagedorn (the “Executive”). This Agreement is effective as of the date signed by Executive below (the “Effective Date”).

 

WHEREAS, the Company desires to continue to employ Executive, and Executive desires to continue to be employed by the Company, in a position with respect to which Executive will have access to certain confidential and proprietary information of the Company;

 

WHEREAS, the Company and Executive have agreed to enter into the Severance Agreement, dated as of the Effective Date, pursuant to which Executive shall receive severance pay and a non-compete payment upon certain terminations of employment with the Company (the “Severance Agreement”); and,

 

WHEREAS, the Company believes, and Executive hereby acknowledges, that the confidential and proprietary information of the Company is extremely important to the success of the Company, and Executive understands and agrees that the Company is willing to provide Executive access or continued access to such information, subject to and in consideration of the agreements of Executive set forth herein regarding confidentiality, noncompetition, nonsolicitation and related matters.

 

NOW, THEREFORE, in consideration for the promises by the Company to make the non-compete payment in accordance with, and under the circumstances set forth in, the terms of Severance Agreement, continued access to Confidential Information (defined below), as well as other good and valuable consideration provided by the Company to Executive, the receipt and sufficiency of which are hereby acknowledged, Executive freely enters this Agreement according to the following terms and conditions:

 

1.Confidential Information. As used in this Agreement the term “Confidential Information” shall mean any and all financial, commercial, technical, engineering or other information in written, oral, visual, or electronic form concerning the business and affairs of the Company including, without limitation, (i) information derived from reports, investigations, experiments, research and work in progress, (ii) methods of operation, (iii) market data, (iv) proprietary computer programs and codes, (v) drawings, designs, plans and proposals, (vi) marketing and sales programs, (vii) client and supplier lists and any other information about the Company’s relationships with others, (viii) financial information and financial projections, (ix) network and system architecture, (x) all other concepts, ideas, materials and information prepared or performed for or by the Company and (xi) all information related to the business plan, strategies, business, products, purchases or sales of the Company or any of its suppliers and customers. The term “Confidential Information” does not include information that: (a) was or is known by the public or within the Company’s industry; (b) was previously known to the Executive independent of the Company or, subject to the terms of Section 4 of this Agreement, independently developed or derived by Executive without the aid, application or use of any Confidential Information, as evidenced by corroborating, dated documentation; or (c) is disclosed to Executive on a non-confidential basis by a third party unless Executive knows or should know such third party does not have the right to disclose such information.

 

 

 


 

 

2.Confidentiality. Executive recognizes and acknowledges that the Confidential Information, as it may exist from time to time, is a valuable, special and unique asset of the Company. Executive further recognizes and acknowledges that access to and knowledge of the Confidential Information is essential to the performance of the Executive’s duties as an employee of the Company. Accordingly, during Executive’s employment with the Company, other than where Executive determines, in his reasonable and good faith judgment, it is consistent with Executive’s discharge of duties for the Company, and for an indefinite period thereafter, Executive shall hold in strict confidence and shall not, directly or indirectly, disclose or reveal to any person, or use for Executive’s own personal benefit or for the benefit of anyone other than the Company, any Confidential Information of any kind, nature or description (whether or not acquired, learned, obtained or developed by Executive alone or in conjunction with others) belonging to or concerning the Company, or any of its customers or clients or others with whom the Company now or hereafter has a business relationship, except (a) with the prior written consent of the Company, or (b) in the course of the proper performance of Executive’s duties as an employee of the Company. Upon the termination of Executive’s employment with the Company, or whenever requested by the Company, Executive shall immediately deliver to the Company all Confidential Information in Executive’s possession or under Executive’s control.

3.    Company Property. Upon the termination of Executive’s employment with the Company, or whenever requested by the Company, Executive shall immediately deliver to the Company all property in Executive’s possession or under Executive’s control belonging to the Company without limitation.

