Exhibit 10.2
INDEMNIFICATION AGREEMENT
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 reaso
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