EX-10.1.B






EXHIBIT 10.1(b)




THE SCOTTS COMPANY LLC

EXCESS BENEFIT PLAN FOR NON GRANDFATHERED ASSOCIATES

As of January 1, 2005




Introduction



The O.M. Scott & Sons Company, a Delaware corporation, adopted The O.M. Scott & Sons Company Excess
Benefit Plan, effective October 1, 1993, which was subsequently amended from time to time. The
O.M. Scott & Sons Company was subsequently merged into The Scotts Company and the sponsorship of
The O.M. Scott & Sons Company Excess Benefit Plan was assumed by The Scotts Company. Effective
March 18, 2005, The Scotts Company, through merger with The Scotts Miracle-Gro Company, became
known as The Scotts Company LLC. Concurrent therewith, The O.M. Scott & Sons Company Excess
Benefit Plan was renamed The Scotts Company LLC Excess Benefit Plan. Following the enactment of
Code Section 409A, the Company elected to bifurcate The Scotts Company LLC Excess Benefit Plan,
effective January 1, 2005, into two plans: The Scotts Company LLC Excess Benefit Plan for Non
Grandfathered Associates and The Scotts Company LLC Excess Benefit Plan for Grandfathered
Associates.



Benefit accruals under the Base Plan and under this Plan were frozen December 31, 1997. Continued
service taken into account for vesting purposes under the Base Plan is, however, recognized with
respect to the entitlement to and the calculation of subsidized early retirement benefits in this
Plan. Appendix A lists the Participants in the Plan as of January 1, 2005.



The purpose of the Plan is to provide a select group of management or highly compensated employees
with deferred compensation which is not limited by the restrictions placed upon qualified plan
retirement benefits. The Plan applies to Non Grandfathered Benefits and is subject to the
application of IRC Section 409A.



The provisions of this Plan apply to Participants in The Scotts Company LLC Excess Benefit Plan who
retire, become disabled, die or terminate employment on or after January 1, 2005. Participants who
terminated employment before January 1, 2005, or who were receiving benefits on or before
December 31, 2004, under The Scotts Company Excess Benefit Plan are covered under The Scotts
Company LLC Excess Benefit Plan for Grandfathered Associates.



Section 1. Definitions. The following terms have the meanings assigned by this Section,
which will be equally applicable to the singular and plural forms of such terms.





“Affiliate” means any business organization or legal entity that directly or indirectly
controls, is controlled by, or is under common control with the Company. For purposes of
this definition, control (including the terms controlling, controlled by, and under common
control) includes the possession, direct or indirect, of the power to vote 50% or more of
the voting equity securities, membership interest or other voting interest, or to direct or
cause the direction of the management and policies of such business organization or other
legal entity, whether through the ownership of equity securities, membership interest, by
contract or otherwise.



 









 






“Base Plan” means, effective March 18, 2005, The Scotts Company LLC Associates’ Pension
Plan, as amended effective January 1, 2006; prior to March 18, 2005, the Base Plan means The
O.M. Scott & Sons Company Employees’ Pension Plan, as amended effective January 1, 1998,
January 1, 1999, and March 18, 2005.




“Base Plan Limit” means the limitations on benefits to Participants under the Base Plan
established under Section 415 or Section 401(a)(17) of the Code and any limitations on
compensation taken into account under the Base Plan. Effective January 1, 1999, Code
Section 415 shall be applied as if the limitations of Code Section 415(e), as in effect on
December 31, 1999, continued to apply.




“Beneficiary” means the person or entity entitled to receive a Participant’s benefits under
the Base Plan in the event of the Participant’s death.




“Board” means the Board of Directors of the Corporation.




