<PAGE> 1
As filed with the Securities and Exchange Commission on April 21, 1999
Registration No. 333-________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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THE SCOTTS COMPANY
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(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
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(Address of Principal Executive Offices) (Zip Code)
The Scotts Company
1996 Stock Option Plan, as amended
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(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
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(Telephone number, including area code, of agent for service)
<TABLE>
================================================================================
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<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 2,500,000 $39.9375 $99,843,750 $27,757
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 $39.9375 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 April 19, 1999.
Exhibit Index on Page 14
<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.
- ------- ------------------------------------------
Section 10.5 of The Scotts Company 1996 Stock Option Plan (as
amended, the "Plan") provides for indemnification of members of the Registrant's
Board of Directors (the "Board") and of members of the Compensation and
Organization Committee of the Board (the "Committee") which administers the Plan
as follows:
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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 [the Registrant] 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,
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.
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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.
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
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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:
(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
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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
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
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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 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
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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:
(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.
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(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 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
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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.
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 funda-
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mental 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.
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 20th day of April,
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 April 20, 1999.
Signature Title
- --------- -----
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
12
<PAGE> 13
Jean H. Mordo* Executive Vice President/Chief
- ----------------------------- Financial Officer/Principal
Jean H. Mordo Accounting Officer
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 Attorney-in-Fact
G. Robert Lucas
13
<PAGE> 14
<TABLE>
INDEX TO EXHIBITS
-----------------
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<C> <S> <C>
5 Opinion of Vorys, Sater, Seymour and Pease LLP as *
to legality
10 The Scotts Company 1996 Stock Option Plan (reflects *
amendments through April 1, 1999)
23(a) Consent of PricewaterhouseCoopers LLP *
23(b) Consent of Vorys, Sater, Seymour and Pease LLP Filed as part of
Exhibit 5
24 Powers of Attorney *
</TABLE>
- -------------------
* Filed herewith.
14
<PAGE> 1
Exhibit 5
---------
[Letterhead of Vorys, Sater, Seymour and Pease LLP]
(614) 464-6400
April 21, 1999
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 2,500,000 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 granted and 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 the date hereof. The purpose of
the Registration Statement is to register the additional 2,500,000 Common Shares
reserved for issuance under the Plan pursuant to the provisions of the
Securities Act of 1933, as amended (the "1993 Act"), 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.
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.
<PAGE> 2
Board of Directors
The Scotts Company
April 21, 1999
Page 2
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 2,500,000 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. By giving such consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the 1933 Act or
the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Vorys, Sater, Seymour and Pease LLP
Vorys, Sater, Seymour and Pease LLP
ETF:blr
<PAGE> 1
Exhibit 10
THE SCOTTS COMPANY
1996 STOCK OPTION PLAN
(REFLECTS AMENDMENTS THROUGH APRIL 1, 1999)
SECTION l.
PURPOSE
The purpose of the Plan is to foster and promote the long-term
financial success of the Company and materially increase shareholder value by
(a) encouraging and providing for the acquisition of an ownership interest in
the Company by Employees and Eligible Directors, and (b) enabling the Company to
attract and retain the services of an outstanding management team upon whose
judgment, interest, and special effort the successful conduct of its operations
is largely dependent.
SECTION 2.
DEFINITIONS
2.1 Definitions. Whenever used herein, the following terms shall have
the respective meanings set forth below:
(a) "Act" means the Securities Exchange Act of 1934, as amended.
(b) "Award" means any Option.
(c) "Board" means the Board of Directors of the Company.
(d) "Cause" means (i) the willful failure by a Participant to perform
substantially his duties as an Employee of the Company (other than due to
physical or mental illness) after reasonable notice to the Participant of such
failure, (ii) the Participant's engaging in serious misconduct that is injurious
to the Company or any Subsidiary, (iii) the Participant's having been convicted
of, or entered a plea of nolo contendere to, a crime that constitutes a felony
or (iv) the breach by the Participant of any written covenant or agreement with
the Company or any Subsidiary not to disclose any information pertaining to the
Company or any Subsidiary or not to compete or interfere with the Company or any
Subsidiary.
