THE SCOTTS COMPANY LLC
EXCESS BENEFIT PLAN FOR NON 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 Non Grandfathered Associates
and The Scotts Company LLC Excess Benefit Plan for Grandfathered
Associates.
Benefit
accruals under the Base Plan and under this Plan were frozen
December 31, 1997. 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.
The purpose of
the Plan is to provide a select group of management or highly
compensated employees with deferred compensation which is not
limited by the restrictions placed upon qualified plan retirement
benefits. The Plan applies to Non Grandfathered Benefits and is
subject to the application of IRC Section 409A.
The provisions
of this Plan apply to Participants in The Scotts Company LLC Excess
Benefit Plan who retire, become disabled, die or terminate
employment on or after January 1, 2005. Participants who
terminated employment before January 1, 2005, or who were
receiving benefits on or before December 31, 2004, under The
Scotts Company Excess Benefit Plan are covered under The Scotts
Company LLC Excess Benefit Plan for Grandfathered
Associates.
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.
“Affiliate” means any business organization or legal entity
that directly or indirectly controls, is controlled by, or is under
common control with the Company. For purposes of this definition,
control (including the terms controlling, controlled by, and under
common control) includes the possession, direct or indirect, of the
power to vote 50% or more of the voting equity securities,
membership interest or other voting interest, or to direct or cause
the direction of the management and policies of such business
organization or other legal entity, whether through the ownership
of equity securities, membership interest, by contract or
otherwise.
“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.
“Change of Control ” means the occurrence of any of the
following:
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(a)
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Board Composition
. Individuals who, as of
July 1, 2008, constitute the Board (the “Incumbent
Board”) cease, within a 12-month period, for any reason
(other than death) to constitute at least a majority of the Board;
provided , however , that any individual becoming a
director subsequent to such date whose appointment, election, or
nomination for election by the Corporation’s shareholders,
was endorsed by at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; or
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(b)
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Stock Acquisition
. (A) One or more
acquisitions, by any individual, entity or group (within the
meanings of Treas. Reg. §§ 1.409A-3(i)(5)(v)(B) and
(vi)(D)) (a “Person”) of 30% or more of the then
outstanding voting securities of the Corporation (the
“Outstanding Voting Securities”), during any 12-month
period ending on the date of the most recent acquisition by that
Person; or (B) an acquisition that results in ownership by a
Person of either ( y ) shares representing more than 50% of
the total fair market value of the Corporation’s then
outstanding stock (the “Outstanding Stock”) or (
z ) shares representing more than 50% of the then
Outstanding Voting Securities; provided , however ,
that for purposes of this paragraph (b), the following acquisitions
of shares of the Corporation shall not be taken into account in the
determination of whether a Change of Control has occurred:
(1) any acquisition directly from the Corporation;
(2) any cash acquisition by the Corporation or an Affiliate;
(3) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or an Affiliate;
(4) an acquisition by a Person that prior to the acquisition
had already acquired more shares than necessary to satisfy the
applicable 30% or 50% threshold; or (5) any acquisition by the
Hagedorn Partnership, L.P. or any party related to the Hagedorn
Partnership, L.P., as determined by the Committee; or
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(c)
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Business Combination
. Consummation of a
reorganization, merger or consolidation of the Corporation (a
“Business Combination”), in each case, that results in
either a change in ownership contemplated in subparagraph
(B) of paragraph (b) above or a change in the Incumbent
Board contemplated by paragraph (a) above; or
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(d)
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Sale or Disposition of
Assets . One
or more Persons acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
Persons) assets from the Corporation that have a total gross fair
market value equal to more than 40% of the total gross fair market
value of all of the assets of the Corporation (without regard to
liabilities of the Corporation or associated with such assets)
immediately before such acquisition or acquisitions; provided that
such sale or disposition is not to:
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(i)
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a
shareholder of the Corporation (immediately before the asset
transfer) in exchange for or with respect to the
Corporation’s Outstanding Stock;
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(ii)
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an
entity, 50% or more of the total value or voting power of which is
owned, directly or indirectly, by the Corporation;
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(iii)
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a
Person that owns, directly or indirectly, 50% or more of the total
value or voting power of all the outstanding stock of the
Corporation; or
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(iv)
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an
entity, at least 50% of the total value or voting power of which is
owned, directly or indirectly, by a Person described in paragraph
(d)(iii) above.
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Except as otherwise specifically
provided in paragraph (d)(i) above, a Person’s status is
determined immediately after the transfer.
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“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.
“Disabled” or “Disability” means,
effective January 1, 2005, that the Participant is, by reason
of any medically determinable physical or mental impairment that
can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of at least three months under an
accident and health plan covering employees of the Company or its
Affiliates.
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“Effective Date”
means January 1, 2005, unless
otherwise specified herein. The Plan’s predecessor 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.
“Non
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. Each such
Participant shall be deemed to be a Specified Employee as defined
in Code Section 409A(a)(2)(B)(i) and Treasury Regulations
Section 1.409A-l(i).
“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 Non Grandfathered Associates,
as reflected in this document as amended from time to
time.
“Separation from Service”
means a Participant’s
termination of employment with the Company and its Affiliates for
any reason, including death. A termination of employment will occur
when the Participant and the Company and its Affiliates reasonably
anticipate that (i) no further services will be performed by
the Participant after a certain date, or (ii) the level of
bona fide services which the Participant is expected to perform for
the Company and its 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 the Participant during the immediately
preceding thirty-six (36) month period (or the
Participant’s entire period of service if less than
thirty-six (36) months). Further, for purposes of this Plan, a
termination of employment is deemed to occur on the first date
following six months after a Participant is first on a military
leave, sick leave or other bona fide leave of absence. Such six
month period may be extended if the Participant retains a right to
reemployment with the Company or its Affiliates under applicable
statute or contract. Notwithstanding the foregoing, where a leave
of absence is due to a medically determinable physical or mental
impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than six
months and where such impairment causes the Participant
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