**Exhibit 10.50**

 

Certain confidential information contained in thisdocument, marked by brackets, is filed with the U.S. Securities and ExchangeCommission pursuant to Rule 24-b of the Securities Exchange Act of 1934, asamended.

 

**CONFIDENTIAL**

**EXECUTIONCOPY**

 

 

**TRADEMARKLICENSE AND**

 

**MANUFACTURINGAND SUPPLY AGREEMENT**

 

 

**BYAND BETWEEN**

 

 

**UNITED INDUSTRIES CORPORATION**

 

 

**AND**

 

**HOMEDEPOT U.S.A., INC.**

 

 

**EFFECTIVE AS OF JANUARY 1, 2004**

 

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**TRADEMARK LICENSE AND MANUFACTURINGAND SUPPLY AGREEMENT**

 

This TRADEMARK LICENSE AND MANUFACTURING AND SUPPLYAGREEMENT (this “Agreement”) is made effective the first day of January,2004 (“Effective Date”) by and between United Industries Corporation, aDelaware****corporation(“UIC”), and Home Depot U.S.A., Inc., a Delaware corporation (“HomeDepot”).

 

**WITNESSETH:**

 

WHEREAS, UIC owns the Marks (as defined below) and theparties desire UIC to license the Marks to Home Depot in connection with themarketing and sale by Home Depot of Vigoro-Branded Products (as defined below);

 

WHEREAS, UIC also desires to license the Marks tothird parties designated by Home Depot for their use in connection withmanufacturing Vigoro-Branded Products (as defined below) for Home Depot tomarket and sell;

 

WHEREAS, the parties desire UIC to manufacture andsupply Vigoro Fertilizers (as defined below) and certain other products forHome Depot; and

 

WHEREAS, provided that Home Depot has achieved certainassignment purchase requirements and has extended for an additional three yearsits commitment to purchase Vigoro Fertilizers from UIC, the parties desire UICto assign the Marks to Home Depot.

 

NOW, THEREFORE, in consideration of the promises andthe mutual covenants set forth herein and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereby agree and covenant as follows.

 

# **ARTICLE I. DEFINITIONS**

# ** **

The following terms, when used herein with initialcapital letters, shall have the respective meanings set forth in this Article I.

 

## 1.01         “Affiliate”means, with respect to a specified Person, another Person that controls, iscontrolled by, or is under common control with, the specified Person.  The word “control” means ownership of 50% ormore of the voting securities of a Person or the ability otherwise to directthe management and policies of the Person.

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## 1.02         “AssignmentDate” has the meaning specified in Section 11.01(c).

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## 1.03         “BusinessDay” has the meaning specified in Section 15.01.

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## 1.04         “Changeof Control” means any transaction or series of transactions whereby,directly or indirectly, equity or management control of a party, orsubstantially all of such party’s assets to which this agreement relates or toits entire business is transferred to any Person, whether such transaction isstructured as a sale or exchange of capital stock or assets, a lease of assetswith or without a purchase option, a merger or consolidation, a tender orexchange offer, a leveraged

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buy-out, a restructuring, a recapitalization, a repurchase of capitalstock, an extraordinary dividend or distribution, a liquidation, a formation ofa joint venture or partnership, or otherwise.

 

## 1.05         “CommodityFertilizers” means those fertilizers listed in Schedule A as amendedby UIC from time to time.

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## 1.06         “CompetingProducts” means any products in the following categories:  fertilizers, spreaders, lawn, garden andhousehold pesticides and repellants (including, without limitation,insecticides, herbicides, rodenticides and personal and area repellants).  [*]

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## 1.07         “ConfidentialInformation” has the meaning specified in Section 14.01.

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## 1.08         “CreditAgreement” means (i) that certain Credit Agreement dated as of March 24,1999 (as amended and modified by Waiver No. 1 dated as of December 30, 1999,Amendment and Waiver No. 2 dated as of January 24, 2000, Amendment and WaiverNo. 3 Under the Loan Documents dated as of November 7, 2000, Amendment No. 4Under the Credit Agreement dated as of February 13, 2002, Amendment No. 5 tothe Loan Documents dated as of May 9, 2002, Amendment and Waiver No. 6 Underthe Credit Agreement dated as of June 14, 2002, Amendment No. 7 Under theCredit Agreement dated as of September 30, 2002, Amendment No. 8 to the CreditAgreement dated as of November 4, 2002, Amendment No. 9 to the Loan Documentsdated as of December 6, 2002 and Amendment No. 10 dated as of March 14, 2003)among UIC, certain banks, financial institutions and other institutionallenders party thereto; Bank of America, N.A. (formerly known as NationsBank,N.A.) (“Bank of America”), as Swing Line Bank and Initial Issuing Bankthereunder; Banc of America Securities LLC (formerly known as NationsBancMontgomery Securities LLC) (“BAS”) and Morgan Stanley Senior Funding,Inc. (“MSSF”), as Co-Arrangers therefore; Canadian Imperial Bank ofCommerce, as Documentation Agent therefore; MSSF, as Syndication Agentthereunder; BAS, as Lead Arranger and Book Manager therefore; and Bank ofAmerica, as Administrative Agent for the Lender Parties thereunder, or (ii) anycredit or similar agreement that replaces or substitutes for the foregoing.

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## 1.09         “Dispute”has the meaning specified in Section 17.02.

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## 1.10         “EffectiveDate” has the meaning set forth in the Preamble.

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## 1.11         “Expenses”means all costs and expenses incurred in connection with prosecuting,maintaining and enforcing the Marks including, without limitation, the fees andcosts of attorneys and other professionals and all tribunal costs and anysettlement costs.

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## 1.12         “FinalYear Volume” has the meaning specified in Section 5.03(b)(i).

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## 1.13         “Losses”means all obligations, third party claims, damages, losses, liabilities,obligations, settlements, injunctions, suits, actions, proceedings, liens,demands, charges, fines, penalties, costs and expenses of every kind and nature(whether based on tort, breach of contract, product liability, infringement orotherwise), including without limitation, fees and expenses of attorneys andother professionals, and disbursements which may be imposed on, incurred by or

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## [*]           Certainconfidential information contained in this document, marked by brackets, isfiled with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2of the Securities Exchange Act of 1934, as amended.

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## asserted against the Persons hereby required to beindemnified (but not against any of the same to the extent that a grosslynegligent or willful act or omission of any of such party was the cause of thesame).

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## 1.14         “MarketWithdrawal” has the meaning specified in Section 7.02.

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## 1.15         “Marks”means those trademarks and associated applications and registrations listed inthe first column in Schedule B attached hereto, which may be amendedfrom time to time by mutual agreement of the parties.

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## 1.16         “MinimumAnnual Volume” has the meaning specified in Section 5.02(b)(i).

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## 1.17         “MinimumAggregate Volume” has the meaning specified in Section 5.03(a)(i).

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## 1.18         “NegotiatingPeriod” has the meaning specified in Section 17.02.

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## 1.19         “NewApplications and Registrations” has the meaning specified in Section4.03(b).

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## 1.20         “Non-CompetingProducts” means all products, other than Competing Products, manufactured,marketed or sold under any of the Marks.

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## 1.21         “Non-VigoroBranded Products” means all products offered for sale to any Person by UICas of the Effective Date, except for: (i) any product sold under any of the Marks; (ii) any products developedor acquired (whether by assignment, merger, asset sale, purchase of controllingequity interests or other form of acquisition) by UIC or any UIC Affiliateafter the Effective Date; and (iii) Commodity Fertilizers.

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## 1.22         “Person”means any natural person, corporation, company, partnership, limitedpartnership, limited liability company, firm, association, trust, government,governmental agency, or any other entity, whether acting in an individual,fiduciary or other capacity.

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## 1.23         “Products”means all products and services ordered, forecasted to be ordered or purchasedby Home Depot from UIC pursuant to this Agreement.

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## 1.24         “PurchasePrice” means the purchase price of each Product, as further defined in ArticleX.

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## 1.25         “Records”has the meaning specified in Section 9.02.

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## 1.26         “Reports”means any of the reports required to be given by any party pursuant to Section9.01.

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## 1.27         “SupplierBuying Agreement” means that Home Depot Supplier Buying Agreement betweenHome Depot U.S.A., Inc. and United Industries Corporation of even dateherewith.

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## 1.28         “SupplyObligations” generally refers to the parties’ respective obligations andduties set forth in Articles V through X hereunder.

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## 1.29         “ThirdParty Licensee” has the meaning specified in Section 3.04(b).

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## 1.30         “ThirdParty Licenses” has the meaning specified in Section 3.04(d).

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## 1.31         “TrademarkRights” has the meaning set forth in Section 3.03.

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## 1.32         “TrademarkTerm” has the meaning set forth in Section 3.03.

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## 1.33         “VigoroFertilizers” means all lawn fertilizers and garden granular and watersoluble fertilizer products marketed or sold under or in conjunction with anyof the Marks.

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## 1.34         “Vigoro-BrandedProducts” means any product manufactured, marketed or sold under or inconjunction with any of the Marks.

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# **ARTICLE II. CONDITIONS PRECEDENT**

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## 2.01         ConditionsPrecedent.  Notwithstanding theexecution of this Agreement by either or both parties, none of the terms andconditions of this Agreement shall be effective unless and until the followingconditions precedent have occurred, after which the Agreement shall be effectiveas of the Effective Date:

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### a.             UIC’sBoard of Directors shall have approved the terms and conditions of thisAgreement; and

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### b.             UICshall have received a full and effective waiver and amendment to, or languagein, the Credit Agreement that permits this Agreement and all transactions andobligations contemplated herein.

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# **ARTICLE III. TRADEMARK LICENSE**

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## 3.01         LicenseGrants.

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### a.             HomeDepot.  Subject to any pre-existingcontractual obligations or restrictions, or other impairments, to the extentlisted in Schedule D and to the terms and conditions of this Agreement,UIC hereby grants to Home Depot, during the Trademark Term, a royalty-free,sole (except for Third Party Licenses granted at Home Depot’s request pursuantto Sections 3.01(b)(i) and (ii)), non-transferable license, without theright to sublicense, to use each Mark set forth in Schedule B solely inconnection with the marketing and sale of Vigoro-Branded Products in thepermitted product categories and permitted territories corresponding to such Markas set forth in Schedule B.  Theforegoing license to Home Depot is limited to Vigoro-Branded Products that aremanufactured for Home Depot by either UIC or by a Third Party Licensee.

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### b.             ThirdParties.  Subject to anypre-existing contractual obligations or restrictions, or other impairments, tothe extent listed in Schedule D and to the terms and conditions of thisAgreement, UIC hereby agrees, on Home Depot’s request from time to time duringthe Trademark Term, to grant:

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#### (i)    royalty-free,non-exclusive, non-transferable licenses (without the right to sublicense), tothird parties designated by Home Depot to use the Marks solely in connectionwith such third parties’ supply of Non-Competing Products to Home Depot inconnection with the license granted to Home Depot in subsection (a) above; and

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#### (ii)   royalty-bearing,non-exclusive, non-transferable licenses (without the right to sublicense), tothird parties designated by Home Depot to use the Marks solely in connectionwith such third parties’ supply of Competing Products to Home Depot inconnection with the license granted to Home Depot in subsection (a) above; providedthat, if UIC is a vendor for any portion of Home Depot’s Vigoro-branded [*]business at any time during the Trademark Term, then any Third Party Licensesgranted hereunder for use of the Marks solely in connection with Vigoro-branded[*] shall be royalty-free only for such period during which UIC is a vendor andis supplying Vigoro-branded [*] to Home Depot.

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## 3.02         Covenant.  Home Depot hereby covenants that, prior tothe Assignment Date, Home Depot shall not use, nor shall it permit any ThirdParty Licensee****to use, the Marks outside the scope of the licenses grantedin connection with Section 3.01. If Home Depot desires to use a Mark outside the scope of the licensegranted in Section 3.01(a), it may request that UIC register the Markfor such use and amend Schedule B to include such registration, asfurther described in Section 4.01(b).