(e) "Change in Control" means the occurrence of any of the following
events:
(i) the members of the Board at the beginning of any
consecutive twenty-four calendar month period (the "Incumbent
Directors") cease for any reason other than due to death to constitute
at least a majority of the members of the Board, provided that any
director whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
members of the Board then still in office who were members of the Board
at the beginning of such twenty-four calendar month period, shall be
treated as an Incumbent Director; or
(ii) any "person," including a "group" (as such terms are used
in Sections 13(d) and 14(d)(2) of the Act, but excluding the Company,
any of its Subsidiaries, or any employee benefit plan of the Company or
of any of its Subsidiaries,) is or becomes the
1
<PAGE> 2
"beneficial owner" (as defined in Rule 13(d)(3) under the Act),
directly or indirectly, of securities of the Company representing more
than 49% of the combined voting power of the Company's then outstanding
securities; or
(iii) the shareholders of the Company shall approve a
definitive agreement (1) for the merger or other business combination
of the Company with or into another corporation, a majority of the
directors of which were not directors of the Company immediately prior
to the merger and in which the shareholders of the Company immediately
prior to the effective date of such merger own less than 50% of the
voting power in such corporation; or (2) for the sale or other
disposition of all or substantially all of the assets of the Company;
or
(iv) the purchase of Stock pursuant to any tender or exchange
offer made by any "person," including a "group" (as such terms are used
in Sections 13(d) and l4(d)(2) of the Act), other than the Company, any
of its Subsidiaries, or an employee benefit plan of the Company or of
any of its Subsidiaries, for more than 49% of the Stock of the Company.
(f) "Change in Control Price" means the highest price per share of
Stock offered in conjunction with any transaction resulting in a Change in
Control (as determined in good faith by the Committee if any part of the offered
price is payable other than in cash) or, in the case of a Change in Control
occurring solely by reason of a change in the composition of the Board, the
highest Fair Market Value of the Stock on any of the 30 trading days immediately
preceding the date on which a Change in Control occurs.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Committee" means the Compensation and Organization Committee of
the Board which shall have the meaning ascribed to a "compensation committee" in
Section 1.162-27(c)(4) of the final regulations promulgated under Section 162(m)
of the Code and which shall consist of three or more members, each of whom shall
be (i) a person from time to time permitted by the rules promulgated under
Section 16 of the Act in order for grants of Awards to be exempt transactions
under said Section 16 and (ii) receiving remuneration in no other capacity than
as a director, except as permitted under Section 1.162-27(e)(3) of the final
regulations promulgated under Section 162(m) of the Code and the rulings
thereunder.
(i) "Company" means The Scotts Company, an Ohio corporation, and any
successor thereto.
(j) "Director Option" means a "nonstatutory stock option" ("NSO")
granted to each Eligible Director pursuant to Section 6.6 without any action by
the Board or the Committee.
(k) "Disability" means the inability of the Participant to perform his
duties for a period of at least six months due to a physical or medical
infirmity. Notwithstanding the foregoing, with respect to Incentive Stock
Options, the term "Disability" shall be defined as such term is defined in
Section 22(e)(3) of the Code.
(l) "Eligible Director" means, on any date, a person who is serving as
a member of the Board and who is not an Employee.
(m) "Employee" means any officer or other key executive and management
employee of the Company or of any of its Subsidiaries.
2
<PAGE> 3
(n) "Fair Market Value" means, on any date, the closing price of the
Stock as reported on the New York Stock Exchange (or on such other recognized
market or quotation system on which the trading prices of the Stock are traded
or quoted at the relevant time) on such date. In the event that there are no
Stock transactions reported on the New York Stock Exchange (or such other market
or system) on such date, Fair Market Value shall mean the closing price on the
immediately preceding date on which Stock transactions were so reported.
(o) "Option" means the right to purchase Stock at a stated price for a
specified period of time. For purposes of the Plan, an Option may be either (i)
an "Incentive Stock Option" (ISO) within the meaning of Section 422 of the Code
or (ii) a NSO which does not qualify for treatment as an "Incentive Stock
Option."
(p) "Participant" means any Employee designated by the Committee to
participate in the Plan.
(q) "Plan" means The Scotts Company 1996 Stock Option Plan, as in
effect from time to time.
(r) "Retirement" means termination of a Participant's employment on or
after the normal retirement date or, with the Committee's approval, on or after
any early retirement date established under any retirement plan maintained by
the Company or a Subsidiary in which the Participant participates.
(s) "Stock" means the Common Shares, without par value, of the Company.
