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(614) 464-5607
September 30, 1994
VIA ELECTRONIC TRANSMISSION
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Scotts Company
Commission File No.: 0-19768
CIK No.: 0000825542
Dear Commissioners:
On behalf of The Scotts Company, an Ohio corporation
("Scotts Ohio"), I have enclosed herewith for filing the Current
Report on Form 8-K (the "Form 8-K"). The Form 8-K serves to
report the merger on September 20, 1994, of The Scotts Company, a
Delaware corporation ("Scotts Delaware"), having a class of
securities registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with and
into Scotts Ohio and the conversion of each share of Class A
Common Stock, $.01 par value, of Scotts Delaware into one common
share, without par value (the "Common Shares"), of Scotts Ohio.
By virtue of the merger, Scotts Ohio has succeeded to all of the
business, properties, assets and liabilities of Scotts Delaware
and, pursuant to Rule 12g-3(a) promulgated under the Exchange
Act, the Common Shares of Scotts Ohio are deemed to be registered
pursuant to Section 12 of the Exchange Act.
The Form 8-K also reports the merger on September 30,
1994 of The O. M. Scott & Sons Company, a Delaware corporation
which is a wholly-owned subsidiary of Scotts Ohio ("OMS"), with
and into Scotts Ohio (the "OMS Merger"). By virtue of the OMS
Merger, Scotts Ohio has succeeded to all of the business,
properties, assets and liabilities of OMS and became an operating
company. The outstanding shares of OMS were extinguished in the
OMS Merger.
If you have any questions concerning the enclosed
document, please do not hesitate to call me.
Very truly yours,
Elizabeth Turrell Farrar
ETF:i
Enclosures
cc: Craig D. Walley, Esq. (The Scotts Company)
Christiane Ward Schmenk, Esq. (The Scotts Company)
G. Robert Lucas II, Esq.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 20, 1994
THE SCOTTS COMPANY
(Exact name of registrant as specified in its charter)
Ohio 0-19768 31-199481
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
14111 Scottslawn Road, Marysville, Ohio 43041
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (513) 644-0011
Not Applicable
(Former name or former address, if changed since last report.)
Index to Exhibits located at Page 4.
Page 1 of 20 Pages.
Item 1. Changes in Control of Registrant.
Not Applicable.
Item 2. Acquisition or Disposition of Assets.
Not Applicable.
Item 3. Bankruptcy or Receivership.
Not Applicable.
Item 4. Changes in Registrant's Certifying Accountant.
Not Applicable.
Item 5. Other Events.
On September 20, 1994, The Scotts Company, a
Delaware corporation ("Scotts Delaware") having a class of
securities registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), was merged
(the "Merger") with and into The Scotts Company, an Ohio
corporation ("Registrant"), and each share of Class A Common Stock,
par value $.01 per share, of Scotts Delaware was converted into one
common share, without par value (the "Common Shares"), of
Registrant. By virtue of the Merger, Registrant has succeeded to
all the business, properties, assets and liabilities of Scotts
Delaware and, pursuant to Rule 12g-3(a) promulgated under the
Exchange Act, the Common Shares of Registrant are deemed to be
registered pursuant to Section 12 of the Exchange Act.
On September 30, 1994, The O.M. Scott & Sons
Company, a Delaware corporation which was a wholly-owned subsidiary
of Scotts Ohio ("OMS"), merged into Scotts Ohio (the "OMS Merger").
By virtue of the OMS Merger, Scotts Ohio has succeeded to all the
business, properties, assets and liabilities of OMS and became an
operating company. The outstanding shares of OMS were extinguished
in the OMS Merger.
Item 6. Resignations of Registrant's Directors.
Not Applicable.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not Applicable.
(b) Pro forma financial information:
Not Applicable.
(c) Exhibits:
See Index to Exhibits at page 4.
Item 8. Change in Fiscal Year.
