EXHIBIT 10.3
THE TORO COMPANY
EMPLOYMENT AGREEMENT
AND COVENANT NOT TO COMPETE
THIS EMPLOYMENT AGREEMENT AND COVENANT NOT TO COMPETE (the "Agreement")
dated October 23, 1997, is made and entered into by and among The Toro Company,
a Delaware corporation ("Toro"), Exmark Manufacturing Company Incorporated, a
Nebraska corporation ("Exmark"), and _____________, a resident of __________,
__________ ("Employee").
WHEREAS, Employee is employed by Exmark;
WHEREAS, Toro has agreed, subject to certain terms and conditions, to
acquire Exmark pursuant to the terms of an Agreement and Plan of Merger dated
October 23, 1997 (the "Merger Agreement"), by and among Toro, Exmark and EMCI
Acquisition Corp., a wholly owned subsidiary of Toro ("Merger Subsidiary");
WHEREAS, under the terms of the Merger Agreement, Merger Subsidiary will be
merged with and into Exmark (the "Merger"), and Exmark will be the surviving
corporation and a wholly owned subsidiary of Toro ("Surviving Corporation");
WHEREAS, Employee is a shareholder of Exmark and will receive a portion of
the consideration paid by Toro in connection with the Merger, and the execution
of this Agreement is an express condition of Toro to the consummation of the
Merger;
WHEREAS, Toro desires Employee to continue to be employed by Exmark
following the Merger because Employee possesses certain unique skills, talents,
contacts, judgment, and knowledge of Exmark's businesses, strategies, and
objectives;
WHEREAS, in order to provide for continuity in the management of the
Surviving Corporation as a subsidiary of Toro, which continuity is deemed to be
vital to the continued growth and success of Toro, and in order that Toro and
the Surviving Corporation may continue to avail itself of the unique skills,
talents, contacts, judgment, and knowledge of Employee, Toro desires to ensure
the retention of Employee in the employ of the Surviving Corporation;
WHEREAS, the parties recognize the critical importance to Toro, its
employees and shareholders of preserving the confidentiality of Toro's and the
Surviving Corporation's trade secrets and its proprietary and confidential
information, and of protecting Toro and the Surviving Corporation against
competition from former executives or other key employees of Toro and the
Surviving Corporation following their separation from the Surviving Corporation;
WHEREAS, for the benefit of all of the parties, each of Toro, the Surviving
Corporation and Employee desire to set forth the terms and conditions of future
employment as provided herein;
NOW, THEREFORE, in consideration of the mutual promises herein and the
terms and conditions set forth herein, the parties hereto mutually agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the terms listed below
shall be defined as follows:
(a) "Company" shall mean, individually and collectively, each of
Toro, Exmark and the Surviving Corporation following the Merger and any
past, present or future parent, subsidiary or affiliate of Toro, Exmark or
the Surviving Corporation.
(b) "Products" shall mean all products and services developed,
manufactured, marketed, licensed, leased, sold, or serviced by Exmark, the
Surviving Corporation, the Landscape Contractor Group of Toro or any other
subsidiary of Toro engaged directly or indirectly in the commercial
landscape equipment business (collectively, the "LCG Group") individually
or jointly with third parties, or by their employees, agents or independent
representatives in the course of their relationship with the LCG Group.
Products shall specifically exclude products and services relating to the
residential consumer landscape equipment business.
(c) "Customers" shall mean any person, firm, corporation,
partnership, joint venture or other entity or enterprise called upon by any
member of the LCG Group or by their employees, agents or independent
representatives for the purposes of developing, manufacturing, marketing,
licensing, leasing, selling, or servicing products of the LCG Group at any
time during the 18-month period immediately preceding the effective date of
the termination of Employee's employment with the Surviving Corporation.
Customers shall also include all existing customers, licensees, lessees, or
clients of the LCG Group.
