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Exhibit 10.2 Thor Industries, Inc.
Amended and Restated
Deferred Compensation Plan Effective January 1, 2005
The Thor Industries, Inc. Amended and Restated Deferred
Compensation Plan (the " Plan ") was adopted by the
Employer effective as of June 1, 2000 and was restated as of
February 1, 2003. The Company hereby amends and restates the
Plan effective as of January 1, 2005 to, among other things,
comply with Section 409A of the Internal Revenue Code of 1986,
as amended (the " Code "). The purpose of the Plan is
to provide key selected employees of the Employer with the benefits
of an unfunded, non-qualified deferred compensation program. The
Plan is intended to constitute "a plan that is unfunded and
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees" within the meaning of Sections 201(20),
301(a)(3) and 401(a)(1) of the Employee Retirement Income Security
Act of 1974, as amended (" ERISA "), is intended to
be exempt from the provisions of Parts 2, 3 and 4 of Title I of
ERISA, and shall be interpreted and administered to the extent
possible in a manner consistent with that intent.
When used in the Plan, the following words shall have the
meanings set forth below, unless the context clearly indicates
otherwise:
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(a)
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Accounts : The bookkeeping accounts maintained by
the Employer, with appropriate sub accounts, to reflect
Contributions to the Plan, adjusted for earnings and losses, in
accordance with the Plan. Accounts shall be bookkeeping entries
only and shall not constitute an actual allocation of any assets of
the Employer, or be deemed to create any trust, custodial account
or deposit with respect to any assets which may be utilized to
satisfy the obligation of the Employer to provide the benefits
specified in the Plan.
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(b)
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Beneficiary : Any person who is designated by a
Participant to receive payment of benefits under the Plan, to the
extent available, after the Participant’s death. The
Participant may specify his or her Beneficiaries on a form approved
by the Committee and may make such changes to his or her
Beneficiary designation at any time, pursuant to procedures adopted
by the Committee. Notwithstanding anything in the Plan to the
contrary, if the Participant designates his or her spouse as a
Beneficiary of benefits payable hereunder, and the
Participant’s marriage to that spouse is later terminated
(whether by divorce, annulment, dissolution or otherwise), the
Participant’s designation of his or her spouse as a
Beneficiary shall be null and void, and the portion of the
Participant’s benefits that would, but for this provision be
payable to the Participant’s spouse will be payable as
designated in the Participant’s Beneficiary designation, as
if the spouse had predeceased the Participant.
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(c)
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Board : The Board of Directors of Thor Industries,
Inc.
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(d)
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Bonus. A cash payment made by the Employer to an
Eligible Employee, in addition to such Eligible Employee’s
Compensation, in order to recognize specific accomplishments.
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(e)
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Bonus Deferrals : Those elective Bonus
Contributions made to the Plan pursuant to Part IV(b) of the
Plan.
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(f)
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Change in Control : The occurrence of any one of
the following events:
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(i) any
"person" (as such term is defined in Section 3(a)(9) of the
Securities Exchange Ace of 1934 (the "Exchange Act" )
and as used in Sections 13 (d)(3) and 14(d)(2) of the Exchange
Act) is or becomes a "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Thor Industries, Inc. (the "Company"
for purposes of this definition) representing 50% or more of the
combined voting power of the Company’s then outstanding
securities eligible to vote for the election of the Board (the
"Company Voting Securities "); provided ,
however , that the event described in this paragraph
(i) shall not be deemed to be a Change in Control by virtue of
any of the following acquisitions: (A) by the Company or any
subsidiary, (B) by any employee benefit plan sponsored or
maintained by the Company or any subsidiary, (C) by any
underwriter temporarily holding securities pursuant to an offering
of such securities, (D) pursuant to a Non-Control Transaction (as
defined in paragraph (iii)), or (E) a transaction (other than
one described in (iii) below) in which Company Voting
Securities are acquired from the Company, if a majority of the
Incumbent Board (as defined below) approves a resolution providing
expressly that the acquisition pursuant to this clause
(E) does not constitute a Change in Control under this
paragraph (i);
(ii) individuals
who, on the Effective Date, constitute the Board (the
"Incumbent Board" ) cease for any reason to
constitute at least a majority thereof, provided that any person
becoming a director subsequent to the Effective Date, whose
election or nomination for election was approved by a vote of at
least two-thirds of the directors comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of
the Company in which such person is named as a nominee for
director, without objection to such nomination) shall be considered
a member of the Incumbent Board; provided , however ,
that no individual initially elected or nominated as a director of
the Company as a result of an actual or threatened election contest
with respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any person
other than the Board shall be deemed to be a member of the
Incumbent Board;
(iii) the
shareholders of the Company approve a merger, consolidation, share
exchange or similar form of corporate reorganization of the Company
or any such type of transaction involving the Company or any of its
subsidiaries (whether for such transaction or the issuance of
securities in the transaction or otherwise) (a "Business
Combination" ), unless, immediately following such Business
Combination: (A) more than 50% of the total voting power of
the publicly traded corporation resulting from such Business
Combination (including, without limitation, any corporation which
directly or indirectly has beneficial ownership of 100% of the
Company Voting Securities or all or substantially all of the assets
of the Company and its subsidiaries) eligible to elect directors of
such corporation would be represented by shares that were Company
Voting Securities immediately prior to such Business Combination
(either by remaining outstanding or being converted), and such
voting power would be in substantially the same proportion as the
voting power of such Company Voting Securities immediately prior to