 

4.    Executive Created Intellectual Property. Any and all inventions, ideas, improvements, discoveries, concepts, writings, processes, procedures, products, designs, formulae, specifications, samples, methods, know how or other things of value (“Intellectual Property”) which Executive may make, conceive, discover or develop, either solely or jointly with any other person or persons, at any time during the term of this Agreement or during the term of any prior employment by the Company, whether during working hours or at any other time and whether at the request or upon the suggestion of the Company or otherwise, which relate to the business now or carried on by the Company during Executive’s employment by the Company, shall be the sole and exclusive property of the Company, and where applicable, all copyrightable works shall be considered “Works Made for Hire” under the U.S. Copyright Act, 17 USC § 101 et seq. Executive (a) agrees to promptly disclose all such Intellectual Property to the Company, (b) agrees to do everything necessary or advisable to vest absolute title thereto in the Company, (c) assigns, without further consideration, to the Company all right, title and interest in and to such Intellectual Property, free and clear of any claims, liens or reserved rights of the Executive, and (d) irrevocably relinquishes for the benefit of the Company and its assignees any moral rights in the Intellectual Property recognized by applicable law.

 

5.    Restrictive Covenants. Executive agrees that during the Executive’s employment with the Company and, to the extent provided in the Executive Severance Agreement, dated December 11, 2013 by and between the parties, for a period of three (3) years thereafter, Executive shall not, directly or indirectly, for Executive’s own benefit or for the benefit of any person or entity other than the Company:

 

(a) engage in, be employed by, or have any interest in, a person or entity that engages in, the business of providing services and/or products that are competitive with the Company’s business as that business is conducted or proposed to be conducted during the Executive’s employment. This prohibition shall generally apply to any competitive activities in any geographic area either in which the Company is engaged in business activities or in which its customers are located as of the date that Executive’s employment ends, but shall not preclude Executive from, directly or indirectly, owning publicly traded stock constituting not more than 3% of the outstanding shares of such class of stock of any corporation if, and as long as Executive is not an officer, director, employee or agent or, or consultant or advisor to, or has any other relationship or agreement with such corporation;

(b) employ, solicit for employment, or advise or recommend to any other person (“person” meaning a natural person or legal entity) that such other person employ or solicit for employment, any current or past employee of the Company (where “past employee of the Company” means any person employed by the Company within one year of the solicitation or proposed employment);

 

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(c) solicit or induce, or attempt to solicit or induce, any customer or prospective customer of the Company (i) to cease being, or not becoming, a customer of the Company or (ii) to divert any of the customer’s business or prospective business from the Company; or

(d) otherwise interfere with, disrupt, or attempt to interfere with or disrupt the relationship, contractual or otherwise, between the Company and any of its customers, clients, suppliers, consultants or employees.

Executive agrees that the restrictions contained in this Section 5 are reasonable in scope, duration, and geographic territory, and necessary to protect the Company’s legitimate business interests. The restrictive covenants set forth in this Paragraph 5 are subject to Paragraph 8 hereof and Executive hereby waives any and all right to attack the validity of such covenants on the grounds of the breadth of their geographic scope or the length of their term.

6.

Certain Remedies.

(a) Executive agrees and acknowledges that Executive’s breach of any of the provisions of paragraphs 2 and 5 of this Agreement will cause, in addition to any liquidated or quantifiable monetary damage, irreparable damage to the Company for which monetary damages alone will not constitute an adequate remedy. Consequently, Executive agrees that the Company shall be entitled as a matter of right (without being required to prove damages or furnish any bond or other security) to obtain a restraining order, an injunction, an order of specific performance, or other equitable or extraordinary relief from any court of competent jurisdiction restraining any further breach of such provisions by Executive or requiring Executive to perform its obligations hereunder. Such right to equitable or extraordinary relief shall not be exclusive but shall be in addition to all other rights and remedies to which the Company may be entitled at law or in equity, including without limitation the right to recover monetary damages as set forth in paragraph 6(b) and for the breach of any of the provisions of this Agreement.

