UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 4, 2008
POLARIS INDUSTRIES INC.
(Exact name of Registrant as specified in its charter)
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Minnesota
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1-11411
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41-1790959
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(State of Incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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2100 Highway 55
Medina, Minnesota 55340
(Address of principal executive offices)
(Zip Code)
(763) 542-0500
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR 240.14a-12(b))
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
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On August 4, 2008, Polaris Industries Inc. (the Company) announced that it had named Scott
W. Wine, Chief Executive Officer of the Company, effective September 1, 2008. Mr. Wine will
succeed outgoing Chief Executive Officer, Thomas C. Tiller. Mr. Tillers decision to step down as
Chief Executive Officer of the Company by December 31, 2008 was reported by the Company on a Form
8-K filed with the Securities and Exchange Commission on January 17, 2008. Mr. Tiller will remain
the Companys Chief Executive Officer until September 1, 2008. Thereafter, Mr. Tiller will remain
as a member of the Company's Board of Directors and continue to assist the Company in a new role as Senior Program Advisor.
Mr. Wine, age 41, had, since 2007, served as President of Fire Safety Americas, the Fire &
Security Division of United Technologies Corporation, and, prior to that time, held senior
leadership positions at Danaher Corp. from 2003 to 2007, serving as President of its Jacob Vehicle
Systems and Veeder-Root subsidiaries and Vice President and General Manager, Manufacturing Programs
in Europe. From 1996 to 2003, Mr. Wine held a number of operations and executive positions, both
international and domestic, with Allied Signal Corp.s Aerospace Division, which became Honeywell
International after a 1999 merger with Honeywell, Inc.
The Company appointed Mr. Wine as its new Chief Executive Officer pursuant to an offer made by
the Company on July 28, 2008, under which the Company agreed to provide Mr. Wine:
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(i)
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a base salary in the amount of $575,000;
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(ii)
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an opportunity to earn an annual bonus based upon participation in the
Companys performance-based Senior Executive Annual Incentive Compensation Plan
(Senior Executive Plan), or any successor performance-based annual incentive plan
adopted by the Company;
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(iii)
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an opportunity to earn additional bonus payments based upon participation in
the Companys performance-based Long Term Incentive Plan (LTIP) under which any long
term incentive payment is subject to achievement of three-year performance criteria;
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(iv)
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a one-time cash payment in the amount of $530,000, which amount is intended to
compensate him for compensation that he may be forgoing by joining the Company;
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(v)
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stock options to purchase shares of the Companys common stock, with an option
value of approximately $575,000, to be granted on September 1, 2008, at the fair market
value of such stock on the date of grant, subject to the terms of the Companys 2007
Omnibus Incentive Plan;
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(vi)
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a stock option to purchase 180,000 shares of the Companys common stock, to be
granted on September 1, 2008, at the fair market value of such stock on the date of
grant, subject to the terms of the Companys 2007 Omnibus Incentive Plan;
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(vii)
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a performance-based restricted share award for 50,000 shares of the Companys
common stock, to be issued on September 1, 2008, subject to the terms of the Companys
2007 Omnibus Incentive Plan;
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(viii)
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the opportunity to participate in the Companys benefit programs and receive the
perquisites made available by the Company to its executive officers, including without
limitation, medical, dental, disability and life insurance coverage, financial planning
and tax preparation services, 401(k) retirement savings plan and Supplemental Executive
Retirement Plan participation, a country club membership and use of the Companys
products in accordance with the Companys guidelines; and
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(ix)
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reimbursement for the costs of relocating to the Minneapolis-St. Paul
metropolitan area.
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The description of the terms of his employment is qualified in its entirety by reference to the
employment letter agreement, which is attached hereto as Exhibit 10.a and incorporated herein by
this reference.
At the time Mr. Wine begins employment with the Company, he will enter into a Severance,
Proprietary Information and Noncompetition Agreement (the Severance Agreement). The following
description of the terms of the Severance Agreement is qualified in its entirety by reference to
the Severance Agreement attached hereto as Exhibit 10.b, which is incorporated herein by this
reference.
The Severance Agreement provides that if in connection with a change in control, Mr. Wines
employment is terminated by the Company without cause or by Mr. Wine with good reason, as such
terms are defined in the Severance Agreement, he will be entitled to receive a lump sum payment
equal to the sum of (i) two times his average annual cash compensation (base salary plus cash
incentive awards) for the three preceding fiscal years (or lesser number of fiscal years if his
employment has been of shorter duration); (ii) his earned but
unused vacation time; (iii) any
earned but unpaid cash incentive award with respect to the last completed fiscal year under the
Companys Senior Executive Plan; and (iv) if the termination by reason of a change in control
occurs after June 30
th
of the fiscal year of the Company, an amount equal to the average
of the cash incentive award received by him under the Senior Executive Plan for the three fiscal
years (or lesser number of fiscal years if his employment has been of shorter duration) of the
Company immediately preceding such change in control termination.
Under the terms of the Severance Agreement, if Mr. Wine is terminated by the Company for any
reason other than cause or by Mr. Wine with good reason, as such terms are defined in the
Severance Agreement, and such termination does not occur in connection with a change in control of
the Company, Mr. Wine is entitled to: (i) an amount equal to his then-current annual
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base salary and the amount of his cash incentive award paid under the Senior Executive Plan for the
last completed fiscal year, payable over a period of one year in accordance with the Companys
normal payroll practices; (ii) his earned but unused vacation
time; (iii) any earned but unpaid
cash incentive award for the last completed fiscal year under the Senior Executive Plan; (iv) if
such termination is not in connection with a change in control and occurs after June
30
th
of the fiscal year of the Company, an amount equal to the cash incentive award
received by him under the Senior Executive Plan for work performed in the fiscal year of the
Company immediately preceding the fiscal year in which the
termination occur; (v) any earned but
unpaid incentive compensation award for the last completed award period under the Companys LTIP as
well as a pro rata portion of the incentive compensation award for which he is eligible under the
LTIP based on time worked during the performance measurement period; (vi) COBRA premiums for a one
year period; and (vii) outplacement counseling.
