Employment Agreement

Severance Agreement

Change In Control Agreement

 

 

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.

 

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     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

 

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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.

     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.

 

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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 Employee’s title or in the scope of Employee’s 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 Employee’s base compensation; (iii) a material change in the geographic location of the Employee’s principal place of employment other than as part of a change of the Company’s 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 Employee’s 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 Employee’s 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 Employee’s 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 Employee’s employment has been of shorter duration) of the Company immediately preceding the Change in Control Termination, plus (ii) the amount of the Employee’s 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 Employee’s 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).

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          (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 Employee’s cash incentive award under the Senior Executive Incentive Plan for the three fiscal years (or lesser number of fiscal years if the Employee’s 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 Employee’s 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 Employee’s 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 Company’s 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 Employee’s 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 Employee’s 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

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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 Employee’s eligible spouse and/or dependents under the Company’s 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 Employee’s favor of any such matter or upon payment of any judgment entered in the Employee’s 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 Employee’s 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 Employee’s 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 Employee’s 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 Employee’s 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 Employee’s 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 Employee’s 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

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mutually acceptable to the Company and the Employee, such obligations have been assumed by the successor as a matter of law. The Employee’s rights under this Agreement shall inure to the benefit of, and shall be enforceable by, the Employee’s 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 Employee’s 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 Company’s 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.

 

 

 

 

 

 

 

POLARIS INDUSTRIES INC.

 

 

 

EMPLOYEE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Michael W. Malone

 

 

 

Name: Scott W. Wine

 

 

Vice President-Finance, Chief Financial

 

 

 

SSN:

 

 

Officer and Secretary

 

 

 

 

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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 Employee’s 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, Employee’s heirs, executors, family members, beneficiaries, assignees, administrators, successors, and executors or anyone acting or claiming to act on the Employee’s 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 Employee’s 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 Employee’s 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 Company’s director and officer liability insurance; provided, however, that it is acknowledged and agreed that the foregoing shall not preclude the Company from modifying the Company’s 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 Employee’s 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 Employee’s name.

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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 Employee’s ongoing obligation to not disclose the Company’s confidential and proprietary information to any third parties in accordance with Company policies. This obligation survives the termination of the Employee’s 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 Employee’s 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

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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 Employee’s own attorney; that the Employee has had an opportunity to consult with the Employee’s 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 Employee’s 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.

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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: ______________________

 

 

 

 

 

Polaris Industries Inc.

 

 

BY:

 

 

 

     Date: ___/___/___

 

 

 

 

 

ITS:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Employee

 

 

 

 

 

 

 

Signature:

 

               ____/_____/_____

 

 

 

 

 

Print Name: Scott Wine

 

     Date Signed by the Employee

5

 

CHANGE IN CONTROL AGREEMENT

 

     THIS AGREEMENT, made and entered into as of __________, 1996 between

POLARIS INDUSTRIES INC., a Minnesota corporation (the "Company"), and ______

(the "Employee").

 

 

                                R E C I T A L S:

 

     WHEREAS, Employee has been and currently is employed by the Company;

 

     WHEREAS, the Board of Directors of the Company (the "Board") believes it is

imperative to diminish the inevitable distraction of Employee by virtue of the

personal uncertainties and risks created by any pending or threatened Change in

Control (as defined below) of the Company; and

 

     WHEREAS, as an inducement to continue 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 Change in Control

of the Company occurs,

 

     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)  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, 1996 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, 1996; 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

 

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<PAGE>

 

     Voting Securities unless such acquisition has been designated by the

     Incumbent Directors as an acquisition not constituting a Change of 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.

 

     (b)  CAUSE. For purposes of this Agreement only, "Cause" means (i) repeated

violations of the Employee's employment obligations (other than as a result of

incapacity due to physical or mental illness), which are demonstrably willful

and deliberate on Employee's part and which are not remedied in a reasonable

period after written notice from the Company specifying such violations; or (ii)

conviction for (or plea of nolo contendere to) a felony involving moral

turpitude, or dishonesty with respect to the Company.