Not Applicable.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
THE SCOTTS COMPANY
Date: September 30, 1994 By:/s/ Tadd C. Seitz
Tadd C. Seitz, Chairman and
Chief Executive Officer
Index to Exhibits
Exhibit
No. Description Page No.
2(a) Agreement of Merger, dated as of
August 16, 1994, by and between The
Scotts Company, a Delaware
corporation, and The Scotts
Company, an Ohio corporation
Pages 5 through 14.
2(b) Agreement of Merger, dated as of
September 21, 1994, by and between
The O.M. Scott & Sons Company, a
Delaware corporation, and The
Scotts Company, an Ohio corporation Pages 15 through 20.
Exhibit 2(a)
Agreement of Merger, dated as of
August 16, 1994, by and between The
Scotts Company, a Delaware corpora-
tion, and The Scotts Company, an
Ohio corporation
AGREEMENT OF MERGER
AGREEMENT OF MERGER ("Merger Agreement"), dated as
of August 16, 1994, by and between THE SCOTTS COMPANY, a Delaware
corporation ("SCOTTS DELAWARE"), and THE SCOTTS COMPANY, an Ohio
corporation ("SCOTTS OHIO"). SCOTTS DELAWARE and SCOTTS OHIO are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
The authorized capital stock of SCOTTS OHIO
consists of 35,000,000 Common Shares, each without par value, 100
of which are issued and outstanding and owned by SCOTTS DELAWARE.
SCOTTS DELAWARE, as the sole shareholder of SCOTTS
OHIO, desires to effect a merger of SCOTTS DELAWARE with and into
SCOTTS OHIO pursuant to the provisions of the General Corporation
Law of the State of Delaware (the "DGCL") and the General
Corporation Law of the State of Ohio (the "OGCL").
The respective Boards of Directors of SCOTTS
DELAWARE and SCOTTS OHIO have determined that it is advisable and
in the best interest of each of such corporations that SCOTTS
DELAWARE merge with and into SCOTTS OHIO upon the terms and
subject to the conditions herein provided.
The Board of Directors of SCOTTS OHIO has, by
resolution duly adopted, approved this Merger Agreement and
directed that it be executed by the undersigned officers.
The Board of Directors of SCOTTS DELAWARE has, by
resolution duly adopted, approved this Merger Agreement and
directed that it be executed by the undersigned officers and that
it be submitted to a vote of the stockholders of SCOTTS DELAWARE.
In consideration of the mutual agreements herein
contained, the parties agree that SCOTTS DELAWARE shall be merged
with and into SCOTTS OHIO and that the terms and conditions of the
merger, the mode of carrying the merger into effect, the manner of
converting the shares of the Constituent Corporations and certain
other provisions relating thereto shall be as hereinafter set
forth.
ARTICLE I
THE MERGER
Section 1.01. Surviving Corporation. Subject to
the terms and provisions of this Merger Agreement, and in
accordance with the DGCL and the OGCL, at the Effective Time (as
defined in Section 1.07 hereof), SCOTTS DELAWARE shall be merged
with and into SCOTTS OHIO (the "Merger"). SCOTTS OHIO shall be
the surviving corporation (hereinafter sometimes called the
"Surviving Corporation") of the Merger and shall continue its
corporate existence under the laws of the State of Ohio. At the
Effective Time, the separate corporate existence of SCOTTS
DELAWARE shall cease.
Section 1.02. Effect of the Merger. At the
Effective Time, the Merger shall have the effects provided for
herein and in Section 1701.82 of the OGCL and Section 259 of the
DGCL.
Section 1.03. Articles of Incorporation. As of
the Effective Time, the Articles of Incorporation of SCOTTS OHIO,
as in effect immediately prior to the Effective Time, shall be
amended and replaced in their entirety by the Articles of
Incorporation attached hereto as Annex I, which Articles of
Incorporation shall become, at the Effective Time, the Articles of
Incorporation of the Surviving Corporation until thereafter duly
amended in accordance with the provisions thereof and applicable
law.
