<PAGE> 1
As filed with the Securities and Exchange Commission on February 22, 1999
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 registrant as specified in its charter)
Ohio 31-1414921
- ------------------------------- ------------------
(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
Executive Retirement Plan
------------------------
(Full title of the plan)
Copy to:
G. Robert Lucas, Esq. Elizabeth Turrell Farrar, Esq.
The Scotts Company Vorys, Sater, Seymour and Pease LLP
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)
(937) 644-0011
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
================================================================================
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
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, without 250,000 $34.0625 $8,515,625 $2,367
par value
- ----------------------------------------------------------------------------------------------------------------------
</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 $35.4375 per share, which is the average of the high
and low sales prices of the Common Shares as reported on the New York
Stock Exchange on February 17, 1999.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Annual Report on Form 10-K for the fiscal year ended
September 30, 1998 of The Scotts Company (the "Registrant"), and all other
reports filed with the Securities and Exchange Commission (the "Commission")
pursuant to the requirements of Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), since that date are
hereby incorporated by reference.
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.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
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
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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, 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.
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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.
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,
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<PAGE> 5
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:
(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
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<PAGE> 6
claim, issue or other matter therein, if such 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 conduct was unlawful. The termination of any
action, suit, or
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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.
(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
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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 14.
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.
(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.
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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 18th day of
February, 1999.
THE SCOTTS COMPANY
By: /s/ Charles M. Berger
------------------------------------------
Charles M. Berger, Chairman of the Board,
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 February 18, 1999.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
James B Beard, Ph.D.* Director
- -------------------------
James B Beard, Ph.D.
Charles M. Berger* Chairman of the Board/President/Chief
- ------------------------- Executive Officer
Charles M. Berger
Joseph P. Flannery* Director
- -------------------------
Joseph P. Flannery
Horace Hagedorn* Vice Chairman/Director
- -------------------------
Horace Hagedorn
James Hagedorn* President of Scotts North America/Director
- -------------------------
James Hagedorn
Albert E. Harris* Director
- -------------------------
Albert E. Harris
John Kenlon* Director
- -------------------------
John Kenlon
Karen Gordon Mills* Director
- -------------------------
Karen Gordon Mills
</TABLE>
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<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
Jean H. Mordo* Executive Vice President/Chief Financial
- ------------------------- Officer/Principal Accounting Officer
Jean H. Mordo
Patrick J. Norton* Director
- -------------------------
Patrick J. Norton
John M. Sullivan* Director
- -------------------------
John M. Sullivan
L. Jack Van Fossen* Director
- -------------------------
L. Jack Van Fossen
John Walker, Ph.D.* Director
- -------------------------
John Walker, Ph.D.
*By: /s/ G. Robert Lucas Senior Vice President, General Counsel
--------------------- and Secretary
G. Robert Lucas Attorney-in-Fact
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
----------- ----------- --------
<S> <C> <C>
10 The Scotts Company Executive Retirement Plan Incorporated herein by
reference to the Annual
Report on Form 10-K for the
fiscal year ended
September 30, 1998 of The
Scotts Company (File No.
1-11593) [Exhibit 10(j)]
23 Consent of PricewaterhouseCoopers LLP *
24 Powers of Attorney *
</TABLE>
- -------------------
* Filed herewith.
14
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EXHIBIT 23
CONSENT OF PRICEWATERHOUSECOOPERS LLP
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[Logo of PricewaterhouseCoopers LLP]
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 October 23, 1998 (except for
Note 20 as to which the date is December 15, 1998) on our audits of the
consolidated financial statements and financial statement schedules of The
Scotts Company and Subsidiaries as of September 30, 1998 and 1997, and for the
three years ended September 30, 1998, 1997, and 1996, which report is included
in the Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
Columbus, Ohio
February 18, 1999
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EXHIBIT 24
POWERS OF ATTORNEY
<PAGE> 2
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ James B Beard
-----------------------------
James B Beard, Ph.D.
<PAGE> 3
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ Charles M. Berger
-----------------------------
Charles M. Berger
<PAGE> 4
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ Joseph P. Flannery
-----------------------------
Joseph P. Flannery
<PAGE> 5
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ Horace Hagedorn
-----------------------------
Horace Hagedorn
<PAGE> 6
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ James Hagedorn
-----------------------------
James Hagedorn
<PAGE> 7
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ Albert E. Harris
-----------------------------
Albert E. Harris
<PAGE> 8
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ John Kenlon
-----------------------------
John Kenlon
<PAGE> 9
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ Karen Gordon Mills
-----------------------------
Karen Gordon Mills
<PAGE> 10
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ Jean H. Mordo
-----------------------------
Jean H. Mordo
<PAGE> 11
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ Patrick J. Norton
-----------------------------
Patrick J. Norton
<PAGE> 12
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ John M. Sullivan
-----------------------------
John M. Sullivan
<PAGE> 13
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ L. Jack Van Fossen
-----------------------------
L. Jack Van Fossen
<PAGE> 14
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 securities, including Common
Shares, for offering and sale pursuant to THE SCOTTS COMPANY EXECUTIVE
RETIREMENT PLAN hereby constitutes and appoints CHARLES M. BERGER, JEAN H. MORDO
and G. ROBERT LUCAS, 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
18th day of February, 1999.
/s/ John Walker
-----------------------------
John Walker, Ph.D.
