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ITEM 1.	BUSINESS

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•	U.S. Consumer

•	Hawthorne

•	Other

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ITEM 1A.	RISK FACTORS

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•	make it more difficult for us to satisfy our obligations with respect to our indebtedness;

•	make us more vulnerable to general adverse economic and industry conditions;

•	require us to dedicate a substantial portion of cash flows from operating activities to payments on our indebtedness, which would reduce the cash flows available to fund working capital, capital expenditures, advertising, research and development efforts and other general corporate requirements;

•	limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;

•	limit our ability to borrow additional funds;

•	expose us to risks inherent in interest rate fluctuations because some of our borrowings are at variable rates of interest, which could result in higher interest expense in the event of increases in interest rates; and

•	place us at a competitive disadvantage compared to our competitors that have less debt.

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•	fluctuations in currency exchange rates;

•	limitations on the remittance of dividends and other payments by foreign subsidiaries;

•	additional costs of compliance with local regulations;

•	historically, in certain countries, higher rates of inflation than in the United States;

•	changes in the economic conditions or consumer preferences or demand for our products in these markets;

•	restrictive actions by multi-national governing bodies, foreign governments or subdivisions thereof;

•	changes in foreign labor laws and regulations affecting our ability to hire and retain employees;

•	changes in U.S. and foreign laws regarding trade and investment;

•	less robust protection of our intellectual property under foreign laws; and

•	difficulty in obtaining distribution and support for our products.

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•	Diversion of management time and focus from operating our business to acquisition integration challenges.

•	Failure to successfully further develop the acquired business or product lines.

•	Implementation or remediation of controls, procedures and policies at the acquired company.

•	Integration of the acquired company’s accounting, human resources and other administrative systems, and coordination of product, engineering and sales and marketing functions.

•	Transition of operations, users and customers onto our existing platforms.

•	Reliance on the expertise of our strategic partners with respect to market development, sales, local regulatory compliance and other operational matters.

•	Failure to obtain required approvals on a timely basis, if at all, from governmental authorities, or conditions placed upon approval, under competition and antitrust laws which could, among other things, delay or prevent us from

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•	In the case of foreign acquisitions, the need to integrate operations across different cultures and languages and to address the particular economic, currency, political and regulatory risks associated with specific countries.

•	Cultural challenges associated with integrating employees from the acquired company into our organization, and retention of employees from the businesses we acquire.

•	Liability for or reputational harm from activities of the acquired company before the acquisition or from our strategic partners, including patent and trademark infringement claims, violations of laws, commercial disputes, tax liabilities and other known and unknown liabilities.

•	Litigation or other claims in connection with the acquired company, including claims from terminated employees, customers, former shareholders or other third parties.

ITEM 1B.	UNRESOLVED STAFF COMMENTS

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ITEM 2.	PROPERTIES

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ITEM 5.	MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

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(1)

All of the Common Shares purchased during the fourth quarter of fiscal 2017 were purchased in open market transactions. The total number of Common Shares purchased during the quarter includes 3,901 Common Shares purchased by the trustee of the rabbi trust established by the Company as permitted pursuant to the terms of The Scotts Company LLC Executive Retirement Plan (the “ERP”). The ERP is an unfunded, non-qualified deferred compensation plan which, among other things, provides eligible employees the opportunity to defer compensation above specified statutory limits applicable to The Scotts Company LLC Retirement Savings Plan and with respect to any Executive Management Incentive Pay (as defined in the ERP), Performance Award (as defined in the ERP) or other bonus awarded to such eligible employees. Pursuant to the terms of the ERP, each eligible employee has the right to elect an investment fund, including a fund consisting of Common Shares (the “Scotts Miracle-Gro Common Stock Fund”), against which amounts allocated to such employee’s account under the ERP, including employer contributions, will be benchmarked (all ERP accounts are bookkeeping accounts only and do not represent a claim against specific assets of the Company). Amounts allocated to employee accounts under the ERP represent deferred compensation obligations of the Company. The Company established the rabbi trust in order to assist the Company in discharging such deferred compensation obligations. When an eligible employee elects to benchmark some or all of the amounts allocated to such employee’s account against the Scotts Miracle-Gro Common Stock Fund, the trustee of the rabbi trust purchases the number of Common Shares equivalent to the amount so benchmarked. All Common Shares purchased by the trustee are purchased on the open market and are held in the rabbi trust until such time as they are distributed pursuant to the terms of the ERP. All assets of the rabbi trust, including any Common Shares purchased by the trustee, remain, at all times, assets of the Company, subject to the claims of its creditors. The terms of the ERP do not provide for a specified limit on the number of Common Shares that may be purchased by the trustee of the rabbi trust.

(2)	The average price paid per Common Share is calculated on a settlement basis and includes commissions.

(3)

On August 11, 2014, Scotts Miracle-Gro announced that its Board of Directors authorized the repurchase of up to $500 million of Common Shares over a five-year period (effective November 1, 2014 through September 30, 2019). On August 3, 2016, Scotts Miracle-Gro announced that its Board of Directors increased the then outstanding authorization by an additional $500 million. The amended authorization allows for the repurchases of up to $1.0 billion of Common Shares through September 30, 2019. The dollar amounts in the “Approximate Dollar Value of Common Shares That May Yet be Purchased Under the Plans or Programs” column reflect the remaining amounts that were available for repurchase under the original $500 million and the incremental $500 million authorized repurchase programs.

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ITEM 6.	SELECTED FINANCIAL DATA

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(1)	The Selected Financial Data has been retrospectively updated to recast activity for the following:

(2)	Reconciliation of Non-GAAP Measures

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•	Impairments, which are excluded because they do not occur in or reflect the ordinary course of our ongoing business operations and their exclusion results in a metric that provides supplemental information about the sustainability of operating performance.

•	Restructuring and employee severance costs, which include charges for discrete projects or transactions that fundamentally change our operations and are excluded because they are not part of the ongoing operations of our underlying business, which includes normal levels of reinvestment in the business.

•	Costs related to refinancing, which are excluded because they do not typically occur in the normal course of business and may obscure analysis of trends and financial performance. Additionally, the amount and frequency of these types of charges is not consistent and is significantly impacted by the timing and size of debt financing transactions.

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Charges or credits incurred by the TruGreen Joint Venture that are apart from and not indicative of the results of its ongoing operations, including transaction related costs, refinancing costs, restructurings and other discrete projects or transactions including a non-cash purchase accounting fair value write down adjustment related to deferred revenue and advertising (“TruGreen Joint Venture non-GAAP adjustments”).

•	Discontinued operations and other unusual items, which include costs or gains related to discrete projects or transactions and are excluded because they are not comparable from one period to the next and are not part of the ongoing operations of our underlying business.

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(3)	Working capital is calculated as current assets minus current liabilities. Current ratio is calculated as current assets divided by current liabilities.

(4)	The total debt to total book capitalization percentage is calculated by dividing total debt by total debt plus total equity—controlling interest.

(5)

Scotts Miracle-Gro pays a quarterly dividend to the holders of its Common Shares. On August 9, 2012, Scotts Miracle-Gro announced that its Board of Directors had increased the quarterly cash dividend to $0.325 per Common Share, which was first paid in the fourth quarter of fiscal 2012. On August 6, 2013, Scotts Miracle-Gro announced that its Board of Directors had increased the quarterly cash dividend to $0.4375 per Common Share, which was first paid in the fourth quarter of fiscal 2013. On August 11, 2014, Scotts Miracle-Gro announced that its Board of Directors had (i) further increased the quarterly cash dividend to $0.45 per Common Share, which was first paid in the fourth quarter of fiscal 2014 and (ii) declared a special one-time cash dividend of $2.00 per Common Share, which was paid on September 17, 2014. On August 3, 2015, Scotts Miracle-Gro announced that its Board of Directors had further increased the quarterly cash dividend to $0.47 per Common Share, which was first paid in the fourth quarter of fiscal 2015. On August 3, 2016, Scotts Miracle-Gro announced that its Board of Directors had further increased the quarterly cash dividend to $0.50 per Common Share, which was first paid in the fourth quarter of fiscal 2016. On August 1, 2017, Scotts Miracle-Gro announced that its Board of Directors had further increased the quarterly cash dividend to $0.53 per Common Share, which was first paid in September 2017.

(6)

We view our credit facility as material to our ability to fund operations, particularly in light of our seasonality. Please refer to “ITEM 1A. RISK FACTORS — Our indebtedness could limit our flexibility and adversely affect our financial condition” of this Annual Report on Form 10-K for a more complete discussion of the risks associated with our debt and our credit facility and the restrictive covenants therein. Our ability to generate cash flows sufficient to cover our debt service costs is essential to our ability to maintain our borrowing capacity. We believe that Adjusted EBITDA provides additional information for determining our ability to meet debt service requirements. The presentation of Adjusted EBITDA herein is intended to be consistent with the calculation of that measure as required by our borrowing agreements, and used to calculate a leverage ratio (maximum of 4.50 at September 30, 2017) and an interest coverage ratio (minimum of 3.00 for the twelve months ended September 30, 2017). Leverage ratio is calculated as average total indebtedness, as described in our credit facility, divided by Adjusted EBITDA. Interest coverage ratio is calculated as Adjusted EBITDA divided by interest expense, as described in our credit facility, and excludes costs related to refinancings. Our leverage ratio was 3.04 at September 30, 2017 and our interest coverage ratio was 7.54 for the twelve months ended September 30, 2017. Please refer to “ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS — Liquidity and Capital Resources — Borrowing Agreements” of this Annual Report on Form 10-K for a discussion of our credit facility.

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(7)	Amount represents a gain on our investment in AeroGrow recognized during the fourth quarter of 2014 as a result of our consolidation of the business. Excluded from this amount is $2.4 million of earnings on AeroGrow’s unconsolidated results for fiscal year 2014 recorded within “Other income, net” in the Consolidated Statements of Operations.

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ITEM 7.	MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

•	Executive summary

•	Results of operations

•	Segment results

•	Liquidity and capital resources

•	Regulatory matters

•	Critical accounting policies and estimates

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•	the addition of net sales from acquisitions in our Hawthorne segment, primarily from Gavita, Botanicare and Agrolux, as well as the acquisition of a Canadian growing media operation in our Other segment;

•	increased pricing in our U.S. Consumer segment primarily driven by lower volume rebates as a result of year-to-date sales volume decline; and

•	increased sales of grass seed and Roundup® For Lawns products in our U.S. Consumer segment, and increased sales of hydroponic gardening products in our Hawthorne segment;

•	partially offset by decreased sales of mulch products in our U.S. Consumer segment;

•	decreased net sales associated with the Marketing Agreement Amendment and the Restated Marketing Agreement for consumer Roundup®; and

•	the unfavorable impact of foreign exchange rates as a result of the strengthening of the U.S. dollar relative to the Canadian dollar, partially offset by the weakening of the U.S. dollar relative to the euro.

•	the addition of net sales from acquisitions within our Hawthorne segment, primarily from General Hydroponics, Vermicrop and Gavita, as well as the acquisition of a Canadian growing media operation in our Other segment;

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•	increased sales volume in our Hawthorne segment driven by increased sales of hydroponic gardening products;

•	the impact of the Marketing Agreement Amendment for consumer Roundup®; and

•	increased pricing in the U.S. Consumer segment;

•	partially offset by the unfavorable impact of foreign exchange rates as a result of the strengthening of the U.S. dollar relative to other currencies including the Canadian dollar and the euro.

•	$98.2 million in costs related to sales from acquisitions in our Hawthorne segment, primarily from Gavita, Botanicare and Agrolux, as well as $7.5 million in costs related to sales from the acquisition of a Canadian growing media operation in our Other segment;

•	partially offset by lower material costs in our U.S. Consumer segment driven by lower commodity costs primarily related to fertilizer inputs;

•	lower sales volume in our U.S. Consumer segment, partially offset by increased sales volume in our Hawthorne segment;

•	the favorable impact of foreign exchange rates as a result of the strengthening of the U.S. dollar relative to the Canadian dollar, partially offset by weakening of the U.S. dollar relative to the euro; and

•	a decrease in other charges of $5.9 million related to costs incurred during fiscal 2016 to address consumer complaints regarding our reformulated Bonus® S product sold during fiscal 2015.

•	costs related to increased sales volume in our U.S. Consumer and Hawthorne segments;

•	$46.1 million in costs related to sales from acquisitions within our Hawthorne segment, primarily from General Hydroponics, Vermicrop and Gavita, as well as $4.6 million in costs related to sales from the acquisition of a Canadian growing media operation in our Other segment;

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•	an increase in net sales attributable to reimbursements under the Marketing Agreement Amendment for consumer Roundup®; and

•	an increase in other charges of $2.9 million related to addressing the consumer complaints regarding our reformulated Bonus® S product sold during fiscal 2015;

•	partially offset by lower material costs in our U.S. Consumer segment driven by lower commodity costs primarily related to fertilizer inputs and resin;

•	lower distribution costs within our U.S. Consumer segment due to savings from lower fuel prices and reduced costs from efficiencies in our growing media business; and

•	the favorable impact of foreign exchange rates as a result of a strengthening of the U.S. dollar relative to other currencies including the Canadian dollar and the euro.

•	lower material costs in our U.S. Consumer segment driven by lower commodity costs primarily related to fertilizer inputs;

•	increased pricing in our U.S. Consumer segment primarily driven by lower volume rebates as a result of year-to-date sales volume decline; and

•	a decrease in other charges of $5.9 million related to costs incurred during fiscal 2016 to address consumer complaints regarding our reformulated Bonus® S product sold during fiscal 2015;

•	partially offset by an unfavorable net impact from acquisitions in our Hawthorne segment, primarily from Gavita, Botanicare and Agrolux, as well as the acquisition of a Canadian growing media operation in our Other segment; and

•	a decrease in net sales associated with the Marketing Agreement Amendment and the Restated Marketing Agreement for consumer Roundup®.

•	lower material costs in our U.S. Consumer segment driven by lower commodity costs primarily related to fertilizer inputs and resin;

•	lower distribution costs within our U.S. Consumer segment due to savings from lower fuel prices and reduced costs from efficiencies in our growing media business;

•	an increase in net sales attributable to the Marketing Agreement Amendment for consumer Roundup®; and

•	increased pricing in the U.S. Consumer segment;

•	partially offset by an unfavorable net impact from acquisitions, primarily from General Hydroponics and Vermicrop within our Hawthorne segment; and

•	other charges of $5.9 million primarily related to addressing the consumer complaints regarding our reformulated Bonus® S product sold during fiscal 2015.

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(a)

Included within equity in income (loss) of unconsolidated affiliates for fiscal 2017 are charges of $25.2 million, which represent our share of restructuring and other charges incurred by the TruGreen Joint Venture, including a charge of $7.2 million related to costs associated with TruGreen’s August 2017 refinancing. For fiscal 2016, our share of restructuring and other charges incurred by the TruGreen Joint Venture of $11.7 million was included within impairment, restructuring and other above.

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(a)	The effective date refers to the date on which interest payments were, or will be, first hedged by the applicable swap agreement.

(b)	Notional amount adjusts in accordance with a specified seasonal schedule. This represents the maximum notional amount at any point in time.

(c)	Interest payments made during the three-month period of each year that begins with the month and day of the effective date are hedged by the swap agreement.

(d)	Interest payments made during the six-month period of each year that begins with the month and day of the effective date are hedged by the swap agreement.

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ITEM 7A.	QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

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ITEM 8.	FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

ITEM 9.	CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

ITEM 9A.	CONTROLS AND PROCEDURES

ITEM 9B.	OTHER INFORMATION

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ITEM 10.	DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

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ITEM 11.	EXECUTIVE COMPENSATION

ITEM 12.	SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

ITEM 13.	CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

ITEM 14.	PRINCIPAL ACCOUNTING FEES AND SERVICES

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ITEM 15.	EXHIBITS, FINANCIAL STATEMENT SCHEDULES

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(a)	The effective date refers to the date on which interest payments were first hedged by the applicable swap agreement.

(b)	Notional amount adjusts in accordance with a specified seasonal schedule. This represents the maximum notional amount at any point in time.

(c)	Interest payments made during the three-month period of each year that begins with the month and day of the effective date are hedged by the swap agreement.

(d)	Interest payments made during the six-month period of each year that begins with the month and day of the effective date are hedged by the swap agreement.

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(a)

Included within equity in income (loss) of unconsolidated affiliates for fiscal 2017 are charges of $25.2 million, which represent the Company’s share of restructuring and other charges incurred by the TruGreen Joint Venture, including a charge of $7.2 million related to costs associated with TruGreen’s August 2017 refinancing. For fiscal 2016, the Company’s share of restructuring and other charges incurred by the TruGreen Joint Venture of $11.7 million were included within impairment, restructuring and other above.

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(a)

Cash received by the Parent from the Guarantors and Non-Guarantors in the form of dividends in the amount of $909.4 million represent return of investments and are included in cash flows from investing activities. Cash received by the Parent from the Guarantors and Non-Guarantors in the form of dividends in the amount of $28.8 million represent return on investments and are included in cash flows from operating activities. Cash received by the Guarantors from the Non-Guarantors in the form of distributions in the amount of $32.4 million represent return of investments and are included in cash flows from investing activities. Cash received by the Guarantors from the Non-Guarantors in the form of dividends in the amount of $15.0 million represent return on investments and are included in cash flows from operating activities.

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(a)

Cash received by the Parent from the Guarantors and the Non-Guarantors in the form of distributions in the amount of $934.4 million represent return of investments and are included in cash flows from investing activities. Cash received by the Guarantors from the Non-Guarantors in the form of dividends in the amount of $1.5 million represent return on investments and are included in the cash flows from operating activities.

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(a)

Cash received by the Parent from the Guarantors in the form of dividends in the amount of $255.5 million represent return on investments and are included in cash flows from operating activities. Cash received by the Guarantors from the Non-Guarantors in the form of dividends in the amount of $25.8 million represent return on investments and are included in the cash flows from operating activities.

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Re:	The Scotts Miracle-Gro Company – Annual Report on Form 10-K for the fiscal year ended September 30, 2017

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coordinating and staffing annual physical inventory for all Roundup Products (including raw materials, packaging- when the Agent shall formulate under the Formulation Agreement- and finished goods). Physical inventories shall be conducted by September 30 of every calendar year and Monsanto shall have the right to request physical counts on specific product at any time upon reasonable request (which shall be at Monsanto’s cost if there are more than two such counts in any Program Year) and to observe or conduct physical counts with Monsanto’s representatives;

•	reconciling the physical inventory to perpetual records;

•	physically moving the Roundup Products out of the warehouse by following a First In, First Out (“FIFO”) policy; and

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•	arranging for warehousing of adequate inventory levels of Roundup Products in sufficient quantities to satisfy the criteria set forth in the Annual Business Plan.

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1)	Mission Statement and Explanation: Answers questions: What business are we in? Why does the business exist?

2)	Category Definition/Growth Trend: Also need to address related categories and their potential interaction with the target category

3)	Business Review: Summary of a process that will occur in each preceding January

4)	Brand Positioning:

5)	Key Business Goals

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6)	Major Strategies to achieve Key Goals (some examples include...)

7)	Functional Operating Plans: This is a lengthy section that lays out a detailed annual operating plan for each functional area in the business (including rationale where appropriate) and that pays particular attention to changes in that plan from the prior year’s plans and results. Each section will contain a detailed budget with direct and assigned expenses shown.

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8)	Detailed Financials - Prior Year, Current Year, Future Year

9)	Approved amendments: This section will show any amendments approved by senior management (or the Steering Committee)

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A.

Monsanto has rights in various names, symbols, designs and likenesses, including, but not limited to copyrights and trademarks listed in Schedule A, attached hereto and incorporated herein by this reference. The Licensed Marks have been used in commerce and extensively advertised and promoted by various means. The Licensed Marks and the reputation of Monsanto are associated with high quality and safety in the production and sale of its products and services, which high reputation and goodwill has been and continues to be a unique benefit to Monsanto.

B.	Scotts recognizes the benefits to be derived from utilizing the Licensed Marks and desires to utilize the Licensed Marks upon and in connection with the development, manufacture, production, advertising, marketing, promotion, distribution, and sale of products and services hereinafter described with the terms hereinafter described.

C.	The Parties or one of their respective Affiliates previously entered into the Exclusive Agency and Marketing Agreement effective as of September 30, 1998, which was amended and restated on the date that this Agreement was executed by Monsanto and Scotts (the “Execution Date”), and as it may be hereafter amended or modified from time to time (collectively referred to as the “Agency Agreement”).

D.	At Scotts’ request, Monsanto and Garden Care are entering into that certain Lawn and Garden Brand Extension Agreement - Ex-Americas (the “Ex-Americas Brand Extension Agreement”) which applies to the Excluded Specific Territory. For the avoidance of doubt, as of the Execution Date, the Excluded Specific Territory will no longer be addressed in this Agreement.

1.	DEFINITIONS For purposes of this Agreement, the following words and phrases shall have the following meanings and may be used interchangeably in the singular or plural context:

1.1

“Affiliate(s)” shall mean with respect to any Person, any other Person that, directly or indirectly, whether through one or more intermediaries, Controls, is Controlled by, or is under common Control with that Person. For purposes of clarity, the Affiliates of a Party shall include those Persons existing prior to or after the Effective Date only during the period or periods in which the Person meets the criteria set forth in this Section 1.1 at the time the

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1.2	“Agreement” means this Amended and Restated Lawn and Garden Brand Extension Agreement between the Parties.

1.3	“Agricultural Uses” means the cultivation, maintenance, or harvest of plants, animals, or other organisms for the sale or other commercial use of such organisms or products made with or derived from those organisms.

1.4	“Asserted Liability” means the definition set out in Section 13.1 of this Agreement.

1.5	“Business Day” means Monday through Friday, excluding official United States federal holidays

1.6

“Change of Control” means, with respect to a Person, (i) the acquisition after the date hereof by any individual (or group of individuals acting in concert), corporation, company, association, joint venture or other entity, of beneficial ownership of 50% or more of the voting securities of such Person; or (ii) the consummation by such Person of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of such Person, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own in the aggregate less than 50% of such voting securities immediately following such transaction; or (iii) the consummation by such Person of the sale or other disposition of all or substantially all of the assets of such Person other than to an Affiliate of such Person; or (iv) the consummation by such Person of a plan of complete liquidation or dissolution of such Person.

1.7	“Claims Notice” means the definition set out in Section 13.1 of this Agreement.

1.8	“Consumer Inquiries” means the definition set out in Section 5.1 of this Agreement.

1.9	“Contract Manufacturer” means the definition set out in Section 2.4.1 of this Agreement.

1.10

“Control”, “Controls”, “Controlled by” and “under common Control” shall mean (a) the ownership, directly or indirectly, of fifty percent (50%) or more of the voting equity interest in a Person or (b) the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise, or (c) beneficial ownership of a Person as defined by Section 13(d)(3) of the Securities Exchange Act of 1934, as amended; regardless of whether such control was acquired through a single transaction or through multiple transactions in each case.

1.11	“Copyright(s)” means original and creative works, whether registered or unregistered, used in connection with the Licensed Marks, including, but not limited to, the works contained in the Trademark Usage Rules.

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1.12	“Costs” means all costs, expenses, fees (including reasonable attorney’s fees) and all Service Fees.

1.13	“Effective Date” means May 15, 2015.

1.14	“Excluded Territories” means (i) any country subject to a comprehensive U.S. trade embargo, (ii) countries subject to other relevant embargos and trade restrictions to the extent that such relevant embargos and trade restrictions would materially adversely impact either Party’s ability to fulfill such Party’s duties and obligations under this Agreement and (iii) the Excluded Specific Territory.

1.15	“Excluded Specific Territory” means every country, other than Israel and China, throughout the continents of Europe, Africa, Asia, and Australia.

1.16	“Execution Date” means [•], 2017.

1.17	“Garden Care” means Garden Care Bidco Limited and its Affiliates, and its successors in interest under the Ex-Americas Brand Extension Agreement.

1.18	“FTO Cleared Product(s)” means L&G Field Products within the categories on Schedule B attached hereto and incorporated by this reference.

1.19	“FTO Review Process” means the freedom to operate review process as set forth in Section 2.2 of this Agreement.

1.20	“FTO Review Product(s) & Service(s)” means L&G Field Products & Services as to which Scotts has requested an FTO Review Process and as to which Scotts has subsequently received notice from Monsanto that the proposed product or service has passed (rather than failed) the FTO Review Process pursuant to Section 2.2 of this Agreement and have subsequently been added to Schedule C.

1.21	“ITO” means industrial, turf and ornamental.

1.22	“ITO Uses” means the use of products in, on, or around a property by a Person who is not the owner or a resident of the property and who has been hired, employed, or otherwise commercially engaged, directly or indirectly, by the owner or a resident of such property to use such products in, on, or around such property and services commercially applying such products.

1.23	“L&G Field Product(s) & Services” means products and/or services in the Residential Lawn & Garden Field, provided that such products and/or services comply with the Stewardship Requirements and Trademark Usage Rules, and further provided that Scotts has obtained all Regulatory Approvals for such products and/or services.

1.24	“Laws” means the definition set out in Section 2.3.1 of this Agreement.

