Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this
“Agreement”), dated as of December 13, 2004, by
and among THE SCOTTS COMPANY, an Ohio corporation
(“SCOTTS”), THE SCOTTS COMPANY LLC, an Ohio limited
liability company (“SCOTTS LLC”), and THE SCOTTS
MIRACLE-GRO COMPANY, an Ohio corporation (“SCOTTS
MIRACLE-GRO”).
WITNESSETH:
WHEREAS, the authorized capital stock of SCOTTS
consists of (i) 100,000,000 common shares, without par
value, of which 33,013,047 common shares were issued and
outstanding as of December 1, 2004 and none were held in
treasury on such date and (ii) 195,000 preferred shares,
without par value, none of which are currently issued and
outstanding;
WHEREAS, the authorized capital stock of SCOTTS
MIRACLE-GRO currently consists of (i) 1,000 common shares,
without par value, of which 100 common shares are issued and
outstanding as of the date hereof and owned by SCOTTS and
(ii) 500 preferred shares, without par value, none of which
are currently issued and outstanding;
WHEREAS, as of the Effective Time (as hereinafter
defined), SCOTTS MIRACLE-GRO will have authorized not less than
100,000,000 common shares, without par value, and 195,000
preferred shares, without par value;
WHEREAS, SCOTTS MIRACLE-GRO is the sole member of
SCOTTS LLC and owns 100% of the membership interests of SCOTTS
LLC as of the date hereof;
WHEREAS, SCOTTS MIRACLE-GRO and SCOTTS LLC are
newly-formed entities organized for the purpose of participating
in the transactions herein contemplated;
WHEREAS, SCOTTS desires to create a holding
company structure by merging with and into SCOTTS LLC in a
transaction in which (i) SCOTTS LLC will be the surviving
entity in the merger and (ii) each outstanding common share
of SCOTTS will be converted into one common share of SCOTTS
MIRACLE-GRO;
WHEREAS, for federal income tax purposes, it is
intended that the merger contemplated by this Agreement qualify
as a reorganization under Section 368 of the Internal
Revenue Code of 1986, as amended;
WHEREAS, this Agreement has been approved by the
Boards of Directors of SCOTTS and SCOTTS MIRACLE-GRO and by the
manager of SCOTTS LLC; and
WHEREAS, this Agreement has been adopted and
approved by SCOTTS, as the sole shareholder of SCOTTS
MIRACLE-GRO, and by SCOTTS MIRACLE-GRO, as the sole member of
SCOTTS LCC;
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained, the parties hereby
agree that the terms of the merger and the mode of carrying them
into effect shall be as follows:
ARTICLE I
SECTION 1.01. The
Merger. Subject to the terms and provisions of this
Agreement, and in accordance with the General Corporation Law of
the State of Ohio (the “OGCL”) and Chapter 1705 of the
Ohio Revised Code governing limited liability companies (the
“LLC Act”), at the Effective Time, SCOTTS shall merge
with and into SCOTTS LLC (the “Merger”). SCOTTS LLC
shall be the surviving
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entity (hereinafter sometimes referred to as the
“Surviving Company”) of the Merger and shall continue
its limited liability company existence under the laws of the
State of Ohio. At the Effective Time, the separate corporate
existence of SCOTTS shall cease.
SECTION 1.02. Effective
Time. The Merger shall become effective in accordance with
the provisions of Sections 1701.791 and 1701.81 of the OGCL
and Sections 1705.36 and 1705.38 of the LLC Act, upon the
filing of a certificate of merger with the Secretary of State of
the State of Ohio. The date and time when the Merger shall
become effective is herein referred to as the “Effective
Time.”
SECTION 1.03. Effects
of the Merger. At the Effective Time, the Merger shall have
the effects provided for herein and in Sections 1701.791
and 1701.82 of the OGCL and Sections 1705.36 and 1705.39 of
the LLC Act.
SECTION 1.04. Principal
Office. The principal office of the Surviving Company shall
be located at 00000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000.
SECTION 1.05. Articles
of Organization. As of the Effective Time, the Articles of
Organization of SCOTTS LLC, as in effect immediately prior to
the Effective Time, shall be the articles of organization of the
Surviving Company until thereafter duly amended in accordance
with the provisions thereof and applicable law.
SECTION 1.06. Operating
Agreement. As of the Effective Time, the Operating Agreement
of SCOTTS LLC, as in effect immediately prior to the Effective
Time, shall be the operating agreement of the Surviving Company
until thereafter amended in accordance with the provisions
thereof, the articles of organization of the Surviving Company
and applicable law.