(d) "Confidential Information" shall include, but is not limited to,
the following types of Company information and other information of a
similar nature (whether or not reduced to writing): names of Customers and
other information relating to Customers, lists of Customers, employee
expense records containing the names of Customers, price lists, pricing
policy, Company strategy and business plans, Company tactics, sales
forecasts, sales reports and other sales materials, computer software in
various stages of development, computer software source codes and object
codes, copyrights, concepts, data, designs, diagrams, documentation,
drawings, discoveries, financial statements or reports, flowcharts,
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ideas, inventions, "know-how," manuals, marketing and development plans,
marketing techniques and materials, models, prototypes, procedures,
processes, research, trade secrets, techniques and any other proprietary
information. Confidential Information also includes any information
described above that the Company obtains from another party and that the
Company or such other party treats as proprietary or designates as
confidential information, whether or not owned or developed by the Company.
Confidential Information shall NOT include any of the following:
(i) information in the public domain at the time of the disclosure to
Employee by the Company; (ii) information that, after disclosure to
Employee, becomes part of the public domain, other than by an act or
omission of Employee; (iii) information that is subsequently disclosed or
made available to Employee without any obligation of confidence by a third
party having a bona fide right to disclose or make available such
information; and (iv) information that has been made public by way of sales
literature, Company newsletters, public speeches by officers of the
Company, or information disclosed to the media by officers of the Company.
(e) "Effective Date" means the date the Merger becomes effective in
accordance with the terms of the Merger Agreement. In the event the Merger
is not consummated, this Agreement shall be of no force or effect.
2. TERMS OF EMPLOYMENT.
2.01 LENGTH OF EMPLOYMENT. Subject to the terms and conditions
provided herein, and subject to the consummation of the Merger, the Surviving
Corporation hereby agrees to employ Employee, and Employee hereby accepts
employment by the Surviving Corporation, for a term commencing as of the
Effective Date and continuing until October 31, 1999 (the "Initial Employment
Term"). The Initial Employment Term of Employee will expire on October 31,
1999, without further obligation for either party. In addition, the Surviving
Corporation may terminate the employment of Employee at any time during the
Initial Employment Term upon 30 days notice, without cause, provided the
Surviving Corporation pays Employee severance pay as described in Section 6 of
this Agreement. Following the expiration of the Initial Employment Term, the
parties hereto acknowledge and agree that Employee's employment with the
Surviving Corporation shall be an at-will relationship, that either Employee or
the Surviving Corporation may terminate such employment, without cause, at any
time, and that such termination shall not constitute a breach of any express or
implied contract or covenant, and will not be deemed tortious, wrongful or give
rise to any claim or liability whatsoever (unless a waiver of such a claim is
expressly prohibited by statute). Further, after the Initial Employment Term,
Employee's employment shall continue to be subject to the terms and conditions
of this Agreement, specifically including, without limitation, Sections 7, 8, 9,
10, 11 and 18 hereof.