(b) The parties agree that the monetary value of any breach of paragraph 5 would be difficult to calculate. As a result, the parties agree that in the event of a material breach of paragraph 5 that the Board reasonably determines in good faith is not cured (to the extent curable) within 30 days of written notice from the Company, in addition to any additional monetary damages that may be proven, Executive shall give up any right Executive may have to any unpaid Non-Compete Payments under Section 3.7 of the Severance Agreement, and shall, upon the Company’s demand, repay, within 10 business days, all payments Executive has received under Section 3.7 of the Severance Agreement. To the extent that a court finally determines that Executive did not materially breach his obligations under paragraph 5, as applicable, the Company will (i) reimburse Executive for reasonable legal fees incurred in connection with obtaining the judgment, (ii) reimburse Executive for the repayments made in accordance with the prior sentence and (iii) make the other Non-Compete Payments that would otherwise have been made to Executive. Executive acknowledges that this is a reasonable basis for estimating damages from such breach and that these estimated damages are separate from the irreparable harm contemplated in subparagraph 6(a).

7.Term of this Agreement. Except as otherwise expressly provided in paragraph 5, this Agreement shall continue in effect and survive for an indefinite period notwithstanding the termination of Executive’s employment with the Company for any reason.

 

8.NO EMPLOYMENT AGREEMENT. THIS AGREEMENT IS NOT, HOWEVER, AND SHALL NOT BE DEEMED TO BE, AN EMPLOYMENT AGREEMENT THAT OBLIGATES THE COMPANY TO CONTINUE TO EMPLOY EXECUTIVE, OR OBLIGATES EXECUTIVE TO CONTINUE IN THE COMPANY’S EMPLOYMENT, FOR ANY TERM WHATSOEVER. UNLESS THERE IS A SEPARATE, WRITTEN EMPLOYMENT CONTRACT BETWEEN EXECUTIVE AND THE COMPANY TO THE CONTRARY, EXECUTIVE IS AN “AT WILL” EMPLOYEE OF THE COMPANY AND THE CONTINUATION OF EXECUTIVE’S EMPLOYMENT BY THE COMPANY IS SUBJECT TO THE RIGHT OF THE COMPANY TO TERMINATE SUCH EMPLOYMENT AT ANY TIME, WITHOUT CAUSE.

 

 

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9. Severability. If any provision of this Agreement is held to be unenforceable for any reason, that provision shall be severed and this Agreement shall remain in full force and effect in all other respects. If any provision of this Agreement, although unenforceable as written, may be made enforceable by limitation thereof, then such provision will be enforceable to the maximum extent permitted by applicable law.

 

10. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO IRRESPECTIVE OF CHOICE OF LAW PRINCIPLES. Executive and the Company agree that any action brought by any party in connection with this Agreement shall be filed in either state or federal court located within the State of Ohio.

 

11.    No Reliance. Executive represents and warrants to the Company that no promise or inducement for this Agreement has been made to Executive except as set forth herein; and this Agreement is executed by Executive freely and voluntarily, and without reliance upon any statement or representation by the Company, or any of the Company’s attorneys, employees or agents except as expressly set forth herein.

 

12. Assignment. The Company may assign, in whole or in part, its rights and obligations under this Agreement. The rights of the Company shall enure to the benefit of, and the obligations of the Company shall be binding upon, the Company’s successors and assigns. Executive shall not be entitled to assign any of Executive’s rights or obligations under this Agreement.

 

13. Notification. Executive agrees that the Company may notify any person or entity employing Executive or intending to employ Executive of the existence and provisions of this Agreement.

14. Modification and Waiver. This Agreement shall not be modified unless such modification is in writing and signed by the EVP, Human Resources for the Company. Further, the parties agree that the Company’s waiver of any provision of this Agreement shall not constitute a waiver of any other provision of this Agreement.

 

 

 

 

AGREED AND ACKNOWLEDGED:

 

EMPLOYEE:                    THE SCOTTS COMPANY LLC

                        

 

 

    

/s/ JAMES HAGEDORN            By: /s/ DENISE STUMP        

Signature                        Signature                    

 

 

James Hagedorn                Denise Stump, EVP Human Resources

Printed Name                    Printed Name

 

 

December 12, 2013    

Date                        

    

 

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EXHIBIT B

 

(Non-Execution Version)

 

 

 

 

                http://www.sec.gov/Archives/edgar/data/825542/000144398413000030/smg201312168kex101image1.gif

 

SEPARATION AGREEMENT

 

NOTICE: READ BEFORE YOU SIGN!

