Exhibit 10(G)(5)



 





Exhibit 10(g)(5)




FOURTH AMENDMENT




TO




THE SCOTTS COMPANY




EXECUTIVE RETIREMENT PLAN




WHEREAS, The Scotts Company (“Company”) sponsors The Scotts Company Executive
Retirement Plan (“Plan”); and



WHEREAS, the Company wants to amend the Plan’s definition of “Compensation” and
to make additional changes to the Plan



NOW, THEREFORE, effective as of January 1, 2004:




	1.	 	The definition of “Administrative Committee” in Section II of the Plan is
amended, in its entirety, to read as follows:
	 
	 	 	“Administrative Committee” means (a) the administrative committee
appointed by the Board to administer the tax-qualified retirement plans
which are also sponsored by the Employer or (b) any person or entity to
which the Administrative Committee delegates any of the administrative or
ministerial duties assigned to it in this Plan.
	 
	2.	 	The definition of “Compensation” in Section II of the Plan is amended, in
its entirety, to read as follows:
	 
	 	 	“Compensation” has the meaning specified under the applicable provisions
of the Qualified Plan, except that Compensation in excess of the Pay Cap
and amounts deferred to this Plan shall be included. Executive Incentive
Pay shall be: (a) in Compensation for purposes of allocating Employer
contributions to Participants’ Retirement Accounts and (b) shall be
excluded from Compensation for purposes of allocating Employer
contributions to Participants’ Matching Accounts and Participants’
Compensation Deferral Elections.
	 
	3.	 	Paragraph (1) of Section IV, B. of the Plan is amended, in its entirety, to
read as follows:
	 
	 	 	     (1) With respect to each Plan Year, an Eligible Employee may
elect to have a percentage of his Executive Incentive Pay which is
to be awarded to him by the Employer for the Plan Year in question
allocated to his Deferred Executive Incentive Pay Account and paid
on a deferred basis pursuant to the terms of the Plan. To
exercise such an election for any Plan Year, within thirty (30)
days after the Executive Annual Incentive Plan is finalized for
the Plan Year, the Eligible Employee must advise the Employer of
his election, in writing or by filing his election electronically
using procedures prescribed by the Administrative Committee, on an
Executive Incentive Pay Deferral Election. Such Executive
Incentive Pay Deferral Election shall apply only to Executive
Incentive Pay payable to the Participant after the date on which
the Executive Incentive Pay Deferral Election is received by the
Administrative Committee. If an Eligible




 









 







	 	 	Employee terminates employment or changes to an employment
status other than an Eligible Employee, his election to defer
Executive Incentive Pay shall terminate and no additional amounts
shall be deferred.
	 
	4.	 	Paragraph (1) of Section IV, C. of the Plan is amended, in its entirety, to
read as follows:
	 
	 	 	     (1) With respect to each pay period, subject to the maximum
percentage deferral permitted under the terms of the Qualified
Plan, an Eligible Employee may elect to have a percentage of his
Compensation which is to be paid to him by the Employer for the
pay period in question allocated to his Deferred Compensation
Account and paid on a deferred basis pursuant to the terms of the
Plan. To exercise such election for any Plan Year, within thirty
(30) days prior to the beginning of such Plan Year, the Eligible
Employee must advise the Employer of his election, in writing or
by filing his election electronically using procedures prescribed
by the Administrative Committee, on a Compensation Deferral
Election. Such Compensation Deferral Election shall apply only to
Compensation payable to the Participant after the date on which
the Compensation Deferral Election is received by the
Administrative Committee. If an Eligible Employee terminates
employment or changes to an employment status other than an
Eligible Employee, his election to defer Compensation shall
terminate and no additional amounts shall be deferred. A
Participant shall be permitted, pursuant to this Section IV.C. to
defer amounts of his Compensation that could otherwise have been
contributed to the Qualified Plan, for such Plan Year, were it not
for the application of any of the Statutory Limits. If, during
the Plan Year, in the sole discretion of the Administrative
Committee and the administrator of the Qualified Plan,
contribution percentages under the Qualified Plan must be further
reduced to insure passage of the ADP Test and/or the ACP Test, or
Participants’ contributions to the Qualified Plan must be reduced
to satisfy the Deferral Limit, any reduced contribution
attributable to Participants of this Plan shall be deferred
automatically under this Plan. However, if it is determined after
the end of the Plan Year that the ADP and/or the ACP Test would be
failed, any and all corrective action will be taken in accordance
with the rules of the Qualified Plan and no additional amounts may
be deferred under this Plan for that Plan Year.
	 
