Consulting Agreement, dated January 28, 2019, between The Scotts Company LLC and Hanft Projects LLC
EX-10.1 2 exhibit101smg3302019q2f19.htm EXHIBIT 10.1 Exhibit
January 28, 2019
Mr. Adam Hanft
Chief Executive Officer
Hanft Projects LLC
55 Fifth Avenue, Penthouse
New York, NY 10003
This letter sets forth our agreement (the “Agreement”) regarding a consulting engagement between Hanft Projects LLC and The Scotts Company LLC (“Scotts” or the “Company”). For the purposes of this Agreement, the term “Contractor” means Hanft Projects LLC, its primary designee/employee Adam Hanft, and any other designee or employee of Hanft Projects LLC. These consulting services are separate and distinct from the services Mr. Hanft is and will be providing as a member of the Scotts Miracle-Gro Company’s Board of Directors (the “Board”) or any Board Committees or other Committees on which Mr. Hanft may serve.
Scope of Services
Subject to the approval of the Board, Contractor agrees to provide the consulting services to Scotts described below:
Develop creative assets for a variety of existing Scotts brands, including broadcast and social, and participate with the internal team on the execution and production of these assets;
Support, guide and supplement the management of external agency and creative resources as they create, develop and produce work for Scotts;
Support the internal consumer team - our "studio" and the SBUs - on the development of portfolio strategies, brand and product strategy for existing and new products, the content of creative briefs, and related activities;
Work with internal teams on the development and execution of web and content strategies;
Work with the internal research and insight teams to drive innovation and the exploration of new modalities to better understand consumer behaviors, wants and needs;
Support Scotts’ internal DTC team in its transformative and catalytic roles across all areas of activity, including branding, positioning, new product development, targeting customer acquisition and CRM;
Work with corporate strategy on overall company direction, identify relevant trends and their application to the Company's goals;
As appropriate, introduce business opportunities to the company with regard to strategic partnerships, joint ventures, mergers and acquisitions;
Provide coaching and thought leadership to key company executives as they seek to drive cultural change and nurture a more responsive and agile internal environment; and
Work with Hawthorne, as required, across all areas of strategy, branding and messaging to our key target audiences.
Contractor and the Company may agree to modifications of these work activities from time to time as necessary to achieve the purpose of this Agreement. When such modifications are necessary, Contractor and the Company will execute an amendment to this agreement reflecting the agreed upon modifications, which may include, by way of non-limiting examples, modifications regarding the work activities, the hours of consulting services provided, and/or the consulting fees and expenses paid to Contractor. Company expects Contractor to provide a minimum of 1,000 hours (50% of FTE) of consulting services during the term of this Agreement (outside services in his capacity as a member of the Board).
In providing consulting services to Scotts under this Agreement, Contractor will be an independent contractor and will not be an employee, agent, partner, or joint venturer of Scotts or of any of Scotts’ affiliates, or of any of its or their respective officers, directors or employees. Except as provided as a member of the Board, if applicable, and except as otherwise expressly stated herein including in paragraph 1(b), Mr. Hanft and any other designee or employee of Contractor will not participate in or receive benefits under any of Scotts’ employee fringe benefit programs or receive any other fringe benefits from Scotts, including, without limitation, the health, disability, life insurance, retirement, equity awards, pension and profit sharing benefits on account of the consulting services provided to Scotts under this Agreement.
Length of Agreement
The term of this Agreement will commence on February 1, 2019 and will end on January 31, 2020, unless terminated earlier under Section V.1. The term of this Agreement may be extended only by written agreement, signed by both parties and setting forth expressly the terms related to the consulting fee.
In providing consulting services to Scotts under this Agreement, Contractor will have no authority at any time to assume or create any obligation or liability, express or implied, on Scotts’ behalf or in Scotts’ name or to bind Scotts in any manner whatsoever.
Consulting Fees and Expenses
In exchange for providing the consulting services hereunder, during the term of this Agreement, Scotts shall pay Contractor a consulting fee consisting of a combination of cash and restricted stock units, as follows:
A monthly cash payment of $75,000 for each month during the term irrespective of whether Scotts requests that Contractor provides consulting services hereunder. Contractor shall be required to submit monthly invoices including days/hours worked with brief descriptions of the services provided. Scotts shall pay Contractor within 30 days of its receipt of Contractor’s invoices.
A one-time grant of restricted stock units (“RSUs”) with a grant date value of $400,000. The RSUs’ shall be issued in the name of Adam Hanft individually. The number of
RSUs will be determined by dividing the intended grant date value by the closing price of a share on the grant date, rounded up to the next whole share. Each dividend equivalent represents the right to receive additional RSUs in respect of the dividends that are declared and paid during the period beginning on the Grant Date and ending on the applicable Settlement Date. The RSUs and any related dividend equivalents will vest on January 31, 2020, provided that this Agreement has not otherwise been terminated or notified for termination on that date for any reason listed in Section V.1 of this Agreement. Should Scotts terminate this Agreement pursuant to Section V.1(a), this grant shall be considered to be liquidated damages to Contractor and vest and settle in accordance with Section V.2.
With the exception of the vesting provisions described above and in Section V.2, the award of RSUs and related dividend equivalents shall be subject to the terms of The Scotts Miracle-Gro Company Long Term Incentive Plan, effective as of January 27, 2017 (the “Plan”), and the standard terms and conditions of the applicable award agreement. In the event of any conflicts or ambiguity between this Agreement and the terms of the Plan and/or the award agreement, the Plan and/or award agreement will be controlling.