1.25	“Loss” means the definition set out in Section 13.1 of this Agreement.

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1.26	“Licensed Marks” means the trademarks as set out on Schedule A, attached hereto and incorporated herein by this reference.

1.27	“Material Breach” means breach of Sections 2.3, 3, 6, and/or 12 including any subparts thereof.

1.28	“Monsanto” means Monsanto Company and its Affiliates.

1.29	“New Material” means the definition set out in Section 4.1. of this Agreement.

1.30	“Party” means either Monsanto or Scotts, and the term “Parties” means collectively Monsanto and Scotts.

1.31	“Person” means any individual, corporation, proprietorship, firm, partnership, limited liability company, trust, association, or other entity.

1.32

“Professional Residential Service Uses” means the subset of ITO Uses where the Person(s) hired, employed, or otherwise commercially engaged provides services to cultivate, maintain and control lawns, gardens or plants, and to control pests associated with such lawns, gardens or plants only or substantially only to private residential customers in, on or around those residential customers’ personal residential properties (such services being “Professional Residential Services” and Persons providing such services being “Professional Residential Service Providers”).

1.33	“Recall Campaign” means the definition as set forth in Section 5.2 of this Agreement.

1.34

“Regulatory Approval(s)” means all official recognition, including government approvals, conditions of approvals, licenses, clearances, permits, notifications, registrations, exemptions, deregulations, or other actions by a Regulatory Authority, authorizing or facilitating, research, field or laboratory testing, development, cultivation, making, use, production, commercialization, imports, exports, distribution, transportation, disposal, or any other activities related to a product that are required, advisable, or customary to obtain in any jurisdiction within the Territory in connection with a proposed use of a product in or in connection with that jurisdiction.

1.35	“Regulatory Authority(ies)” means any government authority of any type that has any direct or indirect control of any regulation or government rule, law, regulation, or the ability to grant, deny, or exert any control over Regulatory Approvals or implementation thereof in any jurisdiction.

1.36

“Residential Lawn & Garden Field” means (a) packaged goods marketed to, promoted or positioned solely for use by customers in, on, or around their personal residential properties to cultivate, maintain and control residential lawns, gardens, or house plants, or to control household pests or pests associated with such lawns, gardens or house plants, (b) packaged goods marketed, promoted or positioned solely for use by Professional Residential Service Providers in, on or around their personal residential properties to cultivate, maintain and

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(i)	all products, containing one or more herbicides, where such products are promoted or positioned as non-selective or broad spectrum herbicide products with herbicidal activity against both grasses and broad leaf weeds;

(ii)	all products promoted or positioned for ITO Uses other than Professional Residential Service Uses;

(iii)	all products promoted or positioned for Agricultural Uses;

(iv)	all products that are or are promoted or positioned as pest control products for use on companion animals;

(v)	all products that are or are promoted or positioned as rodenticides or animal poisons or non-insect traps;

(vi)	all products that are or are promoted or positioned for human use as insect repellant or insect protectants where the product is to be applied topically to the skin or clothing or ingested as part of its use;

(vii)	all products that are or are promoted or positioned as animal feed products, including wild bird feed;

(viii)	all products that are or are promoted or positioned as seeds, sod, roots, bulbs, plants, viable vegetative material, or other organisms;

(iv)	all products that are or are promoted or positioned as pressurized sprayers;

(x)	all products that are or are promoted or positioned as hand-held sized backpack sprayers; and

(xi)	all products that are or are promoted as herbicides, unless:

(a)

they have, as permitted by the EPA and other applicable regulatory authorities, an express (or explicit) and effective call-out on the outer panel (front or back) of the packaging that communicates that non-selective Roundup Products (as defined in the Agency Agreement) sold pursuant to the Agency Agreement are better suited for consumers who desire a product to kill both grasses and weeds in non-lawn areas;

(b)	their packaging uses distinctive color and sub-branding to create a significant difference in appearance from the non-selective Roundup Products sold pursuant to the Agency Agreement. For the avoidance of doubt, Roundup “for Lawns” would be an acceptable sub-branding mechanism; and

(c)	their marketing materials (website; point-of-purchase; etc.) actively and clearly differentiate Roundup-branded selective and non-selective herbicide products and their intended uses.

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1.37	“Scotts” means The Scotts Company LLC and its Affiliates.

1.38	“Scotts’ Material” means the definition set out in Section 4.1 of this Agreement.

1.39	“Service Fees” means out of pocket expenses, plus personnel time at Monsanto’s fully loaded hourly rate of $100 adjusted annually by the CPIu.  Monsanto agrees that based on the projected volume of evaluation requests by Scotts, Monsanto will work with Scotts to provide a reasonable cost estimate, and all personnel time and relevant out of pocket expenses will be tracked by Monsanto.

1.40	“Stewardship Requirements” means those requirements set out on Schedule D attached hereto and incorporated herein by this reference along with any and all reasonable modifications provided by Monsanto in writing from time to time.

1.41	“Term” means the initial term and all renewals as set forth in Section 10 of this Agreement.

1.42	“Territory” means every country throughout the North American continent, South American continent, Central America, the Caribbean, Israel and China, other than the Excluded Territories.  “North America Territories” means the United States of America, Puerto Rico, Canada, Mexico and the Caribbean countries.

1.43	“Third Party” means any Person other than Monsanto and Scotts.

1.44

“Trademark Usage Rules” means the rules set forth on Schedule E, attached hereto and incorporated herein by this reference, which may be reasonably updated by Monsanto in writing from time to time. Notwithstanding the foregoing, Scotts agrees that the usage of a Licensed Mark shall be significantly different from overall appearance of Monsanto’s products outside of the Residential Lawn & Garden Field to avoid customer confusion.

2.	CONVEYANCE OF RIGHTS - LICENSE

2.1	LICENSE GRANT. Subject to the terms and conditions of this Agreement, Monsanto hereby grants to Scotts and Scotts hereby accepts the following:

2.1.1	A sole and exclusive license, even as to Monsanto, during the Term in the United States, to use the Licensed Marks solely to develop, manufacture, produce, have manufactured

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2.1.2	A sole and exclusive license, even as to Monsanto, during the Term in the Territory, to use the Licensed Marks solely to develop, manufacture, produce, have manufactured and produced, advertise, market, promote, distribute and sell FTO Review Products & Services in the Territory.

2.1.3

To the extent the Licensed Marks and the corresponding trademark applications/registrations in Schedule A cover uses outside of the Residential Lawn and Garden Field, Monsanto retains the right to use, itself or through Third Parties, the Licensed Marks, either alone or in combination with other terms, designs and logos, on and in connection with Monsanto and Third Party products, including, but not limited to the products that are identical or similar to L&G Field Products & Services but that are outside the Residential Lawn and Garden Field.

2.1.4	The Parties agree that the Licensed Marks may not cover all FTO Cleared Products or FTO Review Products & Services, or be defined identically with the definition of FTO Cleared Products or FTO Review Products & Services in this Agreement.

2.1.5	Scotts’ and Scotts’ Sub-Licensees’ use of the Licensed Marks shall accrue and inure to the benefit of Monsanto for all purposes.

2.1.6	Reservation and Relinquishment of Rights.

2.1.6.1	All rights not expressly licensed to Scotts herein are reserved to Monsanto. No license, express or implied, is granted other than for the Licensed Marks in the manner and to the extent authorized by the Agreement.

2.1.6.2

Effective as of the Execution Date, Scotts’ hereby: (i) relinquishes any and all rights under the May 15, 2015 Lawn and Garden Brand Extension Agreement to use the Licensed Marks to develop, manufacture, produce, have manufactured and produced, advertise, market, promote, distribute or sell any L&G Field Product(s) & Services in the Excluded Specific Territory and expressly agrees that, from and after the Execution Date, it will not use the Licensed Marks to develop, manufacture, produce, have manufactured and produced, advertise, market, promote, distribute or sell any L&G Field Product(s) & Services in the Excluded Specific Territory, (ii) consents to, and requests, Monsanto’s agreement to exclusively license use of the Licensed Marks to Garden Care to develop, manufacture, produce, have manufactured and produced, advertise, market, promote, distribute or sell certain L&G Field Product(s) & Services in the Excluded Specific Territory under the Ex-Americas Brand Extension Agreement and (iii) expressly agrees that any use by Garden Care of the Licensed Marks to develop, manufacture, produce, have manufactured and produced, advertise, market, promote, distribute or

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2.2	FTO REVIEW PROCESS

2.2.1

Scotts shall provide notice to Monsanto of the Licensed Mark(s) Scotts intends to use (a) in the United States on proposed FTO Review Products & Services, and/or (b) in specified countries in the Territory, but outside the United States, on proposed FTO Review Products & Services. Scotts’ notices shall include information adequate to allow Monsanto to conduct the FTO Review Process and Scotts shall also provide such other information as Monsanto may later reasonably request.

2.2.2

For each product and country combination noticed under Section 2.2.1, Monsanto shall expeditiously conduct an FTO Review Process, and the proposed FTO Review Products & Services shall only pass the FTO Review Process if all of the following are true: (i) if, after conducting trademark clearance as is customary under trademark best practices, Monsanto, in its reasonable business determination after consultation with Scotts, concludes that the trademark(s) is likely available for use and registration without a significant risk of conflict with the rights of others; (ii) if, after reasonable review, Monsanto does not identify any conflicting or potentially conflicting contractual obligations, (iii) if, in Monsanto’s reasonable business determination, commercialization of the proposed FTO Review Product & Services will not negatively impact the Licensed Marks, and/or Monsanto’s business, including, but not limited to adverse effects with regard to intellectual property protection and enforcement, or political, human rights, or environmental protection concerns, (iv) if, in Monsanto’s reasonable determination, the proposed FTO Review Products & Services will comply with the Stewardship Requirements, and (v) if Scotts is in material compliance with the terms of this Agreement (provided that Monsanto’s positive assessment of such compliance will not operate as a waiver or release of any claim or breach of this Agreement).  If the proposed FTO Review Products & Services pass all elements of the FTO Review Process, Monsanto will notify Scotts that the proposed FTO Review Products & Services passed the FTO Review Process and are FTO Review Products & Services and shall be added to Schedule C. Monsanto shall conduct the FTO Review Process within a reasonable time frame, considering the volume of such requests and understanding that timing is important. In order to allow Monsanto to adequately prepare for the FTO Review Process, Scotts agrees to submit reasonable forecasts for product submissions on a quarterly basis.

2.2.3

For FTO Review Products & Services, Monsanto may use reasonable commercial efforts to timely register the Licensed Marks. All trademark applications/registrations of the Licensed Marks shall be in Monsanto’s own name. Scotts shall cooperate with Monsanto in any such registration or application, including payment of all Costs, related thereto for trademark clearance, filing, and maintenance (which includes, but is not limited to,

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2.2.4

For FTO Cleared Products, Monsanto will use reasonable commercial efforts to timely register the Licensed Marks. All trademark applications/registrations of the Licensed Marks shall be in Monsanto’s own name. Scotts shall cooperate with Monsanto in any such registration or application. Monsanto shall pay all Costs related thereto for trademark clearance, filing, and maintenance (which includes, but is not limited to, payment of use taxes, renewal fees, costs of oppositions and cancellation actions against confusingly similar Third Party trademarks as deemed necessary by Monsanto in its reasonable business judgment). Monsanto does not in any way guarantee the results of its efforts hereunder.

2.2.5	Scotts shall reimburse Monsanto for the reasonable Costs of the FTO Review Process in accordance with this Agreement, except that Scotts shall not reimburse Monsanto for Costs relating to reviewing conflicting contractual obligations. Further, the Parties shall cooperate to control reimbursable Costs, including trademark clearance costs.

2.2.6

Subject to the provisions of Section 17 (CONFIDENTIALITY) to this Agreement, Monsanto may, in its reasonable business judgment, share information with Scotts (including Confidential Information) that could reasonably assist Scotts in the manufacture, production, advertising and marketing, to commercialize the FTO Cleared Products and/or FTO Review Products & Services; except that Monsanto shall provide the foregoing information to Scotts with respect to weed preventer technology that Monsanto’s Lawn and Garden commercial staff has developed in 2014 and prior to the Effective Date.

2.3	LIMITS ON LICENSE

2.3.1

Without limiting any other provisions herein, Scotts shall perform its obligations under this Agreement and exercise the license rights granted hereunder in accordance with all applicable laws, rules, and regulations including but not limited to, local and national laws, rules, and regulations, treaties, voluntary industry standards (if any), association laws (if any), codes or other obligations pertaining to this Agreement and/or to any of Scotts activities under this Agreement, including but not limited to those applicable to any tax, privacy of individuals, anti-bribery or corruption (including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and any amendment thereto), environmental laws, and the manufacture, pricing, packaging, sale, or distribution of the FTO Cleared Products or FTO Review Products & Services (collectively “Laws”).

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2.3.2	Scotts shall not knowingly, after conducting reasonable due diligence, use, manufacture, market, sell or distribute FTO Cleared Products or FTO Review Products & Services in violation of, or that infringe upon, any patents, trademarks, copyrights, trade dress, trade secrets or any other intellectual property rights of any Third Party and/or Monsanto.

2.3.3	Nothing in this Agreement shall be deemed to imply or create any restriction on Scotts’ freedom to sell the FTO Cleared Products or FTO Review Products & Services at such prices as Scotts shall solely determine.

2.3.4	The license(s) granted herein shall not be sublicensed by Scotts except as set forth in Section 2.4 below and subject to all other terms of the Agreement.

2.3.5	Scotts expressly agrees it shall not knowingly, after conducting reasonable due diligence use the Licensed Marks outside the Residential Lawn & Garden Field or otherwise in a manner inconsistent with this Agreement.

2.4	SUBLICENSES AND OTHER OBLIGATIONS

2.4.1

Scotts shall not grant a sublicense to any of its rights under this Agreement, including the Licensed Marks, except as expressly provided herein.  Scotts may sublicense the Licensed Marks to Contract Manufacturers for the limited purpose of (i) manufacturing FTO Cleared Products or FTO Review Products and selling said products to Scotts, (ii) enabling Scotts’ to market and promote the FTO Cleared Products and FTO Review Products & Services (for example, advertising and promotional agencies), and (iii) granting sub-licensees to Third Parties for the development, manufacture, production, advertising, marketing, promotion, distribution, and sale of FTO Cleared Products and FTO Review Products & Services (“Scotts Sub-Licensees”), (collectively  “Contract Manufacturers”).  Contract Manufacturers receiving a sublicense hereunder (i) must be subject to the terms and conditions of this Agreement, including the Stewardship Requirement and Trademark Usage Rules, pertaining to the relevant FTO Cleared Products, FTO Review Products & Services and Licensed Marks, and (ii) may not grant any further sublicense or any other right, title or interest in the sublicense granted to it. If the conduct of a Contract Manufacturer, had such conduct been performed by Scotts, would be a breach of this Agreement, such conduct shall be deemed a breach by Scotts of this Agreement.  Any sublicense granted hereunder shall provide for automatic and immediate termination if this Agreement expires or is terminated for any reason.  Scotts shall, at its expense, record the sublicense or a registered user agreement in any country or territory where such recording is deemed reasonably necessary by Monsanto and no use of the Licensed Marks shall commence under any such sublicense in any country or territory in which approval of the sublicense by any entity is required prior to the use of the Licensed Marks thereunder until such approval is obtained.

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2.4.2

In addition to the terms of this Agreement, Scotts shall require that its Sub-Licensees shall further comply with such additional product quality, stewardship and branding provisions as Scotts requires, for the same or similar products to the FTO Cleared Products and FTO Review Products, for licensees of the Scotts brand and Miracle-Gro brands on such products. Scotts and its Contract Manufacturers shall comply with certain standards of manufacturing (“Standards of Manufacturing”) as set forth on Schedule G and Scotts acknowledges it has received the terms of Monsanto’s Supplier Code of Conduct, which can be viewed at http://www.monsanto.com/whoweare/pages/supplier-code-of-conduct.aspx (or such website address or other source as Monsanto shall provide from time to time) and which is incorporated herein by reference in full. Scotts shall be liable for any breaches of the Standards of Manufacturing by its Contract Manufacturers as if Scotts itself had committed such breach.

2.4.3

Scotts shall comply with anti-bribery or corruption laws (including without limitation the United States Foreign Corrupt Practices Act of 1977 and any amendment thereto), and applicable local environmental laws and shall make commercially reasonable efforts to ensure its Contract Manufacturers comply with same.  This includes, but is not limited to, taking appropriate steps to develop, implement and maintain procedures to evaluate and monitor Contract Manufacturers used to manufacture, market, sell and/or distribute the FTO Cleared Products or FTO Review Products & Services or components thereof and to ensure compliance with this Section 2.4, including but not limited to, on-site inspections of manufacturing, packaging and distribution facilities.

2.4.4

Monsanto and its designated agent(s) have the right, at all reasonable times and upon reasonable notice, to inspect and examine the methods, processes, containers, materials, and manufacturing locations, including Scotts’ and Contract Manufacturer’s locations, used in the manufacture and production of the FTO Cleared Products or FTO Review Products & Services on and in connection with which any Licensed Mark is used by Scotts. Such inspections and examinations shall not be more frequent than once per year absent a material breach of contract claim. Monsanto’s rights under this Section shall be without additional restrictions.

3.	QUALITY AND QUALITY CONTROL

3.1

The quality and style of the FTO Cleared Products and FTO Review Products & Services and related packaging, labeling, shipping cartons, advertising and promotional materials shall be subject to Monsanto’s Trademark Usage Rules. Monsanto and Scotts acknowledge and agree that Monsanto may, in its discretion, and shall, if reasonably requested by Scotts, prepare and provide appropriate Trademark Usage Rules for countries in the Territory in which the Licensed Marks are not used as of the Execution Date to reflect the differences in branding appearance and brand architecture. Scotts agrees to comply with the Trademark Usage Rules at all stages of production and distribution of the FTO Cleared Products and FTO Review Products & Services.

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3.2

Scotts acknowledges that if the FTO Cleared Products or FTO Review Products & Services manufactured or sold by Scotts fall below the Stewardship Requirements and Scotts’ usual standards for quality, safety, design, material and workmanship, the substantial goodwill which Monsanto has built up and now possesses in the Licensed Marks will be impaired. Accordingly, it is an essential condition of this Agreement and Scotts hereby covenants and agrees that the FTO Cleared Products or FTO Review Products & Services covered by this Agreement, and all packaging and labeling, shall be of high standards and of such quality, style and appearance as shall (in the reasonable judgment of Monsanto) be adequate and suited to their exploitation to the best advantage and to the protection and enhancement of the Licensed Marks and goodwill pertaining thereto. Monsanto does acknowledge that prior product, packaging and labeling produced and/or used by Scotts in connection with the Agency Agreement are representative of the high standards Monsanto requires for the protection and enhancement of its brands.

3.3

Scotts represents that it shall not knowingly, after conducting reasonable due diligence, make any claim or representation that is false, misleading, unsupported or in any way a violation of Laws, including, but not limited to, performance claims. Monsanto expressly disclaims and shall have no liability arising by virtue of right of review and/or approval to Scotts or any Third Party, for any damages whatsoever arising out of or related to the FTO Cleared Products or FTO Review Products & Services, and Scotts agrees not to make any claims that such liabilities exist.

3.4	Both before and after Scotts commercializes FTO Cleared Products or FTO Review Products & Services, Scotts shall follow reasonable and proper procedures for testing that such products comply with all Laws, the Stewardship Requirements, information provided by Scotts to Monsanto as part of an FTO Review Process for that product and all of Scotts’ product quality and performance claims.

3.5

Scotts shall furnish to Monsanto, free of cost, for Monsanto’s review and comment, two (2) representative production samples, within 60 days of commercialization, of all new, materially altered or materially modified FTO Cleared Products and FTO Review Products & Services, together with their packaging, labeling and shipping cartons. No later than August 1 of each year during the Term, Scotts shall furnish to Monsanto, free of cost, for its review and comment, two (2) representative production samples, as applicable, of each of the FTO Cleared Products and FTO Review Products & Services together with their packaging, labeling, shipping cartons which were used on or in any stock keeping unit (“SKU”) of the FTO Cleared Products or FTO Review Products & Services sold by Scotts in each country of the Territory within the prior twelve (12) month period. For each use of the Licensed Mark, Scotts shall also furnish to Monsanto, free of costs, for its review and comment six (6) representative samples each of (i) print, television and radio advertising materials, (ii) promotional materials, (iii) point of sale displays, (iv) internet or other electronic related advertisements, and (v) social media uses to confirm compliance with the terms of this Agreement.

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3.6

Products that would otherwise be FTO Cleared Products or FTO Review Products & Services, but which are not manufactured, packaged, advertised, marketed, promoted, distributed, or sold in accordance with all applicable Laws and the Stewardship Requirements shall be deemed outside of the Residential Lawn & Garden Field, and hence not FTO Cleared Products or FTO Review Products & Services, and shall not be shipped or permitted to be otherwise further commercialized unless and until they have been brought into full compliance.

3.7

Scotts hereby agrees, represents and warrants that it shall not knowingly use any Licensed Mark or any similar mark as part of any trade name, company name, or internet domain name without express prior written permission of Monsanto. Despite such usage being outside the scope of this Agreement, if Scotts desires to use a domain name that incorporates a Licensed Mark, it may request such permission from Monsanto, and Monsanto may consider, if applicable, whether to register and license such usage and the terms upon which it may do so, with Monsanto’s timely and reasonable approval.

4.	NEW MATERIAL

4.1

Subject to the terms of this Agreement, to the extent Scotts creates and develops new logos, designs or artwork incorporating the Licensed Marks, and subject to Monsanto’s prior reasonable written approval of the representation of the Licensed Mark to be used by Scotts (“New Material”), any such New Material shall be the sole and exclusive property of Monsanto, and provided that such New Material complies with the Trademark Usage Rules, Section 3.2 and Section 6.2, shall be included in the definition of Licensed Marks and subject to the terms of this Agreement. For the purpose of clarification, all new logos, designs, and artwork created or developed by Scotts that does not incorporate the Licensed Marks, but are used in relation to the packaging or labeling of the FTO Cleared Products or FTO Review Products & Services shall remain the sole and exclusive property of Scotts (“Scotts’ Material”).

4.2

All such New Material are works for hire and commissioned works (in accordance with applicable intellectual property laws); Monsanto is the commissioning party for, author of, and owner of all rights in the New Material, and all intellectual property rights in the New Material shall vest ab initio in Monsanto. Scotts acknowledges and agrees that it does not own and shall not claim any rights in any New Material.

4.3

To the greatest extent permitted by Laws and in the event any right, title or interest in the New Material created by Scotts does not vest ab initio in Monsanto and remains vested in Scotts, Scotts hereby assigns absolutely and exclusively all such rights, title and interest world-wide in perpetuity to Monsanto and undertakes not to exercise any moral rights in any work comprising or contained in such New Material.

4.4	In the event that any right, title or interest in any New Material created by Scotts is not transferred to Monsanto by operation of assignment, Scotts undertakes not to exercise any

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4.5

During the Term and thereafter, Scotts shall promptly execute and provide to Monsanto such documents and take such actions as Monsanto reasonably requests or as is necessary or appropriate under Laws to vest in any of the foregoing rights in Monsanto or its authorized designee. Scotts further covenants that any such New Material and Scotts’ Material is original to Scotts or such Third Party and does not and will not knowingly, after conducting reasonable due diligence, violate the rights of any other Person; this covenant regarding originality shall not extend to any materials Monsanto supplies to Scotts, but does apply to all materials Scotts or Scotts’ Third Party contractors may add.

5.	PRODUCT INQUIRIES

5.1

Scotts will, at its sole cost, handle all product warranty and guarantee/satisfaction issues, response and compliance requirements, as well as all consumer inquiries, complaints, or reports of safety or quality issues (collectively “Consumer Inquiries”) relating to any of the FTO Cleared Products or FTO Review Products & Services. Scotts shall handle any such inquiries in a manner and process consistent with the handling of similar inquiries for its own products, using tools, by way of example, such as a toll-free consumer comments phone number and/or an e-mail or website address (as well as contact information for any other then customary method for such communications). Scotts will provide, and fund resources for staffing, such methods for receipt of consumer comments at least during normal business hours, and shall also provide and fund a referral provision for handling emergency calls/e-mails/communications outside normal business hours. Scotts agrees to log all consumer complaints, along with contact information, into a database for tracking purposes. Scotts shall submit to Monsanto to the below address a summarized report of complaints received thirty (30) days after the end of each calendar quarter, which will include the type of complaint received and geographic location of the complaints. With respect to consumer complaints that may reasonably be expected to cause harm to the Licensed Marks, Scotts shall expeditiously notify Monsanto of any such complaints and the Parties shall confer and cooperate as to how to handle or respond to such complaints. Any consumer contact information that is collected will be summarized in such a way to make it legally permissible that it be shared with Monsanto to the extent permitted by applicable Laws. Scotts will

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5.2

Scotts shall reasonably promptly notify Monsanto if Scotts obtains information that Scotts reasonably determines supports the conclusion that any FTO Cleared Products or FTO Review Products & Services may fail to comply with one or more safety requirements, the Stewardship Requirements under this Agreement, or may contain a defect that could create a substantial risk of injury to the public, in the United States this includes injury as required by 15. U.S.C. § 2064, and thereafter shall provide Monsanto with timely information regarding further developments.  Scotts, at its expense and in compliance with CPSC regulations and any other applicable local governmental requirements, shall notify the CPSC (or other local governmental agency specified by local Law or Monsanto) of such defect or failure to comply and shall take such further actions as the CPSC or other local governmental agency shall direct, including, without limitation, notifying the public of such failure or defect, recalling the FTO Cleared Products and/or FTO Review Products & Services from authorized customers, retailers and consumers, repairing or replacing the Licensed Products and refunding others by reason of the recall (all such actions being referred to collectively as the “Recall Campaign”).  Subject to privilege considerations, Scotts shall provide Monsanto with contemporaneous copies of correspondence and communications related to the foregoing.   Monsanto may share information received from Scotts under this Section 5.2 with any relevant government authorities. The obligations of Scotts under this paragraph are in addition to, and not in limitation of, other obligations, representations, warranties and indemnities of Scotts.