Section 1.04. Regulations. As of the Effective
Time, the Regulations of SCOTTS OHIO, as in effect immediately
prior to the Effective Time, shall be the Regulations of the
Surviving Corporation until thereafter duly amended in accordance
with the provisions thereof, the Articles of Incorporation of the
Surviving Corporation and applicable law.
Section 1.05. Directors of the Surviving
Corporation. At and after the Effective Time and until changed in
the manner provided in the Regulations or the Articles of
Incorporation of the Surviving Corporation or as otherwise
provided by law, the number of directors of the Surviving
Corporation shall be the number of directors of SCOTTS OHIO
immediately prior to the Effective Time. At the Effective Time,
each person who is a director of SCOTTS OHIO immediately prior to
the Effective Time shall become a director of the Surviving
Corporation and each such person shall serve as a director of the
Surviving Corporation for the balance of the term for which such
person was elected a director of SCOTTS OHIO and until his
successor is duly elected and qualified in the manner provided in
the Regulations or the Articles of Incorporation of the Surviving
Corporation or as otherwise provided by law or until his earlier
death, resignation or removal in the manner provided in the
Regulations or the Articles of Incorporation of the Surviving
Corporation or as otherwise provided by law.
Section 1.06. Officers of the Surviving
Corporation. At the Effective Time, each person who is an officer
of SCOTTS OHIO immediately prior to the Effective Time shall
become an officer of the Surviving Corporation with each such
person to hold the same office in the Surviving Corporation, in
accordance with the Regulations thereof, as he or she held in
SCOTTS OHIO immediately prior to the Effective Time.
Section 1.07. Effective Time. The Merger shall
become effective in accordance with the provisions of
Section 1701.81 of the OGCL and Sections 252 and 103 of the DGCL,
upon the later to occur of (a) completion of the filing of a
certificate of merger with the Secretary of State of the State of
Ohio, and (b) completion of the filing of a certificate of merger
with the Secretary of State of the State of Delaware. The date
and time when the Merger shall become effective is herein referred
to as the "Effective Time."
Section 1.08. Cumulative Voting. At and after the
Effective Time, no holder of shares of SCOTTS OHIO shall be
entitled to vote cumulatively in the election of directors.
Section 1.09. Additional Actions. If, at any time
after the Effective Time, the Surviving Corporation shall consider
or be advised that any further deeds, assignments or assurances in
law or any other acts are necessary or desirable (a) to vest,
perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of
SCOTTS DELAWARE acquired or to be acquired by reason of, or as a
result of, the Merger, or (b) otherwise to carry out the purposes
of this Merger Agreement, SCOTTS DELAWARE and its proper officers
and directors shall be deemed to have granted hereby to the
Surviving Corporation an irrevocable power of attorney to execute
and deliver all such proper deeds, assignments and assurances in
law and to do all acts necessary or proper to vest, perfect or
confirm title to and the possession of such property or rights in
the Surviving Corporation and otherwise to carry out the purposes
of this Merger Agreement; and the proper officers and directors of
the Surviving Corporation are hereby fully authorized in the name
of SCOTTS DELAWARE or otherwise to take any and all such action.
ARTICLE II
MANNER, BASIS AND EFFECT OF CONVERTING SHARES
Section 2.01. Conversion of Shares. At the
Effective Time:
(a) Each share of Class A Common
Stock, par value $0.01 per share (the "Scotts Delaware Shares"),
of SCOTTS DELAWARE issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into one
fully paid and nonassessable Common Share, without par value (the
"Scotts Ohio Common Shares"), of SCOTTS OHIO.
(b) Each Scotts Delaware Share held
in the treasury of SCOTTS DELAWARE immediately prior to the
Effective Time shall, by virtue of the Merger and without any
action on the part of SCOTTS DELAWARE, be converted into one fully
paid and nonassessable Scotts Ohio Common Share and shall be held
in the treasury of the Surviving Corporation; and
(c) Each Scotts Ohio Common Share,
issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part
of the holder thereof, be cancelled and retired and shall cease to
exist, and shall not be converted into shares of the Surviving
Corporation or the right to receive cash.
