REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of
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November 9, 2001, by and among THOR INDUSTRIES, INC., a Delaware corporation
(the "Company"), and certain holders of shares of capital stock of the Company
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whose names are listed at the foot of this Agreement (collectively, the
"Shareholders" and, together with the Company, are referred to herein,
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individually, as a "Party" and collectively, as the "Parties").
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W I T N E S S E T H:
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WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of November 9, 2001, by and among Thor Acquisition Corp., a Delaware
corporation ("Acquisition Subsidiary"), the Company, Keystone RV Company, an
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Indiana corporation ("Keystone"), and the Shareholders (as amended from time to
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time, the "Merger Agreement"), the Company has issued shares of its common
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stock, par value $.10 per share ("Common Stock"), to the Shareholders as partial
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consideration for the transactions contemplated by the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement, the Company has agreed to
file with the SEC (as defined below), as soon as practicable following the date
hereof, a Registration Statement on Form S-3 covering the resale by certain
Holders (as defined below) of their Registrable Securities (as defined below);
WHEREAS, pursuant to the Merger Agreement, the Company has agreed to
file with the SEC one or more additional Registration Statements on Forms S-3
covering the resale by the other Holders of their Registrable Securities; and
WHEREAS, the execution and delivery of this Agreement by the Company
and each of the Shareholders is a condition to the consummation of the
transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements and conditions set forth in this Agreement and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS
1.1. For purposes of this Agreement, the terms set forth
below shall have the following meanings:
"Affiliate" shall mean any Person (as defined below) that,
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directly or indirectly, through one or more intermediaries controls, is
controlled by, or is under common control with, such other Person.
"Blackout Period" shall have the meaning set forth in Section
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4.1(b).
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"Business Day" shall mean those days on which lending
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institutions in the State of New York are not required or permitted to be
closed.
"Common Stock" shall have the meaning set forth in the recitals.
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"Company Indemnified Parties" shall have the meaning set forth
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in Section 7.2.
"Company Notice" shall have the meaning set forth in Section
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3.2(a).
"Control", "controlled by" and "under common control with", as
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used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through ownership of voting securities or otherwise.
"Dispose" or "Disposition" shall mean, with respect to the
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Registrable Securities, any assignment, transfer, pledge, hypothecation or
encumbrance, any offer or grant of any option for or participation in, any
issuance of any derivative security based on, or any put, call or similar
arrangement with respect thereto.
"Effectiveness Period" shall mean, as the case may be, the
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Initial Registration Statement Effectiveness Period or the Subsequent
Registration Statement Effectiveness Period, each as described in Section 3.
"Escrowed Shares" shall mean those Merger Shares that, from time
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to time, are to be deposited and retained in escrow pursuant to Section 2.05(a)
of the Merger Agreement and that certain Escrow Agreement dated as of the date
hereof by and among The Chase Manhattan Bank and certain parties to the Merger
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
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as amended.
"Holder" shall mean each of the Shareholders and their
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respective permitted transferees.
"Holder Indemnified Parties" shall have the meaning set forth in
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Section 7.1.
"Holder Notice" shall have the meaning set forth in Section
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3.2(b).
"Holders' Special Counsel" shall mean Hutchins, Wheeler &
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Dittmar, A Professional Corporation, or any other firm named in writing by the
Shareholder Representatives and delivered to the Company.
"Indemnified Party" shall have the meaning set forth in
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Section 7.3.
"Indemnifying Party" shall have the meaning set forth in Section
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7.3.
"Initial Registration Statement" shall have the meaning set
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forth in Section 3.1(a).
"Initial Registration Statement Effectiveness Period" shall have
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the meaning set forth in Section 3.1(c).
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"Losses" shall have the meaning set forth in Section 7.1.
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"Merger Agreement" shall have the meaning set forth in the
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recitals.
"Merger Closing Date" shall mean November 9, 2001.
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"Merger Shares" shall mean the shares of Common Stock that were
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issued to the Shareholders on the Merger Closing Date.
"NYSE" shall have the meaning set forth in Section 4.1(j).
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"Participating Holder" shall mean a Holder who has elected to
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include its Registrable Securities in a Registration Statement.
"Person" means any person (including, without a limitation a
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"person" as defined in Section 13(d)(3) of the Exchange Act), firm, corporation,
company, partnership, trust, incorporated or unincorporated association, limited
liability company, joint venture, joint stock company, government (or an agency
or political subdivision thereof) or other entity of any kind, and shall include
any successor (by merger or otherwise) of any such entity.
