As filed with the Securities and Exchange Commission on April 11, 2003
Registration No. 333 - _______
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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THE SCOTTS COMPANY
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(Exact name of registrant as specified in its charter)
Ohio 31-1414921
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14111 Scottslawn Road, Marysville, Ohio 43041
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(Address of Principal Executive Offices) (Zip Code)
The Scotts Company
2003 Stock Option and Incentive Equity Plan
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(Full title of the plan)
Copy to:
David M. Aronowitz, Esq. Elizabeth Turrell Farrar, Esq.
The Scotts Company Vorys, Sater, Seymour and Pease LLP
14111 Scottslawn Road 52 East Gay Street
Marysville, Ohio 43041 P.O. Box 1008
--------------------------------------- Columbus, Ohio 43216-1008
(Name and address of agent for service)
(937) 644-0011
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(Telephone number, including area code, of agent for service)
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Index to Exhibits begins at page 17.
[Continuation of Facing Page]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee
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Common Shares, 1,800,000 $50.50 for 189,000 $96,968,340 $7,845
without par value common shares;
$51.24 for 63,000
common shares
$54.39 for 1,548,000
common shares
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(1) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) and 457 (h)
promulgated under the Securities Act of 1933, as amended, and computed on
the basis of: (a) the respective prices at which options to purchase such
common shares may be exercised in respect of an aggregate of 252,000 of
the common shares to be registered and (b) $54.39 per share for 1,548,000
of the common shares, which is the average of the high and low sales
prices of the common shares as reported on the New York Stock Exchange on
April 9, 2003.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following reports of The Scotts Company (the "Registrant") filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
requirements of Section 13(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated herein by the reference:
(a) The Annual Report on Form 10-K for the fiscal year ended September
30, 2002; and
(b) The Quarterly Report on Form 10-Q for the fiscal quarter ended
December 28, 2002.
The description of the Registrant's common shares contained in the
Registrant's amended Registration Statement on Form 8-A/A (Amendment No. 1)
filed with the Commission on April 7, 2003 (File No. 1-13292), or contained in
any subsequent amendment or report filed for the purpose of updating such
description, is hereby incorporated by reference.
Any definitive proxy statement or information statement filed by the
Registrant pursuant to Section 14 of the Exchange Act and all documents which
may be filed by the Registrant with the Commission pursuant to Sections 13, 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to the
completion of the offering contemplated hereby, shall also be deemed to be
incorporated herein by reference and to be made a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
Item 6. Indemnification of Directors and Officers.
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Section 14.05 of The Scotts Company 2003 Stock Option and Incentive
Equity Plan (the "Plan"), provides for indemnification of the Registrant's Board
of Directors (the "Board") and the Compensation and Organization Committee of
the Board (the "Committee") which administers the plan as follows:
3
14.05 INDEMNIFICATION. Each individual who is or was a member
of the Committee or of the Board will be indemnified and held
harmless by the Company against and from any loss, cost, liability
or expense that may be imposed upon or reasonably incurred by him or
her in connection with or resulting from any claim, action, suit or
proceeding to which he or she may be made a party or in which he or
she may be involved by reason of any action taken or failure to take
action under the Plan as a Committee member and against and from any
and all amounts paid, with the Company's approval, by him or her in
settlement of any matter related to or arising from the Plan as a
Committee member or paid by him or her in satisfaction of any
judgment in any action, suit or proceeding relating to or arising
from the Plan against him or her as a Committee member, but only if
he or she gives the Company an opportunity, at its own expense, to
handle and defend the matter before he or she undertakes to handle
and defend it in his or her own behalf. The right of indemnification
described in this section is not exclusive and is independent of any
other rights of indemnification to which the individual may be
entitled under the Company's organizational documents, by contract,
as a matter of law or otherwise. The foregoing right of
indemnification is not exclusive and is independent of any other
rights of indemnification to which the person may be entitled under
the Company's organizational documents, by contract, as a matter of
law or otherwise.
ARTICLE FIVE of the Code of Regulations of the Registrant
governs the indemnification of officers and directors of the Registrant.