5.3

Notwithstanding anything to the contrary herein and upon reasonable consultation with Monsanto, Scotts shall determine the manner, text and timing of any publicity to be given in connection with such Recall Campaign, in conjunction with any applicable United States or other local governmental agency, such as the CPSC, EPA or FDA.  However, Scotts shall be permitted to proceed without consultation with Monsanto, if in Scotts’ sole discretion, it deems a particular situation to require an immediate response or public statement. Scotts agrees that it shall maintain all of its production and shipment records for such period as may be required by Laws, and in any event at least twelve (12) months beyond the stated shelf life of the FTO Cleared Products or FTO Review Products in order to facilitate any such Recall Campaign.  Scotts shall (a) bear all costs and expenses incurred in withdrawing,

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5.4

Without limiting the foregoing, Scotts shall give Monsanto written notice of any product liability suit filed with respect to any FTO Cleared Products or FTO Review Products & Services; any investigations or directives regarding the FTO Cleared Products or FTO Review Products & Services issued by the CPSC, EPA, FDA, or other federal, state, provincial, or local consumer safety agency; and any notices sent by Scotts to, or received by Scotts from, the CPSC or other consumer safety agency or other governmental agency regarding the safety of the FTO Cleared Products or FTO Review Products & Services within seven (7) days of Scotts’ receipt or promulgation of claim, suit, investigation, directive, or notice.

5.5	Scotts shall place its own name on the FTO Cleared Products and FTO Review Products & Services and packaging materials unless such is expressly prohibited by applicable Laws.

6.1

Monsanto’s Rights: Scotts recognizes the great value of the goodwill associated with the Licensed Marks, and Scotts acknowledges that its and Scotts’ Sub-Licensees’ use of the Licensed Marks in accordance with the terms of this Agreement shall accrue and inure to the sole benefit of Monsanto, that the Licensed Marks and all rights therein and goodwill pertaining thereto belong exclusively to Monsanto and that the Licensed Marks have secondary meaning in the minds of the public. Except as otherwise provided for herein, upon expiration or termination of this Agreement, Scotts shall immediately cease all use of the Licensed Marks and will not use the same thereafter, unless such use is otherwise authorized, and will, at Monsanto’s direction, destroy or return to Monsanto all materials and documentation related to the Licensed Marks.

6.2

Scotts agrees that it will not, during the Term or thereafter, challenge the title or any rights of Monsanto in and to the Licensed Marks or challenge the validity of this Agreement or do anything either by an act of omission or commission which might impair, violate or infringe any of the Licensed Marks and will not claim adversely to Monsanto or anyone claiming through Monsanto any right, title or interest in or to the Licensed Marks and will not misuse or harm or bring the Licensed Marks into public disrepute. In the event Scotts challenges any of the foregoing, such challenge shall immediately be deemed a Material Breach subject to the dispute resolution process set forth in Section 16 herein, and Scotts shall cooperate with Monsanto to dismiss with prejudice any such challenge. Scotts agrees that it has not and during the Term and thereafter will not for its benefit, directly or indirectly, register(ed) or apply(ied) for or maintain registration of any of the Licensed Marks or any

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6.3	Scotts agrees to cooperate fully and in good faith with Monsanto for the purpose of securing and preserving Monsanto’s rights in and to the Licensed Marks.

7.	RECORDAL OF AGREEMENT

7.1

To the extent necessary to comply with applicable Laws, regulations and rules within the individual countries and jurisdictions within the Territory, including any obligation to record this Agreement, or a pro forma version of it, with respect to the Licensed Marks with appropriate governmental authorities to allow Scotts’ use, in accordance with the terms and conditions of this Agreement, to accrue to the benefit of Monsanto, and to allow Scotts, if necessary, to be named as a party in any proceedings relating to a Third Party claim relating to the Licensed Marks, Scotts shall cooperate and reimburse all Costs related to Monsanto’s preparation and filing of any and all required documents with the appropriate government authorities to record the license to the Licensed Marks granted by Monsanto to Scotts in this Agreement.

8.	MARKING

8.1

In countries or jurisdictions where marking is required, Scotts will place on all FTO Cleared Products and FTO Review Products & Services and on all related advertising, promotional and marketing materials that incorporate a Licensed Mark a notice or notices either identifying Monsanto as owner of the Licensed Marks or that the Licensed Marks are used under License, without reference to Monsanto, as applicable; however, in any country or jurisdiction where Monsanto must be identified as the owner of the Licensed Marks, the Parties shall reasonably cooperate to discuss options so as to avoid Scotts having to make direct reference to ”Monsanto” at Scotts’ Costs. Such notice shall be sufficient in size, legibility, form, location, number and permanency to comply with relevant territory laws in effect at the time of public distribution of the FTO Cleared Products or FTO Review Products & Services or advertising, promotional, or marketing material and also to comply with the notice requirements.

8.2	Scotts will not distribute or sell any FTO Cleared Products and any FTO Review Products & Services or advertising, promotional or marketing materials in its possession, custody or control that do not carry notices meeting the requirements of this Section 8.

8.3

On each FTO Cleared Product or FTO Review Product & Service where the FTO Cleared Product or FTO Review Product & Service bears or is similar in appearance to the Licensed Marks of Monsanto, Scotts will ensure there shall be displayed a “TM” until such time as Monsanto notifies Scotts that the Licensed Marks are covered by a registration for the relevant FTO Cleared Product or FTO Review Product & Service and thereafter, as soon as

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9.	PAYMENTS

9.1	The Parties acknowledge and agree that Monsanto received consideration for the rights and licenses granted herein pursuant to the May 15, 2015 Lawn and Garden Brand Extension Agreement.

9.2	All Costs under this Agreement for which Scotts has agreed to pay Monsanto shall be paid within sixty (60) days of Scotts’ receipt of Monsanto’s invoice. Monsanto’s invoice shall set out sufficient details to identify each Cost as covered by this Agreement.

10.	TERM AND TERMINATION

10.1

The initial Term of this Agreement is from the Effective Date to May 31, 2035. The Term shall automatically renew for additional successive twenty (20) year periods, at Scotts’ sole option and for no additional monetary consideration, unless (a) this Agreement is terminated by Scotts by providing Monsanto with a notice of termination on or before one hundred twenty (120) days prior to the expiration of any calendar year of the initial term or any renewal term, or (b) this Agreement is otherwise terminated as set forth by the terms in this Agreement.

10.2

However, provided Scotts has materially complied with all the terms of this Agreement, and provided the FTO Cleared Products and/or FTO Review Products subject to the Sell Off Period hereunder are not the subject of any pending dispute between the Parties, Scotts, except as otherwise provided in this Agreement, may sell the FTO Cleared Products and/or FTO Review Products by this Agreement which are on hand or in process of manufacture at the time of expiration or termination of this Agreement for a period of thirty-six (36) months after the expiration or termination (the “Sell Off Period”).

11.	ASSIGNMENT

11.1

This Agreement and the various rights and obligations arising hereunder shall inure to the benefit of and be binding upon the Parties hereto and their respective heirs, legal representatives, successors, and permitted assigns.  Except as set forth in this Section 11, and except for a Change of Control under Section 10.4(b)(7) of the Agency Agreement that does not provide Monsanto Company termination rights under the Agency Agreement, neither this Agreement nor any of the rights, interests, or obligations hereunder shall be transferred, delegated, or assigned by a Party (by operation of law or otherwise) without the prior written consent of the other Party. Notwithstanding the foregoing, (a) Monsanto Company shall have the right to transfer and assign Monsanto’s rights, interests and

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12.	REPRESENTATIONS AND WARRANTIES

12.1	SCOTTS’ REPRESENTATION AND WARRANTIES:

12.1.1	The Scotts Company LLC is a corporation duly organized, validly existing and in good standing under the laws of the state of Ohio and has all requisite corporate power and authority to carry on and conduct its business as it is now being conducted.

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12.1.2

The Scotts Company LLC has the corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder, to obligate its Affiliates to perform hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized, approved and ratified by all necessary action on the part of The Scotts Company LLC. This Agreement is a legal, valid and binding obligation of Scotts enforceable in accordance with its terms.

12.1.3

Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (a) contravene, conflict with or result in a violation of any applicable Laws; (b) conflict with any of the provisions of The Scotts Company LLC’s organizational documents; (c) violate the terms of any other material agreement, contract or other instrument to which The Scotts Company LLC is a party; or (d) give rise to any consent or authorization of any other Person.

12.1.4

In addition to, and without limiting any representation and/or warranty contained in this Agreement, The Scotts Company LLC hereby further represents, warrants and agrees that it and its Affiliates will conduct its activities under this Agreement in accordance with all applicable Laws. The Scotts Company LLC further represents, warrants and agrees that the FTO Cleared Products and FTO Review Products & Services, packaging, labeling, shipping cartons, advertisement and/or promotional materials, and/or any other materials used by Scotts under Scotts’ performance of this Agreement will not violate or infringe on any Third Party patents, trademarks, copyrights, trade dress, trade secrets or any other intellectual property rights.

12.2	MONSANTO’S REPRESENTATION AND WARRANTIES

12.2.1	Monsanto Company is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware and has all requisite corporate power and authority to carry on and conduct its business as it is now being conducted.

12.2.2

Monsanto Company has the corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder, to obligate its Affiliates to perform hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized, approved and ratified by all necessary action on the part of Monsanto Company. This Agreement is a legal, valid and binding obligation of Monsanto, enforceable in accordance with its terms.

12.2.3	Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (a) contravene, conflict with or result in a violation of any applicable Laws; (b) conflict with any of the provisions of Monsanto Company’s organizational documents; (c) violate the terms of any other material agreement, contract

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12.2.4

In addition to, and without limiting any representation and/or warranty contained in this Agreement, Monsanto Company hereby further represents, warrants and agrees that the Licensed Marks are exclusively owned by Monsanto Company or one of its Affiliates for the use and sale of the products referenced in each Trademark Registration for the Licensed Marks. Monsanto specifically disclaims any warranty that Scotts will be free from claims of third parties with respect to the use of the Licensed Marks as such claims may related to the FTO Review Products & Services. Scotts assumes the risk of use of the Licensed Marks as to the FTO Review Products & Services, including but not limited to, prior use or conflict based on Third Party rights.

13.	INDEMNIFICATION AND CLAIMS PROCEDURE

13.1

(a) Scotts agrees to indemnify, defend and hold harmless Monsanto and its employees, officers, directors, agents and assigns from and against any and all loss (including reasonable attorneys’ fees), damage, injury or liability and asserted by or on behalf of a Third Party for injury, death or loss of or damage to property, including employees and property of Monsanto (“Loss”), to the extent resulting directly or indirectly from Scotts’ (i) material breach of a duty, representation, or obligation under this Agreement, or (ii) negligence or willful misconduct in the performance of its obligations under this Agreement. Promptly after receipt by Monsanto of any notice of any demand, claim or circumstances which, with the lapse of time, would or would reasonably be expected to give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation (an “Asserted Liability”) that may result in a Loss, Monsanto shall give notice thereof pursuant to Section 18 (the “Claims Notice”) to Scotts to provide indemnification. The Claims Notice shall describe the Asserted Liability in reasonable detail, and shall indicate the amount (estimated, if necessary to the extent feasible) of the Loss that has been or may be suffered by Monsanto.

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13.1.1	The Indemnifying Party may elect to compromise or defend, at its own expense by its own counsel, any Asserted Liability;

13.1.2

If the Indemnifying Party elects to compromise or defend such Asserted Liability, it shall within thirty (30) days (or sooner if the nature of the Asserted Liability so requires) notify the Non-Indemnifying Party of its intent to do so, and the Non-Indemnifying Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Asserted Liability, and shall make available to the Indemnifying Party any books, records or other documents within its control that are necessary or appropriate for such defense;

13.1.3

If the Indemnifying Party has elected to defend the Asserted Liability, any offer to compromise or settle transmitted to the Indemnifying Party shall thereafter be transmitted in writing to the Non-Indemnifying Party. If, after a reasonable period of time to consider such offer, which time shall be deemed to be ten (10) days from the date of transmittal of such offer using the notice procedures set forth in Section 13.1 unless the circumstances otherwise require, the Non-Indemnifying Party refuses to give consent to the settlement or compromise of the Asserted Liability, then the liability of the Indemnifying Party with respect to such Asserted Liability shall be thereafter limited to the amount of the offer of settlement or compromise. This cap on liability shall not be applicable (i) if the Indemnifying Party does not elect to defend the Non-Indemnifying Party against the Asserted Liability or (ii) unless such offer to compromise or settle (a) contains an unconditional release of the Non-Indemnifying Party from all liability related to the Asserted Liability, (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Non-Indemnifying Party and (c) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Non-Indemnifying Party;

13.1.4	Notwithstanding the foregoing, neither Party may settle or compromise any claim over the objection of the other, provided however, that consent to settlement or compromise shall not be unreasonably withheld;

13.1.5

If the Indemnifying Party elects not to compromise or defend the Asserted Liability, fails to notify the Non-Indemnifying Party of its election as herein provided, or contests its obligation to indemnify under this Agreement, the Non-Indemnifying Party may pay, compromise or defend such Asserted Liability, with a reservation of all rights to seek indemnification hereunder against the Indemnifying Party; and

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13.1.6	Notwithstanding the foregoing, either Party may participate, in all instances, and at its own expense, in the defense of any Asserted Liability.

13.2	The Non-Indemnifying Party shall, at the Indemnifying Party’s reasonable expense, provide all reasonable assistance in defending any action or claim.

13.3	Neither failure to comply nor compliance with the insurance provision of this Agreement shall limit or relieve Scotts from holding Monsanto harmless under this Section 13 or elsewhere in this Agreement.

13.4

Scotts expressly recognizes that the Licensed Marks possess a special unique and extraordinary character which makes it difficult to assess the amount of monetary damages which Monsanto would sustain by unauthorized use. Scotts expressly recognizes and agrees that an irreparable injury would be caused to Monsanto by unauthorized use and agrees that preliminary and permanent injunctive and other equitable relief would be appropriate in the event of a breach of this Agreement by Scotts, provided that such remedy shall be cumulative to and in no way exclusive of any other remedies, legal, equitable or otherwise available.

14.	INFRINGEMENTS

14.1

Scotts shall promptly notify Monsanto in writing of any infringements, dilutions or imitations by any Third Party of any of the Licensed Marks once Scotts becomes aware of any such infringements, dilutions or imitations. Monsanto shall have the sole right to determine whether or not any action shall be taken on account of any such infringements, dilutions or imitations of the Licensed Marks. Monsanto, if it so desires, may commence or prosecute any claims or suits in its own name or in the name of Scotts or join Scotts as a party thereto, but it is understood and agreed that Monsanto is under no obligation whatsoever to institute suit or take any other action on account of such infringements.

14.2

In the event Monsanto elects not to take any action pursuant to Section 14.1, Scotts shall not institute any suit or take any action on account of any such infringement, dilution or imitation without first obtaining the written consent of Monsanto. If Monsanto provides its written consent, Scotts may institute and prosecute or defend (as applicable) proceedings with respect to the actions on its own in its own name and at its cost, in which case Scotts must give Monsanto reasonable notice and keep Monsanto advised of the progress of such proceedings, provided that nothing in this Agreement compels Monsanto to institute, prosecute or defend any proceedings. In the event any jurisdiction or country does not allow Scotts to bring an action under this Section as a licensee, Monsanto shall not unreasonably refuse to be named as a party; subject to Monsanto’s reasonable objections, Scotts shall hire counsel and shall control the litigation. Scotts will reimburse Monsanto for all reasonable expenses relating to cooperating in the litigation, except that if Monsanto retains its own counsel, Scotts shall not reimbursement such counsel’s costs or fees, including attorney’s fees.

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15.	INSURANCE

15.1	Scotts shall, during the term of this Agreement, maintain full insurance against the risk of loss or damages related to Scotts’ use of the Licensed Marks pursuant to the Agreement and, upon request, shall furnish Monsanto with satisfactory evidence of the maintenance of said insurance.

16.	DISPUTE RESOLUTION

16.1

The Parties recognize that bona fide disputes may arise from time to time in connection with this Agreement. The Parties shall use reasonable good faith efforts to resolve such disputes in a prompt and amicable manner. If the Parties are unable to resolve promptly any such dispute, either Party may, by written notice to the other, refer the dispute to senior executives of each Party. The written notice must contain a description of the dispute, including the factual and legal basis of the noticing Party’s position and the relief sought. Each Party shall promptly nominate a senior executive with authority to settle the dispute in question. The senior executives shall act in good faith and attempt to reach a resolution of the dispute, including, if they deem it necessary, by meeting in person.

16.2

If the senior executives are unable, within thirty (30) days of the notice of dispute, to resolve the dispute then either Party may request that the dispute proceed to non-binding mediation. The Parties shall select a mediator through the Center for Public Resources to aid them in attempting to resolve the dispute. The Parties shall participate in good faith in the mediation process, including by sending a representative to the mediation proceedings who has authority to settle the dispute in question.

16.3	If, after such good faith participation in the mediation process, the Parties are unable to resolve the dispute, either Party may elect to have the dispute resolved through the initiation of litigation or through binding arbitration, as applicable to the dispute and as set forth below.

16.4

With regard to a dispute in connection with this Agreement that involves (a) allegations of a Material Breach (and at the complaining Party’s option all related claims arising out of the same set of operative facts involved in the allegations of Material Breach), (b) the validity, enforceability or infringement of intellectual property rights, or (c) claims of significant damage to the Roundup brand, any suit or action must be brought in the United States District Court for the District of Delaware, and Scotts and Monsanto hereby irrevocably submit to the jurisdiction of such court for the purpose of such suit or action. If such court does not have jurisdiction over the subject matter of such suit or action or, if such jurisdiction is otherwise not available, then such suit or action shall be brought in the Court of Chancery of the State of Delaware, County of New Castle, and Scotts and Monsanto hereby irrevocably submit to the jurisdiction of such court for the purpose of such suit or action. Scotts and Monsanto irrevocably waive any objection to either of the venues set forth above in connection with such suit or action and further irrevocably waive any claim that any such

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16.5	With regard to any dispute in connection with this Agreement that is not within the scope of Section 16.4 (an “Arbitral Matter”), either Party may submit such Arbitral Matter to binding arbitration in accordance with the CPR Rules for Non-Administered Arbitration (2007 Rev.) (the “CPR Rules”) by providing the other Party written notice specifying the subject of the requested arbitration.

16.6

All Arbitral Matters shall be referred to and fully and finally decided by an Arbitral Tribunal consisting of three (3) independent arbitrators selected by the Parties in accordance with the terms hereof (the "Arbitral Tribunal"). The arbitrators will be selected in accordance with Rule 6 of the CPR Rules in effect as of the Effective Date (attached hereto as Schedule F). All members of the Arbitral Tribunal shall be attorneys, at least one of whom has substantial experience in the area of trademark law or other related intellectual property law.

16.7	As used herein, and in addition to any requirements of Rule 6 of the CPR Rules, an "independent" arbitrator must have no personal or financial interest in either Party or in the outcome of the matter in dispute. Without limiting the generality of the foregoing, an "independent" arbitrator is not, directly or indirectly:

16.7.1	a current employee, contractor or consultant of either Party, or someone who has been engaged in any such capacity within the forty-eight (48) month period prior to selection hereunder;

16.7.2	a person who currently or at any time within the forty-eight (48) month period prior to selection hereunder is or has been retained as counsel to either Party;

16.7.3	a person who is or has been a member, employee or affiliate of a law firm that currently or at any time within the forty-eight (48) month period prior to selection hereunder has been retained as counsel to either Party;

16.7.4	a current shareholder of either Party, unless such shares are owned through a mutual fund or other similar pooled investment vehicle or brokerage account in respect of which the individual is not permitted to exercise any control regarding the purchase or sale of debt or equity;

16.7.5	a current lender to either Party; or

16.7.6	a current customer of or vendor to either Party, or someone who has engaged in trade or business with a Party in the prior twenty-four (24) months having an aggregate value in excess of twenty-five thousand dollars ($25,000).

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16.8

All Arbitral Proceedings shall be held in Chicago, Illinois. English shall be the language used in the Arbitral Proceeding; all notices, written communications, written statements, briefs and similar documents submitted or exchanged in the proceedings shall be in English and all oral proceedings shall be conducted in English. Any exhibit, item or documentary evidence originally created in a language other than English and submitted in the course of the proceedings shall be accompanied by an accurate translation into English, and statements of representatives or witnesses made during oral proceedings in a language other than English shall be simultaneously translated into English. To the extent not addressed by the foregoing, detailed requirements for translations into English shall be established by the Arbitral Tribunal.

16.9

The Arbitral Tribunal shall fully consider the Arbitral Matter, including the issues and evidence presented and the relief requested. Subject to any limitations imposed under this Agreement in respect of the particular Arbitral Matter, the Arbitral Tribunal shall determine the appropriate relief and award to be made. All final arbitral awards shall state the relief or remedies being granted, the claim or claims being decided, and the basis or bases for the decisions being made. The arbitral award may be enforced in any court of competent jurisdiction and the Parties shall be bound thereby and shall comply therewith.

16.10	The arbitration provisions in this Agreement shall be governed by, and all rights and obligations specifically enforceable under and pursuant to, the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the laws of the State of Delaware, without reference to the choice of law principles thereof.

16.11

Within thirty (30) days after appointment of the Arbitral Tribunal, the Arbitral Tribunal shall hold a pre-hearing conference with the Parties to establish the scope of and schedules for completion of discovery, exchange of exhibit and witness lists, filing of arbitration briefs, setting the hearing, and to address other procedural matters and any other appropriate questions that may be presented.

16.12	The arbitral hearing shall be conducted to allow reasonable procedural due process. Rules of evidence need not be strictly followed, and the hearing shall be streamlined as follows:

16.12.1	Documents shall be self-authenticating, subject to valid objection by the opposing party;

16.12.2	Expert reports, witness biographies, depositions, and affidavits may be utilized, subject to the opponent's right of a live cross-examination of the witness, although in the Arbitral Tribunal's discretion a video-recorded cross-examination at deposition may be sufficient under this section;

16.12.3	Charts, graphs, and summaries may be utilized to present voluminous data, provided that the underlying data was made available to the opposing party thirty (30) days prior to the hearing, and that the preparer of each chart, graph, or summary is available for explanation and live cross-examination in person;

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16.12.4	The hearing should be held on consecutive Business Days without interruption to the maximum extent practicable;

16.12.5	A record shall be maintained that includes all proceedings which take place at the arbitral hearing and all evidence (including exhibits, deposition transcripts, affidavits or declarations admitted by the Arbitral Tribunal into evidence) presented at the hearing; and

16.12.6	The Arbitral Tribunal shall establish all other procedural rules for the conduct of the arbitration in accordance with the CPR Rules.

16.13

The nature, extent and control of document discovery, depositions, and other discovery shall be within the discretion of the Arbitral Tribunal. The Arbitral Tribunal shall permit and facilitate such discovery as it determines is appropriate under the circumstances and in light of the issues raised in the proceeding. The Arbitral Tribunal is empowered to issue subpoenas or otherwise compel pre-hearing document discovery or deposition discovery, to enforce the discovery rights and obligations of the Parties, and to otherwise control the scheduling and conduct of the proceedings. The Arbitral Tribunal shall have the power and authority to tailor or limit discovery in a manner that is fair to all Parties while expediting the arbitration proceeding so as to be able to render a final decision within nine (9) months after the pre-hearing conference (or such other time as the Parties mutually agree in writing).

16.14

The determination, award or other action of the Arbitral Tribunal will be considered the valid action of the Arbitral Tribunal if supported by the affirmative vote of at least two (2) of the three (3) arbitrators. The costs of arbitration (exclusive of a Party’s expenses in obtaining and presenting evidence, attending the arbitration, and retaining legal counsel and expert witnesses, all of which will be borne by such Party) will be shared equally by the Parties, unless the arbitrators determine that the non-prevailing Party did not act in good faith in referring the dispute for arbitration.