"Register", "registered" and "registration" shall refer to a
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registration effected by preparing and filing a registration statement or
statements or similar documents in compliance with the Securities Act and
pursuant to Rule 415 under the Securities Act, or any successor rule providing
for the offering of securities on a continuous or delayed basis ("Rule 415"),
and the declaration or ordering of effectiveness of such registration statement
or document by the SEC.
"Registrable Securities" shall mean (i) the Unrestricted Merger
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Shares held by the Holders and (ii) the shares of Common Stock issued or
issuable with respect to the Unrestricted Merger Shares referred to in clause
(i) by virtue of any stock split, stock combination, stock dividend or
reclassification, or pursuant to a merger, consolidation, reorganization,
recapitalization or other similar event; provided, however, shares of capital
stock referred to in clauses (i) and (ii) that are considered to be Registrable
Securities shall cease to be Registrable Securities (A) upon the sale thereof
pursuant to a registration statement declared effective by the SEC, (B) upon the
sale thereof pursuant to Rule 144 (as defined below), (C) when such securities
cease to be outstanding, or (D) upon the sale thereof in a private transaction
where the transferor's rights under this Agreement are not assigned or are
improperly assigned pursuant to the terms and conditions of this Agreement.
"Registration Statement" means a Registration Statement on Form
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S-3 (or any successor form) filed with the SEC pursuant to the Securities Act
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Initial Registration Statement and each Subsequent
Registration Statement and all amendments and supplements to any such
Registration Statements, including post-effective amendments, in each case
including all exhibits thereto and all materials incorporated by reference
therein.
"Restricted Shareholder" shall have the meaning given to such
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term in the Stock Restriction Agreement.
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"Rule 144" shall mean Rule 144 promulgated under the Securities
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Act (or any successor rule).
"Rule 144(c)" shall mean Rule 144(c) promulgated under the
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Securities Act (or any successor rule).
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as
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amended.
"Shareholder Representatives" shall mean Joseph F. Trustey and
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H. Coleman Davis, III.
"Stock Restriction Agreement" shall mean that certain Stock
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Restriction Agreement, dated as of the date hereof, by and among the Company and
certain of the Shareholders.
"Subsequent Registration Statement" shall have the meaning set
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forth in Section 3.2(a).
"Subsequent Registration Statement Effectiveness Period" shall
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have the meaning set forth in Section 3.2(e).
"Summit Holders" shall mean, collectively, (i) Summit Ventures
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V, L.P., a Delaware limited partnership, (ii) Summit Investors III, L.P., a
Delaware limited partnership, (iii) Summit V Advisors Fund, L.P., a Delaware
limited partnership, (iv) Summit V Companion Fund, L.P., a Delaware limited
partnership, and (v) Summit V Advisors Fund, (QP), L.P., a Delaware limited
partnership, and their respective permitted transferees.
"Unrestricted Merger Shares" shall mean the Merger Shares held
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by the Holders that are not subject to the transfer restrictions set forth in
the Stock Restriction Agreement.
2. TRANSFERS OF THE REGISTRABLE SECURITIES AND THE REGISTRATION
RIGHTS
Notwithstanding the registration rights granted by the Company
to the Holders pursuant to this Agreement, the Disposition of such Registrable
Securities and the registration rights relating thereto shall be in all respects
subject to the transfer restrictions set forth in Section 10.3 and in the Stock
Restriction Agreement, as applicable.
3. REGISTRATION RIGHTS
3.1. Initial Registration Statement.
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(a) Not later than two (2) Business Days following the Merger
Closing Date, the Company shall file with the SEC a Registration Statement
covering the registration of the Registrable Securities held by all of the
Shareholders other than the Restricted Shareholders (the "Initial Registration
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Statement").
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(b) The Company shall use its reasonable best efforts to cause the
SEC to declare the Initial Registration Statement effective pursuant to Rule 415
as promptly as practicable following its filing.
(c) The Company shall keep the Initial Registration Statement
effective at all times until the earlier of (i) such time as all of the
Registrable Securities registered thereunder have been disposed of in accordance
with the intended method of disposition set forth in such Initial Registration
Statement declared effective by the SEC, and (ii) such date that is twelve (12)
months after the effective date of the Initial Registration Statement (the
period ending on such time or date in clauses (i) and (ii) of this Section
3.1(c), the "Initial Registration Statement Effectiveness Period").
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3.2. Subsequent Registration Statements.
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(a) Not later than ninety (90) days prior to each anniversary of the
Merger Closing Date, the Company shall give written notice to each Holder (each,
a "Company Notice") of its intention to file a Registration Statement with the
SEC on or about such anniversary date covering the registration of the
Registrable Securities held by the Holders (each, a "Subsequent Registration
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Statement").
