INDEMNIFICATION AGREEMENT
Exhibit 10.2
This Indemnification Agreement (this “Agreement”) is made as of this ___day of ___,
200___, by and between Thor Industries, Inc., a Delaware corporation (the “Company”), and
___, an individual (“Indemnitee”).
RECITALS
WHEREAS, the Certificate of Incorporation (the “Certificate”) and the bylaws (the “Bylaws”) of
the Company provide for the indemnification of the officers and directors of the Company to the
maximum extent permitted by the Delaware General Corporation Law, as amended (the “DGCL”);
WHEREAS, the Certificate, the Bylaws and the DGCL permit contracts between the Company and the
officers and directors of the Company with respect to indemnification of such officers and
directors;
WHEREAS, in accordance with the DGCL, the Company may purchase and maintain a policy or
policies of directors’ and officers’ liability insurance covering certain liabilities that may be
incurred by its officers or directors in the performance of their obligations to the Company;
WHEREAS, in order to induce Indemnitee to serve and/or continue to serve as an officer and/or
director of the Company, the Company desires that the Indemnitee shall be indemnified and advanced
expenses as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of Indemnitee’s service as an officer and/or director of the
Company after the date hereof, the Company and Indemnitee hereby agree as follows:
1. Certain Definitions Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings set forth below:
“Corporate Status” means the fact that a person is or was a director, officer, employee or
agent of the Company or an Enterprise. A Proceeding shall be deemed to have been brought by
reason of a person’s “Corporate Status” if it brought because of the status described in the
preceding sentence or because of any action or inaction on the part of such person in
connection with such status.
“Disinterested Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
“Enterprise” means the Company and any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in which Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary.
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“Expenses” shall include all attorney’s fees, disbursements and retainers, court costs,
transcript costs, fees of experts, witness fees, travel and deposition costs, printing and
binding costs, telephone charges, postage, delivery service fees, judgments, fines,
penalties, amounts paid in settlement and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to prosecute or
defend, investigating, settling, or appealing a Proceeding, or being prepared to be a
witness or otherwise participating in a Proceeding.
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither currently is, nor in the past five (5) years has
been, retained to represent: (i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any
other party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person
who, under the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an action to
determine Indemnitee’s rights under this Agreement.
“Proceeding” includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought by or in the right of
the Company or otherwise and whether civil, criminal, administrative or investigative, in
which Indemnitee was, is or will be involved as a party or otherwise, including one pending
on or before the date of this Agreement. For purposes of this definition, the term
“threatened” shall be deemed to include, but not be limited to, Indemnitee’s good faith
belief that a claim or other assertion may lead to institution of a Proceeding.
“Reviewing Party” means the person or persons selected to make the determination of the
availability of indemnification pursuant to Section 5.3 hereof.
2. Indemnification.
2.1 Proceedings Not By or In The Right Of the Company. If Indemnitee was or is a party or
is threatened to be made a party to any Proceeding, other than a Proceeding by or in the
right of the Company, by reason of Indemnitee’s Corporate Status, the Company shall hold
harmless and indemnify Indemnitee to the fullest extent authorized or permitted by the
provisions of the DGCL, the Certificate and the Bylaws, as such may be amended from time to
time (but in the case of such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than the law permitted the Company to
provide prior to such amendment). against all Expenses to the extent actually and
reasonably incurred by Indemnitee or on his or her behalf in connection with such
Proceeding, but only if Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company and, that with respect
to any criminal Proceeding, he or she had no reasonable cause to believe his or her conduct
was unlawful.
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2.2 Proceedings By or In Right of the Company. If Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the Company, by reason
of Indemnitee’s Corporate Status, the Company shall hold harmless and indemnify Indemnitee
to the fullest extent authorized or permitted by the provisions of the DGCL, the Certificate
and the Bylaws, as such may be amended from time to time (but in the case of such amendment,
only to the extent that such amendment permits the Company to provide broader
indemnification rights than the law permitted the Company to provide prior to such
amendment), against all Expenses to the extent actually and reasonably incurred by
Indemnitee or on his or her behalf in connection with such Proceeding, but only if
Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company; provided, however, that, if applicable law so
provides, no indemnification against such Expenses shall be made in respect of any claim in
such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company
unless, and only to the extent that, the Court of Chancery of the State of Delaware, or the
court in which such Proceeding was brought, shall determine that, despite the adjudication
of liability Indemnitee is fairly and reasonably entitled to indemnity for such Expenses.
