FORM S-8
As filed with the Securities and Exchange Commission on October 16, 2008
Registration No. 333
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE SCOTTS MIRACLE-GRO COMPANY
(Exact name of registrant as specified in its charter)
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Ohio
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31-1414921 |
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(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
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14111 Scottslawn Road, Marysville, Ohio
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43041 |
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(Address of Principal Executive Offices)
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(Zip Code) |
The Scotts Company LLC Retirement Savings Plan
(Full title of the plan)
David C. Evans
Executive Vice President
and Chief Financial Officer
The Scotts Miracle-Gro Company
14111 Scottslawn Road
Marysville, Ohio 43041
(Name and address of agent for service)
(937) 644-0011
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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Calculation of Registration Fee
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Proposed maximum |
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Proposed maximum |
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Title of securities to |
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Amount to be |
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offering price per |
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aggregate offering |
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Amount of |
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be registered (1) |
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registered |
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share (2) |
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price (2) |
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registration fee |
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Common Shares,
without par value |
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2,500,000 |
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$23.985 |
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$59,962,500 |
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$2,357 |
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(1) |
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In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
Securities Act), this Registration Statement on Form S-8 also covers an indeterminate amount
of interests to be offered or sold pursuant to The Scotts Company LLC Retirement Savings Plan. |
(2) |
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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 and
computed on the basis of $23.985, which is the average of the high and low prices for a common
share of The Scotts Miracle-Gro Company as reported on the New York Stock Exchange on October
14, 2008. |
TABLE OF CONTENTS
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given
to participants in The Scotts Company LLC Retirement Savings Plan as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the Securities Act). In accordance with the
instructions to Part I of Form S-8, such documents will not be filed with the Securities and
Exchange Commission (the Commission) either as part of this Registration Statement on Form S-8
(this Registration Statement) or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Commission allows The Scotts Miracle-Gro Company (the Registrant) and The Scotts Company
LLC Retirement Savings Plan to incorporate by reference in this Registration Statement the
information in the documents that the Registrant and The Scotts Company LLC Retirement Savings Plan
file with the Commission, which means that important information can be disclosed to you by
referring you to those documents. The information incorporated by reference is considered to be a
part of this Registration Statement. The following documents, filed by the Registrant and The
Scotts Company LLC Retirement Savings Plan with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the Exchange Act), shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof:
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the Annual Report on Form 10-K of the Registrant for the fiscal year ended September
30, 2007, filed with the Commission on November 29, 2007 (File No. 1-13292); |
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the Quarterly Report on Form 10-Q of the Registrant for the quarterly period ended
December 29, 2007, filed with the Commission on February 7, 2008 (File No. 1-13292); |
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the Quarterly Report on Form 10-Q of the Registrant for the quarterly period ended
March 29, 2008, filed with the Commission on May 8, 2008 (File No. 1-13292); |
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the Quarterly Report on Form 10-Q of the Registrant for the quarterly period ended
June 28, 2008, filed with the Commission on August 7, 2008 (File No. 1-13292); |
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the Current Reports on Form 8-K filed by the Registrant with the Commission on
November 1, 2007, December 7, 2007, December 17, 2007, December 20, 2007, |
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December 21,
2007, January 29, 2008, February 6, 2008, April 15, 2008, April 24,
2008, April 25, 2008, May 5, 2008, May 22, 2008, June 4, 2008, July 1, 2008, July 3,
2008, August 1, 2008, August 22, 2008, September 12, 2008, September 17, 2008, September
18, 2008 and October 15, 2008 (File No. 1-13292); |
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the Annual Report on Form 11-K of The Scotts Company LLC Retirement Savings Plan for
the fiscal year ended December 31, 2007, filed with the Commission on June 26, 2008
(File No. 033-47073); and |
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the description of the Registrants common shares, without par value, contained in
the Registrants Current Report on Form 8-K filed with the Commission on March 24,
2005, together with any subsequent registration statement or report filed for the
purpose of updating such description. |
All documents which may be filed by the Registrant or The Scotts Company LLC Retirement
Savings Plan with the Commission pursuant to Section 13(a), Section 13(c), Section 14 or Section
15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered under The Scotts
Company LLC Retirement Savings Plan pursuant to this Registration Statement have been sold or which
deregisters all securities then remaining unsold, shall also be deemed to be incorporated by
reference in this Registration Statement and to be made a part hereof from the date of filing of
such documents. To the extent that any information contained in any Current Report on Form 8-K, or
any exhibit thereto, was or is furnished to, rather than filed with, the Commission in accordance
with the Commissions rules, such information or exhibit is specifically not incorporated by
reference into this Registration Statement.
Any statement contained in a document incorporated or deemed to be incorporated in this
Registration Statement by reference, or contained in this Registration Statement, shall be deemed
to be modified or superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which also is or is deemed to be
incorporated by reference in this Registration Statement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
The common shares, without par value, of the Registrant are registered under Section 12 of the
Exchange Act. Accordingly, in accordance with the instructions to Item 4 of Part II of Form S-8,
no description of such common shares is provided hereunder.