“Change of Control” means the occurrence of any of the following:




	 	(a)	 	Board Composition. Individuals who, as of July 1, 2008, constitute the
Board (the “Incumbent Board”) cease, within a 12-month period, for any reason (other
than death) to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to such date whose
appointment, election, or nomination for election by the Corporation’s shareholders,
was endorsed by at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the Incumbent
Board; or
	 
	 	(b)	 	Stock Acquisition. (A) One or more acquisitions, by any individual,
entity or group (within the meanings of Treas. Reg. §§ 1.409A-3(i)(5)(v)(B) and
(vi)(D)) (a “Person”) of 30% or more of the then outstanding voting securities of the
Corporation (the “Outstanding Voting Securities”), during any 12-month period ending on
the date of the most recent acquisition by that Person; or (B) an acquisition that
results in ownership by a Person of either (y) shares representing more than
50% of the total fair market value of the Corporation’s then outstanding stock (the
“Outstanding Stock”) or (z) shares representing more than 50% of the then
Outstanding Voting Securities; provided, however, that for purposes of
this paragraph (b), the following acquisitions of shares of the Corporation shall not
be taken into account in the determination of whether a Change of Control has occurred:
(1) any acquisition directly from the Corporation; (2) any cash acquisition by the
Corporation or an Affiliate; (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or an Affiliate; (4) an
acquisition by a Person that prior to the acquisition had already acquired more shares
than necessary to satisfy the applicable 30% or 50% threshold; or (5) any acquisition
by the Hagedorn Partnership, L.P. or any party related to the Hagedorn Partnership,
L.P., as determined by the Committee; or




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	 	(c)	 	Business Combination. Consummation of a reorganization, merger or
consolidation of the Corporation (a “Business Combination”), in each case, that results
in either a change in ownership contemplated in subparagraph (B) of paragraph (b) above
or a change in the Incumbent Board contemplated by paragraph (a) above; or
	 
	 	(d)	 	Sale or Disposition of Assets. One or more Persons acquires (or has
acquired during the 12-month period ending on the date of the most recent acquisition
by such Persons) assets from the Corporation that have a total gross fair market value
equal to more than 40% of the total gross fair market value of all of the assets of the
Corporation (without regard to liabilities of the Corporation or associated with such
assets) immediately before such acquisition or acquisitions; provided that such sale or
disposition is not to:






	 	(i)	 	a shareholder of the Corporation (immediately before the asset
transfer) in exchange for or with respect to the Corporation’s Outstanding
Stock;
	 
	 	(ii)	 	an entity, 50% or more of the total value or voting power of
which is owned, directly or indirectly, by the Corporation;
	 
	 	(iii)	 	a Person that owns, directly or indirectly, 50% or more of the
total value or voting power of all the outstanding stock of the Corporation; or
	 
	 	(iv)	 	an entity, at least 50% of the total value or voting power of
which is owned, directly or indirectly, by a Person described in paragraph
(d)(iii) above.






	 	 	 	Except as otherwise specifically provided in paragraph (d)(i) above, a Person’s
status is determined immediately after the transfer.






“Code” or “IRC” means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.




“Committee” or “Administrative Committee” means the Benefits Administrative Committee under
the Base Plan.




“Company” means The O.M. Scott & Sons Company, a Delaware corporation from the Effective
Date through March 18, 2005, and thereafter means The Scotts Company LLC, an Ohio limited
liability company.




“Corporation” means The Scotts Miracle-Gro Company.




“Disabled” or “Disability” means, effective January 1, 2005, that the Participant is, by
reason of any medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of at least three months under an
accident and health plan covering employees of the Company or its Affiliates.



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“Effective Date” means January 1, 2005, unless otherwise specified herein. The Plan’s
predecessor was originally effective on October 1, 1993.




“Employer” means the Company and each Affiliate of the Company that is a participating
employer under the Base Plan.




“Non Grandfathered Benefits” means the benefit described under Plan Section 3.1.




“Participant” means, effective January 1, 2005, those select group of management or highly
compensated employees named in Appendix A, attached hereto. No other individual shall
become a Participant in the Plan. Each such Participant shall be deemed to be a Specified
Employee as defined in Code Section 409A(a)(2)(B)(i) and Treasury Regulations Section
1.409A-l(i).