3. Advancement of Expenses.
3.1 The Company shall advance all Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding prior to the final disposition of such Proceeding upon
receipt of an undertaking by or on behalf of Indemnitee to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the Company.
Any advances and undertakings to repay pursuant to this Section 3.1 shall be
unsecured and interest free and shall provide that, if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law with respect to
such Proceeding, Indemnitee shall not be required to reimburse the Company for any advance
of Expenses in respect of such Proceeding until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed).
3.2 Advances of Expenses pursuant to Section 3 hereof shall be made within two (2)
business days after the receipt by the Company of a written statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding, and accompanied by or preceded by the undertaking
referred to in Section 3.1 above.
4. Contribution in the Event of Joint Liability.
4.1 Whether or not the indemnification provided in Section 2 hereof is available, in
respect of any Proceeding in which the Company is jointly liable with Indemnitee (or
would be if joined in such Proceeding), the Company shall pay, in the first instance, the
entire amount of any judgment or settlement of such Proceeding without requiring Indemnitee
to contribute to such payment and the Company hereby waives and relinquishes any right of
contribution it may have against Indemnitee. The Company
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shall not enter into any
settlement of any action, suit or proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a
full and final release of all claims and Proceedings asserted against Indemnitee.
4.2 Without diminishing or impairing the obligations of the Company set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all
or any portion of any judgment or settlement in any Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall
contribute to the amount of Expenses actually and reasonably incurred and paid or payable by
Indemnitee in proportion to the relative benefits received by the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly liable with
Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on
the other hand, from the transaction from which such Proceeding arose; provided,
however, that the proportion determined on the basis of relative benefit may, to the
extent necessary to conform to law, be further adjusted by reference to the relative fault
of the Company and all officers, directors or employees of the Company other than Indemnitee
who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the
one hand, and Indemnitee, on the other hand, in connection with the events that resulted in
such Expenses, as well as any other equitable considerations which applicable law may
require to be considered. The relative fault of the Company and all officers, directors or
employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or
would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand,
shall be determined by reference to, among other things, the degree to which their actions
were motivated by intent to gain personal profit or advantage, the degree to which their
liability is primary or secondary, and the degree to which their conduct was active or
passive.
4.3 The Company shall fully indemnify and hold Indemnitee harmless from any claims of
contribution which may be brought by other officers, directors or employees of the Company
who may be jointly liable with Indemnitee.
5. Procedures and Presumptions for the Determination of Entitlement to Indemnification.
5.1 Timing of Payments. All payments of Expenses and other amounts by the Company to the
Indemnitee pursuant to this Agreement shall be made as soon as practicable after a written
demand therefor by Indemnitee is presented to the Company, but in no event later than (i)
thirty (30) days after such demand is presented or (ii) such later date as may be permitted
for the determination of entitlement to indemnification pursuant to Section 5.7
hereof, if applicable; provided, however, that advances of Expenses shall be
made within the time provided in Section 3.2 hereof.
5.2 Request for Indemnification. Whenever Indemnitee believes that he or she is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to
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determine whether and to what extent
Indemnitee is entitled to indemnification. Indemnitee shall submit his or her claim for
Indemnification within a reasonable time, not to exceed two (2) years after any judgment,
order, settlement, dismissal, arbitration award, conviction, acceptance of a plea of nolo
contendere (or its equivalent) or other full or partial final determination or disposition
of the Proceeding (with the latest date of the occurrence of any such event to be considered
the commencement of the two (2) year period. The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the board of directors of the
Company (the “Board of Directors”) in writing that Indemnitee has requested indemnification.
5.3 Reviewing Party. Upon written request by Indemnitee for indemnification pursuant to the
first sentence of Section 5.2 hereof, a determination, if required by applicable
law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case by
one of the following three methods, which shall be at the election of Indemnitee: (1) by a
majority vote of the Disinterested Directors, even though less than a quorum, (2) by
Independent Counsel in a written opinion, or (3) by vote of the majority of the stockholders
of the Company.
