As filed with the Securities and Exchange Commission on May 21, 1997
Registration No. 333-________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________________________________________________
THE SCOTTS COMPANY
___________________________________________________________
(Exact name of the registrant as specified in its charter)
Ohio 31-1199481
________________________________________ __________________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14111 Scottslawn Road, Marysville, Ohio 43041
_________________________________________ __________
(Address of Principal Executive Offices) (Zip Code)
The Scotts Company
1996 Stock Option Plan
(Full title of the plan)
Copy to:
G. Robert Lucas II, Esq. Elizabeth Turrell Farrar, Esq.
The Scotts Company Vorys, Sater, Seymour and Pease
14111 Scottslawn Road 52 East Gay Street
Marysville, Ohio 43041 P.O. Box 1008
- ------------------------------------------- Columbus, Ohio 43216-1008
(Name and address of agent for service)
(513) 644-0011
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
-------------------------------
Page 1 of 33 Pages.
Index to Exhibits begins at Page II-14 (Page 16 as sequentially numbered).
<PAGE>
<TABLE>
Calculation of Registration Fee
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per unit (1) price (1) fee
- -------------------- ------------------ ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
Common Shares, 1,500,000 $25.63 for $38,445,000 $11,650
without par value 1,500,000 common
shares
- -------------------- ------------------ ------------------ ------------------ ------------------
</TABLE>
(l) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) and 457(h)
promulgated under the Securities Act of 1933, as amended, and computed on
the basis of $25.63 per share for 1,500,000 common shares, which is the
average of the high and low sales prices of the Common Shares as reported
on the New York Stock Exchange on May 16, 1997.
-2-
<PAGE>
II-14
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following reports of The Scotts Company (the "Registrant")
filed with the Securities and Exchange Commission (the "Commission") pursuant to
the requirements of Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated herein by this reference:
(a) The Annual Report on Form 10-K for the fiscal year ended
September 30, 1996;
(b) The Quarterly Report on Form 10-Q for the fiscal quarter ended
December 28, 1996;
(c) The Current Report on Form 8-K, dated January 27, 1997 and filed
January 28, 1997;
(d) The Current Report on Form 8-K, dated and filed February 4, 1997;
and
(e) The Quarterly Report on Form 10-Q for the fiscal quarter ended
March 30, 1997.
The description of the Registrant's Common Shares contained in
the Registrant's Registration Statement on Form 8-A (File No. 1-11593) filed
with the Commission on December 21, 1995, which incorporates by reference the
description of such Common Shares contained in the Registrant's Proxy
Statement/Prospectus dated March 15, 1995, contained in the Registrant's
Registration Statement on Form S-4 (Registration No. 33-57575), or contained in
any subsequent amendment or report filed for the purpose of updating such
description, is hereby incorporated by reference.
Any definitive Proxy Statement or Information Statement filed
pursuant to Section 14 of the Exchange Act and all documents which may be filed
with the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act
subsequent to the date hereof and prior to the completion of the offering
contemplated hereby, shall also be deemed to be incorporated herein by reference
and to be made a part hereof from the date of filing of such documents;
provided, however, that no report of the Compensation and Organization Committee
of the Board of Directors of the Registrant on executive compensation and no
performance graph included in any Proxy Statement or Information Statement filed
pursuant to Section 14 of the Exchange Act shall be deemed to be incorporated
herein by reference.
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Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 10.5 of The Scotts Company 1996 Stock Option Plan, as
amended (the "Plan"), provides for indemnification of the Registrant's Board of
Directors (the "Board") and the Compensation and Organization Committee of the
Board (the "Committee") which administers the Plan as follows:
10.5 Indemnification. Each person who is or shall have been a
member of the Committee or of the Board shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him in
connection with or resulting from any claim, action, suit, or proceeding
to which he may be made a party or in which he may be involved by reason
of any action taken or failure to act under the Plan and against and
from any and all amounts paid by him in settlement thereof, with the
Company's approval, or paid by him in satisfaction of any judgment in
any such action, suit, or proceeding against him, provided he shall give
the Company an opportunity, at its own expense, to handle and defend the
same before he undertakes to handle and defend it on his own behalf. The
foregoing right of indemnification shall not be exclusive and shall be
independent of any other rights of indemnification to which such persons
may be entitled under the Company's Articles of Incorporation or Code of
Regulations, by contract, as a matter of law, or otherwise.