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2.02 TERMINATION FOR CAUSE. Notwithstanding the foregoing, the
Surviving Corporation may terminate Employee's employment for cause without
notice and without further obligation of any kind to Employee. For purposes of
this Agreement, "cause" shall mean:
(a) any fraud, misappropriation of funds or any corporate
opportunity, dishonesty, sexual or other harassment, or embezzlement by
Employee in connection with the business of the Surviving Corporation;
(b) any conviction of or nolo contendere plea to a felony by Employee
that has or can reasonably be expected to have a demonstrably detrimental
effect on the Surviving Corporation;
(c) any gross neglect or persistent neglect by Employee to perform
the duties assigned to him by the Surviving Corporation, provided that
Employee shall first have received a written notice from the Surviving
Corporation that sets forth in reasonable detail the manner in which
Employee has grossly or persistently neglected his duties and Employee
shall have a period of 20 days to cure the same, unless the same cannot be
reasonably cured within the 20-day period, in which event Employee shall
have up to an additional 20 days to cure the same so long as Employee is
diligently seeking to cure the same; provided, however, that the Surviving
Corporation shall not be required to give written notice of, nor shall
Employee have a period to cure, the same or any similar gross neglect or
persistent neglect of which the Surviving Corporation has previously given
written notice to Employee hereunder;
(d) any material breach by Employee of Employee's obligations under
this Agreement other than a breach covered by any other subsection of this
Section 2.02, provided that Employee shall first have received a written
notice from the Surviving Corporation that sets forth in reasonable detail
the manner in which Employee materially breached this Agreement and
Employee shall have a period of 20 days to cure the same, unless the same
cannot be reasonably cured within the 20-day period, in which event
Employee shall have up to an additional 20 days to cure the same so long as
Employee is diligently seeking to cure the same; provided, however, that
the Surviving Corporation shall not be required to give written notice of,
nor shall Employee have a period to cure, the same or any similar material
breach of this Agreement of which the Surviving Corporation has previously
given written notice to Employee hereunder;
(e) Employee's use of narcotics, liquor or illicit drugs that has a
demonstrably detrimental effect on the performance of his employment
responsibilities; and
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(f) any violation of Toro's then-current Ethics and Conflict of
Interest Policy that has or can reasonably be expected to have a
demonstrably detrimental effect on Toro or the Surviving Corporation.
2.03 TERMINATION UPON DEATH OF EMPLOYEE. The term of Employee's
employment under this Agreement shall automatically terminate in the event of
Employee's death, in which case no severance payment shall be made.
2.04 TERMINATION UPON DISABILITY OF EMPLOYEE. In the event Employee
becomes mentally or physically disabled during the term of employment hereunder,
his employment under this Agreement shall terminate as of the date such
disability is established, in which case no severance payment shall be made.
For purposes of this Agreement, "disabled" means suffering from any mental or
physical condition, other than the use of alcohol or illegal use of narcotics or
other illicit drugs, which renders Employee unable to perform substantially all
of Employee's duties and services under this Agreement in a satisfactory manner
for a period of 90 consecutive days. The date that Employee's disability is
established shall be the 91st day upon which such impaired condition exists.
2.05 TERMINATION BY MUTUAL AGREEMENT. The Surviving Corporation and
Employee may terminate the employment relationship at any time by mutual written
agreement signed by both the Surviving Corporation and Employee, in which case
no severance payment shall be made unless specifically provided for in the
mutual written agreement terminating the employment relationship. Also, if at
any time Employee voluntarily terminates his employment with the Surviving
Corporation, no severance payment shall be made to Employee.
3. SERVICE WITH THE COMPANY. During the term of this Agreement, Employee
agrees to perform such reasonable employment duties as the Surviving Corporation
shall assign to him from time to time, which shall be reasonably consistent with
executive level services. Employee shall not be obligated to relocate.
4. PERFORMANCE OF DUTIES. Employee agrees to serve the Surviving
Corporation faithfully and to the best of his ability and to devote his full
business time, attention, and efforts to the business and affairs of the
Surviving Corporation during the term of this Agreement. Employee shall not at
any time during the term of this Agreement render any services for compensation
to any person or entity other than the Surviving Corporation and the Company;
provided, however, that Employee may engage in business activities unrelated to
the commercial landscape equipment business if such activities do not interfere
with Employee's obligations to the Surviving Corporation and if substantially
all of such activities are conducted outside regular working hours.
5. COMPENSATION AND EMPLOYEE BENEFITS.
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5.01 SIGNING BONUS. On the Effective Date, Toro shall, or shall cause
the Surviving Corporation to, pay to Employee a one-time signing bonus of
$_________ (the "Signing Bonus"); provided, however, that Employee expressly
agrees to repay to the Surviving Corporation (a) an amount equal to 20% of the
Signing Bonus plus (b) the amount of severance paid pursuant to Section 6 below,
if any, and Toro and the Surviving Corporation shall have the right to seek
recovery of such amounts, if Employee knowingly violates any of the obligations
under Section 9 below. Employee expressly agrees that these repayment
obligations are in addition to any other remedies to which the Surviving
Corporation and/or Toro may be entitled, including but not limited to the
remedies of injunctive relief and monetary damages.