ARTICLE FIVE provides:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, any
action threatened or instituted by or in the right of the
corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer,
employee, member, manager or agent of another corporation (domestic
or foreign, nonprofit or for profit), limited liability company,
partnership, joint venture, trust or other enterprise, against
expenses (including, without limitation, attorneys' fees, filing
fees, court reporters' fees and transcript costs), judgments, fines
and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect
to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. A person claiming indemnification
under this Section 5.01 shall be presumed, in respect of any act or
omission giving rise to such claim for
4
indemnification, to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the corporation, and with respect to any criminal matter, to have
had no reasonable cause to believe his conduct was unlawful, and the
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything
contained in the Regulations or elsewhere to the contrary
notwithstanding:
(A) the corporation shall not indemnify any officer or
director of the corporation who was a party to any completed action
or suit instituted by or in the right of the corporation to procure
a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
trustee, officer, employee, member, manager or agent of another
corporation (domestic or foreign, nonprofit or for profit), limited
liability company, partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in
such action or suit as to which he shall have been adjudged to be
liable for acting with reckless disregard for the best interests of
the corporation or misconduct (other than negligence) in the
performance of his duty to the corporation unless and only to the
extent that the Court of Common Pleas of Union County, Ohio or the
court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in
view of all the circumstances of the case, he is fairly and
reasonably entitled to such indemnity as such Court of Common Pleas
or such other court shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained
in the Regulations or elsewhere to the contrary notwithstanding, to
the extent that an officer or director of the corporation has been
successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in Section 5.01, or in defense of any
claim, issue or matter therein, he shall be promptly indemnified by
the corporation against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript
costs) actually and reasonably incurred by him in connection
therewith.
Section 5.04. Determination Required. Any indemnification
required under Section 5.01 and not precluded under Section 5.02
shall be
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made by the corporation only upon a determination that such
indemnification of the officer or director is proper in the
circumstances because he has met the applicable standard of conduct
set forth in Section 5.01. Such determination may be made only (A)
by a majority vote of a quorum consisting of directors of the
corporation who were not and are not parties to, or threatened with,
any such action, suit or proceeding, or (B) if such a quorum is not
obtainable or if a majority of a quorum of disinterested directors
so directs, in a written opinion by independent legal counsel other
than an attorney, or a firm having associated with it an attorney,
who has been retained by or who has performed services for the
corporation, or any person to be indemnified, within the past five
years, or (C) by the shareholders, or (D) by the Court of Common
Pleas of Union County, Ohio or (if the corporation is a party
thereto) the court in which such action, suit or proceeding was
brought, if any; any such determination may be made by a court under
division (D) of this Section 5.04 at any time [including, without
limitation, any time before, during or after the time when any such
determination may be requested of, be under consideration by or have
been denied or disregarded by the disinterested directors under
division (A) or by independent legal counsel under division (B) or
by the shareholders under division (C) of this Section 5.04]; and no
failure for any reason to make any such determination, and no
decision for any reason to deny any such determination, by the
disinterested directors under division (A) or by independent legal
counsel under division (B) or by shareholders under division (C) of
this Section 5.04 shall be evidence in rebuttal of the presumption
recited in Section 5.01. Any determination made by the disinterested
directors under division (A) or by independent legal counsel under
division (B) of this Section 5.04 to make indemnification in respect
of any claim, issue or matter asserted in an action or suit
threatened or brought by or in the right of the corporation shall be
promptly communicated to the person who threatened or brought such
action or suit, and within ten days after receipt of such
notification such person shall have the right to petition the Court
of Common Pleas of Union County, Ohio or the court in which such
action or suit was brought, if any, to review the reasonableness of
such determination.
Section 5.05. Advances for Expenses. Expenses (including,
without limitation, attorneys' fees, filing fees, court reporters'
fees and transcript costs) incurred in defending any action, suit or
proceeding referred to in Section 5.01 shall be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding to or on behalf of the officer or director promptly as
such expenses are incurred by him, but only if such officer or
director shall first agree, in writing, to repay all amounts so paid
in respect of any claim, issue or other matter asserted in such
action, suit or proceeding in defense of which he shall not have
been successful on the merits or otherwise:
6
(A) if it shall ultimately be determined as provided in
Section 5.04 that he is not entitled to be indemnified by the
corporation as provided under Section 5.01; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the corporation in such action or
suit, he shall have been adjudged to be liable for acting with
reckless disregard for the best interests of the corporation or
misconduct (other than negligence) in the performance of his duty to
the corporation, unless and only to the extent that the Court of
Common Pleas of Union County, Ohio or the court in which such action
or suit was brought shall determine upon application that, despite
such adjudication of liability, and in view of all the
circumstances, he is fairly and reasonably entitled to all or part
of such indemnification.