5.4 Determination by Independent Counsel. If the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 5.3 hereof,
the Independent Counsel shall be selected as provided in this Section 5.4. The
Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board of Directors). Indemnitee or the Company, as the case
may be, may, within ten (10) days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case may be, a written objection to
such selection; provided, however, that such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in this Agreement, and the objection shall set forth with particularity
the factual basis of such assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection is made and substantiated,
the Independent Counsel selected may not serve as Independent Counsel unless and until such
objection is withdrawn or a court has determined that such objection is without merit. If,
within thirty (30) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 5.2 hereof, no Independent Counsel shall have
been selected or an Independent Counsel shall have been selected but an objection thereto
shall have been properly made and remained unresolved, either the Company or Indemnitee may
petition the Court of Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection which shall have been made by the Company or
Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as the court
shall designate, and the person with respect to whom all objections are so resolved or the
person so appointed shall act as Independent Counsel under Section 5.3 hereof. The
Company shall pay any and all fees
and expenses incurred by such Independent Counsel in connection with acting pursuant to
Section 5.3 hereof, and the Company shall pay all fees and expenses incident to the
procedures of this Section 5.4, regardless of the manner in which such Independent
Counsel was selected or appointed.
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5.5 Burden of Proof. In making a determination with respect to entitlement to
indemnification hereunder, the Reviewing Party shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion, by clear and convincing evidence. In
making a determination with respect to entitlement to indemnification hereunder which under
this Agreement or applicable law requires a determination of Indemnitee’s good faith and/or
whether Indemnitee acted in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company, the Reviewing Party shall presume that
Indemnitee has at all times acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company. Anyone seeking to
overcome this presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence. Indemnitee shall be deemed to have acted in good faith if
Indemnitee’s action is based on the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel for the
Enterprise or on information or records given or reports made to the Enterprise by an
independent certified public accountant or by an appraiser or other expert selected with
reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to
act, of any other director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to indemnification under this
Agreement.
5.6 No Presumption in Absence of a Determination or As Result of an Adverse Determination;
Presumption Regarding Success. Neither the failure of any Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by any Reviewing Party that Indemnitee has
not met such standard of conduct or did not have such belief, prior to the commencement of
legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be
indemnified under this Agreement under applicable law, shall be a defense to Indemnitee’s
claim or create a presumption that Indemnitee has not met any particular standard of conduct
or did not have any particular belief. In addition, the termination of any Proceeding by
judgment, order, settlement (whether with or without court approval) or conviction, or upon
a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by this Agreement or applicable
law. In the event that any Proceeding to which Indemnitee is a party is resolved in any
manner other than by final adverse judgment (as to which all rights of appeal therefrom have
been exhausted or lapsed) against Indemnitee (including, without limitation, settlement of
such Proceeding with or without payment of money or other consideration) it shall be
presumed that Indemnitee has been successful on the merits or otherwise in such
Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and
the burden of persuasion, by clear and convincing evidence.
5.7 Timing of Determination. If the Reviewing Party shall not have made a determination
within thirty (30) days after the date of Indemnitee’s request for indemnification pursuant
to Section 5.2 hereof, the requisite determination of entitlement
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to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such indemnification,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee’s statement not materially misleading, in connection with
the request for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 30 day period may be extended for a reasonable
time, not to exceed an additional fifteen (15) days, if the person, persons or entity making
the determination with respect to entitlement to indemnification in good faith requires such
additional time for the obtaining of or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing provisions of this Section
5.7 shall not apply if the determination of entitlement to indemnification is to be made
by the stockholders pursuant to Section 5.3 of this Agreement and if (A) within
fifteen (15) days after the date of Indemnitee’s request for indemnification pursuant to
Section 5.2 hereof the Board of Directors or the Disinterested Directors, if
appropriate, resolve to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within seventy-five (75) days after
such request and such determination is made thereat, or (B) a special meeting of
stockholders is called within fifteen (15) days after such request for the purpose of making
a determination of entitlement to indemnification, such meeting is held for such purpose
within sixty (60) days after having been so called and such determination is made thereat.
5.8 Cooperation. Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from disclosure
and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any Independent Counsel, member of the Board of Directors, or stockholder of
the Company shall act reasonably and in good faith in making a determination under this
Agreement of the Indemnitee’s entitlement to indemnification. Any costs or expenses
(including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s entitlement to indemnification) and
the Company shall indemnify Indemnitee therefor and shall hold Indemnitee harmless
therefrom.
