EXHIBIT 10.1
STOCKHOLDER AGREEMENT
AND
IRREVOCABLE PROXY
This Stockholder Agreement (the "Agreement"), dated as of __________, 1997
is made and entered into by and among The Toro Company, a Delaware corporation
("Toro"), and the undersigned stockholder (the "Stockholder") of Exmark
Manufacturing Company Incorporated, a Nebraska corporation (the "Company").
RECITALS
WHEREAS, concurrently with delivery of this Agreement, Toro, the Company
and EMCI Acquisition Corp., a Nebraska corporation and a wholly owned subsidiary
of Toro ("Merger Subsidiary"), are entering into an Agreement and Plan of Merger
(the "Merger Agreement"), which provides for the merger (the "Merger") of the
Merger Subsidiary with and into the Company.
WHEREAS, pursuant to the terms of the Merger Agreement, the shares of
capital stock of the Company will be converted into the right to receive cash
and shares of Toro Common Stock on the basis described in the Merger Agreement.
WHEREAS, the Stockholder is the record holder and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of the number of shares of the outstanding capital stock of the
Company and has the right to acquire the number of shares of capital stock of
the Company as is indicated on the signature page of this Agreement (all of such
outstanding shares and any shares of the Company's capital stock hereafter
acquired by the Stockholder are referred to herein as the "Shares").
WHEREAS, Toro has made it a condition to its entering into the Merger
Agreement that the Stockholder enter into and be bound by this Agreement
pursuant to which the Stockholder agrees (a) not to transfer or otherwise
dispose of any of the Shares, or any other shares of capital stock of the
Company acquired hereafter and prior to the Expiration Date (as defined in
Section 1.1 below), and (b) to vote the Shares and any other such shares of
capital stock of the Company held by the Stockholder so as to facilitate
consummation of the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations and covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used but not defined in this
Agreement shall have the respective meanings ascribed to them in the Merger
Agreement. The term "Expiration Date" shall mean the earlier to occur of (a)
such date and time as the Merger shall become effective in accordance with the
terms and provisions of the Merger Agreement, and (b) such date and time as the
Merger Agreement shall be terminated pursuant to Article 9 thereof.
2. AGREEMENT TO RETAIN SHARES.
2.1 TRANSFER AND ENCUMBRANCE. The Stockholder agrees not to transfer
(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Shares or any New Shares (as
defined in Section 2.2 below), grant any proxies (except the proxy referred to
in Section 3(b)) with respect to the Shares or any New Shares), or make any
offer or agreement relating thereto, at any time prior to the Expiration Date.
2.2 ADDITIONAL PURCHASES. The Stockholder agrees that any shares of
capital stock of the Company that such Stockholder purchases or with respect to
which such Stockholder otherwise acquires beneficial ownership after the
execution of this Agreement and prior to the Expiration Date ("New Shares")
shall be Subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
2.3 LEGEND. Stockholder further agrees to submit the certificate(s)
representing the Shares, and certificates representing any New Shares, to the
Company for placement thereon of a legend in the following form:
The securities represented by this certificate are subject to the terms of
a Stockholder Agreement dated October 23, 1997 between the holder and The
Toro Company, a Delaware corporation, under which The Toro Company has been
granted an irrevocable proxy to vote the share(s) represented by this
certificate with respect to certain corporate transactions.
3. AGREEMENT TO VOTE SHARES AND IRREVOCABLE PROXY.
(a) At every meeting of the stockholders of the Company called with
respect to any of the following, and at every adjournment thereof, and on every
action or approval by written consent of the stockholders of the Company with
respect to any of the following, the Stockholder agrees to vote the Shares and
any New Shares: (i) in favor of approval of the Merger Agreement, the Merger,
the Signing Bonuses and the New Articles of Incorporation, and any other matter
that could reasonably be expected to facilitate the Merger; and (ii) against
approval of any proposal made in opposition to or competition with consummation
of the Merger and against any merger, consolidation, sale of assets,
reorganization or recapitalization, with any party other than Toro, the Merger
Subsidiary and their affiliates and against any liquidation or winding up of the
Company (each of the
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foregoing is hereinafter referred to as an "Opposing Proposal"). The
Stockholder agrees not to take any actions contrary to such Stockholder's
obligations under this Agreement.
(b) In furtherance of Section 3(a) and limited to the issues set
forth therein, the Stockholder hereby irrevocably appoints, during the term of
this Agreement, Toro as proxy to vote the Shares and any New Shares which the
Stockholder is entitled to vote, for and in the name, place and stead of such
Stockholder (the "Proxy"), at any annual, special or other meeting of the
holders of capital stock of the Company and at any adjournments thereof or
pursuant to any consent in lieu of a meeting or otherwise.