“Plan” means The O.M. Scott & Sons Company Excess Benefit Plan from October 1, 1993, through
December 31, 2004; and, effective January 1, 2005, Plan means The Scotts Company LLC Excess
Benefit Plan For Non Grandfathered Associates, as reflected in this document as amended from
time to time.




“Separation from Service” means a Participant’s termination of employment with the Company
and its Affiliates for any reason, including death. A termination of employment will occur
when the Participant and the Company and its Affiliates reasonably anticipate that (i) no
further services will be performed by the Participant after a certain date, or (ii) the
level of bona fide services which the Participant is expected to perform for the Company and
its 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 the Participant during the immediately preceding thirty-six (36) month period
(or the Participant’s entire period of service if less than thirty-six (36) months).
Further, for purposes of this Plan, a termination of employment is deemed to occur on the
first date following six months after a Participant is first on a military leave, sick leave
or other bona fide leave of absence. Such six month period may be extended if the
Participant retains a right to reemployment with the Company or its Affiliates under
applicable statute or contract. Notwithstanding the foregoing, where a leave of absence is
due to a medically determinable physical or mental impairment that can be expected to result
in death or can be expected to last for a continuous period of not less than six months and
where such impairment causes the Participant to be unable to perform the duties of his
position of employment or any substantially similar position of employment with the Company,
a twenty-nine (29) month period of absence may be substituted for such six month period.
Whether there has been a termination of employment will be determined by the Benefits
Administrative Committee taking into account all of the facts and circumstances at the time
of the termination of employment in accordance with the guidelines described in IRC
Regulation Section 1.409-1(h).


Section 2. Participation. Effective January 1, 2005, the individuals named in Appendix A,
are the only Participants in this Plan. No other individual shall become a Participant in the
Plan.




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Section 3. Non Grandfathered Benefits.





	3.1.	 	Non Grandfathered Benefits. The Employer will pay to a Participant or Beneficiary
benefits under this Plan equal to the amount that would have been payable to the Participant
or Beneficiary under the Base Plan without regard to the Base Plan Limit, less the amount paid
under the Base Plan (the “Non Grandfathered Benefit”). The Non Grandfathered Benefit under
this Plan shall be based on the actuarial methods, rates and assumptions used in determining
the Base Plan benefit.
	 
	3.2.	 	Right of Offset. If the Committee determines that a person entitled to payment under
this Plan or the Participant of whom such person is the Beneficiary is, for any reason,
indebted to the Company or its Affiliate, the Committee and the Company may offset such
indebtedness, including any interest accruing thereon, against payments otherwise due under
the Plan provided that:






	 	(A)	 	such debt is incurred in the ordinary course of the service relationship
between the Participant and the Company;
	 
	 	(B)	 	in any taxable year of the Company the entire amount of reduction does not
exceed $5,000; and
	 
	 	(C)	 	the reduction is made at the same time and in the same amount as the debt
otherwise would have been due and collected from the Participant.






	 	 	An election by the Company not to offset such indebtedness against the Plan payment will not
constitute a waiver of the Company’s claim for such indebtedness or obligation.
	 
	3.3.	 	Forfeiture. If a Participant at any time (a) is convicted of a felony or a
misdemeanor involving dishonesty or fraud on the part of such Participant, or commits any act
of dishonesty or breach of good faith with respect to the Employer, (b) conducts, or becomes
associated in any capacity with, a business which competes with the Employer, or (c) discloses
to any person not associated with the Employer other than as required for the performance of
the Participant’s job with the Employer any confidential information of the Employer, all
benefits of such Participant under the Plan will be forfeited. Notwithstanding the foregoing,
a Participant will not forfeit benefits solely because the Participant (1) owns a
non-controlling block of publicly traded shares of stock of a corporation that competes with
the Employer, or (2) (a) acts as a consultant for, (b) has an investment in, or (c) is a board
member or officer of a business, where after the Participant notifies the Company in writing
in advance of his potential involvement, the Company consents to such association.
	 