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(b) Within forty-five (45) days following receipt of a Company
Notice, each Holder electing to participate in such registration shall deliver
written notice to the Company (each, a "Holder Notice") of his intention to have
all or a specified number of the Registrable Securities held by such Holder
registered under the Subsequent Registration Statement that is the subject of
the Company Notice.
(c) The Company shall use its reasonable best efforts to prepare and
file with the SEC each Subsequent Registration Statement (on or about the
anniversary date identified in the respective Company Notice) that registers the
Registrable Securities specified in the Holder Notice.
(d) The Company shall use its reasonable best efforts to cause the
SEC to declare each Subsequent Registration Statement effective pursuant to Rule
415 as promptly as practicable following its filing.
(e) The Company shall keep each Subsequent Registration Statement
effective at all times until the earlier of (i) such time as all of the
Registrable Securities registered thereunder have been disposed of in accordance
with the intended methods of disposition set forth in the respective Subsequent
Registration Statement declared effective by the SEC, and (ii) such date that is
six (6) months after the effective date of such Subsequent Registration
Statement (the period ending on such time or date in clauses (i) and (ii) of
this Section 3.2(e), the "Subsequent Registration Statement Effectiveness
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Period").
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(f) The Company's obligations to file Registration Statements and
any amendments or supplements thereto under this Section 3.2 shall terminate
following the termination of the Subsequent Registration Statement Effectiveness
Period applicable to the Subsequent Registration Statement filed on or about the
fifth anniversary of this Agreement.
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3.3. Limitation. Notwithstanding the provisions of this Section 3,
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the Company shall not be obligated to include any Registrable Securities that a
Holder desires to include in a Registration Statement pursuant to Section 3 or
maintain the effectiveness of any Registration Statement pursuant to this
Section 3, if all of the Registrable Securities that such Holder desires to
include or all of the Registrable Securities held by such Holder then registered
under such Registration Statement, as applicable, may, in the opinion of the
Company's counsel, be sold in a three (3) month period without registration
under the Securities Act pursuant to Rule 144, and such Registrable Securities
represent less than one percent (1%) of all outstanding shares of the Company's
capital stock.
4. REGISTRATION PROCEDURES
4.1. Registration Statement. Whenever registration of the
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Registrable Securities is required pursuant to this Agreement, the Company shall
use its reasonable best efforts to effect the registration of such Registrable
Securities in accordance with the intended method of distribution thereof, as
promptly as practicable, and in connection with any such request, the Company
shall:
(a) Participation in Preparation. Permit the Shareholder
Representatives and the Holders' Special Counsel to review and comment on each
Registration Statement, prospectus, amendment or supplement, as the case may be,
a reasonable period of time prior to the filing of same with the SEC.
(b) Effectiveness; Blackout Periods. Keep the Registration
Statements effective pursuant to Rule 415 for the respective Effectiveness
Periods set forth in Sections 3.1(a) and 3.2(e); provided, however, if at any
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time after the effective date of a Registration Statement, the Company, based
upon the advice of its counsel, determines in good faith that maintaining the
effectiveness of a Registration Statement would require disclosure of non-public
material information that is not in the best interests of the Company to
disclose, then the Company may require the Participating Holders not to make any
sale or sales of Registrable Securities pursuant to the respective Registration
Statement until the Company gives the Participating Holders notice that they can
re-commence sales of the Registrable Securities (the period commencing on the
date specified in the blackout notice and ending on the date specified in the
re-commencement notice, the "Blackout Period"); provided, that in no event shall
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any single Blackout Period exceed sixty (60) days; and provided, further, that
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the Company shall not invoke a Blackout Period more than three (3) times or for
more than one hundred twenty (120) days in the aggregate in any three hundred
sixty (360) day period.
(c) Amendments. Prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to each Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep such Registration Statement continuously effective
and cause the related prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act at all
times during the respective Effectiveness Period, and, during such period,
comply with the provisions of the Securities Act and the Exchange Act applicable
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to the Company in order to permit the disposition by the Participating Holders
of the Registrable Securities subject to the respective Registration Statement.
(d) Copies. Promptly furnish to each Participating Holder one
copy of the Registration Statement registering its Registrable Securities and
any amendment thereto, each prospectus and each amendment or supplement relating
thereto, including all financial statements and schedules, and, to the extent so
requested, all documents incorporated by reference in such Registration
Statement, and all exhibits thereto and such number of copies of a prospectus
and all amendments and supplements thereto and such other documents as each
Participating Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Participating Holder.