5.02 BASE SALARY. As base compensation for all services to be
rendered by Employee under this Agreement during the Initial Employment Term,
the Surviving Corporation shall pay to Employee the following annual base
salary: (a) for the period between the date Employee commences employment with
the Surviving Corporation through October 31, 1998, the Surviving Corporation
will pay Employee an annual base salary of $_________, and (b) for the period
from November 1, 1998 through October 31, 1999, the Surviving Corporation will
pay Employee an annual base salary of $_________. The annual base salary shall
be payable in substantially equal periodic installments in accordance with the
Surviving Corporation's standard payroll procedures and policies. If Employee
continues to be employed by the Surviving Corporation after the Initial
Employment Term, his base salary shall remain unchanged unless Employee and the
Surviving Corporation shall agree otherwise.
5.03 NO INCENTIVE OR PERFORMANCE BONUSES. During the Initial
Employment Term, Employee will not be eligible to receive any incentive or
performance bonuses of the Surviving Corporation or Toro. Following the Initial
Employment Term, Employee shall be eligible to participate in such Toro
incentive or other performance bonus programs to the extent that his position,
title, tenure, salary and other qualifications make him eligible.
5.04 NO PARTICIPATION IN STOCK OPTION PLANS. During the Initial
Employment Term, Employee will not be eligible to participate in any stock
option plans of Toro. Following the Initial Employment Term, Employee and Toro
agree to discuss whether Employee will be eligible to participate in any Toro
stock option plans, which eligibility for participation shall be in the absolute
and sole discretion of Toro.
5.05 PARTICIPATION IN BENEFIT PLANS. Employee shall be entitled to
participate in all employee benefit plans or programs of the Surviving
Corporation, unless otherwise expressly prohibited herein, to the extent that
his position, title, tenure, salary, age, health, and other qualifications make
him eligible to participate and to the extent that such participation is not
prohibited by this Agreement. The Surviving Corporation does not guarantee the
adoption or continuation of any particular employee benefit plan or program
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during the term of this Agreement, and Employee's participation in any plan or
program shall be subject to the provisions, rules and regulations applicable
thereto.
5.06 VACATION. Employee shall be entitled to four weeks paid vacation
per year pursuant to such general polices and procedures of the Surviving
Corporation as are from time-to-time adopted by the Surviving Corporation.
5.07 EMPLOYMENT-RELATED EXPENSES. The Surviving Corporation shall pay
or reimburse Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in the performance of his duties pursuant to this Agreement,
according to the general policies and procedures of the Surviving Corporation,
and subject to the timely presentment of appropriate vouchers in accordance with
the Surviving Corporation's general policies and procedures for expense
verification.
5.08 AUTOMOBILE. The Surviving Corporation shall provide Employee
with an automobile for use in the performance of his duties for the Surviving
Corporation and shall pay all reasonable and necessary maintenance, repair,
insurance, fuel and other costs assigned with such automobile.