(t) "Subsidiary" means any corporation or partnership in which the
Company owns, directly or indirectly, 50% or more of the total combined voting
power of all classes of stock of such corporation or of the capital interest or
profits interest of such partnership.
2.2 Gender and Number. Except when otherwise indicated by the context,
words in the masculine gender used in the Plan shall include the feminine
gender, the singular shall include the plural, and the plural shall include the
singular.
SECTION 3.
ELIGIBILITY AND PARTICIPATION
Except as otherwise provided in Section 6.6, the only persons eligible
to participate in the Plan shall be those Employees selected by the Committee as
Participants.
SECTION 4.
POWERS OF THE COMMITTEE
4.l Power to Grant. The Committee shall determine the Participants to
whom Awards shall be granted, the type or types of Awards to be granted and the
terms and conditions of any and all such Awards. The Committee may establish
different terms and conditions for different types of Awards, for different
Participants receiving the same type of Award and for the same Participant for
each Award such Participant may receive, whether or not granted at different
times.
3
<PAGE> 4
4.2 Administration. The Committee shall be responsible for the
administration of the Plan. The Committee, by majority action thereof, is
authorized to prescribe, amend, and rescind rules and regulations relating to
the Plan, to provide for conditions deemed necessary or advisable to protect the
interests of the Company, and to make all other determinations (including,
without limitation, whether a Participant has incurred a Disability) necessary
or advisable for the administration and interpretation of the Plan in order to
carry out its provisions and purposes. Determinations, interpretations, or other
actions made or taken by the Committee pursuant to the provisions of the Plan
shall be final, binding, and conclusive for all purposes and upon all persons.
SECTION 5.
STOCK SUBJECT TO PLAN
5.1 Number. Subject to the provisions of Section 5.3, the number of
shares of Stock subject to Awards under the Plan may not exceed 5,500,000 shares
of Stock. Subject to the provisions of Section 5.3, no Employee shall receive
Awards for more than 150,000 shares of Stock over any one-year period. For this
purpose, to the extent that any Award is cancelled (as described in Section
1.162-27(e)(2)(vi)(B) of the final regulations promulgated under Section 162(m)
of the Code), such cancelled Award shall continue to be counted against the
maximum number of shares of Stock for which Awards may be granted to an Employee
under the Plan. The shares of Stock to be delivered under the Plan may consist,
in whole or in part, of treasury Stock or authorized but unissued Stock, not
reserved for any other purpose.
5.2 Cancelled, Terminated, or Forfeited Awards. Except as provided in
Section 5.1, any shares of Stock subject to an Award which for any reason is
cancelled, terminated or otherwise settled without the issuance of any Stock
shall again be available for Awards under the Plan.
5.3 Adjustment in Capitalization. In the event of any Stock dividend or
Stock split, recapitalization (including, without limitation, the payment of an
extraordinary dividend), merger, consolidation, combination, spin-off,
distribution of assets to shareholders, exchange of shares, or other similar
corporate change, the aggregate number of shares of Stock available for Awards
under Section 5.1 or subject to outstanding Awards and the respective prices
and/or limitations applicable to outstanding Awards may be appropriately
adjusted by the Committee, whose determination shall be conclusive. If, pursuant
to the preceding sentence, an adjustment is made to the number of shares subject
to outstanding Options held by Participants a corresponding adjustment shall be
made to the number of shares subject to outstanding Director Options and if an
adjustment is made to the number of shares of Stock authorized for issuance
under the Plan, a corresponding adjustment shall be made to the number of shares
subject to each Director Option thereafter granted pursuant to Section 6.6.
SECTION 6.
OPTIONS
6.1 Grant of Options. Options may be granted to Participants at such
time or times as shall be determined by the Committee. Options granted under the
Plan may be of two types: (i) Incentive Stock Options and (ii) NSOs. The
Committee shall have complete discretion in
4
<PAGE> 5
determining the number of Options, if any, to be granted to a Participant.
Without limiting the foregoing, the Committee may grant Options containing
provisions for the issuance to the Participant, upon exercise of such Option and
payment of the exercise price therefor with previously owned shares of Stock, of
an additional Option for the number of shares so delivered, having such other
terms and conditions not inconsistent with the Plan as the Committee shall
determine. Each Option shall be evidenced by an Option agreement that shall
specify the type of Option granted, the exercise price, the duration of the
Option, the number of shares of Stock to which the Option pertains, and such
other terms and conditions not inconsistent with the Plan as the Committee shall
determine.
