EXECUTIVE RETIREMENT PLAN
RETENTION AWARD AGREEMENT
THIS EXECUTIVE
RETIREMENT PLAN RETENTION AWARD AGREEMENT (this
“Agreement”) between The Scotts Company LLC (the
“Company”) and ____________ (the
“Participant”) is made pursuant and subject to the
provisions of the Company’s Executive Retirement Plan, as
amended (the “Plan”). Each capitalized term that is
used in this Agreement and that is not defined in this Agreement
has the same meaning as the definition set forth in the
Plan.
1. Retention Award Account Credit. Pursuant to the
Plan, the Company, on November ___, 2008 (the “Award
Date”), allocated One Million Dollars ($1,000,000) to the
Participant’s Retention Award Account.
2. Earnings Benchmarks. The Participant’s
Retention Award Account shall be credited or debited with Additions
in accordance with the Plan based on the Investment Funds that the
Participant selects, in accordance with the terms of the Plan, as
earnings benchmarks for the Retention Award Account.
3. Vesting. Subject to the provisions of paragraphs
3(e) and 3(f), the Participant’s interest in the Retention
Award Account shall be vested and nonforfeitable
(“Vested”) as provided in the following paragraphs
3(a), 3(b), 3(c), and 3(d):
(a)
Continued Service. The Participant’s interest in the
Retention Award Account shall be one hundred percent (100%) Vested
on the third anniversary of the Award Date provided the Participant
does not have a Separation from Service (as defined in paragraph 5)
after the Award Date and before the third anniversary of the Award
Date.
(b)
Change of Control. The Participant’s interest in the
Retention Award Account shall be one hundred percent (100%) Vested
on the date the Participant has a Separation from Service if (i)
there is a Change of Control (as defined in paragraph 5) before the
third anniversary of the Award Date, (ii) the Participant does
not have a Separation from Service after the Award Date and before
the Change of Control, and (iii) the Participant has a
Separation from Service after the Change of Control on account of a
termination by the Company or an Affiliate (as defined in paragraph
5) without Cause or on account of the resignation of the
Participant with Good Reason. For purposes of this Agreement, the
terms “Cause” and “Good Reason” shall have
the same meanings as the definitions set forth in the _________,
200_, Employment Agreement between the Company and the Participant
(the “Employment Agreement”).
(c)
Death, Disability or Retirement. The Participant shall be
Vested in a pro rata amount of the Retention Award Account
on the date the Participant has a Separation from Service if
(i) the Participant has a Separation from Service before the
third anniversary of the Award Date on account of the
Participant’s death, Disability or Retirement and
(ii) the Participant does not have a Separation from Service
after the Award Date and before the date of the Separation from
Service on account of death, Disability or Retirement. In that
event, the pro
rata amount of the Retention Award Account that is
Vested shall be determined by multiplying the balance credited to
the Retention Award Account on the date of such Separation from
Service by a fraction, the numerator of which is the number of
whole calendar months elapsed from the Award Date until the date of
such Separation from Service and the denominator of which is
thirty-six (36). For purposes of this Agreement, the term
“Retirement” means the Participant’s voluntary
Separation from Service after the Participant has attained age
sixty-two (62) or after the Participant has attained age
fifty-five (55) and completed at least one hundred twenty
(120) months of employment with the Company and its Affiliates
since the Participant’s most recent date of employment with
the Company or an Affiliate. For purposes of this Agreement, the
term “Disability” means 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 twelve (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.
(d)
Nonrenewal of Employment Agreement . The Participant shall
be Vested in a pro rata amount of the Retention Award
Account on the date the Participant has a Separation from Service
if (i) the Employment Agreement terminates before the third
anniversary of the Award Date because the Company gives written
notice of its decision not to renew or extend the term of the
Employment Agreement, (ii) the Participant does not have a
Separation from Service after the Award Date and before the
expiration of the term of the Employment Agreement and
(iii) such Separation from Service occurs after the expiration
of the term of the Employment Agreement and on account of a
termination by the Company or an Affiliate without Cause or on
account of the resignation of the Participant with Good Reason.
(For the avoidance of doubt, the terms “Cause” and
“Good Reason” shall have the same meanings as the
definitions set forth in the Employment Agreement without regard to
the expiration of the term of the Employment Agreement.) In that
event, the pro rata amount of the Retention Award Account
that is Vested shall be determined by multiplying the balance
credited to the Retention Award Account on the date of such
Separation from Service by a fraction, the numerator of which is
the number of whole calendar months elapsed from the Award Date
until the date of such Separation from Service and the denominator
of which is thirty-six (36).
(e)
Forfeiture. Notwithstanding the preceding paragraphs 3(a),
3(b), 3(c), and 3(d) and notwithstanding any provision of the Plan,
the Participant’s interest in the Retention Award Account
shall be forfeited (and no amount shall be payable under the Plan
with respect to the Retention Award Account) if the Participant has
a Separation from Service on account of a termination by the
Company or an Affiliate with Cause, or if the Participant, without
the Company’s written consent, does any of the following
within 180 days before and 730 days after a Separation
from Service:
(i)
The Participant serves (or agrees to serve) as an officer,
director, manager, consultant, or employee of any proprietorship,
partnership, corporation, or other entity, or becomes the owner of
a business or a member of a partnership, limited liability company,
or other entity, that competes with any portion of the
Company’s (or any Affiliate’s) business with which the
Participant had been involved at any time within five years before
the Separation from Service or renders any service (including,
without limitation, advertising or business consulting)
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to one or more
entities that compete with any portion of the Company’s (or
any Affiliate’s) business with which the Participant had been
involved at any time within five years before such Separation from
Service;
(ii) The
Participant refuses or fails to consult with, supply information
to, or otherwise cooperate with the Company or any Affiliate after
having been requested to do so;
(iii) The
Participant deliberately engages in any action that the Company
concludes has caused, or is reasonably likely to cause, substantial
harm to the interests of the Company or any Affiliate;
(iv) The
Participant, on behalf of the Participant or on behalf of any other
person, partnership, association, corporation, limited liability
company, or other entity, solicits or in any manner attempts to
influence or induce any employee of the Company or any Affiliate to
leave the Company’s or any Affiliate’s employment, or
uses or discloses to any person, partnership, association,
corporation, limited liability company, or other entity any
information obtained while an employee of the Company or any
Affiliate concerning the names and addresses of the Company’s
or any Affiliate’s employees;
(v) The
Participant discloses confidential and proprietary information
relating to the Company’s or any Affiliate’s business
affairs (“Trade Secrets”), including technical
information, product information and formulae, processes, business
and marketing plans, strategies, customer information, and other
information concerning the Company’s or any
Affiliate
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