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## 3.03         Termof Trademark Rights.  The parties’respective rights and obligations with respect to the Marks, as set forth inthis Article III, and in Article IV, Section 7.01, Section9.01(a) and Section 10.03, (the “Trademark Rights”) shallbegin as of the Effective Date and, unless otherwise provided herein, shall atUIC’s option expire as follows (the “Trademark Term”):

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### a.             immediately,upon termination of the Supply Obligations pursuant to the terms of thisAgreement;

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### b.             immediatelyupon expiration, pursuant to Section 5.02(c), of Home Depot’sexclusivity and Minimum Annual Volume purchase obligations set forth in Section5.02(a) and Section 5.02(b), respectively; or

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### c.             theAssignment Date.

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## 3.04         Limitationson Third Party Licenses.

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### a.             Beforerequesting UIC to grant any Third Party License with respect to any product,Home Depot shall notify UIC of its requirements for such product, and theparties shall discuss UIC’s ability to supply such products to Home Depot oncompetitive terms at that time.  Notwithstandingthe previous sentence, any determination to use UIC to source such productsshall be at Home Depot’s sole discretion.

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### b.             Notwithstandinganything herein to the contrary, UIC shall not be required to grant any licenseto the Marks to a third party unless such Person has executed a licenseagreement with UIC containing customary terms and conditions at least asrestrictive as those contained

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## [*]           Certainconfidential information contained in this document, marked by brackets, isfiled with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2of the Securities Exchange Act of 1934, as amended.

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### herein and otherwise satisfactory to UIC (“ThirdParty Licensee”).  UIC shall notunreasonably withhold the grant of such a license and shall act in good faithwith respect to all Third Party Licensees; provided, however,that it shall not be deemed unreasonable for UIC to refuse to grant any licenseto the Marks to any third party that UIC has a good faith reason to believewould not comply with Section 3.06 and Section 3.07.** **Any Third Party Licensee shallagree to the applicable terms of this Agreement.

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### c.             Notwithstandinganything herein to the contrary, UIC shall not be required to grant a licenseto any third party in connection with any product in any territory in whichsuch product is being manufactured, marketed or sold under a Mark as of theEffective Date, except as may be provided in Section 6.02.

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### d.             Alllicenses granted to third parties by UIC pursuant to Sections 3.01(b)(i) and(ii) (“Third Party Licenses”) shall be drafted such that theyautomatically terminate upon any termination of the license granted by UIC toHome Depot pursuant Section 3.01(a).

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## 3.05         Ownership.  Home Depot acknowledges that, as betweenHome Depot and UIC, until the Assignment Date, UIC is the sole and exclusiveowner of all right, title and interest in and to the Marks and Home Depot shallrefrain from taking any action inconsistent with such ownership and fromattacking UIC’s title to the Marks or the lien created in the Marks by theCollateral Documents (as defined in the Credit Agreement).  Home Depot agrees that, subject to Section3.12****andArticle XI, nothing in this Agreement shall give Home Depot any right,title or interest in the Marks other than the right to use such Marks inaccordance with the license granted in Section 3.01.  UIC reserves all rights to the Marks exceptas expressly granted herein to Home Depot.

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## 3.06         QualityControl.  Home Depot agrees that thenature and quality of all Vigoro-Branded Products, as currently sold,manufactured by a Third-Party Licensee and the nature and quality of alladvertising, marketing and other uses of the Marks by Home Depot shall be, asreasonably determined by UIC, of a nature and quality:  (i) at least equal to the nature and qualityof Vigoro-Branded Products (and related marketing and advertising) currentlybeing sold by UIC; and (ii) consistent with the reputation of the Marks.  Home Depot agrees to cooperate with UIC infacilitating UIC’s control of the quality and reputation of the Marks by:  (i) permitting reasonable inspection of anyHome Depot facility upon reasonable notice and during normal business hours; (ii)at UIC’s reasonable request, supplying UIC with representative samples of HomeDepot’s uses of the Mark; and (iii) refraining from any use of the Marks thatwould harm the reputation of the Marks, including by tarnishment ordilution.  In order to protect thevalidity of the Marks and its brand equity, UIC shall have the right toreasonably reject any uses of the Marks by Home Depot or any Third PartyLicensee that could, under standards and practices common in the retailindustry and in the industry in which the applicable goods and services areprovided, reasonably be expected to adversely affect the reputation or validityof the Marks**,**or that violate any usage guidelines promulgated by UICpursuant to Section 3.07.

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## 3.07         UsageGuidelines.  Home Depot shall usethe Marks in a manner consistent with UIC’s use of the Marks and withguidelines promulgated by UIC from time to time in the future, provided thatsuch guidelines shall not have a material impact on Home Depot’s ability toexploit

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## the Marks as provided in this Agreement.  If such guidelines have not been agreed uponin advance by, and have a material financial impact on, Home Depot, UIC will beresponsible for any reasonable and direct out-of-pocket expenses incurred byHome Depot as a result of UIC’s implementation of such guidelines.  Any objection by UIC to the use of any Markby Home Depot or any Third Party Licensee shall be accompanied by a writtenstatement setting forth in reasonable detail the nature of UIC’s objections andsuggestions for removing or replacing the objectionable aspects.** **Where practical and appropriateor reasonably required by UIC, Home Depot shall include, or shall require to beincluded, the following attribution on all product packaging for all Vigoro-BrandedProducts manufactured for, or marketed and sold by, Home Depot pursuant tolicenses granted in connection with Section 3.01:  “VIGOROTM/® is a licensed trademark of UnitedIndustries Corporation” or such other attribution agreed to by the parties fromtime to time.

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## 3.08         Changesto the Marks.  UIC shall have theright at any time to make additions to, deletions from, and changes to any orall of the Marks in its sole and complete discretion; provided, however,that UIC shall give Home Depot reasonable prior written notice thereof and thatno such change shall, in UIC’s reasonable determination, materially impair thepresent character, reputation or market position of any Mark.  Home Depot shall, after receipt of suchwritten notice from UIC, adopt and begin using any and all such additions,deletions and changes as soon as reasonably practicable after UIC’s adoptionthereof.  Notwithstanding the foregoing,if UIC requires that any such addition, deletion or change be made, Home Depotshall be entitled to distribute and sell-down all existing inventory ofVigoro-Branded Products, and use existing inventory of packaging and labelstock, and to use existing advertising and promotional materials, unless UICnotifies Home Depot in writing that such uses of Vigoro-Branded Products,packaging and label stock or promotional materials allegedly infringe therights of any Person.  If any suchaddition, deletion or change has not been agreed upon in advance by, and has amaterial financial impact on, Home Depot, UIC will be responsible for anyreasonable and direct out-of-pocket expenses incurred by Home Depot as a resultof UIC’s implementation of such addition, deletion or change.

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## 3.09         Goodwill.  Home Depot’s use of the Marks during theTrademark Term, and any goodwill arising therefrom, shall inure solely to thebenefit of UIC.  Notwithstanding theforegoing, however, such goodwill shall be transferred to Home Depot inconnection with any assignment of the Marks pursuant to Article XI.  Any goodwill arising from the use of HomeDepot’s own trademarks shall inure solely to the benefit of Home Depot.

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## 3.10         Co-branding.Home Depot shall not have the right to use the Marks in conjunction with anyother trademarks without UIC’s prior written consent, which shall not be unreasonablywithheld; provided, however, that usual and customary advertisingand merchandising shall not be deemed co-branding.  Notwithstanding the foregoing, UIC shall have no obligation toconsent to the use of any other mark in connection with the Vigoro Fertilizers.

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## 3.11         Approvals.  Home Depot shall comply with all applicablelaws and regulations and, at its own expense, obtain all appropriate federal,state or local government licenses, permits and other approvals that may berequired for performance of its rights and obligations hereunder, except forsuch licenses, permits and other approvals relating to the manufacture ofVigoro-Branded

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## Products by UIC, for which UIC shall have the soleright and responsibility pursuant to Section 6.07.

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## 3.12         SecurityInterest.  UIC will submit a requestto the administrative agent for the Credit Agreement to grant a first prioritysecurity interest in the Marks to Home Depot. If the granting of such lien to Home Depot is consented to by requisiteparties under the Credit Agreement (as set forth therein), UIC will usecommercially reasonable efforts to grant Home Depot a first priority securityinterest in the Marks, and UIC agrees to take such additional action andexecute such documents as reasonably necessary to permit Home Depot to perfectsuch security interest.  To the extentthat Home Depot fails to meet the conditions set forth in Article XI,and, in any event, on the Assignment Date, Home Depot hereby agrees to releaseany liens and security interests granted hereunder in the Marks.  Home Depot shall also execute and deliver toUIC upon such termination such Uniform Commercial Code termination statementsor amendments, certificates for terminating any liens and such otherdocumentation as shall be reasonably requested by UIC to effect the terminationand release of any liens and security interests in favor of Home Depotaffecting the Marks.

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# **ARTICLE IV. PROTECTION AND MAINTENANCE OF THE MARKS**

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## 4.01         Registration,Prosecution and Maintenance.

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### a.             UICRights.  UIC shall****havethe sole right and authority to make applications for registration of,prosecute and maintain registrations for, and to make applications for renewalof and renew applications and registrations for any Mark.

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### b.             Home Depot Rights.

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#### (i)            New Registrations.  If Home Depot desires to register a Mark ina new product category or territory, then UIC shall promptly obtain and reviewtrademark clearance searches in accordance with UIC’s trademark reviewpractices and report the results of such review to Home Depot.  Home Depot may, in its discretion, promptlythereafter notify UIC in writing to proceed with an application forregistration, in which case, UIC shall, within fifteen (15) business days afterHome Depot’s written notice, (i) for applications for registration within theUnited States, make application in its own name for registration of such Markin the product category specified in Home Depot’s notice, and (ii) forapplications for registration outside the United States, instruct foreigncounsel to make application in UIC’s name for registration of such Mark in theproduct category and territory specified in Home Depot’s notice.  UIC shall own any such Mark, and ScheduleB shall be amended to include any such Mark in the license granted to HomeDepot pursuant to Section 3.01(a). Thereafter, UIC shall keep Home Depot reasonably informed as to thestatus of the pending registration and any communication from the trademarkexaminer or any third parties related to the pending registration.

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#### (ii)           Failureof Assignment.  If Home Depot doesnot take assignment of the Marks pursuant to Article XI, and:

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##### (A)           UICis supplying a Vigoro-Branded Product to Home Depot (in any product category)as of the termination of Home Depot’s exclusivity and Minimum Annual Volume

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##### purchase obligations pursuant to Section 5.02(c),then UIC will continue to supply such Vigoro-Branded Product to Home Depot forthe term of the Supply Obligations; or

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##### (B)           HomeDepot is making commercially significant sales of a Vigoro-Branded Productoutside of the lawn and garden category that UIC does not supply to Home Depotas of the termination of Home Depot’s exclusivity and Minimum Annual Volumepurchase obligations pursuant to Section 5.02(c), then the licensegranted to Home Depot pursuant to Section 3.01(a) and the licensegranted to Home Depot’s Third Party Licensee pursuant to Section 3.01(b)shall continue (i) only with respect to such Vigoro-Branded Product, (ii) onlyin those territories in which Home Depot has made any actual commercial sales;and (iii) for the lesser of ten (10) years or until Home Depot is no longermaking substantial use of the Marks in commerce in connection with suchVigoro-Branded Product; or

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##### (C)           HomeDepot is making commercially significant sales of a Vigoro-Branded Productwithin the lawn and garden category that UIC does not supply to Home Depot asof the termination of Home Depot’s exclusivity and Minimum Annual Volumepurchase obligations pursuant to Section 5.02(c), then the licensegranted to Home Depot pursuant to Section 3.01(a) and the licensegranted to Home Depot’s Third Party Licensee pursuant to Section 3.01(b)shall continue (i) only with respect to such Vigoro-Branded Product, (ii) onlyin those territories in which Home Depot has made substantial sales; and (iii)for one (1) year only to enable Home Depot to transition those products toanother brand.

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## 4.02         Enforcement.

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### a.             Notice.  In the event that the legal department ofeither party learns of an actual or suspected infringement, misappropriation ormisuse by a third party of any Mark or of the other party’s ConfidentialInformation, or of an opposition or cancellation proceeding by a third partyattacking the validity or disputing the ownership of any Mark, it shallpromptly provide the other party with a written statement of the facts of suchinfringement, misappropriation, misuse or proceeding, to the extent known.

