Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General
Release (“Agreement”) is entered into by and between
The Scotts Miracle-Gro Company (“Company”) and David
Aronowitz (“Executive”).
WHEREAS,
the Executive has served as Executive Vice President, General
Counsel and Secretary and in other roles for the Company.
WHEREAS,
the Executive intends to resign his employment with the
Company.
NOW
THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this
Agreement, and of other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. Resignation of
Employment . Effective July 17, 2007
(“Effective Date of Termination”) the Executive hereby
resigns his employment with the Company and resigns all other
positions he holds with or for the Company, its subsidiaries and
related parties, including but not limited to any position as an
officer, director, member, trustee or any similar position. The
Executive will thereafter receive the following:
(a) The Company will pay to the
Executive a monthly amount on the first payroll date of each month,
in an amount equal to the Executive’s cost of health care
coverage, if, after receiving a COBRA notification from the
Company, Executive elects the Company’s group health
continuation coverage under COBRA pursuant to section 4980B of the
Internal Revenue Code of 1986, as amended (the “Code”).
These payments will commence on the Company’s first payroll
date following termination of his active employee coverage and will
continue until the first to occur of (1) eighteen (18) months
after the Effective Date of Termination, (2) the date upon
which the Executive becomes covered under another employer health
care plan, or (3) the date on which the Executive ceases to be
covered by the Company’s group health continuation coverage
under COBRA. The Executive will be solely responsible for electing
COBRA coverage within the required time period.
(b) The Company shall pay the
Executive within thirty (30) days of the Effective Date of
Termination the amount of $850,000 (prior to withholding of
applicable taxes), which represents the negotiated value of the
Executive’s unvested options as offset by certain other
amounts. All other unvested options, restricted stock, stock
appreciation rights or other rights held by the Executive as of the
Effective Date of Termination under the Company’s 2006
Long-Term Incentive Plan or under any other equity or long-term
incentive plan of the Company (a “Company Incentive
Plan”) shall be forfeited, and the Executive shall have no
further interest therein. Any vested options held by the Executive,
shall be governed by the relevant Company Incentive Plan and grant
instrument. Within thirty (30) days of the Effective Date of
Termination, the Company shall provide to the Executive an accurate
summary of each of the Executive’s vested options under any
Company Incentive Plan as of the Effective Date of
Termination.
(c) The Company will pay to the
Executive any accrued but unpaid Base Salary, vacation and
automobile allowance as of the Effective Date of Termination and
the Company will reimburse the Executive for all incurred but
unpaid business expenses as of the Effective Date of Termination
under the Company’s expense reimbursement policy.
(d) The Executive shall not be
entitled to any severance or other payments under any severance,
separation, bonus or other similar benefit plan maintained by the
Company (“Company Severance or Bonus Plans”).
2.
Confidentiality, Noncompetition and Nonsolicitation
. This Agreement shall not supersede or nullify in any way
the Employee Confidentiality, Noncompetition, Nonsolicitation
Agreement executed by the Executive on May 11, 2006. The
Employee Confidentiality, Noncompetition, Nonsolicitation Agreement
shall remain in full force and effect, and any requirements of such
agreement shall be incorporated by reference into this
Agreement.
3.
Release . The Executive voluntarily and
knowingly releases and discharges the Company, its past, present
and future parents, affiliates and subsidiaries, and its and their
past, present and future directors, officers, employees, agents,
shareholders and representatives (“Releasees”), from
any and all claims, debts, suits or causes of action, known or
unknown, based upon any fact, circumstance, or event occurring or
existing at or prior to the Executive’s execution of this
Agreement. This Release specifically includes, but is not limited
to, any claims or actions ar
