EX-10.2.B.I





EXHIBIT 10.2(b)(i)






EMPLOYEE CONFIDENTIALITY, NONCOMPETITION,

NONSOLICITATION AGREEMENT


          This Employee Confidentiality, Noncompetition, Nonsolicitation Agreement (“Agreement”), by and
between The Scotts Company, an Ohio corporation (together with its affiliates, the “Company”), and
the person designated on the signature page hereof as “Employee”, is effective as of the date
signed by Employee below.


          WHEREAS, the Company desires to employ (or to continue to employ) Employee, and Employee
desires to be employed by (or to continue to be employed by) the Company, in a position with
respect to which Employee will have access to certain confidential and proprietary information of
the Company;


          WHEREAS, the Company desires to have Employee participate (or continue to participate) and
Employee desires to participate (or continue to participate) in a Company incentive plan.


          WHEREAS, the Company believes, and Employee hereby acknowledges, that the confidential and
proprietary information of the Company is extremely important to the success of the Company, and
Employee understands and agrees that the Company is willing for Employee to have access or
continued access to such information, subject to and in consideration of the agreements of Employee
set forth herein regarding confidentiality, noncompetition, nonsolicitation and related matters.




          NOW, THEREFORE, in consideration for participation (or continued participation) in a Company
incentive plan and access to Confidential Information (defined below), training, compensation and
benefits, as well as other good and valuable consideration provided by the Company to Employee, the
receipt and sufficiency of which are hereby acknowledged, Employee freely enters this Agreement
according to the following terms and conditions:




     1. Confidential Information. As used in this Agreement the term “Confidential
Information” shall mean any and all financial, commercial, technical, engineering or other
information in written, oral, visual, or electronic form concerning the business and affairs of the
Company including, without limitation, (i) information derived from reports, investigations,
experiments, research and work in progress, (ii) methods of operation, (iii) market data, (iv)
proprietary computer programs and codes, (v) drawings, designs, plans and proposals, (vi) marketing
and sales programs, (vii) client and supplier lists and any other information about the Company’s
relationships with others, (viii) financial information and financial projections, (ix) network and
system architecture, (x) all other concepts, ideas, materials and information prepared or performed
for or by the Company and (xi) all information related to the business plan, strategies, business,
products, purchases or sales of the Company or any of its suppliers and customers. The term
“Confidential Information” does not include information that: (a) was or is made available to the
public without restriction by the Company or by a third party who has the right to disclose such
information; (b) was previously known to the Employee independent of the Company or, subject to the
terms of Section 4 of this Agreement, independently developed or derived by Employee without the
aid, application or use of any Confidential Information, as evidenced by corroborating, dated
documentation; or (c) is disclosed to Employee on a non-confidential basis by a third party who has
the right to disclose such information.



     2. Confidentiality. Employee recognizes and acknowledges that the Confidential
Information, as it may exist from time to time, is a valuable, special and unique asset of the
Company, access to and knowledge of which is essential to the performance of the Employee’s duties
as an employee of the Company. Accordingly, during the period during which Employee is employed by
the Company, and for an indefinite period thereafter, Employee shall hold in strict confidence and
shall not, directly or indirectly, disclose or reveal to any person, or use for Employee’s own
personal benefit or for the benefit of anyone other than the Company, any Confidential Information
of any kind, nature or description (whether or not acquired, learned, obtained or developed by
Employee alone or in conjunction with others) belonging to or concerning the Company, or any of its
customers or clients or others with whom the Company now or hereafter has a business relationship,
except (a) with the prior written consent of the Company, or (b) in the course of the proper
performance of Employee’s duties as an employee of the Company.



     3. Company Property. Upon the termination of Employee’s employment with the Company,
or whenever requested by the Company, Employee shall immediately deliver to the Company all
property in Employee’s possession or under Employee’s control belonging to the Company, including,
without limitation, all Confidential Information.