	3.4.	 	Time and Form of Payment.






3.4.1. Time of Payment. A Participant’s Non Grandfathered Benefit under this Plan
shall be paid upon the earlier of (A) the later of a Participant’s Separation from Service
or attainment of age fifty-five (55) (or, in the case of a Beneficiary, the date the
Participant would have attained age fifty-five (55)) or (B) Disability. Payments shall
generally commence within 90 days of the applicable distribution event. Notwithstanding any
other provision of the Plan, if the distribution event giving rise to payment is due to a



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Participant’s Separation from Service, payment shall not commence before the date that is
six months after the Separation from Service.




For payments that are subject to the six month delay in payment, the first payment following
the six month delay shall include an amount, if applicable, representing the six delayed
monthly payments plus interest calculated on an annual basis using the 26 week United States
Treasury Bill coupon equivalent rate in effect on the first business day of January of the
calendar year in which the Separation from Service occurs.




3.4.2. Form of Payment. The Non Grandfathered Benefit shall be paid in the form of
a life annuity for a single Participant or a 50% joint and survivor annuity for a married
Participant where the Participant’s spouse is the joint annuitant. However, the Non
Grandfathered Benefit may be paid in any actuarially equivalent form of a life annuity with
the same scheduled commencement date available under Base Plan Sections 4.04 or 4.05, as
applicable, without regard to any spousal consent requirement.




Notwithstanding the preceding, the actuarial equivalent value of any undistributed Non
Grandfathered Benefit to which a Participant is entitled under the Plan shall be paid to the
Participant in a lump sum as soon as practicable after a Change of Control, but in all
events within thirty (30) days of the Change of Control. For purposes of this Section
3.4.2., an affected Participant is any service provider or former service provider as to
which there is a Change of Control relating to: (i) the corporation for which such
Participant is providing services at the time of a Change of Control; (ii) a corporation
which is liable for such payments to the extent of the services provided to such corporation
or corporations by the Participant or there is a bona fide business purpose for such
corporation or corporations to be liable for such payments other than avoidance of Federal
income tax; or (iii) a corporation which is a majority shareholder of a corporation
identified in Subsection 3.4.2.(i) or (ii) or any corporation in a chain of corporations in
which each corporation is a majority shareholder of another corporation in the chain, ending
in a corporation identified in Subsection 3.4.2.(i) or (ii).




3.4.3. Small Benefit Cash Out. On or after January 1, 2005, and notwithstanding any
contrary Plan provision, if the actuarial lump sum of a Participant’s Non Grandfathered
Benefit (and all other nonqualified deferred compensation plans required to be combined with
this Plan under Treasury Regulations Section 1.409-A(1)(c)(2)) is not greater than the
applicable dollar amount under Code Section 402(g)(1)(B) at the time of distribution, then
such benefit shall be paid in the form of a cash lump sum.




	3.5.	 	Reserve. The Company may, but shall not be required to, establish a reserve of
assets to provide funds for payments under the Plan. Any such reserve will be on such terms
and conditions as are intended to prevent the establishment of the reserve from creating
taxable income to the Participants in the Plan. Participants and Beneficiaries will have no
interest in such reserve, and the interests of Participants and Beneficiaries under the Plan
will be solely those of general creditors of the Company. Notwithstanding any contrary
provision contained herein, this Plan shall be treated as nonqualified and unfunded for tax
purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended.




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	3.6.	 	Reports. The Committee will provide a report of the accrued benefit under this Plan
to any Participant on written request. No Participant may request any such report more often
than once in any calendar year.
	 
	3.7.	 	Withholding. The Employer shall withhold from payments due under the Plan all
applicable income and employment taxes.




Section 4. Administration and Claims.





	4.1.	 	Membership; Procedures; Authority and Responsibilities. The Administrative Committee
will have, in addition to the powers and responsibilities specifically provided for in this
Plan, all of the powers and responsibilities provided under the Base Plan that would also
apply to the administration and operation of this Plan. Any determination under the Base Plan
that is relevant to the administration of this Plan shall also be effective under this Plan.
	 