ARTICLE FIVE of the Regulations of the Registrant governs the
indemnification of officers and directors of the Registrant. ARTICLE FIVE
provides:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, any
action threatened or instituted by or in the right of the corporation),
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member, manager
or agent of another corporation (domestic or foreign, nonprofit or for
profit), limited liability company, partnership, joint venture, trust or
other enterprise, against expenses (including, without limitation,
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<PAGE>
attorneys' fees, filing fees, court reporters' fees and transcript
costs), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, he
had no reasonable cause to believe his conduct was unlawful. A person
claiming indemnification under this Section 5.01 shall be presumed, in
respect of any act or omission giving rise to such claim for
indemnification, to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal matter, to have had no
reasonable cause to believe his conduct was unlawful, and the
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything contained
in the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director
of the corporation who was a party to any completed action or suit
instituted by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, trustee, officer,
employee, member, manager or agent of another corporation (domestic or
foreign, nonprofit or for profit), limited liability company,
partnership, joint venture, trust or other enterprise, in respect of any
claim, issue or matter asserted in such action or suit as to which he
shall have been adjudged to be liable for acting with reckless disregard
for the best interests of the corporation or misconduct (other than
negligence) in the performance of his duty to the corporation unless and
only to the extent that the Court of Common Pleas of Union County, Ohio
or the court in which such action or suit was brought shall determine
upon application that, despite such adjudication of liability, and in
view of all the circumstances of the case, he is fairly and reasonably
entitled to such indemnity as such Court of Common Pleas or such other
court shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated
by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding, to the
extent that an officer or director of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 5.01, or in defense of any claim,
issue or matter therein, he shall be promptly indemnified by the
corporation against expenses (including, without limitation, attorneys'
fees, filing fees, court reporters' fees and transcript costs) actually
and reasonably incurred by him in connection therewith.
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Section 5.04. Determination Required. Any indemnification
required under Section 5.01 and not precluded under Section 5.02 shall
be made by the corporation only upon a determination that such
indemnification of the officer or director is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Section 5.01. Such determination may be made only (A) by a
majority vote of a quorum consisting of directors of the corporation who
were not and are not parties to, or threatened with, any such action,
suit or proceeding, or (B) if such a quorum is not obtainable or if a
majority of a quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by or who
has performed services for the corporation, or any person to be
indemnified, within the past five years, or (C) by the shareholders, or
(D) by the Court of Common Pleas of Union County, Ohio or (if the
corporation is a party thereto) the court in which such action, suit or
proceeding was brought, if any; any such determination may be made by a
court under division (D) of this Section 5.04 at any time [including,
without limitation, any time before, during or after the time when any
such determination may be requested of, be under consideration by or
have been denied or disregarded by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by
the shareholders under division (C) of this Section 5.04]; and no
failure for any reason to make any such determination, and no decision
for any reason to deny any such determination, by the disinterested
directors under division (A) or by independent legal counsel under
division (B) or by shareholders under division (C) of this Section 5.04
shall be evidence in rebuttal of the presumption recited in Section
5.01. Any determination made by the disinterested directors under
division (A) or by independent legal counsel under division (B) of this
Section 5.04 to make indemnification in respect of any claim, issue or
matter asserted in an action or suit threatened or brought by or in the
right of the corporation shall be promptly communicated to the person
who threatened or brought such action or suit, and within ten days after
receipt of such notification such person shall have the right to
petition the Court of Common Pleas of Union County, Ohio or the court in
which such action or suit was brought, if any, to review the
reasonableness of such determination.
Section 5.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding to or on
behalf of the officer or director promptly as such expenses are incurred
by him, but only if such officer or director shall first agree, in
writing, to repay all amounts so paid in respect of any claim, issue or
other matter asserted in such action, suit or proceeding in defense of
which he shall not have been successful on the merits or otherwise:
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(A) if it shall ultimately be determined as provided in Section
5.04 that he is not entitled to be indemnified by the corporation as
provided under Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted
by or in the right of the corporation in such action or suit, he shall
have been adjudged to be liable for acting with reckless disregard for
the best interests of the corporation or misconduct (other than
negligence) in the performance of his duty to the corporation, unless
and only to the extent that the Court of Common Pleas of Union County,
Ohio or the court in which such action or suit was brought shall
determine upon application that, despite such adjudication of liability,
and in view of all the circumstances, he is fairly and reasonably
entitled to all or part of such indemnification.