16.15	The Arbitral Proceedings will be conducted in private. The Parties will maintain the substance of any proceedings hereunder in confidence under Section 17 of this Agreement, and make disclosures to others only to the extent necessary to properly conduct the proceedings or to enforce or challenge the award (to the extent permitted by Law), or as otherwise required by Law.

16.16	Nothing herein shall be deemed as waiving or affecting, or intending to waive or affect, the right of any Party to challenge the enforceability of an arbitral award based upon the provisions of the Federal Arbitration Act or any other applicable statute, treaty, law or convention.

16.17	Nothing in this Section 16 or otherwise in this Agreement shall limit either Party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction. The Parties hereby agree that a Party who seeks only such injunctive or equitable relief in a court of competent jurisdiction in connection with an Arbitral Matter

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17.	CONFIDENTIALITY

17.1

Confidential Information: It is anticipated that it may be necessary, in connection with their obligations under this Agreement, for the Parties to disclose to each other Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean any and all proprietary information (including without limitation, information related to technical, safety, business, sales, marketing and intellectual property matters), know-how, data, intellectual property, trade secrets, and other physical materials owned or held by either Party to this Agreement, now and in the future, which is disclosed by either Party to the other Party in connection with this Agreement. The Confidential Information shall include proprietary information disclosed orally, in writing or other tangible form, including samples of materials. Information will be considered to be Confidential Information and protected under this Agreement if it is disclosed as “confidential” or “proprietary” (or an obvious equivalent at the time of disclosure), or if the information is summarized in a document provided to recipient within thirty (30) days of the disclosure.

17.2	Confidentiality and Limited Use:

17.2.1

With respect to all Confidential Information, both Parties agree as follows, it being understood that "recipient” indicates the Party receiving the confidential, proprietary information from the other "disclosing” Party. Each Party receiving Confidential Information from the other Party, or any of its Affiliates, shall be free to disclose such Confidential Information to its Affiliates and its and their officers, directors, employees, agents, representatives, contractors and consultants who have a reasonable need to know the same in furtherance of such recipient’s duties or exercise of such recipient’s rights under this Agreement. Confidential Information provided or disclosed to the recipient shall remain the property of the disclosing Party and shall be maintained in confidence by the recipient and shall not be provided or disclosed to Third Parties by the recipient and, further, shall not be used except for purposes contemplated in this Agreement. All confidentiality and limited use obligations with respect to the Confidential Information shall terminate five (5) years after the termination or expiration of this Agreement, whichever occurs first.

17.2.2

Notwithstanding any provision to the contrary, a Party may disclose the Confidential Information of the other Party: (i) as deemed advisable by the Party, together with its legal counsel or accounting advisors, to comply with any law or regulation; rules of any stock exchange on which shares of a Party or its Affiliate are listed; or in conformity with accounting principles generally accepted in the United States of America; (ii) in

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17.3	Exceptions: The obligations of confidentiality and limited use shall not apply to any of the Confidential Information which:

17.3.1	is publicly available by publication or other documented means or later becomes likewise publicly available through no act or fault of recipient; or

17.3.2	is already lawfully known to recipient, having been obtained by legal means and free from restrictions on disclosure, before receipt from the disclosing Party, as demonstrated by recipient’s written records; or

17.3.3	is made known to recipient, having been obtained by legal means and free from restrictions on disclosure, by a Third Party who did not obtain it directly or indirectly from the disclosing Party and who does not obligate recipient to hold it in confidence; or

17.3.4

is independently developed by the recipient, not in breach of this Agreement, as evidenced by credible written research records of recipient’s employees or agents who did not have access to the disclosing Party’s Confidential Information. Specific information should not be deemed to be within any of these exclusions merely because it is embraced by more general information falling within these exclusions.

17.4	Upon termination or expiration of this Agreement, originals and copies of Confidential Information in written or other tangible form shall be returned to the disclosing Party by recipient or destroyed by recipient. One copy of each document may be retained in the custody of the recipient’s legal counsel solely to provide a record of what disclosures were made.

17.5

Confidential Status of Agreement: The terms (but not the existence) of this Agreement shall be deemed to be Confidential Information and shall be dealt with according to the confidentiality requirements of this Section 17. Except as otherwise permitted herein, neither Party will make public disclosures concerning terms of this Agreement without obtaining the prior written consent of the other Party, which consent shall not be unreasonably withheld.

17.6	The Parties agree to confer and consult with each other regarding the contents of any press release(s) announcing the execution of this Agreement, the Agency Agreement and that

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18.	NOTICES

18.1

All notices, requests, approvals, disapprovals, consents and statements to be given and all payments to be made hereunder shall be given or made at the respective addresses of Monsanto and Scotts set forth below unless notification of a change of address is given in writing. All such notices shall be sufficiently given when the same shall be deposited so addressed, postage prepaid, in the United States mail and/or when the same shall have been delivered, so addressed, by facsimile or by overnight delivery service and the date of transmission by facsimile, receipt of overnight delivery service or two Business Days after mailing shall be the date of the giving of such notice.

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19.	FAILURE TO PERFORM

19.1

In the event of strike, lockout, or other labor trouble, riot, war, rebellion, fire, earthquake, accident, or act of God, or any act of governmental or military authorities (foreign or domestic), acts of terrorism, or any other similar occurrence beyond the control of either Party, which shall prevent or hinder performance hereunder, no default or liability for non-compliance occasioned thereby during the continuance thereof shall exist or arise. The Party prevented or hindered from performance hereunder shall give immediate notice to the other Party of the event.

20.	RESERVED.

21.	NO WAIVER: MODIFICATION: SEVERABILITY

21.1

None of the terms of this Agreement can be waived or modified except expressly in writing signed by both Parties. The failure of either Party to insist on compliance with any provision hereof shall not constitute a waiver or modification of such provision or any other provision. If any provision hereof is held to be invalid or unenforceable by any court of competent jurisdiction or any other authority vested with jurisdiction, such holding shall not affect the validity or enforceability of any other provision hereto.

22.	WHOLE AGREEMENT: CONSTRUCTION

22.1	Upon execution, this Agreement cancels, terminates and supersedes any prior Agreement or understanding relating to the subject matter hereof between Monsanto and Scotts. This Agreement includes the entire understanding between the Parties as to its subject matter, and there are no representations, promises, warranties, covenants, or undertakings other than those contained herein.

23.	GOVERNING LAW

23.1

The validity, interpretation and performance of this Agreement and any dispute connected with this Agreement will be governed by and determined in accordance with the statutory, regulatory and decisional law of the State of Delaware (exclusive of such state’s choice of laws or conflicts of laws rules) and, to the extent applicable, the federal statutory, regulatory and decisional law of the United States.

23.2

Any suit, action or proceeding against any Party hereto with respect to the subject matter of this Agreement, or any judgment entered by any court in respect thereof, must be brought or entered in the United States District Court for the District of Delaware, and each such Party hereby irrevocably submits to the jurisdiction of such court for the purpose of any such suit, action, proceeding or judgment. If such court does not have jurisdiction over the

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24.	SURVIVABILITY

24.1	The respective obligations of the Parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, including, but not limited to, indemnification, insurance, and audits, shall survive the Agreement’s termination, cancellation or expiration.

25.	MISCELLANEOUS

25.1	This Agreement shall bind and inure to the benefit of the Parties and their permitted successors and assigns.

25.2	The captions and headings contained in this Agreement are used for convenience only and shall not be deemed or construed to have any substantive content in interpreting the meaning of any of the provisions of this Agreement.

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25.3	The Parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the Parties. Neither Party has the authority to bind the other or to incur any obligation on the other’s behalf.

26.	COUNTERPARTS

26.1	The Parties agree that this Agreement may be signed in multiple, identical counterparts.

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1.	UNITED STATES OF AMERICA

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1.	Fertilizers for domestic use

2.	Fungicides for domestic use

3.	Insecticides for domestic use

4.	Mulch for domestic use

5.	Selective herbicides for domestic use

6.	Weed preventers for domestic use

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1.	Product Performance, Efficacy, Safety and Stewardship

a.	Claims, efficacy, safety, and stewardship must be in the top 10% of their competitive class and positioned as a premium product.

b.	Products must be free of defects and fit for their intended purposes.

2.	Toxicology

a.	The ingredients in the formulated product do not pose a significant risk to human or animal health.

i.

No ingredient in the formulated product is a known or presumed carcinogen, mutagen, teratogen, endocrine disruptor, reproductive toxin, or neurotoxin, according to conclusions of any of the following leading regulatory bodies: United States Environmental Protection Agency (“EPA”), Canadian Pest Management Regulatory Agency (“PMRA”), Australian Pesticides and Veterinary Medicines Authority (“APVMA”); European Food Safety Authority (“EFSA”); European Chemicals Agency (“EChA”).

ii.	No ingredient in the formulated product is included on Annex III of the Rotterdam Convention (PIC list) or listed in the Stockholm Convention.

b.	The formulated product does not pose a significant acute toxicity/irritation hazard and has no novel acute toxicological effects.

i.

Formulated product must be EPA category III or IV for acute oral, dermal and inhalation toxicity and eye/skin irritation (a maximum of ‘CAUTION’ signal word in the US). For countries outside the US, may not be classified in acute toxicity categories 1-4 for acute oral, dermal and inhalation toxicity under the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) (i.e., must be GHS Categories 5, with maximum ‘WARNING’ signal word based on acute toxicity) and may not be not be classified as skin corrosive or eye/skin irritant.

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3.	Environmental Profile

a.	Formulated product will not cause unreasonable adverse effects to the environment (including, but not limited to, air, soil, and water quality) when used in accordance with label instructions and widespread and commonly recognized practice.

4.	Eco-toxicology

a.

The formulated product may not be in GHS Category 1 for acute toxicity (i.e., “very toxic to aquatic life”) or GHS Category 1 or 2 for chronic toxicity (i.e., “very toxic to aquatic life” or “toxic to aquatic life”), or equivalent classifications for terrestrial life when those guidelines are developed under the GHS. No substantiated correlation between active ingredient and species population decline.

5.	Medical Treatment Information and Medical Management

a.	The immediate medical treatment information for all products is made available to Poison Control Centers and Safety Data Sheets are made available to customers.

b.	Medical Management - Product does not require early product identification by Poison Control Center

i.	Symptomatic treatment regime

ii.	No need for specific antidotal treatment

iii.	No need for early preventative therapy

6.	Use of Raw Materials

a.	Inert ingredients (co-formulants) in the formulation must be included on the EPA’s “Approved Inert Ingredient” list (or equivalent outside of the U.S.) and not specifically excluded by competent authorities.

b.	Product must not be subject to a carcinogenicity warning under California’s Prop 65 or similar law or regulation in the relevant jurisdiction.

7.	Packaging/claims

a.	Product labels must not be false, misleading or inadequate.

b.	Child Resistant Packaging – products must be packaged in accordance with FAO International Code of Conduct on Pesticide Management, as may be modified from time-to-

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c.	Labeling must encourage proper storage and disposal.

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I.	GENERAL ROUNDUP TRADEMARK USAGE - “ROUNDUP Word Mark” refers to the ROUNDUP trademark without any accompanying logo or design element.

A.	DISTINCTIVE: The ROUNDUP Word Mark shall always appear distinctive from surrounding text. Examples of proper treatment include the following.

1.	ALL CAPS: ROUNDUP® Ready-To-Use Selective Weed Killer or ROUNDUP™ branded insecticides for lawn and garden

2.	First Letter Capitalized: Roundup® Ready-To-Use Selective Weed Killer or Roundup™ branded insecticides for lawn and garden

3.	Bold: Roundup® Ready-To-Use Selective Weed Killer or Roundup™ branded insecticides for lawn and garden

4.	Italics: Roundup® Ready-To-Use Selective Weed Killer or Roundup™ branded insecticides for lawn and garden

B.	NOTICE: The first use of the ROUNDUP Word Mark in running text shall be immediately followed by the ™ symbol, until the mark is registered for the particular product(s) in the relevant jurisdiction, in which case the ™ shall be replaced by the ® symbol.

C.	APPROPRIATE USE OF THE ROUNDUP TRADEMARK

1.	Do not use the ROUNDUP Word Mark as a noun. Do not use the ROUNDUP Word Mark as a possessive, in a possessive form or as a verb.

2.	Do not make statements or claims about the ROUNDUP brand generally.  All statements, claims, images or other representations of or about a Licensed Product must be specific to the Licensed Product.

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D.	DO NOT USE THE ROUNDUP TRADEMARK (WORD MARK OR LOGO) BY ITSELF

1.	Product Packaging & Labeling: If the Licensed Product name lacks sufficient description of the product function, Scotts shall include a statement identifying the function immediately following, adjacent to or in very close proximity to the ROUNDUP trademark (e.g., “Roundup Pest Killer Insecticide”).

2.	Advertising, Marketing And Promotional Materials (Print, Broadcast, Electronic, Online):

a.	The ROUNDUP trademark shall always be followed by:

i.	A Product Name

ii.	A Product Category

iii.	A Product Sub-Brand

b.	If the product name, product category or sub-brand is not descriptive as to the function and field of use (lawn & garden) of the product(s), the accompanying and surrounding imagery, text, voice-over and/or context must clearly communicate to the average consumer the function and field of use of the product(s) to avoid confusion.

c.	Wherever feasible, use the term “brand” or “branded” in conjunction with the ROUNDUP trademark.

d.	Scotts shall not qualify or define “Roundup®” for purposes of a particular publication; e.g., do not use “Roundup” as a noun and include a footnote that states: “In this brochure, “Roundup®” refers to Roundup® Branded Lawn & Garden Products.” Scotts must use the entire phrase, “Roundup® Branded Lawn & Garden Products” throughout the brochure.

e.	Don’t use umbrella terms that are overly broad. Statements about an umbrella group of products must be truthful and accurate with regard to all products that make up the group.

f.	Don’t use “Roundup™” to refer to products that are not Roundup™ Licensed Products.

E.	ROUNDUP TRADEMARK ATTRIBUTION STATEMENT: The following statement must be legible and placed in appropriate locations for applications in which the ROUNDUP trademark appears or is used as follows:

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II.	ROUNDUP LOGO USAGE – THE SAME RULES FOR THE WORD MARK APPLY TO THE LOGO

A.	BLACK & WHITE ROUNDUP LOGO(S): should only be used when it is not feasible to print the logo(s) in color.

B.	COLOR ROUNDUP LOGO(S): used on product packaging; used primarily in advertising, marketing or promotional materials.

C.	WITH SCOTTS’ TRADEMARKS & LOGOS: the ROUNDUP trademark may also be used with a Scotts’ trademark or trademark logo.

D.	DO NOT ALTER: Do not change the colors, the proportions, the shape or the words of the ROUNDUP logo(s). Do not place the logo(s) at an angle, place any other words within the logo, crop the logo, or make the logo(s) transparent.

E.	BACKGROUND/SEPARATION: The ROUNDUP logo(s) should always appear on a plain background and should be placed with sufficient clearance from other elements where space allows.

F.	REPRODUCTION & SIZE: The ROUNDUP logo(s) should always be reproduced from digital files. The ROUNDUP logo(s) should never be smaller than 5/8 (.625) inch on any material in process color where space reasonably allows. The ROUNDUP Logo(s) should never be smaller than 131 pixels wide.

G.	ROUNDUP LOGO USAGE ON PACKAGING: The ROUNDUP logo must appear on the front of the Licensed Product packaging.

III.	CHANGES IN ROUNDUP TRADEMARK USE

A.

AGREE TO CHANGE: Scotts agrees to change the manner in which it uses or identifies the ROUNDUP trademark or ROUNDUP logo(s) in its materials as may be reasonably be requested by Monsanto; provided, however, that Scotts shall have a reasonable period of time to implement such changes and to deplete existing inventories of Licensed Products bearing the ROUNDUP trademark(s) or advertising, marketing or promotional materials containing the ROUNDUP trademark.

B.	NOTIFICATION OF A CHANGE: Monsanto will notify Scotts of any changes to the ROUNDUP logo(s) as described in this Schedule E no less than six (6) months prior to the use of a new ROUNDUP logo by Monsanto. At such time, this Schedule may be amended to permit such modifications to a new logo.

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1.	Offer Acceptance

1.1	The Offer shall remain valid and in effect, and shall be irrevocable, until (and shall terminate at) 11.59 p.m. on the earlier of:

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(a)	6 October 2017; and

(b)

the fifth Business Day after the date of completion of the process of notice, information and consultation with the French Works Council (as defined in Appendix 1 to this letter) required to be carried out before the Seller decides whether or not to accept the Offer and enter into the Sale and Purchase Agreement (the “Consultation Process”). Completion of the Consultation Process shall be deemed to take effect upon the earlier of: (i) delivery of the Works Council Opinion to the Seller; and (ii) the Legal Deadline (as defined in Appendix 1 to this letter) (“Consultation Completion”),

1.2

If, following the Consultation Completion, the Seller delivers written notice to the Purchaser of its intention to proceed with the Transaction in the form of the acceptance notice as attached to this letter at Exhibit 2 (the “Acceptance Notice”) accompanied by three original signature pages of the Sale and Purchase Agreement duly executed by the Seller and the Guarantor, in each case prior to 11.59 p.m. on the Offer Expiration Date, the Purchaser shall promptly (and in any event within five Business Days of receipt of the Acceptance Notice and the Sale and Purchase Agreement duly executed by the Seller and the Guarantor) deliver to the Seller three original signature pages of the Sale and Purchase Agreement duly executed by it, and upon delivery thereof the Sale and Purchase Agreement shall become a valid and binding agreement of the parties thereto in accordance with its terms.

1.3	At the date on which the Sale and Purchase Agreement becomes binding, all rights and obligations of the Seller, the Guarantor and the Purchaser under this letter shall terminate, save in respect of antecedent breaches.

2.	French Works Council and Consultation Process

2.1	The Seller shall procure that Scotts France SAS:

(a)	sends out the convening invites to the French Works Council promptly (and in any event by no later than 5 Business Days after the date of this letter) with a view to obtaining delivery of the French Works Council Opinion pursuant to the French regulations as soon as reasonably practicable; and

(b)	complies with all appropriate information and/or consultation procedures in connection with the Consultation Process.

2.2

The Seller shall keep the Purchaser informed in a timely manner of the status of matters relating to the Consultation Process, including furnishing the Purchaser as soon as reasonably practicable with copies of the economic note, meeting agendas and the French Works Council Opinion. Except to the extent commercially sensitive to the Seller, the Seller shall also furnish the Purchaser with draft copies of any proposed written communications including any questions and answers to be provided by the Seller or Scotts France SAS to the French Works Council, as soon as reasonably practicable and in any event at least three Business Days prior to the proposed delivery of such communications to the French Works Council. The Purchaser commits to provide replies to any questions raised by the French Works Council in a timely manner.

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2.3

The Seller shall not, and shall procure that no Group Company or Business Seller shall, without the Purchaser’s prior written consent: (i) make any commitments to the employees of Scotts France SAS or their representative bodies which are outside the ordinary course of business (including with respect to the terms of employment and employment benefits of the employees of Scotts France SAS); or (ii) provide any information to the employees of Scotts France SAS or their representative bodies in relation to the Purchaser or any of its affiliates or its or their intentions regarding the Group and its employees, save for the information contained in the economic note regarding the expected consequences of the Transaction on employment (including any impact on employees’ collective status).

2.4

The Purchaser agrees to cooperate, as may reasonably be required, with the Seller and the Group, including by providing any documents and information relating to the Purchaser that may be reasonably requested by the French Works Council and by attending meetings organised by the French Works Council upon receipt by the Purchaser of at least three Business Days advance notice thereof. The Purchaser will consult with the Seller and consider any issues and proposals in relation to the Transaction that may be raised as part of the Consultation Process by the French Works Council provided that the Purchaser’s obligations in this respect will be limited to such consultation and consideration and the Purchaser shall not be obliged to agree to any modification to the Transaction or to the Sale and Purchase Agreement nor shall it be obliged to offer any commitments to the French Works Council.

2.5	Each of the Seller and the Purchaser agrees to abide by the provisions of Appendix 1 to this letter.

3.	Warranty

3.1	The Purchaser warrants that the statements set out in Schedule 5 to the Sale and Purchase Agreement are true and accurate as of the date of this letter. For the purposes of this letter, references in Schedule 5 to the Sale and Purchase Agreement shall be deemed to be to this letter.

3.2	The Seller warrants that the statements set out in paragraph 1 of Schedule 3 to the Sale and Purchase Agreement are true and accurate as of the date of this letter. For the purposes of this letter, references in paragraph 1 of Schedule 3 to the Sale and Purchase Agreement shall be deemed to be to this letter.

4.	Satisfaction of Conditions Precedent and Pre-Completion Obligations

4.1

The Seller agrees to comply, and the Purchaser agrees that it shall comply, on and after the date of this letter until it is terminated in accordance with its terms, with its respective obligations set out in Clauses 3 (Conditions), 5 (Pre-completion Obligations) and 9.4 (Seller’s Warranties and Undertakings) of the Sale and Purchase Agreement and they shall be incorporated herein as if they were set out in full in this letter, except that references to “the date of this Agreement” in Clause 5 (Pre-completion Obligations) shall be interpreted as references to the date of this letter. For the avoidance of doubt, Clause 9 (Seller’s Warranties and Undertakings) shall not require any Relevant Seller, Group Company or Senior Manager to take any action that would amount to a decision to sell the Group to the Purchaser prior to the Consultation Completion.

5.	Exclusivity

5.1	From and including the date of this letter until the earlier to occur of (i) the execution of the Sale and Purchase Agreement, and (ii) the date that is nine months from the date of this letter, the Seller

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(a)	enter into or continue discussions or negotiations with, or provide any information to, any third party who may be interested in making an offer for, or entering into an agreement to acquire, the Group, any part of its business or assets or any Group Company, or any transaction designed to achieve a similar economic outcome to any of the foregoing (an “Alternative Transaction”);

(b)	solicit, encourage or otherwise facilitate any enquiries or the making of any offer or proposal by a third party with respect to an Alternative Transaction; or

(c)	enter into any Alternative Transaction with a third party.

6.	Break Fee

6.1	If:

(a)	the Seller does not comply with its obligations in paragraph 2.1 of this letter; or

(b)	the Consultation Completion occurs, and an Acceptance Notice is not received by the Purchaser accompanied by three original signature pages of the Sale and Purchase Agreement duly executed by the Seller and the Guarantor on or prior to 11.59 p.m. on the fifth Business Day after Consultation Completion,

6.2	Payment of the Break Fee to the Purchaser shall not affect or determine the undertakings given by the Seller pursuant to paragraph 5.1 of this letter and the Seller shall continue to comply with the provisions of paragraph 5.1 until expiry of the relevant time period set out therein.

7.	Confidentiality

7.1	Subject to paragraph 7.2 the provisions of Clause 18 (Confidentiality) of the Sale and Purchase Agreement shall apply from the date of this letter as if set out herein except that references to “this Agreement” shall be construed to include references to this letter.

7.2	Notwithstanding paragraph 7.1 the Purchaser agrees that, upon countersignature of this letter by the Seller, each of the Guarantor and the Purchaser may announce the Offer and the contents of this letter, provided that any such announcement shall be in a form agreed between the Guarantor and the Purchaser.

7.3	The Confidentiality Agreement between Scotts-Sierra Investments LLC and Exponent Private Equity LLP is hereby terminated with effect from the date of this letter.

7.4	Exponent Private Equity LLP may, under the Contracts (Rights of Third Parties) Act 1999, enforce the terms of this letter, as varied from time to time under paragraph 11.1. Other than as expressly

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8.	Counterparts

9.	Notices

10.	Guarantee

10.1	In consideration of the Purchaser making the Offer, the Guarantor irrevocably and unconditionally guarantees to the Purchaser punctual performance by the Seller of all of the Seller’s obligations pursuant to this letter and undertakes to the Purchaser that:

(a)	whenever the Seller does not pay any amount when due pursuant to or in connection with this letter, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor;

(b)	whenever the Seller fails to perform any other obligations pursuant to this letter, the Guarantor shall immediately on demand perform (or procure performance of) and satisfy (or procure the satisfaction of) that obligation; and

(c)	agrees as principal debtor and primary obligor to indemnify the Purchaser against all losses and damages sustained by it flowing from any non-payment or default of any kind by the Seller under or pursuant to this letter,

10.2	This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by the Seller pursuant to this letter, regardless of any intermediate payment or discharge in whole or in part.

10.3	Save to the extent provided in paragraph 10.4 the obligations of the Guarantor will not be discharged or affected by:

(a)	any time, waiver or consent granted to the Seller or any other person;

(b)	the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against the Seller pursuant to this letter;

(c)	the insolvency (or similar proceedings) of the Seller, any incapacity or lack of power, authority or legal personality of the Seller or change in control, ownership or status of the Seller;

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(d)	any unenforceability or invalidity of any obligation of the Seller; or

(e)	any amendment to this letter.

10.4

For the avoidance of doubt, the Guarantor shall have no liability under this paragraph 10 in respect of any liability of the Seller pursuant to this letter to the extent that such liability is amended or varied in accordance with paragraph 11.1, and the Guarantor’s obligations under this paragraph 10 in respect of such obligation or liability as it subsists following such amendment, variation or waiver shall be determined by reference to such obligation as so amended or varied, or taking account of the extent to which such obligation or liability has been so waived.