	4.2.	 	Claims and Standard of Review. Participants and Beneficiaries must make any claims
for benefits under the Plan under the rules and procedures then in effect under the Base Plan.
Notwithstanding any contrary provision in the Base Plan, all decisions regarding eligibility,
benefits, vesting, administration and any interpretation of Plan terms, including the
resolution of inconsistent provisions or insertion of omitted provisions, shall be those of
the Administrative Committee and such Committee’s acts and decisions shall not be overturned
and shall be binding on all individuals and parties unless such acts and decisions are ruled
by a court of competent jurisdiction to be arbitrary and capricious.
	 
	4.3.	 	Incorporation by Reference. The provisions of the Base Plan are incorporated by
reference in this Plan only to the extent so stated.
	 
	4.4.	 	Suspension of Payments in Event of Dispute. If the Committee is in doubt concerning
the right of any person to any payment claimed under this Plan, the Committee may direct the
Company to suspend the payment until satisfied as to the right of such person to the payment.
The Committee or the Company may file or cause to be filed in any court of competent
jurisdiction an appropriate legal action or process in such form as the Committee or the
Company deems appropriate, including an interpleader action or an action for declaratory
judgment, for a legal determination of the entitlement of any person to any payment claimed to
be due under the Plan. The Company and the Committee will comply with any final order of the
court in any such suit, subject to appellate review, and the Participant and Beneficiaries
will be similarly bound thereby.





Section 5. Miscellaneous.





	5.1.	 	Amendment and Termination. The Company or its delegate may at any time and from time
to time alter, amend, or suspend the terms of the Plan without the consent of the Participant
or Beneficiary provided that no such alteration, amendment, or suspension either accelerates
the payment of the Non Grandfathered Benefit or delays such payment resulting in a subsequent
deferral of compensation. The Company may also terminate and liquidate the Plan without the
consent of the Participant or Beneficiary. Any such liquidation and termination of the Plan
shall be made in accordance with the termination










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	 	 	and liquidation requirements of and under the circumstances described under Treasury
Regulations 1.409A-3(j)(4)(ix). Any amendment or termination of the Plan will become
effective as to a Participant on the date established by the Company. If the Company
curtails or terminates this Plan, or suspends permanently the making of additional credits,
the benefits due Participants will be the lesser of the amounts payable based on the terms
of the Base Plan in effect and the Participant’s compensation and service history at the
time of the curtailment, termination or suspension or such amount determined at the time
benefits are payable, and the Company will continue to be responsible for making payments
attributable to such rights.
	 
	5.2.	 	No Contract of Employment. The establishment of the Plan, any modification thereof
and/or the making of any payments under the Plan will not give any Participant or other person
the right to remain in the service of any Employer, and all Participants and other persons
will remain subject to discharge to the same extent as if the Plan had never been adopted.
	 
	5.3.	 	Tax Effects. None of the Employer, the Committee, or any firm, person, or
corporation represents or guarantees that any particular federal, state or local tax
consequences will occur as a result of any Participant’s participation in this Plan. Each
Participant should consult with such Participant’s own advisors regarding the tax consequences
of participation in this Plan.
	 
	5.4.	 	Nonalienation of Benefits. Except to the extent required by law or as provided in
Section 3.2., none of the payments, benefits, or rights of any Participant or Beneficiary will
be subject to any claim of any creditor of such Participant or Beneficiary, and, to the
fullest extent permitted by law, all such payments, benefits, and rights will be free from
attachment, garnishment, or any other legal or equitable process available to any creditor of
such Participant or Beneficiary. No Participant or Beneficiary will have the right to
alienate, anticipate, commute, pledge, encumber, or assign any of the benefits or payments
that the Participant or Beneficiary may expect to receive, contingently or otherwise, under
the Plan, except the right of a Participant to designate a Beneficiary.
	 