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### b.             UICObligations.  Except as set forth inSection 4.02(c), UIC shall have the sole right and authority, but not theobligation, to****take such steps as necessary to protect the Marks againstinfringement, misappropriation, tarnishment or misuse, including thecommencement of a litigation.

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### c.             HomeDepot Rights.  If UIC commenceslitigation to protect or enforce any Mark licensed, or contemplated by theparties to be licensed, to Home Depot pursuant to Section 3.01(a), HomeDepot shall, to the extent permitted by applicable law, and at its soleExpense, have the right to join and participate in any such litigation, and toselect counsel of its own choosing.  UICshall have sole control of any such litigation; provided, however,that UIC shall not enter into any settlement on behalf of Home Depot orotherwise compromise a claim that would result in (i) the admission of anyliability by Home Depot, (ii) any financial liability on the part of HomeDepot, or (iii) that would subject Home Depot to injunctive relief withoutfirst obtaining Home Depot’s prior written consent, which consent shall not beunreasonably withheld, delayed or conditioned. If, within ninety (90) days after written notice from Home

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### Depot of an infringement, misappropriation or misuseof any Mark licensed, or contemplated by the parties to be licensed, to HomeDepot, UIC has not taken steps to halt such infringement, misappropriation ormisuse, then Home Depot shall, to the extent permitted by applicable law, havethe right but not the obligation to bring suit to enjoin such infringement,misappropriation or misuse and to select counsel for, and control, theprosecution of any such suit.  If HomeDepot commences any such litigation, it (1) shall keep UIC regularly apprisedof the nature and status of such litigation, (2) shall permit UIC’s involvementin such litigation at UIC’s expense, and (3) shall not settle such litigationwithout UIC’s prior written consent, which shall not be unreasonably withheld, providedthat it shall not be unreasonable to refuse to consent to any settlement thatimposes any financial obligation upon UIC or that in UIC’s good faith opinionmay impair the value or reputation of any Mark or the reputation of UIC.  Except as provided herein, Home Depot shallhave no right or authority to bring suit in connection with the protection orenforcement of any Mark.  If Home Depotunreasonably withholds, delays or conditions its consent to any settlement forwhich such consent is required pursuant to this Section 4.02(c), thenUIC shall continue to control the prosecution of such claim and shall have theright to commence an action against Home Depot in accordance with the disputeresolution procedures outlined in Section 17.02 herein in the event an adverseresult (including any Losses) resulting from a judgment or other determinationin such proceeding is less favorable to UIC than the settlement as to whichHome Depot failed or refused to provide its consent.

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### d.             Cooperation.  Each party shall reasonably cooperate withthe other party in any enforcement action or proceeding taken by either of themin connection with the Marks in accordance with this Article IV.

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## 4.03         Expenses.

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### a.             ExistingRegistrations.  Unless otherwiseprovided herein, UIC shall bear all Expenses incurred in connection withmaintenance and enforcement of the registrations of the Marks in the productcategories and corresponding territories listed on Schedule B as of theEffective Date.

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### b.             NewApplications and Registrations.  HomeDepot shall reimburse UIC for all reasonable fees and expenses incurred by UICin connection with obtaining and reviewing trademark clearance searches for NewApplications and Registrations (as defined below).  UIC shall bear all other Expenses incurred in connection withprosecution of applications for, maintenance of registrations with respect to,and enforcement of any Marks pursued or obtained by it after the Effective Date(the “New Applications and Registrations”) only if, for each such NewApplication and Registration, (i) Home Depot, during the Trademark Term (y)purchases any substantial portion of its requirements for Products that arewithin the scope of such New Applications and Registrations from UIC, and (z)Home Depot purchases commercial quantities (e.g., other than for testmarketing purposes) of such Products from UIC, or (ii) UIC has entered into aroyalty-bearing Third Party License with respect to the Marks within the scopeof such New Application and Registration. If during the Trademark Term, neither of the foregoing conditions aremet, then Home Depot or its designee shall promptly reimburse (and shallthereafter pay) all Expenses incurred in connection with prosecution ofapplications for,

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### maintenance of registrations and enforcement of suchNew Applications and Registrations for such Marks.

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# **ARTICLE V. HOME DEPOT’S PURCHASE OF PRODUCTS**

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## 5.01         Termsof Purchase.  All purchase ofProducts by Home Depot from UIC are subject to the terms and conditions of thisAgreement and those terms and conditions of the Supplier Buying Agreement thatare not inconsistent with the terms and conditions of this Agreement, all ofwhich shall control over any inconsistent terms and conditions that may becontained in any purchase order, order acknowledgement, bill of lading orsimilar documentation exchanged between the parties.

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## 5.02         GeneralPurchase Obligations.

##  

### a.             Exclusivity.  Until expiration of these purchaseobligations as provided in Section 5.02(c), Home Depot shall purchasefrom UIC all of Home Depot’s and its Affiliates requirements for VigoroFertilizers for resale in the United States and its territories and possessionsthrough any channel of trade.

###  

### b.             MinimumAnnual Volume.

###  

#### (i)            Requirement.  Until expiration of these purchaseobligations as provided in Section 5.02(c), Home Depot shall purchase atleast the volume of Vigoro Fertilizer that is specified in Section 5.02(b)(i) of Schedule E fromUIC each calendar year (the “Minimum Annual Volume”).

####  

#### (ii)           Consequence.  If Home Depot fails to achieve the MinimumAnnual Volume for any calendar year, then notwithstanding Section 16.01(c),in addition to its other remedies, UIC may terminate the Trademark Rights uponsixty (60) days written notice to Home Depot.

####  

### c.             Termof Purchase Obligations.  HomeDepot’s exclusivity and Minimum Annual Volume purchase obligations set forthabove in this Section shall begin on the Effective Date and continue until theearlier to occur (plus any extension applicable as set forth in Section11.01(b)(ii) (Conditions to Assignment Obligation) or Section 17.09 (ForceMajeure)) of:

###  

#### (i)            December31, 2008, if Home Depot achieves the Minimum Aggregate Volume requirement setforth in Section 5.03(a)(i) by December 31, 2008, but does not agree toextend its exclusivity and Minimum Annual Volume purchase obligations for anadditional three years from December 31, 2008;

####  

#### (ii)           December31, 2009, if Home Depot fails to achieve the Minimum Aggregate Volumerequirement by June 30, 2009, and does not agree to extend its exclusivity andMinimum Annual Volume purchase obligations for an additional three years fromDecember 31, 2009;

####  

#### 12

#### 

####  

#### (iii)          December31, 2011, if Home Depot achieves the Minimum Aggregate Volume by December 31,2008, and agrees to extend its exclusivity and Minimum Annual Volume purchaseobligations for an additional three years from December 31, 2008, or if HomeDepot agrees to extend its exclusivity and Minimum Annual Volume purchaseobligations for any other reason; or

####  

#### (iv)          December31, 2012, if Home Depot achieves the Minimum Aggregate Volume by June 30, 2009and agrees to extend its exclusivity and Minimum Annual Volume purchaseobligations for an additional three years from December 31, 2009, or if HomeDepot agrees to extend its exclusivity and Minimum Annual Volume purchaseobligations for any other reason.

####  

## 5.03         AssignmentPurchase Requirements.  Thefollowing purchase requirements are conditions precedent to UIC’s obligation toassign the Marks to Home Depot pursuant to Article XI.

##  

### a.             VigoroFertilizer.

###  

#### (i)            MinimumAggregate Volume.  During the periodof January 1, 2004 through December 31, 2008, Home Depot shall have purchasedfrom UIC the minimum aggregate total  ofVigoro Fertilizer specified in Section 5.03(a)(i) of Schedule E (the “MinimumAggregate Volume”).  If Home Depotfails to purchase the Minimum Aggregate Volume of Vigoro Fertilizer from UIC byDecember 31, 2008, it shall have until June 30, 2009 to achieve such amount.

####  

#### (ii)           Consequences.  If Home Depot fails to achieve the MinimumAggregate Volume requirement by December 31, 2008, then its exclusivity andMinimum Annual Volume purchase obligations set forth in Section 5.02shall automatically be extended through December 31, 2009.  If Home Depot fails to achieve the MinimumAggregate Volume by June 30, 2009, then UIC shall have no obligation to assignthe Marks to Home Depot as contemplated pursuant to Article XI.

####  

### b.             Non-VigoroBranded Products.

###  

#### (i)            FinalYear Volume.  During the twelve (12)month period immediately prior to the Assignment Date, Home Depot shall havepurchased from UIC a minimum total of Non-Vigoro Branded Products of at leastthe volume specified in Section 5.03(b)(i) of Schedule E (the “FinalYear Volume”).  Provided that HomeDepot’s ability to achieve the Final Year Volume has been materially impairedby any of the following occurrences, the Final Year Volume shall be reduced bya reasonable amount mutually agreed to by the parties in good faith to accountfor:  (A) returns of defective Productsnot replaced by UIC;  (B) any recall ofProduct mandated by the Consumer Product Safety Commission or the EnvironmentalProtection Agency, or initiated by UIC; (C) the sale by UIC of any Product linethat includes Non-Vigoro Branded Products that are, at the time of sale, beingsold in Home Depot stores; or (D) UIC’s inability to manufacture or deliverNon-Vigoro Branded Products to Home Depot during such twelve (12) month period.

####  

#### 13

#### 

####  

#### (ii)           Consequence.  If Home Depot fails to achieve the FinalYear Volume, then UIC shall have no obligation to assign the Marks to HomeDepot as contemplated pursuant to Article XI herein.

####  

### c.             NoBreach.  The assignment purchaserequirements set forth in subsections (a) and (b) above are conditionsprecedent to UIC’s obligation to assign the Marks as contemplated pursuant to ArticleXI herein, and are not guarantees, and Home Depot’s failure to achieve any suchpurchase requirement will not be deemed a breach of this Agreement, andfurther, in no event will Home Depot be obligated to UIC for money orinjunctive relief for its failure to achieve such purchase requirements.

###  

## 5.04         ForecastedProducts.  Home Depot shall usecommercially reasonable efforts (taking into account actual consumer demand) topurchase from UIC the volume of finished goods specified in mutually developedforecasts of Product purchases, but in no event shall Home Depot be obligatedto purchase from UIC less than ninety (90) days inventory of finished goods ofthe affected Products set forth in such forecasts if:  (i) Home Depot discontinues carrying a Product; (ii) the SupplyObligations are terminated by Home Depot for any reason other than UIC’smaterial breach of the Supply Obligations; or (iii) after the Assignment Date,UIC is no longer Home Depot’s vendor of record for any Product.  Home Depot will purchase such finished goodsat Home Depot’s then current invoice price.

##  

# **ARTICLE VI.  UIC’sSUPPLY OBLIGATIONS**

# ** **

## 6.01         Obligationto Supply.  Each year at HomeDepot’s annual marketing meeting, the parties shall agree on a good faith,reasonable total annual forecast for the Products for the next year based uponhistorical volumes, weather forecasts and other relevant predictors of consumerdemand.  On or prior to November 30thof each year, or as soon thereafter as feasible, the parties shall agree upon agood faith, reasonable forecast for each Product on a SKU-by-SKU andmonth-by-month basis for the next year, based upon historical volumes, weatherforecasts and other relevant predictors of consumer demand.  UIC acknowledges that such forecasts do notrepresent more than a good faith commitment (taking into account actualconsumer demand) by Home Depot to purchase such amounts.  UIC shall use commercially reasonableefforts to manufacture and supply the agreed upon forecasted requirements forVigoro Fertilizers.

##  

## 6.02         Subcontractors.  Subject to Home Depot’s written approval,which shall not be unreasonably withheld, conditioned or delayed, UIC shallhave the right to use subcontractors to manufacture and supply Products forHome Depot, provided that no such approval is required for subcontractorscurrently or historically used by UIC with respect to the Products or asprovided in Section 17.09.  Inthe event that Home Depot’s requirements for Vigoro Fertilizer exceeds UIC’scapacity, then UIC shall use reasonable efforts to locate and securesubcontractors reasonably acceptable to UIC to supply Home Depot’s requirementsin a commercially reasonable time and at a level of quality substantially equalto that of UIC-manufactured Products, subject to Home Depot’s written approval,which shall not be unreasonably withheld, conditioned or delayed.