Section 2.02. Effect of Conversion. At and after
the Effective Time, each share certificate which immediately prior
to the Effective Time represented outstanding Scotts Delaware
Shares (a "Delaware Certificate") shall be deemed for all purposes
to evidence ownership of, and to represent, the number of Scotts
Ohio Common Shares into which the Scotts Delaware Shares
represented by such Delaware Certificate immediately prior to the
Effective Time have been converted pursuant to Section 2.01
hereof. The registered owner of any Delaware Certificate
outstanding immediately prior to the Effective Time, as such owner
appears in the books and records of SCOTTS DELAWARE or its
transfer agent immediately prior to the Effective Time, shall,
until such Delaware Certificate is surrendered for transfer or
exchange, have and be entitled to exercise any voting and other
rights with respect to and to receive any dividends or other
distributions on the Scotts Ohio Common Shares into which the
Scotts Delaware Shares represented by any such Delaware
Certificate have been converted pursuant to Section 2.01 hereof.
Section 2.03. Exchange of Certificates. Each
holder of a Delaware Certificate shall, upon the surrender of such
Delaware Certificate to SCOTTS OHIO or its transfer agent for
cancellation after the Effective Time, be entitled to receive from
SCOTTS OHIO or its transfer agent a certificate (an "Ohio
Certificate") representing the number of Scotts Ohio Common Shares
into which the Scotts Delaware Shares represented by such Delaware
Certificate have been converted pursuant to Section 2.01 hereof.
If any such Ohio Certificate is to be issued in a name other than
that in which the Delaware Certificate surrendered for exchange is
registered, it shall be a condition of such exchange that the
Delaware Certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person
requesting such exchange shall either pay any transfer or other
taxes required by reason of the issuance of the Ohio Certificate
in a name other than that of the registered holder of the Delaware
Certificate surrendered, or establish to the satisfaction of
SCOTTS OHIO or its transfer agent that such tax has been paid or
is not applicable.
Section 2.04. Long Term Incentive Plan and Profit
Sharing Plan.
(a) Each option to purchase Scotts Delaware Shares
and each performance share granted under The Scotts Company 1992
Long Term Incentive Plan (the "Long Term Incentive Plan") which is
outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the
holder of any such option or performance share, as appropriate, be
converted into and become an option to purchase, or a performance
share with respect to, the same number of Scotts Ohio Common
Shares as the number of Scotts Delaware Shares which were subject
to such option or performance share immediately prior to the
Effective Time at the same option price per share (in the case of
options) and upon the same terms and subject to the same
conditions as are in effect at the Effective Time. The Surviving
Corporation shall reserve for purposes of the Long Term Incentive
Plan a number of Scotts Ohio Common Shares equal to the number of
Scotts Delaware Shares reserved by SCOTTS DELAWARE for issuance
under the Long Term Incentive Plan as of the Effective Time. As
of the Effective Time, SCOTTS OHIO hereby assumes the Long Term
Incentive Plan and all obligations of SCOTTS DELAWARE under the
Long Term Incentive Plan including the outstanding options and
performance shares or portions thereof granted or awarded pursuant
thereto.
(b) The O. M. Scott & Sons Company
Profit Sharing and Savings Plan (the "Profit Sharing Plan") shall
become an identical plan of the Surviving Corporation at the
Effective Time, automatically and without further act of either of
the Constituent Corporations or any participant thereunder, and
each person who is a participant under the Profit Sharing Plan
shall thereafter continue to participate thereunder upon identical
terms and conditions; provided, however, that at and after the
Effective Time, each right to acquire Scotts Delaware Shares shall
thereafter be a right to acquire Scotts Ohio Common Shares.
