EXHIBIT 10.2
THE TORO COMPANY
AFFILIATE AGREEMENT
OCTOBER 23, 1997
The Toro Company
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Gentlemen:
Pursuant to the terms of the Agreement and Plan of Merger, dated as of
October 23, 1997 (the "Agreement"), among The Toro Company, a Delaware
corporation ("Toro"), EMCI Acquisition Corp., a Nebraska corporation and wholly
owned subsidiary of Toro ("Merger Subsidiary"), and Exmark Manufacturing Company
Incorporated, a Nebraska corporation (the "Exmark"), Toro will acquire Exmark
through the merger of the Merger Subsidiary with and into Exmark (the "Merger").
Subject to the terms and conditions of the Agreement, at the Effective Time (as
defined in the Agreement), outstanding shares of the capital stock of Exmark
(the "Exmark Capital Stock") will be converted into the right to receive cash
and shares of common stock of Toro ("Toro Common Stock").
The undersigned has been advised that as of the date hereof the undersigned
may be deemed to be an "affiliate" of Exmark, as the term "affiliate" is used in
paragraphs (c) and (d) of Rule 145 of the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act").
The undersigned understands that the representations, warranties and
covenants set forth herein will be relied upon by Toro and Exmark.
The undersigned represents and warrants to and agrees with Toro that:
1. The undersigned has full power to execute and deliver this Affiliate
Agreement and to make the representations and warranties herein and to perform
its obligations hereunder.
2. The undersigned has carefully read this Affiliate Agreement and the
Agreement and has discussed the applicable limitations upon his/her ability to
sell, transfer or otherwise dispose of Toro Common Stock to the extent the
undersigned felt necessary with his/her counsel or counsel for Exmark.
3. The undersigned shall not make any sale, transfer or other disposition
of Toro Common Stock in violation of the Securities Act or the Rules and
Regulations.
4. The undersigned has been advised that, since, at the time the Merger
is to be submitted for a vote of the shareholders of Exmark, the undersigned may
be deemed to be an affiliate of Exmark, the undersigned may not sell, transfer
or otherwise dispose of Toro Common Stock issued to the undersigned in the
Merger unless such sale, transfer or other disposition is made in conformity
with the requirements of Rule 145 promulgated by the SEC under the Securities
Act.
5. Except as provided in the Agreement, Toro is under no obligation to
register the sale, transfer or other disposition of Toro Common Stock by the
undersigned or on its behalf under the Securities Act or to take any other
action necessary in order to make compliance with an exemption from such
registration available.
6. Stop transfer instructions will be given to Toro's transfer agent with
respect to the Toro Common Stock and a legend will be placed on the certificates
for the Toro Common Stock issued to the undersigned, or any substitutions
therefor, stating in substance:
"The shares represented by this certificate were issued in a
transaction to which Rule 145 promulgated under the Securities Act of 1933
applies. The shares represented by this certificate may only be
transferred in accordance with the terms of an Affiliate Agreement dated
October 23, 1997 between the registered holder hereof and The Toro Company,
a copy of which agreement is on file at the principal offices of The Toro
Company."
7. The legend set forth above shall be removed by delivery of substitute
certificates without such legend if the undersigned shall have delivered to Toro
a copy of an opinion of counsel, in form and substance reasonably satisfactory
to Toro, to the effect that such legend is not required for purposes of the
Securities Act.
8. The undersigned is the beneficial owner of all the shares of Exmark
Capital Stock and options to purchase Exmark Capital Stock as is indicated below
on this Affiliate Agreement (the "Exmark Securities"). Except for Exmark
Securities, the undersigned does not beneficially own any shares of Exmark
Capital Stock or any other equity securities of Exmark or any options, warrants
or other rights to acquire any equity securities of Exmark.
Number of shares of Exmark Capital Stock beneficially owned by the
undersigned:
Common Stock ____________
Preferred Stock ____________
Class B Preferred Stock ____________
Class C Preferred Stock ____________
Number of shares of Exmark Capital Stock subject to options or warrants
beneficially owned by the undersigned:
Common Stock ____________
Preferred Stock ____________
Class B Preferred Stock ____________
Class C Preferred Stock __________________________________
Very truly yours,
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(print name of stockholder above)
By:
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Title:
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Accepted this ____ day of _________,
1997, by
THE TORO COMPANY
By:
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Name:
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Title:
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