Mr. Wine will also be required to execute a general waiver and release upon termination in
order to receive the benefits under his Severance Agreement. The benefits under the Severance
Agreement are in lieu of any benefits that would have otherwise been provided to him under the
Companys severance policies and practices.
Mr. Wine has not previously held any positions with the Company, and there are no related
party transactions between the Company and Mr. Wine, nor are any contemplated. Mr. Wine has no
family relation with any director or officer of the Company.
Item 7.01 Regulation FD Disclosure.
A copy of the news release relating to the Companys employment agreement with Mr. Wine, as
described in Item 5.02 above, is attached as Exhibit 99.1 to this Current Report on Form 8-K.
The information contained in this report is furnished and not deemed to be filed for purposes
of Section 18 of the Securities and Exchange Act of 1934, as amended, or otherwise subject to the
liabilities of that section. The information in this Current Report shall not be incorporated by
reference into any filing or other document pursuant to the Securities Act of 1933, as amended,
except as shall be expressly set forth by specific reference in such filing or document.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
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10.a
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Employment Letter Agreement between the Company and Scott W. Wine
dated July 28, 2008
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10.b
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Form of Severance Agreement between the Company and Scott W. Wine
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99.1
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News release dated August 4, 2008
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: August 4, 2008
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POLARIS INDUSTRIES INC.
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/s/ Michael W. Malone
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Michael W. Malone
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Vice President Finance,
Chief Financial Officer and
Secretary of Polaris Industries Inc.
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5
EXHIBIT INDEX
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Exhibit No.
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Description
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10.a
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Employment Letter Agreement between the Company and Scott W.
Wine dated July 28, 2008
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10.b
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Form of Severance Agreement between the Company and Scott W. Wine
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99.1
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News release dated August 4, 2008
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#
Exhibit 10.a
2100 Highway 55
Medina, MN 55340-9770
763-542-0500 office
763-542-2311 fax
July 28, 2008
Mr. Scott Wine
Dear Scott:
On behalf of the Board of Directors of Polaris Industries Inc. (Polaris), I am pleased to
offer you the position of Chief Executive Officer of Polaris. This letter will confirm the terms of
your employment with Polaris.
I.
Title and Position
.
Chief Executive Officer of Polaris reporting to the Board of Directors of Polaris. It is
expected that you will be elected to the Board of Directors of Polaris as soon as practicable after
you begin employment with Polaris.
II.
Date of Employment
.
September 1, 2008
III.
Base Salary
.
Your annual base salary (Base Salary) will be $575,000, payable in accordance with Polaris
customary payroll policy, less all applicable withholdings and deductions. Your Base Salary will
next be reviewed by the Compensation Committee of the Board of Directors (Compensation Committee)
in January of 2010. Thereafter it will be reviewed annually by the Compensation Committee. As a
result of each review your Base Salary may, at the discretion of the Board of Directors, be
increased.
IV.
Annual Cash Incentive Compensation
.
You will participate in Polaris Senior Executive Annual Incentive Compensation Plan or,
alternatively, any performance-based annual incentive plan that Polaris may adopt for one or more
of its senior officers in lieu of its Senior Executive Annual Incentive Compensation Plan (the
Annual Incentive Plan). The Compensation Committee will determine on an annual basis, in
accordance with the Plan, the actual amount of any annual performance incentive award (an Annual
Bonus) to be awarded to you under the Annual Incentive Plan. You will be eligible to receive a
target Annual Bonus under the Annual Incentive Plan equal to 100 percent of your Base Salary (the
Bonus Target Amount) subject to the performance criteria established by the Compensation
Committee under the Annual Incentive Plan. The maximum Annual Bonus that you will be eligible to
receive under the Annual Incentive Plan will be equal to 150 percent of your Base Salary. For the
year ending December 31, 2008, you will be awarded a payment under the Annual Incentive Plan in
an amount of no less than the Bonus Target Amount pro-rated for the number of months during 2008
that you are employed by Polaris.
V.
Long Term Incentive Plan
.
You will participate in Polaris Long Term Incentive Plan, or alternatively, any long term
performance based incentive plan that Polaris may adopt for one or more of its senior officers in
lieu of the Long Term Incentive Plan (the LTIP). The Compensation Committee will determine, in
accordance with the LTIP, the actual amount of any long term incentive payment to be awarded to
you for each three-year performance cycle under the LTIP. You will be eligible to receive a
target long term incentive payment equal to 100 percent of your Base Salary (the LTIP Target
Amount) subject to the performance criteria established by the Compensation Committee under the
LTIP. The maximum long term incentive payment that you will be eligible to receive under the LTIP
will be equal to 250 percent of your Base Salary. For the 2008-2010 performance cycle under the
LTIP, you will be eligible to receive the LTIP Target Amount for such performance cycle pro-rated
for the number of months during such performance cycle that you are employed by Polaris.
VI.
Initial Employment Cash Bonus
.
Upon beginning your employment with Polaris you will receive a one-time cash payment in
the amount of $530,000, which is intended to compensate you for compensation that you may be
forgoing by joining Polaris.
VII.
Stock-Based Incentive Compensation
.
You will be an eligible participant under Polaris 2007 Omnibus Incentive Plan (as the same
may be amended from time to time, the Omnibus Plan).