SECTION 1.07. Manager
of the Surviving Company. At the Effective Time, the manager
of SCOTTS LLC immediately prior to the Effective Time shall
become the manager of the Surviving Company and shall serve as
the manager of the Surviving Company in accordance with the
provisions of the operating agreement of the Surviving Company
and applicable law.
SECTION 1.08. Officers
of the Surviving Company. At the Effective Time, each person
who is an officer of SCOTTS immediately prior to the Effective
Time shall become an officer of the Surviving Company, with each
such person to hold the same office in the Surviving Company in
accordance with the operating agreement thereof, as he or she
held in SCOTTS immediately prior to the Effective Time.
SECTION 1.09. Additional
Actions. If, at any time after the Effective Time, the
Surviving Company shall consider or be advised that any further
deeds, assignments or assurances in law or any other acts are
necessary or desirable (a) to vest, perfect or confirm, of
record or otherwise, in the Surviving Company, title to and
possession of any property or right of SCOTTS acquired or to be
acquired by reason of, or as a result of, the Merger or
(b) otherwise to carry out the purposes of this Agreement,
SCOTTS and its proper officers and directors shall be deemed to
have granted to the Surviving Company an irrevocable power of
attorney to execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary
and proper to vest, perfect or confirm title to and the
possession of such property or rights in the Surviving Company
and otherwise to carry out the purposes of this Agreement; and
the manager and the proper officers of the Surviving Company are
hereby fully authorized in the name of SCOTTS or otherwise to
take any and all such action.
ARTICLE II
MANNER, BASIS AND EFFECT OF CONVERTING SHARES AND
MEMBERSHIP INTERESTS
SECTION 2.01. Conversion
of Shares and Membership Interests. At the Effective Time:
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(a) Each common share, without par value, of
SCOTTS (the “Scotts Common Shares”) issued and
outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the
holder thereof, be converted into one fully paid and
nonassessable
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common share, without par value, of SCOTTS
MIRACLE-GRO (the “Scotts Miracle-Gro Common Shares”).
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(b) Each Scotts Common Share contributed to
SCOTTS MIRACLE-GRO pursuant to Section 4.01 of this
Agreement immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of
SCOTTS or SCOTTS MIRACLE-GRO, be converted into one fully paid
and nonassessable Scotts Miracle-Gro Common Share and shall be
held by SCOTTS MIRACLE-GRO in its treasury immediately after the
Effective Time.
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(c) The membership interests of SCOTTS LLC
issued and outstanding immediately prior to the Effective Time
shall remain issued and outstanding, and SCOTTS MIRACLE-GRO
shall remain the sole member of SCOTTS LLC.
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(d) Each Scotts Miracle-Gro Common Share
issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the
part of the holder thereof, be canceled and retired and shall
cease to exist, and shall not be converted into interests of the
Surviving Company or the right to receive cash, securities or
any other right or property.
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SECTION 2.02. Effect
of Conversion. At and after the Effective Time, each share
certificate which immediately prior to the Effective Time
represented outstanding Scotts Common Shares (a “Scotts
Certificate”) shall be deemed for all purposes to evidence
ownership of, and to represent, the number of Scotts Miracle-Gro
Common Shares into which the Scotts Common Shares represented by
such Scotts Certificate immediately prior to the Effective Time
have been converted pursuant to Section 2.01 hereof. The
registered holder of any Scotts Certificate outstanding
immediately prior to the Effective Time, as such holder appears
in the books and records of SCOTTS or its transfer agent
immediately prior to the Effective Time, shall, until such
Scotts Certificate is surrendered for transfer or exchange, have
and be entitled to exercise any voting and other rights with
respect to and to receive any dividends or other distributions
on the Scotts Miracle-Gro Common Shares into which the Scotts
Common Shares represented by any such Scotts Certificate have
been converted pursuant to Section 2.01 hereof.
SECTION 2.03. Exchange
of Certificates. Each holder of a Scotts Certificate shall,
upon the surrender of such Scotts Certificate to SCOTTS
MIRACLE-GRO or its transfer agent for cancellation after the
Effective Time, be entitled to receive from SCOTTS MIRACLE-GRO
or its transfer agent a certificate (a “Scotts Miracle-Gro
Certificate”) representing the number of Scotts Miracle-Gro
Common Shares into which the Scotts Common Shares represented by
such Scotts Certificate have been converted pursuant to
Section 2.01 hereof. If any such Scotts Miracle-Gro
Certificate is to be issued in a name other than that in which
the Scotts Certificate surrendered for exchange is registered,
it shall be a condition of such exchange that the Scotts
Certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person
requesting such exchange shall either pay any transfer or other
taxes required by reason of the issuance of the Scotts
Miracle-Gro Certificate in a name other than that of the
registered holder of the Scotts Certificate surrendered, or
establish to the satisfaction of SCOTTS MIRACLE-GRO or its
transfer agent that such tax has been paid or is not applicable.