 

     (c)  GOOD REASON.  "Good Reason" means (i) the assignment to Employee of

any duties inconsistent in any material respect with Employee's position or any

material reduction in the scope of the Employee's authority and responsibility

(other than isolated, insubstantial action not taken in bad faith and which is

remedied by the Company upon notice from Employee, or as temporarily required

due to Employee's illness or injury); (ii) there is a reduction in Employee's

base compensation; (iii) the Company requires the Employee's principal place of

employment to be anywhere other than the Company's principal executive offices,

or there is a relocation of the Company's principal executive offices outside of

the Minneapolis, Minnesota metropolitan area; or (iv) the Company otherwise

fails to perform any of its material obligations to Employee.

 

     (b)  TERMINATION DATE.  "Termination Date" means the date on which the

Employee's 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 employment for Good Reason or the Employee's employment

is terminated by the Company for any reason other than for Cause (a "Change of

Control Termination"), then the Employee shall be entitled to the following

severance benefits:

 

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<PAGE>

      (a) TERMINATION PAYMENT.  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 [ONE] [TWO] times Employee's 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 Employee's employment has been of shorter duration) of the

Company immediately preceding the Change of Control Termination.

 

     (b)  ANNUAL BONUS.  If the Termination Date occurs before a cash bonus for

any preceding fiscal year has been paid, the Company shall pay to the Employee

the amount of the Employee's cash bonus for such preceding fiscal year as soon

as it is determinable and such amount shall be included in the determination of

the payment to be made pursuant to Paragraph 2(a).  Notwithstanding the

foregoing, no cash bonus shall be paid for any part of the fiscal year in which

the Termination Date occurs.

 

     3.   BENEFITS IN LIEU OF SEVERANCE PAY.  The severance benefits provided

for in paragraph 2 are in lieu of any benefits that would otherwise be provided

to the Employee under the Company's severance pay policy or practice and the

Employee shall not be entitled to any benefits under the Company's severance pay

policy or practice in the event that severance benefits are payable hereunder.

 

     4.   RIGHTS IN THE EVENT OF DISPUTE.   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 Employee's favor of any

such matter or upon payment of any judgment entered in the Employee's 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.

 

     5.   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

beneficiary may be entitled to receive under any other contract, plan or program

now or hereafter maintained by the Company, or its subsidiaries.

 

     6.   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 Employee's employment

with or without cause at any time.

 

     7.  LIMITATION IN ACTION.  Prior to the occurrence of a Change in Control,

Employee shall have no rights under this Agreement and the Board shall have the

power and the right, within its sole discretion to rescind, modify or amend this

Agreement without the consent of Employee.  In all other cases, and

notwithstanding the authority granted to the Board to exercise any discretion to

rescind, modify or amend this Agreement contained herein, the Board will not,

 

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<PAGE>

 

following a Change in Control, have the power or right to exercise such

authority or otherwise take any action that is inconsistent with the provisions

of this Agreement.

 

     8.   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

mutually acceptable to the Company and the Employee, such obligations have been

assumed by the successor as a matter of law.  The Employee's rights under this

Agreement shall inure to the benefit of, and shall be enforceable by, the

Employee's legal representative or other successors in interest, but shall not

otherwise be assignable or transferable.

 

     9.   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.

 

     10.  SURVIVAL.  The rights and obligations of the parties pursuant to this

Agreement shall survive the termination of the Employee's employment with the

Company to the extent that any performance is required hereunder after such

termination.

 

     11.  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.

 

     12.  NOTICES.  All notices under this Agreement shall be in writing and

shall be deemed effective when delivered in person (in the Company's 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.

 

     13.  AMENDMENTS AND CONSTRUCTION.  Except as set forth in Paragraph 7, 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 Agreement as of the

day and year first written above.

 

POLARIS INDUSTRIES INC.

 

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<PAGE>

 

 

By

   ---------------------------         -----------------------

                                           EMPLOYEE

 

   Its

       -----------------------