A.
Annual Stock Option Grant
.
On the date upon which you begin employment with Polaris, you will be granted a stock option
to purchase shares of Polaris common stock at an exercise price per share equal to the fair
market value (as defined in the Omnibus Plan) of a share of Polaris common stock on the date of
grant. The number of shares subject to the option will have a Black-Scholes value (using Polaris
methodology) approximately equal to $575,000 on the
Page 3 of 4
January 16, 2008
date of grant as determined by the Compensation Committee. The stock option will be subject to
the provisions, terms and conditions of the Omnibus Plan and Polaris standard form of stock
option agreement, which will provide that such stock option will vest on the third anniversary
of its date of grant and will expire on the tenth anniversary of its date of grant absent
earlier termination as set forth in the stock option agreement.
Polaris generally awards stock options to its executive officers on an annual basis. It is
anticipated that your next annual stock option grant will be in January of 2010 in connection
with your annual review.
B.
Additional Stock Option Grant Upon Joining Polaris
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Additionally, on the date upon which you begin employment with Polaris, you will be granted
a stock option to purchase 180,000 shares of Polaris common stock at an exercise price per share
equal to the fair market value (as defined in the Omnibus Plan) of a share of Polaris common
stock on the date of grant. The stock option will be subject to the provisions, terms and
conditions of the Omnibus Plan and Polaris standard form of stock option agreement, which will
provide that such option will vest in three nearly equal tranches on the fourth, fifth and sixth
anniversaries of its date of grant and will expire on the tenth anniversary of its date of grant
absent earlier termination as set forth in the stock option agreement.
C.
Restricted Share Award Upon Joining Polaris
.
On the date upon which you begin employment with Polaris you will receive a
performance-based restricted share award for 50,000 shares of Polaris common stock. Such
performance-based restricted share award will be issued under the Omnibus Plan and will be
subject to the provisions, terms and conditions of the Omnibus Plan and Polaris standard form of
performance-based restricted share agreement. The agreement will provide that restrictions on the
performance-based restricted shares will lapse if Polaris attains at least 12% compounded growth
in earnings from continuing operations per diluted share over a period from 2008 through 2011 or,
if not attained during such period, from 2008 through 2012.
VIII.
Supplemental Benefits and Perquisites
.
At Polaris, you will participate in Polaris benefit programs and receive the perquisites
made available by Polaris to its executives including medical, dental, disability and life
insurance coverage, financial planning and tax preparation services, 401(k) retirement savings
plan and Supplemental Executive Retirement Plan participation and a country club membership.
Additionally, you will have the use of Polaris products in accordance with Polaris guidelines.
A summary of your benefits is enclosed herewith as
Annex A
.
IX.
Severance Agreement
.
Page 4 of 4
January 16, 2008
When you begin employment with Polaris, you and Polaris will enter into a Severance,
Proprietary Information and Noncompetition Agreement substantially in the form enclosed
herewith as
Annex B
.
X.
Relocation Expenses; Transfer Allowance
.
Polaris will pay or reimburse you for the costs of relocating you and your family to the
Minneapolis-St. Paul metropolitan area. Relocation costs are intended to include the costs of
packing and shipping of household goods, the payment of real estate commissions and legal fees
associated with the sale of your current home and the purchase of a home in the Minneapolis- St.
Paul metropolitan area and travel expenses for you and your immediate family. Additionally, at
your election, Polaris will purchase your current home at its appraised value. John Corness,
Polaris Vice President-Human Resources, can provide you with information regarding this program.
Please sign and return a copy of this letter indicating that you accept our offer and
confirming the terms of your employment.
Very truly yours,
Gregory R. Palen
Chairman of the Board of Directors
Accepted and Confirmed:
July 28, 2008
Scott W. Wine
Exhibit 10.b
SEVERANCE, PROPRIETARY INFORMATION
AND NONCOMPETITION AGREEMENT
THIS SEVERANCE, PROPRIETARY INFORMATION AND NONCOMPETITION AGREEMENT (the
Agreement
), is made and entered into effective as of September ___, 2008 between POLARIS
INDUSTRIES INC., a Minnesota corporation (the
Company
or
Polaris
), and Scott W.
Wine (the
Employee
).
R
E
C
I
T
A
L
S
:
WHEREAS, Employee is accepting employment as Chief Executive Officer of the Company; and
WHEREAS, as an inducement to accept employment and to enhance the loyalty and performance of
Employee with the Company, the Company desires to provide the Employee with certain compensation
and benefits in the event a termination of employment under the circumstances set forth herein.
Additionally, as a condition of employment, Employee has agreed to enter into a proprietary
information and noncompetition covenant in favor of the Company.
NOW, THEREFORE, in consideration of the mutual premises and agreements set forth herein, the
parties hereby agree as follows:
1.
Definitions
. As used in this Agreement, these terms shall have the following
meanings:
(a)
Cause
. For purposes of this Agreement only, Cause means (i) the willful
and continued or repeated failure by Employee to substantially perform his duties as Chief
Executive Officer of the Company (other than as a result of incapacity due to physical or
mental illness) after written demand for substantial performance has been delivered by the
Board of Directors of Polaris which specifically identifies the manner in which Employee has
failed to substantially perform his duties; (ii) Employee engages in gross negligence,
illegal conduct or gross misconduct which is material and demonstrably injurious to the
Company; or (ii) Employee is convicted of, or enters a plea of guilty or nolo contendere
with respect to, a felony.