6. SEVERANCE PAY. If, at any time prior to October 31, 1999, Employee's
employment with the Surviving Corporation is terminated without cause (as
defined in Section 2.02 above) by the Surviving Corporation pursuant to
Section 2.01 above, and provided Employee executes a comprehensive release of
all claims acceptable to the Surviving Corporation, Employee shall be entitled
to receive as severance pay (a) a lump-sum payment in an amount equal to the
remainder of Employee's annual base salary from the date of such termination
through October 31, 1999, as though Employee had remained in the employment of
the Surviving Corporation, and (b) the continued payment of premiums for health
insurance through October 31, 1999, as though Employee had remained in the
employment of the Surviving Corporation. This severance pay shall be in lieu of
any other compensation of any kind otherwise payable to Employee under this
Agreement. Neither the Surviving Corporation nor Toro shall be required to
continue providing benefits pursuant to Section 5.05 above, unless otherwise
required to by the provisions, rules and regulations of a particular plan or by
law or as expressly agreed in this Section 6. Employee shall not be entitled to
severance pay if at any time prior to October 31, 1999, (a) the Surviving
Corporation terminates Employee's employment for cause as defined in Section
2.02 above or (b) Employee dies, becomes disabled as defined in Section 2.04
above, or voluntarily terminates employment with the Surviving Corporation. If
Employee's employment with the Surviving Corporation is terminated for any
reason after October 31, 1999, Employee shall not be entitled to any severance
pay or other severance related compensation of any kind.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Except with prior written
permission from the Surviving Corporation and Toro or as required by his duties
to the Surviving Corporation, Employee shall never disclose or use any
Confidential Information
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of which Employee becomes informed during his past, present or future employment
with the Surviving Corporation, whether or not developed by Employee. Employee
agrees that he will hold in strictest confidence and not use for his own
benefit, or the benefit of any third party, any Confidential Information at any
time before or after termination of Employee's employment with the Company
(whether by the Surviving Corporation, by Employee or by operation of this
Agreement or law).
8. DELIVERY OF CONFIDENTIAL INFORMATION. Upon termination of his
employment (whether by the Surviving Corporation, by Employee or by operation of
this Agreement or law), Employee agrees to deliver to the Surviving Corporation
all materials that include Confidential Information then in the possession of
Employee or an agent of Employee. Employee agrees and understands that the
Confidential Information and all information contained therein shall be at all
times the property of the Company. Further, upon termination of his employment,
Employee agrees to make available to any person designated by the Surviving
Corporation all information concerning pending or prior transactions that may
affect the operation of the Surviving Corporation or Toro about which Employee
has knowledge. The obligations of Employee contained in this Section 8 are in
addition to the obligations of Employee to return to the Surviving Corporation,
upon the termination of his employment, all property of the Company then in his
possession.
9. NON-COMPETITION AND NON-SOLICITATION. The execution of this Agreement
is an express condition precedent of Toro to the acquisition of Exmark through
the Merger, and the parties mutually agree that Employee is receiving
substantial consideration through the payment of the Signing Bonus for, among
other things, the covenants of Employee set forth in this Section 9. Further,
it is mutually acknowledged that, by virtue of Employee's employment with the
Surviving Corporation, the Company will divulge or make accessible to Employee,
and Employee will become possessed of, certain Confidential Information
concerning the Company's business. Without limitation, it is also specifically
acknowledged that great trust on the part of the Company will reside in Employee
because Employee's duties will include involvement in the management, promotion,
and development of the Company's business. Accordingly, the parties deem it
necessary to enter into the protective agreements set forth below, the terms and
conditions of which have been negotiated by and between the parties hereto:
(a) Employee understands and agrees that Exmark has devoted and the
Surviving Corporation and Toro will continue to devote a great effort in
building an effective organization with the reputation of honesty,
reliability, dependability, and quality in its Products by utilizing unique
and effective management, sales, service, marketing, finance, and other
corporate techniques. Employee further understands and agrees that the
Company has gained a unique reputation in its industry by developing,
marketing, licensing, leasing, and selling only high-quality Products, and
for its ability to develop, market, sell, license, lease, and service these
Products to the greatest extent possible. Employee further understands and
agrees that this reputation is a major factor in developing and acquiring
high-quality
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Products and bringing about the sales of such Products, and accounts for
the continued success of the Company in the technologically complex and
competitive business in which the Company engages.
