<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) July 18, 1994
THE SCOTTS COMPANY
THE O.M. SCOTT & SONS COMPANY
(Exact Name of Registrant as Specified in Charter)
Delaware 0-19768 31-1199481
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
14111 Scottslawn Road, Marysville, Ohio 43041
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code
(513) 644-0011
N/A
Former Name or Former Address, if Changed Since Last Report)
<PAGE>
<PAGE> 2
Item 5. Other Events
On July 12, 1994, The Scotts Company and The O.M.
Scott & Sons Company (the "Issuers") entered into a pricing
agreement (the "Pricing Agreement") with Goldman, Sachs & Co.
and Chemical Securities Inc. covering the issuance and sale of
$100,000,000 aggregate principal amount of 9 7/8% Senior
Subordinated Notes due August 1, 2004 (the "Notes") issuable
under an Indenture, dated as of June 1, 1994 between the
Issuers and Chemical Bank, as Trustee, as supplemented by the
First Supplemental Indenture dated as of July 12, 1994,
between the Issuers and Chemical Bank, as Trustee (the "First
Supplemental Indenture"). The Notes were registered under the
Securities Act of 1933, as amended (the "Act"), pursuant to
the Issuers' Registration Statement on Form S-3 (File No. 33-
53941). Three exhibits to such Registration Statement are
filed herewith in connection with the issuance and sale of
such securities, consisting of the Pricing Agreement, the
First Supplemental Indenture and the form of Note.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits
(c) Exhibits.
1 Pricing Agreement, dated July 12, 1994 between
The Scotts Company and The O.M. Scott & Sons
Company, as Issuers, and Goldman, Sachs & Co.
and Chemical Securities Inc., as Underwriters.
4.1 First Supplemental Indenture, dated as of
July 12, 1994, between The Scotts Company and
The O.M. Scott & Sons Company, as Issuers, and
Chemical Bank, as Trustee (the "Indenture").
4.2 Form of 9 7/8% Senior Subordinated Notes due
August 1, 2004 (included in Exhibit 4.1 as
Exhibit A).
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SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrants have duly caused this
report to be signed on their behalf by the undersigned
hereunto duly authorized.
Date: July 18, 1994
THE SCOTTS COMPANY
By: /s/ Paul D. Yeager
Name: Paul D. Yeager
Title: Executive Vice
President and Chief
Financial Officer
THE O.M. SCOTT & SONS COMPANY
By: /s/ Paul D. Yeager
Name: Paul D. Yeager
Title: Executive Vice
President and Chief
Financial Officer
<PAGE> 1
EXHIBIT 1
Pricing Agreement
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Chemical Securities Inc.,
270 Park Avenue,
New York, New York 10017.
July 12, 1994
Ladies and Gentlemen:
The Scotts Company, a Delaware corporation (the "Company"), and
the O.M. Scott & Sons Company, a Delaware Corporation ("Scott" and,
together with the Company, the "Issuers") propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated July 12,
1994 (the "Underwriting Agreement"), to issue and sell to you as the
Underwriters named in Schedule I hereto (the "Underwriters"), the
Securities specified in Schedule II hereto (the "Designated Securities").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating
to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
A Prospectus relating to the Designated Securities, in the form
of the Preliminary Prospectus heretofore delivered to you, is now proposed
to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Issuers agree
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Issuers, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us ten counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Issuers.
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Very truly yours,
The Scotts Company
By: /s/ Richard D. Bergum
Name: Richard D. Bergum
Title: Treasurer
The O.M. Scott & Sons Company
By: /s/ Richard D. Bergum
Name: Richard D. Bergum
Title: Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co.
Goldman, Sachs & Co.
Chemical Securities Inc.
By: /s/ Peter A. Schmidt-Fellner
Name: Peter A. Schmidt-Fellner
Title: Managing Director
<PAGE>
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SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
<S> <C>
Goldman, Sachs & Co. $60,000,000
Chemical Securities Inc. $40,000,000
_____________
Total . . . . . . . . . . . . . . . . . . $ 100,000,000
</TABLE>
<PAGE>
<PAGE> 4
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
9 7/8% Senior Subordinated Notes due August 1, 2004
AGGREGATE PRINCIPAL AMOUNT:
$100,000,000
PRICE TO PUBLIC:
99.212% of the principal amount of the Designated Securities, plus
accrued interest from July 19, 1994.