11.	General

11.1	No amendment to this letter shall be valid unless it is in writing and duly executed by or on behalf of the parties to it.

11.2	This letter is for the sole benefit of the parties to it and their respective successors and permitted assigns and nothing in this letter, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this letter.

11.3	No failure or delay in exercising any right, power or privilege under this letter will operate as a waiver of it, nor will any single or partial exercise of any right, power or privilege under this letter preclude any other or further exercise of it or of any other right, power or privilege under this letter or otherwise.

12.	Governing Law

12.1	This letter and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.

12.2

Each of the Seller, the Guarantor and the Purchaser irrevocably agree that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this letter and that accordingly any proceedings arising out of or in connection with this letter shall be brought in such courts. Each of the Seller, the Guarantor and the Purchaser irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum.

13.	Process Agent

13.1	Seller and Guarantor’s Process Agent

(a)	The Seller and the Guarantor each hereby irrevocably appoint The Scotts Company (UK) Limited, c/o White & Case LLP, 5 Old Broad St, London EC2N 1DW, as their agent to accept service of process in England and Wales in any legal action or proceedings arising out of this letter, service upon whom shall be deemed completed whether or not forwarded to or received by them.

(b)	The Seller and the Guarantor each agree to inform the Purchaser in writing of any change of address of such process agent within 28 days of such change.

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(c)	If such process agent ceases to be able to act as such or to have an address in England and Wales, the Seller and the Guarantor each irrevocably agree to appoint a new process agent in England and Wales acceptable to the Purchaser and to deliver to the Purchaser within 14 days a copy of a written acceptance of appointment by the process agent.

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1.1	“French Works Council” means the Comité Central d’Entreprise at Scotts France SAS;

1.2	“Information Note” means the detailed information note to be delivered to the French Works Council on the Transaction;

1.3	“Legal Deadline” means: (i) the date two calendar months after the date of delivery of the Information Note to the French Works Council; or (ii) the date of expiry of such other period as is determined by a competent court, in accordance with applicable law, to be the date on which the Consultation Process is deemed to be completed; and

1.4	“Works Council Opinion” means positive or negative advice provided by the French Works Council to Scotts France SAS in connection with the Transaction in accordance with applicable law.

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(1)	Scotts-Sierra Investments LLC a company incorporated in Delaware with registered number 2512334 and whose registered office is at 1209 Orange Street, Wilmington, DE 19801, United States of America (the “Seller”);

(2)	The Scotts Miracle-Gro Company a company incorporated in Ohio with registered number 1501530 and whose registered office is at 14111 Scottslawn Road, Marysville, Ohio 43041, United States of America (the “Guarantor”); and

(3)	Garden Care Bidco Limited a company incorporated in England and Wales with registered number 10734808 and whose registered office is at 6th Floor, 30 Broadwick Street, London, United Kingdom, W1F 8JB (the “Purchaser”).

(A)	The Seller has agreed to sell the Group (or to procure the sale by the Relevant Sellers of certain Group Companies or Group Businesses) and to assume the obligations imposed on the Seller under this Agreement.

(B)	The Purchaser has agreed to purchase the Group (or to procure the purchase by the Relevant Purchasers of certain Group Companies or Group Businesses) and to assume the obligations imposed on the Purchaser under this Agreement.

(C)	The Guarantor has agreed to guarantee the obligations of the Seller on the terms and subject to the conditions of this Agreement.

1.	Interpretation

1.1	In this Agreement:

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(a)	any Intellectual Property owned by a member of the Seller’s Group in the Purchaser Manufacturing Territories as at Completion, which the manufacture of any International Business Products in the Purchaser Manufacturing Territories as at Completion would, in the absence of a licence from the relevant member of the Seller’s Group, infringe that Intellectual Property;

(b)	any patent applications filed by the relevant member of the Seller’s Group after Completion in the Purchaser Manufacturing Territories based on any invention disclosure that forms part of the Intellectual Property described in (a) and any granted patents issuing from such applications; and

(c)	all continuations, continuations in part, divisions, extensions, substitutions, reissues, re examinations and renewals in the Purchaser Manufacturing Territories of any patents or patent applications forming part of the Intellectual Property described in (a) or the patents and patent applications referred to in (b);

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(a)	all interest and non-interest bearing loans or other financing liabilities or obligations, including overdrafts and any other liabilities in the nature of borrowed money (whether secured or unsecured);

(b)	all reimbursement or payment obligations with respect to letters of credit, bills, bonds, notes, debentures or loan stock and other similar instruments;

(c)	any obligations under finance or capital leases and hire purchase agreements, to the extent that such hire purchase agreements are recorded as a liability in accordance with US GAAP as applied consistently with the accounting policies applied in the Relevant Balance Sheet;

(d)	any transaction costs, transaction bonuses and retention bonuses related to the proposed sale of the Group (gross of any tax and social security liabilities in relation to such costs and bonuses incurred by any Group Company);

(e)	any obligations in respect of interest rate swaps or other financial derivatives stated at their fair value;

(f)	the aggregate of the line items in the column “Closing Debt” in Part 2 of Schedule 7, without double counting of any other item in paragraphs (a) to (i) here;

(g)	any liabilities in relation to corporation tax, corporate income tax, profits tax or any similar tax on corporate income, profits or gains, but excluding deferred tax assets and deferred tax

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(h)	all obligations issued, undertaken or assumed as the deferred purchase price in respect of any acquired business or shares,

(a)	holding or controlling, directly or indirectly, a majority of the voting rights exercisable at shareholder meetings (or the equivalent) of that person; or

(b)	having, directly or indirectly, the right to appoint or remove directors holding a majority of the voting rights exercisable at meetings of the board of directors (or the equivalent) of that person; or

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(c)	having, directly or indirectly, the ability to direct or procure the direction of the management and policies of that person, whether through the ownership of shares, by contract or otherwise; or

(d)	having the ability, directly or indirectly, whether alone or together with another, to ensure that the affairs of that person are conducted in accordance with his or its wishes, and

(i)	the terms “Controlling” and “Controlled” shall be construed accordingly; and

(ii)	any two or more persons acting together to secure or exercise Control of another person shall be viewed as Controlling that other person;

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(a)	the Patent and Technology Licence between Scotts International B.V. (now known as Everris International B.V. and The Scotts Company LLC dated 28 February 2011; and

(b)	the Trade Mark Licence between Scotts International B.V. (now known as Everris International B.V.) and The Scotts company LLC dated 28 February 2011;

(a)	the Supply Agreement for Bourth Plant Protection Products between Scotts France SAS and Anti Germ France SAS dated 28 February 2011;

(b)	the Supply Agreement for UK Growing Media Products from Gretna (North) between The Scotts Company (UK) Limited and ICL Horticulture UK Limited (now known as Everris Limited) dated 28 February 2011;

(c)	the Supply Agreement for Howden Pro Products between The Scotts Company (UK) Limited and ICL Horticulture UK Limited (now known as Everris Limited) dated 28 February 2011; and

(d)	the Supply Agreement for Osmocote (and derivative) Products in Heerlen between Euro Clearon Netherlands B.V. and The Scotts Company LLC dated 28 February 2011;

(a)	Shared IT Contracts;

(b)	Original Roundup Agreements;

(c)	Everris IP Licence Agreements;

(d)	Trade Mark Licence Agreement between OMS Investments Inc., The Scotts Company (UK) Limited, The Scotts Company LLC and Bord Na Mona Gorticulture Limited dated 29 April 2013;

(e)	Trade Mark Licence Agreement between OMS Investments Inc., The Scotts Company (UK) Limited and Everris International B.V. (formerly known as Scotts International B.V.) dated 28 February 2011;

(f)	Trade Mark Co-Existence Agreement between OMS Investments Inc., and Fisons Limited dated 28 July 2011;

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(g)	Research Agreement between the Royal Melbourne Institute of Technology and Scotts Australia Pty Limited dated 18 June 2015, which is to be transferred to The Scotts Company LLC prior to Completion;

(a)	Versorgungsordnung 1987;

(b)	Pensionsordnung en vom 27.02.2002;

(c)	Grund- und Demografieförderung und Chemietarifförderung;

(d)	Anfangspension;

(e)	Betriebsvereinbarung über Jubiläeen; and

(f)	Altersteilzeit;

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(a)	have been sold or produced directly or indirectly by, or on behalf of, the Group in relation to the Business in the 12 months prior to the Completion Date;

(b)	are contained in the Product Pipeline; or

(c)	are Products that are an improvement, modification or further development of any of the Products referred to in (a) or (b) above;

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(a)	the International Business Intellectual Property and the Owned Intellectual Property;

(b)	any patent applications filed by the relevant member of the Purchaser’s Group after Completion in the Relevant Territory based on any invention disclosure that forms part of the International Business Intellectual Property and the Owned Intellectual Property and any granted patents issuing from such applications; and

(c)	all continuations, continuations in part, divisions, extensions, substitutions, reissues, re examinations and renewals in the Relevant Territory of any patents or patent applications forming part of the International Business Intellectual Property and the Owned Intellectual Property or the patents and patent applications referred to in (b);

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(i)	any patent applications filed by any member of the Purchaser’s Group after Completion in the Excluded Territories based on any invention disclosure that forms part of the Intellectual Property described in Clause 16.5(a) and any granted patents issuing from such applications; and

(ii)	all continuations, continuations in part, divisions, extensions, substitutions, reissues, re examinations and renewals in the Excluded Territories of any patents or patent applications forming part of the Intellectual Property described in Clause 16.5(a) or the patents and patent applications referred to in Clause 16.5(b);

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(a)	the Amended and Restated Exclusive Agency and Marketing Agreement dated 30 September 1998 (as subsequently amended on 15 May 2015); and

(b)	the Lawn and Garden Brand Extension Agreement dated 15 May 2015,

(a)	holds a majority of the voting rights in the Undertaking; or

(b)	is a member of the Undertaking and has the right to appoint or remove a majority of its board of directors (or analogous body, including a management board and supervisory council); or

(c)	has the right to exercise a dominant influence over the Undertaking, by virtue of provisions contained in its constitutional documents or elsewhere; or

(d)	is a member of the Undertaking and controls alone, pursuant to an agreement with the other shareholders or members, a majority of the voting rights in the Undertaking,

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(a)	in respect of an Occurrence Basis Policy, a claim relating to a Pre-Completion Matter (including, but not limited to, a claim which has been notified to the relevant insurer(s) before Completion and is pending or outstanding at Completion under such Occurrence Basis Policy and a claim relating to a Pre-Completion Matter not yet notified to the relevant insurer(s)); and

(b)	in respect of a Claims Made Policy, a claim which has been notified (or which the Seller is entitled, pursuant to such Claims Made Policy, to notify, including a claim that the Seller is not aware has arisen) to the relevant insurer(s) on or before Completion and which is pending or outstanding at Completion;

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(a)	any works or action limiting, mitigating, remediating, preventing, removing, ameliorating or containing the presence or effect of any Hazardous Substance in or on the Environment; or

(b)	any investigation, sampling or monitoring in connection with any such works or action;

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(a)	The Miracle Garden Care Pension Scheme; and

(b)	The Scotts Company (UK) Pension Scheme;

(a)	within the European Union, any tax imposed by any member state in conformity with the Directive of the Council of the European Union on the common system of value added tax (2006/112/EC); and

(b)	outside the European Union, any tax corresponding to, or substantially similar to, the common system of value added tax referred to in paragraph (a) above;

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1.2	The expression “in the agreed terms” means in the form agreed between the Purchaser and the Seller and signed for the purposes of identification by or on behalf of the Purchaser and the Seller.

1.3	Any reference to “writing” or “written” means any method of reproducing words in a legible and non-transitory form (excluding, for the avoidance of doubt, email).

1.4	References to “include” or “including” are to be construed without limitation.

1.5	References to a “company” include any company, corporation or other body corporate wherever and however incorporated or established.

1.6	References to a “person” include any individual, company, partnership, joint venture, firm, association, trust, governmental or regulatory authority or other body or entity (whether or not having separate legal personality).

1.7	The table of contents and headings are inserted for convenience only and do not affect the construction of this Agreement.

1.8	Unless the context otherwise requires, words in the singular include the plural and vice versa and a reference to any gender includes all other genders.

1.9	References to Clauses, paragraphs and Schedules are to clauses and paragraphs of, and schedules to, this Agreement. The Schedules form part of this Agreement.

1.10

References to any statute or statutory provision include a reference to that statute or statutory provision as amended, consolidated or replaced from time to time (whether before or after the date of this Agreement) and include any subordinate legislation made under the relevant statute or statutory provision except to the extent that any amendment, consolidation or replacement would increase or extend the liability of the Seller under this Agreement.

1.11	References to any English legal term for any action, remedy, method of financial proceedings, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include what most nearly approximates in that jurisdiction to the English legal term.

1.12	References to “substantiated” in the context of a Claim means a Claim for which the Seller may be liable and which is admitted or proved in a court of competent jurisdiction.

1.13	This Agreement shall be binding on and be for the benefit of the successors of the Parties.

2.	Sale and Purchase

2.1	Sale of the Shares

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(a)	On and subject to the terms of this Agreement and the Local Transfer Documents, at Completion the Seller shall procure that the Share Sellers shall sell the Shares set out against their respective names in Part 1of Schedule 1, and the Purchaser shall (or shall procure that each Relevant Purchaser designated as a Share Purchaser pursuant to Clause 2.10, shall) purchase the Shares.

(b)	The Shares shall be sold and transferred free from Encumbrances together with all rights and advantages attaching or accruing to them as at Completion (including the right to receive all dividends or distributions declared, made or paid on or after Completion).

(c)	The Seller covenants with the Purchaser that each Share Seller has the right to sell and transfer to the Purchaser (or a Relevant Purchaser) the full and legal beneficial interest in the Shares that it currently owns (according to Part 1of Schedule 1) on the terms set out in this Agreement.

(d)

The Seller shall procure that each Share Seller waives any right of pre-emption or other restriction on transfer in respect of the Shares conferred on them under the relevant constitutional documents or otherwise and shall procure that on or prior to Completion any and all rights of pre-emption or other restrictions on transfer in respect of the Shares are waived irrevocably by any other persons entitled thereto.

2.2	Sale of the Group Businesses

(a)

On and subject to the terms of this Agreement and the Local Transfer Documents, at Completion the Seller shall procure that the Business Sellers shall sell the Group Businesses set out against their respective names in Part 2 of Schedule 1, and the Purchaser shall (or shall procure that each Relevant Purchaser designated as a Business Purchaser pursuant to Clause 2.10, shall) purchase the Group Businesses.

(b)	The Seller shall procure that the International Business Intellectual Property, International Business Contracts and any other asset of the Group Businesses not owned by a Business Seller is assigned, novated or transferred (as the case may be) to the Purchaser (or a Relevant Purchaser designated as a Business Purchaser pursuant to Clause 2.10) at Completion.

(c)	Subject to Clause 2.2 (f) below, there shall be included in the sale and transfer of the Group Businesses under this Agreement or, where relevant, the Local Transfer Documents:

(i)	the International Business Properties, which shall be transferred in accordance with the provisions of Part 5, Part 6 and Part 7 of Schedule 6 (Properties);

(ii)	the International Business Intellectual Property;

(iii)	the Goodwill;

(iv)	any of the IT Systems that are used exclusively by the Group Businesses;

(v)	the Moveable Assets;

(vi)	the rights of any member of the Seller’s Group arising or existing at Completion under the International Business Contracts (including, for the avoidance of doubt, the bank account of Scotts France SAS held with BNP Paribas with the following details: RIB 30004 02249 00010120104 84; IBAN FR76 3000 4022 4900 0101

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(vii)

the rights of any member of the Seller’s Group arising or existing at Completion under any direct insurance contracts (Direktversicherungsverträge), reinsurance contracts (Rückdeckungsversicherungsverträge) and insolvency protection agreements with respect to or for the benefit of Transferring Employees provided such transfer is permitted (i) by the relevant provider; (ii) under the terms of such contracts or agreements; and (iii) under applicable laws;

(viii)	the German Pension Schemes insofar as they relate to the Transferring Employees;

(ix)	the French Pension Schemes;

(x)	the Relevant Part of each Shared Contract;

(xi)	the International Business Product Registrations, in respect of which the provisions of Part 6 of Schedule 9 shall apply;

(xii)	the EEIG Interests;

(xiii)	the Stock;

(xiv)	the Licences not owned by a Group Company at Completion;

(xv)	the Books and Records;

(xvi)	the Receivables;

(xvii)	all other property, rights and assets owned by or licensed to the Business Sellers and used, enjoyed or exercised predominantly in relation to the Group Businesses at Completion, in each case other than any Excluded Assets; and

(xviii)	any loan amounts receivable by a Business Seller corresponding to an EEIG Payable.

(d)	The International Business Assets, together with all legal and beneficial interests therein, shall be sold, transferred or assigned (as the case may be) free from any Encumbrances.

(e)	The Seller covenants with the Purchaser that the Business Sellers have the right to sell and transfer to the Purchaser (or a Relevant Purchaser) the full and legal beneficial interest in the International Business Assets on the terms set out in this Agreement.

(f)	There shall be excluded from the sale of the Group Businesses under this Agreement and the Local Transfer Documents the following:

(i)	the Cash Balances held by or on behalf of the Business Sellers on Completion in relation to the Group Businesses;

(ii)	except as otherwise provided in Clause 14 of this Agreement, the benefit of any claim under any insurance policies held by the Seller’s Group;

(iii)	debts due from any relevant Taxation Authority in respect of Tax;

(iv)	the Retained Intellectual Property;

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(v)	any royalty payment obligations owed to a member of the Seller’s Group; and

(vi)	any loan amounts receivable by a Business Seller from a Group Company other than any asset corresponding to an EEIG Payable,

(g)

The Seller agrees to procure that the Business Sellers transfer (to the extent they are able to do so) and the Purchaser agrees to procure that the Business Purchasers agree, with effect from the Completion Date, to accept the transfer of, and to assume, duly and punctually pay, satisfy, discharge, perform or fulfil, all Assumed Liabilities. The Seller agrees that the Assumed Liabilities shall be transferred to and assumed by the Business Purchasers so that the Business Purchasers shall have and be entitled to the benefit of the same rights, powers, remedies, claims, defences, obligations and conditions (including the rights of set-off and counterclaim) as the Business Sellers.

(h)	The Seller shall be responsible for (and no Business Purchaser shall be obliged to accept the transfer of or to assume), and shall duly and punctually pay, satisfy, discharge, perform or fulfil the Excluded Liabilities;

(i)	The Purchaser shall (and shall procure that each Relevant Purchaser shall):

(i)

take such action as the Seller may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which constitutes or may constitute an Excluded Liability under paragraphs (vii), (viii), (x), (xiii), (xiv) and (xv) of Schedule 24 (a “Relevant Excluded Liability Claim”) subject to the Purchaser being indemnified by the Seller against all Liabilities which may thereby be incurred as a result of taking such action;

(ii)	make available to the Seller or its duly authorised agents on reasonable notice during normal business hours access to all relevant books of account, records and correspondence relating to the Group (and shall permit the Seller to take copies thereof) for the purposes of enabling the Seller to ascertain or extract any information relevant to any Relevant Excluded Liability Claim; and

(iii)

give such assistance to the Seller as it may reasonably require on reasonable notice in relation to any Relevant Excluded Liability Claim including providing the Seller or any member of the Seller’s Group and its representatives and advisers with access to and assistance from directors, managers, employees, advisers, agents or consultants of the Purchaser and/or of each other member of the Purchaser’s Group (collectively, the “Relevant Persons”) and the Purchaser will use its reasonable endeavours to procure that such Relevant Persons comply with any reasonable requests from the Seller and generally co-operates with and assists the Seller and other member of the Seller’s Group.

(j)

The Seller shall (and shall procure that each Relevant Seller shall) take such action as the Purchaser may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which constitutes or may constitute an Assumed Liability (an “Assumed Liability Claim”) subject to the Seller being indemnified by the Purchaser against all Liabilities which may thereby be incurred as a result of taking such action.

2.3	Local Transfer Documents

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(a)

On Completion, the Seller shall (and the Seller shall procure that the Relevant Sellers shall) and the Purchaser shall (and the Purchaser shall procure that the Relevant Purchasers shall) execute such agreements, transfers, conveyances, dispositions and other documents, to the extent required under and subject to the relevant local law and otherwise as may be agreed between the Seller and the Purchaser, to implement the transfer of:

(i)	the Shares; and

(ii)	the Group Businesses,

(b)	To the extent that the provisions of a Local Transfer Document are inconsistent with or (except to the extent they implement a transfer in accordance with this Agreement) additional to the provisions of this Agreement:

(i)	the provisions of this Agreement shall prevail; and

(ii)

so far as permissible under the laws of the relevant jurisdiction, the Seller and the Purchaser shall procure that the provisions of the relevant Local Transfer Document are adjusted, to the extent necessary to give effect to the provisions of this Agreement or, to the extent this is not permissible, the Seller shall indemnify the Purchaser against all Losses suffered by the Relevant Purchasers or, as the case may be, the Purchaser shall indemnify the Seller against all Losses suffered by the Relevant Sellers, in either case through or arising from the inconsistency between the Local Transfer Document and this Agreement or the additional provisions (except to the extent they implement a transfer in accordance with this Agreement).

(c)

If there is an adjustment to the Purchase Price under Clause 7 of this Agreement which relates to a part of the Group which is the subject of a Local Transfer Document, then, if required to implement the adjustment and so far as permissible under the laws of the relevant jurisdiction, the Relevant Seller and the Relevant Purchaser shall enter into a supplemental agreement reflecting such adjustment and the allocation of such adjustment.

(d)

No Relevant Seller shall bring any claim against any Relevant Purchaser pursuant to the Local Transfer Documents, save to the extent necessary to implement any transfer of the Shares or Group Businesses in accordance with this Agreement. To the extent that a Relevant Seller does bring a claim in breach of this Clause 2.3(d), the Seller shall indemnify the Relevant Purchaser against all Losses which the Relevant Purchaser may suffer through or arising from the bringing of such a claim and the Relevant Seller shall indemnify the Seller against any payment which the Seller shall make to the Relevant Purchaser pursuant to this Clause 2.3(d).

(e)	No Relevant Purchaser shall bring any claim against any Relevant Seller pursuant to the Local Transfer Documents, save to the extent necessary to implement any transfer of the Shares or Group Businesses in accordance with this Agreement. To the extent that a Relevant

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(f)	Any payment of consideration required pursuant to a Local Transfer Document shall be satisfied by the satisfaction of the Purchase Price pursuant to this Agreement.

2.4	Properties

2.5	Contracts

2.6	Relevant Employees

2.7	Receivables

2.8	Transfer Obligations

2.9	VAT in relation to the sale of the Group Businesses

(a)	Subject to the remaining provisions of this Clause 2.9, all amounts expressed to be payable in respect of the transfer of any Group Business pursuant to any Local Transfer Document shall be exclusive of any VAT that is payable.

(b)

Each Relevant Seller and the Purchaser hereby acknowledges that they intend that each of the transfers of the Group Businesses under the Local Transfer Documents shall, so far as possible, be treated as a “transfer of a going concern” (“TOGC”) for VAT purposes (including, further, without limitation, in relation to the submission of any document to a Taxation Authority, and any inquiry, examination, audit, investigation, negotiation, dispute, appeal or litigation in each case with respect to such transfer), except to the extent otherwise provided below in relation to the Opted Properties.

(c)	With a view to ensuring that each of the transfers under the Local Transfer Documents constitutes a TOGC for VAT purposes (except to the extent otherwise provided below in relation to the Opted Properties), the Purchaser:

(i)	warrants and undertakes:

(A)	that the assets comprising the Group Businesses (including, for the avoidance of doubt, the Business Intellectual Property, the International

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(B)	that each relevant Business Purchaser is duly registered for VAT purposes or has applied or shall apply for VAT registration with an effective date on or before Completion (and where there is more than one relevant Business Purchaser in respect of a Group Business, they are or shall be registered under a single group registration);

(ii)

undertakes to the Seller that, before the Completion Date, the relevant Business Purchaser will assess whether to exercise an option to tax under Part 1 of Schedule 10 to the Value Added Tax Act 1994 (for the purposes of this Clause 2.9 an "option to tax") in relation to the properties at Levington Research Centre and 1 Woodend, Carnwarth, Lanarkshire (the “Opted Properties”) and not less than five (5) Business Days before the Completion Date either (as applicable) : (i) produce to the Seller's Lawyers a certified copy of the relevant notification to HMRC and acknowledgement of receipt of notification from HMRC, or (ii) notify the Seller that the relevant Business Purchaser has decided not to exercise such an option to tax;

(iii)	undertakes to the Seller that the relevant Business Purchaser shall not revoke any options to tax described in Clause 2.9(c)(ii) above; and

(iv)	undertakes to the Seller that, if the relevant Business Purchaser decides to exercise an option to tax in relation to an opted property, then the relevant Business Purchaser shall not less than five (5) Business Days before the Completion Date notify the Seller that article 5(2B) of the Value Added Tax (Special Provisions) Order 1995 does not apply to the relevant Business Purchaser.