Section 5.06. Article FIVE Not Exclusive. The indemnification
provided by this Article FIVE shall not be exclusive of, and shall be in
addition to, any other rights to which any person seeking
indemnification may be entitled under the Articles or the Regulations or
any agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as to
a person who has ceased to be an officer or director of the corporation
and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and
maintain insurance or furnish similar protection, including but not
limited to, trust funds, letters of credit, or self-insurance, on behalf
of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee, member, manager or agent of
another corporation (domestic or foreign, nonprofit or for profit),
limited liability company, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the obligation or the power to
indemnify him against such liability under the provisions of this
Article FIVE. Insurance may be purchased from or maintained with a
person in which the corporation has a financial interest.
Section 5.08. Certain Definitions. For purposes of this Article
FIVE, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article FIVE
shall be deemed to have been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 5.01,
or in defense of any claim, issue or other matter therein, if such
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action, suit or proceeding shall be terminated as to such person, with
or without prejudice, without the entry of a judgment or order against
him, without a conviction of him, without the imposition of a fine upon
him and without his payment or agreement to pay any amount in settlement
thereof (whether or not any such termination is based upon a judicial or
other determination of the lack of merit of the claims made against him
or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and
in a manner he reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of
the corporation" within the meaning of that term as used in this Article
FIVE.
Section 5.09. Venue. Any action, suit or proceeding to determine
a claim for indemnification under this Article FIVE may be maintained by
the person claiming such indemnification, or by the corporation, in the
Court of Common Pleas of Union County, Ohio. The corporation and (by
claiming such indemnification) each such person consent to the exercise
of jurisdiction over its or his person by the Court of Common Pleas of
Union County, Ohio in any such action, suit or proceeding.
Division (E) of Section 1701.13 of the Ohio Revised Code addresses
indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative, other than an
action by or in the right of the corporation, by reason of the fact that
he is or was a director, officer, employee, or agent of the corporation,
or is or was serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses including attorney's fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit, or proceeding, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
action or proceeding, if he had no reasonable cause to believe his
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conduct was unlawful. The termination of any action, suit, or proceeding
by judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, he
had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any
threatened, pending, or completed action or suit by or in the right of
the corporation to procure a judgment in its favor, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation unless, and only to the extent that, the
court of common pleas or the court in which such action or suit was
brought determines, upon application, that, despite the adjudication of
liability, but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses as the
court of common pleas or such other court shall deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(l) or (2) of
this section. Such determination shall be made as follows:
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(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in division
(E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this section
is not obtainable or if a majority vote of a quorum of disinterested
directors so directs, in a written opinion by independent legal counsel
other than an attorney, or a firm having associated with it an attorney,
who has been retained by or who has performed services for the
corporation or any person to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is
the subject of an action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, the articles or the regulations of a
corporation state, by specific reference to this division, that the
provisions of this division do not apply to the corporation and unless
the only liability asserted against a director in an action, suit, or
proceeding referred to in division (E)(1) or (2) of this section is
pursuant to section 1701.95 of the Revised Code, expenses, including
attorney's fees, incurred by a director in defending the action, suit,
or proceeding shall be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding,
upon receipt of an undertaking by or on behalf of the director in which
he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure
to act involved an act or omission undertaken with deliberate intent to
cause injury to the corporation or undertaken with reckless disregard
for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding.
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(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section, may be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding, as
authorized by the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer, employee,
member, manager, or agent to repay such amount, if it ultimately is
determined that he is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions, and
shall continue as to a person who has ceased to be a director, trustee,
officer, employee, member, manager, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters
of credit, or self-insurance, on behalf of or for any person who is or
was a director, officer, employee, or agent of the corporation, or is or
was serving at the request of the corporation as a director, trustee,
officer, employee, member, manager, or agent of another corporation,
domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section. Insurance may be purchased from or maintained with a
person in which the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant
to division (E)(1) or (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5), (6), and
(7) of this section. Divisions (E)(1) and (2) of this section do not
create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, references to
"corporation" includes all constituent entities in a consolidation or
merger and the new or surviving corporation, so that any person who is
or was a director, officer, employee, trustee, member, manager, or agent
of such a constituent entity or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as
he would if he had served the new or surviving corporation in the same
capacity.