(b)
Change in Control
. A Change in Control shall be deemed to have occurred
if, prior to the Termination Date (as defined below):
(i) Any election has occurred of persons to the Board that causes at least
one-half of the Board to consist of persons other than (x) persons who were members
of the Board on January 1, 2008 and (y) persons who were nominated for election by
the Board as members of the Board at a time when more than one-half of the members of
the Board consisted of persons who were members of the Board on January 1, 2008;
provided, however, that any person nominated for election by the Board at a time when
at least one-half of the members of the Board were persons described in clauses (x)
and/or (y) or by
persons who were themselves nominated by such Board shall, for this purpose, be
deemed to have been nominated by a Board composed of persons described in clause (x)
(persons described or deemed described in clauses (x) and/or (y) are referred to
herein as
Incumbent Directors
); or
(ii) The acquisition in one or more transactions, other than from the Company,
by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
Exchange
Act
)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of a number of Company Voting Securities equal to or greater
than 35% of the Company Voting Securities unless such acquisition has been designated
by the Incumbent Directors as an acquisition not constituting a Change in Control for
purposes hereof; or
(iii) A liquidation or dissolution of the Company; or a reorganization, merger
or consolidation of the Company unless, following such reorganization, merger or
consolidation, the Company is the surviving entity resulting from such
reorganization, merger or consolidation or at least one-half of the Board of
Directors of the entity resulting from such reorganization, merger or consolidation
consists of Incumbent Directors; or a sale or other disposition of all or
substantially all of the assets of the Company unless, following such sale or
disposition, at least one-half of the Board of Directors of the transferee consists
of Incumbent Directors.
As used herein,
Company Voting Securities
means the combined voting power of all
outstanding voting securities of the Company entitled to vote generally in the election of the
Board.
(c)
Change in Control Termination
. Change in Control Termination shall have
the meaning set forth in
Paragraph 2
.
(d)
Good Reason
. Good Reason means any of (i) a material reduction or
diminution of Employees title or in the scope of Employees authority and responsibility as
an executive of Polaris (other than isolated, insubstantial actions not taken in bad faith,
which are remedied by the Company upon notice to the Company); (ii) a material reduction in
Employees base compensation; (iii) a material change in the geographic location of the
Employees principal place of employment other than as part of a change of the Companys
principal executive offices; or (iv) the Company otherwise fails to perform any of its
material obligations to Employee. The Employee must give the Company notice of the
existence of Good Reason during the 90-day period beginning on the date of the initial
existence of Good Reason. If the Company remedies the condition giving rise to Good Reason
within 30 days thereafter, Good Reason shall not exist and the Employee will not be entitled
to terminate employment for Good Reason.
(e)
Incentive Compensation Award
. Incentive Compensation Award shall have
the meaning set forth in the LTIP.
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(f)
Incentive Compensation Award Period
. Incentive Compensation Award Period
shall have the meaning set forth in the LTIP.
(g)
LTIP
. LTIP means the Polaris Industries Inc. Long Term Incentive Plan.
(h)
Non-Change in Control Termination
. Non-Change in Control Termination
shall have the meaning set forth in
Paragraph 3
.
(i)
Participant
. Participant shall have the meaning set forth in the LTIP.
(j)
Senior Executive Incentive Plan
. Senior Executive Incentive Plan means
the Polaris Industries Inc. Senior Executive Annual Incentive Plan.
(k)
Termination Date
. Termination Date means the date on which the
Employees employment with the Company is terminated.
2.
Termination upon Change in Control
. If a Change in Control occurs and, upon or
within twenty-four (24) months after such Change in Control, the Employee terminates his or her
employment for Good Reason or the Employees employment is terminated by the Company for any reason
other than for Cause (a
Change in Control Termination
), then the Employee shall be
entitled to the following severance benefits:
(a)
Termination Payment upon Change in Control
. The Company shall pay the
Employee a lump sum cash payment, no later than thirty (30) days after the Termination Date,
in an amount equal to (i) two times Employees average annual cash compensation (including
base salary and cash bonuses, but excluding the award or exercise of stock options or stock
grants) for the three fiscal years (or lesser number of fiscal years if the Employees
employment has been of shorter duration) of the Company immediately preceding the Change in
Control Termination, plus (ii) the amount of the Employees earned but unused vacation time.
If the Employee is a specified employee (within the meaning of Section 409A of the
Internal Revenue Code and the regulations thereunder), and if the amount otherwise payable
to the Employee under this Paragraph 2(a) during the six-month period beginning on the
Termination Date exceeds two times the limitation applicable as of the Termination Date
under Section 401(a)(17) of the Internal Revenue Code, then such excess amount shall be paid
at the end of such six-month period.
(b)
Unpaid Annual Bonus Payment for Prior Fiscal Year upon Termination upon Change
in Control
. If the Termination Date occurs before a cash incentive award under the
Senior Executive Incentive Plan for work performed in any preceding fiscal year has been
paid, the Company shall, in addition to the payment to be made pursuant to
Paragraphs
2(a) and 2(c)
, pay to the Employee the amount of the Employees cash incentive award
under the Senior Executive Incentive Plan for such preceding fiscal year as soon as it is
determinable and such amount shall be included in the calculation of the payment to be made
pursuant to
Paragraphs 2(a) and 2(c)
.
3
(c)
Annual Bonus Payment for Fiscal Year in which Change in Control Termination
Occurs
. If the Change in Control Termination occurs after June 30 of the fiscal year of
the Company in which the Termination Date occurs, the Company shall, in addition to payments
to be made pursuant to
Paragraphs 2(a) and 2(b)
, pay to the Employee the average
amount of the Employees cash incentive award under the Senior Executive Incentive Plan for
the three fiscal years (or lesser number of fiscal years if the Employees employment has
been of shorter duration) of the Company immediately preceding the Change in Control
Termination multiplied by a fraction, the numerator of which is the number of full calendar
months of the fiscal year of the Company prior to the Termination Date, and the denominator
of which is twelve.