(e) Blue Sky. Prior to any public offering of Registrable
Securities, the Company shall use its reasonable best efforts to register and
qualify (or seek an exception from registration or qualification) such
Registrable Securities under the securities or "blue sky" laws of such
jurisdictions that each Participating Holder may reasonably request in writing,
prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
times during the respective Effectiveness Period, take such other actions as may
be reasonably necessary to maintain such registrations and qualifications and
the effectiveness thereof at all times during the respective Effectiveness
Period, and take all other actions reasonably necessary or advisable to qualify
the Registrable Securities for sale by the Participating Holders in such
jurisdictions; provided, however, the Company shall not be required in
connection therewith or as a condition thereto (x) to qualify generally to do
business or file a general consent to service of process, or (y) subject itself
to material taxation in any jurisdiction where it would not otherwise be
required to qualify or to consent to service of process or to become subject to
taxation but for the provisions set for in this Section 4.1(e).
(f) 10b-5 Notification. Promptly notify each Participating
Holder of the occurrence of any event as a result of which the prospectus
included in a Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing or which requires the Company to amend
or supplement such Registration Statement due to the receipt by the Company of
new or additional information about a Participating Holder or such Participating
Holder's intended plan of distribution of his, her or its Registrable
Securities; and, in such event, the Company, subject to Section 4.1(b), (x)
shall promptly supplement or amend such Registration Statement to correct such
untrue statement or omission or to reflect such new or additional information,
so that, as thereafter delivered by any Participating Holder to any purchaser of
such securities, such prospectus, as supplemented or amended, shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances under which they were made, and (y) shall
promptly furnish to each Participating Holder that number of copies of such
supplement to or amendment of such prospectus as any Participating Holder may
reasonably request.
(g) Notification of Stop-Orders; Suspensions of Qualification and
Exemptions. Promptly notify each Participating Holder of the issuance by the SEC
of any stop-order or any notification with respect to the suspension of the
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qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and the Company agrees to use its reasonable best
efforts to (x) prevent the issuance of any such stop-order, and in the event of
such issuance, to obtain the withdrawal of any such stop order and (y) obtain
the withdrawal of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any Registrable Securities
included in such Registration Statement for sale in any jurisdiction at the
earliest practicable date.
(h) Earnings Statements. Make generally available to its security
holders as soon as practicable, but not later than ninety (90) days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the Securities Act) covering a twelve (12)
month period beginning not later than the first (1st) day of the Company's
fiscal quarter next following the effective date of the respective Registration
Statement.
(i) Due Diligence. Make available, at reasonable times and places,
for inspection by a Participating Holder and the Holders' Special Counsel for a
reasonable period prior to the filing of a Registration Statement, all documents
incorporated by reference in such Registration Statement, each prospectus
included therein, and each amendment thereof or supplement thereto, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, as shall be reasonably necessary to enable each
Participating Holder to conduct a reasonable investigation within the meaning of
the Securities Act; provided that any records, information or documents that are
designated by the Company in writing as confidential shall be kept confidential
by such person unless disclosure of such records, information or documents is
required by court or administrative order or any governmental authority having
jurisdiction.
(j) Listing Requirements. Use its reasonable best efforts to
secure and maintain the listing of the Registrable Securities on the New York
Stock Exchange (the "NYSE") and on any other securities exchange on which
similar securities issued by the Company are then listed.
(k) Stock Certificates. Cooperate with each Participating Holder
to facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legends) representing Registrable Securities and enable such
certificates to be in such denominations or amounts as any Participating Holder
may reasonably request and be registered in such names as such Participating
Holder may reasonably request. The Company shall give appropriate instructions
to the Company's transfer agent to cause the transfer agent to deliver
certificates representing the Registrable Securities without any restrictive
legends upon receipt of the Participating Holder's certification that such
Registrable Securities have been sold pursuant to a Registration Statement
contemplated hereby. The Company shall require that each Participating Holder's
counsel deliver to the Company's transfer agent an opinion in customary form as
may be required to remove such restrictive legend.
(l) Agreements. Take all other reasonable actions (including
entering into customary agreements) necessary to expedite and facilitate the
disposition by the Participating Holders of Registrable Securities pursuant to a
Registration Statement.
4.2. Rule 144 Reporting; Removal of Legends.
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(a) With a view to making available the benefits of Rule 144 and
certain other rules and regulations of the SEC that may permit the sale of the
Registrable Securities to the public without registration, the Company covenants
that it shall:
(i) make and keep public information regarding the Company
available as those terms are understood and defined in
Rule 144;
(ii) file with the SEC in a timely manner all reports and
other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to any Holder forthwith, upon written request, a
written statement by the Company as to its compliance
with the reporting provisions contained in Rule 144(c)
under the Securities Act, a copy of the most recent
annual or quarterly report of the Company, and such other
reports and documents so filed as any Holder may
reasonably request in availing itself of any rule or
regulation of the SEC allowing a Holder to sell any of
the Registrable Securities without registration.