PURCHASE PRICE BY UNDERWRITERS:
96.762% of the principal amount of the Designated Securities.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately Available Funds
INDENTURE:
Indenture dated June 1, 1994, between the Issuers and Chemical Bank, as
Trustee, as supplemented by the First Supplemental Indenture dated as of
July 12, 1994, between the Issuers and Chemical Bank, as Trustee.
MATURITY:
August 1, 2004
INTEREST RATE:
9 7/8%
INTEREST PAYMENT DATES:
February 1 and August 1, commencing February 1, 1995.
SUBORDINATION:
The payment of principal of and premium, if any, and interest on the
Designated Securities, and any other obligations of the Issuers in
respect of the Designated Securities, will, to the extent set forth in
the Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Debt as defined in the Indenture.
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REDEMPTION PROVISIONS:
The Designated Securites shall be subject to redemption, at the option
of the Issuers, in whole or in part, at any time on or after August 1,
1999 and prior to maturity, at the following redemption prices
(expressed in percentages of principal amount). If redeemed during the
12-month period beginning August 1,
<TABLE>
<CAPTION>
Redemption
Year Price
<S> <C>
1999 104.9375%
2000 103.2917%
2001 101.6458%
</TABLE>
and thereafter at 100.0000% of their principal amount, together in each
case with accrued interest to the redemption date.
SINKING FUND PROVISIONS:
The Designated Securities shall not have the benefit of any sinking
fund.
DEFEASANCE PROVISIONS:
The provisions of Article Thirteen of the Indenture, relating to
defeasance and covenant defeasance, shall apply to the Designated
Securities.
TIME OF DELIVERY:
July 19, 1994, 10:00 a.m. New York time
CLOSING LOCATION:
Sullivan & Cromwell, 125 Broad Street, New York, New York
<PAGE> COVER
EXHIBIT 4.1
THE SCOTTS COMPANY
THE O.M. SCOTT & SONS COMPANY
Issuers
TO
CHEMICAL BANK
Trustee
______________
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 12, 1994
TO
INDENTURE
Dated as of June 1, 1994
______________
9 7/8% Senior Subordinated Notes
due August 1, 2004
<PAGE>
<PAGE> 1
FIRST SUPPLEMENTAL INDENTURE, dated as of July 12, 1994
between The Scotts Company, a corporation duly organized and
existing under the laws of the State of Delaware (herein
called "Scotts"), and The O.M. Scott & Sons Company, a
corporation duly organized and existing under the laws of the
State of Delaware (herein called "OMS"), as joint and several
obligors (collectively, herein called the "Issuers"), each
having its principal office at 14111 Scottslawn Road,
Marysville, Ohio 43043, and Chemical Bank, a banking
corporation duly organized and existing under the laws of the
State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE ISSUERS
The Issuers and the Trustee have executed and delivered an
Indenture dated as of June 1, 1994, to provide for the
issuance from time to time of the Issuer's Securities.
Sections 201 and 301 of the Indenture provide for the form
and terms of Securities of any series to be established
pursuant to an indenture supplemental to the Indenture.
All things necessary to make the Securities, when executed
by the Issuers and authenticated and delivered hereunder and
under the Indenture and duly issued by the Issuers and to make
this First Supplemental Indenture a valid agreement of the
Issuers, in accordance with their and its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the acquisition of the Securities by the Holders thereof,
it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities of the
series hereby established, as follows:
ARTICLE ONE
Section 1.01. Relation to the Indenture. This First
Supplemental Indenture constitutes an integral part of the
Indenture.
Section 1.02. Definitions and Other Provisions of General
Application. For all purposes of this First Supplemental
Indenture unless otherwise specified herein:
(a) all terms defined in the Indenture which are used
and not otherwise defined herein shall have the meanings
they are given in the Indenture; and
(b) the provisions of general application stated in
Section 101 of the Indenture shall apply to this First
Supplemental Indenture, except that the words "herein,"
"hereof" and "hereunder" and other words of similar import
refer to this First Supplemental Indenture as a whole and
not to the Indenture or any particular Article, Section or
other subdivision of the Indenture or this First
Supplemental Indenture.