This agreement contains a RELEASE. We advise that you consult an ATTORNEY.

 

THIS SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS (“Agreement”) is made and entered into by and between James Hagedorn(“Executive”) and The Scotts Company LLC (“Company”);

 

WHEREAS, Executive’s last day of employment with Company shall be [Last Day Worked] (the “Termination Date”);

 

WHEREAS, Executive is subject to an Executive Severance Agreement, dated as of December 11, 2013 (the “Severance Agreement”), the benefits of which are non-negotiable and only available following the Effective Date of this Agreement (as described in Section 5 below);

 

NOW THEREFORE, in exchange for and in consideration of the promises and covenants contained herein, along with other good and valuable consideration, the receipt of which is expressly acknowledged hereby, the parties agree as follows:

 

1.[Severance and Non-Compete] or [Non-Compete] Payments. The parties agree that Executive has been separated from service for[Insert Reason] giving rise to the payment of severance payments and/or non-compete payments (and no other benefits) and he is only entitled to such payments following the Effective Date of this Agreement (as described in Section 5 below). The terms of the Severance Agreement are hereby incorporated by reference and any inconsistency between the terms of the Severance Agreement and this Agreement will be resolved in favor of the terms of the Severance Agreement. The Company agrees to provide Executive with the following (collectively, the “[Severance and Non-Compete] or[Non-Compete] Payments”) :

 

[Note: (A) Insert (i) Severance Payments from Section 3.1 and Non-Compete Payments from 3.7 of the Severance Agreement or (ii) Non-Compete Payments from Section 3.7 of the Severance Agreement, to the extent Section 3.2 of the Severance Agreement applies, and (B)add timing of payment and determine whether the six month delay in Section 3.8 of the Severance Agreement applies.]

 

 

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The [Severance and Non-Compete] or [Non-Compete] Payments described herein shall be the only severance and/or non-compete amounts paid by or on behalf of Company, and no interest on this amount shall be paid. Executive acknowledges and agrees that the payments described above are the amounts payable to Executive pursuant to the Severance Agreement and that he is not entitled to any other severance and/or non-compete benefits under the Severance Agreement or any other severance and/or non-compete plan or agreement. [Executive otherwise acknowledges hereby the receipt of all wages and other compensation or benefits to which Executive is entitled as a result of Executive’s employment with Company through the Termination Date.]1 

 

2.    Release of Claims. Executive, on behalf of himself and his spouse, personal representatives, administrators, minor children, heirs, assigns, wards, agents, any businesses he controls (except with respect to invoiced amounts then payable, or amounts invoiced within 30 days thereafter, to any such business as of the Effective Date of this Agreement (as described in Section 5 below)) and all other persons claiming by or through Executive, does hereby forever release and discharge Company, its parent, and their respective officers, directors, shareholders, agents, employees, affiliates, subsidiaries, divisions, predecessors, successors, and assigns (the “Released Parties”) from any and all charges, claims, demands, judgments, causes of action, damages, expenses, costs, and liabilities of any kind whatsoever related to Executive’s employment by, or termination of employment with, the Company. Executive expressly acknowledges that the claims released by this Section 2 include all rights and claims relating to Executive’s employment with Company and the termination thereof, including without limitation any claims Executive may have under the Age Discrimination in Employment Act (ADEA), as amended by the Older Worker Benefit Protection Act (OWBPA), Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act (ERISA), the Worker Adjustment Retraining and Notification (WARN) Act, Ohio Revised Code Chapter 4112, Family and Medical Leave Act and any other federal, state, or local laws or regulations governing employment relationships. This release does not apply to claims that are related to Executive’s status as a shareholder of the Company or its affiliates. This release specifically and without limitation includes a release and waiver of any claims for employment discrimination, wrongful discharge, breach of contract, or promissory estoppel, and extends to all claims of every nature and kind, whether known or unknown, suspected or unsuspected, presently existing or resulting from or attributable to any act or

omission of the Released Parties occurring prior to the execution of this Agreement that relate to Executive’s employment by, or termination of employment with, the Company.