(b) The Company shall give appropriate instructions to the Company's
transfer agent to cause the transfer agent to deliver certificates representing
the Registrable Securities without any restrictive legends upon receipt of the
Holder's certification that such Registrable Securities have been sold pursuant
to Rule 144. Each Holder shall cause its legal counsel to deliver to the
Company's transfer agent an opinion in customary form as may be required to
remove such restrictive legends following a sale pursuant to Rule 144.
5. OBLIGATIONS OF THE PARTICIPATING HOLDERS AND HOLDERS
5.1. Each Participating Holder and Holder, as the case may
be, shall:
(a) furnish to the Company such information regarding the intended
plan of distribution of its Registrable Securities that pursuant to applicable
law is required to be included in a Registration Statement or any amendment
thereto;
(b) upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 4.1(a) or 4.1(f), forthwith
discontinue disposition of Registrable Securities pursuant to the respective
Registration Statement until such Participating Holder's receipt of the
re-commencement notice contemplated by Section 4.1(a) or copies of the
supplemented or amended prospectus contemplated by Section 4.1(f), and, if so
directed by the Company, such Participating Holder will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such Participating Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice under Sections 4.1(a) or 4.1(f)
(other than as a result of the receipt by the Company of new or additional
information about a Participating Holder or such Participating Holder's intended
plan of distribution), the Company shall extend the Effectiveness Period by the
number of days during the period from and including the date of the giving of
such notice pursuant to Sections 4.1(a) or 4.1(f) to and including the date when
each Participating Holder shall have received the re-commencement notice
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contemplated by Section 4.1(a) or copies of the supplemented or amended
prospectus contemplated by Section 4.1(f); and
(c) promptly notify the Company after effecting the sale of any
Registrable Securities pursuant to a Registration Statement or otherwise.
5.2. Each Holder shall comply at all times with the Company's trading
policy for affiliates, as such policy may be amended and in effect from time to
time, if, in the opinion of the Company's counsel, such Holder is deemed to be
an affiliate of the Company as such term is defined in Rule 12b-2 promulgated
under the Exchange Act.
6. EXPENSES
All expenses incident to the Company's performance of or compliance with
the registration obligations set forth in Sections 3 and 4 of this Agreement,
including, without limitation, all registration, qualification and filing fees,
fees and expenses of compliance with securities or "blue sky" laws (including
fees and disbursements of counsel in connection with "blue sky" qualifications
of the Registrable Securities), printing expenses, messenger and delivery
expenses, expenses incurred in connection with securing and maintaining the
listing of the Registrable Securities on the NYSE or any other securities
exchange on which similar securities issued by the Company are then listed, fees
and disbursements of counsel for the Company and its independent certified
public accountants (including the expenses of any special audit or "comfort"
letters required by or incident to such performance) will be borne by the
Company; provided, however, the Company shall not have any obligation to pay the
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fees and disbursements of the Holders' Special Counsel.
7. INDEMNIFICATION
7.1. Indemnification by the Company. The Company agrees to
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indemnify and hold harmless, to the fullest extent permitted by law, each
Participating Holder and his respective Affiliates and each Person who controls
(within the meaning of the Securities Act) any of such Persons (collectively,
"Holder Indemnified Parties") from and against any and all losses, claims,
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damages, expenses (including, without limitation, reasonable fees of counsel) or
other liabilities (collectively, "Losses") to which any such Holder Indemnified
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Party may become subject under the Securities Act, Exchange Act, any other
federal law, any state or common law or any rule or regulation promulgated
thereunder or otherwise, insofar as such Losses are resulting from or arising
out of or based upon any untrue, or alleged untrue, statement of a material fact
contained in any Registration Statement, prospectus or preliminary prospectus
(as amended or supplemented) or any document incorporated by reference in any of
the foregoing or resulting from or arising out of or based upon any omission, or
alleged omission, to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading.