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(c) The provisions of this First Supplemental Indenture
shall be applicable only to the Notes except to the extent
that another series of Securities shall specifically provide
that such provisions shall also be applicable to such
series.
ARTICLE TWO
Section 2.01. Title.
There shall be a series of Securities designated the "9
7/8% Senior Subordinated Notes due August 1, 2004" (the
"Notes").
Section 2.02. Principal Amount.
The aggregate principal amount of the Notes which may be
authenticated and delivered under this First Supplemental
Indenture shall not exceed $100,000,000 (except for Notes
which may be authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Sections 304, 305, 306, 906, 1008 or 1107 of the
Indenture).
Section 2.03. Maturity.
The date on which the principal of the Notes shall be
payable shall be August 1, 2004.
Section 2.04. Interest.
The Notes shall bear interest at the rate of 9 7/8% per
annum. Interest shall accrue from July 19, 1994 or from the
most recent Interest Payment Date to which interest has been
paid or provided for. Accrued interest shall be payable on
each February 1 and August 1, commencing February 1, 1995, to
the Persons in whose names the Notes are registered at the
close of business on the preceding January 15 or July 15
("Regular Record Dates"), as the case may be.
Section 2.05. Place of Payment.
Initially, the Trustee will act as Paying Agent. The Place
of Payment for the Notes shall be at the Corporate Trust
Office of the Trustee, as Paying Agent, or such other office
of the Paying Agent as the Paying Agent may reasonably request
by notice to the Issuers and the Trustee (if the Paying Agent
is not the Trustee).
Section 2.06. Redemption at the Option of the Issuers.
The Notes shall be redeemable at the option of the Issuers
as provided in the form of Note attached hereto as Exhibit A.
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Section 2.07. No Sinking Fund.
The provisions of Article Twelve of the Indenture shall not
apply to the Notes.
Section 2.08. Defeasance.
The Notes shall be defeasible pursuant to Sections 1302 and
1303 of the Indenture.
Section 2.09. Form of Notes.
The Notes shall be in the form attached hereto as
Exhibit A. The Notes shall be issuable in the form of one of
more Global Notes registered in the name of the nominee of the
Depositary for the Global Notes. The Depositary for the
Global Notes shall be The Depositary Trust Company. The form
of legend to be borne by the Global Notes in lieu of that set
forth in Section 204 shall be as provided in the form of Note
attached hereto as Exhibit A.
ARTICLE THREE
Section 3.01. Section 101 of the Indenture is amended to
include therein the following provisions and amendments:
(i) After the definition of Holder:
"'Incur' means, with respect to any Debt or other
obligation of any Person, to create, issue, incur (by
conversion, exchange or otherwise), assume, Guarantee or
otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to
generally accepted accounting principles or otherwise, of
any such Debt or other obligation on the balance sheet of
such Person (and 'Incurrence', 'Incurred', 'Incurrable'
and 'Incurring' shall have meanings correlative to the
foregoing); provided, however, that a change in generally
accepted accounting principles that results in an
obligation of such Person that exists at such time
becoming Debt shall not be deemed an Incurrence of such
Debt."
(ii) After the definition of Issuer Request or Issuer
Order:
"'Lien' means, with respect to any property or assets,
any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, lien,
charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including,
without limitation, any conditional sale or other title
retention agreement having substantially the same
economic effect as any of the foregoing)."
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<PAGE> 4
(iii) After the definition of Outstanding:
"'pari passu', when used with respect to the ranking of
any Debt of any Person in relation to other Debt of such
Person, means that each such Debt (a) either (i) is not
subordinated in right of payment to the same Debt of such
Person or (ii) is subordinate in right of payment to the
same Debt of such Person as is the other and is so
subordinate to the same extent and (b) is not subordinate
in right of payment to the other or to any Debt of such
Person as to which the other is not so subordinate."
(iv) After the definition of Predecessor Security:
"'Preferred Stock' of any Person means Capital Stock of
such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to
the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of
such Person, to shares of Capital Stock of any other
class of such Person."
Section 3.02. Section 1009 is renumbered Section 1014 and
amended by replacing the reference to "1009" in the last
sentence thereof with "1014".