SECTION 2.04. Dissenting
Shares. Notwithstanding anything in this Agreement to the
contrary, the Scotts Common Shares which are outstanding
immediately prior to the Effective Time and which are held by
SCOTTS shareholders who have not voted such Scotts Common Shares
in favor of adoption of this Agreement, who have delivered to
SCOTTS a written demand for payment of the fair cash value of
such Scotts Common Shares in the manner provided in
Section 1701.85 of the OGCL and who have otherwise complied
fully with all of the requirements of Section 1701.85 of
the OGCL, shall not be converted into Scotts Miracle-Gro Common
Shares as provided in this Agreement; provided, however, that
(a) the holder of such Scotts Common Shares
(“Dissenting Shares”), upon full compliance with the
requirements of Section 1701.85 of the OGCL, shall be
entitled to payment of the fair cash value of such Dissenting
Shares in accordance with the provisions of Section 1701.85
of the OGCL; (b) all other rights accruing from such
Dissenting Shares, including voting and dividend or distribution
rights, shall be suspended in accordance with
Section 1701.85 of the OGCL; and (c) in the event
(i) any holder of Dissenting Shares subsequently withdraws
such holder’s demand with the consent of SCOTTS or fails to
establish such
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holder’s entitlement to the fair cash value
of Dissenting Shares in accordance with Section 1701.85 of
the Ohio Revised Code, or (ii) any holder of Dissenting
Shares does not file a complaint demanding a determination of
the fair cash value of such Dissenting Shares within the period
provided in Section 1701.85 of the OGCL, such holder shall
forfeit the right to receive the fair cash value of such
Dissenting Shares and such Dissenting Shares shall thereupon be
deemed to have been converted into Scotts Miracle-Gro Common
Shares as provided in this Agreement.
SECTION 2.05. Stock
Plans and Executive Retirement Plan.
(a) Each option to purchase Scotts Common
Shares granted under The Scotts Company 1992 Long Term Incentive
Plan, The Scotts Company 1996 Stock Option Plan, or The Scotts
Company 2003 Stock Option and Incentive Equity Plan
(collectively, the “Stock Plans”), which is
outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the
holder of any such option, be converted into and become an
option to purchase the same number of Scotts Miracle-Gro Common
Shares as the number of Scotts Common Shares which were subject
to such option immediately prior to the Effective Time at the
same exercise price per share and upon the same terms and
subject to the same conditions as are in effect at the Effective
Time.
(b) Each stock appreciation right covering
Scotts Common Shares granted under The Scotts Company 2003 Stock
Option and Incentive Equity Plan, which is outstanding
immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder of any
such stock appreciation right, be converted into and become a
stock appreciation right covering the same number of Scotts
Miracle-Gro Common Shares as the number of Scotts Common Shares
which were subject to such stock appreciation right immediately
prior to the Effective Time at the same exercise price per share
and subject to the same terms and conditions as are in effect at
the Effective Time.
(c) The Scotts Common Shares attributable to
accounts of participants under The Scotts Company Executive
Retirement Plan (the “Executive Retirement Plan”)
relating to common share units and to accounts of directors of
SCOTTS holding stock units received under The Scotts Company
1996 Stock Option Plan or The Scotts Company 2003 Stock Option
and Incentive Equity Plan, immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on
the part of such participants and directors, be converted into
the same number of Scotts Miracle-Gro Common Shares and such
Scotts Miracle-Gro Common Shares shall be attributable to the
accounts of such participants and directors upon the same terms
and subject to the same conditions as are in effect at the
Effective Time.
(d) SCOTTS MIRACLE-GRO shall reserve for
purposes of each Stock Plan and the Executive Retirement Plan a
number of Scotts Miracle-Gro Common Shares equal to the number
of Scotts Common Shares reserved by SCOTTS for issuance under
such Stock Plan or the Executive Retirement Plan as of the
Effective Time.
(e) As of the Effective Time, SCOTTS
MIRACLE-GRO hereby assumes the Stock Plans and the Executive
Retirement Plan and all obligations of SCOTTS under the Stock
Plans, including the outstanding options, stock appreciation
rights and stock units granted pursuant thereto, and the
Executive Retirement Plan.