##  

## 6.03         Exclusivity.  From the Effective Date and for so long asHome Depot’s exclusivity obligations set forth in Section 5.02(a)continue pursuant to Section 5.02(c), UIC agrees not to

##  

## 14

## 

##  

## manufacture Vigoro Fertilizers for third parties tosell in the United States and its territories and possessions; provided,however, that if Home Depot fails to comply with such exclusivityobligations, then in addition to any of its other rights and remedies, UICshall be free to manufacture Vigoro Fertilizer for third parties to sell in theUnited States and its territories and possessions for the duration of suchnon-compliance and for such additional period as is necessary for UIC to: (i)fulfill any outstanding manufacture or supply commitments to third parties; and(ii) exhaust inventories of finished goods and components in connectiontherewith.

##  

## 6.04         OrderProcedure.  Home Depot shall placeorders for Products through its Electronic Data Interchange connection with UIC.  UIC shall use good faith efforts to fillsuch orders within the annual forecasted volumes determined by the partiespursuant to Section 6.01provided, however, that UIC’sfailure to fulfill any order shall not be deemed a material breach of thisAgreement.  All Products shall bedelivered FOB the respective destination Home Depot store, transit facility ordistribution center.  Title to and allincidents of ownership of Products shall transfer to the Home Depot at the timeof delivery to the respective destination Home Depot location.  Additional terms and conditions related toUIC’s supply obligations under this Agreement are set forth in Section 6.04of Schedule E.

##  

## 6.05         QualityStandards.  The Products at the timeof delivery to any Home Depot location shall meet quality standards agreed toby the parties from time to time.  UICagrees to comply with those environmental, health and safety standardsimplemented by Home Depot from time to time generally for suppliers ofchemicals, fertilizers, pesticides or other lawn and garden products.

##  

## 6.06         Controlof Products.  UIC shall have solecontrol over its product formulations and methods of manufacture; provided,however, that UIC shall provide Home Depot with reasonable priornotification of any anticipated change in product formulation for any existingProduct that would reasonably be expected to affect the efficacy of suchProduct.  In the event that Home Depotobjects in writing to such change in product formulation within ten (10)Business Days, then UIC and Home Depot shall meet to discuss Home Depot’sconcerns and, if Home Depot does not withdraw its objection, then UIC shall notimplement any such change in product formulation for Products supplied to HomeDepot.  Nothing herein shall prevent UICor any Person authorized by UIC from using any of UIC’s product formulations tomanufacture, market or sell any products in any channel of trade.  Further, nothing herein shall require UIC toimplement any Home Depot suggestion related to new Products or Productimprovements, and UIC’s failure to implement any such suggestions shall notconstitute a breach of this Agreement.

##  

## 6.07         Approvals.  Except as may be required pursuant to Section3.11, UIC shall have the sole right to apply for, prosecute and maintain licenses,permits and other approvals for, and registrations of, the Products withfederal, state and local governmental authorities and administrative agenciesincluding, without limitation, the Environmental Protection Agency.  Upon UIC’s reasonable request and at UIC’sexpense, Home Depot shall supply UIC with information as required to supportsuch approvals and registrations.

##  

## 6.08         ExclusiveRemedies.  The remedies set forth inthis Article VI are in lieu of any other remedies that may be availableto Home Depot for quality or quantity related problems with

##  

## 15

## 

##  

## shipments of Products and constitute Home Depot’s soleand exclusive remedy and UIC’s sole liability to Home Depot with respect tonon-conforming Products.

##  

## 6.09         SupplierBuying Agreement.  All applicableterms and conditions of the Supplier Buying Agreement between the parties thatare not inconsistent with the terms and conditions of this Agreement are hereinincorporated by reference.   To the extentof any conflict between the Supplier Buying Agreement and the other terms andconditions of this Agreement, the terms and conditions set forth herein shallcontrol.

##  

# **ARTICLE VII. CONSUMER ISSUES**

# ** **

## 7.01         CustomerComplaints.  Home Depot shall usecommercially reasonable efforts to notify UIC of any end-user consumercomplaints with respect to the Products that it receives.  With respect to Vigoro-Branded Productsmanufactured for Home Depot by Third Party Licensees, Home Depot and/or suchThird Party Licensee shall take all commercially reasonable steps to resolvesuch consumer complaints to the consumer’s satisfaction and to protect thereputation of and goodwill associated with the Marks and shall reasonablyassist UIC in any investigation related to such complaint.

##  

# **ARTICLE VIII. SALES AND MARKETING OBLIGATIONS**

# ** **

## 8.01         ByUIC.  In connection with the annualforecast for Product volumes to be provided by Home Depot pursuant to Section6.01, the parties shall meet and in good faith agree upon UIC’s forecastedannual revenues (less forecasted returns) for the corresponding year.  During each month of each contract year,Home Depot shall be permitted to deduct from its monthly invoice paymentrequirements the percentage of such forecasted annual revenue that is specifiedin Section 8.01 of Schedule E.

##  

## 8.02         ByHome Depot.  Home Depot shalldisplay and promote the Vigoro brand and stack and display Vigoro Fertilizer inthose Home Depot stores that are to distribute Vigoro Fertilizer pursuant toHome Depot’s 2004 fertilizer Planogram and in those Home Depot stores that aresubsequently opened in the same territories which carry products of the namenature as the Products.  Home Depotshall use commercially reasonable efforts to advertise, market and promotethe Vigoro brand in the United States and its territories and possessions.

 

# **ARTICLE IX. REPORTS AND RECORDS**

# ** **

## 9.01         Reports.

##  

### a.             ByHome Depot.  Within thirty (30) daysafter the end of each calendar quarter, Home Depot shall provide to UIC (i) awritten report of the number and dollar amounts of all Vigoro-Branded Products,broken out by product, purchased by Home Depot from a Third Party Licenseeduring such quarter, and (ii) a copy of Home Depot’s “Return to Vendor Report”(or any substitute or successor report containing substantially the sameinformation) for each Third Party Licensee. In addition, Home Depot shall reasonably report any issues or problemsof which Home Depot is aware in connection with the quality of a Vigoro-BrandedProduct provided by a Third Party Licensee.

###  

### 16

### 

###  

### b.             ByThird Party Licensees.  Home Depotshall cause the Third Party Licensees to make reports and accompanying royaltypayments to UIC not less frequently than quarterly.  Such Third Party Licensees shall be subject to reasonable auditand information reporting requirements in addition to those required herein.

###  

### c.             AnnualReport.  On or before February 28th,of the following year, or as soon thereafter as is reasonably practicable, theparties shall meet and agree on, and document: (i) the amounts of Products purchased by Home Depot during the precedingyear that are to be applied toward Home Depot’s Minimum Annual Volume purchaseobligation set forth in Section 5.02(b) and toward its assignmentpurchase requirements set forth in Section 5.03 (if applicable for thatyear); and (ii) the cumulative amounts of Products purchased by Home Depot asof December 31st of the preceding year that are to be applied toward HomeDepot’s assignment purchase requirements set forth in Section 5.03 (ifapplicable for that year).

###  

## 9.02         Booksand Records.  Each party shall keepcomplete and accurate records and books of account consistent with thisAgreement and in accordance with generally accepted accounting principles,consistently applied, sufficient to document such party’s rights andobligations under this Agreement (the “Records”).  Such Records shall be retained for a minimumof five years following the end of the calendar year or other period to whichthey relate.

##  

## 9.03         Confidentiality.  Any information contained in the Reports or the Records shall betreated as Confidential Information by the receiving party and its agents asprovided in Article XIV.

##  

# **ARTICLE X. PRICING AND PAYMENT TERMS**

# ** **

## 10.01       PurchasePrice.  Home Depot shall pay UIC forProducts supplied hereunder as follows:

##  

### a.             Duringcalendar year 2004, the Purchase Price of any Product shall be the PurchasePrice set forth in Schedule C.

###  

### b.             Aftercalendar year 2004, all Purchase Prices shall be determined by mutual agreementof the parties, in good faith taking into consideration increases or decreasesin the costs of raw materials, shipping and other costs incurred by UIC inconnection with manufacturing and supplying particular Products, and the costand/or prices of products sold by competitors of Home Depot and UIC that aresubstantially similar in quality and efficacy as such Product.

###  

## 10.02       PaymentTerms.  Payment terms are set forthin Section 10.02 of Schedule E.

##  

## 10.03       Calculationof Royalties.  Royalties payablepursuant to Third Party Licenses granted under Section 3.01(b)(ii) shallbe determined by mutual agreement of the parties.

##  

## 17

## 

##  

# **ARTICLE XI. ASSIGNMENT AND LICENSE-BACK OF VIGORO MARKS**

# ** **

## 11.01       AssignmentObligation.

##  

### a.             Obligation.  The parties agree that, upon the occurrenceof the conditions set forth in Section 11.01(b), UIC shall assign toHome Depot all its right, title and interest in and to the Marks, together withall the goodwill associated therewith.

###  

### b.             Conditionsto Assignment Obligation.

###  

#### (i)            HomeDepot has achieved the assignment purchase requirements set forth in Section5.03;

####  

#### (ii)           UIChas received undisputed and final payment in full for all purchases appliedtoward the foregoing assignment purchase requirements, to the extent suchamounts are not the subject of a good faith dispute; provided, however,that if Home Depot****disputes any amount and the non-payment ofsuch amount would lower the amount of payments received by UIC under thisAgreement below the amounts of the assignment purchase requirements set forthin Section 5.03, then Home Depot’s exclusivity and Minimum Annual Volumepurchase obligations set forth in Section 5.02 shall be extended, andthe assignment contemplated by this Article XI shall not occur, untilUIC has received payments in the full amount of each of the assignment purchaserequirements; and

####  

#### (iii)          HomeDepot has agreed in writing to extend its exclusivity and Minimum Annual Volumepurchase obligations set forth in Section 5.02 until December 31, 2011or, if Home Depot has failed to meet the Minimum Aggregate Volume by December31, 2008, until December 31, 2012, plus any extension to either of theforegoing dates applicable as set forth in Section 11.01(b)(ii) (Conditionsto Assignment Obligation) or Section 17.09 (Force Majeure).

####  

### c.             AssignmentDate.  Provided that each of theconditions set forth above in Section 11.01(b) have been achieved, thenUIC shall assign the Marks to Home Depot, such assignment to be executed andeffective not earlier than May 1, 2009, but otherwise within thirty (30) daysafter the date upon which Home Depot (i) achieves such conditions toassignment, and (ii) provides written certification to UIC that it has achievedsuch conditions (the “Assignment Date”).

###  

### d.             Formof Assignment.  Any assignmentrequired by this Section 11.01 shall be accomplished through executionof the form attached hereto as Exhibit A.  The parties shall use reasonable efforts to structure the transferof the Marks so as to avoid the imposition of any taxes in connection with suchtransfer.  Notwithstanding theforegoing, all liability for use, sales, gross receipt, transfer, stamp,registration or similar taxes which nevertheless arise out of such transfershall be paid by Home Depot.

###  

### e.             FurtherAssurances.  UIC shall execute anddeliver such documents and take such further actions as may be necessary tocarry out any assignment required by this Section 11.01.

###  

## 11.02       Effectof Assignment.  Upon assignment ofthe Marks from UIC to Home Depot, all Trademark Rights shall immediatelyterminate, and UIC shall have no further obligations or liabilities which arisebefore or after the Assignment Date with respect to such Marks; provided,

##  

## 18

## 

##  

## however, that if with respect to a Mark, prior to theAssignment Date UIC is responsible for claims associated with any Mark pursuantto Section 13.01(c), then (z) UIC shall continue to be responsible forany claims in connection with such Mark that arose prior to the AssignmentDate.

##  

# **ARTICLE XII. WARRANTIES AND REPRESENTATIONS**

# ** **

## 12.01       Authority.  Except as indicated in Article II,each party hereby represents and warrants to the other that:  (i) it has full corporate power andauthority to enter into this Agreement and to carry out its obligationshereunder; and (ii) this Agreement has been duly authorized by all necessaryaction on its part.

##  

## 12.02       HomeDepot Warranties.

##  

### a.             Approvals.  Home Depot hereby represents and warrantsthat, prior to the Assignment Date, Home Depot shall comply, and shall causeany Third Party Licensees****to comply, with all applicable laws andregulations and obtain all appropriate federal, state or local governmentlicenses, permits or other approvals necessary for performance of its rightsand obligations hereunder.