Section 3.03. Section 1010 is renumbered Section 1015 and
amended by replacing the reference to "1009" in the first
sentence thereof with "1014".
Section 3.04. Sections 1009, 1010, 1011, 1012 and 1013 are
added, to read in their entirety as follows:
"Section 1009. Limitation on Debt and Preferred Stock of
Subsidiaries.
The Issuers shall not permit any Subsidiary (other
than, in the case of Scotts, OMS) of an Issuer to Incur
or suffer to exist any Debt or issue any Preferred Stock
except:
(i) Debt or Preferred Stock outstanding on the date
of issuance of the Notes after giving effect to the
application of the proceeds of the Notes as described
in Schedule A hereto;
(ii) Debt consisting of a guarantee by Subsidiary of
Senior Debt Incurred by the Issuer, including, but not
limited to, the guarantees by Subsidiaries of the
Issuers of Debt Incurred by the Issuers under the Bank
Agreement;
(iii) Debt Incurred or Preferred Stock issued to and
held by an Issuer or a Wholly Owned Subsidiary of an
Issuer; provided, however, that upon either (x) the
transfer or other disposition by an Issuer or such
Wholly Owned Subsidiary of any Debt so permitted to a
Person other than an Issuer or another Wholly Owned
Subsidiary of an Issuer or (y) the issuance
<PAGE>
<PAGE> 5
(other than directors' qualifying shares), sale, lease,
transfer or other disposition of shares of Capital
Stock (including by consolidation or merger) of such
Wholly Owned Subsidiary to a Person other than an
Issuer or another such Wholly Owned Subsidiary, the
provisions of this clause (iii) of this Section 1009
shall no longer be applicable to such Debt and such
Debt shall be deemed to have been Incurred at the time
of such transfer or other disposition;
(iv) Debt Incurred or Preferred Stock issued by a
Person prior to the time (A) such Person became a
Subsidiary of an Issuer, (B) such Person merges into or
consolidates with a Subsidiary of an Issuer or (C)
another Subsidiary of an Issuer merges into or
consolidates with such Person (in a transaction in
which such Person becomes a Subsidiary of an Issuer),
which Debt or Preferred Stock was not Incurred or
issued in anticipation of such transaction and was
outstanding prior to such transaction;
(v) Debt secured by a Lien on real or personal
property which Debt (a) constitutes all or a part of
the purchase price of such property or (b) is Incurred
prior to, at the time of or within 270 days after the
acquisition of such property for the purpose of
financing all or any part of the purchase price
thereof; provided, however, the Debt so secured does
not exceed the purchase price of such property and such
Lien does not extend to or cover any property other
than such item of property and any improvements on such
item;
(vi) Debt or Preferred Stock which is exchanged for,
or the proceeds of which are used to refinance or
refund, any Debt or Preferred Stock permitted to be
outstanding pursuant to clauses (iv) and (v) of this
Section 1009 (or any extension or renewal thereof), in
an aggregate principal amount, in the case of Debt, or
liquidation preference, in the case of Preferred Stock,
not to exceed the principal amount or liquidation
preference of the Debt or Preferred Stock,
respectively, so exchanged, refinanced or refunded plus
the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms
of the Debt or Preferred Stock so exchanged, refinanced
or refunded or the amount of any premium reasonably
determined by the Issuers as necessary to accomplish
such refinancing by means of a tender offer or
privately negotiated repurchase, plus the amount of
expenses of the Issuers and the Subsidiary incurred in
connection with such refinancing and provided such
exchanging, refinancing or refunding Debt or Preferred
Stock by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt or Preferred
Stock is issued, (x) does not provide for payments of
principal or liquidation value at the stated maturity
of such Debt or Preferred Stock or by way of a sinking
fund applicable to such Debt or Preferred Stock or by
way of any mandatory redemption, defeasance, retirement
or repurchase of such Debt or Preferred Stock by an
Issuer or any Subsidiary of an Issuer (including any
redemption, retirement or repurchase which is
contingent
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upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such
Debt upon an event of default thereunder), in each case
prior to the stated maturity of the Debt or Preferred
Stock being refinanced or refunded and (y) does not
permit redemption or other retirement (including