Notwithstanding the foregoing, the Company shall not be liable to any Holder
Indemnified Party for any Losses that arise out of or are based upon (x) written
information provided by such Holder Indemnified Party expressly for use in the
Registration Statement, (y) sales of Registrable Securities by a Holder
Indemnified Party to a person to whom there was not sent or given, at or before
the written confirmation of such sale, a copy of the prospectus (excluding
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documents incorporated by reference) or the prospectus as then amended or
supplemented (excluding documents incorporated by reference) and the Losses of
such Holder Indemnified Party resulting from an untrue statement or omission of
a material fact contained in such preliminary prospectus which was corrected in
the prospectus (or the prospectus as then amended or supplemented), or (z) any
offer or sale of Registrable Securities during a Blackout Period or during the
period that sales of the Registrable Securities are required to be discontinued
pursuant to Section 5.1(b). Notwithstanding the foregoing, such indemnity
obligation shall remain in full force and effect regardless of any investigation
made by or on behalf of the Holder Indemnified Parties and shall survive the
transfer of Registrable Securities by such Holder Indemnified Parties. The
indemnity contained contemplated by this Section 7 shall not apply to amounts
paid in settlement of any such Loss if such settlement is effected without the
consent of the Company.
7.2. Indemnification by the Participating Holders. Each
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Participating Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, and its directors, officers, partners, employees, advisors
and agents, their respective Affiliates and each Person who controls (within the
meaning of the Securities Act or the Exchange Act) any of such Persons
(collectively, the "Company Indemnified Parties") from any Losses to which such
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Company Indemnified Party may become subject under the Securities Act, Exchange
Act, any other federal law, any state or common law or any rule or regulation
promulgated thereunder or otherwise, insofar as such Losses are resulting from
or arising out of or based upon any untrue, or alleged untrue, statement of a
material fact contained in any Registration Statement, prospectus or preliminary
prospectus (as amended or supplemented) or any document incorporated by
reference in any of the foregoing or resulting from or arising out of or based
upon any omission, or alleged omission, to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus, in light of the circumstances under which they were
made), not misleading, but only to the extent that such untrue statement or
alleged untrue statement, omission or alleged omission is made in such
Registration Statement, prospectus or preliminary prospectus in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Participating Holder and expressly intended for use in such
Registration Statement, prospectus or preliminary prospectus. Notwithstanding
the foregoing, the liability of any Participating Holder under this Section 7.2
shall be limited to the amount of the net proceeds received by such
Participating Holder in the sale giving rise to such liability. The foregoing
indemnity obligation shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company Indemnified Parties and shall
survive the transfer of Registrable Securities by such Participating Holder.
7.3. Conduct of Indemnification Proceedings. Any persons entitled to
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indemnification hereunder (each, an "Indemnified Party") agrees to give prompt
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written notice to the indemnifying party (each, an "Indemnifying Party") after
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the receipt by such person of any written notice of the commencement of any
action, suit, proceeding or investigation or threat thereof for which such
person will claim indemnification or contribution pursuant to this Agreement
(but the failure to give such notice will not affect the right to
indemnification or contribution hereunder unless and to the extent the
Indemnifying Party is materially prejudiced by such failure) and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party and payment of all
reasonable fees and expenses (regardless of whether it is ultimately determined
that an Indemnified Party is entitled to indemnification hereunder). Such
11
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party, unless the employment
of such counsel shall have been specifically authorized in writing by the
Indemnifying Party, the Indemnifying Party shall have failed to assume the
defense and employ counsel reasonably satisfactory to the Indemnified Party or
the named parties to any such action (including any impleaded parties) include
both such Indemnified Party and the Indemnifying Party and such Indemnified
Party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Indemnifying Party (in which case, the Indemnifying Party shall
not have the right to assume the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Party
shall not, in connection with any one such action, or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all such Indemnified Parties, which firm (and local counsel) shall be designated
in writing by the Indemnified Parties and that all such reasonable fees and
expenses shall be reimbursed as they are incurred). An Indemnifying Party shall
not settle, compromise or consent to the entry of any judgment in any proceeding
without the Indemnified Party's prior written consent, unless the terms of such
settlement, compromise or consent include an unconditional release of each
Indemnified Party from all liability or loss arising out of such proceeding. The
rights afforded to any Indemnified Party hereunder shall be in addition to any
rights that such Indemnified Party may have at common law, by separate agreement
or otherwise.
7.4. Contribution.
------------
(a) If for any reason the indemnification provided for in this
Section 7 is unavailable, or is insufficient, to hold harmless an Indemnified
Party in respect of any Losses, then the Indemnifying Party, in lieu of
indemnifying the Indemnified Party, shall contribute to the amount paid or
payable by the Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and the Indemnified Party on the other. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, was made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the Indemnifying Party's and
Indemnified Party's relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
Party as a result of the Losses or other liabilities referred to above shall be
deemed to include, subject to the limitations set forth in Sections 7.1 and 7.2,
any legal or other fees or expenses reasonably incurred by such Party in
connection with any investigation or proceeding. The liability of any Holder
Indemnified Party under this Section 7.4 shall be limited to the amount of the
net proceeds received by such Holder Indemnified Party.