###  

## 12.03       Disclaimer.  **EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NOPARTY MAKES ANY WARRANTIES AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHERWARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.**

##  

# **ARTICLE XIII. INDEMNIFICATION**

# ** **

## 13.01       ByUIC.  Except as otherwise providedin this Agreement, UIC hereby agrees to defend, hold harmless and indemnifyHome Depot and its Affiliates and all of their past, present and future directors, officers, employees, agents,successors and assigns from and against any and all Losses:

##  

### a.             arisingout of breach by UIC of any of its representations or warranties under thisAgreement;

###  

### b.             arisingout of UIC’s uncured failure to perform any covenant or agreement hereunder orfulfill any other obligation in respect hereof, or

###  

### c.             arisingout of any claim that the use by Home Depot or its Affiliates (but excludingany use by Third Party Licensees) of any Mark, or of any other intellectualproperty supplied by or on behalf of UIC in connection with the Productsinfringes, misappropriates or otherwise conflicts with the intellectualproperty or other rights of any Person, provided that such use of anyMark is solely in connection with and limited to Products supplied by UIC (andnot any products or services supplied by a third party)

###  

### 19

### 

###  

## 13.02       ByHome Depot.  Except as otherwiseprovided in this Agreement, Home Depot hereby agrees to defend, hold harmlessand indemnify UIC and its Affiliates and its and their past, present and futuredirectors, officers, employees, agents, successors and assigns, during the termof this Agreement and thereafter, from and against any and all Losses:

##  

### a.             arisingout of breach by Home Depot of any of Home Depot’s representations orwarranties under this Agreement;

###  

### b.             arisingout of any claim that the use (other than in connection with Products suppliedby UIC for which UIC is responsible pursuant to Section 13.01(c)) byHome Depot or its Affiliates or any Third Party Licensee of any Mark ortrademark, or of any product similar to the Products, infringes,misappropriates or otherwise conflicts with the intellectual property rights ofany Person; or

###  

### c.             incurredafter the Assignment Date that arise out of claims related to the Marks, to theextent such claims were not the results of an act or omission of UIC, itsaffiliates, agents or representatives.

###  

## 13.03       Notificationand Procedure.  Upon receipt ofnotice, whether formal or informal, direct or indirect, of any claim for whichindemnification may be available under this Article XIII, the partyreceiving notice shall promptly notify the other party, and the management ofboth parties shall meet to discuss how to handle the matter.  Notwithstanding the foregoing, theindemnifying party shall have the right to control the defense of any claim andto settle such claim in its sole discretion, except that any such settlementshall not require the indemnified party to take or refrain from taking anyaction other than the payment of money damages for which it is fullyindemnified without its prior consent, which such consent shall not beunreasonably withheld, delayed or conditioned. The indemnified party shall have the right and obligation to reasonablycooperate with the indemnifying party, at the indemnifying party’s expense, inthe defense, settlement or other resolution of any claim.  If the indemnifying party fails to timelyand adequately conduct the defense of any claim, then the other party shall beentitled to take over control of such defense, including without limitation theright to select new counsel. If the indemnified party unreasonably withholds,delays or conditions its consent to any settlement for which such consent isrequired pursuant to this Section 13.03, then the indemnifying partyshall continue to control the defense of such claim and shall have the right tocommence an action against the indemnified party in accordance with the disputeresolution procedures outlined in Section 17.02 herein in the event adverseresult (including any Losses) resulting from a judgment or other determinationin such proceeding is less favorable to indemnifying party than the settlementas to which indemnified party failed or refused to provide its consent.

##  

## 20

## 

##  

## 13.04       Limitationsof Liability.

##  

### a.             SpecialDamages.  **NEITHER PARTY WILL BE LIABLE TO THEOTHER FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES,EVEN IF SUCH DAMAGES WERE FORESEEABLE.**.

###  

### b.             ExclusiveRemedies.  There are no warranties,representations or other agreements between the parties in connection with thesubject matter hereof except as specifically set forth herein and the SupplierBuying Agreement.  Except as otherwiseprovided in this Agreement, the indemnification rights provided hereunder shallbe the exclusive remedy of the parties with respect to any third-party claimsarising out of or related to this Agreement.

###  

# **ARTICLE XIV. CONFIDENTIALITY**

# ** **

## 14.01       ConfidentialInformation.  During the term ofthis Agreement, each party or its subsidiaries or Affiliates may receive, orotherwise acquire from the other party, non-public technology, know-how, orinformation (including without limitation, any technical, business, financial,product, marketing, customer, supplier or other information) related to theother party or its subsidiaries or affiliates (“Confidential Information”).

##  

## 14.02       Non-Disclosureof Confidential Information.  Eachparty shall (i) use the Confidential Information of the other party solely forpurposes of this Agreement and (ii) shall disclose Confidential Information ofthe other party only to its officers, employees, and third party consultantswhose duties reasonably require familiarity with such information.  Each party shall obtain from any such thirdparty consultant a legally enforceable written agreement not to disclose theother party’s Confidential Information, or knowledge or know-how derivedtherefrom, to any other Person or use such Confidential Information for anypurposes other than those contemplated by this Agreement.  Each party shall take all commerciallyreasonable actions to protect the other party’s Confidential Information fromdisclosure or misappropriation (but in no event shall such party use less thana reasonable degree of care) and shall be responsible for compliance with therestrictions in this Agreement by its Affiliates and the officers, employeesand third party consultants of itself and its Affiliates.  The confidentiality obligations of theparties shall continue indefinitely as to trade secrets, product formulationsand manufacturing methods and processes, or for the longest period of timepermitted under applicable law, and for a period of five (5) years****forall other Confidential Information, and each of the foregoing obligations shallsurvive expiration or termination of this Agreement for any reason.

##  

## 14.03       Non-Disclosureof Agreement.  The existence of thisAgreement, each of its terms and conditions, and all information required to beprovided from one party to another under the terms and conditions of thisAgreement, including without limitation, the contents of Records and Reports,shall be deemed Confidential Information that is subject to the non-disclosureprovisions of Section 14.02, except that this Agreement may be disclosedas required by applicable law (including the disclosure requirements of thesecurities laws) and to actual or

##  

## 21

## 

##  

## potential investors, provided that suchinvestors agree to be bound by confidentiality restrictions substantiallyequivalent to those contained in this Agreement.

##  

## 14.04       Exceptions.  The confidentiality obligations of thereceiving party under this Article XIV shall not apply to anyinformation that:

##  

### a.             is,or becomes, publicly known through no wrongful act of the receiving party orits officers, employees or third party consultants;

###  

### b.             isreceived by the receiving party without restriction from a third party withoutbreach of any obligation of nondisclosure;

###  

### c.             isrequired to be publicly disclosed pursuant to a governmental or judicialrequirement or other requirement of law, but only after notifying the partyowning such information of such requirement, including the content of suchdisclosure, the reasons that such disclosure is required by law and the timeand place that such disclosure is to be made and, if requested by the owning party,using reasonable efforts to minimize such disclosure and to obtain confidentialtreatment for all or relevant portions of the Confidential Information to bedisclosed;

###  

### d.             thereceiving party can show was already in its possession at the time of disclosurehereunder and was not previously obtained from the disclosing party under acontinuing obligation of confidentiality; or

###  

### e.             isdeveloped by the recipient party without the use of Confidential Informationobtained from the disclosing party.

###  

## 14.05       Returnof Confidential Information.  Uponrequest of either party, and in any case upon expiration or termination of thisAgreement, each party shall promptly return to the other party all copies ofthe other party’s Confidential Information in its possession or control, exceptthat each party may retain its copies of this Agreement and copies of anyReports received from or provided to the other party.

##  

# **ARTICLE XV. NOTICES**

# ** **

## 15.01       Notices.All notices or other communications required or permitted under this Agreementshall be in writing and shall be delivered personally, transmitted byfacsimile, or sent by registered, certified or express mail, postage prepaid orsent by a reputable air courier for overnight delivery; provided, however, thatnotification by facsimile shall be effective on the date of confirmedtransmission of such facsimile only if a copy of such notice is delivered byregistered, certified or express mail, postage prepaid or sent by a reputableair courier for overnight delivery.  Anysuch notice or other communication, if mailed by prepaid first class mail atany time other than during a general discontinuance of postal service due tostrike, lockout or otherwise, shall be deemed to have been received uponreceipt, or if sent by overnight courier on the air courier’s scheduled day ofdelivery, or if delivered by hand shall be deemed to

##  

## 22

## 

##  

## have been received at the time it is delivered to theapplicable address noted below either to the individual designated below or toan individual at such address having apparent authority to accept deliveries onbehalf of the addressee.  Notice ofchange of address shall also be governed by this section.  In the event of a general discontinuance ofpostal service due to strike, lockout or otherwise, notices or othercommunications shall be delivered by hand and shall be deemed to have beenreceived in accordance with this section. Notice and other communications shall be addressed as follows:

##  

If to **Home Depot**:

 

Home Depot Services LLC

Attn.: Merchandising VicePresident, Dept. 28

2455 Paces Ferry Road

Atlanta, Georgia  30339

 

With required copies (which shall not constitutenotice to Home Depot) to:

Home Depot U.S.A., Inc.

Attn.: Sr. Director,Legal - Operations

2455 Paces Ferry Road

Atlanta, Georgia  30339

 

If to **UIC**:  

United IndustriesCorporation

Attn. General Counsel

2150 Schuetz Road

St. Louis, MO 63146

 

With required copies(which shall not constitute notice to UIC) to:

 

Kirkland & Ellis LLP

Attn. Richard W. Porter,P.C.

200 E. Randolph Drive

Chicago, IL 60601

 

For the purposes hereof,“Business Day” means any day, other than Saturday, Sunday or anystatutory holiday.

 

23

----

 

# **ARTICLE XVI. TERMINATION**

# ** **

## 16.01       Termination.

##  

### a.             WithCause.

###  

#### (i)            TrademarkRights.  Subject to Home Depot’sright to cure under Section 16.01(c), UIC shall have the right toterminate the Trademark Rights:  (i)upon Home Depot’s material breach of any of its obligations or duties under theTrademark Rights; or (ii) upon Home Depot’s bankruptcy or insolvency.

####  

#### (ii)           SupplyObligations. Subject to the parties’ right to cure under Section16.01(c), either party shall have the right to terminate the SupplyObligations upon the other party’s material breach of its obligations or dutiesunder the Supply Obligations.  Withoutlimiting the generality of the foregoing, any breach by Home Depot of itsobligations under Section 5.02 or failure to pay pursuant to Section10.02 shall be considered material breaches for which UIC may terminate.

####  

### b.             WithoutCause.

###  

#### (i)            TrademarkRights.  UIC may terminate theTrademark Rights upon either party’s termination of the SupplyObligations.  Home Depot may terminatethe Trademark Rights upon thirty (30) days written notice to UIC.

####  

#### (ii)           SupplyObligations.  Home Depot mayterminate the Supply Obligations at any time after expiration of itsexclusivity and Minimum Annual Volume purchase obligations, as provided in Section5.02(c), upon twelve (12) months prior written notice to UIC.  Upon twelve (12) months prior written noticeto Home Depot, UIC may terminate the Supply Obligations at any time after thelater to occur of:  (i) the AssignmentDate; or (ii) June 30, 2009.

####  

### c.             Rightto Cure.  Except with respect toHome Depot’s obligations pursuant to Sections 5.02 and 5.03,****ifeither party fails to perform any material obligation under this Agreement, thenon-breaching party shall provide written notice thereof, specifying in detailthe nature of the breach and indicating its intent to terminate if such breachis not cured.  The breaching party shallhave sixty (60) days from receipt of such notice to remedy such breach; provided,however, that if the breaching party has within such 60-day period begunand diligently pursued a course of action reasonably likely to cure such breachas approved in writing by the non-breaching party, which approval shall not beunreasonably withheld, conditioned or delayed, then the breaching party shallhave until one hundred and twenty (120) days after receipt of such notice tocure such material breach.  Upon theexpiration of the cure period (including any extension) without cure, thenon-breaching party may elect to terminate the Trademark Rights and/or theSupply Obligations upon written notice to the breaching party.

