EX-10.16






Exhibit 10.16




AMENDMENTS TO

EMPLOYMENT AGREEMENT




     WHEREAS, an Employment Agreement, dated as of May 19, 1995 (the “Agreement”), was entered into
by and between The Scotts Company, an Ohio corporation, and James Hagedorn (the “Employee”);



     WHEREAS, The Scotts Company was merged with and into The Scotts Company LLC, an Ohio limited
liability company (the “Company”), a wholly-owned subsidiary of The Scotts Miracle-Gro Company (the
“Corporation”);



     WHEREAS, effective as of October 1, 2008, the Company, the Corporation and Employee
(collectively the “parties”) desire to amend the Agreement, to bring it into compliance with
Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”).



     NOW, THEREFORE, the parties agree as follows:




	 	1.	 	Section 7(f) is amended by adding the following at the end thereof:
	 
	 	 	 	Notwithstanding the foregoing, for purposes of this Agreement, a termination of
employment occurs when Employee and the Company reasonably anticipate that (i) no
further services will be performed by Employee after a certain date, or (ii) the
level of bona fide services which Employee is expected to perform for the Company,
the Corporation and their affiliates, as an employee or otherwise, as of a certain
date is expected to permanently decrease to a level equal to twenty (20) percent or
less of the average level of services performed by Employee during the immediately
preceding thirty-six (36) month period (or Employee’s entire period of service if
less than thirty-six (36) months). Whether there has been a termination of
employment will be determined by the Board of Directors of the Corporation taking
into account all of the facts and circumstances at the time of the termination of
employment in accordance with the guidelines described in Treas. Regs. Section
1.409-1(h).
	 
	 	2.	 	Section 8 is amended by adding the following new subsection (d) at the end
thereof:






	 	(d)	 	Notwithstanding anything in this Agreement to the contrary, if
Employee is a “specified employee” of the Corporation (within the meaning of
Section 409A and as determined under the Corporation’s policy for determining
specified employees) on the Date of Termination, the payment due under Section
8(c)(3) that is required to be delayed under Section 409A shall be delayed for
six (6) months following the Date of Termination, and the accumulated postponed
amounts paid in a lump sum Payment within five (5) days after the end of such
six (6) month period. If Employee dies during the postponement period prior to
the payment of such amounts, the amounts postponed on account of Section 409A
shall be




 









 






	 	 	 	paid to Employee’s Beneficiary within sixty (60) days after the date of
Employee’s death.






	 	3.	 	The following new Section 17 is added in sequence.






	 	17.	 	Section 409A. This Agreement is intended to be fully
compliant with the requirements of Section 409A, the final regulations
promulgated thereunder, taking into account any and all transition rules and
relief promulgated by the Internal Revenue Service or the U.S. Department of
Treasury regarding compliance therewith, and, to the maximum extent permitted
by law, shall be administered, operated and construed consistent with this
intent. For purposes of the limitations on nonqualified deferred compensation
under Section 409A, each payment of compensation under the Agreement shall be
treated as a separate payment of compensation for purposes of applying the
Section 409A deferral election rules and the exclusion from Section 409A for
certain short-term deferral amounts. Any amounts payable solely on account of
an involuntary separation from service within the meaning of Section 409A shall
be excludible from the requirements of Section 409A, either as involuntary
separation pay or as short-term deferral amounts (e.g., amounts payable under
the schedule prior to March 15 of the calendar year following the calendar year
of involuntary separation) to the maximum possible extent. Further, any
reimbursements or in-kind benefits provided under the Agreement shall be made
or provided in accordance with the requirements of Section 409A, including,
where applicable, the requirement that (i) any reimbursement is for expenses
incurred during the period of time specified in the Agreement, (ii) the amount
of expenses eligible for reimbursement, or in-kind benefits provided, during a
calendar year may not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in any other calendar year, (iii) the
reimbursement of an eligible expense will be made no later than the last day of
the calendar year following the year in which the expense is incurred, and (iv)
the right to reimbursement or in-kind benefits is not subject to liquidation or
exchange for another benefit.




2 









 











          IN WITNESS WHEREOF, the parties have executed this Amendment Agreement effective as of October
1, 2008, except to the extent an earlier or later date is required to comply with Section 409A or
other applicable law. The parties have executed this document on separate signature pages
intentionally.




	 	 	 	 	 
	 	THE SCOTTS MIRACLE-GRO COMPANY

THE SCOTTS COMPANY LLC

 	 
	December 22, 2008 	By:  	/s/ Denise Stump
 	 
	 	 	Denise Stump, Executive Vice President 	 
	 	 	Global Human Resources 	 
	 	 	 
	December 30, 2008  	By:  	/s/ Vincent C. Brockman
 	 
	 	 	Vincent C. Brockman, Executive Vice President 	 
	 	 	General Counsel 	 
	 
	December 22, 2008 	EMPLOYEE

 	 
	 	/s/ James Hagedorn
 	 
	 	James Hagedorn 	 
	 	 	 
	 




3