Section 5.06. Article FIVE Not Exclusive. The indemnification
provided by this Article FIVE shall not be exclusive of, and shall
be in addition to, any other rights to which any person seeking
indemnification may be entitled under the Articles or the
Regulations or any agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be an officer or
director of the corporation and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and
maintain insurance or furnish similar protection, including but not
limited to, trust funds, letters of credit, or self-insurance, on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member,
manager or agent of another corporation (domestic or foreign,
nonprofit or for profit), limited liability company, partnership,
joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the obligation or the power to indemnify him against such
liability under the provisions of this Article FIVE. Insurance may
be purchased from or maintained with a person in which the
corporation has a financial interest.
Section 5.08. Certain Definitions. For purposes of this
Article FIVE, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article FIVE
shall be deemed to have been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in Section
5.01, or in
7
defense of any claim, issue or other matter therein, if such action,
suit or proceeding shall be terminated as to such person, with or
without prejudice, without the entry of a judgment or order against
him, without a conviction of him, without the imposition of a fine
upon him and without his payment or agreement to pay any amount in
settlement thereof (whether or not any such termination is based
upon a judicial or other determination of the lack of merit of the
claims made against him or otherwise results in a vindication of
him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in
the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" within the meaning
of that term as used in this Article FIVE.
Section 5.09. Venue. Any action, suit or proceeding to
determine a claim for indemnification under this Article FIVE may be
maintained by the person claiming such indemnification, or by the
corporation, in the Court of Common Pleas of Union County, Ohio. The
corporation and (by claiming such indemnification) each such person
consent to the exercise of jurisdiction over its or his person by
the Court of Common Pleas of Union County, Ohio in any such action,
suit or proceeding.
Division (E) of Section 1701.13 of the Ohio Revised Code
addresses indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic
or foreign, nonprofit or for profit, a limited liability company, or
a partnership, joint venture, trust, or other enterprise, against
expenses including attorney's fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding, if he acted in
good faith and in a manner he reasonably
8
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
if he had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by judgment,
order, settlement, or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, by
reason of the fact that he is or was a director, officer, employee,
or agent of the corporation or is or was serving at the request of
the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification shall be made in
respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to the
extent that, the court of common pleas or the court in which such
action or suit was brought determines, upon application, that,
despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common pleas
or such other court shall deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised
Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, or in defense of any
claim, issue, or matter therein, he shall be indemnified against
expenses, including attorney's fees, actually and reasonably
incurred by him in connection with the action, suit, or proceeding.
9
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in division (E)(l) or
(2) of this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors of
the indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b)
of this section shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten
days after receipt of such notification, such person shall have the
right to petition the court of common pleas or the court in which
such action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission that
is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the
regulations of a corporation state, by specific reference to this
division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a
director in an action, suit, or proceeding referred to in division
(E)(1) or (2) of this section is pursuant to section 1701.95 of the
Revised Code, expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid
by the corporation as they are incurred, in advance of the final
disposition of the action, suit, or
10
proceeding, upon receipt of an undertaking by or on behalf of the
director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with
deliberate intent to cause injury to the corporation or undertaken
with reckless disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, may be paid by the corporation as
they are incurred, in advance of the final disposition of the
action, suit, or proceeding, as authorized by the directors in the
specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to
repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights
granted to those seeking indemnification under the articles, the
regulations, any agreement, a vote of shareholders or disinterested
directors, or otherwise, both as to action in their official
capacities and as to action in another capacity while holding their
offices or positions, and shall continue as to a person who has
ceased to be a director, trustee, officer, employee, member,
manager, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of or for any
person who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee, member, manager, or agent
of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under this section.