###  

### 24

### 

###  

## 16.02       Effectsof Termination.

##  

### a.             Useof Marks.  Upon termination of theTrademark Rights, the trademark license to Home Depot and all Third PartyLicenses granted pursuant to Section 3.01 shall immediately terminate,and Home Depot agrees to discontinue all use of the Marks within one (1) yearof the date of termination and to cooperate with UIC or its appointed agentto:  (i) ensure that all Third PartyLicensees immediately cease using the Marks; and (ii) apply to the appropriateauthorities to cancel recording of this Agreement from all government recordsand to destroy all printed materials bearing any of the Marks.  Notwithstanding the foregoing, Home Depotshall have the right, for a period of one (1) year, to advertise, market andsell any of its inventory of Vigoro-Branded Products existing as of theexpiration or termination date and to continue to use the Marks as it hadpreviously to advertise and market such inventory.

###  

### b.             AmountsDue.  Expiration or termination ofany portion of this Agreement shall not relieve either party of its obligationto pay any amounts due or owing.

###  

# **ARTICLE XVII. MISCELLANEOUS**

# ** **

## 17.01       GoverningLaw.  This Agreement shall be governedby and construed in accordance with, and the legal relations between theparties hereto shall be determined in accordance with, the laws of the State ofGeorgia, United States, without regard to any Georgia laws relating to orgoverning conflict of laws issues.

##  

## 17.02       DisputeResolution.  Except as otherwisespecified in this Agreement, in the event of any dispute, controversy, or claimarising out of or relating to this Agreement or the formation, performance orbreach hereunder (a “Dispute”), upon the written notice of either party,Home Depot and UIC shall attempt in good faith and with a spirit of mutualcooperation to negotiate an amicable resolution of the Dispute for a 30-dayperiod or a mutually-agreed extension of time (the “Negotiating Period”).  Any Dispute not resolved during theNegotiating Period shall be submitted to a single neutral arbitrator chosen bymutual agreement of the parties, to resolve in accordance with the Rules of theAmerican Arbitration Association, and judgment upon the award rendered by thearbitrator may be entered in any court having jurisdiction thereof.  The parties shall equally share the cost ofthe chosen arbitrator.  The party firstinvoking arbitration shall do so by sending notice in accordance with thisAgreement.  The arbitrator shall makeevery effort to complete the arbitration within ninety (90) days from theinitial demand for arbitration. The award rendered by the arbitrator shall bebinding upon the parties, but may be appealed to any court having jurisdictionthereof by either of the parties.** **Theprovisions hereof shall be a complete defense to any suit, action or proceedinginstituted in any state, federal or local court, or administrative tribunal,other than as expressly permitted herein. Any dispute resolution which takes place pursuant to this Agreementshall be confidential and shall be treated as a compromise and settlementnegotiation for purposes of the Federal Rules of Evidence and State rules ofevidence.

##  

## 17.03       Injunction.  Nothing in this Agreement shall preventeither party from resorting to judicial proceedings for the limited purpose ofseeking a preliminary injunction or to avoid the

##  

## 25

## 

##  

## barring of the claim under the applicable statute of limitations.  In addition, resort by either party tonegotiation or arbitration pursuant to this Agreement shall not be construedunder the doctrines of laches, waiver or estoppel to affect adversely therights of either party to pursue any such judicial relief; provided, however,that irrespective of the filing of any such request for judicial relief theparties shall continue to participate in the dispute resolution proceedingsrequired by Section 17.02.

##  

## 17.04       Statusof Parties.  Nothing herein shallcreate, be deemed to create or be construed as creating any partnership,employer-employee, joint venture, franchise or agency relationship between theparties hereto or shall be deemed to render any party to this Agreement liablefor any of the debts or obligations of another.  Neither party to this Agreement shall, by virtue of thisAgreement, in any way be considered an agent or representative of the otherparty in any dealings with any third party, and no party hereto nor any of itsemployees or agents shall have the power or authority to bind or obligate theother party by virtue of this Agreement.

##  

## 17.05       Entiretyof Agreement.  This Agreement andall Schedules and Exhibits attached hereto (which are deemed incorporated intothis Agreement), and the Supplier Buying Agreement referenced in Section6.09 (subject to the limitations of Section 6.09), reflect theentire agreement of the parties with respect to the subject matter hereof andall prior oral or written communications, agreements and undertakings aremerged herein.

##  

## 17.06       Amendment.  No supplement, modification or waiver ofthis Agreement shall be implied from any conduct of the parties or trade customor usage and to be binding must be executed in writing by UIC and Home Depot.

##  

## 17.07       Assignment.  This Agreement may not be assigned orotherwise transferred by either party without the prior written consent of theother; provided, however, that either party may transfer this Agreement in theevent of and in connection with a Change of Control of either party.  Notwithstanding the foregoing, UIC may granta security interest in this Agreement and its rights hereunder to its primarylenders (including any future lenders) and such lender may exercise creditorsremedies or foreclose and shall be entitled to exercise the rights of UIChereunder.  Unless assigned ortransferred in violation hereof, this Agreement shall be binding upon thesuccessors and permitted assigns of the parties hereto.

##  

## 17.08       Waiversand Consents.  No modification,amendment or waiver of or with respect to any provision of this Agreement, norconsent to any departure from strict compliance with any of the terms orconditions hereof, shall be effective unless it shall be in writing and signedby the party waiving such compliance. Any such waiver or consent shall be effective only in the specificinstance and for the purpose for which given.

##  

## 17.09       ForceMajeure.  Neither party shall be inbreach of its obligations hereunder to the extent that performance isprevented, delayed or (in the sole but reasonable judgment of the partyconcerned) made materially more expensive as a result of the followingcontingencies:  (a) any cause beyond thereasonable control of the party concerned, including without limitation, actsof God, riots, civil commotion, wars, threats of war, acts of terror or threatsthereof, hostilities between nations, governmental laws, orders or regulation,embargoes, actions by government or agency thereof, storms, floods, fires,accidents, labor disputes or strikes, sabotage, explosions, or

##  

## 26

## 

##  

## other similar or different contingencies; or (b) anycommercial unavailability of raw material for the production of the Products, providedthat such commercial unavailability affects the industry generally and is notspecific to UIC.  In the event eitherparty is unable to perform its respective obligations, covenants and promisesunder this Agreement, in whole or in part, due to circumstances of forcemajeure, such party shall give the other party prompt notice of suchcircumstances and shall take reasonable steps to remove or alleviate suchimpediments to its performance as soon as possible.  Performance under the terms of this Agreement shall be suspendedfor such time as the force majeure persists and shall resume as soon aspracticable after the force majeure has abated.  If the performance of any obligation under this Agreement isdelayed owing to any such causes, the parties hereto shall consult with eachother with respect to an equitable solution. If UIC cannot provide Products to Home Depot due to a force majeureevent for any continuous period of more than twenty (20) days, then UIC shallhave the option to use subcontractors to supply such Products to Home Depot,without obligation to obtain Home Depot’s consent to such subcontractors.  If UIC cannot provide Products due to aforce majeure event and the parties cannot resolve the matter such that UIC (orits subcontractors) is able to resume filling Home Depot’s orders for Productswithin forty-five (45) days, then Home Depot shall have the option to sourcesuch Products from a third party only during the duration of UIC’s inability tosupply and only for the affected Products, in which case: (A) Home Depot’spurchases from such third party (up to an amount not to exceed such purchasesof such Products from UIC during the same period of time 12 months prior tosuch event) shall apply towards Home Depot’s Minimum Annual Volume and MinimumAggregate Volume purchase obligations under this Agreement so as not to delayassignment of the Marks pursuant to Article XI; and (B) the term of HomeDepot’s exclusivity and Minimum Annual Volume obligations under Section 5.02shall be extended beyond the date that such obligations would otherwiseterminate under Section 5.02(c) for a period of time equal to the periodof time that Home Depot sourced Products from third parties.

##  

## 17.10       Noticesand Consents.  In any instance underthis Agreement where a party’s approval or consent is required, or wherenotification is required to be given to a party, if such party fails to respondin writing within ten (10) Business Days from receipt (pursuant to Section15.01) of such request for approval or consent, or receipt (pursuant to Section15.01) of such notice, then such party shall be deemed to have granted itsapproval or consent, and to have waived any objection, in connection with thematter for which approval or consent was requested or about which it wasnotified.  In the event a party fromwhom approval or consent is requested withholds, delays or conditions suchapproval or consent, then such party shall provide to the requesting partywithin ten (10) Business Days from receipt (pursuant to Section 15.01)of the request for approval or consent, in writing and with reasonablespecificity, its reasons for withholding, delaying or conditioning suchapproval or consent

##  

## 17.11       NoThird Party Beneficiaries.  Theparties hereto do not intend the benefits or rights contained in any provisionof this Agreement to inure to the benefit of any third party.  Notwithstanding anything contained in thisagreement to the contrary, the parties hereto agree that this Agreement shallnot be construed as creating any rights, claims or causes of action against anyparty to this Agreement in favor of any third party.

##  

## 27

## 

##  

## 17.12       Import/ExportLaws.  In exercising its rights andperforming its obligations under this Agreement, each party and its Affiliatesshall fully comply with all applicable foreign, national, state and localimportation and exportation laws and regulations.

##  

## 17.13       Severability.  If any provision or provisions of thisAgreement, or any portion of any provision hereof or thereof, shall be deemedinvalid or unenforceable pursuant to a final determination of any arbitrator orcourt of competent jurisdiction, or as a result of future legislative action,such portion or provision shall be deemed severed from this Agreement, but theremainder of this Agreement shall continue in full force and effect.  Notwithstanding the foregoing, if suchruling materially impairs the value of the entire Agreement as to either party,the parties shall enter into good faith negotiations for a period of not morethan 90 days aimed at modifying the Agreement in a manner that compensates suchparty for the lost value.  In the eventsuch negotiations are not successful, this Agreement shall automatically beterminated upon expiration of the negotiation period.

##  

## 17.14       UnitedNations Convention of Contracts for the International Sale of Goods.  The parties agree that the United NationsConvention of Contracts for the International Sale of Goods is specificallyexcluded from application to this Agreement.

##  

## 17.15       Counterparts.  This Agreement may be executed in multiplecounterparts, each of which shall be deemed an original and all of whichtogether shall constitute one and the same instrument.

##  

## 17.16       Survival.  The following provisions shall surviveexpiration or termination of this Agreement:  Articles XII, XIII, XIV, XV, and ArticleXVII.

##  

*[End of Agreement; signatures followon next page.]*

 

28

----

 

IN WITNESS WHEREOF, each of the parties hereto hascaused this Agreement to be executed by its duly authorized officer orrepresentative on February 12, 2004, effective as of the Effective Date.