Section 2.05. Subordinated Indenture. As of the
Effective Time, SCOTTS OHIO hereby assumes all of the obligations
of SCOTTS DELAWARE under the Subordinated Indenture, dated as of
June 1, 1994, as supplemented, of SCOTTS DELAWARE to Chemical Bank
and the Senior Subordinated Notes issued thereunder.
ARTICLE III
APPROVAL; AMENDMENT; TERMINATION; MISCELLANEOUS
Section 3.01. Approval. This Merger Agreement
shall be submitted for approval by the stockholders of SCOTTS
DELAWARE at a special meeting of stockholders.
Section 3.02. Amendment. Subject to applicable
law, this Merger Agreement may be amended, modified or
supplemented by written agreement of the Constituent Corporations,
after authorization of such action by the Boards of Directors of
the Constituent Corporations, at any time prior to the filing of
certificates of merger, as contemplated by Section 1.07 of this
Merger Agreement, with the Secretary of State of the State of
Delaware and with the Secretary of State of the State of Ohio,
except that after the approval contemplated by Section 3.01
hereof, there shall be no amendments that would (a) alter or
change the amount or kind of shares to be received by the holders
of any class or series of shares of either of the Constituent
Corporations in the Merger, (b) alter or change any term of the
Articles of Incorporation or Regulations of SCOTTS OHIO, or (c)
alter or change any of the terms and conditions of this Merger
Agreement if such alteration or change would adversely affect the
holders of any class or series of shares of either of the
Constituent Corporations.
Section 3.03. Abandonment. At any time prior to
the filing of certificates of merger, as contemplated by
Section 1.07 of this Merger Agreement, with the Secretary of State
of the State of Delaware and with the Secretary of State of the
State of Ohio, this Merger Agreement may be terminated and the
Merger may be abandoned by the Board of Directors of either SCOTTS
OHIO or SCOTTS DELAWARE, or both, notwithstanding approval of this
Merger Agreement by the sole shareholder of SCOTTS OHIO or by the
stockholders of SCOTTS DELAWARE, or by both.
Section 3.04. Counterparts. This Merger Agreement
may be executed in one or more counterparts, each of which shall
be deemed to be a duplicate original, but all of which, taken
together, shall be deemed to constitute a single instrument.
Section 3.05. Statutory Agent in Ohio. The name
and address of the statutory agent in Ohio upon whom any process,
notice or demand against SCOTTS DELAWARE or the Surviving Corpora-
tion may be served are:
CT Corporation System
3810 Carew Tower
Cincinnati, Ohio 45202
Section 3.06. Designated Agent in Delaware. The
Surviving Corporation agrees that it may be served with process in
the State of Delaware in any proceeding for enforcement of any
obligation of SCOTTS DELAWARE, as well as for enforcement of any
obligation of the Surviving Corporation arising from the Merger,
and the Surviving Corporation irrevocably appoints the Secretary
of State of the State of Delaware as its agent to accept service
of process in any such suit or other proceeding; a copy of such
process shall be mailed by the Secretary of State of the State of
Delaware to:
Craig D. Walley
Vice President and Secretary
The Scotts Company
14111 Scottslawn Road
Marysville, Ohio 43041
IN WITNESS WHEREOF, SCOTTS DELAWARE and SCOTTS OHIO
have caused this Merger Agreement to be signed by their respective
duly authorized officers as of the date first above written.
THE SCOTTS COMPANY,
Attest: an Ohio corporation
By:/s/ Craig D. Walley By:/s/ Tadd C. Seitz
Craig D. Walley, Secretary Tadd C. Seitz, President
THE SCOTTS COMPANY,
Attest: a Delaware corporation
By:/s/ Craig D. Walley By:/s/ Tadd C. Seitz
Craig D. Walley, Secretary Tadd C. Seitz, President
AMENDED
ARTICLES OF INCORPORATION
OF
THE SCOTTS COMPANY
The undersigned, desiring to form a corporation for
profit under Chapter 1701 of the Ohio Revised Code, does hereby
certify:
FIRST: The name of the corporation shall be
The Scotts Company.