(c) The Proxy is granted in consideration of the execution and
delivery of the Merger Agreement by Toro. The Stockholder agrees that the Proxy
is coupled with an interest sufficient in law to support an irrevocable proxy.
(d) The Proxy shall revoke all prior proxies given by the Stockholder
with respect to any Shares or New Shares.
(e) Notwithstanding any other provision of this Agreement Stockholder
shall not be required to take any action hereunder that would constitute a
violation of Stockholder's fiduciary duties as a director of the Company.
4. NONSOLICITATION. During the term of this Agreement, the Stockholder
shall not, directly or indirectly, solicit, initiate or encourage submission of
any proposal or offer from any person, group or entity relating to any
acquisition of the assets, business or capital stock of the Company, or other
similar transaction or business combination involving the business of the
Company; shall not participate in any negotiations or discussions regarding or
furnish to any other person any information with respect to, or otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage
any effort or attempt by any other person or entity to do or seek such
acquisition or other transaction; and shall inform Toro of any such inquiry.
Without limiting the generality of the foregoing, the Stockholder will not, and
will not permit any person or entity under Stockholder's control to, (a) solicit
proxies or become a "participant" in a "solicitation" (as such terms are defined
in Regulation 14A under the Exchange Act) with respect to an Opposing Proposal
or otherwise encourage or assist any party in taking or planning any action that
would compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Merger
Agreement; (b) initiate a stockholders' vote or action by consent of the Company
stockholders with respect to an Opposing Proposal; or (c) become a member of a
"group" (as such term is used in Section 13(d) of the Exchange Act) with respect
to any voting securities of the Company with respect to an Opposing Proposal.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The Stockholder
hereby represents and warrants to Toro as follows:
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5.1 OWNERSHIP OF SHARES. The Stockholder (a) is the beneficial owner
of the number of Shares set forth on the signature page of this Agreement, which
at the date hereof and at all times up until the Expiration Date will be free
and clear of any liens, claims, options, charges or other encumbrances; and (b)
does not beneficially own any shares of capital stock of the Company other than
such Shares (excluding shares as to which Stockholder currently disclaims
beneficial ownership in accordance with applicable law).
5.2 AUTHORITY; ENFORCEABILITY. The Stockholder has the legal right
and power, and all authorization and approval required by law, to enter into
this Agreement and to grant the Proxy. This Agreement, including the Proxy, has
been duly authorized, executed and delivered by or on behalf of the Stockholder
and constitutes a valid and binding obligation of the Stockholder enforceable in
accordance with its respective terms.
5.3 NO CONFLICT. The execution and delivery by the Stockholder of,
and the performance by the Stockholder of its obligations under, this Agreement
will not contravene any provision of applicable law, or the articles of
incorporation or bylaws, partnership agreement, limited liability company
agreement, trust agreement or other charter documents of the Company or the
Stockholder, any agreement or other instrument binding upon the Company or the
Stockholder, or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or the Stockholder. No consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Stockholder of its
obligations under this Agreement, except (i) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable state and federal securities laws, (ii) filings under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, and (iii) such other consents, authorizations, filings,
approvals and registrations which if not obtained or made would not have a
material adverse effect on the ability of the Stockholder to consummate the
transactions contemplated by this Agreement and the Merger Agreement.
6. ADDITIONAL DOCUMENTS. The Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Toro, to carry out the intent of this Agreement.
7. CONSENT AND WAIVER. The Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which the Stockholder is a party or pursuant to
any rights the Stockholder may have.
8. TERMINATION. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
9. MISCELLANEOUS.
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9.1 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
9.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of any Stockholder may be assigned by the
Stockholder without the prior written consent of Toro.
9.3 AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the party against whom enforcement is sought.
9.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Toro will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
any Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Toro upon any such violation, Toro
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Toro at law or
in equity, in any event without the necessity of posting bond or proving actual
damages.
9.5 NOTICES. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when personally delivered or
three days after being mailed, if mailed by first class mail, return receipt
requested, or when receipt is acknowledged, if sent by facsimile, telecopy or
other electronic transmission device. Notices, demands and communications to
Toro and the Stockholder will, unless another address is specified in writing,
be sent to the address indicated below:
NOTICES TO TORO: WITH A COPY TO:
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The Toro Company ▇▇▇▇▇▇ & Whitney LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NOTICES TO THE STOCKHOLDER:
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To the address set forth on the signature page.
9.6 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Minnesota.
9.7 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
9.10 EFFECTIVE TIME. This Agreement shall become effective only upon
execution of the Merger Agreement by each of the Company, Toro and Merger
Subsidiary.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
THE TORO COMPANY
By
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Its
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STOCKHOLDER:
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Name:
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Shares:
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Address:
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