REPURCHASE AGREEMENT
Exhibit 10.1
EXECUTION VERSION
This REPURCHASE AGREEMENT (this “Agreement”) is made and entered into as of December
17, 2009 by and between Thor Industries, Inc., a Delaware corporation (the “Company”), and
the Estate of Xxxx X. X. Xxxxxxxx (“Stockholder”).
RECITAL
WHEREAS, in order to consummate an integrated plan to diversify Stockholder’s investment
holdings, Stockholder desires to sell 5,980,000 shares of common stock, $0.10 par value, of the
Company (the “Common Stock”), Stockholder has agreed to structure the transaction in the following
manner: (i) Stockholder has agreed, pursuant to Rule 144 under the Securities Act of 1933, as
amended, to sell to third party investors through a brokerage account at Credit Suisse Securities
(USA) LLC 2,000,000 shares of Common Stock for cash in the amount of $29.00 per share of Common
Stock and (ii) Stockholder hereby agrees to sell to the Company, and the Company hereby agrees to
purchase from Stockholder, 3,980,000 shares of Common Stock (the “Repurchased Shares”) at
$29.00 per share, or $115,420,000 (the “Aggregate Cash Consideration”).
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
the parties hereto agree as follows:
1. Repurchase. Subject to the terms and conditions set forth in this Agreement,
Stockholder hereby sells, assigns, transfers, conveys and delivers all its right, title and
interest in and to the Repurchased Shares to the Company free and clear of all liens, encumbrances,
pledges, options, warrants, rights of first refusal, claims, charges, restrictions or claims or
rights of third parties of any kind or nature (collectively, “Liens”). The Company hereby
repurchases and accepts delivery of the Repurchased Shares in exchange for the payment of the
Aggregate Cash Consideration. Stockholder hereby acknowledges and agrees that receipt of the
Aggregate Cash Consideration shall constitute complete satisfaction of all obligations or any other
sums due to such Stockholder with respect to repurchase of the Repurchased Shares.
2. Closing. The closing of the repurchase provided for herein (the “Closing”)
shall take place at the offices of Xxxxxx & Xxxxxxx LLP located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (or at such other place upon which the parties hereto may mutually agree). At the
Closing, the following shall occur:
a. Stockholder Deliveries. Stockholder shall surrender to the Company the stock
certificates (if any) representing the Repurchased Shares owned by Stockholder and shall deliver
all other documents and instruments reasonably necessary for the transfer of the Repurchased Shares
to the Company, including an appropriate stock power, duly endorsed in blank. With respect to the
Repurchased Shares that are to be delivered through the facilities of The Depository Trust Company
that are credited to or otherwise held in a securities account maintained by Stockholder,
Stockholder shall take such actions necessary to provide appropriate instruction to the relevant
financial institution or other entity with which Stockholder’s account is maintained to effect the
transfer of the Repurchased Shares from Stockholder’s account to an account at a financial
institution designated by the Company for the receipt of the Repurchased Shares so transferred. In
connection with any account to which the Repurchased Shares are credited or otherwise held,
Stockholder shall execute and deliver such other and
further documents or instruments necessary, in the reasonable opinion of the Company, to
effect a legally valid transfer to the Company hereunder.
b. Company Deliveries. The Company shall deliver to Stockholder the Aggregate Cash
Consideration by wire transfer of immediately available funds to an account designated in writing
by Stockholder to the Company prior to the Closing.
3. No Further Ownership Interest. From and after the Closing, Stockholder shall have
no further right or title to or interest in the Repurchased Shares or any dividends, distributions,
equity interests or other rights in respect thereof.
4. Representations and Warranties of Stockholder. Stockholder represents and warrants
to the Company as follows:
a. Title to Shares. As of the date hereof, Stockholder owns good and marketable title
to the Repurchased Shares and such Repurchased Shares are free and clear of all Liens. Except for
this Agreement, Stockholder has not entered into or agreed to be bound by any other arrangements or
agreements of any kind with any other Person with respect to the Repurchased Shares, including, but
not limited to, arrangements or agreements with respect to the acquisition or disposition thereof
or any interest therein or the voting of any such Repurchased Shares.
b. Binding Effect. This Agreement is a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws relating to or affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
c. Governmental Authorization; Third Party Consent. No approval, consent, compliance,
exemption, authorization, or other action by or notice to, or filing with, any governmental
authority or any other person in respect of any requirements of law is necessary or required by
Stockholder in connection with the execution, delivery or performance by Stockholder of this
Agreement, except for such approval, consent, compliance, exemption, authorization, or other action
which, if not obtained or made, would not reasonably be likely to prevent or materially delay
Stockholder from performing its obligations under this Agreement in all material respects.