SECOND: The place in Ohio where the principal
office of the corporation is to be located is in the City of
Marysville, County of Union.
THIRD: The purpose for which the corporation
is formed is to engage in any lawful act or activity for which
corporations may be formed under Sections 1701.01 to 1701.98 of the
Ohio Revised Code.
FOURTH: The authorized number of shares of
the corporation shall be Thirty-Five Million (35,000,000), all of
which shall be common shares, each without par value.
FIFTH: The directors of the corporation
shall have the power to cause the corporation from time to time and
at any time to purchase, hold, sell, transfer or otherwise deal
with (A) shares of any class or series issued by it, (B) any
security or other obligation of the corporation which may confer
upon the holder thereof the right to convert the same into shares
of any class or series authorized by the articles of the
corporation, and (C) any security or other obligation which may
confer upon the holder thereof the right to purchase shares of any
class or series authorized by the articles of the corporation. The
corporation shall have the right to repurchase, if and when any
shareholder desires to sell, or on the happening of any event is
required to sell, shares of any class or series issued by the
corporation. The authority granted in this Article FIFTH of these
Articles shall not limit the plenary authority of the directors to
purchase, hold, sell, transfer or otherwise deal with shares of any
class or series, securities or other obligations issued by the
corporation or authorized by its articles.
SIXTH: No shareholder of the corporation
shall have, as a matter of right, the pre-emptive right to purchase
or subscribe for shares of any class, now or hereafter authorized,
or to purchase or subscribe for securities or other obligations
convertible into or exchangeable for such shares or which by
warrants or otherwise entitle the holders thereof to subscribe for
or purchase any such share.
SEVENTH: Shareholders of the corporation shall
not have the right to vote cumulatively in the election of
directors.
EIGHTH: These Amended Articles of
Incorporation take the place of and supersede the existing Articles
of Incorporation of The Scotts Company.
Exhibit 2(b)
Agreement of Merger, dated as of
September 21, 1994, by and between The
O.M. Scott & Sons Company, a Delaware
corporation, and The Scotts Company, an
Ohio corportion
AGREEMENT OF MERGER
AGREEMENT OF MERGER ("Merger Agreement"), dated as
of September 21, 1994, by and between THE O. M. SCOTT & SONS
COMPANY, a Delaware corporation ("OMS"), and THE SCOTTS COMPANY,
an Ohio corporation ("SCOTTS OHIO"). OMS and SCOTTS OHIO are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
The authorized capital stock of OMS consists of 100
shares of Common Stock, $100 par value. Of such shares, 100 are
issued and outstanding and all of the issued and outstanding
shares are owned by SCOTTS OHIO.
SCOTTS OHIO, as the sole stockholder of OMS,
desires to effect a merger of OMS with and into SCOTTS OHIO
pursuant to the provisions of the General Corporation Law of the
State of Delaware (the "DGCL") and the General Corporation Law of
the State of Ohio (the "OGCL").
The respective Boards of Directors of OMS and
SCOTTS OHIO have determined that it is advisable and in the best
interest of each of such corporations that OMS merge with and into
SCOTTS OHIO upon the terms and subject to the conditions herein
provided.
The Board of Directors of SCOTTS OHIO has, by
resolution duly adopted, approved this Merger Agreement pursuant
to Section 251(f) of the DGCL and directed that it be executed by
the undersigned officers. The conditions in the first sentence of
Section 251(f) of the DGCL, pursuant to which the Merger Agreement
may be approved without any vote of the stockholders of SCOTTS
OHIO, have been satisfied.
The Board of Directors of OMS has, by resolution
duly adopted, approved this Merger Agreement and directed that it
be executed by the undersigned officers.
In consideration of the mutual agreements herein
contained, the parties agree that OMS shall be merged with and
into SCOTTS OHIO and that the terms and conditions of the merger,
the mode of carrying the merger into effect, the manner of
converting the shares of the Constituent Corporations and certain
other provisions relating thereto shall be as hereinafter set
forth.