(b) Employee understands and agrees that he will necessarily become
privy to relationships with Customers and employees of the Company, names
and lists of Customers, confidential plans and structures, lists and
specifications of Products, and other Confidential Information. Employee
also understands and agrees that, to the extent he is directly or
indirectly involved in the marketing or sales aspect of the LCG Group's
business, he will necessarily establish a unique and strong personal and
professional relationship with certain of the LCG Group's Customers during
the term of this Agreement. Furthermore, Employee understands and agrees
that such information, as well as information obtained as to Customers'
methods of doing business, specifications of Customers' product
requirements, the time, places and other details of when, where, and how to
contact and best serve the Customers, the Customers' prior, present and
future product usage, the Customers' general "school" of thought as to the
product, the Customers' biases and prejudices as to various products,
information as to other employees or third parties who influence Customers'
decisions, and the extensive and frequent contact with Customers in the
personal relationship acquired with Customers, all constitute legitimate
and protectable business interests of the Company. This information is now
and, even if such information is enhanced by Employee, will continue to be
extremely proprietary and confidential and thereby the exclusive property
of the Company.
(c) Employee agrees that any inventions, discoveries, information,
ideas, or other Confidential Information in whole or part conceived,
developed, or made by Employee (at any time prior to or after the date of
this Agreement) through the use of Confidential Information or any of the
Company's equipment, facilities, trade secrets or time, or which resulted
or will result from any work performed by any employee of the Company,
belongs and shall belong exclusively to the Surviving Corporation, are, and
shall be deemed part of the Confidential Information for purposes of this
Agreement, and have been, or shall be disclosed to and assigned only to the
Surviving Corporation. Employee shall assist the Surviving Corporation in
filing any related patent applications or copyright registrations.
Notwithstanding the above, Employee shall retain all rights to any
invention developed by Employee for which no equipment, supplies,
facilities, or trade secret information of the Company was used and which
was developed entirely on Employee's own time unless: (i) the invention
relates directly to the business of the LCG Group or to the LCG Group's
actual or demonstrably anticipated research or development; or (ii) the
invention results from any work performed by Employee for the Company.
(d) Employee acknowledges and agrees that the Company has a
legitimate protectable interest in the assets, Confidential Information and
trade
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secrets which will necessarily be imparted to Employee during the term of
his employment by the Surviving Corporation, together with a legitimate
business interest and right to prohibit the Surviving Corporation's former
employees from soliciting Customers or other employees of the Company after
termination of Employee's relationship with the Surviving Corporation.
(e) Employee acknowledges and agrees that the restrictions,
limitations, and covenants made by Employee herein, including the
non-compete and non-solicitation agreements contained in this Section 9,
are reasonable and valid and should be strictly enforced and upheld by any
court of competent jurisdiction.
(f) Employee further understands and agrees that all present
Customers and all future Customers called upon by Employee during the term
of his employment by the Surviving Corporation are the exclusive Customers
of the Company and not those of Employee.
(g) Employee, therefore, agrees that, during the period Employee is
employed by the Surviving Corporation or associated with the Surviving
Corporation or Toro and for a period of 18 months after the effective date
of termination of Employee's employment (whether by the Surviving
Corporation, by Employee or by operation of this Agreement or law) or
Employee's association with the Surviving Corporation or Toro, whichever is
later, he will not directly or indirectly, either for his own account or
for the benefit of any person, firm or corporation, engage in the
development, marketing, sale, service or distribution of Products of the
LCG Group, of any other product or service substantially similar to such
Products or that perform substantially similar functions as such Products,
or of any otherwise competitive products or services, provided, however,
that products and services relating to the residential consumer landscape
equipment business shall not be covered by this Section 9(g).
(h) Employee agrees that during the period Employee is employed by
the Surviving Corporation or associated with the Surviving Corporation or
Toro and for a period of 18 months after the effective date of termination
of Employee's employment (whether by the Surviving Corporation, by Employee
or by operation of this Agreement or law) or Employee's association with
the Surviving Corporation or Toro, whichever is later, Employee shall not
enter into substantive discussions regarding or accept any relationship or
position as a sales or marketing representative, consultant, direct
manager, officer, executive, or other employee or representative with any
person, firm, corporation, association, partnership or entity which, during
the term of Employee's employment by the Surviving Corporation or
association with the Surviving Corporation or Toro or for a period of 18
months thereafter, was or is engaged in any business that is in competition
with the commercial landscape equipment business of the LCG Group.