3.
Non-Change in Control Termination
. Notwithstanding the foregoing, if the Employee
terminates his or her employment for Good Reason or the Employees employment is terminated by the
Company for any reason other than for Cause (a
Non-Change in Control Termination
), and
such termination does not occur upon or within twenty-four (24) months after a Change in Control
such that a Change in Control Termination shall have occurred, then the Employee shall, subject to
the conditions set forth in
Paragraph 4
, be entitled to the following severance benefits:
(a)
Non-Change in Control Termination Payment
. The Company shall pay the
Employee (i) an amount equal to the sum of (A) an amount equal to 100% of the Employees
annual base salary as of the Termination Date plus (B) the amount of the cash incentive
award that was paid to the Employee under the Senior Executive Incentive Plan for work
performed in the fiscal year immediately preceding the fiscal year in which the Termination
Date occurs, which amount shall be payable over a period of one year beginning on the
Termination Date in periodic installments in accordance with the Companys normal payroll
practices, and (ii) a lump cash payment, no later than thirty (30) days after the
Termination Date, in an amount equal to the Employees earned but unused vacation time. If
the Employee is a specified employee (within the meaning of Section 409A of the Internal
Revenue Code and the regulations thereunder), and if the amount otherwise payable to the
Employee under this Paragraph 3(a) during the six-month period beginning on the Termination
Date exceeds two times the limitation applicable as of the Termination Date under Section
401(a)(17) of the Internal Revenue Code, then such excess amount shall be paid at the end of
such six-month period.
(b)
Unpaid Annual Bonus Payment for Prior Fiscal Year upon Non-Change in Control
Termination
. If the Termination Date occurs before a cash incentive award under the
Senior Executive Incentive Plan for work performed in any preceding fiscal year has been
paid, the Company shall, in addition to the payments to be made pursuant to
Paragraphs
3(a) and 3(c)
, pay to the Employee the amount of the Employees cash incentive award
under the Senior Executive Incentive Plan for such preceding fiscal year as soon as it is
determinable and such amount shall be included in the calculation of the payment to be made
pursuant to
Paragraphs 3(a) and 3(c)
.
(c)
Annual Bonus Payment for Fiscal Year in which Non-Change in Control Termination
Occurs
. If the Non- Change in Control Termination occurs after June 30 of the fiscal
year of the Company in which the Termination Date occurs, the
4
Company shall, in addition to payments to be made pursuant to
Paragraphs 3(a) and
3(b)
, pay to the Employee the amount of the cash incentive award that was paid to the
Employee under the Senior Executive Incentive Plan for work performed in the fiscal year
immediately preceding the fiscal year in which the Termination Date occurs multiplied by a
fraction, the numerator of which is the number of full calendar months of the fiscal year of
the Company prior to the Termination Date, and the denominator of which is twelve.
(d)
LTIP Payment
. If the Termination Date occurs before the Employee receives
payment of an Incentive Compensation Award, the Employee shall receive payment with respect
to such Incentive Compensation Award, in the same form and at the same time as would have
otherwise been payable to him or her as a Participant in the LTIP (notwithstanding the
provisions of Section 11 of the LTIP) had he or she remained employed by the Company through
the end of the Incentive Compensation Award Period applicable to such Incentive Compensation
Award and had he or she been employed on the date on which such Incentive Compensation Award
is paid. The amount payable to the Employee with respect to such Incentive Compensation
Award pursuant to this
Paragraph 3
shall be equal to the amount that would otherwise
have been payable to the Employee with respect to such Incentive Compensation Award had the
Employee remained continuously employed by the Company through the end of the Incentive
Compensation Award Period and had he or she been employed on the date on which such
Incentive Compensation Award is paid, multiplied by a fraction, the numerator of which is
the number of full calendar years of the Incentive Compensation Award Period prior to the
Termination Date, and the denominator of which is three.
(e)
COBRA Premium
. If the Employee elects to receive COBRA benefits upon
termination the Company shall pay the premium for coverage of the Employee and the
Employees eligible spouse and/or dependents under the Companys group health plan(s)
pursuant to the Consolidated Omnibus Budget Reconciliation Act for the one-year period
beginning on the Termination Date.
(f)
Outplacement Counseling
. The Company shall provide the Employee with
reasonable executive outplacement services, in accordance with Company policy for senior
executives as in effect on the Termination Date.
4.
Condition to Receipt of Severance Benefits under Paragraphs 2 and 3
. As a
condition to receiving any severance benefits in connection with a Change in Control Termination
under
Paragraph 2
or in connection with a Non-Change in Control Termination under
Paragraph 3
, the Employee shall execute a general waiver and release (the
Waiver and
Release
) in substantially the form attached hereto as
Exhibit A
. The Waiver and
Release shall become effective in accordance with the rescission provisions set forth therein.
5.
Benefits in Lieu of Severance Pay
. The severance benefits provided for in
Paragraphs 2 and 3
are in lieu of any benefits that would otherwise be provided to the
Employee under any Company severance pay policy or practice and the Employee shall not be entitled
to
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any benefits under any Company severance pay policy or practice in the event that severance
benefits are paid hereunder.
6.
Rights in the Event of Dispute
. In the event of a Change of Control Termination,
if there is a claim or dispute arising out of or relating to this Agreement or any breach thereof,
regardless of the party by whom such claim or dispute is initiated, the Company shall, in
connection with settlement in the Employees favor of any such matter or upon payment of any
judgment entered in the Employees favor, upon presentation of appropriate vouchers, pay all legal
expenses, including reasonable attorneys fees, court costs, and ordinary and necessary
out-of-pocket cost of attorneys, billed to and payable by the Employee or by anyone claiming under
or through the Employee.