(b) The Parties agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of 11(f) of
12
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(c) If indemnification is available under this Section 7, each
Indemnifying Party shall indemnify each Indemnified Party to the full extent
provided in Sections 7.1 and 7.2, as the case may be, without regard to the
relative fault of said Indemnifying Party or Indemnified Party or any other
equitable consideration provided for in this Section 7.4.
8. REMEDIES
In case any one or more of the covenants and/or agreements set forth in
this Agreement shall have been breached by any Party hereto, the Party or
Parties entitled to the benefit of such covenants or agreements may, except as
may otherwise be expressly provided in this Agreement, proceed to protect and
enforce their rights either by suit in equity and/or by action at law,
including, but not limited to, an action for damages as a result of any such
breach and/or an action for specific performance of any such covenant or
agreement contained in this Agreement. The rights, powers and remedies of the
Parties under this Agreement are cumulative and not exclusive of any other
right, power or remedy which such Parties may have under any other agreement or
law. No single or partial assertion or exercise of any right, power or remedy of
a Party shall preclude any other or further assertion or exercise thereof.
9. NOTICES
Any notice required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
Party to be notified, on the next Business Day after delivery to a nationally
recognized overnight courier service, when sent by confirmed facsimile if sent
during normal business hours of the recipient, or if not, then on the next
Business Day, or five (5) days after deposit with the United States Post Office,
by registered or certified mail, postage prepaid, and addressed to the Party to
be notified at the address or facsimile number indicated below for such party,
or at such other address as such Party may designate upon written notice to the
other Parties (except that notice of change of address shall be deemed given
upon receipt). Telephone numbers and e-mail addresses are provided herein for
convenience only, and communications by such means shall not constitute
effective notice hereunder.
(a) In the case of the Company:
Thor Industries, Inc.
419 West Pike Street
Jackson Center, Ohio 54334
Attn: President
Facsimile: 937-596-6539
Telephone: 937-596-6849
13
With a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
Attn: Alan Siegel
Steven H. Scheinman
Facsimile: 212-872-1002
Telephone: 212-872-1000
Email: asiegel@akingump.com
sscheinman@akingump.com
(b) In the case of the Shareholder Representatives:
H. Coleman Davis, III
c/o Keystone RV Company
17400 Hackberry Drive
Goshen, Indiana 46526
Facsimile: 219-642-3281
Telephone: 219-642-1508
E-mail: coled@keystonerv.com
and
Joseph F. Trustey
c/o Summit Partners
600 Atlantic Avenue
Suite 2800
Boston, MA 02210
Facsimile: 617-824-1100
Telephone: 617-824-1000
E-mail: jtrustey@summitpartners.com
In each case, with a copy to:
Hutchins, Wheeler & Ditmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
Attn: James Westra, Esq.
Marilyn French, Esq.
Fascimile: 617-951-1295
Telephone: 617-951-6600
Email: jxw@hutch.com
mxf@hutch.com
(c) In the case of the Holders, at the addresses set forth
on the signature pages attached hereto.
14
10. MISCELLANEOUS
10.1. Entire Agreement. This Agreement, together with the Stock
----------------
Restriction Agreement and the Merger Agreement, constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, between the Parties with
respect to the subject matter hereof.
10.2. Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by an instrument in writing and signed by the Party against
whom such amendment or waiver is sought to be enforced. The waiver by any Party
of a breach of any provision of this Agreement shall not operate or be construed
as a further or continuing waiver of such breach or as a waiver of any other or
subsequent breach. No failure on the part of any Party to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by any Party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
10.3. Successors and Assigns. Subject to the transfer restrictions
----------------------
set forth herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
Parties; provided, however, the Holders may not transfer any of the registration
rights granted hereunder with respect to any Registrable Securities, except (a)
in connection with the Disposition of such Registrable Securities (and if
applicable, in accordance with the Stock Restriction Agreement) and (b) in
compliance with the following conditions: (i) the transferee shall agree in
writing that it is bound by the terms of this Agreement and, if applicable, the
Stock Restriction Agreement and the Escrow Agreement, and (ii) the Company is
given prompt written notice by such Holder of such Disposition, stating the name
and address of the transferee and identifying the number of Registrable
Securities that are the subject of the transfer.
10.4. Governing Law. This Agreement, including the validity hereof
-------------
and the rights and obligations of the Parties hereunder, the performance of the
transactions and obligations of the Parties hereunder, and all amendments and
supplements hereof and all waivers and consents hereunder, shall be construed in
accordance with and governed by the domestic substantive laws of the State of
New York without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.
