Exhibit 10.9
THE SCOTTS COMPANY
2003 STOCK OPTION AND INCENTIVE EQUITY PLAN
AWARD AGREEMENT FOR DIRECTORS
The Scotts Company ("Company") believes that its business interests are best
served by ensuring that you have an opportunity to share in the Company's
business success. To this end, the Company adopted the 2003 Stock Option and
Incentive Equity Plan ("Plan") through which its directors may acquire (or share
in the appreciation of) shares of the Company's common stock.
We cannot guarantee that the value of your options (or the value of the stock
you acquire through an option) will increase. This is because the value of the
Company's stock is affected by many factors. However, the Company believes that
your efforts contribute to the value of the Company's stock and that the Plan
(and the options granted through the Plan) is an appropriate means of sharing
with you the value of your contribution to the Company's business success.
This Agreement describes the type of options that you have been granted and the
conditions that must be met before you may receive the value associated with
your options. To ensure you fully understand these terms and conditions, you
should:
- Carefully read this Award Agreement and the attached copies of
the Plan and Prospectus; and
- Call us at (937) 644-0011 if you have any questions about your
options. Or, you may send a written inquiry to:
The Scotts Company
Attn: Vice President Human Resources
14111 Scottslawn Road
Marysville, OH 43041
DESCRIPTION OF YOUR NONQUALIFIED STOCK OPTIONS
YOU HAVE BEEN AWARDED NONQUALIFIED STOCK OPTIONS (or "NSOs") TO PURCHASE _____
SHARES OF COMPANY STOCK. You may purchase one share of the Company's common
stock for each NSO, but only if you pay $______ ("Exercise Price") for each
share purchased, you exercise the NSOs on or before __________ ("Expiration
Date") and meet the terms and conditions described in this Agreement and in the
Plan and in the Prospectus.
LIMITS ON EXERCISING YOUR NSOS
Your NSOs will vest (and be exercisable) on ______________ [6 months from grant
date][12 months from grant date]
This does not mean that you must exercise your NSOs on this date; this is merely
the first date that you may do so. However, your NSOs will expire unless they
are exercised on or before the Expiration Date.
There also are some special situations in which your options may vest earlier.
These are described later in this Agreement.
At any one time you may not exercise NSOs to buy fewer than 100 shares of
Company stock (or, if smaller, the number of your outstanding vested NSOs).
Also, you may never exercise an NSO to purchase a fractional share of Company
stock; NSOs for fractional shares will always be redeemed for cash.
EXERCISING YOUR NSOS
After they vest, you may exercise your NSOs by completing a form. This form, and
other procedures that you must follow, are available from Merrill Lynch or by
contacting us at the number (or address) shown above.
GENERAL TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS APPLY TO ALL OPTIONS ISSUED UNDER THIS AWARD
AGREEMENT. THIS IS MERELY A SUMMARY OF THESE IMPORTANT TERMS AND CONDITIONS; YOU
ARE URGED TO READ THE ENTIRE PLAN AND PROSPECTUS (COPIES OF WHICH ARE ATTACHED),
ALL OF THE TERMS OF WHICH ARE INCORPORATED BY REFERENCE INTO THIS AWARD
AGREEMENT.
1.00 LOSS OF AN OPTION. There are ways in which you may forfeit your
options.
[1] IF YOUR DIRECTORSHIP TERMINATES . . .
Normally, your options will expire on the date specified earlier in this
Agreement. However, these options may expire earlier than their Expiration Date
if your directorship terminates (as defined in the Plan).
[a] If your directorship is terminated by the Company for cause (as
defined in the Plan), the options will expire on the date your
directorship ends; or
[b] If your directorship terminates because you [i] die or [ii] become
disabled (as defined in the Plan), the options will expire no later
than 60 months after your directorship terminates; or
[c] If your directorship terminates after you served one full term as a
director, the options will expire no later than 60 months after your
directorship terminates; or
[d] If your directorship terminates for any other reason, your options
will expire no later than 1 year after you terminate.
Note, it is your responsibility to keep track of when your options expire.
[2] IF YOU ENGAGE IN CONDUCT THAT IS HARMFUL TO THE COMPANY
(OR SUBSIDIARY) . . .
You also will forfeit any outstanding options and must return to the Company all
shares and other amounts you have received through the Plan if, without our
consent, you do any of the following within 180 days before and 730 days after
your directorship terminates:
[a] You serve (or agree to serve) as an officer, director, consultant
or employee of any proprietorship, partnership or corporation or become
the owner of a business or a member of a partnership that competes with
any portion of the Company's (or a Subsidiary's) business with which
you have been involved anytime within five years before your
directorship terminates or render any service (including, advertising
business consulting) to entities that compete with any portion of the
Company's (or a Subsidiary's) business with which you have been
involved anytime within five years before your directorship terminates;
[b] You refuse or fail to consult with, supply information to or
otherwise cooperate with the Company after having been requested to do
so;
[c] You deliberately engage in any action that we conclude has caused
substantial harm to the interests of the Company or any Subsidiary;
[d] On your own behalf or on behalf of any other person, partnership,
association, corporation or other entity, solicit or in any manner
attempt to influence or induce any employee of the Company or a
Subsidiary to leave the Company's or Subsidiary's employment or use or
disclose to any person, partnership, association, corporation or other
entity any information obtained during your directorship concerning the
names and addresses of the Company's and any Subsidiary's employees;
[e] You disclose confidential and proprietary information relating to
the Company's and its Subsidiaries' business affairs ("Trade Secrets"),
including technical information, product information and formulae,
processes, business and marketing plans, strategies, customer
information and other information concerning the Company's and
Subsidiaries' products, promotions, development, financing, expansion
plans, business policies and practices, salaries and benefits and other
forms of information considered by the Company to be proprietary and
confidential and in the nature of Trade Secrets;
[f] You fail to return all property (other than personal property),
including keys, notes, memoranda, writings, lists, files, reports,
customer lists, correspondence, tapes, disks, cards, surveys, maps,
logs, machines, technical data, formulae or any other tangible property
or document and any and all copies, duplicates or reproductions that
you have produced or received or have otherwise been submitted to you
in the course of your directorship; or
[g] You engaged in conduct that the Committee reasonably concludes
would have given rise to a termination of your directorship for cause
(as defined in the Plan) had it been discovered before your
directorship terminated.
2.00 BUY OUT/CANCELLATION OF OPTIONS BY COMPANY. We may decide at any time to
buy out your options. This may happen without your consent and at any time. If
we decide to buy out your options, we will pay you the difference between the
value of options that are exercisable (or vested) at that time and that are
being bought out and the Exercise Price associated with those options. However,
no payment will be made for any cancelled options that are not vested (and not
exercisable) on the cancellation date.
3.00 AMENDMENT/TERMINATION. We may amend or terminate the Plan at any time.
# # #
You must sign this Agreement; if you do not, your options will be cancelled. By
signing this Agreement you acknowledge that these options is granted under and
is subject to the terms and conditions described in this Agreement and in the
Plan.
OPTIONEE/GRANTEE THE SCOTTS COMPANY
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(date signed) (date signed)
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DATE OF THIS AGREEMENT:
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