7.
Other Benefits
. The benefits provided under this Agreement shall, except to the
extent otherwise specifically provided herein, be in addition to, and not in derogation or
diminution of, any benefits that Employee or his or her beneficiary may be entitled to receive
under any other contract, plan or program now or hereafter maintained by the Company, or its
subsidiaries, including any and all stock options and restricted stock award agreements.
8.
Effect on Employment
. Neither this Agreement nor anything contained herein shall
be construed as conferring upon Employee the right to continue in the employment of the Company or
any of its affiliates, or as interfering with or limiting the right of the Company to terminate the
Employees employment with or without cause at any time.
9.
Proprietary Information; Covenant Not to Compete
.
(a)
Proprietary Information.
Except with the prior written permission of Polaris, the
Employee agrees that he will not, through the actual Termination Date of his employment with
Polaris and for a period of 60 months thereafter, disclose or use any Proprietary Information (as
defined below) of Polaris or any of its subsidiaries of which you become informed during his
employment with Polaris, whether or not developed by him, except as required by his duties to
Polaris or any of its subsidiaries. Proprietary Information means, as to Polaris or any of its
subsidiaries, business plans, operating plans, procedures or manuals, financial statements,
projections or reports, or other confidential information of the Company, excluding, however, (i)
such information which is then or later becomes generally available to the public other than
through the Employee; (ii) such information which is received by the Employee from a third party
owing no obligation of confidentiality to Polaris; and (iii) such information which has been or is
later disclosed by Polaris to an unrelated third party on a nonconfidential basis. Information
does not lose its Proprietary Information status merely because it was known by other persons or
entities or because it did not entirely originate with Polaris. Upon termination of Employees
employment with Polaris for any reason, Employee agrees to deliver to Polaris all materials (in
whatever form or format) that include Proprietary Information. Employee agrees and understands
that the Proprietary Information and all information contained therein shall be at all times the
property of Polaris. Further, upon termination of Employees employment for any reason, Employee
agrees to make available to any person designated by Polaris or any of its subsidiaries all
information concerning pending or preceding transactions which may affect the operation of Polaris
or any of its subsidiaries about which Employee has knowledge.
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(b)
Covenant Not to Compete
. It is mutually acknowledged that by virtue of
Employees employment, Polaris and its subsidiaries will divulge and make accessible to Employee,
and Employee will become possessed of, certain valuable and confidential information concerning the
business and operations of Polaris and its subsidiaries. Without limitation it is also
specifically acknowledged that great trust on the part of Polaris and its subsidiaries will reside
in Employee because his duties will include involvement in the management, promotion and
development of Polaris operations and business. Accordingly, it is necessary to enter into the
following protective agreements:
(i) Employee agrees with Polaris and for the benefit of Polaris and its
subsidiaries through the actual date of termination of Employees employment, and for
a period of two years thereafter, he will not own or have any interest in and will
not, on his own behalf or on the behalf of any third party, perform any services for,
directly or indirectly, any person or entity (a Polaris Competitor) which engages
in a business that Polaris or any of its subsidiaries conducts or contemplates
conducting in the near future at the time of the termination of Employees employment
(each, a Competitive Activity), except that Employee may own up to 1% of the
outstanding securities of any corporation if such securities are registered under the
Securities Exchange Act of 1934, as amended and Employee may provide services for
businesses of Polaris Competitor that are not engaged in or provide goods or services
to a Competitive Activity.
(ii) Employee agrees that during his employment with Polaris and for a period of
two years following the termination of such employment that he will not, either
directly or indirectly, on his own behalf or in the service or on behalf of others
solicit, divert or hire away, or in any manner attempt to solicit, divert or hire
away any full-time employee of Polaris or any of its subsidiaries, and whether or not
such employment was pursuant to a written or oral contract of employment and whether
or not such employment was for a determined period or was at-will.
(iii) Employee understand and agree that a breach by him of any of the provisions of this
covenant not to compete may cause Polaris or its subsidiaries irreparable injury and damage which
cannot be compensable by receipt of money damages. Employee, therefore, expressly agree that
Polaris and its subsidiaries shall be entitled, in addition to any other remedies legally available
to it, to injunctive and/or other equitable relief to prevent a breach of this covenant or any part
hereof.
10.
Successors
. The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation, or otherwise) to all or substantially all of the business
and/or assets of the Company, to expressly assume and agree to perform its obligations under this
Agreement in the same manner and to the same extent that the Company would be required to perform
them if no succession had taken place unless, in the opinion of legal counsel
7
mutually acceptable to the Company and the Employee, such obligations have been assumed by the
successor as a matter of law. The Employees rights under this Agreement shall inure to the
benefit of, and shall be enforceable by, the Employees legal representative or other successors in
interest, but shall not otherwise be assignable or transferable.
11.
Severability
. If any provision of this Agreement or the application thereof is
held invalid or unenforceable, the invalidity or unenforceability thereof shall not affect any
other provisions or applications of this Agreement which can be given effect without the invalid or
unenforceable provision or application.
12.
Survival
. The rights and obligations of the parties pursuant to this Agreement
shall survive the termination of the Employees employment with the Company to the extent that any
performance is required hereunder after such termination.
13.
Governing Law
. This Agreement shall be governed by and construed under the laws
of the State of Minnesota, without giving effect to the conflicts of law provisions thereof.
14.