6. Liability Insurance. The Company shall obtain and maintain a policy or policies of insurance
with a reputable insurance company providing the Indemnitee with coverage in such amount as shall
be determined by the Board of Directors for losses from acts or omissions of Indemnitee, and to
ensure the Company’s performance of its indemnification obligations under this Agreement. In all
policies of director and officer liability insurance obtained by the Company, Indemnitee shall be
named as an insured party in such manner as to provide
Indemnitee with the same rights and benefits as are afforded to the most favorably insured
directors or officers, as applicable, of the Company. Any reductions to the amount of director and
officer liability insurance coverage maintained by the Company as of the date hereof shall be
subject to the approval of the Board of Directors. Notwithstanding the foregoing, the Company
shall have no obligation to obtain or maintain such insurance if the Board of Directors determines
in good faith that such insurance is not reasonably available, if the premium costs for
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such
insurance are disproportionately high compared to the amount of coverage provided, or if the
coverage provided by such insurance is limited by exclusions so as to provide an insufficient
benefit. The Company shall promptly notify Indemnitee of any such determination not to provide
insurance coverage. In the event that the Company does maintain such insurance for the benefit of
Indemnitee, the right to indemnification and advancement of Expenses as provided herein shall only
apply to the extent that Indemnitee has not been indemnified and actually reimbursed pursuant to
such insurance.
7. Remedies of Indemnitee.
7.1 In the event that (i) a determination is made pursuant to Section 5 of this
Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 3.2 of this
Agreement, (iii) no determination of entitlement to indemnification shall have been made
within the time period specified in Section 5.7 of this Agreement, or (iv) payment
of indemnified amounts is not made within the applicable time periods specified in
Section 5.1 of this Agreement, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of competent jurisdiction,
of his or her entitlement to such indemnification. The Company shall not oppose
Indemnitee’s right to seek any such adjudication.
7.2 In the event that a determination shall have been made pursuant to Section 5.3
of this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section 7 shall be conducted in all respects
as a de novo review on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination under Section 5.3 hereof.
7.3 If a determination shall have been made pursuant to Section 5.3 of this
Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 7,
absent a prohibition of such indemnification under applicable law.
7.4 In the event that Indemnitee, pursuant to this Section 7, seeks a judicial
adjudication of his or her rights under, or to recover damages for breach of, this
Agreement, or to recover under any directors’ and officers’ liability insurance policies
maintained by the Company, the Company shall pay on his behalf, in advance, any and all
Expenses actually and reasonably incurred by him in such judicial adjudication, regardless
of whether Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of expenses or insurance recovery.
7.5 The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the procedures and presumptions of this Agreement
are not valid, binding and enforceable and shall stipulate in any such court that the
Company is bound by all the provisions of this Agreement.
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8. Non-Exclusivity, Survival of Rights, Subrogation; No Duplicative Payments; Certain
Amendments.
8.1 The rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled under
applicable law, the Certificate, the Bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement
or of any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate
Status prior to such amendment, alteration or repeal. To the extent that a change in the
DGCL, whether by statute or judicial decision, permits greater indemnification than would be
afforded currently under the Bylaws and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change. No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other right or
remedy.
8.2 In the event of any payment by the Company under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with
respect thereto and Indemnitee, shall execute all papers required and take all action
necessary to secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
8.3 The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise
actually received such payment under any insurance policy, contract, agreement or otherwise.
8.4 In the event the Company enters into an indemnification agreement with another officer
or director, as the case may be, containing terms more favorable to the indemnitee than the
terms contained herein (and absent special circumstances justifying such more favorable
terms), Indemnitee shall be afforded the benefit of such more favorable terms and such more
favorable terms shall be deemed incorporated by reference herein as if set forth in full
herein. As promptly as practicable following the execution thereof, the Company shall (a)
send a copy of the agreement containing more favorable terms to Indemnitee, and (b) prepare,
execute and deliver to Indemnitee an amendment to this Agreement containing such more
favorable terms.