the Business Combination, (B) no person (other than any
publicly traded holding company resulting from such Business
Combination, any employee benefit plan sponsored or maintained by
the Company (or the corporation resulting from such Business
Combination), or any person which beneficially owned, immediately
prior to such Business Combination, directly or indirectly, 50% or
more of the Company Voting Securities (a "Company 50%
Stockholder" ) would become the beneficial owner, directly
or indirectly, of 50% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the
corporation resulting from such Business Combination and no Company
50% Stockholder would increase its percentage of such total voting
power, and (C) at least a majority of the members of the board
of directors of the corporation resulting from such Business
Combination would
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be members of the Incumbent Board at the time of the
Board’s approval of the execution of the initial agreement
providing for such Business Combination (a "Non-Control
Transaction" ); or
(iv) the
shareholders of the Company approve a plan of complete liquidation
or dissolution of the Company or the sale or disposition of all or
substantially all of the Company’s assets. Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur
solely because any person acquires beneficial ownership of more
than 50% of the Company Voting Securities as a result of the
acquisition of Company Voting Securities by the Company which, by
reducing the number of Company Voting Securities outstanding,
increases the percentage of shares beneficially owned by such
person; provided , that , if a Change in Control
would occur as a result of such an acquisition by the Company (if
not for the operation of this sentence), and after the
Company’s acquisition such person becomes the beneficial
owner of additional Company Voting Securities that increases the
percentage of outstanding Company Voting Securities beneficially
owned by such person, then a Change in Control shall occur.
Notwithstanding any other provision contained in this
Part II(f) or in the Plan, an event shall not constitute a
Change in Control unless such event constitutes a "change in
control event" within the meaning of Treasury Regulations
Section 1.409A-3(i)(5).
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(g)
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Code : The U.S. Internal Revenue Code of 1986, as
amended and any authoritative guidance and/or regulations
promulgated thereunder.
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(h)
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Committee : The Committee as provided for in the
Plan, which shall have the authority to direct the operations of
the Plan. If Thor Industries, Inc. does not appoint members of the
Committee, then Thor Industries, Inc. shall be the administrator of
the Plan, and direct its day to day operations.
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(i)
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Compensation : An Employee’s wages,
salaries, fees for professional services and other amounts received
(whether or not the amount is paid in cash) for personal services
actually performed in the course of employment with the Employer to
the extent that such amounts are includible in gross income,
including, but not limited to, commissions paid to salespersons,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips or those items excludable
under the definition of compensation under Treasury
Regulation Section 1.415-2(d)(3). While Bonuses can be
deferred under the Plan, they do not constitute Compensation. For
purposes of the Plan, Compensation will be determined before
Elective Deferrals and other salary reduction amounts that are not
included in the Participant’s gross income under
Sections 125, 402(e), 402(h) or 403(b) of the Code.
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(j)
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Compensation Deferrals: Those elective
Compensation deferrals made to the Plan pursuant to Part IV(a)
of the Plan.
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(k)
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Contributions : Collectively, Compensation
Deferrals, Bonus Deferrals, Matching Contributions, Discretionary
Incentive Contributions, and Employer Special Contributions.
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(l)
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Disability : A Participant is either
(a) unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months;
or (b) by reason of any medically determinable physical or
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mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than
twelve (12) months, receiving income replacement benefits for
a period of not less than three (3) months under an accident
and health plan covering employees of the Employer; or
(c) determined to be totally disabled by the Social Security
Administration.
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(m)
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Discretionary Incentive Contributions : Those
discretionary Employer contributions to the Plan made pursuant to
Part IV(c) of the Plan.
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(n)
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Effective Date : June 1, 2000.
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(o)
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Elective Deferrals : A Compensation Deferral or
Bonus Deferral made under the Plan pursuant to a
Participant’s Elective Deferral Agreement.
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(p)
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Elective Deferral Agreement : An irrevocable
election of the Participant to defer a portion of his or her
Compensation and/or Bonus pursuant to the Plan. Such Elective
Deferral Agreement shall (i) be in writing, signed by the
Participant prior to the start of the Plan Year to which it relates
(or such earlier date set forth in the Elective Deferral Agreement
for a particular Plan Year); provided , that , a
person who becomes a new Participant in the Plan may, within
30 days following his or her selection as a Participant, elect
to defer his or her Compensation and/or Bonus earned after the date
of such election so long as such Participant was not eligible to
participate in any other plan that is required to be aggregated
with the Plan for purposes of Section 409A of the Code;
(ii) take effect as of the start of the following Plan Year
(or the date the Participant commences participation in the Plan,
if later); (iii) except as otherwise provided herein, be
irrevocable; and (iv) be on a form and submitted as prescribed
by the Committee. Any Elective Deferral Agreement in effect as of
the last day of a Plan Year shall automatically renew for each
succeeding Plan Year unless a proper election modifying or
terminating the prior Elective Deferral Agreement is submitted to
the Committee during the period of time designated by the
Committee.