	5.	 	Paragraph (1) of Section IV, D. of the Plan is amended, in its entirety, to
read as follows:
	 
	 	 	     (1) Retirement Contribution. For each pay period, the Employer will
allocate to each Eligible Employee’s Retirement Account an amount equal
to the Retirement Contribution he would have received under the Qualified
Plan with respect to his Compensation (as defined in Section II of this
Plan) minus the Retirement Contribution actually allocated under the
Qualified Plan.
	 
	6.	 	Paragraph (2) of Section IV, D. of the Plan is amended, in its entirety, to
read as follows:
	 
	 	 	     (2) Matching Contributions. For each pay period, the Employer shall
make matching contributions to the Matching Account of each Participant
who elects to defer Compensation in accordance with Section IV.C. For
each pay period, the amount of such




2









 





	 	 	matching contribution will be the matching contribution that would
have been made under the Qualified Plan applied against the aggregate of
deferrals to the Qualified Plan and this Plan less any matching
contributions made on behalf of the Participant under the Qualified Plan.
	 
	7.	 	Section IV, F. of the Plan is amended, in its entirety, to read as follows:
	 
	 	 	     (F.) Outside Investment Funds. Each Participant shall direct the
portion of future contributions to, and the existing balance in, the
Participant’s Account to be treated as credited to one or more of the
Outside Investment Funds. A Participant may change his or her direction
among the Outside Investment Funds as of any business day by providing
instructions in such manner as may be prescribed by the Administrative
Committee, subject to any applicable restrictions under an Outside
Investment Fund. If a Participant does not designate one or more of the
Outside Investment Funds, his Accounts will be credited to the Fidelity
Retirement Money Market Portfolio Fund or to a successor fund identified
by the Administrative Committee.
	 
	8.	 	Section V, B. of the Plan is amended, in its entirety, to read as follows:
	 
	 	 	     (B.) Method of Distribution. Amounts credited to a Participant’s
Account shall be distributed to the Participant either in a single lump
sum payment or in substantially equal annual installments over a period
less than ten (10) years. To the extent that an Account is distributed
in installment payments, the undisbursed portions of such Account shall
continue to be credited with Additions in accordance with the applicable
provisions of Section IV.H. In addition, if, as of any business day
after the date described in Section V.A., the amount allocated to a
Participant’s Account is less than $5,000, the Administrative Committee
shall pay such amount to the Participant and reduce the balance of his
Account to zero. The method of distribution shall be elected by the
Participant in the Executive Incentive Pay Deferral Election and
Compensation Deferral Election delivered to the Administrative Committee
at the time the applicable deferral election is made. Distributions of
amounts credited to Investment Funds other than the Company Stock Fund
shall be made in cash. Distributions of amounts credited to the Company
Stock Fund shall be distributed in the greatest whole number of
common shares of the Company which can be distributed based on the amount
credited to the Company Stock Fund (after any applicable withholding),
plus cash for any fractional share.





IN WITNESS WHEREOF, the Company has caused this amendment to be executed as of
the 5th day of May, 2004.


	 	 	 	 	 
	 	THE SCOTTS COMPANY

 	 
	 	By:  	/s/ George A. Murphy
 	 
	 	 	George A. Murphy, Vice President 	 
	 	 	Global Compensation and Benefits 	 
	 



-





3