 

 
| **United Industries Corporation** | **Home Depot U.S.A., Inc.** |             |
|-----------------------------------|-----------------------------|------------------|
|                              |                        |             |
|                              |                        |             |
| By:                               | /s/ Robert L. Caulk         |             | By: | /s/ Steven J. Jansen |   |
|                              |                        |             |
|                              |                        |             |
| Robert L. Caulk                   |                        | Steven J. Jansen |   |
| Print Name                        | Print Name                  |             |
|                              |                        |             |
| Its:                              | Chairman and CEO            |             | Its: | Merchandising Vice  President |   |
|                              | Print Title                 |             | Print Title |   |
|                                   |                             |                  |  |  |  |  |  |  |

 

29

----

 

**SCHEDULE A**

 

## **CommodityFertilizers**

 
| **Product Description of Commodity Fertilizers** |
|--------------------------------------------------|
|                                             |
| All American 34-0-0                              |
| All American 15-5-10                             |
| All American 16-4-8                              |
| All American &/or  Soilife 10-20-10          |
| All American &/or  Soilife 8-8-8             |
| All American &/or  Soilife 10-10-10          |
| All American &/or  Soilife 13-13-13          |
| All American Ammonium  Sulfate                   |
| Soilife Ammonium  Sulfate                        |
| Soilife 34-0-0                                   |
| All American &/or  Soilife 6-12-12           |
| All American &/or  Soilife 5-10-5            |
| All American &/or  Soilife 10-6-4            |
| All American Ammonium  Phosphate                 |
| All American &/or  Soilife 6-6-6             |
| All American Natural  Organic                    |
| All American Iron  Sulfate                       |
| All American Magnesium  Sulfate                  |
| All American Magnesium  Sulfate                  |
| All American Maganese  Sulfate                   |
| All American Maganese  Sulfate                   |
| All American Triple  Super Phosphate             |
| All American Sulfate of  Potash                  |
| All American  Milorganite                        |
| P/I Super 8-8-8                                  |
| P/I Super 10-10-10                               |
| P/I Super 13-13-13                               |
| P/I Super 12-12-12                               |
| P/I Super 16-4-8                                 |
| Marble Chips                                     |
| Bark Rock Nuggets                                |
| Lime Rite Pellitized  Lime                       |
| 5# Deco Marble Chips                             |

 

## 30

## 

##  

| **Product Description of Commodity Fertilizers** |
|--------------------------------------------------|
|                                             |
| 5# Deco Pebbles                                  |
| Greystone Slate                                  |
| All American 16-16-16                            |
| All American 12-12-12                            |
| Aluminum Sulfate                                 |
| Pulverized Limestone                             |

 

31

----

 

**SCHEDULE B**

 

## **Marks**

 
| **Mark**                      |   | **Permitted  Territories** |   | **Permitted  Product Categories**                                           |   | **Registration/  Application  Numbers** |
|-------------------------------|--------|----------------------------|--------|-----------------------------------------------------------------------------|--------|-----------------------------------------|
| VIGORO                        |   | United States              |   | 1.  Fertilizers                                                        |   | 1.                                      | 186,125 |
|                          |   |                       |   | 2.  Pesticides and weedicides                                          |   | 2.                                      | 822,216 |
|                          |   |                       |   | 3.  Seeds for agricultural purposes                                    |   | 3.                                      | 2,230,960 |
|                          |   |                       |   | 4.  Mechanical fertilizer spreaders                                    |   | 4.                                      | 2,266,583 |
|                          |   | Canada                     |   | 1.  Fertilizer                                                         |   | 1.                                      | 45,670 |
|                          |   |                       |   | 2.  Fertilizer spreaders                                               |   | 2.                                      | 505,233 |
|                          |   | European Community         |   | Fertilizers                                                                 |   |                                    | 510,701 |
|                          |   | Germany                    |   | Fertilizers                                                                 |   |                                    | 761,661 |
|                          |   | Mexico                     |   | All Goods in Int’l  Class 1                                            |   |                                    | 447922 |
|                          |   | Norway                     |   | All Goods in Int’l  Class 1                                            |   |                                    | 189,257 |
|                          |   | Puerto Rico                |   | Chemicals                                                                   |   |                                    | 7,804 |
|                          |   | Switzerland                |   | Fertilizers                                                                 |   |                                    | 445,212 |
|                          |   | United Kingdom             |   | Fertilizers                                                                 |   |                                    | 812,017 |
| VIGORO (flower design)        |   | United States              |   | Fertilizers and soil  conditioning agents for domestic and agricultural use |   |                                    | 2,163,609 |
| VIGORO DEEP GREEN             |   | Canada                     |   | Fertilizers                                                                 |   |                                    | 377,240 |
| VIGORO GARDENER’S REPORT |   | Canada                     |   | Printed periodical publications and related materials                       |   |                                    | 451,838 |

##  

----

## *****Goodsin International Class 1 include chemicals used in industry, science andphotography, as well as in agriculture, horticulture, and forestry; unprocessedartificial resins; unprocessed plastics; manures; fire extinguishingcompositions; tempering and soldering preparations; chemical substances forpreserving foodstuffs; tanning substances; and adhesives used in industry.

##  

## 32

## 

##  

**SCHEDULE C**

 

**Pricing**

 

**2004 VIGORO PRICING SUMMARY**

 
|                              | **Item #** |   | **Sku #** |   | **Brand** |   | **SKU  Description**                              |   | **Ship  Unit** |   | **Std.  Pack** |   | **Size/  Weight** |   | **2004 SOQ  Cost** |
|-----------------------------------|------------|--------|-----------|--------|-----------|--------|---------------------------------------------------|--------|----------------|--------|----------------|--------|-------------------|--------|--------------------|
|                              |       |   |      |   |      |   |                                              |   |           |   |           |   |              |   |               |
| SUB-CLASS:  LAWN FERTILIZERS      |       |   |      |   |      |   |                                              |   |
| All  Purpose                      |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 722327     |   | 606609    |   | Vigoro    |   | VIG  U/T Lawn Fertilizer                          |   | 35             |   | Varies         |   | 15M               |   | **$  [ * ]**  |
|                              | 722328     |   | 606643    |   | Vigoro    |   | VIG  U/T Lawn Fertilizer                          |   | 100            |   | Varies         |   | 5M                |   | **$  [ * ]**  |
|                              | 522320     |   | 606366    |   | Vigoro    |   | VIG  U/T Centipede Lawn Fertilizer                |   | 120            |   | 120            |   | 5M                |   | **$  [ * ]**  |
|                              | 522335     |   | 607072    |   | Vigoro    |   | VIG  U/T Texas Turf Fertilizer                    |   | 70             |   | 70             |   | 5M                |   | **$  [ * ]**  |
|                              | 522173     |   | 538470    |   | Vigoro    |   | Vigoro  Ultra Iron                                |   | 66             |   | 66             |   | 25#               |   | **$  [ * ]**  |
| Weed & Feed                   |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 722343     |   | 642774    |   | Vigoro    |   | VIG  U/T Weed & Feed                          |   | 100            |   | Varies         |   | 5M                |   | **$  [ * ]**  |
|                              | 722344     |   | 643654    |   | Vigoro    |   | VIG  U/T Weed & Feed                          |   | 35             |   | Varies         |   | 15M               |   | **$  [ * ]**  |
|                              | 522347     |   | 607882    |   | Vigoro    |   | VIG  U/T Lawn Weed Control                        |   | 100            |   | 100            |   | 5M                |   | **$  [ * ]**  |
|                              | 522352     |   | 608316    |   | Vigoro    |   | VIG  U/T Bahia Weed & Feed                    |   | 100            |   | 100            |   | 5M                |   | **$  [ * ]**  |
|                              | 522321     |   | 606432    |   | Vigoro    |   | VIG  U/T Centipede Weed & Feed                |   | 120            |   | 120            |   | 5M                |   | **$  [ * ]**  |
|                              | 722336     |   | 643866    |   | Vigoro    |   | VIG  U/T St. Augustine W&F                    |   | 90             |   | 90             |   | 5M                |   | **$  [ * ]**  |
|                              | 722337     |   | 607175    |   | Vigoro    |   | VIG  U/T St. Augustine W&F                    |   | 49             |   | 49             |   | 10M               |   | **$  [ * ]**  |
| Crabgrass Preventer               |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 722322     |   | 606433    |   | Vigoro    |   | VIG  U/T CrabGrass Preventer + Fertilizer         |   | 100            |   | 100            |   | 5M                |   | **$  [ * ]**  |
|                              | 722323     |   | 606553    |   | Vigoro    |   | VIG  U/T CrabGrass Preventer + Fertilizer         |   | 30             |   | 35             |   | 15M               |   | **$  [ * ]**  |
|                              | 722324     |   | 606603    |   | Vigoro    |   | VIG  U/T CrabGrass Preventer                      |   | 80             |   | 80             |   | 5M                |   | **$  [ * ]**  |
| Starter                           |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 522232     |   | 480253    |   | Vigoro    |   | Vigoro  Starter                                   |   | 12             |   | 504            |   | 3.5#              |   | **$  [ * ]**  |
|                              | 722338     |   | 607369    |   | Vigoro    |   | VIG  U/T Starter Fertilizer                       |   | 100            |   | Varies         |   | 5M                |   | **$  [ * ]**  |
|                              | 722339     |   | 607372    |   | Vigoro    |   | VIG  U/T Starter Fertilizer                       |   | 35             |   | 35             |   | 15M               |   | **$  [ * ]**  |
| Moss  Control                     |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 522334     |   | 606741    |   | Vigoro    |   | VIG  U/T Moss Control + Fertilizer                |   | 66             |   | 66             |   | 5M                |   | **$  [ * ]**  |
|                              | 721468     |   | 538-359   |   | Vigoro    |   | VIG  Moss Control + Fertilizer (filled inventory) |   | 66             |   | 66             |   | 5M                |   | **$  [ * ]**  |
|                              | 522350     |   | 606884    |   | Vigoro    |   | VIG U/T Moss -EX                                  |   | 90             |   | 90             |   | 5M                |   | **$  [ * ]**  |
|                              | 521465     |   | 538458    |   | Vigoro    |   | VIG  Moss -EX (filled inventory)                  |   | 90             |   | 90             |   | 5M                |   | **$  [ * ]**  |
| Lawn  Insect Control + Fertilizer |       |   |      |   |      |   |                                              |   |           |   |
|                              | 522331     |   | 606889    |   | Vigoro    |   | VIG  U/T Lawn Insect Control                      |   | 100            |   | 100            |   | 5M                |   | **$  [ * ]**  |
|                              | 522333     |   | 607753    |   | Vigoro    |   | VIG  U/T Lawn Insect Control                      |   | 30             |   | 30             |   | 15M               |   | **$  [ * ]**  |
| Winterizer                        |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 722325     |   | 235075    |   | Vigoro    |   | VIG  U/T Winterizer                               |   | 110            |   | 110            |   | 5M                |   | **$  [ * ]**  |
|                              | 722326     |   | 235525    |   | Vigoro    |   | VIG  U/T Winterizer                               |   | 35             |   | 35             |   | 15M               |   | **$  [ * ]**  |
|                              | 722348     |   | 232749    |   | Vigoro    |   | VIG  U/T Winterizer Weed & Feed               |   | 110            |   | 110            |   | 5M                |   | **$  [ * ]**  |
|                              | 722349     |   | 233507    |   | Vigoro    |   | VIG  U/T Winterizer Weed & Feed               |   | 35             |   | 35             |   | 15M               |   | **$  [ * ]**  |
| SUB-CLASS:  GARDEN FERTILIZERS    |       |   |      |   |      |   |                                              |   |
| All  Purpose                      |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 500612     |   | 554697    |   | Vigoro    |   | Ultra  Vigoro All Purpose 3 Month                 |   | 9              |   | 378            |   | 5#                |   | **$  [ * ]**  |
| Blooming                          |       |   |      |   |      |   |                                              |   |           |   |           |   |              |
|                              | 501200     |   | 740020    |   | Vigoro    |   | Vigoro  Bloom Master                              |   | 72             |   | 72             |   | 20#               |   | **$  [ * ]**  |
| Rose  & Flower                |       |   |      |   |      |   |                                              |   |           |   |           |   |
|                              | 522250     |   | 480121    |   | Vigoro    |   | Vigoro  Rose Food                                 |   | 12             |   | 504            |   | 3.5#              |   | **$  [ * ]**  |
|                              | 501160     |   | 739981    |   | Vigoro    |   | Vigoro  Rose Food                                 |   | 72             |   | 72             |   | 20#               |   | **$  [ * ]**  |

 

[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

 