In accordance with the instructions to Item 4 of Part II of Form S-8, no description of the
interests to be offered or sold pursuant to The Scotts Company LLC Retirement Savings Plan is
provided hereunder.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
Article Five of the Code of 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.
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
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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 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
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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
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
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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 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,
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domestic or foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against expenses, including
attorneys 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 attorneys fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made in
respect of any of the following:
(a) Any claim, issue, or matter as to which such person is adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation unless, and only to the extent that, the court of common pleas or the
court in which such action or suit was brought determines, upon application, that,
despite the adjudication of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses
as the court of common pleas or such other court shall deem proper;
(b) Any action or suit in which the only liability asserted against a director
is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee, member, manager,
or agent has been successful on the merits or otherwise in defense of any action,
suit, or proceeding referred to in division (E)(1) or (2) of this section, or in
defense of any claim, issue, or matter therein, he shall be indemnified against
expenses, including attorneys fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
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(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.
(5)(a) Unless at the time of a directors 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 attorneys
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
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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 attorneys 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 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, 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,
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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.
Section 11.5 of The Scotts Company LLC Retirement Savings Plan provides for indemnification of
the Administrative Committee which administers The Scotts Company LLC Retirement Savings Plan and
the employees carrying out the duties of the Administrative Committee as follows:
Each member of the Administrative Committee and Employees carrying out the duties of
the Administrative Committee shall be indemnified by the Employer [The Scotts
Company LLC and its affiliates] against costs, expenses, and liabilities (other than
amounts paid in settlement to which the Employer does not consent) reasonably
incurred by the person in connection with any action to which the person may be a
party by reason of his or her service as a member of the committee, except in
relation to matters as to which he or she shall be adjudged in such action to be
personally guilty of negligence or willful misconduct in the performance of his or
her duties. The foregoing right to indemnification shall be in addition to such
other rights as the person may enjoy as a matter of law or by reason of insurance
coverage of any kind, but shall not extend to costs, expenses, and/or liabilities
otherwise covered by insurance or that would be so covered by any insurance then in
force if such insurance contained a waiver of subrogation. Rights granted hereunder
shall be in addition to and not in lieu of any rights to indemnification to which
the person may be entitled under the operating agreement of the Company [The Scotts
Company LLC]. Service on the Administrative Committee shall be deemed in partial
fulfillment of the persons function as an Employee, officer, and/or director of the
Employer, if the person serves in such capacity as well.
Article 13 of the Employment Agreement between The Scotts Company LLC and each of the
following executive officers of the Registrant Mark R. Baker, President and Chief Operating
Officer; David C. Evans, Executive Vice President and Chief Financial Officer; Barry W. Sanders,
Executive Vice President, North America; Denise S. Stump, Executive Vice President, Global Human
Resources; and Vincent C. Brockman, Executive Vice President and General Counsel addresses
indemnification of such executive officers as follows:
Article 13. Indemnification
The Company [The Scotts Company LLC] hereby covenants and agrees to indemnify and
hold harmless the Executive against and in respect to any and all actions, suits,
proceedings, claims, demands, judgments, costs, expenses, losses, and damages
resulting from the Executives performance of his [her] duties and obligations under
the terms of this Agreement; provided however, the Executive
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acted in good faith and
in a manner he [she] reasonably believed to be in or not opposed to the best
interests of the Company or its shareholders, and with respect to a criminal action
or proceeding, the Executive had no reasonable cause to believe his [her] conduct
was unlawful.
The Registrant maintains insurance policies providing for indemnification of directors and
officers and for reimbursement to the Registrant for monies which it may pay as indemnity to any
director or officer, subject to the conditions and exclusions of the policies.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(a) Exhibits:
The following exhibits are filed with or incorporated by reference into this Registration
Statement:
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Exhibit No. |
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Description |
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4.1
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Initial Articles of Incorporation of The Scotts Miracle-Gro
Company as filed with the Ohio Secretary of State on November
22, 2004, incorporated herein by reference to Exhibit 3.1 to
the Registrants Current Report on Form 8-K filed on March 24,
2005 [File No. 1-13292] |
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4.2
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Certificate of Amendment by Shareholders to Articles of
Incorporation of The Scotts Miracle-Gro Company as filed with
the Ohio Secretary of State on March 18, 2005, incorporated
herein by reference to Exhibit 3.2 to the Registrants Current
Report on Form 8-K filed on March 24, 2005 [File No. 1-13292] |
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4.3
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Code of Regulations of The Scotts Miracle-Gro Company,
incorporated herein by reference to Exhibit 3.3 to the
Registrants Current Report on Form 8-K filed on March 24,
2005 [File No. 1-13292] |
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23.1
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Consent of Deloitte & Touche LLP, independent registered
public accounting firm |
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23.2
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Consent of Meaden & Moore, Ltd., independent registered public
accounting firm, in respect of The Scotts Company LLC
Retirement Savings Plan |
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24.1
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Powers of Attorney of Executive Officers and Directors of The
Scotts Miracle-Gro Company |
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(b) In accordance with Item 8 of Part II of Form S-8, this Registration Statement does not
include Exhibit 5 Opinion regarding legality for plans subject to the requirements of ERISA
as the Registrant undertakes that, as applicable, The Scotts Company LLC Retirement Savings Plan
and any amendments thereto have been or will be submitted to the Internal Revenue Service (the
IRS) in a timely manner and all changes required by the IRS in order to
qualify The Scotts Company LLC Retirement Savings Plan under Section 401 of the Internal Revenue
Code of 1986, as amended, have been or will be made.