6.2 Option Price. NSOs and Incentive Stock Options granted pursuant to
the Plan shall have an exercise price which is not less than the Fair Market
Value of the Stock on the date the Option is granted. To the extent that an
Incentive Stock Option is granted to a Participant who owns (actually or
constructively under the provisions of Section 424(d) of the Code) Stock
possessing more than 10% of the total combined voting power of all classes of
Stock of the Company or of any Subsidiary, such Incentive Stock Option shall
have an exercise price which is not less than 110% of the Fair Market Value on
the date the Option is granted.
6.3 Exercise of Options. Options awarded to a Participant under the
Plan shall be exercisable at such times and shall be subject to such
restrictions and conditions including the performance of a minimum period of
service, as the Committee may impose, either at or after the time of grant of
such Options; provided, however, that if the Committee does not specify another
exercise schedule at the time of grant, each Option shall become exercisable on
the third anniversary of the date of grant, subject to the Committee's right to
accelerate the exercisability of such Option in its discretion. Notwithstanding
the foregoing, no Option shall be exercisable for more than 10 years after the
date on which it is granted; provided, however, in the case of an Incentive
Stock Option granted to a Participant who owns (actually or constructively under
the provisions of Section 424(d) of the Code) Stock possessing more than 10% of
total combined voting power of all classes of Stock of the Company or any
Subsidiary, such Incentive Stock Option shall not be exercisable for more than 5
years after the date on which it is granted.
6.4 Payment. The Committee shall establish procedures governing the
exercise of Options, which shall require that written notice of exercise be
given and that the Option price be paid in full in cash or equivalents,
including by personal check, at the time of exercise or pursuant to any
arrangement that the Committee shall approve. The Committee may, in its
discretion, permit a Participant to make payment in Stock already owned by him,
valued at its Fair Market Value on the date of exercise, as partial or full
payment of the exercise price. As soon as practicable after receipt of a written
exercise notice and full payment of the exercise price, the Company shall
deliver to the Participant a certificate or certificates representing the
acquired shares of Stock.
6.5 Incentive Stock Options. Notwithstanding anything in the Plan to
the contrary, no term of this Plan relating to Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or authority granted
under the Plan be so exercised, so as to disqualify the Plan under Section 422
of the Code, or, without the consent of any Participant affected thereby, to
cause any Incentive Stock Option previously granted to fail to qualify for the
Federal income tax treatment afforded under Section 421 of the Code. Further,
the aggregate Fair Market Value (determined as of the time an Incentive Stock
Option is granted) of the Stock with respect to which Incentive Stock Options
are exercisable for the first time by any Participant during any calendar year
(under all option plans of the Company and all Subsidiaries of the Company)
shall not exceed $100,000.
6.6 Director Options. Notwithstanding anything else contained herein to
the contrary, on the first business day following the date of each annual
meeting of shareholders during the
5
<PAGE> 6
term of the Plan, each Eligible Director who is not a member of a Board
committee shall receive a Director Option to purchase 5,000 shares of Stock at
an exercise price per share equal to the Fair Market Value of the Stock on the
date of grant. An Eligible Director who is a member of one or more Board
committees, shall receive a grant of 5,500 shares. An Eligible Director who
chairs one or more Board committees shall receive a grant of 6,000 shares. Each
Director Option shall be exercisable six months after the date of grant and
shall remain exercisable until the earlier to occur of (i) the tenth anniversary
of the date of grant or (ii) the first anniversary of the date the Eligible
Director ceases to be a member of the Board, except that if the Eligible
Director ceases to be a member of the Board after having been convicted of, or
pled guilty or nolo contendere to, a felony, his Director Options shall be
cancelled on the date he ceases to be a director. An Eligible Director may
exercise a Director Option in the manner described in Section 6.3.
SECTION 7.
TERMINATION OF EMPLOYMENT
7.1 Termination of Employment Due to Retirement. Unless otherwise
determined by the Committee at the time of grant, in the event a Participant's
employment terminates by reason of Retirement, any Options granted to such
Participant which are then outstanding (whether or not exercisable prior to the
date of such termination) may be exercised at any time prior to the expiration
of the term of the Options or within five (5) years (or such shorter period as
the Committee shall determine at the time of grant) following the Participant's
termination of employment, whichever period is shorter. Notwithstanding any
provision contained herein, with respect to any Incentive Stock Option, a
Participant who terminates his employment by reason of Retirement may exercise
such Incentive Stock Option at any time prior to the expiration of the term of
the Option or within three (3) months following the Participant's termination of
employment, whichever period is shorter.