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(i) During Employee's employment by the Surviving Corporation or
association with the Surviving Corporation or Toro and for a period of 18
months after the effective date of termination of Employee's employment
(whether by the Surviving Corporation, by Employee or by operation of this
Agreement or law) or Employee's association with the Surviving Corporation
or Toro, whichever is later, Employee shall not directly or indirectly own
or be a shareholder of, member of, partner of, or otherwise participate in
any company engaged in any business that is in competition with the
commercial landscape equipment business of the LCG Group. Notwithstanding
the above, Employee may hold or be the beneficial owner of up to a one
percent (1%) interest in any publicly held or traded company and shall have
an unlimited right to invest in any mutual fund which is publicly traded or
managed by a financial institution.
(j) During Employee's employment by the Surviving Corporation or
association with the Surviving Corporation or Toro and for a period of 18
months after the effective date of termination of Employee's employment
(whether by the Surviving Corporation, by Employee or by operation of this
Agreement or law) or Employee's association with the Surviving Corporation
or Toro, whichever is later, Employee agrees to refrain from directly or
indirectly soliciting or enticing, on his own behalf or in the service of
or on behalf of others, either (i) the Company's employees or independent
agents so as to induce them to leave their employment or relationship with
the Company, or (ii) any current or former Customers of the Company so as
to induce them to use any company other than the Company.
(k) For a period of 18 months after the effective date of termination
of Employee's employment (whether by the Surviving Corporation, by Employee
or by operation of this Agreement or law) or Employee's association with
the Surviving Corporation or Toro, whichever is later, Employee shall
inform any prospective new employer or associate prior to accepting any
employment or any business relationship of the existence of this Agreement
and provide them with a copy of this Agreement (with compensation
information redacted, if desired).
(l) Employee understands and agrees that the restrictions and
covenants in this Section 9 will not prohibit Employee from pursuing his
career upon termination of this Agreement. Further, Employee acknowledges
that his career skills and livelihood are not limited to the markets or
industry served by the LCG Group and that, upon termination, he could
obtain employment in industries within or outside of the industry in which
the LCG Group is engaged.
10. SPECIFIC ENFORCEMENT. Employee understands and agrees that a breach
by him of any provisions of this Agreement may cause the Surviving Corporation
or Toro irreparable injury and damage that cannot be compensated by receipt of
money damages. Employee, therefore, expressly agrees that the Surviving
Corporation and Toro shall be
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entitled, in addition to any other remedies legally available, to injunctive
and/or other equitable relief to prevent a breach of this Agreement or any part
hereof.
11. RECOVERY OF ATTORNEY FEES. Except as provided for in Section 18 below
concerning matters submitted to arbitration, the losing party agrees to pay all
reasonable attorneys' fees and court costs that may be incurred by the
prevailing party in enforcing this Agreement and any of the covenants of this
Agreement, together with attorneys' fees and costs for the collection of any
judgments in its favor arising out of this Agreement.
12. ASSIGNMENTS. This Agreement shall be binding upon and inure to the
benefit of Exmark, the Surviving Corporation and Toro and their successors and
assigns. Employee expressly acknowledges and agrees to any assignment of this
Agreement resulting from the Merger by operation of law or otherwise and the
Surviving Corporation shall for all purposes herein be deemed to be Exmark's
successor in interest with all of the rights that Exmark held under this
Agreement or otherwise prior to the Merger. Employee may not assign this
Agreement or any rights hereunder. Any purported or attempted assignment or
transfer by Employee of this Agreement or any of Employee's duties,
responsibilities, or obligations hereunder shall be void.
13. NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing, and shall be deemed to have been duly
given on the date of service if personally served on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is given, by first class mail, postage prepaid, and properly addressed as
follows:
TO THE COMPANY AT: The Toro Company
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: General Counsel
TO EMPLOYEE AT: ______________________
______________________
______________________
______________________
Any party may change the address for the purpose of this Section 13 by
giving the other written notice of the new address in the manner set forth
above.