The release contained herein does not apply to any claim or to rights or claims first arising after the Effective Date of this Agreement (as described in Section 5 below), to

 

    

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1 To be deleted if not true

 

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Executive’s right to require the payments provided for herein, nor does it apply to any claims for indemnification in accordance with the Company’s bylaws and procedures or otherwise, unemployment compensation, workers compensation benefits, or vested benefits under ERISA-covered arrangements.

 

3.    Right to Participate in Charge. Nothing in this Agreement shall be construed to mean that Executive may not file a charge with a governmental agency, or participate in any investigation of a charge conducted by any governmental agency. Executive nevertheless understands and agrees that because of the waiver and release, he freely provides by signing this Agreement, he cannot obtain any monetary relief or recovery from the Released Parties in any proceeding.

 

4.    Knowing and Voluntary Act. Executive acknowledges and agrees that the release set forth above is a general release. Executive, having been encouraged to and having had the opportunity to be advised by counsel, expressly waives all claims for damages which exist as of this date, but of which Executive does not now know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known would materially affect Executive’s decision to enter into this Agreement. Executive further agrees that Executive accepts the [Severance and Non-Compete] or [Non-Compete] Payments as a complete compromise of matters involving disputed issues of law and fact and assumes the risk that the facts and law may be other than Executive believes. Executive further acknowledges and agrees that all the terms of this Agreement shall be in all respects effective and not subject to termination or rescission by reason of any such differences in the facts or law, and that Executive provides this release voluntarily and with full knowledge and understanding of the terms hereof.

 

5.    Revocation PeriodExecutive specifically acknowledges and understands that this Agreement is intended to release and discharge any claims of Executive under the Age Discrimination in Employment Act (ADEA), as amended by the Older Worker Benefit Protection Act (OWBPA). Under the OWBPA, Executive has 21 calendar days in which to consider this Agreement. However, pursuant to Section 19, below, Executive may sign this Agreement at any time up to and including 45 days after the Termination Date. Executive will have seven calendar days in which to revoke Executive’s acceptance after signing this Agreement. To revoke, Executive must deliver written notice of revocation to Company’s Human Resources Department at 14111 Scottslawn Rd; Marysville, Ohio 43041. This Agreement will not be effective or enforceable unless it is signed in accordance with Section 19 and is not revoked before the revocation period has expired. The Effective Date is the day after the last day of the revocation period following Executive’s execution of this Agreement.

 

6.    Non-disparagement, Non-compete. Executive agrees that the provisions of the Employee Agreement and Sections 3.4 and 3.6 of the Severance Agreement shall continue to apply.

 

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7.    No Admission of Liability. Neither this Agreement, nor any term contained herein, may be construed as, or may be used as, an admission on the part of either party of any fault, wrongdoing, or liability whatsoever.

 

8.    Survivorship. Should Executive die or become totally disabled (as determined by the Board) following the Termination Date but before the payments due Executive under Section 1 above have been made, any remaining payments shall be made to Executive (or Executive’s designated beneficiary, as applicable).

 

9.    Return of Property. Executive agrees to return all Company property remaining in Executive’s possession or control, including without limitation any and all equipment, documents, credit cards, hardware, software, source code, data, keys or access cards, files, or records on or before the Termination Date.

 

10.    Confidentiality. Executive acknowledges and agrees that his confidentiality, nondisclosure, noncompetition, and nonsolicitation obligations to Company under Section 2 and Section 5 of the Employee Agreement, or any other agreement, to the extent applicable, are not being released hereby and will specifically survive the termination of Executive’s employment and this Agreement. To the extent required under Section 2 of the Employee Agreement, Executive expressly agrees to keep and maintain Company confidential information confidential, and not to use or disclose such information, directly or indirectly, without the prior written consent of Company.