(d)

Notwithstanding Clauses 2.9(a), 2.9(b) and 2.9(d), if: (i) the transfer of any Group Business pursuant to any Local Transfer Document is treated by the Relevant Seller and the relevant Business Purchaser as a TOGC for VAT purposes, with the result that VAT is not charged on the transfer of the relevant Group Business, but any relevant Taxation Authority in the relevant jurisdiction subsequently determines that VAT is chargeable in respect of such transfer; or (ii) the relevant Business Purchaser decides not to exercise the option to tax in relation to an Opted Property, so that VAT is chargeable on the transfer of that Opted Property, and (in each case) the Relevant Seller (or any member of the Seller’s Group which is in the same VAT group as the Relevant Seller) is required to account for the VAT to the relevant Taxation Authority (and all reasonable avenues of appeal have been exhausted), then:

(i)	such VAT (and any interest and/or penalties thereon) shall be paid to the relevant Taxation Authority by the Relevant Seller (or another member of the Seller’s Group);

(ii)	Clause 2.9(e) shall apply to determine the basis of any liability of the relevant Business Purchaser to pay to the relevant Seller the amount of any such VAT;

(iii)	where the relevant transfer would have been a TOGC for VAT purposes but for a breach of a warranty or undertaking given by the Purchaser in Clause 2.9(c), the

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(iv)	the Relevant Seller shall deliver to the relevant Business Purchaser a valid VAT invoice in respect of that VAT; and

(v)	the relevant Business Purchaser shall use reasonable endeavours to recover or otherwise obtain credit for the amount of such VAT to the extent permitted by law.

(e)	Where this Clause 2.9(e) applies:

(i)	where the relevant transfer would have been a TOGC for VAT purposes but for a breach of a warranty or undertaking given by the Purchaser in Clause 2.9(c), the relevant Business Purchaser shall promptly pay to the Relevant Seller the amount of any VAT due on such transfer following receipt of an appropriate valid VAT invoice;

(ii)	where VAT is chargeable on the transfer of an Opted Property to the relevant Business Purchaser as a result of the relevant Business Purchaser deciding not to exercise the option to tax in relation to that Opted Property, the relevant Business Purchaser shall promptly pay to the Relevant Seller the amount of any VAT due on such transfer following receipt of an appropriate valid VAT invoice; and

(iii)

where neither Clause 2.9(e)(i) nor Clause 2.9(e)(ii) applies, if any relevant Business Purchaser recovers from a Taxation Authority any VAT paid or payable by a Relevant Seller or another member of the Seller’s Group pursuant to Clause 2.9(d) (or otherwise obtains credit for such VAT from a Taxation Authority), the Purchaser shall pay (or procure that a relevant Business Purchaser shall pay) to the Relevant Seller the amount of that VAT which is recovered (or for which credit is obtained) within five (5) Business Days of receipt of such amount or credit by a relevant Business Purchaser.

(f)

Notwithstanding Clauses 2.9(a), 2.9(b) and 2.9(c), if the transfer of any Group Business pursuant to any Local Transfer Document is treated by the Relevant Seller and the relevant Business Purchaser as a TOGC for VAT purposes, with the result that VAT is not charged on the transfer of the relevant Group Business, but any relevant Taxation Authority in the relevant jurisdiction subsequently determines that VAT is chargeable in respect of such transfer and the relevant Business Purchaser (or any member of the Purchaser’s Group which is in the same VAT group as the relevant Business Purchaser) is required to account for the VAT (or for any import VAT or acquisition VAT) to the relevant Taxation Authority (and all reasonable avenues of appeal have been exhausted), then:

(i)	such VAT shall be paid to the relevant Taxation Authority by the relevant Business Purchaser (or another member of the Purchaser’s Group);

(ii)	the Relevant Seller shall indemnify the relevant Business Purchaser on demand for any interest and/or penalties arising on such VAT (save where the relevant transfer would have been a TOGC for VAT purposes but for a breach of a warranty or undertaking given by the Purchaser in Clause 2.9(c)); and

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(iii)	the Relevant Seller shall deliver to the relevant Business Purchaser a valid VAT invoice in respect of the supply or supplies giving rise to that VAT.

2.10	Relevant Purchasers

2.11	Capital Allowances

(a)	The Seller undertakes to procure that each relevant Business Seller (at the Purchaser’s cost):

(i)	reasonably cooperates with the relevant Business Purchasers; and

(ii)	provides such information and assistance as the relevant Business Purchasers may reasonably request,

(b)	The Seller and the Purchaser agree that, for the purposes of the Capital Allowances Act 2001, the parts of the Purchase Price attributable (respectively) to:

(i)	fixtures in the Properties situated in the United Kingdom expenditure on which is not "special rate expenditure" within section 104A of the Capital Allowances Act 2001 (Non-Integral Fixtures) shall be fair market value; and

(ii)	fixtures in the Properties situated in the United Kingdom expenditure on which is "special rate expenditure" within section 104A of the Capital Allowances Act 2001 (Special Rate Fixtures) shall be fair market value

(c)	Each of the relevant Business Sellers and each of the relevant Business Purchasers shall, on Completion, enter into elections under section 198 of the Capital Allowances Act 2001, such elections specifying:

(i)	the aggregate amount fixed in respect of Non-Integral Fixtures; and

(ii)	the aggregate amount fixed in respect of Special Rate Fixtures,

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(d)	The Seller shall procure that each of the relevant Business Sellers shall, and the Purchaser shall procure that each of the relevant Business Purchasers shall submit their respective CAA Elections to HM Revenue & Customs within the time limit prescribed by law and take all reasonable steps to procure that the respective Agreed Apportionments are accepted by HM Revenue & Customs.

3.	Conditions

3.1	Completion is conditional upon the satisfaction (or waiver by the Purchaser, as the case may be) of the following conditions (the “Conditions”):

(a)	Monsanto entering into the New Roundup Agreements which incorporate the terms of the Roundup Term Sheet in a manner acceptable to the Purchaser (acting reasonably);

(b)	Monsanto International S.A. consenting to the assignment of the Monsanto Supply Agreement, including the benefit of the relevant glyphosate indemnification, by Scotts France SAS to a Relevant Purchaser, in a form acceptable to the Purchaser (acting reasonably);

(c)	the receipt of consent in writing of each relevant landlord for the transfer or assignment of each of the International Business Leased Properties in the United Kingdom other than the Ipswich Office to a Relevant Purchaser or Group Company;

(d)	the receipt of consent in writing from the relevant landlord in respect of the change of control clause in the lease of premises at Berkshire Park New South Wales 61 St Marys Rd 2765 Australia in relation to the sale of the entire issued share capital in Scotts Australia Pty Ltd;

(e)

(i) evidence of the waiver by the relevant municipal authority of its pre-emption right in relation to the International Business Properties located in Bourth, France and Hautmont, France; or (ii) expiry of the two month period, commencing from the date of service of the relevant declaration of sale on the relevant municipal authority, in which the relevant municipal authority may exercise its pre-emption right in relation to the International Business Properties located in Bourth, France and Hautmont, France where the relevant municipal authority has not replied to the relevant declaration of sale and is therefore deemed to have waived its pre-emption right;

(f)	the receipt of consent in writing from Everris to (i) the assignment of the Everris Supply Agreements, and (ii) the sub-licensing of Intellectual Property licensed to the relevant member of the Seller’s Group under the Everris IP Licence Agreements on the terms of the Everris Sub-licences;

(g)	the German Federal Cartel Office (“FCO”) approving the Transaction. This Condition shall be deemed satisfied if:

(i)	the Purchaser has received a written notice from the FCO that the conditions for a prohibition according to Sec. 36 para. 1 German Act Against Restraints of Competition (“GWB”) are not met; or

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(ii)	the FCO fails to notify the Purchaser within the one-month period under Sec. 40 para. 1 Clause 1 GWB that it has initiated a formal investigation of the Transaction under Sec. 40 para. 1 GWB;

(h)	the French Competition Authority (“Autorité de la Concurrence”) indicating that:

(i)	the notified transaction does not fall within the scope of French merger control rules (Articles L430-1 and L430-2 of the French Commercial Code (“FCC”)); or

(ii)

the Transaction is cleared pursuant to Article L430-5, III, second indent, of the FCC or deemed to have been cleared under Article L430-5, IV, of the FCC (“Phase I clearance”) and the French Minister of Economy has not used its power to request, within 5 days of the Phase I clearance, the opening of a formal investigation in relation to the notified transaction pursuant to Article L430-7-1, I, of the FCC; and

(i)

the Polish Competition Authority (“Prezes Urzędu Ochrony Konkurencji i Konsumentów” – “PCA”) approving the Transaction or, as the case may be, the statutory period for the PCA to issue a merger decision as provided in Article 96 of the Polish Act of 16 February 2007 on Competition and Consumer Protection (as amended) lapsing, or the PCA returning the merger notification or issuing a decision discontinuing the proceedings due to the fact that the Transaction does not give rise to a concentration falling within the scope of the Act on Competition and Consumer Protection (together with the Conditions in sub-clauses (g) and (h) above, the “Competition Conditions”).

3.2	In respect of sub-clauses 3.1(a) and 3.1(b), the Purchaser shall negotiate in good faith the terms of the New Roundup Agreements and the assignment of the Monsanto Supply Agreement (including the transfer of the benefit of the glyphosate indemnification).

3.3	The Seller shall use all reasonable endeavours to procure the fulfilment of:

(a)	the Conditions set out in sub-clauses 3.1(a), (b), (e) and (f) above; and

(b)	the Conditions set out in sub-clauses 3.1(c) and (d), in accordance with the provisions of Schedule 6.

3.4	The Purchaser shall (i) use all reasonable endeavours to procure that it satisfies its obligations in Schedule 6 in relation to the fulfilment of the Conditions set out in sub-clauses 3.1(c) and (d), and (ii) use its best endeavours to procure the fulfilment of the Competition Conditions.

3.5	The Purchaser shall:

(a)	submit any notifications, filings or submissions to the Regulatory Authorities as soon as possible following the date of this Agreement;

(b)	give the Seller the opportunity to participate in any call or meeting with the Regulatory Authorities (save to the extent that the Regulatory Authorities expressly request that the Seller should not attend the call or part of the call, or be present at the meeting or part of the meeting);

(c)	promptly inform the Seller of the content of any meeting, material conversation and any other material communication which takes place between the Purchaser (or its Agents) and the Regulatory Authorities in which the Seller did not participate and provide copies or, in the case of non-written material communications, a written summary, to the Seller;

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(d)

procure that the Seller is given a reasonable opportunity to review and comment on drafts of all notifications, filings and submissions before they are submitted to the Regulatory Authorities and provide the Seller with final copies of all such notifications, filings and submissions (it being acknowledged that certain such drafts and/or documents may be shared on a confidential basis only with outside counsel) and take account of any reasonable comments; and

(e)	take all steps (including agreeing to any conditions, undertakings or divestments) required by any Regulatory Authority to satisfy the Competition Conditions,

3.6	The Seller shall co-operate with the Purchaser in providing the Purchaser with such assistance as is reasonably necessary and it is reasonably able to provide, and shall provide the Regulatory Authorities with such information as may reasonably be necessary and it is reasonably able to provide to ensure that:

(a)	any notifications, filings or submissions to the Regulatory Authorities are made in accordance with Clause 3.2 and 3.5(a) above;

(b)	any request for information from the Regulatory Authorities is fulfilled promptly and in any event in accordance with any relevant time limit; and

(c)	where practicable, the Seller provides copies of any proposed material communication with the Regulatory Authorities in relation to the transactions contemplated by this Agreement to the Purchaser and that (acting reasonably) the Seller takes due consideration of any reasonable comments that the Purchaser may have in relation to such proposed communication,

3.7	The Purchaser shall not, without the prior written consent of the Seller, withdraw any notification, filing or submission made to the Regulatory Authorities.

3.8	The Seller undertakes to notify the Purchaser in writing, and the Purchaser undertake to notify the Seller in writing, of anything which will or may prevent any of the Conditions from being satisfied on or before the Long Stop Date promptly after it comes to its attention.

3.9	Each Party undertakes to notify the other Parties as soon as possible on becoming aware that any Condition has been satisfied and in any event within two (2) Business Days of such satisfaction.

3.10	If any Condition is not fulfilled or waived on or before the Long Stop Date, this Agreement shall automatically terminate subject to, and on the basis set out in, Clause 13.5.

4.	Consideration

4.1	The aggregate consideration for the purchase of the Group under this Agreement and the Local Transfer Documents shall be:

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(a)	an amount equal to:

(i)	EUR212,369,000 (the “Bid Value”);

(ii)	the Group Companies’ Cash Balances and the Intra-Group Financing Receivables;

(iii)	the Closing Debt and the Intra-Group Financing Payables;

(iv)	the Working Capital Adjustment,

(b)	the payment in cash by the Purchaser to the Seller by way of additional consideration for the Group, of an amount equal to the Deferred Payment Amount (the “Deferred Payment”), to the extent due and payable pursuant to and in accordance with Schedule 15 (Deferred Payment).

4.2	Payment of the Purchase Price by the Purchaser (including on behalf of each Relevant Purchaser) to the Seller shall be made in accordance with Clauses 6 and 7 of this Agreement.

4.3	The Purchase Price shall be allocated in accordance with the Purchase Price Allocation Agreement. The Seller and the Purchaser, each acting reasonably and in good faith shall endeavour to agree such indicative allocation, and the form of the Purchase Price Allocation Agreement, between the Offer Letter Date and Completion.

4.4

Failing agreement between the Seller and the Purchaser on the indicative allocation of the Purchase Price and, accordingly, the form of the Purchase Price Allocation Agreement, the indicative allocation of the Purchase Price shall be determined by the Reporting Accountants, on the application of the Seller or the Purchaser, who shall allocate the Purchase Price in accordance with the principles set out in the form of the Purchase Price Allocation Agreement set out in Schedule 14. Paragraphs 3.2 to 3.10 of Part 1 of Schedule 7 shall apply mutatis mutandis to the engagement and determination of the Reporting Accountants pursuant to the Purchase Price Allocation Agreement.

5.	Pre-Completion Obligations

5.1	Subject to Clause 5.2, the Seller shall procure that (and shall procure that the Relevant Sellers shall procure that), from the date of this Agreement until Completion:

(a)	each member of the Group and each Business Seller carries on its business only in the ordinary and usual course, consistent with past practice;

(b)	other than in respect of Scotts Poland Sp.z.o.o., there is no declaration or payment of a dividend or other distribution (whether in cash, stock or in kind) made or paid on any of its issued share capital or membership interests nor any purchase or reduction of its paid-up share capital or membership interests by any member of the Group;

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(c)	no share, loan capital or other security is created, allotted or issued or agreed to be created, allotted or issued by any member of the Group and that no option over, or any other rights in respect of, any share, loan capital or other security is granted;

(d)	all transactions between any Group Company or any Business Seller and any member of the Seller’s Group take place on arm’s length terms or substantially in a manner and on terms consistent with previous practice in the 12 month period prior to the Offer Letter Date;

(e)	no Group Company or Business Seller:

(i)	creates, amends or agrees to create or amend any Encumbrance over the shares of any member of the Group or the assets (excluding the Excluded Assets) of any member of the Group or any Business Seller;

(ii)	makes any alteration to its articles of association or any other document or agreement establishing, evidencing or relating to its constitution;

(iii)	enters into any agreement or arrangement or permits any action whereby another company becomes its subsidiary or subsidiary undertaking;

(iv)	enters into any joint venture, partnership or agreement or arrangement for the sharing of profits or assets;

(v)	acquires (whether by one transaction or by a series of transactions) the whole, or a substantial or material part of the business, undertaking, assets or securities of any other person;

(vi)	disposes of (whether by one transaction or by a series of transactions) the whole or any substantial or material part of its business, undertaking or any other of its assets;

(vii)	makes any material change to the nature or organisation of its business;

(viii)	makes any change to its accounting practices, policies or procedures other than as required by applicable law or regulation;

(ix)	discontinues or ceases to operate all or a material part of its business;

(x)	makes (or announces any intention to make) any material variation to the terms and conditions of employment of any employee earning EUR150,000 per annum or more, or which would apply to any general categories of employee;

(xi)

save for in respect of the UK Schemes, establishes any pension, retirement, death or disability, jubilee, old-age part-time, bridging or life assurance scheme, or any employees’ share scheme or employee trust or share ownership plan, share option or shadow share option scheme, or other profit sharing, bonus or incentive scheme in each case for the directors, employees or former directors or employees (or dependants thereof) of any Group Company or Business Seller, the variation of the terms or rules of any such new or any existing scheme, the appointment and removal of any trustee or manager of such a scheme or the allocation of options or other entitlements or the making of any payments under any such scheme;

(xii)	terminates the employment of any Key Worker, or employs any person who would reasonably be considered to be of a similar level of seniority to any Key Worker;

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(xiii)	borrows (other than in the ordinary course of business and consistent with past practice and within limits subsisting at the date of this Agreement) any money or agrees to do so or enter into any foreign exchange contracts, interest rate swaps or other derivative instruments;

(xiv)	grants any loans or other financial facilities or assistance to, or enters into any guarantees or indemnities or provides other security for the benefit of, any person;

(xv)	grants any exclusive or sole licence of, or enters into, terminates or amends any material agreement relating to Intellectual Property other than in the ordinary course and consistent with past practice;

(xvi)	enters into any agreement which materially restricts its freedom to do business;

(xvii)	makes any political contribution or donation, or any charitable contribution or donation;

(xviii)	settles, or agrees to settle, any litigation where the settlement is likely to result in a payment to or by a member of the Group or Business Seller of EUR500,000 or more (except for collection in the ordinary course of business, consistent with past practice), of trade debts;

(xix)

takes any steps to wind up or dissolve any member of the Group or any Business Seller, obtain an administration order in respect of any member of the Group or any Business Seller, invite any person to appoint an administrative receiver or any other receiver or manager of the whole or any part of the business or assets of any member of the Group or any Business Seller or do anything similar or analogous to those steps in any other jurisdiction;

(xx)

enters into or makes itself liable for any capital commitment (whether by way of purchase, lease, hire purchase or otherwise but excluding any such commitments entered into in the ordinary course of the Group’s business consistent with past practice) for an amount in excess of EUR 500,000 or which, when aggregated with all such other commitments entered into by it and other members of the Group and the Business Sellers since the Offer Letter Date, results in the aggregate of all such commitments exceeding EUR 2,000,000;

(xxi)	makes any material claim, surrender or election, or takes any similar action, for the purposes of Tax;

(xxii)	enters into or terminates its membership of any group, consolidation, group payment or similar arrangement for the purposes of any Tax, or alters the terms of any such existing arrangement, except where expressly provided for under this Agreement or the Tax Deed;

(xxiii)	enters into any agreement to sell or dispose of any Property or International Business Property or acquire any other property or make any material alterations to any Property or International Business Property or agree any rent review in respect of any Leased Property or International Business Leased Property;

(xxiv)	agrees to do any of the actions referred to in subparagraphs (i) to (xxiii) above; or

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(xxv)	does or agrees to do anything which, in the reasonable opinion of the Seller, is outside the ordinary course of business.

5.2	Clause 5.1 does not apply in respect of and shall not operate so as to restrict or prevent:

(a)	any matter reasonably undertaken in an emergency or disaster situation with the intention of and to the extent only of those matters strictly required with a view to minimising any adverse effect of such situation on the Group (and of which the Purchaser will be promptly notified in writing);

(b)	any matter expressly permitted by, or necessary for performance of, this Agreement or any of the other Transaction Documents or necessary for Completion;

(c)	any matter undertaken at the written request or with the written consent of the Purchaser;

(d)	providing information to any Regulatory Authority in the ordinary course of business; or

(e)	any matter to the extent required by law.

5.3	As soon as reasonably practicable after the date of this Agreement the Seller shall provide the Purchaser with reasonable details of the Shared Contracts which it proposes should be Excluded Shared Supply Contracts and the Parties agree to negotiate in good faith to agree the Shared Contracts to which Schedule 9 Part 4 shall apply.

5.4	The Seller shall consult with the Purchaser following the date of this Agreement in relation to the potential renewal of the lease in relation to the Ipswich Office and shall consult with the Purchaser before taking any action, or omitting to take any action, which would cause such lease to expire before Completion.

5.5

The Seller shall provide the Purchaser with a copy of the form of the written notice that it intends to send to the counterparties of each International Business Contract in each jurisdiction in relation to the proposed assignment of such International Business Contract to the Purchaser or the Relevant Purchasers at least 10 Business Days prior to the sending of such written notice. The Seller shall take into account the reasonable comments of the Purchaser in relation to the form of such written notice and shall promptly provide the Purchaser with copies of any negative written responses received from the counterparties in relation to the proposed assignment of such contracts. The Seller shall consult with the Purchaser in relation to any notice received from a counterparty indicating that such counterparty has refused or may refuse to consent to the assignment or intends to terminate or materially amend the terms of such contract.

5.6

Promptly after the date of this Agreement the Parties shall cooperate, each acting reasonably and in good faith, to determine and add to the schedules to the Transitional Services Agreement prior to Completion the allocation of the Base Fixed Charge for each Relevant Service Category between each of the individual sub-categories for those Relevant Service Categories, such allocation to be calculated on the basis of the charges allocated for such service sub-categories in the twelve (12) months immediately prior to Completion. For the purposes of this Clause 5.6, (i) “Relevant Service Category” shall mean the IT Services and the R&D Services, and (ii) “Base Fixed Charge”, “IT Services” and “R&D Services” shall have the meaning given to them in the Transitional Services Agreement.

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5.7	Between the date of this Agreement and the Completion Date, the Seller shall use its reasonable endeavours to provide the Purchaser with an updated list of Moveable Assets to the extent that the list in Schedule 16 is incomplete.

5.8	Between the date of this Agreement and the Completion Date, the Seller and the Purchaser shall use reasonable endeavours to procure that the relevant Business Seller and relevant Business Purchaser comply with paragraph 1.1.11 of Schedule 18 in relation to Stefan Eha.

5.9

Between the date of this Agreement and the Completion Date, the Parties shall use reasonable endeavours to procure the transfer of contractual arrangements in respect of: (a) the French Pension Schemes; and (b) the German Pension Schemes in so far as they relate to the Transferring Employees, provided always that such transfer is permitted: (i) by the relevant provider (if any); (ii) under the terms of such contracts or agreements; and (iii) under applicable laws.

5.10

The Seller shall, as soon as reasonably practicable after the date of this Agreement and in any event by the Completion Date, provide to the Purchaser full details of, and all relevant agreements and powers of attorney in respect of all relevant third party agents, consultants or distributors, which are currently engaged by any member of the Group in relation to the International Business Product Registrations.

5.11	Between the date of this Agreement and the Completion Date, the Parties will co-operate in good faith to try to procure that an agreement or arrangement equivalent to the relevant parts of the Everris IP Licence Agreements to which the Everris Sub-licences relate are entered into directly between the Sub-Licensee and Everris International B.V..

5.12

Between the date of this Agreement and the Completion Date, the Parties shall discuss a potential research and development collaboration between themselves pursuant to which the Parties would hold confidential discussions regarding the status of research and development projects which each Party, in its sole discretion, considers potentially to be of interest to the other Party for use in the Relevant Territory or the Excluded Territories as applicable. If the Parties are able to reach agreement on the form and structure of such collaboration, they shall enter into a separate agreement (in a form satisfactory to the Parties) to govern that collaboration.

6.	Completion

6.1	Completion shall take place on the Completion Date at the offices of the Purchaser’s or the Seller Lawyers, in each case taking into account applicable tax considerations, or at such other place as is agreed in writing by the Seller and Purchaser.

6.2

At Completion the Seller shall undertake those actions listed in Part 1of Schedule 2 (Completion Arrangements) and the Purchaser shall undertake those actions listed in Part 2 of Schedule 2 (Completion Arrangements). Payment of the Closing Amount to the Seller’s Designated Account shall discharge the obligations of the Purchaser (a) pursuant to Clause 6.4 and (b) to pay the Closing Amount, and the Purchaser shall not be concerned as to the application of the Closing Amount between the Relevant Sellers.

6.3

If: (i) the Seller breaches its obligations under Clause 6.2 and under paragraph 1, 2.3, 2.5, 3.2, 3.4, 3.5, 3.6 or 3.7 of Part 1 of Schedule 2 (Completion Arrangements); or (ii) the Purchaser breaches its obligations under Clause 6.2 and under paragraph 1, 2, 3 or 4 of Part 2 of Schedule 2 (Completion Arrangements) on the Completion Date, the Seller (in the case of a breach by the Purchaser) or the

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(a)	defer Completion (with the provisions of this Clause 6 applying to Completion as so deferred);

(b)	proceed to Completion as far as practicable (without limiting its rights and remedies under this Agreement); or

(c)	treat this Agreement as terminated for breach of condition subject to, and on the basis set out in, Clause 13.5.

