THIS SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXXXXXX PARTNERSHIP, L.P., as amended (the "Partnership
Agreement"), is made as of the 28th day of July, 2000, by the General Partners
of the Partnership (the "Second Amendment").
WHEREAS, the General Partners have unanimously adopted, as of July 28,
2000, the Xxxxxxxx Partnership, L.P. Liquidity Plan (the "Liquidity Plan") at
the regular meeting of the General Partners held on July 28, 2000;
WHEREAS, implementation of certain provisions of the Liquidity Plan
requires amendment of the Partnership Agreement; and
WHEREAS, the General Partners desire to conform the scope of the
definition of Family Unit to that of the definition of Permitted Transferees;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
1. Defined Terms.
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Capitalized terms used herein (including in the introduction and
recitals above) and not otherwise defined have the respective meanings assigned
to them in the Partnership Agreement or in the Liquidity Plan, as applicable.
2. Distributions and Allocations.
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Notwithstanding anything in the Partnership Agreement to the contrary:
(a) If there is a sale of Scotts Common Stock pursuant to Section
3(a) or Section 5(a) of the Liquidity Plan, the Partnership shall promptly: (i)
distribute to the holder of the Class G limited partner interests (the
"Charity") that portion of the Net Proceeds to the Partnership from such sales
as is equal to 4.5% of the Income realized by the Partnership with respect to
such sales, and (ii) distribute the balance of such Net Proceeds to the holders
of the Class or Classes of Interests entitled thereto under Section 3(a) or
Section 5(b) of the Liquidity Plan, as applicable.
(b) If there is a distribution of shares of Scotts Common Stock
pursuant to Section 2(a), Section 3(a) or Section 5(b) of the Liquidity Plan,
the Partnership shall: (i) distribute to the Charity an amount equal to 4.5% of
the Income realized by the Partnership with respect to such distribution, and
(ii) distribute such shares to the holders of the Class or Classes of Interests
entitled thereto pursuant to Sections 2(a), 3(a) or 5(b) of the Liquidity Plan,
as applicable. Under the Liquidity Plan, it is a condition to the receipt of
such shares or Warrants by the holders of any Class of Interests that such
holders pay or cause to be paid to the Partnership an amount equal to the amount
to be distributed by the Partnership to the Charity
pursuant to clause (i) of this Section 2(b) in respect of the shares of Scotts
Common Stock to be distributed to the holders of such Class of Interests. The
Partnership may cause such payment obligation of any Class of Interests to be
satisfied by setting-off such obligation against any cash amounts that may
otherwise then be payable by the Partnership to the holders of the such Class of
Interests.
(c) Income realized by the Partnership with respect to a sale of
shares of Scotts Common Stock pursuant to Section 3(a) or Section 5(b) of the
Liquidity Plan shall be allocated as follows: (i) to the Charity, an amount
equal to the aggregate amount distributed to the Charity pursuant to Section
2(a) of this Second Amendment in connection with such sale, and (ii) the balance
to the holders of the Class or Classes of Interests that received the balance of
the distributions made pursuant to Section 2(b) of this Second Amendment in
connection with such sale in the same proportions as the respective amounts
distributed to each Class of Interests pursuant to Section 2(a) of this Second
Amendment in connection with such sale bears to the total amount distributed to
all Classes of Interests pursuant to Section 2(a) in connection with such sale.
(d) Income realized by the Partnership with respect to a
distribution of shares of Scotts Common Stock pursuant to Section 2(a), Section
3(a) or Section 5(b) of the Liquidity Plan shall be allocated: (i) to the
Charity, an amount equal to the aggregate amount distributed to it pursuant to
Section 2(b) of this Second Amendment and (ii) the balance to the holders of the
Class or Classes of Interests that received such distribution of shares pursuant
to Section 2(b) of this Second Amendment in the same proportions as the number
of shares distributed to each Class of Interests pursuant to Section 2(b) of
this Second Amendment in such distribution bears to the total number of shares
distributed to all Classes of Interests pursuant to Section 2(b) in such
distribution.
(e) Following any sale or distribution of Scotts Common Stock by the
Partnership pursuant to Section 3(a) of the Liquidity Plan, (A) the amounts
otherwise distributable by the Partnership pursuant to Section 4 of the
Partnership Agreement to the holders of any Class of Interests that received all
or a portion of such distribution with respect to dividends or other
distributions on, or proceeds from the sale of, shares of Scotts Common Stock
owned by the Partnership shall be reduced by the amount by which (i) the
reduction in the amount of those dividends, distributions or sale proceeds
derived by the Partnership as a result of the reduction of the Partnership's
holdings of Scotts Common Stock caused by such sale or distribution pursuant to
Section 3(a) of the Liquidity Plan exceeds (ii) the reduction in the amount of
those dividends, distributions or sale proceeds that is distributable to the
Charity as a result of such reduction in the Partnership's holdings of Scotts
Common Stock, and the amounts of Income otherwise allocable by the Partnership
to the holders of such Class of Interests pursuant to Section 3 of the
Partnership Agreement shall be reduced in a parallel manner.
(f) Special meetings of the General Partners pursuant to Section 3(g)
of the Partnership Agreement may be called as provided therein.
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3. Liquidity Plan Compliance.
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Notwithstanding anything in the Liquidity Plan to the contrary, each
General Partner, Limited Partner or Assignee that accepts any shares of Scotts
Common Stock or Warrants pursuant to any provision of the Liquidity Plan shall
automatically be deemed to have irrevocably agreed and covenanted to comply with
the terms and conditions of the Liquidity Plan applicable to such shares or
Warrants. This Section 3 shall not be deemed to modify the obligations of such
persons to execute and deliver any agreement or instrument that may be made a
condition to the receipt of such shares or Warrants in accordance with the
Liquidity Plan.
4. Amendment of Section 5.7.
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Clause (i) of Section 5.7(a) of the Partnership Agreement is hereby
amended to read in its entirety as follows:
(i) Sales of Scotts Securities that would result in the
Partnership holding less than 25% of the then outstanding voting
power in Scotts;
5. Definitions.
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(a) The definition of "Permitted Transferee" set forth in Section 7.1
of the Partnership Agreement is hereby amended to read in its entirety as
follows:
Permitted Transferees shall mean persons who are spouses or
former spouses or lineal descendants of General Partners, spouses
or former spouses of such lineal descendants, trusts for the
benefit of foregoing spouses, former spouses and descendants, and
charities that qualify under Section 501(c)(3) of the Code.
(b) The definition of the term "Family Unit" in Section 12.1 of the
Partnership Agreement is hereby amended to read in its entirety as follows:
Family Unit -- the spouse, any former spouse and the lineal
descendants of a General Partner, and the spouses and former
spouses of such lineal descendants, trusts for the benefit of
such descendants, spouse, and charities that qualify under
Section 501(c)(3) of the Code.
6. Miscellaneous.
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(a) Except as expressly amended by this Second Amendment, the
Partnership Agreement shall remain in full force and effect in accordance with
its terms.
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(b) Captions contained in this Second Amendment are inserted only as
a matter of convenience and in no way define, limit or extend the scope or
intent of this Second Amendment or any provision hereof.
(c) This Second Amendment may be executed in one or more
counterparts, which may include facsimile counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the General Partners hereto have executed this
Agreement as of the day and in the year first above written.
/s/ Xxxxx Xxxxxxxx
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