ARTICLE I
THE MERGER
Section 1.01. Surviving Corporation. Subject to
the terms and provisions of this Merger Agreement, and in
accordance with the DGCL and the OGCL, at the Effective Time (as
defined in Section 1.07 hereof), OMS shall be merged with and into
SCOTTS OHIO (the "Merger"). SCOTTS OHIO shall be the surviving
corporation (hereinafter sometimes called the "Surviving Corpora-
tion") of the Merger and shall continue its corporate existence
under the laws of the State of Ohio. At the Effective Time, the
separate corporate existence of OMS shall cease.
Section 1.02. Effect of the Merger. At the
Effective Time, the Merger shall have the effects provided for
herein and in Section 1701.82 of the OGCL and Section 259 of the
DGCL.
Section 1.03. Articles of Incorporation. As of
the Effective Time, the Articles of Incorporation of SCOTTS OHIO,
as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation until
thereafter duly amended in accordance with the provisions thereof
and applicable law.
Section 1.04. Regulations. As of the Effective
Time, the Regulations of SCOTTS OHIO, as in effect immediately
prior to the Effective Time, shall be the Regulations of the
Surviving Corporation until thereafter duly amended in accordance
with the provisions thereof, the Articles of Incorporation of the
Surviving Corporation and applicable law.
Section 1.05. Directors of the Surviving
Corporation. At and after the Effective Time and until changed in
the manner provided in the Regulations or the Articles of
Incorporation of the Surviving Corporation or as otherwise
provided by law, the number of directors of the Surviving
Corporation shall be the number of directors of SCOTTS OHIO
immediately prior to the Effective Time. At the Effective Time,
each person who is a director of SCOTTS OHIO immediately prior to
the Effective Time shall become a director of the Surviving
Corporation and each such person shall serve as a director of the
Surviving Corporation for the balance of the term for which such
person was elected a director of SCOTTS OHIO and until his
successor is duly elected and qualified in the manner provided in
the Regulations or the Articles of Incorporation of the Surviving
Corporation or as otherwise provided by law or until his earlier
death, resignation or removal in the manner provided in the
Regulations or the Articles of Incorporation of the Surviving
Corporation or as otherwise provided by law.
Section 1.06. Officers of the Surviving
Corporation. At the Effective Time, each person who is an officer
of SCOTTS OHIO immediately prior to the Effective Time shall
become an officer of the Surviving Corporation with each such
person to hold the same office in the Surviving Corporation, in
accordance with the Regulations thereof, as he or she held in
SCOTTS OHIO immediately prior to the Effective Time.
Section 1.07. Effective Time. The Merger shall
become effective in accordance with the provisions of
Section 1701.81 of the OGCL and Sections 252 and 103 of the DGCL,
on September 30, 1994. The date and time when the Merger shall
become effective is herein referred to as the "Effective Time."
Section 1.08. Additional Actions. If, at any time
after the Effective Time, the Surviving Corporation shall consider
or be advised that any further deeds, assignments or assurances in
law or any other acts are necessary or desirable (a) to vest,
perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of
OMS acquired or to be acquired by reason of, or as a result of,
the Merger, or (b) otherwise to carry out the purposes of this
Merger Agreement, OMS and its proper officers and directors shall
be deemed to have granted hereby to the Surviving Corporation an
irrevocable power of attorney to execute and deliver all such
proper deeds, assignments and assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and the
possession of such property or rights in the Surviving Corporation
and otherwise to carry out the purposes of this Merger Agreement;
and the proper officers and directors of the Surviving Corporation
are hereby fully authorized in the name of OMS or otherwise to
take any and all such action.
ARTICLE II
MANNER, BASIS AND EFFECT OF CONVERTING SHARES
Section 2.01. Conversion of Shares. At the
Effective Time:
(a) Each Common Share, without par
value (the "Scotts Ohio Common Shares"), of SCOTTS OHIO issued and
outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the
holder thereof, continue to constitute one Common Share of the
Surviving Corporation.