6.4	Immediately following Completion but on the Completion Date:

(a)

the Purchaser shall procure that each relevant Group Company repays to the relevant member of the Seller’s Group (other than another Group Company) the amount of any Estimated Intra-Group Financing Payables in respect of that Group Company, and shall acknowledge on behalf of each relevant Group Company the payment of the Estimated Intra-Group Financing Receivables in accordance with Clause ‎6.4(b); and

(b)

the Seller shall procure that each relevant member of the Seller’s Group (other than a Group Company) repays to the relevant Group Company the amount of any Estimated Intra-Group Financing Receivables in respect of that Group Company, and shall acknowledge on behalf of each relevant member of the Seller’s Group the payment of the Estimated Intra-Group Financing Payables in accordance with Clause ‎6.4(a).

6.5	The repayments made pursuant to Clause 6.4 shall be adjusted in accordance with Clause 7.4 when the Closing Statement becomes final and binding in accordance with Clause ‎7.2(a).

6.6	The Parties agree that notwithstanding Clause 6.1, if any Local Transfer Document is required to be notarised, the relevant Parties shall execute such document on the Completion Date at a mutually convenient location where a notary with the required qualification will be present.

7.	Post-Completion Adjustments

7.1	Closing Statement

7.2	Determination of Closing Statement

(a)	The Draft Closing Statement as agreed or determined pursuant to Part 1 of Schedule 7 (Closing Statement):

(i)	shall constitute the Closing Statement for the purposes of this Agreement; and

(ii)	shall be final and binding on the Seller and the Purchaser.

(b)	The Working Capital, the Group Companies’ Cash Balances, the Closing Debt, the Intra-Group Financing Receivables and the Intra-Group Financing Payables shall be extracted from the Closing Statement.

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7.3	Adjustments to Purchase Price

(a)	Group Companies’ Cash Balances

(i)	If the Group Companies’ Cash Balances are less than the Estimated Cash, the Seller shall repay to the Purchaser by way of adjustment to the Purchase Price an amount equal to the deficiency; or

(ii)	if the Group Companies’ Cash Balances are greater than the Estimated Cash, the Purchaser shall pay to the Seller by way of adjustment to the Purchase Price an additional amount equal to the excess.

(b)	Intra-Group Financing Receivables

(i)	If the Intra-Group Financing Receivables are less than the Estimated Intra-Group Financing Receivables, the Seller shall repay to the Purchaser by way of adjustment to the Purchase Price an amount equal to the deficiency; or

(ii)	if the Intra-Group Financing Receivables are greater than the Estimated Intra-Group Financing Receivables, the Purchaser shall pay to the Seller by way of adjustment to the Purchase Price an additional amount equal to the excess,

(c)	Closing Debt

(i)	If the Closing Debt is greater than the Estimated Debt, the Seller shall repay to the Purchaser by way of adjustment to the Purchase Price an amount equal to the excess; or

(ii)	if the Closing Debt is less than the Estimated Debt, the Purchaser shall pay to the Seller by way of adjustment to the Purchase Price an additional amount equal to the deficiency.

(d)	Intra-Group Financing Payables

(i)	If the Intra-Group Financing Payables are greater than the Estimated Intra-Group Financing Payables, the Seller shall repay to the Purchaser an amount equal to the excess; or

(ii)	if the Intra-Group Financing Payables are less than the Estimated Intra-Group Financing Payables, the Purchaser shall pay to the Seller an additional amount equal to the deficiency,

(e)	Working Capital

(i)	If the Working Capital is less than the Estimated Working Capital, the Seller shall repay to the Purchaser an amount equal to the deficiency; or

(ii)	if the Working Capital exceeds the Estimated Working Capital, the Purchaser shall pay to the Seller an additional amount equal to the excess.

(f)	Adjustment Amount

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7.4	Adjustments to Repayment of Intra-Group Financing Payables and Intra-Group Financing Receivables

7.5	The Seller shall procure that the Intra-Group Financing Receivables owed by a member of the Seller’s Group to a Group Company will be less than EUR2,000,000.

7.6	Date and effect of payment

(a)	Any payment pursuant to Clause 7.3 or 7.4 shall be made on or before the Final Payment Date.

(b)	Where any payment is required to be made pursuant to Clause 7.3, the Purchase Price shall be reduced or increased accordingly.

8.	Assumed and Excluded Liabilities

8.1	With effect from Completion, the Purchaser shall indemnify and keep indemnified the Business Sellers against:

(a)	all Assumed Liabilities;

(b)	any Losses which the Business Sellers and/or any other member of the Seller’s Group (other than the Group Companies) may suffer by reason of the Business Sellers taking any reasonable action to avoid, resist or defend against, or otherwise in connection with or arising from, any Assumed Liabilities; and

(c)	any Losses which the Business Sellers and/or any other member of the Seller’s Group (other than the Group Companies) may suffer where such Business Sellers and/or other member of the Seller’s Group are held liable for Losses incurred or attributable to the EEIG Interests, in each case arising and relating to the period after Completion.

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8.2	With effect from Completion, the Seller shall indemnify and keep indemnified the Purchaser and the Business Purchasers against:

(a)	all Excluded Liabilities; and

(b)	any Losses which the Business Purchasers and/or any other member of the Purchaser’s Group may suffer by reason of the Business Purchasers taking any reasonable action to avoid, resist or defend against, or otherwise in connection with or arising from, any Excluded Liability or any Excluded Asset.

9.	Seller’s Warranties and Undertakings

9.1

The Seller warrants to the Purchaser, each Share Purchaser and each Business Purchaser that: (i) except as Disclosed, each of the Business Warranties was true and accurate as at the Offer Letter Date; (ii) each of the Fundamental Warranties was true and accurate as at the Offer Letter Date; (iii) each of the Fundamental Warranties will at Completion be true and accurate; (iv) the warranty in paragraph 7.5 of Schedule 3 will at Completion be true and accurate; and (v) except as fairly disclosed in writing to the Purchaser at least three (3) Business Days prior to Completion, the Relevant Contracts Warranty will as at three (3) Business Days prior to Completion be true and accurate. The Warranties are given subject to Clause 10 and Schedule 4 (Seller’s Limitations on Liability) below.

9.2

The Seller agrees with the Purchaser, each Share Purchaser, each Business Purchaser, and each Employee to waive any rights or claims which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by such Employee in connection with the giving of the Warranties and the preparation of the Disclosure Letter. The provisions of this subparagraph: (a) may with the prior written consent of the Purchaser be enforced by any Employee against the Seller under the Contracts (Rights of Third Parties) Act 1999; and (b) may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this subparagraph) without the consent of any such Employee.

9.3	Any Warranties that are qualified by the knowledge, belief or awareness of the Seller shall mean the actual (but not constructive or imputed) knowledge, belief or awareness of the Seller having made due and careful enquiry of Emilie Chevalier, Gunter DePaepe, Stefan Eha, Sheila Hill, Wieslaw Wielgat, Laurent Martel, Andrew Martin, Deepak Pandya, Guillaume Roth and Sonia Van Steenberghe.

9.4	The Seller hereby:

(a)

agrees that it shall procure that by not later than immediately prior to Completion each member of the Group shall be unconditionally and irrevocably released in full from their respective obligations under any guarantee, security interest, indemnity, support letter or other contingent obligation, including without limitation the grant of collateral, given or undertaken by a member of the Group in relation to or arising out of any obligations or liabilities of any member of the Seller’s Group (the “Group Commitments”);

(b)	undertakes to indemnify and hold the Purchaser and each other member of the Group harmless from and against all Losses suffered or incurred by it after Completion in relation to or arising out of the Group Commitments;

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(c)	undertakes to procure that Scotts Gardening Fertilizer (Wuhan) Co., Ltd. is transferred by Scotts Australia Pty. Limited to a member of the Seller’s Group prior to Completion (the “China Share Sale Agreement”);

(d)	undertakes to indemnify in full and hold the Purchaser and Scotts Australia harmless from and against all Losses suffered or incurred by them after Completion in relation to or arising from any Liabilities arising from the China Share Sale Agreement;

(e)	agrees to procure, at its own cost, that each Business Seller shall change its name with effect from Completion;

(f)	undertakes to indemnify in full and hold harmless on an after taxation basis, and keep indemnified, the Purchaser from and against any and all Liabilities and Losses arising as a result of any compensation payment which a Relevant Seller agrees to make to any member of the UK Schemes in connection with the members of the UK Schemes losing their final salary link;

(g)

undertakes to indemnify and hold the Purchaser and each other member of the Group harmless from and against all Losses suffered or incurred by it after Completion relating to: (a) tax or social security in respect of any incentive payments made prior to Completion by Scotts France SAS to the extent that such payments contravene applicable law; (b) the “Ross” litigation, as disclosed in document 8.1.1 and sub-folder 8.1.4 in the Data Room; and (c) the circumstances and claims referred to in the Disclosure Letter in the specific disclosures against the warranty in paragraph 5 of Schedule 3 underneath the sub-headings ‘Scotts Austria’ and ‘European Group’; and

(h)	undertakes to indemnify the Purchaser for any transaction costs, transaction bonuses and retention bonuses related to the sale of the Group (gross of any tax and social security liabilities) that a Group Company or a Business Seller agreed to pay prior to Completion and payable by a Group Company or a Relevant Purchaser after Completion.

9.5	The liability of the Seller in respect of Clause 9.4(g) shall not arise until the amount of any such claim would when substantiated exceed EUR 75,000 (in which case the Seller shall be liable for the whole amount and not just the excess).

9.6	The Purchaser shall (and shall procure that each other Relevant Purchaser shall) use all reasonable endeavours to apply to and obtain from the relevant regulatory authorities the necessary product registration in respect of the Acetic Acid Stock (as defined in the Disclosure Letter).

9.7

Subject to applicable law regarding the information and consultation of the International Business Employees and their staff representatives, the Seller undertakes that it shall at the Purchaser’s expense, and shall procure that the Group Companies shall, prior to the Completion Date, provide the Purchaser and its representatives with: (i) such assistance as they may reasonably request in connection with the Purchaser’s debt financing agreements for the purposes of the Transaction; and (ii) such: (a) access to (A) the Senior Managers and other Workers (whose identity or role within the Business shall be determined by the Purchaser, subject to a maximum of ten (10) Workers), and (B) Workers with knowledge of the IT Systems; and (b) information regarding the businesses and affairs of the Group, in each case as the Purchaser may reasonably require to prepare for the integration of the Group with the Purchaser, including, but not limited to, (A) meeting with the Senior Managers for two Business Days per each calendar month to plan such integration and (B) access to financial information regarding the performance of the Group. Nothing in this Clause 9.7 shall entitle the

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9.8

With regards to any objection (opposition) filed pursuant to Articles L. 141-14 to L. 141-17 of the French Commercial Code by a creditor of the Relevant Seller’s Group Business in France against the payment of the purchase price to be paid for the Group Business in France, the Seller undertakes to: (i) subject to Clause 8.1(a), indemnify and hold the Purchaser and the Relevant Purchasers harmless from and against all Losses suffered or incurred by them after Completion arising from the filing of such objection; and (ii) procure that any third party that attempts to exercise rights against the Purchaser or a Relevant Purchaser pursuant to Articles L. 141-14 to L. 141-17 of the French Commercial Code shall revoke any objection to the acquisition of a Group Business by the Purchaser or a Relevant Purchaser. Without prejudice to the foregoing, each Party shall co-operate with the other in connection with such release process, including by providing any relevant information in its possession and making any filing, submission or declaration as reasonably necessary under applicable laws.

9.9

The Seller undertakes to the Purchaser that it shall, and shall procure that each member of the Seller’s Group will, preserve for a period of at least seven (7) years from Completion all books, records and documents of or relating to each Business Seller at Completion (together the “Business Seller Books and Records”). The Seller shall during such period, subject to the Purchaser giving such undertakings as to confidentiality as the Seller may reasonably require, upon being given reasonable notice (and in any event within five (5) Business Days of written notice being given to the Seller by the Purchaser), permit the Purchaser and its Agents to inspect and to make copies of any Business Seller Books and Records, but only to the extent necessary for the purpose of satisfying applicable laws, regulations or the published practice of a Taxation Authority.

9.10

In the event that any proceeding, enquiry or investigation of any judicial or regulatory authority or Taxation Authority is pending at the time of expiry of the period of seven (7) years from Completion, or if at such time the Purchaser is in the process of using any Business Seller Books and Records in connection with satisfying applicable laws, regulations or the published practice of a Taxation Authority, the Purchaser shall be entitled to continuing access to the Business Seller Books and Records on the same terms as provided in Clause 9.9 for a further period until completion of the relevant enquiry, investigation or other event.

9.11

The Seller shall and shall procure that Scotts France Holdings SARL and Scotts France SAS indemnify in full and hold the Purchaser and any Relevant Purchaser harmless, on a net after Taxation basis, from and against any Liabilities or Losses consisting of any income tax or apprenticeship tax and related reasonable costs that may be suffered or incurred by the Purchaser or any Relevant Purchaser in relation to any liability of the said Purchaser or any Relevant Purchaser under article 1684 of the French tax code in relation to any transaction occurring under or pursuant to this Agreement, and within ten (10) Business Days of receipt of a notice sent by the Purchaser to the Seller in this respect together with a copy of the relevant tax collection notice issued by the French tax administration (or any equivalent document).

10.	Seller’s Limitations on Liability

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11.	Purchaser’s Warranties and Undertakings

11.1	The Purchaser warrants to the Seller that each of the Purchaser’s Warranties was true and accurate as at the Offer Letter Date and will at Completion be true and accurate.

11.2	The Purchaser and the Relevant Purchasers shall, each at its own cost:

(a)	with effect from Completion, be entitled to adopt the current corporate name of each Business Seller for the relevant Business Purchaser purchasing the respective Group Business; and

(b)	procure that the name of any Group Company and any Business Purchaser which incorporates the word “Scotts” is changed to a name which does not include that word or any name which, in the reasonable opinion of the Seller, is capable of being confused with “Scotts”, in each case within:

(i)	twenty four (24) months after Completion or thirty (30) months after Completion if the Purchaser provides evidence to the Seller that complying with this Clause 11.2(b)(i) may affect the ability of the Group to rely on any Licences necessary to sell its Products in compliance with applicable law; or

(ii)	a reasonable period of time following the termination of the licence to use the “Scotts” mark that is to be granted in the Trade Mark Licence, if that licence is terminated before the expiry of the period referred to in Clause 11.2(b)(i) in accordance with the terms of the Trade Mark Licence,

11.3	It is agreed and acknowledged that:

(a)	for a period of 12 months following the expiry of the Applicable Name Change Period the Purchaser shall have the right to sell any remaining Products in the Purchaser’s inventory bearing labels or packaging which incorporates the word “Scotts”; and

(b)	nothing in Clause 11.2(b) shall require the Purchaser, any Group Company or Business Purchaser to recall any Products which have already been sold or shipped to customers or distributors in order to change the packaging or labelling on such Products so that they omit the word “Scotts”.

11.4

The Purchaser undertakes to the Seller that it shall, and shall procure that each member of the Purchaser’s Group will, preserve for a period of at least seven (7) years from Completion all books, records and documents of or relating to each Group Company existing at Completion (together the “Books and Records”). The Purchaser shall during such period, subject to the Seller giving such undertakings as to confidentiality as the Purchaser may reasonably require, upon being given reasonable notice (and in any event within five (5) Business Days of written notice being given to the Purchaser by the Seller), permit the Seller and its Agents to inspect and to make copies of any Books and Records, but only to the extent relating to the period before Completion and to the extent necessary for the purpose of satisfying applicable laws, regulations or the published practice of a Taxation Authority.

11.5

In the event that any proceeding, enquiry or investigation of any judicial or regulatory authority or Taxation Authority is pending at the time of expiry of the period of seven (7) years from Completion, or if at such time the Seller is in the process of using any Books and Records in connection with satisfying applicable laws, regulations or the published practice of a Taxation Authority, the Seller

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11.6

If Completion does not take place, the Purchaser undertakes to the Seller that it shall, at the Purchaser’s election, destroy or forthwith hand over, or procure the destruction or handing over of, all books, records, documents and papers of or relating to the Seller’s Group which shall have been made available to it and all copies or other records derived from such materials (“Seller’s Group Information”) and that it shall remove any information derived from such materials or otherwise concerning the subject matter of this Agreement (“Secondary Information”) from any computer, word processor or other device containing information, provided that (i) the Purchaser shall only be required to use commercially reasonable efforts to return or destroy any Seller’s Group Information or Secondary Information stored electronically, and the Purchaser shall not be required to return or destroy any electronic copy of Seller’s Group Information or Secondary Information created pursuant to its electronic backup and archival procedures; and (ii) the Purchaser may retain any Seller’s Group Information or Secondary Information to the extent required to comply with applicable law or regulation or rule, requirement or official request of any regulatory or governmental authority or stock exchange or judicial, supervisory, banking or taxation authority or established document retention policies and practices, or to demonstrate compliance with such requirements.

11.7	The Purchaser hereby:

(a)

agrees that it shall use its best endeavours to procure that immediately following Completion the Seller and each other member of the Seller’s Group shall be unconditionally and irrevocably released in full from their respective obligations under any guarantee, security interest, indemnity, support letter or other contingent obligation, including without limitation the grant of collateral, given or undertaken by the Seller or a member of the Seller’s Group in relation to or arising out of any obligations or liabilities of any Group Company, in each case to the extent that any such guarantee, security interest, indemnity, support letter or other contingent obligation is listed in Schedule 16 (the “Seller Commitments”) and to the extent outstanding immediately prior to Completion; and

(b)	undertakes to indemnify and hold the Seller and each other member of the Seller’s Group harmless from and against all Losses suffered or incurred by it after Completion in relation to or arising out of the Seller Commitments (but only to the extent relating to the period after Completion).

11.8

The Purchaser undertakes to the Seller that it will not, without the prior written consent of the Seller amend the Purchaser Debt Finance Agreement in a manner which would be materially prejudicial to the interests of the Seller under this Agreement; provided that, for the avoidance of doubt, the Purchaser Debt Finance Agreement may be amended to add purchasers, lenders, lead arrangers, book-runners, syndication agents or similar entities. The Purchaser shall use all reasonable endeavours to obtain and consummate the Purchaser Debt Finance at Completion.

12.	Restrictions on Seller

12.1	Except as provided in Clause 12.2, the Seller shall not and shall procure that no other member of the Seller’s Group shall, without the prior written consent of the Purchaser:

(a)	neither pending nor within three (3) years following the Completion Date carry on or be directly or indirectly engaged in the Business (or directly or indirectly interested in any entity engaged in the Business), in each case in any Relevant Territory in which the Group

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(b)	neither pending nor within three (3) years following the Completion Date grant any third party a licence permitting that third party to use any Licensed Retained Intellectual Property in relation to the Business in any Relevant Territory in which the Group operates as at the Completion Date or at any time during the twelve (12) months immediately preceding the Completion Date; or

(c)	neither pending nor within three (3) years following the Completion Date:

(i)	solicit any employee or consultant who is a director or senior manager or who has a salary of more than EUR 150,000 per annum, in each case in relation to (i) any Group Company; or (ii) any Group Business; or

(ii)	solicit, induce or attempt to induce any customer, supplier or retailer of any member of the Group to cease to deal, or to restrict or vary their terms of dealing, with that member of the Group or a Relevant Purchaser.

12.2	Nothing in this Clause 12 shall prevent or restrict any member of the Seller’s Group from:

(a)	acquiring any company or business (the “Acquired Entity”) in any part of the world which competes with the Business in the Relevant Territory where the turnover generated by the competing part of the Acquired Entity during the most recently ended accounting period does not exceed fifteen per cent. (15%) of the aggregate turnover of the Acquired Entity during that accounting period;

(b)	any general advertisement to the public of employment by any member of the Seller’s Group to which any person referred to in Clause 12.1(c)(i) responds, provided that such advertisement is not specifically targeted at the Group nor any member of the Group nor any employee or consultant of any such member at the Completion Date;

(c)	carrying on or developing its present business(es) (other than in respect of the Group and other than the Business in any Relevant Territory) including, for the avoidance of doubt, any business relating to the manufacturing, distributing or development of Hydroponic Products; or

(d)	trading with any of its existing customers or clients or any future customers or clients provided it does not do so in respect of the Business in any Relevant Territory or in competition with any Group Company or any Relevant Purchaser.

13.	No Right to Rescind or Terminate

13.1

Save for termination pursuant to Clause 3.10, the Parties’ express right to terminate in Clause 6.3(c) and the Purchaser’s right to terminate pursuant to Clause 13.2 and Clause 13.4, the Purchaser shall not be entitled to rescind or terminate this Agreement, whether before or after Completion, and the Purchaser waives all and any rights of rescission which it may have in respect of any matter to the full extent permitted by law, other than such rights in respect of fraud. Without prejudice to the generality of the foregoing, the Purchaser agrees that the remedy of rescission is excluded in relation to all matters and shall not be available, save in respect of fraud.

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13.2	If Completion does not occur on or before the date that is four months from the Offer Letter Date and anything occurs after the Offer Letter Date which has or is reasonably likely to have a Material Adverse Effect within six months after the occurrence of such event, the Purchaser may elect to terminate this Agreement with immediate effect by giving notice in writing to the Seller.

13.3

For the purposes of Clause 13.2, “Material Adverse Effect” means any change, event, occurrence or effect (“Effects”) that, individually or in the aggregate, would have a material adverse effect on the business, results of operations or financial condition of the Group, taken as a whole, provided, however, that, none of the following Effects shall be taken into account in determining whether a Material Adverse Effect has occurred: (A) changes or proposed changes in applicable law or accounting standards, (B) changes in general economic or political conditions in any country or region in which the Group operates, (C) changes or proposed changes (including changes of applicable law or interpretations thereof) or conditions generally affecting the industry in which the Group operates, (D) any action taken (or omitted to be taken) at the request of the Purchaser or resulting from a breach of this Agreement or violation of applicable law by the Purchaser, (E) any action taken by the Group that is required or expressly contemplated or permitted by this Agreement, including any actions required under this Agreement to obtain any approval or authorization under applicable antitrust laws, and (F) any Effects resulting from or arising out of the execution and performance of this Agreement or the announcement or pendency of the Transaction or the identity of or any facts or circumstances relating to the Purchaser, including the impact of any of the foregoing on the relationships, contractual or otherwise with employees, any Authority or any other persons.

13.4

If, prior to Completion: (a) one or more suppliers under one or more Relevant International Business Contracts notifies a Group Company or a member of the Seller’s Group that: (i) it refuses to consent to the assignment of such contract; or (ii) it intends to terminate such supplies, materially reduce its supplies or materially amend the terms of such contract; and (b) the aggregate effect of such refusal(s), termination(s) and/or amendment(s) has or is reasonably likely to have (within 6 months after Completion) a material adverse effect on the business, results of operations or financial condition of the Group, taken as a whole, then the Purchaser may elect to terminate this Agreement with immediate effect by giving notice in writing to the Seller.

13.5	If this Agreement is terminated by a Party in accordance with:

(a)	Clause 3.10; or

(b)	Clause 6.3(c); or

(c)	Clause 13.4; or

(d)	Clause 13.2,

14.	Insurance

14.1	The Seller shall and shall procure that each Group Company and each member of the Seller’s Group shall continue in force all pre-existing insurance cover in respect of the Group maintained by them up to and including the Completion Date.

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14.2	Subject to Clauses 14.3 to 14.5, the Seller shall be entitled to arrange for any insurance cover provided by the Seller’s Group in relation to the Group to cease upon Completion.

14.3

The Seller shall not (and shall procure that no member of the Seller’s Group shall) terminate or agree to terminate any cover under the Global Marine Policy, any Occurrence Basis Policies or any Claims Made Policies in respect of which a Permitted Claim has been or may be made, or take (or omit to take) any other action which could reasonably be expected to adversely affect the rights of any member of the Group to effect recovery of Permitted Claims.

14.4

Without prejudice to paragraphs 12 and 24 of Schedule 3, promptly following Completion, the Seller shall (and shall procure that each member of the Seller’s Group shall) provide the Purchaser and its representatives with copies of the Global Marine Policy, and/or any Occurrence Basis Policies and/or Claims Made Policies under which a claim in respect of a Permitted Claim has been notified or in respect of which a Permitted Claim may be notified, and, in either case, which has not been paid.

14.5

The Seller shall ensure that, following Completion, each member of the Seller’s Group shall take such steps as may reasonably be requested by the Purchaser having regard to the Seller’s role as policyholder under the relevant policy to enable the Purchaser or the relevant member of the Group to pursue any Permitted Claim which is pending or outstanding at Completion, or to make and pursue any other Permitted Claim.

14.6	The obligations of the Seller under Clause 14.3 shall include assisting as necessary any member of the Group or any other member of the Purchaser’s Group in pursuing any Permitted Claim. The Seller shall pay to the Purchaser any proceeds actually received by a member of the Seller’s Group from an insurer in respect of Permitted Claims, less, if applicable:

(a)	any tax thereon;

(b)	any reasonable costs of recovery, including legal and other fees and expenses; and

(c)	any costs (including tax) of passing on the relevant amounts to the Purchaser’s Group,

15.	Business Information

15.1

Subject to Clauses 9.9 and 9.10, to the extent that any information reasonably required for the Business is not in the possession of the Purchaser but remains held by the Seller’s Group, for a period of seven (7) years following the Completion Date the Seller shall use its reasonable endeavours to procure that, subject to the Purchaser giving such undertakings as to confidentiality as the Seller may reasonably require, copies of such information are provided to the Purchaser as soon as reasonably practicable following a written request for such information by the Purchaser.

