Exhibit 10.4
THE SCOTTS COMPANY
2003 STOCK OPTION AND INCENTIVE EQUITY PLAN
AWARD AGREEMENT FOR NONDIRECTORS
The Scotts Company ("Company") believes that its business interests are best
served by ensuring that you have an opportunity to share in the Company's
business success. To this end, the Company adopted the 2003 Stock Option and
Incentive Equity Plan ("Plan") through which key employees, like you, may
acquire (or share in the appreciation of) shares of the Company's common stock.
We cannot guarantee that the value of your Award (or the value of the stock you
acquire through an Award) will increase. This is because the value of the
Company's stock is affected by many factors. However, the Company believes that
your efforts contribute to the value of the Company's stock and that the Plan
(and the Awards made through the Plan) is an appropriate means of sharing with
you the value of your contribution to the Company's business success.
This Agreement describes the type of Award that you have been granted and the
conditions that must be met before you may receive the value associated with
your Award. To ensure you fully understand these terms and conditions, you
should:
o Carefully read this Award Agreement and the attached copies of the Plan
and Prospectus; and
o Call us at (000) 000-0000 if you have any questions about your Award.
Or, you may send a written inquiry to:
The Scotts Company
Attn: Xxxxx Xxxxxx
Vice President Human Resources
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
DESCRIPTION OF YOUR AWARD
You have been awarded 25,000 shares of Restricted Stock (the "Award"), which,
may not be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated for any reason (except as provided in Section 2.00 below to satisfy
the tax withholding obligations that arise from this Award) until the later of:
(i) six months following your termination of employment with the Company for any
reason other than death or disability (as defined in the Plan), regardless of
the prior vesting of such Restricted Stock, and (ii) the occurrence of one of
the vesting events described in Section 1.00 below. Furthermore, except as
otherwise provided in the Plan, until the occurrence of one of the vesting
events described in Section 1.00 below, each of the 25,000 shares of Restricted
Stock described above shall be held by the Company as escrow agent along with
any dividends that may be granted thereon. If you fail to satisfy one of the
vesting events prior to October 1, 2009, all 25,000 shares of Restricted Stock
described herein (and any dividends attributable thereto) shall be forfeited.
Upon the occurrence of a vesting event, you shall own the shares of stock and be
entitled to all dividends thereon.
GENERAL TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS APPLY TO ALL AWARDS ISSUED UNDER THIS AWARD
AGREEMENT. THIS IS MERELY A SUMMARY OF THESE IMPORTANT TERMS AND CONDITIONS; YOU
ARE URGED TO READ THE ENTIRE PLAN AND PROSPECTUS (COPIES OF WHICH ARE ATTACHED),
ALL OF THE TERMS OF WHICH ARE INCORPORATED BY REFERENCE INTO THIS AWARD
AGREEMENT.
1.00 LOSS OF AN AWARD/VESTING EVENTS. The 25,000 shares of Restricted Stock
subject to this Award and any dividends that may be granted following the Date
of Grant shall be forfeited on October 1, 2009, unless one of the following
vesting events first occurs:
[1] You are continuously employed by the Company from the Date of Grant
until September 30, 2007, and at any time on or after September 30,
2007, you are not serving as the Chief Operating Officer of the Company
or in any position that is more senior to the Chief Operating Officer
of the Company;
[2] You are continuously employed by the Company from the Date of Grant
until September 30, 2009 (regardless of your position);
[3] You [a] die or [b] become disabled (as defined in Section
1.00(1)(d) of the Employment Agreement and Covenant Not to Compete as
of October 1, 2004, between you and the Company (the "Employment
Agreement"), prior to October 1, 2009;
[4] You separate from employment with the Company on or before
September 30, 2007, and after you have attained the age of fifty-five
years, for any reason other than for "Cause" or due to your voluntary
resignation without "Constructive Termination", in each case as such
terms are defined in the Employment Agreement, or in any successor to,
or renewal of, such agreement.
2.00 RESTRICTIONS ON THE SALE OF SHARES FOLLOWING VESTING. Notwithstanding the
occurrence of a vesting event described in Section 1.00 above, except to
satisfy the tax withholding obligations that arise from this grant of Restricted
Stock, no shares of Restricted Stock may be sold, transferred, pledged, assigned
or otherwise alienated or hypothecated until six months following your
termination of employment with the Company for any reason other than death or
disability (as defined in the Plan). The restrictions reflected in this Section
2.00 shall not apply to any vested dividends that are attributable to the shares
of Restricted Stock granted herein.
3.00 CANCELLATION OF AWARDS BY COMPANY. Except as otherwise specifically
provided in this Award Agreement, your Award shall be noncancellable, unless you
consent in writing.
4.00 AMENDMENT/TERMINATION. We may amend or terminate the Plan at any time, but
cannot cancel your Award without your written consent, except as otherwise
specifically provided in this Award Agreement.
5.00 TAX TREATMENT OF YOUR RESTRICTED STOCK GRANT
The 25,000 shares of Restricted Stock described in this Award
were granted on October 1, 2004 (the "Date of Grant"). Restricted stock awards
granted pursuant to the Plan are taxed in accordance with the rules of section
83 of the Internal Revenue Code. Each employee who receives a restricted stock
award is urged to discuss the income tax consequences of the award with his or
her income tax advisor. A very general explanation of the applicable rules
follows.