d. Brokers or Finders. Except for Stockholder’s engagement of Credit Suisse
Securities (USA) LLC as an advisor in connection with the transactions contemplated by this
Agreement, Stockholder has not employed or entered into any agreement with, nor is Stockholder
subject to, any valid claim of any broker, finder, consultant, or other intermediary in connection
with the transactions contemplated by this Agreement who might be entitled to a fee or commission
in connection with such transactions.
e. Legal Proceedings. There are no legal proceedings pending or, to the knowledge of
Stockholder, threatened, to which Stockholder is or may be a party, that (a) challenge the validity
or enforceability of Stockholder’s obligations under this Agreement or (b) seek to prevent, delay
or otherwise would reasonably be expected to materially adversely affect the consummation by
Stockholder of the transactions contemplated hereby.
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5. Representations and Warranties of the Company. The Company represents and warrants
to Stockholder as follows:
a. Authority; Binding Effect. The Company is a corporation validly existing and in
good standing under the laws of the State of Delaware and has all requisite power and authority and
has taken all necessary action required for the due authorization, execution, delivery and
performance by the Company of this Agreement and the consummation of the transactions contemplated
herein. This Agreement is a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws
relating to or affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
b. No Violation. Neither the execution and delivery of this Agreement by the Company,
nor the repurchase of the Repurchased Shares owned by Stockholder pursuant to this Agreement, will
(i) result in a breach of its organizational documents, (ii) result in a default (or give rise to
any right of termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any material agreement, lease or other instrument or obligation to which the Company
is a party, except for such defaults (or rights of termination, cancellation or acceleration) as to
which requisite waivers or consents have been obtained and are in full force and effect or which
would not impair the Company’s ability to consummate the transactions contemplated by this
Agreement, or (iii) violate any order, writ, injunction or decree applicable to the Company or any
of the Company’s material assets.
c. Governmental Authorization; Third Party Consent. No approval, consent, compliance,
exemption, authorization, or other action by or notice to, or filing with, any governmental
authority or any other person in respect of any requirements of law is necessary or required by the
Company in connection with the execution, delivery or performance by the Company of this Agreement,
except for such approval, consent, compliance, exemption, authorization, or other action which, if
not obtained or made, would not reasonably be likely to prevent or materially delay the Company
from performing its obligations under this Agreement in all material respects.
d. Brokers or Finders. The Company has not employed or entered into any agreement
with, nor is the Company subject to, any valid claim of any broker, finder, consultant, or other
intermediary in connection with the transactions contemplated by this Agreement who might be
entitled to a fee or commission in connection with such transactions.
e. Exchange Act Reports. The Company’s reports filed with the Securities and Exchange
Commission (the “Commission”) pursuant to Section 13(a), 13(c) or 15(d) of the Securities
Exchange Act of 1934, as amended, and any amendment or supplement thereto, did not, when filed with
the Commission, and do not, as of the date hereof, contain an untrue statement of material fact or
omit to state a material fact necessary in order to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.
6. Affirmative Covenant. The parties hereto shall file income tax returns and other
required income tax filings consistent with treating the repurchase of the Repurchased Shares owned
by Stockholder pursuant to this Agreement as a payment in exchange for the Repurchased Shares
within the meaning of Section 302(a) of the Internal Revenue Code, as amended.
7. Miscellaneous.
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a. Amendment. This Agreement may not be amended or waived in any respect except by a
written agreement signed by the parties hereto.
b. Survival. Each of the representations, warranties, covenants and agreements
contained in this Agreement shall survive the Closing and continue in full force and effect in
accordance with its terms, but is subject to all applicable statutes of limitation, statutes of
repose and other similar defenses provided in law or equity.
c. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and thereof and shall supersede all
previous negotiations, commitments, agreements and understandings (both oral and written) with
respect to such subject matter.
d. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original and all of which, when taken together, shall constitute one
agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile
transmission or electronic image scan shall be effective as delivery of a manually executed
counterpart of this Agreement.
e. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
f. Expenses. Each party shall bear its own expenses and fees in connection with the
execution of this Agreement and the consummation of the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first written above.
| THOR INDUSTRIES, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Chairman | |||
| ESTATE OF XXXX X. X. XXXXXXXX |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Co-Executor | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Co-Executor | |||