Item 9. Undertakings.
(a) |
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The undersigned Registrant hereby undertakes: |
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(l) |
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To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: |
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(i) |
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To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; |
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(ii) |
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To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective Registration Statement; |
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(iii) |
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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; |
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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 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. |
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(2) |
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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. |
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(3) |
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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) |
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrants annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans annual report pursuant to
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) |
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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. |
[Remainder of page intentionally left blank;
signatures on following page.]
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SIGNATURES
The Registrant. 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
16th day of October, 2008.
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THE SCOTTS MIRACLE-GRO COMPANY
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By: |
/s/ James Hagedorn |
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James Hagedorn |
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Chairman of the Board and Chief Executive Officer |
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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 October 16, 2008.
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Signature |
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Title |
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/s/ Mark R. Baker
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President, Chief Operating Officer and Director |
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/s/ Arnold W. Donald*
Arnold W. Donald
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Director |
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/s/ David C. Evans
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Executive Vice President |
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and Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer) |
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/s/ Joseph P. Flannery*
Joseph P. Flannery
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Director |
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/s/ James Hagedorn |
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Chairman of the Board and Chief Executive |
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Officer (Principal Executive
Officer) and Director |
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/s/ Thomas N. Kelly Jr.*
Thomas N. Kelly Jr.
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Director |
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/s/ Carl F. Kohrt, Ph.D.*
Carl F. Kohrt, Ph.D.
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Director |
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Signature |
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Title |
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/s/ Katherine Hagedorn Littlefield*
Katherine Hagedorn Littlefield
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Director |
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/s/ Karen G. Mills*
Karen G. Mills
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Director |
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/s/ Nancy G. Mistretta*
Nancy G. Mistretta
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Director |
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/s/ Patrick J. Norton*
Patrick J. Norton
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Director |
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/s/ Stephanie M. Shern*
Stephanie M. Shern
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Director |
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/s/ John S. Shiely*
John S. Shiely
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Director |
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* |
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The undersigned, by signing his name hereto, does hereby sign this Registration Statement on Form
S-8 on behalf of each of the directors of the Registrant identified above pursuant to Powers of
Attorney executed by the directors identified above, which Powers of Attorney are filed with this
Registration Statement on Form S-8 as exhibits. |
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/s/ David
C. Evans |
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By: David C. Evans, Attorney-in-Fact
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Date: October 16, 2008 |
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The Plan. Pursuant to the requirements of the Securities Act of 1933, the trustee or other persons
who administer The Scotts Company LLC Retirement Savings Plan have 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 October 16, 2008.
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THE SCOTTS COMPANY LLC |
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RETIREMENT SAVINGS PLAN |
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By: |
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/s/ David
C. Evans |
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Printed Name: |
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David C. Evans |
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Title:
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Executive Vice President and Chief Financial
Officer of The Scotts Company LLC |
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INDEX TO EXHIBITS
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Exhibit No. |
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Description |
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4.1
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Initial Articles of Incorporation of The Scotts Miracle-Gro
Company as filed with the Ohio Secretary of State on November
22, 2004, incorporated herein by reference to Exhibit 3.1 to
the Current Report on Form 8-K of The Scotts Miracle-Gro
Company (the Registrant) filed on March 24, 2005 [File No.
1-13292] |
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4.2
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Certificate of Amendment by Shareholders to Articles of
Incorporation of The Scotts Miracle-Gro Company as filed with
the Ohio Secretary of State on March 18, 2005, incorporated
herein by reference to Exhibit 3.2 to the Registrants Current
Report on Form 8-K filed on March 24, 2005 [File No. 1-13292] |
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4.3
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Code of Regulations of The Scotts Miracle-Gro Company,
incorporated herein by reference to Exhibit 3.3 to the
Registrants Current Report on Form 8-K filed on March 24,
2005 [File No. 1-13292] |
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23.1
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Consent of Deloitte & Touche LLP, independent registered
public accounting firm |
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23.2
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Consent of Meaden & Moore, Ltd., independent registered public
accounting firm, in respect of The Scotts Company LLC
Retirement Savings Plan |
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24.1
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Powers of Attorney of Executive Officers and Directors of The
Scotts Miracle-Gro Company |
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