The general tax rule is that you will recognize ordinary
income equal to the fair market value of the shares of Restricted Stock when the
restrictions lapse (i.e., when such shares become vested). However, you may
accelerate your recognition of ordinary income to the tax year in which your
Date of Grant occurs (in this case 2004) by filing an election under section
83(b) of the Internal Revenue Code. The section 83(b) election must be made no
later than 30 days after the Date of Grant. If you timely file the section 83(b)
election, you will recognize as ordinary income the fair market value of the
stock on the Date of Grant. You will not recognize any further ordinary income
when the restrictions on the award subsequently lapse. Attached is a form you
can use to make this election.
When you sell your Restricted Stock, the tax treatment will
depend on whether you have timely made an election under section 83(b) of the
Internal Revenue Code. Under current Federal tax law, if you have made such a
timely election and you sell your stock after it is vested and at least 12
months from the Date of Grant, any gain from the sale will be a long term
capital gain. Any gain from a sale on or before this 12 month period will be a
short-term capital gain. If you do not make a timely section 83(b) election, the
holding period for long-term capital gain treatment on the sale of your stock
begins on the date the restrictions on your restricted stock lapse.
Under the terms of your Agreement, the Company will hold all
dividends in escrow along with your shares of Restricted Stock. These dividends
will be taxable to you as compensation at the same time, and in the same manner,
as the shares of Restricted Stock unless you have made the section 83(b)
election. If you make the section 83(b) election the dividends are taxable as
dividends.
The Company may be required by law to withhold Federal, state
or local taxes on any ordinary income attributable to your Restricted Stock
Award. If you make a section 83(b) election, these taxes will be due and payable
for the year in which the Date of Grant occurs. If you do not make a section
83(b) election, these taxes will be due and payable for the year in which the
restrictions on your restricted stock award lapse. Upon determination by the
Company of the year in which taxes are due and the amount of taxes required to
be withheld, you are liable to the Company for the amount of taxes that must be
withheld. You may satisfy this obligation by either: (i) paying the Company in
cash or by certified or cashier's check, (ii) authorizing the Company to
withhold monies owing from the Company to you or (iii) authorize the Company to
withhold from the shares granted in your Restricted Stock Award. The latter type
of payment cannot be made if you make a section 83(b) election.
We must emphasize that if you want to make the section 83(b)
election, which may be to your advantage if the stock rises in value, you must
do so by filing the attached or a similar form with the Internal Revenue Service
Center with which you file your federal income tax return no later than 30 days
after the Date of Grant. Even though you timely make the section 83(b) election,
you may not sell the Restricted Stock until the restrictions imposed on such
stock lapse (i.e., the stock vests), and as otherwise provided hereunder. In
addition, one copy of the election must be submitted with your income tax return
for the taxable year for which the property is transferred and a copy of the
election must be filed with the Company.
If you make a section 83(b) election, the election may not be
revoked. In addition, if you file such an election and the stock is subsequently
forfeited, you will not be entitled to a corresponding income tax deduction for
the amount of income taxes that you paid as a result of making the section 83(b)
election. You also will not be able to file for a refund of the income taxes.
Once again, we urge you to talk with your individual tax
advisor concerning the tax consequences of your Restricted Stock Award. The
Company and its employees do not make any tax representations or
recommendations. This general explanation is being provided simply to assist you
in understanding the concepts before you meet with your individual advisor.
You must sign this Agreement; if you do not, your Award will be cancelled. By
signing this Agreement you acknowledge that this Award is granted under and is
subject to the terms and conditions described in this Agreement and in the Plan.
OPTIONEE/GRANTEE THE SCOTTS COMPANY
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxx
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Xxxxxx X. Xxxxxxxxx Xxxxxx Xxxxx
(date signed) 11/4/04 (date signed) 11/04/04
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DATE OF THIS AGREEMENT: October 1, 2004
ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE
Pursuant to the provisions of Section 83(b) of the Internal Revenue
Code of 1986, as amended, the undersigned (the "Taxpayer") hereby elects to
include in gross income, for the taxable year set forth below, the excess, if
any, of the fair market value of the property described below (valued as of the
time of transfer) over the amount (if any) paid therefor. Pursuant to the
provisions of Section 1.83-2(e)(7) of the Treasury regulations, the Taxpayer
hereby states that copies of this election have been furnished to the persons
described in Section 1.83-2(d) of such regulations.
1. Name of Taxpayer:
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2. Address of Taxpayer:
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3. Social Security Number: - -
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4. Description of Property Covered
by Election: -------------------------------------
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5. Date Property Transferred: , 20
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6. Taxable Year for Which Election , 20
is Made: -------------------------------------
7. Fair Market Value of Property
at Time of Transfer:* $
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8. Amount Paid for Property: $
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9. Nature of Restrictions to Which
Property is Subject:
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Signature of Taxpayer Date
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* (DETERMINED WITHOUT REGARD TO ANY RESTRICTIONS OTHER THAN RESTRICTIONS WHICH
BY THEIR TERMS WILL NEVER LAPSE)
