THE SCOTTS COMPANY LLC
EXCESS BENEFIT PLAN FOR GRANDFATHERED ASSOCIATES
As of January 1, 2005
The O.M. Scott
& Sons Company, a Delaware corporation, adopted The O.M. Scott
& Sons Company Excess Benefit Plan, effective October 1,
1993, which was subsequently amended from time to time. The O.M.
Scott & Sons Company was subsequently merged into The Scotts
Company, and the sponsorship of The O.M. Scott & Sons Company
Excess Benefit Plan was assumed by The Scotts Company. Effective
March 18, 2005, The Scotts Company, through merger with The
Scotts Miracle-Gro Company, became known as The Scotts Company LLC.
Concurrent therewith, The O.M. Scott & Sons Company Excess
Benefit Plan was renamed The Scotts Company LLC Excess Benefit
Plan. Following the enactment of Code Section 409A, the
Company elected to bifurcate The Scotts Company LLC Excess Benefit
Plan, effective January 1, 2005, into two plans: The Scotts
Company LLC Excess Benefit Plan for Grandfathered Associates and
The Scotts Company LLC Excess Benefit Plan for Non Grandfathered
Associates.
Benefit
accruals under the Base Plan were frozen December 31, 1997,
and except as otherwise provided herein, accruals under this Plan
were also frozen at such time. Continued service taken into account
for vesting purposes under the Base Plan is, however, recognized
with respect to the entitlement to and the calculation of
subsidized early retirement benefits in this Plan. Appendix A lists
the Participants in the Plan as of January 1, 2005, all of
whose benefits were frozen and vested on or before
December 31, 2004.
Deferred
compensation which was earned and vested as of December 31,
2004, is not subject to Internal Revenue Code Section 409A if
benefits or rights existing as of October 3, 2004, are not
materially enhanced or a new material right or benefit affecting
amounts earned and vested before January 1, 2005, is not
adopted after October 3, 2004. The terms of this Plan are
essentially those in effect as of October 3, 2004, and the
Company intends that all benefits provided under the Plan be exempt
from Section 409A.
The Scotts
Company LLC Excess Benefit Plan for Non Grandfathered Associates
shall apply to any Participant in The Scotts Company LLC Excess
Benefit Plan prior to January 1, 2005, who retires, dies,
becomes disabled, or terminates employment on or after
January 1, 2005. The Scotts Company LLC Excess Benefit Plan
for Non Grandfathered Associates is subject to the requirements of
Code Section 409A.
Section 1. Definitions
. The following terms have the
meanings assigned by this Section, which will be equally applicable
to the singular and plural forms of such terms.
“Base
Plan” means,
effective March 18, 2005, The Scotts Company LLC
Associates’ Pension Plan, as amended effective
January 1, 2006; prior to March 18, 2005, the Base Plan
means The O.M. Scott & Sons Company Employees’ Pension
Plan, as amended effective January 1, 1998, January 1,
1999, and March 18, 2005.
“Base
Plan Limit” means
the limitations on benefits to Participants under the Base Plan
established under Section 415 or Section 401(a)(17) of
the Code and any limitations on compensation taken into account
under the Base Plan. Effective January 1, 1999, Code
Section 415 shall be applied as if the limitations of Code
Section 415(e), as in effect on December 31, 1999,
continued to apply.
“Beneficiary”
means the person or entity entitled
to receive a Participant’s benefits under the Base Plan in
the event of the Participant’s death.
“Board” means the Board of Directors of the
Corporation.
“Code” or “IRC” means the Internal
Revenue Code of 1986, as amended, and the regulations promulgated
thereunder.
“Committee” or “Administrative Committee”
means the Benefits Administrative Committee under the Base
Plan.
“Company” means The O.M. Scott & Sons Company, a
Delaware corporation from the Effective Date through March 18,
2005, and thereafter means The Scotts Company LLC, an Ohio limited
liability company.
“Corporation”
means The Scotts Miracle-Gro
Company.
“Effective Date”
means January 1, 2005, unless
otherwise described herein. The predecessor to this Plan was
originally effective on October 1, 1993.
“Employer” means the Company and each affiliate of the
Company that is a participating employer under the Base
Plan.
“Grandfathered Benefits”
means the benefit described under
Plan Section 3.1
“Participant”
means, effective January 1,
2005, those select group of management or highly compensated
employees named in Appendix A, attached hereto. No other
individual shall become a Participant in the Plan.
“Plan” means The O.M. Scott & Sons Company Excess
Benefit Plan from October 1, 1993, through December 31,
2004; and, effective January 1, 2005, Plan means The Scotts
Company LLC Excess Benefit Plan For Grandfathered Associates, as
reflected in this document as amended from time to time.
Section 2. Participation
. Effective January 1, 2005,
the individuals named in Appendix A, are the only Participants
in this Plan. No other individual shall become a Participant in the
Plan.
Section 3. Grandfathered
Benefits .
|
3.1
|
|
Right to Grandfathered
Benefits . At such time as a Participant or
Beneficiary receives benefits under the Base Plan, the Employer
will pay to the Participant or Beneficiary benefits under this Plan
equal to the amount that would have been payable to the
|
2
|
|
Participant or
Beneficiary under the Base Plan without regard to the Base Plan
Limit, less the amount paid under the Base Plan (the
“Grandfathered Benefit”).
|
|
|
|
|
|
Effective January 1,
1998:
|
|
|
(a)
|
|
If
greater than the benefit provided under the preceding paragraph,
Craig D. Walley and Paul E. Yeager (or their Beneficiaries) shall
each receive, in lieu of the benefit provided under the preceding
paragraph, a benefit equal to:
|
|
|
(i)
|
|
the
amount that would have been payable to the individual (or his
Beneficiary) under the Base Plan assuming the individual were
credited with service to the date listed and without regard
to:
|
|
|
(A)
|
|
the
Base Plan Limit; and
|
|
|
|
|
|
|
|
(B)
|
|
the
freeze of the Base Plan as of December 31, 1997;
less
|
|
|
(ii)
|
|
the
amount paid under the Base Plan.
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Date
|
|
Associate
Number
|
|
|
|
|
5/31/98
|
|
|
|
841251
|
|
|
|
|
|
5/31/98
|
|
|
|
690857
|
|
|
|
(b)
|
|
Richard D. Bergum, Robert L. Hughes,
and William F. O’Neil (or their Beneficiaries) shall each
receive a benefit equal to:
|
|
|
(i)
|
|
the
amount that would have been payable to the individual (or his
Beneficiary) under the Base Plan assuming the individual were
credited with service to the date listed and without regard to the
freeze of the Base Plan as of December 31,1997;
less
|
|
|
|
|
|
|
|
(ii)
|
|
the
amount paid under the Base Plan.
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Date
|
|
Associate
Number
|
|
|
|
|
12/31/98
|
|
|
|
861154
|
|
|
|
|
|
11/30/99
|
|
|
|
760855
|
|
|
|
|
|
3/31/98
|
|
|
|
890755
|
|
|
3.2
|
|
Right of Offset
. If the Committee
determines that a person entitled to payment under this Plan or the
Participant of whom such person is the Beneficiary is, for any
reason, indebted to the Employer or any affiliate, the Committee
and the Employer may offset such indebtedness, including any
inte
|
|