 









 





     4. Employee Created Intellectual Property. Any and all inventions, ideas,
improvements, discoveries, concepts, writings, processes, procedures, products, designs, formulae,
specifications, samples, methods, know how or other things of value (“Intellectual Property”) which
Employee may make, conceive, discover or develop, either solely or jointly with any other person or
persons, at any time during the term of this Agreement or during the term of any prior employment
by the Company, whether during working hours or at any other time and whether at the request or
upon the suggestion of the Company or otherwise, which relate to or are useful in connection with
the business now or hereafter carried on by the Company, shall be sole and exclusive property of
the Company, and where applicable, all copyrightable works shall be considered “Works Made for
Hire” under the U.S. Copyright Act, 17, USC § 101 et seq. Employee (a) agrees to promptly
disclose all such Intellectual Property to the Company, (b) agrees to do everything necessary or
advisable to vest absolute title thereto in the Company, (c) assigns, without further
consideration, to the Company all right, title and interest in and to such Intellectual Property,
free and clear of any claims, liens or reserved rights of the Employee, and (d) irrevocably
relinquishes for the benefit of the Company and its assignees any moral rights in the Intellectual
Property recognized by applicable law.



     5. Restrictive Covenants. In consideration of (i) Employee’s employment (or continued
employment) with the Company and (ii) Employee’s participation (or continued participation) in the
Company’s Executive/Management Incentive Plan and (iii) the receipt by Employee of Confidential
Information of the Company and training during the course of Employee’s employment by the Company,
Employee agrees that during the period during which Employee is employed by the Company and for a
period of two (2) years thereafter, Employee shall not, directly or indirectly, for Employee’s own
account or for the benefit of any person other than the Company:




(a) alone or as a shareholder, partner, member, manager, director, officer, employee of or
consultant to any other business or organization that engages or is planning to engage, in
any geographic area in which or with respect to which the Company is engaged in business
activities or in which it has customers, engage in the business of providing services and/or
products and/or activity related thereto that is competitive with the business of the
Company as such business is conducted or proposed to be conducted by the Company during the
term of Employee’s employment by the Company or as of the date Employee ceases to be
employed by the Company. Appendix A includes a current list of companies identified
as competitors;




(b) employ, solicit for employment, or advise or recommend to any other person (“person”
meaning a natural person or legal entity) that such other person employ or solicit for
employment, any employee of the Company;




(c) solicit or induce, or in any manner attempt to solicit or induce, any customer of the
Company (i) to cease being, or any prospective customer not to become, a customer of the
Company (ii) to divert any business of such customer from the Company or any of its
affiliates;




(d) otherwise interfere with, disrupt, or attempt to interfere with or disrupt the
relationship, contractual or otherwise, between the Company and any of its customers,
clients, suppliers, consultants or employees; or




(e) deliberately engage in any action that will cause substantial harm to the Company,
including, but not limited to, disparagement of the Company.


Employee regards the restrictions contained in this Section 5 as reasonable in scope, duration, and
geographic territory, and appropriate to provide the Company with limited, legitimate and
reasonable protection against subsequent diminution of the value of the business of the Company
attributable to any actions of Employee contrary to such restrictions. The restrictive covenants
set forth in this Section 5 are subject to Section 8 hereof and Employee hereby waives any and all
right to attack the validity of such covenants on the grounds of the breadth of their geographic
scope or the length of their term.




     6. Certain Remedies. In recognition of the fact that a breach by Employee of any of
the provisions of this Agreement will cause irreparable damage to the Company for which monetary
damages alone will not constitute an adequate remedy, the Company shall be entitled as a matter of
right (without being required to prove damages or furnish any bond or other security) to obtain a
restraining order, an injunction, an order of specific performance, or other equitable or
extraordinary relief from any court of competent jurisdiction restraining any further violation of
such provisions by Employee or requiring Employee to perform its obligations hereunder. Such right
to equitable or extraordinary relief shall not be exclusive but shall be in addition to all other
rights and remedies to which the Company may be entitled at law or in equity, including without
limitation the right to recover monetary damages for the breach of any of the provisions of this
Agreement.



 








 





     7. Term of this Agreement. Except as otherwise expressly provided herein with respect
to certain provisions hereof, this Agreement shall continue in effect and survive for an indefinite
period notwithstanding the termination of Employee’s employment with the Company for any reason.