	5.5.	 	Assumption. The Company will require any successor or assign of the Employer to
assume its obligations under this Plan.
	 
	5.6.	 	No Trust Created. No term or provision of the Plan or any instrument under the Plan,
including but not limited to the establishment of any reserve, shall be deemed to create a
trust or fiduciary relationship of any kind. Any reserves maintained in conjunction with the
Plan will continue to be part of the assets of the Employer. To the extent that anyone
acquires a right to receive payment from the Employer of any amount payable under the Plan,
such right will be no greater than the right of an unsecured general creditor of the Employer.
	 
	5.7.	 	Limitation of Liability. The liability of the Employer under this Plan is limited to
the obligations expressly set forth in the Plan. No term or provision of this Plan may be
construed to impose any further or additional duties, obligations or costs on the Employer or
the Committee not expressly set forth in the Plan.




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	5.8.	 	Payments to Minors, etc. The Employer may pay any amount payable to or for the
benefit of a minor, an incompetent person or any other person incapable of receipting
therefore to such person’s guardian, to any trustee or custodian holding assets for the
benefit of such person, or to any person providing, or reasonably appearing to provide, for
the care of such person, and such payment will fully discharge the Committee and the Employer
with respect thereto.
	 
	5.9.	 	Notices. Notices under the Plan will be sufficiently made if sent by first class,
registered or certified mail addressed (a) to a Participant or Beneficiary at such person’s
address as set forth in the books and records of the Employer, or (b) to the Employer or the
Committee at the principal office of the Company. Participants may change their addresses by
notice in the manner above.
	 
	5.10.	 	Captions. The headings and captions appearing herein are inserted only as a matter
of convenience. They do not define, limit, construe or describe the scope or intent of the
provisions of the Plan.
	 
	5.11.	 	Entire Agreement; Successors. This Plan reflects the entire agreement or contract
between the Employer and the Participants and Beneficiaries regarding the Plan. No
Participant or Beneficiary may rely on any oral statement regarding the Plan. This Plan will
be binding on the Employer, Participants and Beneficiaries and their respective heirs,
administrators, trustees, successors and assigns.
	 
	5.12.	 	Partial Invalidity. If any term or provision hereof or the application thereof to
any person or circumstance is invalid or unenforceable, the remainder of this Plan, or the
application of such term or provision to persons or circumstances other than those as to which
it is invalid, will both be unaffected and each term or provision hereof will be valid and be
enforced to the fullest extent permitted by law.
	 
	5.13.	 	Governing Law. The laws of the State of Ohio applicable to agreements to be
performed in the State of Ohio will apply in determining the construction and validity of the
Plan and all rights and obligations under the Plan to the extent not preempted under federal
law.
	 
	5.14.	 	Third Parties. No person may construe anything expressed or implied in this Plan
construed to give any person other than Participants and Beneficiaries any rights or remedies
under this Plan.
	 
	5.15.	 	Saturdays, Sundays and Holidays. Where this Plan authorizes or requires a payment
or performance on a Saturday, Sunday or public or banking holiday, such payment or performance
may be made on the next succeeding business day.










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IN WITNESS WHEREOF, the Company, through its designated officer, has caused this document to be
executed this 20th day of November, 2008 and to be effective as of January 1, 2005, except
as otherwise specifically provided herein or required by law.




	 	 	 	 	 	 	 
	 	 	THE SCOTTS COMPANY LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Denise S. Stump	 	 
	 

	 	Name:
	 	 

Denise S. Stump
	 	 
	 

	 	Its:
	 	Executive Vice President, Global Human	 	 
	 

	 	 	 	Resources	 	 






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Appendix A

THE SCOTTS COMPANY LLC

EXCESS BENEFIT PLAN FOR NON GRANDFATHERED ASSOCIATES

As of January 1, 2005




Plan Participants as of January 1, 2005




James Hagedorn

Eric Keim

Mark Schwartz

Todd White

Kevin McDonald

Michael Kelty

Blain McKinney


Joseph Petite





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