 

11.    Cooperation with Litigation.  Subject to Executive’s professional and business schedule, Executive will reasonably cooperate with Company in its defense of any lawsuit filed over matters that occurred during the tenure of Executive’s employment with Company, and Executive agrees to provide truthful information with respect to same.  Executive further agrees not to assist any party in maintaining any lawsuit against any of the Released Parties involving a claim released hereunder, and, in connection therewith, will not provide any information to anyone concerning any of the Released Parties, unless compelled to do so by valid subpoena or other court order, and in such case Executive shall, to the extent permitted by law, notify the Company reasonably promptly after receiving such subpoena or court order. The Company shall reimburse Executive for all reasonable expenses incurred in connection with such cooperation. This paragraph shall not apply in connection with any lawsuit with respect to which Executive is an adverse party to the Company. Nothing herein shall require Executive to provide any information that would be, in his reasonable and good faith judgment, to the detriment of Executive.

 

12.    Cooperation with Governmental Investigations.  Subject to Executive’s professional and business schedule, and his personal legal rights, Executive will reasonably cooperate with Company in any investigation, audit, or inquiry conducted by or on behalf of any federal, state, or local governmental agencies regarding the Company, including, providing truthful information to the Company.  To the extent permitted by

 

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law, Executive further agrees to notify the Company through the Director of Litigation, David Faure, at 14111 Scottslawn Road, Marysville, Ohio 43041, should he be contacted by a governmental agency regarding a governmental investigation, audit or inquiry regarding the Company.  In any such case, the Company agrees to indemnify and defend Executive in accordance with its Code of Regulations and Ohio corporate law. Nothing herein shall require Executive to provide any information that would be, in his reasonable and good faith judgment, to the detriment of Executive.

 

13.    Choice of Law. The validity, construction and interpretation of this Agreement shall be governed by the laws of the State of Ohio.

 

14.    Execution in Parts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which shall constitute a single Agreement. 

15.    No Waiver of Terms. Failure to insist upon strict compliance with any of the terms, covenants, or conditions of this Agreement shall not be deemed a waiver of any such term, covenant, or condition, nor shall any failure at any one time or more times be deemed a waiver or relinquishment at any other time or times of any right under this Agreement. 

16.    Modifications. No modification or amendment of this Agreement shall be effective unless the same is in a writing duly executed by all the parties hereto. 

17.    Assignment. Company may assign, in whole or in part, its rights and obligations under this Agreement, and the rights of Company hereunder shall inure to the benefit of, and the obligations of Company hereunder shall be binding upon, its successors and assigns. Executive’s rights and obligations hereunder may not be assigned. 

18.    Entire Agreement. Except as otherwise set forth herein, this Agreement sets forth the entire agreement between Company and Executive and supersedes and replaces any and all prior or contemporaneous representations or agreements, whether oral or written, relating to the subject matter hereof.

 

19.    Method of Acceptance. To accept, Executive must sign the Agreement. Once Executive has accepted the Agreement, Executive shall deliver a signed and dated copy hereof to Tasha Potts in Company’s Human Resources Department, 14111 Scottslawn Road, Marysville, Ohio 43041. This Agreement cannot be accepted until after the Termination Date and will not be effective if signed by Executive prior to the Termination Date. Executive has 45 days following the Termination Date to accept this Agreement. Executive’s failure to deliver Agreement in a timely manner will excuse Company from timely payment.

 

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IN WITNESS WHEREOF, EACH OF THE UNDERSIGNED, HAVING RECEIVED ALL THE ADVICE DEEMED NECESSARY, AND HAVING CAREFULLY READ AND UNDERSTOOD THIS AGREEMENT, DOES HEREBY SIGN AND ACCEPT THIS AGREEMENT AS OF THE DATE SET FORTH BELOW.

 

                

Date            James Hagedorn

 

 

[date presented]        THE SCOTTS COMPANY LLC

Date

By:     

 

Its: Executive Vice President, Global HR    

 

 

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