     8. NO EMPLOYMENT AGREEMENT. THIS AGREEMENT IS NOT, HOWEVER, AND SHALL NOT BE DEEMED TO
BE, AN EMPLOYMENT AGREEMENT THAT OBLIGATES THE COMPANY TO EMPLOY EMPLOYEE, OR OBLIGATES EMPLOYEE TO
CONTINUE IN THE COMPANY’S EMPLOYMENT, FOR ANY TERM WHATSOEVER. UNLESS THERE IS A SEPARATE, WRITTEN
EMPLOYMENT CONTRACT BETWEEN EMPLOYEE AND THE COMPANY, EMPLOYEE IS AN “AT WILL” EMPLOYEE OF THE
COMPANY AND THE CONTINUATION OF EMPLOYEE’S EMPLOYMENT BY THE COMPANY IS SUBJECT TO THE RIGHT OF THE
COMPANY TO TERMINATE SUCH EMPLOYMENT AT ANY TIME, WITHOUT CAUSE.



     9. Severability. If any provision of this Agreement is held to be unenforceable by
reason of being vague or unreasonable as to area, duration or scope of activity or otherwise, this
Agreement will be considered divisible and inoperative as to such provision to the extent that such
provision is unenforceable, with this Agreement to remain in full force and effect in all other
respects. If any provision of this Agreement, although unenforceable as written, may be made
enforceable by limitation thereof, then such provision will be enforceable to the maximum extent
permitted by applicable law and the parties hereto contemplate that the court shall reduce any
extent, duration, geographical scope or other provision hereof and enforce the Agreement in its
reduced form for all purposes in the manner contemplated hereby.



     10. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO. Employee and the Company agree that the exclusive
jurisdiction and exclusive venue for any action brought by any party in connection with this
Agreement shall be the state and federal courts located within the State of Ohio.



     11. No Reliance. Employee represents and warrants to the Company that no promise or
inducement for this Agreement has been made to Employee except as set forth herein; and this
Agreement is executed by Employee freely and voluntarily, and without reliance upon any statement
or representation by the Company, or any of the Company’s attorneys, employees or agents except as
expressly set forth herein.



     12. Assignment. The Company may assign, in whole or in part, its rights and
obligations under this Agreement. The rights of the Company shall enure to the benefit of, and the
obligations of the Company shall be binding upon, the Company’s successors and assigns. Employee
shall not be entitled to assign any of Employee’s rights or obligations under this Agreement.



     13. Notification. Employee agrees that the Company may notify any person or entity
employing Employee or evidencing an intention of employing Employee of the existence and provisions
of this Agreement.



	 	 	 	 	 	 	 	 	 
	AGREED AND ACKNOWLEDGED:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	EMPLOYEE:	 	 	 	THE SCOTTS COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Denise Stump	 	 
	 

Signature

	 	 	 	 	 	 

Signature
	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Denise Stump, EVP
Human Resources	 	 
	


								
	Printed Name	 	 	 	Printed Name	 	 
	 
	 	 	 	 	 	 	 	 
	 
 


	 	 	 	 	 	 	 	 
	Date
	 	 	 	 	 	 	 	 






 









 











EMPLOYEE CONFIDENTIALITY, NONCOMPETITION,

NONSOLICITATION AGREEMENT




APPENDIX A — LIST OF COMPETITORS



The list shown below is a current listing of companies that the Company currently competes with.
This list will be updated on an on-going basis and provided to Employee upon Employee’s request.




United Industries (RayOVac); Spectrum Brands

Bayer, AG

Central Garden & Pet

Tech Pac

Enforcer Products

Green Light Company

Lebanon Chemical Corp

Dow Agro Sciences Company

Uniroyal Chemical Corporation

Gulf Stream

Chisso-Asahi Fertilizer Co

Pursell Technologies

Sun Gro

Fafard, Inc.

TruGreen-Chemlawn, a division of Service Master

Compo GmbH

Kali & Salz

Norsk Hydro ASA

Haifa Chemicals Ltd

Kemira Oyj