14. CONSTRUCTION AND SEVERABILITY. The validity, interpretation,
performance, and enforcement of this Agreement shall be governed by the laws of
the State of Minnesota. In any dispute not arbitrable under Section 18,
Employee agrees to submit to the personal jurisdiction of the federal and state
courts located in Minnesota, and both parties agree to commence any lawsuit
related to such non-arbitrable dispute in the federal or state courts
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located in Minnesota. To the extent that any provision of this Agreement shall
be determined to be invalid or unenforceable, the invalid or unenforceable
portion of such provision shall be deleted from this Agreement, and the validity
and enforceability of the remainder of such provision and of this Agreement
shall be unaffected. In furtherance and not in limitation of the foregoing, it
is expressly agreed that, should the duration of, or geographical extent of, or
business activities covered by, the non-competition and non-solicitation
covenants contained in Section 9 above be determined to be in excess of that
which is valid or enforceable under applicable law, then such provision shall be
construed to cover only that duration, or extent, or those activities that may
validly or enforceably be covered. Employee acknowledges the uncertainty of the
law in this respect and expressly stipulates that this Agreement shall be
construed in a manner which renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law.
Any provision of this Agreement that is found by a court of competent
jurisdiction to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective only the extent of such prohibition or
unenforceability without invalidating the remaining terms hereof or affecting
the validity or enforceability of such provisions in any other jurisdiction.
15. ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement
between the Surviving Corporation and Employee with respect to his employment by
the Surviving Corporation, and there are no undertakings, covenants, or
commitments other than as set forth herein. This Agreement may not be altered
or amended, except by a writing executed by the party against whom such
alteration or amendment is to be enforced. This Agreement supersedes any and
all prior understandings or agreements between the parties.
16. SURVIVAL. The parties expressly acknowledge and agree that the
provisions of this Agreement which, by their express or implied terms, extend
beyond the expiration of this Agreement or the termination of Employee's
employment hereunder, shall continue in full force and effect, notwithstanding
the expiration of this Agreement or the termination of Employee's employment
hereunder.
17. WAIVERS. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof, or the exercise of any
other right or remedy granted hereby or by any related document or law.
18. ARBITRATION OF DISPUTES. Except with respect to rights enforceable by
means of injunctive relief or specific performance from a court of competent
jurisdiction, including but not limited to the Company's right to recover the
Signing Bonus or its right to enforce Employee's obligations under Sections 7, 8
and 9 above, if a dispute arises out of or relates to this Agreement, or the
performance or breach thereof, the parties agree to resolve the controversy or
claim arising out of or relating to this Agreement, or the performance or
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breach thereof, through binding arbitration by a single arbitrator pursuant to
the Rules of the American Arbitration Association. The arbitration shall be
conducted in Minneapolis, Minnesota, and the arbitrator shall apply the laws of
the State of Minnesota. Any award rendered shall be final and conclusive upon
the parties and a judgment thereon may be entered in any court of competent
jurisdiction. All costs and expense, including reasonable attorney's fees, of
all parties incurred in any dispute which is determined by arbitration pursuant
to this Section 18 shall be borne by the party determined to be liable in
respect of such dispute; provided, however, that if complete liability is not
assessed against only one party, the parties shall share the total costs in
proportion to their respective amounts of liability so determined. Employee
agrees to continue performing his obligations under Sections 7, 8 and 9 above
while the dispute is being resolved.
19. WITHHOLDING TAXES. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
20. CAPTIONS AND HEADINGS. The captions and section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement or any of the provisions
hereof.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed in Minneapolis, Minnesota, as of the day and year first above written.
EXMARK MANUFACTURING COMPANY
INCORPORATED
By ________________________
Its ______________________
THE TORO COMPANY
By ________________________
Its ______________________
[EMPLOYEE]
__________________________
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