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Exhibit 10(d)
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First Amendment to the Third Restatement of The Scotts Company
Profit Sharing and Savings Plan
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FIRST AMENDMENT TO THE
THIRD RESTATEMENT OF
THE SCOTTS COMPANY
PROFIT SHARING AND SAVINGS PLAN
WHEREAS, The Scotts Company (the "Company") sponsors The Scotts Company
Profit Sharing and Savings Plan (the "Plan"); and
WHEREAS, the Internal Revenue Service requested and approved certain
changes in the Plan in connection with the issuance of a favorable determination
letter dated January 28, 1997;
NOW, THEREFORE, effective as of December 31, 1995, the Plan is amended
as follows:
1. The second sentence of the definition of "Compensation" in Section 1
shall be amended to provide:
For purposes of identifying Highly Compensated Employees and computing
the Compensation Deferral Limit only (and effective January 1, 1998,
for purposes of calculating the 25% limit on annual additions to a
Participant's Account), a Participant's Compensation includes amounts
which would have been includable in the Participant's income but for
the Participant's election to make Savings Contributions, Elective
Profit Sharing Contributions, and contributions to a cafeteria plan
maintained by the Employer, determined in accordance with Section
414(s) of the Code.
2. The fourth sentence of the definition of "Compensation" in Section 1
shall be amended to provide:
In determining the Compensation of a Participant for purposes of the
$200,000 or $150,000 limit, the family aggregation rules of Section
414(q)(6) of the Code shall apply for Plan Years prior to January 1,
1997, except in applying such rules, the term "family" shall include
only the spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the year.
3. The third sentence of the definition of "Eligible Compensation" in
Section 1 shall be amended to provide:
In determining the Eligible Compensation of a Participant for purposes
of this limitation, the family aggregation rules of Section 414(q)(6)
of the Code shall apply for Plan Years prior to January 1, 1997, except
in applying such rules, the term "family" shall include only the spouse
of the Participant and any lineal descendants of the Participant who
have not attained age 19 before the close of the year.
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4. The definition of "Highly Compensated Employee" in Section 1 shall be
amended to apply to periods before January 1, 1997 and all references to
"compensation" within such definition shall be capitalized.
5. The following definition of "Highly Compensated Employee" shall be
added to Section 1 to apply to periods starting on or after January 1, 1997:
"Highly Compensated Employee" means, effective January 1,
1997, any employee of the Employer or an Affiliate who: (a) was a 5%
owner of the Employer and its Affiliates during the current Plan Year
or the preceding Plan Year; or (b) had Compensation from the Employer
and its Affiliates in the preceding Plan Year in excess of $80,000 (as
adjusted by the Secretary of Treasury).
6. Section 2.6 Military Service shall be added to the Plan to provide as
follows:
Notwithstanding any provision of the Plan to the contrary,
contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Section 414(u) of
the Code.
7. The following sentence shall be added to Section 3.2 Savings
Contributions:
Effective January 1, 1997, the Administrative Committee may permit
separate enrollment elections, providing for reductions of up to 100%,
with respect to Compensation paid on an irregular basis (such as
bonuses, cash outs of unused vacation, and incentive pay).
8. The following sentence shall be added to Section 3.3.3 Limits on
Elective Profit Sharing and Savings Contributions:
Effective January 1, 1997, the amount of excess contributions will be
returned to Highly Compensated Employees in order of the amount of
their contributions beginning with the highest dollar amount.
9. Section 3.8 Fail-Safe Allocations of Profit Sharing Contributions shall
be deleted from the Plan.
10. The references to "December 31, 1993" in Sections 6.1.2 and 6.1.3 Forms
of Benefit Payments shall be changed to "December 31, 1992."