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The Registrant has purchased insurance coverage under a policy
which insures directors and officers against certain liabilities which might be
incurred by them in such capacity.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See the Index to Exhibits attached hereto and beginning at page
II-14 (page 16 as sequentially numbered).
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(l) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 6 of this Part
II, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Marysville, State of Ohio, on the 8th day of May,
1997.
THE SCOTTS COMPANY
By: /s/ Charles M. Berger
________________________________________
Charles M. Berger, Chairman, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 8, 1997.
Signature Title
James B. Beard* Director
- ---------------------------------------
James B. Beard
John S. Chamberlin* Director
- ---------------------------------------
John S. Chamberlin
Joseph P. Flannery* Director
- ---------------------------------------
Joseph P. Flannery
- ---------------------------------------
James Hagedorn* Director
- ---------------------------------------
James Hagedorn
John Kenlon* Director
- ---------------------------------------
John Kenlon
*By Power of Attorney
/s/ Charles M. Berger
- ---------------------------------------
Charles M. Berger
(Attorney-in-Fact)
II-12
<PAGE>
Karen Gordon Mills* Director
- ---------------------------------------
Karen Gordon Mills
Tadd C. Seitz* Director
- ---------------------------------------
Tadd C. Seitz
Donald A. Sherman* Director
- ---------------------------------------
Donald A. Sherman
John M. Sullivan* Director
- ---------------------------------------
John M. Sullivan
L. Jack Van Fossen* Director
- ---------------------------------------
L. Jack Van Fossen
Jean H. Mordo* Executive Vice President,
- --------------------------------------- Chief Financial Officer
Jean H. Mordo and Principal Accounting
Officer
*By Power of Attorney
/s/ Charles M. Berger
- ---------------------------------------
Charles M. Berger
(Attorney-in-Fact)
II-13
<PAGE>
Exhibit No. Description Page No.
4(a) Amended Articles of Incorporated herein by
Incorporation of The Scotts reference to Exhibit 3(a) of
Company, as filed with the Ohio the Registrant's Annual Report
Secretary of State on on Form 10-K for the fiscal
September 20, 1994 year ended September 30, 1994
(File No. 0-19768)
4(b) Certificate of Amendment by Incorporated herein by
Shareholders to the Articles of reference to Exhibit 4(b) of
Incorporation of The Scotts the Registrant's Quarterly
Company as filed with the Ohio Report on Form 10-Q for the
Secretary of State on May 4, 1995 fiscal quarter ended April 1,
1995 (File No. 0-19768)
4(c) Regulations of The Scotts Incorporated herein by
Company (reflecting amendments reference to Exhibit 4(c) of
adopted by the shareholders of the Registrant's Quarterly
The Scotts Company on April 6, Report on Form 10-Q for the
1995) fiscal quarter ended April 1,
1995 (File No. 0-19768)
4(d) The Scotts Company 1996 Stock Incorporated herein by
Option Plan (reflecting reference to Exhibit 10(a) of
amendment adopted by the the Registrant's Quarterly
shareholders of The Scotts Report on Form 10-Q for the
Company on March 12, 1997) fiscal quarter ended March 30,
1997 (File No. 1-11593)
5 Opinion of Vorys, Sater, Seymour Pages 17 through 19
and Pease as to legality
23(a) Consent of Coopers & Lybrand Pages 20 and 21
L.L.P.