pursuant to an offer to purchase made by an Issuer or a
Subsidiary of an Issuer) of such Debt or Preferred
Stock at the option of the holder thereof prior to the
stated maturity of the Debt or Preferred Stock being
refinanced or refunded, other than a redemption or
other retirement at the option of the holder of such
Debt or Preferred Stock (including pursuant to an offer
to purchase made by an Issuer or a Subsidiary of an
Issuer) which is conditioned upon the change of control
of the Issuers pursuant to provisions substantially
similar to those contained in Section 1008, and
provided, further, that (a) such exchanging,
refinancing or refunding debt shall be Incurred only by
the Subsidiary that is the obligor with respect to the
Debt or Preferred Stock being exchanged, refinanced or
refunded, (b) in the case of any exchange, refinancing
or refunding of Preferred Stock, such Preferred Stock
is exchanged, refinanced or refunded with Preferred
Stock and (c) any exchange, refinancing or refunding of
Debt permitted to be outstanding pursuant to clause (v)
of this Section 1009 shall consist of Debt secured by a
Lien on the property securing the Debt being exchanged,
refinanced or refunded, and no other property;
(vii) Debt Incurred by any Subsidiary or Subsidiaries
substantially all of the assets and operations of which
are outside the United States (each, a "Foreign
Subsidiary"), the proceeds of which are used to
finance, or refinance from a third party, the working
capital or capital expenditures of such Foreign
Subsidiary; and
(viii) Debt or Preferred Stock not otherwise permitted
pursuant to clauses (i) through (vii) of this Section
1009 which, together with any other Debt or Preferred
Stock outstanding pursuant to this clause (viii) of
this Section 1009, is in an aggregate amount not in
excess of $5,000,000 at any time outstanding."
"Section 1010. Limitations Concerning Distributions by
and Transfers from Subsidiaries.
Each of the Issuers shall not, and shall not permit
any Subsidiary to, suffer to exist any consensual
encumbrance or restriction on the ability of any
Subsidiary of an Issuer (other than, in the case of
Scotts, OMS)
(i) to pay directly or indirectly dividends or make
any other distributions in respect of its Capital Stock
or pay any Debt or other obligation owed to an Issuer
or any other Subsidiary;
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<PAGE> 7
(ii) to make loans or advances to an Issuer or any
other Subsidiary; or
(iii) to transfer any of its property or assets to an
Issuer or any other Subsidiary.
Notwithstanding the foregoing, the Issuers may, and
may permit any Subsidiary to, suffer to exist any such
encumbrance or restriction;
(a) pursuant to any agreement in effect on the date
of the Indenture (including the Bank Agreement) as
described in Schedule B hereto,
(b) pursuant to an agreement relating to any Debt
Incurred by such Subsidiary prior to the date on which
such Subsidiary was acquired by an Issuer and
outstanding on such date and not Incurred in
anticipation of becoming a Subsidiary,
(c) pursuant to an agreement effecting a renewal,
refunding or extension of Debt Incurred pursuant to an
agreement referred to in clause (b) above; provided,
however, that the provisions contained in such renewal,
refunding or extension agreement relating to such
encumbrance or restriction are no more restrictive in
any material respect than the provisions contained in
the agreement the subject thereof, as determined in
good faith by the Board of Directors of Scotts and
evidenced by a Board Resolution of Scotts, or
(d) pursuant to customary encumbrances in any
agreement relating to any Debt Incurred by a Foreign
Subsidiary pursuant to the provisions of clause (vii)
of Section 1009."
"Section 1011. Limitation on Liens Securing Pari Passu or
Subordinated Debt.
Each of the Issuers shall not, and shall not permit
any Subsidiary of an Issuer to, Incur or suffer to exist
any Lien on or with respect to any property or assets now
owned or hereafter acquired to secure any Debt which is
pari passu or subordinated in right of payment to the
Notes without making, or causing such Subsidiary to make,
effective provision for securing the Notes (x) equally
and ratably with such Debt as to such property for so
long as such Debt will be so secured or (y) in the event
such Debt is Debt of an Issuer which is subordinate in
right of payment to the Notes, prior to such Debt as to
such property for so long as such Debt will be so
secured.
The foregoing restrictions shall not apply to: (i)
Liens securing only the Notes; and (ii) Liens in favor of
an Issuer."