Insurance may be purchased from or maintained with a person in which
the corporation has a financial interest.
11
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit
the payment of expenses as they are incurred, indemnification,
insurance, or other protection that may be provided pursuant to
divisions (E)(5), (6), and (7) of this section. Divisions (E)(1) and
(2) of this section do not create any obligation to repay or return
payments made by the corporation pursuant to division (E)(5), (6),
or (7).
(9) As used in division (E) of this section, references to
"corporation" includes all constituent entities in a consolidation
or merger and the new or surviving corporation, so that any person
who is or was a director, officer, employee, trustee, member,
manager, or agent of such a constituent entity or is or was serving
at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another corporation,
domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other
enterprise, shall stand in the same position under this section with
respect to the new or surviving corporation as he would if he had
served the new or surviving corporation in the same capacity.
The Registrant has purchased insurance coverage under a policy
which insures directors and officers against certain liabilities which might be
incurred by them in such capacity.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
-----------------
See the Index to Exhibits attached hereto and beginning at
page 17.
Item 9. Undertakings.
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A. The undersigned Registrant hereby undertakes:
(l) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the
12
aggregate, represent a fundamental change in the information
set forth in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6
of this Part II, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question
13
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Marysville, State of Ohio, on the 11th day of April,
2003.
THE SCOTTS COMPANY
By: /s/ James Hagedorn
-----------------------------------
James Hagedorn, Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 11, 2003.
Signature Title
--------- -----
Lynn J. Beasley* Director
------------------------------------
Lynn J. Beasley
Arnold W. Donald* Director
------------------------------------
Arnold W. Donald
Joseph P. Flannery* Director
------------------------------------
Joseph P. Flannery
/s/ James Hagedorn Chairman of the Board, President,
------------------------------------ Chief Executive Officer and Director
James Hagedorn
Albert E. Harris* Director
------------------------------------
Albert E. Harris
Katherine Hagedorn Littlefield* Director
------------------------------------
Katherine Hagedorn Littlefield
Karen G. Mills* Director
------------------------------------
Karen G. Mills
*By Power of Attorney
/s/ James Hagedorn
------------------------------------
James Hagedorn
(Attorney-in-Fact)
15
Patrick J. Norton* Director
------------------------------------
Patrick J. Norton
Stephanie M. Shern* Director
------------------------------------
Stephanie M. Shern
John M. Sullivan* Director
------------------------------------
John M. Sullivan
L. Jack Van Fossen* Director
------------------------------------
L. Jack Van Fossen
John Walker, Ph.D.* Director
------------------------------------
John Walker, Ph.D.
/s/ Christopher L. Nagel Executive Vice President of Finance
------------------------------------ and Chief Financial Officer
Christopher L. Nagel (Principal Financial and
Accounting Officer)
*By Power of Attorney
/s/ James Hagedorn
------------------------------------
James Hagedorn
(Attorney-in-Fact)
16
INDEX TO EXHIBITS
Exhibit No. Description Location
----------- ----------- --------
4(a) Restated Articles of Incorporation Incorporated herein by reference
of The Scotts Company, as filed to Exhibit 3(a)(2) of the
with the Ohio Secretary of State Registrant's Quarterly Report on
on January 29, 2001 Form 10-Q for the fiscal quarter
ended December 30, 2000
(File No. 1-13292)
4(b) Code of Regulations of The Scotts Incorporated herein by reference
Company (reflecting amendments to Exhibit 3(b)(2) of the
adopted by the shareholders of The Registrant's Quarterly Report on
Scotts Company through January 18, Form 10-Q for the fiscal quarter
2001) ended December 30, 2000
(File No. 1-13292)
4(c) The Scotts Company 2003 Stock Incorporated herein by reference
Option and Incentive Equity Plan to Exhibit 10(w) of the
Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter
ended December 28, 2002
(File No. 1-13292)
5 Opinion of Vorys, Sater, Seymour Filed herewith
and Pease LLP as to legality
23(a) Consent of PricewaterhouseCoopers Filed herewith
LLP
23(b) Consent of Vorys, Sater, Seymour Filed as part of Exhibit 5
and Pease LLP
24 Powers of Attorney Filed herewith
17