THIS THIRD AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXXXXXX PARTNERSHIP, L.P., as amended (the "Partnership
Agreement"), is made as of the 20th day of July, 2001, by the General Partners
of the Partnership (the "Third Amendment").
WHEREAS, the General Partners have unanimously adopted, as of July 20,
2001, an Amendment No. 1 (the "Plan Amendment") to the Xxxxxxxx Partnership,
L.P. Liquidity Plan (the "Liquidity Plan") at the regular meeting of the General
Partners held on July 20, 2001;
WHEREAS, in connection with the adoption of the Liquidity Plan, the
General Partners adopted the Second Amendment, dated as of July 28, 2000, to the
Partnership Agreement (the "Second Amendment"), implementing certain terms of
the Liquidity Plan;
WHEREAS, implementation of the Plan Amendment requires the amendment
of certain of the provisions of the Partnership Agreement added by the Second
Amendment;
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. Amendments.
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(a) Section 2(c) of the Second Amendment is hereby amended by deleting
the phrase "Section 5(b) of the Liquidity Plan" in the second line thereof and
replacing it then with the phrase "Section 5(a) of the Liquidity Plan".
(b) Section 2(e) of the Second Amendment is hereby amended and
restated to read in its entirety as follows:
"(e) Following any sale or distribution of Scotts Common Stock by
the Partnership pursuant to Section 2(a) or 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
(excluding sales or distributions pursuant to Sections 2, 3 or
5 of the Liquidity Plan) 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 2(a) or 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."
3. Miscellaneous.
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(a) Except as expressly amended by this Third Amendment, the
Partnership Agreement shall remain in full force and effect in accordance with
its terms.
(b) Captions contained in this Third 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 Third 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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/s/ Xxxxxx Xxxxxxxx
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