7.2 Termination of Employment Due to Death or Disability. Unless
otherwise determined by the Committee at the time of grant, in the event a
Participant's employment terminates by reason of death or Disability, any
Options granted to such Participant which are then outstanding (whether or not
exercisable prior to the date of such termination) may be exercised by the
Participant or the Participant's designated beneficiary, and if none is named,
in accordance with Section 10.2, at any time prior to the expiration date of the
term of the Options or within five (5) years (or such shorter period as the
Committee shall determine at the time of grant) following the Participant's
termination of employment, whichever period is shorter. Notwithstanding any
provision contained herein, with respect to any Incentive Stock Option, a
Participant whose employment terminates by reason of death or Disability may
exercise (or his designated beneficiary may exercise, in the case of death) such
Incentive Stock Option at any time prior to the expiration of the term of the
Option or within one (1) year following the Participant's termination of
employment, whichever period is shorter.
7.3 Termination of Employment For Cause. Unless otherwise determined by
the Committee at the time of grant, in the event a Participant's employment is
terminated for Cause, any Options granted to such Participant which are then
outstanding (whether or not exercisable prior to the date of such termination)
shall be forfeited.
6
<PAGE> 7
7.4 Termination of Employment for Any Other Reason. Unless otherwise
determined by the Committee at or after the time of grant, in the event the
employment of the Participant shall terminate for any reason other than one
described in Section 7.1, 7.2 or 7.3, any Options granted to such Participant
which are exercisable at the date of the Participant's termination of
employment, or on such accelerated basis as the Committee may have determined in
its discretion, shall remain exercisable until the earlier to occur of (i) the
expiration of the term of such Options or (ii) the ninetieth day following the
Participant's termination of employment, whichever period is shorter.
7.5 Limitations on Exercisability Following Termination of Employment.
No Options shall be exercisable after termination of employment unless the
Participant shall have, during the time period in which the Options are
exercisable, (a) refrained from serving as an officer, director or employee of
any individual, partnership or corporation, or the owner of a business, or a
member of a partnership which conducts business in competition with the Company
or renders any service (including, without limitation, advertising agencies and
business consultants) to competitors with any portion of the business of the
Company, (b) been available, if so requested by the Company, at reasonable times
and upon a reasonable basis, to consult with, supply information to, and
otherwise cooperate with, the Company, and (c) refrained from engaging in a
deliberate action which has been determined by the Committee to cause
substantial harm to the interests of the Company. If any of these conditions is
not fulfilled, the Committee may require the Participant to forfeit all rights
to any Options which have not been exercised prior to the date of the breach of
the condition.
SECTION 8.
CHANGE IN CONTROL
8.1 Accelerated Vesting and Payment. Subject to the provisions of
Section 8.2 below, in the event of a Change in Control, each Participant shall
be permitted, in his discretion, to surrender any Option (excluding any Director
Option) or portion thereof in exchange for a payment in cash of an amount equal
to the excess of the Change in Control Price over the exercise price of the
Option. Such right to surrender an Option in exchange for a payment in cash
shall remain in effect only during the fifteen-day period commencing with the
day following the date of a Change in Control. Thereafter, the Option shall only
be exercisable in accordance with the terms and conditions of the Stock Option
Agreement and the provisions of the Plan.
8.2 Alternative Awards. Notwithstanding Section 8.l, no cancellation or
cash settlement or other payment shall occur with respect to any Award or any
class of Awards if the Committee reasonably determines in good faith prior to
the occurrence of a Change in Control that such Award or Awards shall be honored
or assumed, or new rights substituted therefor (such honored, assumed or
substituted award hereinafter called an "Alternative Award"), by a Participant's
employer (or the parent or a subsidiary of such employer) immediately following
the Change in Control, provided that any such Alternative Award must:
(i) be based on stock which is traded on an established securities
market, or which will be so traded within 60 days of the Change in Control;
(ii) provide such Participant (or each Participant in a class of
Participants) with rights and entitlements substantially equivalent to or better
than the rights, terms and conditions applicable under such Award, including,
but not limited to, an identical or better exercise or vesting schedule and
identical or better timing and methods of payment;
(iii) have substantially equivalent economic value to such Award
(determined at the time of the Change in Control); and
7
<PAGE> 8
(iv) have terms and conditions which provide that in the event that the
Participant's employment is involuntarily terminated or constructively
terminated, any conditions on a Participant's rights under, or any restrictions
on transfer or exercisability applicable to, each such Alternative Award shall
be waived or shall lapse, as the case may be.