Notices
. All notices under this Agreement shall be in writing and shall be deemed
effective when delivered in person (in the Companys case, to its Secretary) or 48 hours after
deposit thereof in the U.S. mails, postage prepaid, addressed, in the case of the Employee, to his
last known address as carried on the personnel records of the Company and, in the case of the
Company, to the corporate headquarters, attention of the Secretary, or to such other address as the
party to be notified may specify by written notice to the other party.
15.
Amendments and Construction
. Except as set forth in
Paragraph 9
, this
Agreement may only be amended in a writing signed by the parties hereto. Paragraph headings are
for convenience only and shall not be considered a part of the terms and provisions of the
Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Severance Agreement as of the day and
year first written above.
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POLARIS INDUSTRIES INC.
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EMPLOYEE
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By:
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Michael W. Malone
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Name: Scott W. Wine
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Vice President-Finance, Chief Financial
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SSN:
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Officer and Secretary
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8
EXHIBIT A
GENERAL RELEASE
This Release (hereafter,
Agreement
) is made and entered into this
day
of
, 20___, by and between Scott W. Wine (hereafter, the
Employee
) and Polaris
Industries Inc., a Minnesota corporation (hereafter, the
Company
).
WHEREAS,
the Company and the Employee are parties to that certain Severance Proprietary
Information and Noncompetition Agreement, dated as of September 1, 2008 (the
Severance
Agreement
), pursuant to which the Employee is entitled to certain severance benefits in the
event of a Change in Control Termination or a Non-Change in Control Termination (each as defined in
the Severance Agreement); and
WHEREAS,
the Company and the Employee agree and acknowledge that the Employee has become
entitled to severance benefits specified in the Severance Agreement in connection with a Change in
Control Termination or Non-Change in Control Termination; and
WHEREAS,
under the Severance Agreement, as a condition to receipt of severance benefits in
connection with a Change in Control Termination or Non-Change in Control Termination, Employee has
agreed to execute this Agreement in order to settle, compromise, and resolve fully and finally any
and all claims and disputes with respect to the Company, whether known or unknown, which exist or
could exist.
NOW, THEREFORE,
in consideration of the mutual promises and covenants established in this
Agreement, the parties agree as follows:
A. TERMINATION DATE
The Employees effective date of termination of employment is
(the
Effective Date
).
B. VOLUNTARY RELEASE
In return for the benefits set forth in the Severance Agreement, the Employee, on behalf of
Employee, Employees heirs, executors, family members, beneficiaries, assignees, administrators,
successors, and executors or anyone acting or claiming to act on the Employees behalf, hereby
releases and forever discharges the Company and all divisions, parent, subsidiaries, and
successors, and all affiliated organizations, companies, foundations, and other corporations as
well as past and present employees, agents, officials, officers, directors, Board members and
representatives, both individually and in their representative capacities, from any and all claims
or causes of action of any type, both known or unknown, asserted and unasserted, direct and
indirect, and of any kind, nature, or description whatsoever, under any local, state, or federal
law(s), or the common law of the State of Minnesota, arising or such may have arisen at any time up
to and including the Effective Date which date is set forth in
Section I
of this
Agreement.
This includes, but is not limited to, any and all claims arising from the Employees employment
with the Company and the termination of that employment, including claims arising under any
applicable state Human Rights laws, Title VII of the 1964 Civil Rights Act, the Age Discrimination
in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the
Federal, Minnesota State Fair Labor Standards Acts, the Employee Retirement
Income Security Act, and any other local, state, or federal law(s) relating to illegal
discrimination in the workplace on the basis of race, religion, disability, sex, age, or other
characteristics or traits, as well as any claims that the Employee may have been wrongfully
discharged, that an employment contract has been breached, that the Employee has been harassed or
otherwise treated unfairly during employment, or that the Employee has been defamed in any
fashion. This release includes any claims for attorneys fees that the Employee has or may have
had. The Employee acknowledges that the severance benefits set forth the Severance Agreement
constitute adequate consideration for this release.
The Employee also understands that while the Employee retains the right to pursue an administrative
action through an agency such as the Equal Employment Opportunity Commission or the Minnesota
Department of Human Rights, the Employee is releasing, and does hereby release, any claims for
monetary damages, by such administrative charge or otherwise, whether brought by the Employee on
the Employees own behalf or by any other party, governmental or otherwise.
Notwithstanding the foregoing release, Employee does not release or waive (i) any rights to
indemnification that the Employee may have under Minnesota Statutes Section 302A.521 on account of
claims brought by third parties against the Employee in his official capacity with the Company, or
(ii) any rights that the Employee may have as an insured under the Companys director and officer
liability insurance;
provided, however
, that it is acknowledged and agreed that the
foregoing shall not preclude the Company from modifying the Companys director and officer
liability insurance program from time to time so long as such modification does not cause the
Employee to be treated materially differently than other present or past executives or directors of
the Company.
C. NON-ADMISSION
It is understood and agreed that this Agreement does not constitute an admission by the Company of
any liability, wrongdoing, or violation of any law. Further, the Company expressly denies any
wrongdoing of any kind whatsoever in its actions and dealings with the Employee.
D. COMPANY PROPERTY, EQUIPMENT & MONEY OWED
The Employee agrees to immediately return all records, programs, information and Company product
and property assigned, loaned or otherwise in Employees possession including demo or management
units, cell phones and laptop computers except as specifically set forth herein. In addition, the
Employee agrees to reimburse the Company for expense account advances less any expenses incurred
prior to the Effective Date. This includes payment for outstanding personal account balances,
business equipment, and demo units assigned in Employees name.
