EX-10.1



 




EXHIBIT 10.1




July 25, 2005




Dr. Michael P. Kelty

Executive Vice President & Vice Chairman

The Scotts Company LLC

14111 Scottslawn Road.

Marysville, Ohio 43041




Dear Michael:



This letter sets forth our agreement regarding a consulting engagement between you and The Scotts
Company LLC (“Scotts”).




I. Scope of Services



You agree to make yourself reasonably available to consult with and provide advice to Scotts and
its affiliates at such places and times as Scotts may reasonably request with respect to a variety
of matters to be determined by us, including but not limited to: assisting with the hiring of a new
Senior Vice President; managing the key elements of the Biotech program; working with North America
management to develop an innovation plan; transition Environmental Stewardship to the newly hired
SVP; and assist in lobbying efforts at the CEO’s request. You agree to provide the consulting
services contemplated herein in a manner acceptable to Scotts in the exercise of its reasonable
discretion.



In providing consulting services to Scotts, you will be an independent contractor and will not be
an employee, servant, agent, partner, or joint venturer of Scotts or of any of Scotts’ affiliates,
or of any of its or their respective officers, directors or employees. You will not participate in
or receive benefits under any of Scotts’ employee fringe benefit programs or receive any other
fringe benefits from Scotts, including, without limitation, health, disability, life insurance,
retirement, pension and profit sharing benefits, on account of the consulting services you provide
to Scotts.




II. Length of Consulting Agreement



The consulting arrangement will commence November 1st, 2005 and end September
30th, 2006 and then be renewed pursuant to the paragraph below.




 









 






	Dr. Michael P. Kelty 	 	Page 2 of 3






 






This engagement letter will automatically renew on a fiscal year basis at Scotts’ sole discretion.




III. Authority



You will have no authority at any time while providing the consulting services contemplated herein
to assume or create any obligation or liability, express or implied, on Scotts’ behalf or in
Scotts’ name or to bind Scotts in any manner whatsoever.




IV. Consulting Fees and Expenses



Scotts shall pay you a consulting fee of $350 per hour for the time your providing consulting
services as requested by Scotts hereunder. Scotts also will guarantee you a minimum payment of
$200,000 for the length of the consulting agreement as defined in Section II of this engagement
letter.



Scotts also will pay or reimburse you for all reasonable expenses incurred by you in connection
with providing consulting services to Scotts as contemplated herein, including, without limitation,
all reasonable (A) telephone and fax expenses, and (B) travel expenses, including, without
limitation, transportation, food and lodging, incurred in connection with attending Scotts approved
meetings. You must incur and account for expenses in accordance with the policies and procedures
established by Scotts as a precondition to Scotts’ obligation to pay or reimburse you for such
expenses pursuant to the terms of the preceding sentence.



You agree to provide, at your own expense, all equipment necessary to provide the consulting
services contemplated herein and to be responsible for your own overhead costs and expenses except
for those expenses that Scotts has expressly agreed to pay pursuant to the terms of the preceding
paragraph.




V. Termination



Either party may terminate the consulting services at any time and for any reason, or for no reason
by giving the other written notice of termination. Your consulting relationship with Scotts shall
automatically terminate upon your death or disability.



Should you die or become totally disabled following the Termination Date but before the payments
due you under Section IV above have been made to you, any remaining payments shall be made to you
(or your designated beneficiary, as applicable) within 90 days of your death or total disability.



The termination of your consulting relationship with Scotts shall not affect Scotts’ obligation to
pay you for the amounts you have earned, and for reimbursable expenses




 









 






	Dr. Michael P. Kelty 	 	Page 3 of 3






 






you have incurred, pursuant to the terms of this letter prior to the date of such termination.




VI. Confidential Information



In providing the consulting services contemplated herein, you will be privy to Confidential
Information about Scotts and its affiliates. Maintaining the confidential nature of this
information is very important to Scotts. As used in this letter, “Confidential Information” is any
information about Scotts, or its affiliates, to which you gain access in connection with your
provision of consulting services to Scotts. Confidential Information does not include information
you can show (A) was already in your possession prior to the time you received such information as
a consultant to Scotts, or (B) is publicly available or otherwise in the public domain by means
other than your violation of the terms of this letter.



You agree to not at any time hereafter, without the prior written consent of Scotts, disclose,
directly or indirectly, any Confidential Information or use any Confidential Information for any
purpose other than providing consulting services to Scotts as contemplated herein.



You agree to promptly return to Scotts, upon Scotts’ request, all electronic or tangible documents
that contain any Confidential Information and to retain no copies for yourself.




VII. Other



You understand and agree that this letter does not obligate Scotts to utilize your consulting
services, but it is intended to set forth the terms pursuant to which Scotts may utilize your
consulting services in its discretion.



You are not permitted to assign, sell or otherwise transfer any of your rights or obligations
hereunder.




	 	 	 	 	 	 
	 	 	THE SCOTTS COMPANY


	 

	 	By:	 	/s/ Denise Stump 
	 

	 	 	 	 
	 

	 	 	 	Denise Stump

Executive Vice President,

Human Resources Global
	ACKNOWLEDGED AND AGREED:


	 	 	 	 
	 	 	 	 
	/s/ Michael P. Kelty, Ph.D.
	 

	 	 	 	 
	Dr. Michael P. Kelty