For this purpose, a constructive termination shall mean a termination
by a Participant following a material reduction in the Participant's
compensation, a material reduction in the Participant's responsibilities or the
relocation of the Participant's principal place of employment to another
location, in each case without the Participant's written consent.
8.3 Director Options. Upon a Change in Control, each Director Option
granted to an Eligible Director shall be cancelled in exchange for a payment in
cash of an amount equal to the excess of the Change in Control Price over the
exercise price for such Director Option unless (i) the Stock remains traded on
an established securities market following the Change in Control and (ii) such
Eligible Director remains on the Board following the Change in Control.
8.4 Options Granted Within Six Months of the Change in Control. If any
Option (including a Director Option) granted within six months of the date on
which a Change in Control occurs (i) is held by a person subject to the
reporting requirements of Section 16(a) of the Act and (ii) is to be cashed out
pursuant to Section 8.1 or 8.3, such cash out shall not occur unless and until,
in the opinion of the Company's counsel, such cash out could occur without such
reporting person being potentially subject to liability under Section 16(b) of
the Act by reason of such cash out.
SECTION 9.
AMENDMENT, MODIFICATION, AND TERMINATION OF PLAN
The Board or the Committee may at any time terminate or suspend the
Plan, and from time to time may amend or modify the Plan; provided, however,
that no amendment may be made to Section 6.6 or any other provision of the Plan
relating to Director Options within six months of the last date on which any
such provision was amended. Any such amendment, termination or suspension may be
made without the approval of the shareholders of the Company except as such
shareholder approval may be required (a) to satisfy the requirements of Rule
16b-3 under the Act, or any successor rule or regulation, (b) to satisfy
applicable requirements of the Code or (c) to satisfy applicable requirements of
any securities exchange on which are listed any of the Company's equity
securities. No amendment of the Plan shall result in any Committee member's
losing his status as a "disinterested person" as defined in Rule 16b-3 under the
Act, or any successor rule or regulation, with respect to any employee benefit
plan of the Company or result in the Plan's losing its status as a plan
satisfying the requirements of said Rule 16b-3. No amendment, modification, or
termination of the Plan shall in any manner adversely affect any Award therefore
granted under the Plan, without the consent of the Participant.
8
<PAGE> 9
SECTION 10
MISCELLANEOUS PROVISIONS
10.1 Assignability. With the permission of the Committee, a Participant
who has been granted a NSO under the Plan, may transfer such Option to a
revocable inter vivos trust as to which the Participant is the settlor or may
transfer such an Option to a "Permissible Transferee." A Permissible Transferee
shall be defined as any member of the immediate family of the Participant, any
trust, whether revocable or irrevocable, solely for the benefit of members of
the Participant's immediate family, or any partnership whose only partners are
members of the Participant's immediate family. Any such transferee of a NSO
shall remain subject to all of the terms and conditions applicable to such NSO
and subject to the rules and regulations prescribed by the Committee. A NSO may
not be retransferred by a Permissible Transferee except by will or the laws of
descent and distribution and then only to another Permissible Transferee. Other
than as described above, an Award granted under the Plan may not be transferred
except by will or the laws of descent and distribution and, during the lifetime
of the Participant to whom granted, may be exercised only by him, his guardian
or legal representative.
10.2 Beneficiary Designation. Each Participant and each Eligible
Director under the Plan may from time to time name any beneficiary or
beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid or by whom any right under the Plan is to
be exercised in case of his death. Each designation shall revoke all prior
designations by the same Participant or Eligible Director, shall be in a form
prescribed by the Committee, and shall be effective only when filed in writing
with the Committee. In the absence of any such designation, benefits remaining
unpaid at the Participant's death shall be paid to or exercised by his surviving
spouse, if any, or otherwise to or by his estate and Director Options
outstanding at the Eligible Director's death shall be exercised by his surviving
spouse, if any, or otherwise by his estate.