9. Exceptions to Right of Indemnification. Notwithstanding any other provision of this
Agreement, Indemnitee shall not be entitled to indemnification under this Agreement:
9.1 with respect to any Proceeding brought by Indemnitee, or any claim therein, unless (a)
the bringing of such Proceeding or making of such claim shall have been
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approved by the
Board of Directors or (b) such Proceeding is being brought by the Indemnitee to assert,
interpret or enforce his or her rights under this Agreement or any other agreement or
insurance policy or under the Company’s Certificate or Bylaws now or hereafter in effect.
9.2 for Expenses incurred by Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having jurisdiction over such
action finally determines (and all rights of appeal therefrom have been exhausted or lapsed)
that necessary assertions made by Indemnitee as a basis for such action were not made in
good faith or were frivolous, or (ii) by or in the name of the Company to enforce or
interpret this Agreement, if a court having jurisdiction over such action finally determines
(and all rights of appeal therefrom have been exhausted or lapsed) that such each of the
material defenses asserted by Indemnitee was made in bad faith or was frivolous.
9.3 for Expenses and other liabilities arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934, or any
similar state or successor statute.
10. Duration of Agreement. All agreements and obligations of the Company contained herein
shall continue during the period Indemnitee is an officer or director of the Company (or is or was
serving at the request of the Company as a director, officer, employee or agent of another
Enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any Proceeding
(or any proceeding commenced under Section 7 hereof) by reason of his Corporate Status,
whether or not Indemnitee is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as an officer or
director of the Company or any other Enterprise at the Company’s request.
11. Miscellaneous.
11.1 Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon
being served with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to indemnification
covered hereunder. The failure to so notify the Company shall not relieve the Company of
any obligation which it may have to Indemnitee under this Agreement or otherwise, unless and
only to the extent that such failure or delay materially prejudices the Company.
11.2 No Employment Agreement. Nothing contained in this Agreement shall be construed as
giving Indemnitee any right to be retained in the employment of the Company or any of its
subsidiaries or affiliated entities.
11.3 Entire Agreement. This Agreement and the certificates, documents, instruments and
writings that are delivered pursuant hereto constitutes the entire agreement and
understanding of the Company and Indemnitee in respect of its subject matters and
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supersedes
all prior understandings, agreements, or representations by or among the Company and
Indemnitee, written or oral, to the extent they relate in any way to the subject matter
hereof.
11.4 Successors. All of the terms, agreements, covenants, representations, warranties, and
conditions of this Agreement are binding upon, and inure to the benefit of and are
enforceable by, the Company and the Indemnitee and their respective successors and permitted
assigns.
11.5 Assignment. Neither the Company nor Indemnitee may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written approval of the
other; provided, however, that the Company shall assign all (but not less than all) of its
rights, obligations and interests hereunder to any direct or indirect successor to all or
substantially all of the business or assets of the Company by purchase, merger,
consolidation or otherwise and shall cause such successor to be bound by and expressly
assume the terms and provisions hereof. Notwithstanding anything to the contrary contained
herein, this Agreement will inure to the benefit of and be enforceable by Indemnitee’s
personal or legal representatives, executors, administrators, successors, heirs, distributes
and legatees.
11.6 Notices. All notices, requests, demands, claims and other communications hereunder will
be in writing. Any notice, request, demand, claim or other communication hereunder will be
deemed duly given if (and then three business days after) it is sent by registered or
certified mail, return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Company:
Thor Industries, Inc.
Attn: Xxxxxx Xxxxxxx
Thor Industries, Inc.
Attn: Xxxxxx Xxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxx 00000
Xxxxxxx Xxxxxx, Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Fax: (000) 000-0000
Copy to (which will not constitute notice):
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
Attn: Xxxx Xxxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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If to Indemnitee: | ||||||
Attn: | ||||||
[Insert address] | ||||||
Tel: | ( ) | |||||
Fax: | ( ) | |||||
Copy to (which will not constitute notice): | ||||||
[Insert name of Indemnitee’s law firm] | ||||||
Attn: | ||||||
[Insert address] | ||||||
Tel: | ( ) | |||||
Fax: | ( ) | |||||
Either party may send any notice, request, demand, claim, or other communication hereunder
to the intended recipient at the address set forth above using any other means (including
personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other communication will be
deemed to have been duly given unless and until it actually is received by the intended
recipient. Either party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other Parties notice in
the manner herein set forth.