Scotts also will pay or reimburse Contractor for all reasonable expenses incurred by Contractor in connection with providing consulting services to Scotts as contemplated herein, including, without limitation, all reasonable (a) telephone and fax expenses, and (b) travel expenses, including, without limitation, transportation, food and lodging, incurred in connection with attending Scotts approved meetings pursuant to this consulting agreement. Contractor must incur and account for expenses in accordance with the policies and procedures established by Scotts as a precondition to Scotts’ obligation to pay or reimburse Contractor for such expenses pursuant to the terms of the preceding sentence. This includes describing expenses in reasonable detail on invoices. Scotts will provide private transportation when practical and economically reasonable.
Contractor agrees to provide, at its own expense, all equipment necessary to provide the consulting services contemplated herein and to be responsible for its own overhead costs and expenses except for those expenses that Scotts has expressly agreed to pay pursuant to the terms of the preceding paragraph.
Scotts shall be permitted to terminate this Agreement and its consulting relationship with Contractor under any of the following circumstances: (a) upon Scotts’ 60 days advance written notice to Contractor, (b) Mr. Hanft’s death or disability, or Contractor ceasing operations, (c) Contractor’s material breach of its obligations to Scotts if such breach is not cured within 30 days after receiving notice thereof, (d) Contractor’s and/or Mr. Hanft’s indictment for a felony or serious misdemeanor, (e) Contractor’s and/or Mr. Hanft’s commission of an act of fraud or bad faith toward Scotts, or (f) Contractor’s and/or Mr. Hanft’s misappropriation of any funds, property or rights of Scotts. Contractor shall be permitted to terminate this Agreement and its consulting relationship with Scotts upon Contractor’s 30 day advance written notice to Scotts.
In the event that Scotts terminates this Agreement for any reason other than those listed in Section V.1(b)-(f), Scotts will pay Contractor the total value of this Agreement less any amounts already paid pursuant to this Agreement, as well as any expenses Contractor has incurred pursuant to
the terms of this Agreement prior to the date of such termination, as liquidated damages to Consultant. In such an event, the one-time RSU grant and related dividend equivalents, if any, will vest upon termination; however, the RSUs will not settle until January 31, 2020.
In the event that Contractor terminates this Agreement and its consulting relationship with Scotts or Scotts terminates this Agreement and its consulting relationship with Contractor for any reason listed in Section V.1 of this Agreement, such termination shall not affect Scotts’ obligation to pay Contractor for the amounts Contractor has earned prior to the date of such termination or reimburse Contractor for the expenses Contractor has incurred pursuant to the terms of this Agreement prior to the date of such termination.
Confidential Information and Insider Trading
In providing the consulting services contemplated herein, Contractor will receive Confidential Information about Scotts and its affiliates. Maintaining the confidential nature of this information is very important to Scotts. As used in this Agreement, “Confidential Information” is any information about Scotts, or its affiliates, to which Contractor gains access in connection with its provision of consulting or other services to Scotts, including Mr. Hanft’s service as a member of the Board. Confidential Information does not include information Contractor can show (a) was already in Contractor’s possession prior to the time Contractor received such information as a consultant to Scotts, or (b) is publicly available or otherwise in the public domain by means other than Contractor’s violation of the terms of this Agreement.
Contractor agrees to not at any time hereafter, without the prior written consent of Scotts, disclose, directly or indirectly, any Confidential Information or use any Confidential Information for any purpose other than providing consulting services to Scotts as contemplated herein.
In an effort to avoid the appearance of impropriety, Contractor agrees to follow all laws and regulations concerning insider trading, as well as Scotts Insider Trading policy (attached), during the term of this Agreement. Further, Contractor agrees that Contractor will not engage in any transaction of Scotts securities during the term of this Agreement except while the Scotts trading window is open, and even then only if Contractor is not in possession of material, non-public information. Following the termination of this Agreement, Contractor agrees that Contractor remains subject to the Scotts Insider Trading policy until the next scheduled open trading window period and will not engage in any transaction of Scotts securities until then, and then only if Contractor is not in possession of material, non-public information.
Contractor agrees to promptly return to Scotts, upon Scotts’ request, all electronic or tangible documents that contain any Confidential Information and to retain no copies.
These confidentiality obligations are in addition to, and not in place of, any and all confidentiality obligations arising as a result of Mr. Hanft’s membership on the Board and applicable Board Committees.
Contractor understands and agrees that this Agreement does not obligate Scotts to utilize Contractor’s consulting services, but it is intended to set forth the terms pursuant to which Scotts may utilize Contractor’s consulting services in Scotts’ discretion.
Contractor is not permitted to assign, sell or otherwise transfer any of its rights or obligations hereunder.
Contractor acknowledges that neither Scotts nor any representatives of Scotts have made any representations or promises about the tax implications of this Agreement. Nothing in this
Agreement may be construed as tax advice from Scotts to Contractor. Contractor has been encouraged to discuss the tax implications of this Agreement with his own tax and financial counsel.
THE SCOTTS COMPANY LLC
By: /s/ DENISE STUMP
EVP, Global Human Resources & Chief Ethics Officer
ACKNOWLEDGED AND AGREED:
By: /s/ ADAM HANFT
Adam Hanft, Chief Executive Officer
Hanft Projects LLC