Exhibit 10.3
SECOND AMENDMENT
TO
EMPLOYMENT AGREEMENT
AND
COVENANT NOT TO COMPETE
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT AND COVENANT NOT
TO COMPETE (the "Employment Agreement"), by and between THE SCOTTS COMPANY (the
"Company") and ROBERT F. BERNSTOCK (the "Executive"), effective as of October 1,
2004.
WITNESSETH:
WHEREAS, the Executive and the Company entered into an
Employment Agreement and Covenant Not to Compete, effective as of October 1,
2004, which was executed on September __, 2004 (the "Employment Agreement"); and
WHEREAS, the Company entered into a First Amendment to such
Employment Agreement and Covenant Not to Compete, on October __, 2004; and
WHEREAS, the Company and the Executive desire to clarify the
provisions of the Employment Agreement relating to personal use of Company
aircraft, through execution of this Second Amendment;
NOW THEREFORE, in consideration of the premises and agreements
of the parties contained in this Second Amendment, and intending to be legally
bound, the Executive and the Company agree that the Employment Agreement is
hereby amended as follows:
1. Paragraph 3(d) is hereby amended in its entirety:
(d) Benefit Plan Participation. The Executive shall
be entitled to participate in all of the Company's benefit programs for
senior management executives. The Executive shall participate in, and
be eligible to receive benefits under, any "employee welfare benefit
plans" and "employee pension benefit plans" (as such terms are defined
in the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) and business travel insurance plans and programs as shall
apply to general and/or executive employees of the Company; and shall
be provided benefits under such plans and agreements substantially
equivalent (in the aggregate) to the benefits provided to other senior
executive officers of the Company and on substantially similar terms
and conditions as such benefits are provided to other senior executive
officers of the Company. Notwithstanding the foregoing, the Executive
is not eligible for participation in the Company's pension plan. The
Executive will participate, or be eligible to participate where
participation is voluntary, in any non-qualified pension, supplemental
executive retirement programs, deferred compensation, and excess
benefit plans sponsored by the Company and available to any of the
Company's senior management executives. During the Term, the Company
shall provide to the Executive all of the fringe benefits and
perquisites that are provided to other senior executive officers of the
Company, and the Executive shall be entitled to receive any other
fringe benefits or perquisites that become available to other senior
executive officers of the Company subsequent to the
date of execution of this Employment Agreement. Without limiting the
generality of the foregoing, the Company shall provide the Executive
with the following benefits during the Term: (i) paid vacation, paid
holidays and sick leave in accordance with the Company's standard
policies for its senior executive officers, which policies shall
provide the Executive with benefits no less favorable (in the
aggregate) than those provided to any other senior executive officers
of the Company; (ii) an automobile allowance of at least $12,000
annually and no less than any such allowance provided to any other
senior executive officer of the Company; (iii) the Executive and, in
some circumstances, members of his immediate family shall receive use
of one or more Company-owned or leased and Company operated aircraft in
accordance with the Company's standard executive flight and travel
policies, in any event not to exceed more than twenty hours of personal
use per year. The Executive acknowledges that part of any such travel
may constitute additional taxable compensation of the Executive, but
the Company makes no tax representation relating thereto. For purposes
of this Paragraph 3(d), if members of the Executive's family accompany
the Executive on any business trip of the Executive, such family member
travel will not constitute personal use of the aircraft, and an hour of
personal use of Company aircraft shall be measured only during each
hour in which the aircraft is actually flying. The determination of
personal use shall be consistent with Treasury Regulations 1.162-6,
1.132-2 and 1.132-5 and related guidance. In the event that the
Executive shall attain the age of fifty-five years while in the active
employment of the Company, and completes at least six years of
full-time continuous employment with the Company, the Company will
extend active employee health care benefits required to be available to
the Executive for a limited period ("COBRA Coverage") under Part Six of
Title One of ERISA, until the Executive attains the age of sixty-five
years (or, in the event of the Executive's death, would have attained
the age of sixty-five years) or becomes entitled to benefits under the
Federal "Medicare Part A" program, whichever shall first occur. The
Executive will pay a premium for such extended health care coverage.
During the period in which COBRA Coverage is statutorily required under
ERISA, the Executive (or his spouse or dependents in the event of his
death) shall pay the COBRA premium then in effect for those who elect
COBRA Coverage under the Company's health plan or plans. Thereafter,
during the extended coverage period described in this Paragraph 3(d),
the Executive shall pay one hundred fifty percent of such COBRA premium
in effect from time to time for such coverage.
2. Except as hereby amended, the Executive and the Company
hereby ratify the terms and provisions of the Employment Agreement, as executed
on September __, 2004, as amended by the First Amendment thereto.
The Scotts Company
By: /s/ Denise Stump
------------------------
Its: Executive Vice President
Global Human Resources
AGREED AND ACCEPTED this ___
day of October, 2004 and
effective as of October 1,
2004.
/s/ Robert F. Bernstock
- ----------------------------------------
Robert F. Bernstock