11.7 Specific Performance. The Company and Indemnitee each acknowledges and agrees that the
other would be damaged irreparably if any provision of this Agreement is not performed in
accordance with its specific terms or is otherwise breached. Accordingly, each party agrees
that the other party will be entitled to an injunction or injunctions to prevent beaches of
the provisions of this Agreement and to enforce specifically this Agreement and its terms
and provisions in any action instituted in any
court of the United States or any state thereof having jurisdiction over the parties and
the matter, in addition to any other remedy to which they may be entitled at law or in
equity.
11.8 Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed an original but all of which together will constitute one and the same
instrument.
11.9 Headings. The article and section headings contained in this Agreement are inserted
for convenience only and will not affect in any way the meaning or interpretation of this
Agreement.
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11.10 Governing Law. This Agreement and the performance of the parties’ obligations
hereunder will be governed by and construed in accordance with the laws of the State of
Delaware, without giving effect to any choice of law principles thereof.
11.11 Amendments and Waivers. No amendment, modification, replacement, termination,
cancellation or waiver of any provision of this Agreement will be valid, unless the same
will be in writing and signed by each of the parties hereto. No waiver by either party of
any default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any way any
rights arising because of any prior or subsequent such occurrence.
11.12 Severability. The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or
enforceability of the other provisions hereof; provided that if any provision of this
Agreement, as applied to any party or to any circumstance, is adjudged by a court,
arbitrator, or mediator of competent jurisdiction not to be enforceable in accordance with
its terms, the parties agree that the court, arbitrator, or mediator making such
determination will have the power to modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific words or phrases, and in
its reduced form, such provision will then be enforceable and will be enforced.
11.13 Expenses. Except as otherwise expressly provided in this Agreement, each party will
bear its own costs and expenses incurred in connection with the preparation, execution and
performance of this Agreement, including all fees and expenses of agents, representatives,
financial advisors, legal counsel and accountants.
11.14 Construction. The parties have participated jointly in the negotiation and drafting
of this Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties and no presumption or
burden of proof will arise favoring or disfavoring either party because of the authorship of
any provision of this Agreement. Any reference to any federal, state, local, or foreign law
will be deemed also to refer to such law as amended and all rules and regulations
promulgated thereunder, unless the context requires otherwise. The words “include,”
“includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns
in masculine, feminine, and neuter genders will be construed to
include any other gender, and words in the singular form will be construed to include the
plural and vice versa, unless the context otherwise requires. The words “this Agreement,”
“herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless expressly so limited. The
parties hereto intend that each representation, warranty, and covenant contained herein will
have independent significance. If either party has breached any representation, warranty,
or covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the party has not breached will not detract from or
mitigate the fact that the party is in breach of the first representation, warranty, or
covenant.
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11.15 Remedies. Except as expressly provided herein, the rights, obligations and remedies
created by this Agreement are cumulative and in addition to any other rights, obligations,
or remedies otherwise available at law or in equity. Except as expressly provided herein,
nothing herein will be considered an election of remedies.
11.16 Electronic Signatures.
(a) Notwithstanding the Electronic Signatures in Global and National Commerce Act (15
U.S.C. Sec. 7001 et. seq.), the Uniform Electronic Transactions Act, or any
other law relating to or enabling the creation, execution, delivery, or recordation of any
contract or signature by electronic means, and notwithstanding any course of conduct engaged
in by the parties, no party will be deemed to have executed this Agreement or other document
contemplated thereby (including any amendment or other change thereto) unless and until such
party shall have executed this Agreement or other document on paper by a handwritten
original signature or any other symbol executed or adopted by such party with current
intention to authenticate this Agreement or such other document contemplated.
(b) Delivery of a copy of this Agreement or such other document bearing an original
signature by facsimile transmission (whether directly from one facsimile device to another
by means of a dial-up connection or whether mediated by the worldwide web), by electronic
mail in “portable document format” (“.pdf”) form, or by any other electronic means intended
to preserve the original graphic and pictorial appearance of a document, will have the same
effect as physical delivery of the paper document bearing the original signature, provided
a copy bearing an original signature on paper is subsequently physically delivered.
“Originally signed” or “original signature” means or refers to a signature that has not been
mechanically or electronically reproduced.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
hereinabove written.
THOR INDUSTRIES, INC. |
||||
By: | ||||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Chief Financial Officer | |||
Indemnitee Name: |
||||
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