<PAGE>
<PAGE> 8
"Section 1012. Transactions with Affiliates and Related
Persons.
Each of the Issuers shall not, and shall not permit
any Subsidiary of an Issuer to, enter into any
transaction (or series of related transactions) with an
Affiliate or Related Person of an Issuer (other than an
Issuer or a Wholly Owned Subsidiary of an Issuer),
including any Investment, either directly or indirectly,
unless such transaction is on terms no less favorable to
such Issuer or such Subsidiary than those that could be
obtained in a comparable arm's length transaction with an
entity that is not an Affiliate or Related Person and is
in the best interests of such Issuer or such Subsidiary.
For any transaction that involves in excess of $100,000
but less than or equal to $1,000,000, the Chief Executive
Officer of Scotts shall determine that the transaction
satisfies the above criteria and shall evidence such a
determination by a certificate filed with the Trustee.
For any transaction that involves in excess of
$1,000,000, a majority of the disinterested members of
the Board of Directors shall determine that the
transaction satisfies the above criteria and shall
evidence such a determination by a Board Resolution filed
with the Trustee. The foregoing requirements will not be
applicable to (i) any issuance of securities, or other
payments, awards or grants in cash, securities or
otherwise pursuant to employment arrangements or employee
stock option or ownership plans approved by the Board of
Directors; (ii) directors' fees and expenses or (iii)
loans or advances to employees in the ordinary course of
business."
"Section 1013. Limitation on Certain Debt.
Each of the Issuers shall not Incur any Debt which by
its terms is both (i) subordinated in right of payment to
any Senior Debt of such Issuer and (ii) senior in right
of payment to the Notes."
Section 3.05. Clause (3) of Section 902 is amended by
replacing the references therein to "1010" to "1015".
Section 3.06. Section 1303 is amended by replacing the
references therein to "1010" to "1015".
ARTICLE FOUR
Section 4.01. Supplemental Indenture. The Indenture, as
supplemented and amended by this First Supplemental Indenture,
is in all respects hereby adopted, ratified and confirmed.
Section 4.02. Counterparts. This instrument may be
executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such
counterparts shall constitute but one and the same instrument.
<PAGE>
<PAGE> 9
Section 4.03. Governing Law. This First Supplemental
Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York.
Section 4.04. Trustee Responsibility. The recitals
contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the
statements of the Issuers, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Notes.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Issuers of the
Notes or the proceeds thereof. Subject to the provisions of
Section 601 of the Indenture the Trustee shall not be liable
for any action taken, suffered or omitted by it in good faith
and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this First
Supplemental Indenture.
<PAGE>
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE SCOTTS COMPANY
By ____________________________
Title:
Attest:
____________________________
Title:
THE O.M. SCOTT & SONS COMPANY
By _____________________________
Title:
Attest:
____________________________
Title:
CHEMICAL BANK
By _____________________________
Title:
Attest:
____________________________
Title:
<PAGE>
<PAGE> 11
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally
came ..........................., to me known, who, being by
me duly sworn, did depose and say that he is
.................... of ................................., one
of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corpo-
ration; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his
name thereto by like authority.
...............................................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally
came ..........................., to me known, who, being by
me duly sworn, did depose and say that he is
.................... of ................................., one
of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corpo-
ration; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his
name thereto by like authority.
...............................................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally
came ..........................., to me known, who, being by
me duly sworn, did depose and say that he is
.................... of ................................., one
of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corpo-
ration; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his
name thereto by like authority.
...............................................
<PAGE>
<PAGE> 1
EXHIBIT A
FORM OF NOTE
Unless this certificate is presented by an authorized
representative of the Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
THE SCOTTS COMPANY
THE O.M. SCOTT & SONS COMPANY
9 7/8% Senior Subordinated Notes due August 1, 2004
CUSIP No. 810187 AA 2
No. ......... $ ........
The Scotts Company, a corporation duly organized and
existing under the laws of the State of Delaware (herein
called "Scotts", which term includes any successor Person
under the Indenture hereinafter referred to), and The O.M.