(b) Each Scotts Ohio Common Share
held in the treasury of SCOTTS OHIO immediately prior to the
Effective Time shall, by virtue of the Merger and without any
action on the part of SCOTTS OHIO, continue to constitute one
Common Share of the Surviving Corporation and shall be held in the
treasury of the Surviving Corporation; and
(c) Each share of Common Stock, $100
par value, of OMS issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be extinguished and
shall cease to exist, and shall not be converted into shares of
the Surviving Corporation or the right to receive cash.
Section 2.02. Profit Sharing Plan. The O. M.
Scott & Sons Company Profit Sharing and Savings Plan (the "Profit
Sharing Plan") shall become an identical plan of the Surviving
Corporation at the Effective Time, automatically and without
further act of either of the Constituent Corporations or any
participant thereunder, and each person who is a participant under
the Profit Sharing Plan shall thereafter continue to participate
thereunder upon identical terms and conditions.
Section 2.03. Subordinated Indenture. As of the
Effective Time, SCOTTS OHIO hereby assumes all of the obligations
of OMS under the Subordinated Indenture, dated as of June 1, 1994,
as supplemented, of OMS to Chemical Bank and the Senior
Subordinated Notes issued thereunder.
ARTICLE III
AMENDMENT; TERMINATION; MISCELLANEOUS
Section 3.01. Amendment. Subject to applicable
law, this Merger Agreement may be amended, modified or
supplemented by written agreement of the Constituent Corporations,
after authorization of such action by the Boards of Directors of
the Constituent Corporations, at any time prior to the filing of
certificates of merger with the Secretary of State of the State of
Delaware and with the Secretary of State of the State of Ohio.
Section 3.02. Abandonment. At any time prior to
the filing of certificates of merger with the Secretary of State
of the State of Delaware and with the Secretary of State of the
State of Ohio, this Merger Agreement may be terminated and the
Merger may be abandoned by the Board of Directors of either SCOTTS
OHIO or OMS, or both, notwithstanding approval of this Merger
Agreement by the sole stockholder of OMS.
Section 3.03. Counterparts. This Merger Agreement
may be executed in one or more counterparts, each of which shall
be deemed to be a duplicate original, but all of which, taken
together, shall be deemed to constitute a single instrument.
Section 3.04. Statutory Agent in Ohio. The name
and address of the statutory agent in Ohio upon whom any process,
notice or demand against OMS or the Surviving Corporation may be
served are:
CT Corporation System
3810 Carew Tower
Cincinnati, Ohio 45202
Section 3.05. Designated Agent in Delaware. The
Surviving Corporation agrees that it may be served with process in
the State of Delaware in any proceeding for enforcement of any
obligation of OMS, as well as for enforcement of any obligation of
the Surviving Corporation arising from the Merger, and the
Surviving Corporation irrevocably appoints the Secretary of State
of the State of Delaware as its agent to accept service of process
in any such suit or other proceeding; a copy of such process shall
be mailed by the Secretary of State of the State of Delaware to:
Craig D. Walley
Vice President and Secretary
The Scotts Company
14111 Scottslawn Road
Marysville, Ohio 43041
IN WITNESS WHEREOF, OMS and SCOTTS OHIO have caused
this Merger Agreement to be signed by their respective duly
authorized officers as of the date first above written.
THE SCOTTS COMPANY,
Attest: an Ohio corporation
By:/s/ Craig D. Walley By:/s/ Tadd C. Seitz
Craig D. Walley, Secretary Tadd C. Seitz, Chairman and
Chief Executive Officer
THE O. M. SCOTT & SONS COMPANY,
Attest: a Delaware corporation
By:/s/ Craig D. Walley By:/s/ Tadd C. Seitz
Craig D. Walley, Secretary Tadd C. Seitz, Chairman and
Chief Executive Officer