ARTICLE III
CONDITIONS TO THE MERGER
SECTION 3.01. Conditions
to Each Party’s Obligations to Effect the Merger. The
respective obligations of each party hereto to consummate the
Merger and the other transactions contemplated by this Agreement
are subject to the satisfaction at or prior to the Effective
Time of the following conditions:
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(b) Amendment of Articles. The
Articles of Incorporation of SCOTTS MIRACLE-GRO shall have been
amended to authorize not less than 100,000,000 common shares,
without par value, and 195,000 preferred shares, without par
value.
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(c) Form S-4 Registration
Statement. The registration statement on Form S-4 filed
with the U.S. Securities and Exchange Commission by SCOTTS
MIRACLE-GRO in connection with the issuance of Scotts
Miracle-Gro Common Shares in the Merger shall have become
effective under the Securities Act of 1933, as amended, and
shall not be the subject of any stop order or proceedings
seeking a stop order, and SCOTTS MIRACLE-GRO shall have received
all state securities laws or “blue sky” permits and
authorizations necessary, or exemptions from such permits and
authorizations, to issue Scotts Miracle-Gro Common Shares in
exchange for the Scotts Common Shares in the Merger.
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(d) NYSE Listing. The Scotts
Miracle-Gro Common Shares issuable to SCOTTS shareholders
pursuant to this Agreement and such other shares required to be
reserved for issuance in connection with the Merger shall have
been authorized for listing on the New York Stock Exchange upon
official notice of issuance.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Contribution
of Treasury Stock. Immediately prior to the Effective Time,
SCOTTS will contribute to the capital of SCOTTS MIRACLE-GRO all
the Scotts Common Shares then held in the treasury of SCOTTS.
SECTION 4.02. Amendment.
Subject to applicable law, this Agreement may be amended,
modified or supplemented by written agreement of SCOTTS, SCOTTS
MIRACLE-GRO and SCOTTS LLC, after authorization of such action
by the Boards of Directors of SCOTTS and SCOTTS MIRACLE-GRO and
by the manager of SCOTTS LLC, at any time prior to the filing of
the certificate of merger with the Secretary of State of the
State of Ohio, as contemplated by Section 1.02 of this
Agreement, except that after the adoption of this Agreement by
the shareholders of SCOTTS, this Agreement may not be amended if
it would violate Section 1701.791 of the OGCL,
Section 1705.36 of the LLC Act or the federal securities
laws.
SECTION 4.03. Termination.
At any time prior to the filing of the certificate of merger
with the Secretary of State of the State of Ohio, as
contemplated by Section 1.02 of this Agreement, this
Agreement may be terminated and the Merger may be abandoned by
the mutual consent of SCOTTS, SCOTTS MIRACLE-GRO and SCOTTS LLC,
after determination by the Boards of Directors of SCOTTS and
SCOTTS MIRACLE-GRO and the manager of SCOTTS LLC that the Merger
is not in the best interests of their respective entities,
notwithstanding approval of this Agreement by the shareholders
of SCOTTS.
SECTION 4.04. Appointment
of Agent. The Surviving Company consents to be sued and
served with process in the State of Ohio and irrevocably
appoints the Secretary of State of the State of Ohio as its
agent to accept service of process in any proceeding in the
State of Ohio to enforce against the Surviving Company any
obligation of SCOTTS, or to enforce the rights of a dissenting
shareholder of SCOTTS.
SECTION 4.05. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be a duplicate original, but
all of which, taken together, shall be deemed to constitute a
single instrument.
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IN WITNESS WHEREOF, SCOTTS, SCOTTS MIRACLE-GRO
and SCOTTS LLC have caused this Agreement to be signed by their
respective duly authorized officers as of the date first above
written.
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ATTEST:
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THE SCOTTS COMPANY,
an Ohio corporation
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/s/ XXXXXX XXXXXX
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By: /s/ XXXXXXXXXXX X. XXXXX
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Name: Xxxxxxxxxxx X.
Xxxxx
Title: EVP and CFO
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ATTEST:
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THE SCOTTS MIRACLE-GRO COMPANY,
an Ohio corporation
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/s/ XXXXXX XXXXXX
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By: /s/ XXXXXXXXXXX X. XXXXX
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Name: Xxxxxxxxxxx X.
Xxxxx
Title: EVP and CFO
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ATTEST:
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THE SCOTTS COMPANY LLC
an Ohio limited liability company
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/s/ XXXXXX XXXXXX
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By: /s/ XXXXXXXXXXX X. XXXXX
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Name: Xxxxxxxxxxx X.
Xxxxx
Title: EVP and CFO
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