Scott & Sons Company, a corporation duly organized and
existing under the laws of the State of Delaware (herein
called "OMS", which term includes any successor Person under
the Indenture hereinafter referred to), as joint and several
obligors (collectively, herein called the "Issuers" ), for
value received, hereby promise to pay to Cede & Co., or regis-
tered assigns, the principal sum of
..................................... Dollars on August 1,
2004, and to pay interest thereon from July 19, 1994, or from
the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on February 1
and August 1 in each year, commencing February 1, 1995, at the
rate of 9 7/8% per annum, until the principal hereof is paid
or made available for payment, provided that any principal and
premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of 10 7/8% per annum (to the
extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they
are paid or made available for payment, and such interest
shall be payable on demand. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be January
15 or July 15 (whether or not a
<PAGE>
<PAGE> 2
Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and any
such interest on this Security will be made at the office or
agency of the Issuers in the Borough of Manhattan, the City of
New York, the State of New York maintained for such purpose or
at any other office or agency maintained by the Issuers for
such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the
option of the Issuers payment of interest may be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, each of the Issuers has caused this
instrument to be duly executed under its corporate seal.
Dated:
THE SCOTTS COMPANY
By______________________________
Title:
Attest:
___________________________
Title:
<PAGE>
<PAGE> 3
THE O.M. SCOTT & SONS COMPANY
By_______________________________
Title:
Attest:
___________________________
Title:
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of
securities of the Issuers (herein called the "Securities"),
issued and to be issued in one or more series under an
Indenture, dated as of June 1, 1994, as supplemented by the
First Supplemental Indenture, dated as of July 12, 1994 (as so
supplemented, herein called the "Indenture", which term shall
have the meaning assigned to it in such instrument), between
the Issuers and Chemical Bank, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuers, the Trustee
and the Holders of the Securities and of the terms upon which
the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on
the face hereof.
The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days' notice by mail,
at any time on or after August 1, 1999 and prior to maturity,
as a whole or in part in amounts of $1,000 or an integral
multiple of $1,000, at the election of the Issuers, at the
following Redemption Prices (expressed as percentages of the
principal amount): If redeemed during the 12-month period
beginning August 1 of the years indicated,
<PAGE>
<PAGE> 4
<TABLE>
<CAPTION>
Redemption
Year Price
<S> <C>
1999 104.9375%
2000 103.2917%
2001 101.6458%
</TABLE>
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close
of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
Upon the occurrence of a Change of Control, the Issuers will be
required to make an Offer to Purchase all outstanding Securities at a
purchase price equal to 101% of their principal amount plus accrued
interest to the date of purchase.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordina-
tion so provided and (c) appoints the Trustee his attorney-in-fact for any
and all such purposes.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuers and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Issuers and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each
<PAGE>
<PAGE> 5
series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Issuers with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing
Event of Default with respect to the Securities of this series, the Holders
of not less than 25% in principal amount of the Securities of this series
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuers,
which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at
the office or agency of the Issuers in any place where the principal of and
any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuers and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and
<PAGE>
<PAGE> 6
of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuers may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Issuers, the Trustee and any agent of the Issuers or the Trustee may
treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and
neither the Issuers, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
____________________________
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
CHEMICAL BANK,
As Trustee
By_______________________________
Authorized Officer
<PAGE>
<PAGE> 7
SCHEDULE A
Debt or Preferred Stock outstanding on the date of issuance of
the Notes after giving effect to the application of the proceeds of the
Notes and excluding any Debt or Preferred Stock subject to the exclusions
in clauses (ii), (iii), (v) and (vii) of Section 1009 consists of the
following:
1. A capital lease of Scotts-Sierra Horticultural Products Company
relating to premises situtate in Iron Run Industrial Park,
Fogelsville, Lehigh County, Pennsylvania with a capital book value of
approximately $0.4 million at April 2, 1994.
2. A mortgage note and related obligations of Scotts-Sierra
Horticultural Products Company relating to its Heerlen, Netherlands
facility. The mortgage note is payable to an agency of the
Netherlands government, is due in equal annual installments including
interest, and is collateralized by land and a building with a net
book value of approximately $1.2 million at December 16, 1993.
<PAGE>
<PAGE> 8
SCHEDULE B
Other than the Bank Agreement, and excluding agreements, if
any, subject to the exclusions of subsection (d) of Section 1010, none.
