Exclusive Distributor Agreement

Exhibit 10(v)


Exclusive Distributor Agreement-Horticulture


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EXCLUSIVE DISTRIBUTOR AGREEMENT-HORTICULTURE


THIS AGREEMENT, entered into effective as of the 22nd day June of 1998 by and between The Scotts Company, a corporation organized and existing under the laws of the State of Ohio with its principal offices at 14111 Scottslawn Road, Marysville, Ohio 43041 ("Scotts"), and AgrEvo USA Company, a general partnership organized and existing under the laws of the State of Delaware with its principal offices at 2711 Centerville Road, Wilmington, Delaware 19808 ("AgrEvo").


WHEREAS, AgrEvo desires to enter into an agreement with Scotts in order to appoint Scotts as the sole and exclusive distributor for certain AgrEvo products in the markets in the territory, both of which are described herein; and


WHEREAS, Scotts desires to accept such appointment and to distribute such products on the terms set forth in this Agreement.


NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, the parties hereto agree as follows:


1. Definitions.


(a) "Territory" shall mean the United States and its territories
and Canada.


(b) "Market" shall be limited to the Professional Horticulture
Field consisting of Indoor Greenscape and Outdoor Nursery,
including, but not limited to field and container grown
ornamentals foliage plants. "Market" specifically excludes all
golf course, professional lawn care, agricultural and consumer
applications.


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(c) "Products" shall mean certain formulations of products for
sale in the Market in certain package sizes, as set forth in
Exhibit 1(c), whether in Scotts- or AgrEvo-labeled containers.


(d) "Exclusive" shall mean that AgrEvo will sell Products
exclusively to Scotts and Scotts shall buy Products exclusively
from AgrEvo for resale in the Market and Territory during the
Initial Term and any Extended Term of this Agreement.


(e) "First Contract Year" shall mean the period starting with the
Effective Date, as defined below, and terminating on December 31,
1998. Thereafter, each period of January 1 through the following
December 31 during the Initial Term and any Extended Term of this
Agreement shall be called a "Contract Year".


(f) "Effective Date" shall mean the date first set forth above.


(g) "Initial Term" shall mean the period of time commencing on
the Effective Date and terminating on December31, 2005.


(h) "Extended Term" shall mean one or more one (1) year periods
after the end of the Initial Term, subject to the negotiation of
the parties pursuant to Section 3, hereof.


(i) "Transition Year" shall mean, subject to Subsection (c) of
Section 3, below, the period January 1, 2006 through and until
December 31, 2006, or any subsequent one (1) year period as
defined in Section 3 herein after the expiration of an Extended
Term.


2. Appointment


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(a) AgrEvo hereby appoints Scotts, and Scotts hereby accepts appointment, as an Exclusive distributor of Products, for the Market in and throughout the Territory and Scotts covenants and agrees to purchase Products exclusively from AgrEvo during the term hereof. AgrEvo understands that Scotts will resell Products under Scotts' own brand names, except for Products containing flutolanil and buprofesin, which shall be distributed under an AgrEvo label. Scotts shall have the right to appoint subdistributors or sales agents or representatives within the Territory for the Products for the Market, but any such subdistributors or sales agents or representatives shall be subdistributors or sales agents or representatives of Scotts and not of AgrEvo and shall have no authority or power to bind AgrEvo, and AgrEvo shall not be liable for any acts or omissions of such subdistributors or sales agents or representatives.


(b) If this Agreement is in effect during the Transition Year, AgrEvo shall not sell or distribute the Products directly or grant any additional distributorships for the Products for the Markets within the Territory.


(c) AgrEvo obtained registration for the Products from the Environmental Protection Agency ("EPA") pursuant to Section 3 of the Federal Insecticide, Fungicide and Rodenticide Act of 1947, as amended by subsequent authorizations and the Food Quality Protection Act of August 3, 1996 ("FQPA"). Pursuant to the terms hereof, AGREVO will grant to Scotts supplemental distribution rights for the Products (excluding flutolanil and buprofezin). In order to perfect such supplemental distribution rights, AgrEvo agrees to execute jointly with Scotts EPA Form 8570-5, "Notice of Supplemental Distribution of a Registered Product", wherein AgrEvo as Registrant, will agree that Scotts as Distributor, may distribute and sell the Product subject to the conditions specified in said EPA Notice and 40 CFR ss. 152.132. Scotts shall be solely responsible for complying with all administrative requirements imposed by the EPA and individual states related


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thereto and shall assume and bear all costs of obtaining such registrations. Further, AgrEvo agrees to provide data citation authorization letters to all states which may request them in order for Scotts to obtain registrations in such states.


3. Term, Extensions, Obligations on Termination or Expiration.


(a) The Initial Term of this Agreement shall commence on the Effective Date and shall end on December 31, 2005, subject to earlier termination as provided in Section 13 hereof. AgrEvo and Scotts acknowledge that they may wish to extend the term of this Agreement after the Initial Term, but that neither party shall be obligated to do so.


(b) Either party may, by notice to the other given not later than April 1 of the last Contract Year of the Initial Term or any Extended Term, advise the other party that it wishes to enter into discussions for an extension of the term of this Agreement. If the party receiving such a notice wishes to consider such an extension, the parties shall enter into negotiations, not later than June 1 of the year in which such notice is given, as to the prices for Products that shall be in effect for the term extension. If the parties agree to extend the Agreement, they may enter into one or more Extended Terms.


(c) If the parties are unable to reach agreement by October 1 of the year in which such notice is given, the terms, prices and other conditions in effect during the last Contract Year of the Initial Term or any Extended Term shall continue during the Transition Year. The Transition Year is intended to provide both parties an opportunity for a smooth transition away from the relationship defined by this Agreement. Scotts shall be permitted to sell inventories of Products not sold during the Transition Year on a non-exclusive basis after the termination of the Transition Year.


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4. Duties of AgrEvo.


AgrEvo shall:


(a) deliver Products promptly in response to firm written purchase orders received from Scotts, but in any event not later than fourteen (14) days after receipt of such orders;


(b) comply with all material federal, state and local laws applicable to the manufacture, sale and delivery to Scotts of the Products;


(c) notify Scotts promptly in writing should AgrEvo become aware of any condition which it believes may render any of the Products in violation of any applicable law, governmental regulation, rule or order in the Territory;


(d) provide reasonable assistance to Scotts, at Scotts' cost and upon Scotts' reasonable request, in complying with applicable laws and government regulations affecting Scotts' sale and distribution of the Products in the Territory; and


(e) notify Scotts in advance of the availability for the Mark ...