23(b) Consent of Vorys, Sater, Seymour Filed as part of Exhibit 5
and Pease
24 Powers of Attorney Pages 22 through 33
II-14
EXHIBIT 5
OPINION OF VORYS, SATER, SEYMOUR
AND PEASE AS TO
LEGALITY
-17-
<PAGE>
(614) 464-6400
May 21, 1997
Board of Directors
The Scotts Company
14111 Scottslawn Road
Marysville, OH 43041
Ladies and Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
The Scotts Company, an Ohio corporation (the "Company"), in connection with the
adoption of an amendment to The Scotts Company 1996 Stock Option Plan, as
amended (the "Plan"), to make an additional 1,500,000 common shares, without par
value (the "Common Shares"), of the Company available pursuant to the Plan, the
granting of options to purchase Common Shares of the Company pursuant to the
Plan, and the issuance and sale of Common Shares of the Company upon exercise of
options to be granted under the Plan, as described in the Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission on May 21, 1997. The purpose of the Registration Statement
is to register the additional 1,500,000 Common Shares reserved for issuance
under the Plan pursuant to the provisions of the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
In connection with this opinion, we have examined an original or copy
of, and have relied upon the accuracy of, without independent verification or
investigation: (a) the Registration Statement; (b) the Plan; (c) the Company's
Amended Articles of Incorporation, as amended; (d) the Company's Regulations, as
amended; and (e) certain proceedings of the directors and of the shareholders of
the Company. We have also relied upon such representations of the Company and
officers of the Company and such authorities of law as we have deemed relevant
as a basis for this opinion.
-18-
<PAGE>
Board of Directors
The Scotts Company
May 21, 1997
Page 2
We have relied solely upon the examinations and inquiries recited
herein, and we have not undertaken any independent investigation to determine
the existence or absence of any facts, and no inference as to our knowledge
concerning such facts should be drawn.
Based upon and subject to the foregoing and the further qualifications
and limitations set forth below, as of the date hereof, we are of the opinion
that after the additional 1,500,000 Common Shares of the Company to be
registered under the Registration Statement have been issued and delivered by
the Company, upon the exercise of options granted under the Plan, against
payment of the purchase price therefor, in accordance with the terms of the
Plan, said Common Shares will be validly issued, fully paid and non-assessable,
assuming compliance with applicable federal and state securities laws.
Our opinion is limited to the General Corporation Law of Ohio in effect
as of the date hereof. This opinion is furnished by us solely for the benefit of
the Company in connection with the offering of the Common Shares pursuant to the
Plan and the filing of the Registration Statement and any amendments thereto.
This opinion may not be relied upon by any other person or assigned, quoted or
otherwise used without our specific written consent.
Notwithstanding the foregoing, we consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to us therein.
Very truly yours,
Vorys, Sater, Seymour and Pease
ETF/jkf
-19-
EXHIBIT 23(a)
CONSENT OF COOPERS & LYBRAND L.L.P.
-20-
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
The Scotts Company on Form S-8 of our report dated November 15, 1996, on our
audits of the consolidated financial statements and financial statement
schedules of The Scotts Company and subsidiaries as of September 30, 1996 and
1995 and for the three years ended September 30, 1996, 1995, and 1994, which
report is incorporated by reference from the Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
May 20, 1997
-21-
EXHIBIT 24
POWERS OF ATTORNEY
-22-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ James B. Beard
___________________________________
James B. Beard
-23-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ John S. Chamberlin
___________________________________
John S. Chamberlin
-24-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ Joseph P. Flannery
___________________________________
Joseph P. Flannery
-25-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ James Hagedorn
___________________________________
James Hagedorn
-26-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ John Kenlon
___________________________________
John Kenlon
-27-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as her true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for her and in her name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
she might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand
this 8th day of May, 1997.
/s/ Karen Gordon Mills
___________________________________
Karen Gordon Mills
-28-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ Tadd C. Seitz
___________________________________
Tadd C. Seitz
-29-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ Donald A. Sherman
___________________________________
Donald A. Sherman
-30-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ John M. Sullivan
___________________________________
John M. Sullivan
-31-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ L. Jack Van Fossen
___________________________________
L. Jack Van Fossen
-32-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of THE SCOTTS COMPANY, an Ohio corporation, which is about to
file with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a Registration Statement
on FORM S-8 for the registration of certain of its Common Shares for offering
and sale pursuant to The Scotts Company 1996 Stock Option Plan, as amended,
hereby constitutes and appoints Charles M. Berger and G. Robert Lucas II, and
each of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign such Registration Statement and any
and all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the New York Stock Exchange, granting unto each of said
attorneys-in-fact and agents, and substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all things that
each of said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 8th day of May, 1997.
/s/ Jean H. Mordo
___________________________________
Jean H. Mordo
-33-
<PAGE>