15.2	The Purchaser shall indemnify and hold the Seller harmless from and against all Losses suffered or incurred by it in complying with its obligations under this Clause 15.

16.	Intellectual Property and Product Registrations

16.1	The provisions of Schedule 10 (Intellectual Property and Product Registrations) shall apply in respect of the International Business Intellectual Property and the International Business Product Registrations.

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16.2

The Purchaser grants, or shall procure that the relevant member of the Group shall grant, with effect from Completion, to the Seller or a member of the Seller’s Group designated by the Seller a non-exclusive, royalty-free, perpetual and irrevocable and sub-licensable licence to use the Licensed International Intellectual Property, solely for the purposes of: (a) research and development; (b) manufacturing in the Relevant Territory products or their component parts which are protected by the Licensed International Intellectual Property for export outside the Relevant Territory; and (c) exporting the products referred to in (b) from the Relevant Territory.

16.3

The Seller grants, and shall procure that each relevant member of the Seller’s Group shall grant, with effect from Completion, to the Purchaser or a member of the Purchaser’s Group designated by the Purchaser a non-exclusive, royalty-free, perpetual and irrevocable (except in respect of any Intellectual Property that relates to the same technology as is covered by the Licensed Retained Intellectual Property, which licence shall terminate on termination of the IP Licence in accordance with its terms) and sub-licensable licence to use the America Business Intellectual Property, solely for the purposes of: (a) research and development in connection with the International Business Products in any of the Purchaser Manufacturing Territories; (b) manufacturing the International Business Products, or their component parts which are protected by the America Business Intellectual Property, in any of the Purchaser Manufacturing Territories for export outside the Excluded Territories; and (c) exporting to countries in the Relevant Territory the International Business Products referred to in (b) from the Purchaser Manufacturing Territory where such International Business Products or their component parts were manufactured.

16.4	The Intra-Group IP Licences will terminate with effect from Completion.

16.5

The Purchaser grants, and shall procure that each relevant member of the Purchaser Group shall grant, with effect from Completion to the Seller or a member of the Seller’s Group designated by the Seller, a royalty-free, perpetual and irrevocable, sub-licensable and freely transferable licence to use and develop the New Project IP in the Excluded Territories. This licence shall be exclusive, save that the Purchaser may use, or license the use of, the New Project IP in the Excluded Territories solely for the purposes of: (a) research and development in connection with the products of the Business; (b) manufacturing the products of the Business, or their component parts for export outside the Excluded Territories; and (c) exporting to countries in the Relevant Territory the products and component parts referred to in (b) from the Excluded Territory where such products and component parts were manufactured.

16.6	The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall provide the Seller with copies of any formulations, data, results and other materials arising out of the New Projects in the nine (9) month period immediately following Completion, as soon as reasonably practicable following their creation.

17.	Misallocated Assets

17.1

If, within two (2) years after Completion, any property, right or asset which was not predominantly (in the case of any property, right or asset excluding Intellectual Property) or exclusively (in the case of any property, right or asset including Intellectual Property) used by or relating to, or forming part of, the Business before Completion is found to have been transferred to the Purchaser or a Relevant Purchaser or a Group Company, the Purchaser shall transfer, or procure that the relevant Group Company or Relevant Purchaser shall transfer, and the Seller shall accept, at no cost and free from any Encumbrance created by the Purchaser’s Group after Completion, such property, right or asset as soon as practicable to the transferor or another member of the Seller’s Group nominated by the

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17.2

If, within three (3) years after Completion, any property, right or asset which was predominantly (in the case of any property, right or asset excluding Intellectual Property) or exclusively (in the case of any property, right or asset including Intellectual Property) used by, or forming part of, the Business before Completion is found to have been retained by the Seller’s Group (whether directly or indirectly), the Seller shall transfer, or procure that the relevant member of the Seller’s Group shall transfer, at no cost and free from any Encumbrance, such property, right or asset as soon as practicable to the Purchaser or such other Group Company or Relevant Purchaser, as may be nominated by the Purchaser, and pending such transfer shall hold any such property, right or asset (including any benefit attributed to or derived from it) on trust on behalf of and for the benefit of the Purchaser or relevant Group Company or Relevant Purchaser absolutely until the time that such transfer becomes effective.

17.3

If a member of either the Seller’s Group or the Purchaser’s Group discovers within three (3) years after Completion that a member of the Purchaser’s Group owns (including in accordance with Clause 17.2) any Retained Intellectual Property, the Purchaser shall, as soon as practicable after receipt of a notice to that effect containing details of the Retained Intellectual Property concerned, procure the assignment of such Retained Intellectual Property by such other relevant member of the Purchaser’s Group to a member of the Seller’s Group designated by the Seller.

17.4	For the avoidance of doubt, any Tax cost arising in connection with any transfer or assignment made pursuant to any of Clauses 17.1 to 17.3 above shall be borne solely by the Seller.

18.	Confidentiality

18.1

Save as expressly provided in Clause18.3, the Seller shall, and shall procure that each member of the Seller’s Group shall, treat as confidential the provisions of the Transaction Documents and all information it has received or obtained relating to the Purchaser’s Group as a result of negotiating or entering into the Transaction Documents and, with effect from Completion, all information it possesses relating to each Group Company and each Group Business, and shall not disclose or use any such information.

18.2

Save as expressly provided in Clauses 18.3 and 18.4, the Purchaser shall, and shall procure that each member of the Purchaser’s Group shall, treat as confidential: (a) the provisions of the Transaction Documents and all information it has received or obtained about the Seller’s Group as a result of negotiating or entering into the Transaction Documents; and (b) at all times prior to Completion, all information it possesses relating to each Group Company and each Group Business, and shall not disclose or use any such information.

18.3	A Party may disclose, or permit the disclosure of, information which would otherwise be confidential if and to the extent that it is disclosed:

(a)	to Agents of that Party or of other members of the Relevant Party’s Group, in each case providing this is reasonably required in connection with the transactions contemplated by the Transaction Documents (and provided that such persons are required to treat that information as confidential); or

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(b)	is required by law or any securities exchange, regulatory or governmental body or Taxation Authority; or

(c)	was already in the lawful possession of that Party or its Agents without any obligation of confidentiality (as evidenced by written records); or

(d)	is in the public domain at the Offer Letter Date or comes into the public domain other than as a result of a breach by a Party of this Clause 18.3,

18.4	The Purchaser may disclose, or permit the disclosure of, information which would otherwise be confidential if and to the extent that it is disclosed to:

(a)	any fund managed or advised by (or to be managed or advised by) Exponent Private Equity LLP (the “Exponent Funds”), any investor or potential investor in any Exponent Funds, together with their Agents and any adviser to the Exponent Funds;

(b)	any provider of finance or potential provider of finance to the Purchaser’s Group or to a security trustee or agent acting on behalf of one or several banks or other financial institutions which have entered into, or may enter into, any financing agreements with any member of the Purchaser’s Group or to any of the Agents of the foregoing; or

(c)	to a potential purchaser of all or part of the Group and its Agents, provided that such potential purchaser has entered into an undertaking of confidentiality on customary terms.

18.5	The confidentiality restrictions in this Clause18 shall continue to apply after the termination of this Agreement pursuant to Clause 3.10 (Conditions), Clause 6.3(c) (Completion) or Clause 13.2 (MAC) without limit in time.

19.	Announcements

19.1	Save for the Press Release in the agreed terms as expressly provided in Clause 19.2, no announcement shall be made by or on behalf of either Party or a member of the Relevant Party’s Group relating to the Transaction Documents without the prior written approval of the other Party, such approval not to be unreasonably withheld or delayed.

19.2

A Party may make an announcement relating to the Transaction Documents if (and only to the extent) required by the law of any relevant jurisdiction or any securities exchange, regulatory or governmental body provided that, to the extent permitted by applicable law or regulation, prior written notice of any announcement required to be made is given to the other Parties in which case such Party shall take such steps as may be reasonable in the circumstances to agree the contents of such announcement with the other Parties prior to making such announcement.

20.	Grossing-up

20.1	All sums payable under this Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by law or as otherwise agreed. If any deductions or withholdings are required by law from any such sum payable (other than any

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20.2

The recipient or expected recipient of a payment under this Agreement shall take such steps as the payor may reasonably request in order to claim from the appropriate Taxation Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is entitled in respect of any deduction or withholding in respect of which a payment has been or would otherwise be required to be made pursuant to Clause 20.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or applications as the payor may reasonably request and send a copy of them to the payor.

20.3

If the recipient of a payment made under this Agreement receives a credit for or refund of any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payor such part of such additional amounts paid pursuant to Clause 20.1 above as the recipient of the payment certifies to the payor will leave the recipient (after such reimbursement) in no better and no worse position than the recipient would have been in if the payor had not been required to make such deduction or withholding.

21.	Guarantee

21.1

In consideration of the Purchaser entering into this Agreement, the Guarantor irrevocably and unconditionally guarantees to the Purchaser and each Relevant Purchaser punctual performance by the Relevant Sellers of all of such Relevant Sellers’ obligations under this Agreement, the Local Transfer Documents and the other Transaction Documents and undertakes to the Purchaser and each Relevant Purchaser that:

(a)	whenever any of the Relevant Sellers do not pay any amount when due under or in connection with this Agreement or any other Transaction Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor;

(b)	whenever any of the Relevant Sellers fail to perform any other obligations under this Agreement, the Local Transfer Documents or any other Transaction Document, the Guarantor shall immediately on demand perform (or procure performance of) and satisfy (or procure the satisfaction of) that obligation; and

(c)	agrees as principal debtor and primary obligor to indemnify the Purchaser and each Relevant Purchaser against all losses and damages sustained by it flowing from any non-payment or default of any kind by any of the Relevant Sellers under or pursuant to this Agreement, the Local Transfer Documents or any Transaction Document,

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21.2	This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any of the Relevant Sellers under this Agreement, the Local Transfer Documents and the other Transaction Documents, regardless of any intermediate payment or discharge in whole or in part.

21.3	Save to the extent provided in Clause 21.4, the obligations of the Guarantor will not be discharged or affected by:

(a)	any time, waiver or consent granted to the Relevant Sellers or any other person;

(b)	the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against the Relevant Sellers under this Agreement, the Local Transfer Documents or any other Transaction Document;

(c)	the insolvency (or similar proceedings) of any of the Relevant Sellers, any incapacity or lack of power, authority or legal personality of any of the Relevant Sellers or change in control, ownership or status of any of the Relevant Sellers;

(d)	any unenforceability or invalidity of any obligation of any of the Relevant Sellers; or

(e)	any amendment to this Agreement, the Local Transfer Documents or any other Transaction Document.

21.4

For the avoidance of doubt, the Guarantor shall have no liability under this Clause 21 in respect of any liability of any of the Relevant Sellers under this Agreement, the Local Transfer Documents or any other Transaction Document to the extent that such liability is excluded by any provision of Schedule 4 (Seller’s Limitations on Liability) and, where any obligation or liability of any of the Relevant Sellers is either:

(a)	amended or varied in accordance with Clause 26 (Variations); or

(b)	waived to any extent in a manner that is effective in accordance with Clause 27 (Remedies and Waivers),

21.5

The Guarantor warrants to the Purchaser that: (a) it has full power and authority to enter into and perform this Agreement; (b) this guarantee constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms; and (c) its execution, delivery and performance of this Agreement will not constitute a breach of (i) any provision of its articles of association, by laws or equivalent constitutional documents; or (ii) any order, judgment or decree of any court or governmental authority by which it is bound.

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21.6

Until all amounts which may be or become payable by any of the Relevant Sellers under or in connection with this Agreement, the Local Transfer Documents and any other Transaction Document have been irrevocably paid in full, the Purchaser and each Relevant Purchaser shall not be obliged to apply any sums held or received by it from the Guarantor towards payment of any of the Relevant Sellers’ obligations.

22.	Assignment

(a)

the Purchaser and the Relevant Purchasers may assign (in whole or in part) the benefit of this Agreement, the Local Transfer Documents or any other Transaction Document to any other member of the Purchaser’s Group provided that if such assignee ceases to be a member of the Purchaser’s Group all benefits relating to this Agreement, the Local Transfer Documents or any other Transaction Document assigned to such assignee shall be deemed automatically by that fact to be re-assigned to the Purchaser or a Relevant Purchaser immediately before such cessation; and

(b)

the Purchaser, each of the Relevant Purchasers or any member of the Purchaser’s Group may charge and/or assign the benefit of this Agreement, the Local Transfer Documents or any other Transaction Document to any person providing debt financing and/or hedging facilities to the Purchaser, each of the Relevant Purchasers or any member of the Purchaser’s Group or to any security agent or any person or persons acting as trustee, nominee or agent for any such person by way of security for the facilities being made or to be made available to the Purchaser, each of the Relevant Purchasers or any member of the Purchaser’s Group and any such person, security agent, trustee, nominee or agent may also, in the event of enforcement of such security in accordance with its terms, assign the benefit of such obligations and rights to a purchaser or assignee who acquires a Group Company or all or part of its business from that person, security agent, trustee, nominee or agent (or any receiver appointed by any of them).

23.	Further Assurance

23.1	Insofar as it is able to do so after Completion, the Seller shall (and shall procure that the Relevant Sellers shall) from time to time and at their cost do, execute and deliver or procure to be done, executed and delivered all such further acts, documents and things reasonably required by the Purchaser in order to give full effect to this Agreement.

23.2

For so long after Completion as any Share Seller or any nominee of it remains the registered holder of any Shares, the Seller shall procure that such Share Seller shall hold (or direct the relevant nominee to hold) the relevant Shares and any distributions, property and rights deriving from it in trust for the Purchaser (or the relevant Relevant Purchaser) and shall deal with the relevant Shares and any distributions, property and rights deriving from it as the Purchaser (or the relevant Relevant Purchaser) directs; in particular, the Seller shall procure that the Share Seller shall exercise all voting rights as the Purchaser (or the relevant Relevant Purchaser) directs or shall execute an instrument

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23.3

For so long after Completion as any Business Seller or any nominee of it remains the registered holder of any International Business Asset, the Seller shall procure that it shall hold (or direct the relevant nominee to hold) that International Business Asset and any distributions, property and rights deriving from it in trust for the Purchaser (or the relevant Relevant Purchaser) absolutely and shall deal with that International Business Asset and any distributions, property and rights deriving from it as the Purchaser (or the relevant Relevant Purchaser) directs.

24.	Entire Agreement

24.1	This Agreement, together with the Transaction Documents and any other documents referred to in this Agreement or any Transaction Document, constitutes the whole agreement between the Parties and supersedes any previous arrangements or agreements between them relating to the sale and purchase of the Group.

24.2

Each Party confirms that it has not entered into this Agreement or any other Transaction Document on the basis of any representation, warranty, undertaking or other statement whatsoever by another Party or any of its Related Persons which is not expressly incorporated into this Agreement or the relevant Transaction Document and that, to the extent permitted by law, a Party shall have no right or remedy in relation to action taken in connection with this Agreement or any other Transaction Document other than pursuant to this Agreement or the relevant Transaction Document and each Party waives all and any other rights or remedies.

24.3

A Party’s only right or remedy in respect of any provision of this Agreement or any other Transaction Document shall be for breach of this Agreement or that Transaction Document, and no party shall have any right or remedy in respect of misrepresentation (whether negligent or innocent and whether made prior to and/or in this Agreement) and each Party waives all and any rights or remedies in respect of misrepresentation which it may have in relation to any matter to the fullest extent permitted by law.

24.4	Save for any claim under or for breach of this Agreement or any other Transaction Document, no Party nor any of its Related Persons shall have any right or remedy, or make any claim, against another Party nor any of its Related Persons in connection with the sale and purchase of the Group.

24.5	In this Clause 24, “Related Persons” means, in relation to a Party, members of the Relevant Party’s Group and the Agents of that Party and of members of the Relevant Party’s Group.

24.6	Nothing in this Clause 24 shall operate to limit or exclude any liability for fraud.

25.	Severance and Validity

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26.	Variations

27.	Remedies and Waivers

27.1	No waiver of any right under this Agreement or any other Transaction Document shall be effective unless in writing. Unless expressly stated otherwise a waiver shall be effective only in the circumstances for which it is given.

27.2	No delay or omission by any Party in exercising any right or remedy provided by law or under this Agreement, save to the extent otherwise provided in Schedule 4 (Seller’s Limitations on Liability), shall constitute a waiver of such right or remedy.

27.3	The single or partial exercise of a right or remedy under this Agreement shall not preclude any other nor restrict any further exercise of any such right or remedy.

27.4	The rights and remedies provided in this Agreement are cumulative and do not exclude any rights or remedies provided by law except as otherwise expressly provided.

28.	Effect of Completion

29.	Third Party Rights

29.1	This Agreement is made for the benefit of the Parties and their successors and is not intended to benefit any other person, and no other person shall have any right to enforce any of its terms, except that:

(a)	Clause 11 (Purchaser’s Warranties and Undertakings) and Clause 18.2 (Confidentiality) are intended to benefit members of the Seller’s Group;

(b)	Clause 9 (Seller’s Warranties and Undertakings) and Clause 18.1 (Confidentiality) are intended to benefit members of the Purchaser’s Group;

(c)	Clause 9.2 is intended to benefit Employees;

(d)	Clause 24 (Entire Agreement) is intended to benefit a Party’s Related Persons;

(e)	each provision of this Agreement that is expressed to confer a benefit on a Relevant Purchaser other than the Purchaser is intended to benefit each such Relevant Purchaser;

(f)	each provision of this Agreement that is expressed to confer a benefit on a Relevant Seller other than the Seller is intended to benefit such Relevant Seller,

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29.2	The Parties may amend or vary this Agreement in accordance with its terms without the consent of any other person.

30.	Payments

30.1

Any amount payable by the Seller or the Guarantor to, or at the direction of, the Purchaser under this Agreement shall, so far as possible, be deemed to be a reduction of the Purchase Price and each of the Seller, the Guarantor and the Purchaser shall to the extent permitted by law treat such payments as a reduction of the Purchase Price for all tax purposes. Insofar as any identifiable part of any payment made by the Seller or the Guarantor to, or at the direction of, the Purchaser under this Agreement relates to any Group Company, Group Business, International Business Contract, item of Business Intellectual Property or other asset of the Group Businesses, that part of that payment shall (in each case so far as possible) adjust that part of the Purchase Price allocated to the relevant Group Company, Group Business, International Business Contract, item of Business Intellectual Property or other asset of the Group Businesses under the Purchase Price Allocation Agreement on a basis agreed between the Seller and the Purchaser (each acting reasonably and in good faith).

30.2

The Parties shall consult with one another in good faith with a view to determining the most appropriate mechanism and treatment of any payments to be made or settled in accordance with this Agreement (including whether such payments are made or received by the Purchaser as principal or on behalf of a Relevant Purchaser) and the nature of any documentation that may be reasonably required to reflect such mechanism and treatment. The Parties shall take into account (inter alia) the consequences of any such payment and the impact on the availability of any Relief (as defined in the Tax Deed) which has been claimed by any Party or any Relevant Purchaser.

31.	Costs, Expenses and Stamp Duty

31.1	Except as expressly provided otherwise in this Agreement, each Party shall pay its own costs and expenses in connection with the negotiation, preparation and performance of this Agreement and the other Transaction Documents.

31.2

Subject to Clauses 31.3 and 31.4, the Purchaser shall bear the cost of all stamp duty, notarial fees and all registration and transfer taxes and duties or their equivalents in all jurisdictions (the “Transfer Taxes”) where such fees, taxes and duties are payable as a result of the transfer of the Shares and Group Businesses contemplated by this Agreement. The Purchaser shall be responsible for arranging the payment of such stamp duty and all other such fees, taxes and duties, including fulfilling any administrative or reporting obligation imposed by the jurisdiction in question in connection with such payment.

31.3

If the Transfer Taxes (for the avoidance of doubt, calculated on the basis of values set out in the Purchase Price Allocation Agreement) which are payable by the Purchaser in respect of the acquisition of the Business carried on in France, Germany and the UK (excluding any stamp duty land tax if and to the extent that it is attributable to VAT being chargeable in respect of the transfer of any Opted Property, where such VAT would not have been chargeable but for the relevant Business Purchaser deciding not to exercise the option to tax for VAT purposes in respect of that Opted Property) are more than the stamp duty that would have been payable had the Business carried on in France, Germany and the UK been transferred by transferring the shares in the Business Sellers in the UK, France and Germany to the Purchaser at Completion then the Seller shall pay to the Purchaser an amount in cash in euros which is equal to such excess (the “Transfer Tax Payment”).

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31.4

The Transfer Tax Payment shall be estimated by the Purchaser in accordance with the values set out in the Purchase Price Allocation Agreement no less than 5 (five) Business Days prior to Completion (the “Estimated Transfer Tax Payment”) and paid by the Seller to the Purchaser at Completion. The final Transfer Tax Payment (the “Final Transfer Tax Payment”) will be calculated by the Purchaser after Completion on the basis of the final values set out in the Purchase Price Allocation Agreement. If: (i) the Final Transfer Tax Payment is greater than the Estimated Transfer Tax Payment, the Seller shall pay to the Purchaser an amount equal to the difference between the two amounts; and (ii) the Final Transfer Tax Payment is less than the Estimated Transfer Tax Payment, the Purchaser shall pay to the Seller an amount equal to the difference between the two amounts, such payments to be made no later than fifteen (15) Business Days after the Final Transfer Tax Payment is determined. The Purchaser shall, as soon as reasonably practicable after determining its calculation of the Final Transfer Tax Payment, provide the Seller with the calculations upon which such determination is based, and the Seller shall be entitled to dispute such determination within thirty (30) days of its receipt of such calculations by giving notice to the Purchaser of such dispute and the reasons for such dispute (including reasonable detail of such reasons) (the “Transfer Taxes Disputed Matters”) (a “Transfer Taxes Dispute Notice”). If the Seller gives a valid Transfer Taxes Dispute Notice within such thirty (30) days, the Seller and the Purchaser shall attempt in good faith to reach agreement in respect of the Transfer Taxes Disputed Matters and, if they are unable to do so within twenty-one (21) days of such notification, the Seller or the Purchaser may by notice to the other require that the Transfer Taxes Disputed Matters be referred to the Reporting Accountants and paragraphs 3.4 to 3.10 of Part 1 of Schedule 7 shall apply mutatis mutandis to the engagements and the determination of the Reporting Accountants hereunder.

32.	Notices

32.1

Any notice or other communication to be given under or in connection with this Agreement (“Notice”) shall be in the English language in writing and signed by or on behalf of the Party giving it. A Notice may be delivered personally or sent by pre-paid recorded delivery or international courier to the address provided in Clause 32.3, and marked for the attention of the person specified in that Clause.

32.2	A Notice shall be deemed to have been received:

(a)	at the time of delivery if delivered personally;

(b)	two (2) Business Days after the time and date of posting if sent by pre-paid recorded delivery; or

(c)	three (3) Business Days after the time and date of posting if sent by international courier,

32.3	The addresses for service of Notice are:

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32.4	A Party shall notify the other Party of any change to its details in Clause 32.3 in accordance with the provisions of this Clause 32, provided that such notification shall only be effective on the later of the date specified in the notification and five (5) Business Days after deemed receipt.

33.	Counterparts

34.	Time not of the Essence

35.	Governing Law and Jurisdiction

35.1	This Agreement, including any non-contractual obligations arising out of or in connection with this Agreement, is governed by and shall be construed in accordance with English law.

35.2	The Parties agree that the courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising out of or in connection with this Agreement (including any non-contractual obligations arising out of or in connection with this Agreement) (“Proceedings”) and, for such purposes, irrevocably submit to the jurisdiction of such courts.

36.	Agent for Service of Process

36.1	The Seller and the Guarantor each irrevocably appoint The Scotts Company (UK) Limited, c/o White & Case LLP, 5 Old Broad St, London EC2N 1DW as its agent for service of process in England.

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36.2

If any person appointed as agent for service of process ceases to act as such the relevant Party shall immediately appoint another person to accept service of process on its behalf in England and notify the Purchaser of such appointment. If it fails to do so within ten (10) Business Days the Purchaser shall be entitled by notice to the relevant Party to appoint a replacement agent for service of process.

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(1)	Includes amortization of capitalized interest, adjustments for non-controlling interests in consolidated subsidiaries and distributed earnings of equity investees. Interest expense recorded on tax exposures has been recorded in income tax expense and has therefore been excluded from the calculation.

(2)	Includes amortization of deferred financing and issuance costs related to indebtedness.

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1.	I have reviewed this Annual Report on Form 10-K of The Scotts Miracle-Gro Company for the fiscal year ended September 30, 2017;

2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.	The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)	Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.	The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

1.	I have reviewed this Annual Report on Form 10-K of The Scotts Miracle-Gro Company for the fiscal year ended September 30, 2017;

2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.	The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)	Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.	The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

1)	The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and

2)	The information contained in the Report fairly presents, in all material respects, the consolidated financial condition and results of operations of the Company and its subsidiaries.