1
Exhibit 10(s)
-------------
Letter Agreement between the Registrant and Xxxxxxxx XxXxxxxxx
2
October 29, 1997
Xx. Xxxxxxxx XxXxxxxxx
0000 Xxxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
Dear Xxxxx:
This letter is to confirm our agreement concerning the implementation of the
succession plan we have jointly developed to replace you as Senior Vice
President, Information Systems and to set forth our understanding regarding the
terms of your continued employment with The Scotts Company ("the Company").
You have been working for the Company pursuant to a letter agreement dated April
10, 1996. This Agreement specifically supercedes that 1996 letter agreement, as
well as any other prior agreements, whether oral or written.
As we have discussed, the Company's succession plan envisions your retirement by
November, 1999. The Company values your continued services and would like you to
stay through that date to ensure an orderly transition. However, you had
apparently not planned to retire until approximately May, 2002. Accordingly, to
meet both your and the Company's objectives, we have agreed upon the following
terms:
o While employed by the Company, you will continue to hold your position as
Senior Vice President, Information Technology and shall be considered to be
an "executive officer" for purposes of attending executive team meetings,
setting policy, etc. You shall earn an annual salary of not less than
$176,000.
o While employed by the company, you will be the highest ranking Information
Systems Technology officer. Certain administrative or other functions
outside of Information Technology which have previously been under your
control may be assigned to others, but you shall be consulted first.
o You will receive all Company benefits customarily provided to employees at
your level, which presently include a car allowance, AYCO Financial
Services and participation in the Company's Excess Benefit Plan.
3
Xx. Xxxxxxxx XxXxxxxxx
October 29, 1997
Page 2
o You will also continue to participate in the Company's Executive Incentive
Plan with a targeted bonus of 40% of your annual salary for those fiscal
years in which you are employed as of the last day of the fiscal year.
o You shall also continue to participate in the Company's Stock Option Plan
(the "Plan") if you sign and return the Company's Key Management Xxxxx
Associate Agreement. This will include a grant of 10,000 options for Fiscal
1997, under the terms of the Plan. In any future years, you will receive
grants comparable to others at your level, at the time grants are
customarily made and under the terms of the Stock Option Plan.
For 1998, a minimum of 5,000 options.
o You understand that the Company could choose to terminate your employment
prior to your anticipated retirement date of May, 2002. If you are
terminated by the Company for gross misconduct at any time ("gross
misconduct" being defined to include, but not be limited to, the failure to
perform substantially all of your employment duties, the engaging by you in
serious misconduct or the disclosure by you of confidential information
relating to the Company), you will not receive any severance pay.
o However, if you are terminated prior to May, 2002 for reasons other than
gross misconduct or your death, disability, or voluntary resignation (other
than retirement), you will receive the gross severance package subject to
standard withholding set forth below:
o If termination is prior to May 1, 1999: $400,000
o If termination is between May 1, 1999 and before November 1,
1999: $350,000
o If termination is on or after November 1, 1999: $250,000
You will have the option to choose to receive your severance pay on either
a lump sum basis or a payroll continuation basis through April 30, 2000. If
you choose the payroll continuation method, you will continue to accrue
service credits, be eligible for full participation in the applicable
Scotts' retirement plans and be eligible for medical and dental coverage.
All other benefits will cease as of the last day you work as an active
employee. In the event of your death prior to receipt of all severance
payments due you, any remaining severance payments owed will be paid to
your estate in a lump sum.
o You understand and agree that if your employment is terminated at any time
due to your death, disability or voluntary resignation (other than
retirement), you are not entitled to any severance pay.
o By executing this letter, you agree, except for the obligations set forth
in this Agreement, that all of Scotts' other obligations and any claims by
you against Scotts and the officers, directors and employees of Scotts, are
released by your acceptance of this Agreement, including but not limited to
claims of age discrimination in employment under the Federal
4
Xx. Xxxxxxxx XxXxxxxxx
October 29, 1997
Page 3
Age Discrimination in Employment Act and the Older Workers Benefit
Protection Act. Except as specifically stated herein, as later agreed in
writing, or except as provided in any benefit plans maintained by Scotts in
which you are participating, you agree that you have no claim for and will
not be entitled to any other benefits, bonus, compensation, perquisites,
vacation or sick pay allowance or any kind of other remuneration arising
out of your employment or the termination thereof, provided, however, that
this release shall not be construed to prevent you from pursuing any rights
you have to COBRA benefits or any rights you have to enforce the terms of
this letter.
o You agree to keep the terms of this Agreement confidential and that you
will not disclose any information concerning these matters to anyone,
including but not limited to past, present or future employees of Scotts or
its affiliates (but excepting your legal and financial advisors and your
spouse). You agree to indemnify Scotts from any loss or costs arising from
any breach by you of this Agreement.
o You understand that you are entering into this Agreement (and the release
contained herein) voluntarily in order to be the recipient of certain of
the agreements described herein that were not required pursuant to the
terms of your previous employment agreements. You understand that Scotts
would not enter into these agreements to which you would not otherwise be
entitled without your voluntary consent to this Agreement.
o In making your decision whether or not to accept this Agreement, you
recognize that you have the right to seek advice and counsel from others,
including that of an attorney if you so choose. You acknowledge that you
have 21 days within which to consider this offer.
o You have seven calendar days from the date you sign this Agreement to
cancel it in writing. You may cancel this Agreement by signing the
cancellation notice below (or by any other written signed notice) and
delivering it to Scotts (to my attention) within seven days of the date you
signed this Agreement.
o You are reminded that certain provisions of this Agreement and the Key
Management Xxxxx Associate Agreement survive the termination of your
employment with Scotts. Nothing in this letter is intended to constitute a
waiver by Scotts of those provisions.
o This Agreement will be construed in accordance with the substantive laws
of the State of Ohio. The rights and duties of the parties shall not be
assignable. This Agreement may not be amended except in writing signed by
the party against whom an obligation is to be enforced. No representations,
other than those contained herein, have been made as an inducement.
5
Xx. Xxxxxxxx XxXxxxxxx
October 29, 1997
Page 4
If this letter satisfactorily sets forth the provisions relating to your
continued employment with the Company, please execute the enclosed copy and
return it to me.
Very truly yours,
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
Dear Xxxx:
This letter satisfactorily set forth the terms of my continued employment
with The Scotts Company.
Dated: 10/30/97 /s/ Xxxxxxxx XxXxxxxxx
-------------------------- -------------------------
Xxxxxxxx XxXxxxxxx
CANCELLATION NOTICE
To cancel this Agreement, sign below and deliver this copy of the
Agreement to Xxxx Xxxxx within seven days of the date you signed the
Agreement.
I hereby cancel this Agreement.
-------------------------- -------------------------
(Date) (Signature)
6
October 31, 1997
Xx. Xxxxxxxx XxXxxxxxx
0000 Xxxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
Dear Xxxxx:
With respect to our letter agreement dated October 29, 1997, we propose to add
the following language to the paragraph on page 2 that begins "You will have the
option...," at the end of that paragraph the following sentence: In the event of
your death prior to receipt of all severance payments due you, any remaining
severance payments owed will be paid to your estate in a lump sum.
Please acknowledge your acceptance of this addition by signing the enclosed copy
of this letter and returning it to me.
Very truly yours,
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
I agree to the proposed addition set forth above.
/s/ Xxxxxxxx XxXxxxxxx
-------------------------------
Xxxxxxxx XxXxxxxxx
Date 10/31/97
---------------------------