2
E. CONFIDENTIALITY AND NONDISPARAGEMENT
The Employee agrees not to make any disparaging or negative remarks, either orally or in writing,
regarding the Company or any affiliated divisions or corporations, as well as any past or present
Board members, officers, employees, or agents of the Company or any affiliated entities. The
Employee acknowledges that this term is a material part of the Severance Agreement. In the event
it is determined that the employee has breached this provision, the Company, at its option,
may declare the Severance Agreement void and without effect, and the Employee shall be obligated to
immediately return the severance benefits paid to Employee under the Severance Agreement.
Employee acknowledges Employees ongoing obligation to not disclose the Companys confidential and
proprietary information to any third parties in accordance with Company policies. This obligation
survives the termination of the Employees employment.
F. AGREEMENT TO COOPERATE
The Employee hereby agrees that the Employee shall cooperate and assist the Company to the extent
necessary to assist the Employees counsel or the Company in handling any claims made against it by
employees, former employees or third parties of which the Employee has some knowledge or
information. The Employee further agrees that the Employee will not hereafter volunteer any
information to third parties or their agents or representatives regarding claims that the party or
any other person may have or could have against the Company, nor will the Employee in any way
cooperate with any third party to assist in any way asserting a claim against the Company unless
subpoenaed or ordered to do so by a court of competent jurisdiction.
G. OPPORTUNITY TO SEEK ADVICE
The Employee has been advised by the Company that the Employee has the right to consult with an
attorney prior to signing this Agreement, and that Employee has forty five (45) days from the date
on which the Employee receives this Agreement (noted below) to consider whether or not the Employee
wishes to sign it. The date on which the Employee received this Agreement is accurately reflected
on the line marked DATE RECEIVED on the signature page hereto. For acceptance of this Agreement
to be effective, it must be in writing and hand delivered or mailed to Polaris Industries Inc.,
Attn:
, 2100 Highway 55, Medina, MN 55340. If mailed, the acceptance must be
postmarked within the 45-day period, properly addressed as set forth in the preceding sentence and
sent by certified mail, return receipt requested. If delivered by hand, it must be given to
within the 45-day period.
H. OPPORTUNITY TO CONSIDER
The Employee may cancel this Agreement within seven (7) days after the Employee has signed it for
age related claims under the federal Age Discrimination in Employment Act or the Older Workers
Benefit Protection Act or within fifteen (15) days after signing it for any claims under the
Minnesota Human Rights Act (
MHRA
). The Employee understands and agrees that this
Agreement does not become effective or enforceable until after the rescission period has passed.
For cancellation to be effective, it must be in writing and hand delivered or mailed to Polaris
3
Industries Inc., Attn:
, 2100 Highway 55, Medina, MN 55340. If mailed, the
cancellation must be postmarked within the 7-day (federal age claims) or 15-day (MHRA claims)
period, properly addressed as set forth in the preceding sentence and sent by certified mail,
return receipt requested. If delivered by hand, it must be given to
within the
7-day (federal age claims) or 15-day (MHRA claims) period.
I. NON ASSIGNMENT
The parties agree that this Agreement will not be assignable by either party unless the other party
first agrees in writing.
J. COUNTERPARTS
This Agreement may be signed simultaneously in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same document.
K. SEVERABILITY CLAUSE
In the event that any provision of this Agreement shall be held void or unenforceable by a court of
competent jurisdiction which is affirmed on appeal, said judgment shall not affect, impair, or
invalidate the remainder of this Agreement unless the provision declared totally or partially
unenforceable destroys the release of claims provided to the Company in
Section II
.
L. COMPREHENSIVE NATURE OF AGREEMENT AND DRAFTSMANSHIP
This Agreement contains the entire agreement between the Employee and the Company regarding the
subject matter herein except for the non-competition agreement between Company and Employee
executed in conjunction with the stock options or restricted stock awarded to Employee and the
agreement evidencing such awards, which remain in full force and effect in accordance with and
subject to their respective terms and conditions. Employee acknowledges that the Employee has been
advised in writing to consult the Employees own attorney; that the Employee has had an opportunity
to consult with the Employees own attorney regarding the terms of this Agreement; that the
Employee has read and understands the terms of this Agreement; that the Employee is voluntarily
entering into this Agreement to take advantage of the benefits offered; that the Employees
execution of this Agreement is without coercion or duress of any kind; and that there have been no
promises leading to the signing of this Agreement except those that have been expressly contained
in this written document.
M. BANKRUPTCY
The Employee represents that the Employee is not a party to a pending personal bankruptcy, and
that the Employee is legally able and entitled to receive the money being paid to the Employee by
the Company pursuant to the Severance Agreement.
4
N. GOVERNING LAW
This Agreement will be construed and interpreted in accordance with the laws of the State of
Minnesota. It is further agreed that any action initiated in connection with the interpretation of
or adherence to the terms and provisions of this Agreement shall be venued solely and exclusively
in state court in the State of Minnesota in the County of Hennepin. The parties to this Agreement
agree and acknowledge that this Agreement shall be considered to have been drafted equally by each
of the parties.
O. WAIVER; AMENDMENT
No waiver, amendment, modification, or other change of any term, condition, or provision of this
Agreement shall be valid or have any force or effect unless made in writing and signed by the party
hereto against whom such waiver, amendment, modification, or change shall operate or be enforced.
No failure or delay on the part of any party in exercising any right, remedy, power, or
privilege under this Agreement shall operate as a waiver thereof or of any other right, remedy,
power, or privilege of such party under this Agreement; nor shall any single or partial exercise of
any such right, remedy, power, or privilege preclude any other right, remedy, power, or privilege
or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement.
DATE RECEIVED BY THE EMPLOYEE:
______________________
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Polaris Industries Inc.
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BY:
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Date: ___/___/___
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ITS:
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Employee
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Signature:
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____/_____/_____
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Print Name: Scott Wine
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Date Signed by the Employee
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5