33

 
| Tomato  & Vegetable |   |   |   |   |   |   |                           |   |   |   |   |   |
|-------------------------|--------|--------|--------|--------|--------|--------|--------------------------------|--------|--------|--------|--------|--------|
|                    | 522246 |   | 480152 |   | Vigoro |   | Vigoro  Tomato & Vegetable |   | 12     |   | 504    |   | 3.5# |   | **$  [ * ]** |
| Acid Loving             |   |   |   |   |   |   |                           |   |   |   |   |   |
|                    | 522248 |   | 480148 |   | Vigoro |   | Vigoro  ACR                    |   | 12     |   | 504    |   | 3.5# |   | **$  [ * ]** |
|                    | 501180 |   | 740002 |   | Vigoro |   | Vigoro  ACR                    |   | 72     |   | 72     |   | 20# |   | **$  [ * ]** |
| Tree & Shrub        |   |   |   |   |   |   |                           |   |   |   |   |   |
|                    | 522260 |   | 426026 |   | Vigoro |   | Vigoro  Tree & Shrub Food  |   | 12     |   | 504    |   | 3.5# |   | **$  [ * ]** |
|                    | 501275 |   | 110846 |   | Vigoro |   | Vigoro  Tree & Shrub Food  |   | 72     |   | 72     |   | 20# |   | **$  [ * ]** |
|                    | 501285 |   | 483736 |   | Vigoro |   | Vigoro  Holly Food             |   | 48     |   | 48     |   | 35# |   | **$  [ * ]** |
| Citrus                  |   |   |   |   |   |   |                           |   |   |   |   |   |
|                    | 522244 |   | 480178 |   | Vigoro |   | Vigoro  Citrus & Avocado   |   | 12     |   | 504    |   | 3.5# |   | **$  [ * ]** |
|                    | 501220 |   | 735217 |   | Vigoro |   | Vigoro  Citrus & Avocado   |   | 72     |   | 72     |   | 20# |   | **$  [ * ]** |
|                    | 522154 |   | 740055 |   | Vigoro |   | Vigoro  Citrus & Avocado   |   | 45     |   | 45     |   | 40# |   | **$  [ * ]** |
| Palm                    |   |   |   |   |   |   |                           |   |   |   |   |   |
|                    | 522242 |   | 480219 |   | Vigoro |   | Vigoro  Palm Food              |   | 12     |   | 504    |   | 3.5# |   | **$  [ * ]** |
|                    | 501270 |   | 735266 |   | Vigoro |   | Vigoro  Palm Food              |   | 72     |   | 72     |   | 20# |   | **$  [ * ]** |
|                    | 501280 |   | 740071 |   | Vigoro |   | Vigoro  Palm Food              |   | 45     |   | 45     |   | 40# |   | **$  [ * ]** |
| Bone/Blood              |   |   |   |   |   |   |                           |   |   |   |
|                    | 522238 |   | 480245 |   | Vigoro |   | Vigoro  Bone Meal              |   | 12     |   | 504    |   | 3.5# |   | **$  [ * ]** |
|                    | 522240 |   | 480250 |   | Vigoro |   | Vigoro  Blood Meal             |   | 12     |   | 504    |   | 3.5# |   | **$  [ * ]** |

 

[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

 

34

 

**SCHEDULE D**

 

**Pre-existing Contractual Obligations,Restrictions or Other Impairments**

 

License Agreement datedJanuary 1, 1998 among Gleason Corporation, IMC Agribusiness, Inc. and IMCKalium Canada, Ltd. (and assigned to Vigoro Acquisition Corp. as subsidiary ofPursell Industries, Inc.)

 

License Agreement(Vigoro) dated October 31, 2000 by and between Pursell Industries, Inc.,Pursell Vigoro Canada Inc, and The Nu-Gro Corporation

 

Mexican TrademarkRegistration No. 447922 for the mark “VIGORO.” UIC’s rights in the “VIGORO” mark in Mexico are uncertain due to chainof title issues.  UIC continues toattempt to correct the chain of title, but cannot guarantee, and gives norepresentation or warranty, that it will be successful in correcting the chainof title or in otherwise maintaining or establishing rights in the “VIGORO”mark in Mexico.

 

Sponsorship Agreementamong United Industries Corporation, Joe Gibbs Racing, Inc. (“JGR”) and RedlineSports Marketing, Inc. (“RSM”) for use by JGR and RSM of the VIGORO Mark as set forth in such SponsorshipAgreement.  Such Sponsorship Agreementis anticipated to be executed by the parties on or about February 12, 2004.

 

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**SCHEDULEE**

 

**HighlyConfidential Additional Terms and Conditions**

 

This Schedule E contains certain highlyconfidential additional terms and conditions of the Agreement.  Such additional terms and conditions havehere been given the same Section numbers and Section headings as thecorresponding Sections of the Agreement.

 

5.02(b)(i)                Minimum Annual VolumeRequirement.  The Minimum AnnualVolume requirement shall be [ * ] US Dollars (US $[ * ]) (based upon [ * ]).

 

5.03(a)(i) Minimum Aggregate Volume.  The Minimum Aggregate Volume requirementshall be [ * ] US Dollars (US $[ * ]) (based upon [ * ]).

 

5.03(b)(i)                Final Year Volume.  The Final Year Volume requirement shall be [* ]US Dollars (US $[ * ]) (based upon [ * ]).

 

6.04                           OrderProcedure.  Subject to a forcemajeure event pursuant to Section 17.09 of the Agreement, if, within [ *], UIC fails:  (i) to achieve a minimumfill rate [ * ]; (ii) the orders during such [ * ] do not exceed [ * ] of theforecasted volume agreed upon for such period pursuant to Section 6.01;and (iii) UIC fails to cure any such deficiency (as provided below) within the[ * ] following its receipt of Home Depot’s written notice setting forth inreasonable detail such deficiency, then, to the extent that all of theconditions set forth in the preceding subsections (i), (ii) and (iii) have beensatisfied, UIC shall [ * ].  Any failureby UIC to meet the fill rate hereunder shall be deemed cured whenever UICachieves the [ * ] fill rate within any [ * ]. The foregoing amounts constitute liquidated damages, which shallconstitute Home Depot’s sole and exclusive remedy for UIC’s failure to fill anyorder or to achieve the minimum fill rate hereunder.  Home Depot shall not have any right to setoff or otherwise deductamounts due to UIC so long as UIC makes the liquidated damages payments as setforth above.

 

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[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

 

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8.01         Sales and Marketing Obligations byUIC.  The percentage of UIC’sforecasted annual revenue (less forecasted returns) that Home Depot shall bepermitted to deduct from its monthly invoice payment requirements shall beone-twelfth (1/12) of [ * ] of such forecasted annual revenue (less forecastedreturns) for the corresponding year.

 

10.02       Payment Terms.  Payment terms are [ * ].

 

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[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

 

37

 

**EXHIBIT A**

 

## **Formof Assignment**

##  

**TRADEMARKASSIGNMENT**

** **

**THIS TRADEMARK ASSIGNMENT**(this “Assignment”) is made and entered into as of **[insert effective date]** (“Effective Date”)by and between United Industries Corporation, a Delaware corporation, with itsprincipal office at 2150 Schuetz Road, St. Louis, Missouri 63146 (“Assignor”),and Home Depot U.S.A., Inc., a Delaware corporation**,** with its principal office at  2455 Paces Ferry Road, Atlanta, Georgia 30335 (“Assignee”).

 

**WHEREAS,** Assignorand Assignee are parties to that certain Trademark License and Manufacturingand Supply Agreement effective January 1, 2004 (the “Agreement”);

 

**WHEREAS,**pursuantto the Agreement, Assignor wishes to assign to Assignee, and Assignee wishes toacquire from Assignor, the United States trademark registrations set forth onSchedule A attached hereto, the United States applications for trademarkregistration set forth on Schedule B attached hereto, the foreign trademarkregistrations set forth on Schedule C attached hereto, and the foreignapplications for trademark registration set forth on Schedule D attached hereto,in each case, together with the goodwill of the business associated therewith(collectively, the “Marks”); and

 

**WHEREAS,**Assigneeis a successor to that part of Assignor’s business to which the Marks pertain,and that business is ongoing and existing.

 

**NOW, THEREFORE,** forgood and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, Assignor hereby sells, assigns, transfers and sets over toAssignee its entire right, title and interest in and to the Marks, for theUnited States and for all foreign countries, including, without limitation, anyregistrations and applications therefor, any renewals and extensions of theregistrations, and all other corresponding rights that are or may be securedunder the laws of the United States or any foreign country, now or hereafter ineffect, for Assignee’s own use and enjoyment, and for the use and enjoyment ofAssignee’s successors, assigns or other legal representatives, as fully andentirely as the same would have been held and enjoyed by Assignor if thisAssignment had not been made, together with all income, royalties or paymentsdue or payable as of the Effective Date or thereafter, including, withoutlimitation, all claims for damages by reason of past, present or futureinfringement or other unauthorized use of the Marks, with the right to sue for,and collect the same for Assignee’s own use and enjoyment and for the use andenjoyment of its successors, assigns or other legal representatives.

 

Assignor hereby requests the Commissioner of Patentsand Trademarks, and the corresponding entities or agencies in any applicableforeign countries, to record Assignee as the assignee and owner of theMarks.  Assignee shall be responsiblefor all costs and expenses of recording such assignments.

 

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**THE MARKS ARE PROVIDED TO ASSIGNEE“AS IS.”  ASSIGNOR****MAKES NOREPRESENTATIONS OR WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES,EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE,NON-INFRINGEMENT, SUFFICIENCY, VALIDITY OR ENFORCEABILITY, AND ASSIGNEE COVENANTS NOT TO ASSERT ANY CLAIM OR DEFENSEAGAINST ASSIGNORS BASED ON ANY SUCH DISCLAIMED WARRANTIES.  ASSIGNOR SHALL NOT BE LIABLE TO ANY PARTYFOR ANY CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO THE MARKS EXCEPT ASEXPRESSLY SET FORTH IN SECTION 13.01(c) OF THE AGREEMENT.**

 

Assignor shall, at Assignee’s expense,****take all further actions, and provide to Assignee,Assignee’s successors, assigns or other legal representatives, all suchcooperation and assistance (including, without limitation, the execution anddelivery of any and all affidavits, declarations, oaths, samples, exhibits,specimens, assignments, powers of attorney or other documentation), reasonablyrequested by Assignee to more fully and effectively effectuate the purposes ofthis Assignment, including, without limitation, with respect to thefollowing:  (1) the preparation andprosecution of any application for registration, or any application for renewalof a registration, relating to any of the rights assigned herein; (2) theprosecution or defense of any interference, opposition, infringement or otherproceedings that may arise in connection with any of the rights assignedherein, including, without limitation, testifying as to any facts relating tothe Marks and this Assignment; (3) obtaining any additional trademarkprotection relating to rights assigned herein that Assignee reasonably may deemappropriate that may be secured under the laws now or hereafter in effect inthe United States or in any foreign country; and (4) in the implementation orperfection of this Assignment in all applicable jurisdictions throughout theworld.

 

*     *    *     *     *

 

39

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**INWITNESS WHEREOF,** Assignor and Assignee have caused thisAssignment to be executed by their duly authorized representatives as of theEffective Date.

 
| **UNITED  INDUSTRIES CORPORATION** | **HOME  DEPOT U.S.A., INC.** |   |
|------------------------------------|------------------------------|--------|
|                               |                         |
|                               |                         |
|                               |                         |   |   |
|                               |                         |
| Name:                              |                         |   | Name: |   |   |
|                               |                         |
| Title:                             |                         |   | Title: |   |   |
|                               |                         |
| Date:                              |                         |   | Date: |   |   |
|                                    |                              |        |  |  |  |  |  |  |  |  |

 

 
| STATE OF  | )     |
|-----------|-------|
|      | ) SS. |
| COUNTY OF | )     |

 

On this        day of             ,there appeared before me                                    , personally known to me, who acknowledged that he/she signed the foregoingAssignment as his/her voluntary act and deed on behalf and with full authorityof                                    ..

 
|   |           |   |
|--------|----------------|--------|
|   | Notary  Public |

 

 
| STATE OF  | )     |
|-----------|-------|
|      | ) SS. |
| COUNTY OF | )     |

 

On this        day of             ,there appeared before me                                    , personally known to me, who acknowledged that he/she signed the foregoingAssignment as his/her voluntary act and deed on behalf and with full authorityof                                     ..

 
|   |           |   |
|--------|----------------|--------|
|   | Notary  Public |

 

40

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**SCHEDULE A**

** **

**U.S. TRADEMARKREGISTRATIONS**

 
| **Trademark  No.** |   | **Registration  Date** |   | **Mark** |
|--------------------|--------|------------------------|--------|----------|
|               |   |                   |   |     |

 

41

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**SCHEDULE B**

** **

**U.S. TRADEMARKAPPLICATIONS**

 
| **Application No.** |   | **Application  Date** |   | **Mark** |
|---------------------|--------|-----------------------|--------|----------|
|                |   |                  |   |     |

 

42

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**SCHEDULE C**

** **

**FOREIGN TRADEMARKREGISTRATIONS**

 
| **Country** |   | **Registration  No.** |   | **Registration  Date** |   | **Mark** |
|-------------|--------|-----------------------|--------|------------------------|--------|----------|
|        |   |                  |   |                   |   |     |

 

43

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**SCHEDULE D**

** **

**FOREIGN TRADEMARKAPPLICATIONS**

 
| **Country** |   | **Application  No.** |   | **Application  Date** |   | **Mark** |
|-------------|--------|----------------------|--------|-----------------------|--------|----------|
|        |   |                 |   |                  |   |     |

 

44

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