10.3 No Guarantee of Employment or Participation. Nothing in the Plan
shall interfere with or limit in any way the right of the Company or any
Subsidiary to terminate any Participant's employment at any time, nor confer
upon any Participant any right to continue in the employ of the Company or any
Subsidiary. No Employee shall have a right to be selected as a Participant, or,
having been so selected, to receive any future Awards. Nothing in the Plan shall
confer upon an Eligible Director a right to continue to serve on the Board or to
be nominated for reelection to the Board.
10.4 Tax Withholding. The Company shall have the power to withhold, or
require a Participant or Eligible Director to remit to the Company, an amount
sufficient to satisfy Federal, State, and local withholding tax requirements on
any Award under the Plan, and the Company may defer payment of cash or issuance
of Stock until such requirements are satisfied. The Committee may, in its
discretion, permit a Participant to elect, subject to such conditions as the
Committee shall impose, (i) to have shares of Stock otherwise issuable under the
Plan withheld by the Company or (ii) to deliver to the Company previously
acquired shares of Stock having a Fair Market Value sufficient to satisfy all or
part of the Participant's estimated total Federal, state, and local tax
obligation associated with the transaction.
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
9
<PAGE> 10
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.
10.6 No Limitation on Compensation. Nothing in the Plan shall be
construed to limit the right of the Company to establish other plans or to pay
compensation to its Employees or directors, in cash or property, in a manner
which is not expressly authorized under the Plan.
10.7 International Employees. It is the Company's desire to provide the
same motivation to materially increase shareholder value and to enable the
Company to attract and retain the services of outstanding managers in the
international locations where the Company maintains facilities and employs
people. To this end, the Company will adopt incentives in its foreign locations
that provide as closely as possible the same motivational effect as Options
provide to domestic Participants. The Committee may grant Awards to employees
who are subject to the tax laws of nations other than the United States, which
Awards may have terms and conditions that differ from other Awards granted under
the Plan for the purposes of complying with foreign tax laws.
10.8 Requirements of Law. The granting of Awards and the issuance of
shares of Stock shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national securities
exchanges as may be required. Notwithstanding the foregoing, no Stock shall be
issued under the Plan unless the Company is satisfied that such issuance will be
in compliance with applicable federal and state securities laws. Certificates
for Stock delivered under the Plan may be subject to such stock transfer orders
and other restrictions as the Committee may deem advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission,
any stock exchange upon which the Stock is then listed or traded, the Nasdaq
National Market or any applicable federal or state securities law. The Committee
may cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions.
10.9 Term of Plan. The Plan shall be effective upon its adoption by the
Committee, subject to approval by the Board and approval by the affirmative vote
of the holders of a majority of the shares of voting stock present in person or
represented by proxy at the 1996 Annual Meeting of Shareholders. The Plan shall
continue in effect, unless sooner terminated pursuant to Section 9, until the
tenth anniversary of the date on which it is adopted by the Board.
10.10 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Ohio.
10.11 No Impact On Benefits. Plan Awards are not compensation for
purposes of calculating an Employee's rights under any employee benefit plan.
10
<PAGE> 1
EXHIBIT 23(a)
[Logo of PricewaterhouseCoopers LLP]
CONSENT OF INDEPENDENT ACCOUNTANTS
April 19, 1999
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
<PAGE> 1
EXHIBIT 24
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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ James B Beard
---------------------------
James B Beard, Ph.D.
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ Charles M. Berger
---------------------------
Charles M. Berger
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ Joseph P. Flannery
---------------------------
Joseph P. Flannery
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ Horace Hagedorn
---------------------------
Horace Hagedorn
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ James Hagedorn
---------------------------
James 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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ Albert E. Harris
---------------------------
Albert E. Harris
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ John Kenlon
---------------------------
John Kenlon
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ Karen Gordon Mills
---------------------------
Karen Gordon Mills
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ Jean H. Mordo
---------------------------
Jean H. Mordo
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ Patrick J. Norton
---------------------------
Patrick J. Norton
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ John M. Sullivan
---------------------------
John M. Sullivan
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ L. Jack Van Fossen
---------------------------
L. Jack Van Fossen
<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 1996 STOCK OPTION
PLAN, AS AMENDED, 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
20th day of April, 1999.
/s/ John Walker
---------------------------
John Walker, Ph.D.