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(q)
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Eligible Employee : An employee who is a member of
a select group of management or highly compensated employees,
within the meaning of ERISA, as determined by the Committee.
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(r)
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Employer : (i) Thor Industries, Inc. and
(ii) any member of Thor Industries, Inc.’s control group
within the meaning of U.S. Treasury Regulation Section
1.409A-1(h)(3), as such may be modified or amended from time to
time, by applying the "at least 50 percent" provisions
thereof, which is designated by the Committee as an employer whose
employees will be eligible to participate in the Plan.
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(s)
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Employer Special Contribution : Those Employer
contributions made pursuant to Part IV(e) of the Plan and
allocated pursuant to the provisions of an agreement entered into
between the Employer and a Participant.
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(t)
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Employment Commencement Date : The date on which
an employee is first employed by the Employer.
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(u)
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ERISA: The Employee Retirement Income Security Act
of 1974, as amended and the regulations promulgated thereunder.
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(v)
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Fiscal Quarter. The fiscal quarter of Thor
Industries, Inc.
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(w)
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Investment Fund : Any of the investment funds
selected by the Committee into which amounts credited to Accounts
may be deemed to be invested as set forth on Exhibit A
attached hereto, as may be amended from time to time.
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(x)
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Matching Contributions : Those Employer matching
contributions made pursuant to Part IV(d) of the Plan,
allocated as a matching contribution to the Compensation Deferral
or Bonus Deferral Contributions.
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(y)
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Participant : An Eligible Employee who has been
selected to participate in the Plan and who has Contributions
credited to his or her Account. An individual who has an Account in
the Plan and is due benefits under the Plan (notwithstanding any
vesting or forfeiture provisions contained herein) shall continue
to be a Participant despite no longer being an Eligible
Employee.
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(z)
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Plan : This non-qualified deferred compensation
plan established by Thor Industries, Inc., which is intended to be
a "top hat" plan, as defined in Department of Labor Regulation
§ 23.20.104-23, and exempt from the provisions of Parts 2, 3
and 4 of Title I of ERISA.
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(aa)
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Plan Year: The twelve month period ending on
December 31.
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(bb)
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Separation From Service: The meaning shall be as
set forth in U.S. Treasury
Regulation Section 1.409A-1(h), including the default
presumptions thereunder.
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(cc)
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Specified Employee : The meaning shall be as set
forth in Section 409A(a)(2)(B)(i) of the Code.
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(dd)
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Trust Agreement: An agreement entered into between
the Trustee and the Employer providing for fiduciary services in
connection with a grantor trust established in connection with the
Plan.
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(ee)
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Trustee: The trustee designated in the Trust
Agreement, or its successors and assigns. The Trustee shall not be
a party to the Plan, and its responsibilities shall be governed
exclusively by the Trust Agreement.
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(ff)
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Unforeseeable Emergency: A severe financial
hardship to the Participant resulting from an illness or accident
of the Participant, the Participant’s spouse, or a dependent
(as defined in Section 152(a) of the Code) of the Participant, loss
of the Participant’s property due to casualty, or similar
extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant.
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(gg)
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Year of Service: A consecutive 12-month period of
continuous service in the employ of the Employer commencing on the
employee’s Employment Commencement Date.
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II
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Eligibility and Participation
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A.
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Eligibility : From among those employees
designated as Eligible Employees, the Board (or its designee) shall
select those who shall become Participants in the Plan. The Board
may impose such terms and conditions upon such an employee prior to
becoming a Participant, which shall be
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communicated to the employee, in writing, prior to commencement
of participation. An Eligible Employee shall commence Participation
as of any date specified by the Board. Eligibility criteria may be
revised at the discretion of the Employer; provided ,
that , no employee shall be an Eligible Employee unless he
or she is a member of a select group of management or highly
compensated employees within the meaning of ERISA. Status as an
Eligible Employee or Participant in one Plan Year does not
guarantee such status in any subsequent Plan Year.
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B.
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Participation : A Participant shall commence
participation in the Plan upon completion of an appropriate
Elective Deferral Agreement or allocation of a Contribution to his
or her Account. An employee shall remain a Participant for so long
as he or she is entitled to receive benefits under the Plan.
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The Employer shall establish an Account, for bookkeeping
purposes only, for each Participant in the Plan. Contributions made
pursuant to Part IV hereof shall be credited to each
Participant’s Account at the times, and in the amounts,
determined by the Committee.
To the extent applicable, the Employer shall credit each
Participant’s Account with:
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a)
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Compensation Deferrals : The amount of any Compensation
deferred at the election of a Participant pursuant to an Elective
Deferral Agreement with respect to any Plan Year. The Employer
shall specify in the Elective Deferral Agreement any minimum or
maximum percentage
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