10.5. Severability. If any provisions of this Agreement as applied
------------
to any Party or to any circumstance shall be adjudged by a court to be invalid
or unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances or the
validity or enforceability of this Agreement.
10.6. Captions. The headings and captions used in this Agreement are
--------
used for convenience only and are not to be considered in
construing or interpreting this Agreement.
15
10.7. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.8. Several Obligations. The obligations of the Holders herein
--------------------
are several and not joint. No Holder shall be responsible for the performance or
failure on the part of any other Holder to perform his, her or its obligations
hereunder.
10.9. Interpretation. This Agreement shall be construed reasonably
--------------
to carry out its intent without presumption against or in favor of any Party.
10.10. Consent to Jurisdiction and Service of Process. Each Holder, for
----------------------------------------------
itself,its personal representatives, legatees, heirs and assigns, hereby
consents to the personal jurisdiction of the courts of the County and State of
New York and of the United States District Court for the Southern District of
New York, each as may have competent jurisdiction, with respect to any dispute
or controversy arising under or in connection with this Agreement and agrees
that process issued out of any such court or in accordance with the rules of
practice of such court may be served by mail or other form of substituted
service to such Holder at its address as provided herein, and that any actions
therein may be consolidated in a single action. Each Holder also agrees not to
bring any dispute or controversy arising under or in connection with this
Agreement in any other court. Each Holder waives any defense of inconvenient
forum to the maintenance of any dispute or controversy so brought and waives any
bond, surety, or other security that may be required of any other party hereto
with respect to such dispute or controversy. Nothing contained herein shall be
deemed to prevent the Company from effecting service of process upon any Holder
in any other manner permitted by law or from commencing any action in any other
court having competent jurisdiction.
10.11. Certain References. Whenever the context may require, any
------------------
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa. The terms "herein", "hereof" or
"hereunder" or similar terms as used in this Agreement refer to this entire
Agreement and not to the particular provision in which the term is used. Unless
otherwise stated, all references herein to Sections, subsections or other
provisions are references to Sections, subsections or other provisions of this
Agreement.
16
IN WITNESS WHEREOF, the Parties hereto have entered into this
Agreement as of the date first written above.
COMPANY: THOR INDUSTRIES, INC.
By: /s/ Wade F. B. Thompson
--------------------------------
Name: Wade F. B. Thompson
Title: President
SHAREHOLDERS: SUMMIT INVESTORS III, L.P.
By: /s/ Joseph F. Trustey
--------------------------------
Name: Joseph F. Trustey
Title: General Partner
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Joseph F. Trustey
--------------------------------
Name: Joseph F. Trustey
Title: Member
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners, LLC
Its General Partner
By: /s/ Joseph F. Trustey
--------------------------------
Name: Joseph F. Trustey
Title: Member
SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners, LLC
Its General Partner
By: /s/ Joseph F. Trustey
--------------------------------
Name: Joseph F. Trustey
Title: Member
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ Joseph F. Trustey
--------------------------------
Name: Joseph F. Trustey
Title: Member
Address for the Summit Shareholders:
c/o Summit Partners
600 Atlantic Avenue
Suite 2800
Boston, MA 02210
/s/ H. Coleman Davis, III
--------------------------------
H. Coleman Davis, III
Address: 3819 Augusta Lane
Elkhart, IN 46517
/s/ Ronald J. Fenech
-------------------------------
Ronald J. Fenech
Address: 11390 CR 14
Middlebury, IN 46540
/s/ William C. Fenech
--------------------------------
William C. Fenech
Address: 57119 Bluff Crest Drive
Elkhart, IN 46514
/s/ Robert E. Gaff, Jr.
--------------------------------
Robert E. Gaff, Jr.
Address: 54729 Streeter Lane
Elkhart, IN 46514
/s/ Tonja Lucchese
--------------------------------
Tonja Lucchese
Address: 53601 Arrowwood Drive
Elkhart, IN 46514
/s/ Kim M. Price
--------------------------------
Kim M. Price
Address: 51332 Forest Road
Elkhart, IN 46514
/s/ Douglas Rheinheimer
--------------------------------
Douglas Rheinheimer
Address: 11772 W. 400 S.
Elkhart, IN 46514
/s/ James R. Brotherson
--------------------------------
James R. Brotherson
Address: 1815 Greenleaf Blvd.
Elkhart, IN 46514
/s/ Donald J. Clark
--------------------------------
Donald J. Clark
Address: 71301 Dawn Drive
Union, MI 49310