11. Section 7.1 Minimum Benefits shall be amended to provide:
For any Plan Year that this Plan is a Top-Heavy Plan, the Employer
shall contribute, for and on behalf of each Non-Key Employee who is a
Participant on the last day of the Plan Year, an amount which is not
less than the lesser of (a) 3% of such Participant's Compensation, or
(b) such Participant's Compensation multiplied by a fraction,
determined with respect to the Key Employee for whom the fraction is
greatest, the numerator of
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which is the contributions (including Savings Contributions) allocated
to such Key Employee's Account for the Plan Year and the denominator of
which is the Key Employee's Compensation for the Plan Year. In
determining the minimum benefit, all contributions (excluding Savings
Contributions) for any Participant to any plan included in the
Aggregation Group shall be taken into account. If a Participant
participates in this Plan and a defined benefit plan in the Aggregation
Group, the Participant shall receive minimum benefits under such
defined benefit plan.
12. Paragraph (a) of "Spouse's Right if Annuity Elected" in Appendix A
shall be amended to provide:
In the event that a married Participant elects any optional method of
payment which provides an annuity and the Participant's benefit exceeds
$3,500 (or exceeded $3,500 as of the date of a prior distribution), the
benefit of such married Participant shall be paid in the form of a
Qualified Joint and Survivor Annuity, unless the spouse of the
Participant consents, pursuant to a Qualified Election, to another
method of payment.
13. The second sentence of paragraph (b) of "Spouse's Right if Annuity
Elected" in Appendix A shall be amended to provide:
Any waiver of a Qualified Joint and Survivor Annuity shall not be
effective unless (a) the Participant's spouse consents in writing to
the election; (b) the spouse's consent acknowledges the effect of the
election; (c) the spouse's consent is witnessed by a Plan
representative or notary public; (d) the notice is given no more than
90 days before the Annuity Starting Date; and (e) the notice is given
no less than 30 days (or, effective January 1, 1997, no less than seven
days) before the Annuity Starting Date.
14. Paragraph (c) of "Spouse's Right if Annuity Elected" in Appendix A
shall renumbered as paragraph (d) and a new paragraph (c) shall be added to
provide:
Notwithstanding any other provisions in the Plan for the payment of
death benefits, if a married Participant elects a distribution in the
form of annuity and dies before the annuity becomes payable, the
portion of the Participant's Account which is attributable to
participation in the Miracle-Gro 401(k) Plan shall be used to purchase
an annuity for the life of the Participant's surviving spouse.
15. A new section titled "Distributions after Death" shall be added to
Appendix A to provide:
If the distribution of the Participant's interest has begun and the
Participant dies before his or her entire interest has been
distributed, the remaining portion of such interest will be distributed
at least as rapidly as under the method of distribution being used
prior to the Participant's death.
Subject to the succeeding paragraph, if the Participant dies before his
or her distribution has begun, the Participant's entire interest shall
be distributed within five years of his or her
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death unless (a) a portion of his or her interest is payable to or on
behalf of a designated Beneficiary; (b) such portion will be
distributed over the life of such designated Beneficiary or over a
period not extending beyond the life expectancy of such designated
Beneficiary; and (c) such distribution begins not later than one year
after the date of the Participant's death (or such date as prescribed
by the Secretary of Treasury).
Notwithstanding the preceding paragraph, if the designated Beneficiary
is the Participant's surviving spouse, the date by which distribution
must commence under (c) in the preceding paragraph shall be the date
the Participant would have attained age 70 1/2. If the surviving spouse
dies before distribution to the spouse begins, this section shall apply
as if the surviving spouse were the Participant. Life expectancy of a
surviving spouse may be recalculated annually; however, in the case of
any other designated Beneficiary, such life expectancy will be
calculated at the time that payment first commences without further
calculations. In addition, any amount paid to a child of the
Participant will be treated as if it had been paid to the surviving
spouse if the amount becomes payable to the surviving spouse when the
child reaches the age of majority.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed as of the 10 day of February, 1997.
THE SCOTTS COMPANY
By: /s/ Rosemary Smith
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Rosemary Smith,
Vice President - Human Resources
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