-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OsksH71kgZ5mHkSqPy8GirHHPyRrFSTY0GxZE+cKvaNPkbSDn1kaxJ4uWxFCqC5j BKm5NlpRrnBGpDsAy4dNng== 0000921530-99-000214.txt : 19991108 0000921530-99-000214.hdr.sgml : 19991108 ACCESSION NUMBER: 0000921530-99-000214 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19991105 EFFECTIVENESS DATE: 19991105 FILER: COMPANY DATA: COMPANY CONFORMED NAME: THOR INDUSTRIES INC CENTRAL INDEX KEY: 0000730263 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR HOMES [3716] IRS NUMBER: 930768752 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-90375 FILM NUMBER: 99741808 BUSINESS ADDRESS: STREET 1: 419 W PIKE ST CITY: JACKSON CENTER STATE: OH ZIP: 45334 BUSINESS PHONE: 9375966849 MAIL ADDRESS: STREET 1: 419 W PIKE STREET CITY: JACKSON CENTER STATE: OH ZIP: 45334 S-8 1 FORM S-8 RE THOR INDUSTRIES, INC. As filed with the Securities and Exchange Commission on November 5, 1999 Registration No. 333-______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _______ Thor Industries, Inc. (Exact Name of issuer as specified in its charter) Delaware 93-0768752 (State or Other Jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 419 West Pike Street Jackson Center, Ohio 45334 (937) 596-6849 (Address of principal executive offices) _______________ THOR INDUSTRIES, INC. 1999 STOCK OPTION PLAN (Full title of the plan) _______________ Walter L. Bennett, Secretary Thor Industries, Inc. 419 West Pike Street Jackson Center, Ohio 45334 (Name and address of agent for service) Telephone number, including area code, of agent for service: (937) 596-6849 CALCULATION OF REGISTRATION FEE ________________________________________________________________________________ Title of Shares Amount to be Proposed Proposed Amount of to be Registered Registered Maximum Maximum Registration Offering Price Aggregate Fee Per Share(1) Offering Price(1) ________________________________________________________________________________ Common Stock (par value $.010 per 500,000 $24.8125 $12,406,250.00 $4,138.73 share)........... shares ________________________________________________________________________________ (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of the Securities Act of 1933, using the average of the high and low sale prices reported on the New York Stock Exchange on November 1, 1999. There are also registered hereunder such additional indeterminate number of shares as may be issued as a result of the antidilution provisions of the Thor Industries, Inc. 1999 Stock Option Plan. PART I Item 1. PLAN INFORMATION. Not included pursuant to Form S-8 instructions. Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not included pursuant to Form S-8 instructions. PART II Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. Thor Industries, Inc. (the "Company") hereby incorporates herein by reference the following documents: (1) The Company's annual report on Form 10-K for the year ended July 31, 1999; (2) All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or after July 31, 1999; and (3) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed with the Securities and Exchange Commission (the "Commission") on August 8, 1986, and any report filed for the purpose of updating such description. In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the respective date of filing of each such document. Item 4. DESCRIPTION OF SECURITIES. Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Alan Siegel, a director of the Company, is a member of the firm of Akin, Gump, Strauss, Hauer & Feld, L.L.P. which renders legal services to the Company. Mr. Siegel is eligible to receive options under the Plan. 2 Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law grants each corporation organized under Delaware law, such as the Company, the power to indemnify its directors and officers in certain circumstances. The Company's By-laws and Restated Certification of Incorporation provide for indemnification of directors and officers of the Company to the extent permitted by Section 145. Additionally, the By-laws and the Restated Certificate of Incorporation provide that a director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for the breach of any fiduciary duty as director, except (a) for any breach of the director's duty of loyalty to the Company or its stockholders, (b) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the Delaware General Corporation Law, as amended from time to time, or (d) for any transaction from which the director derived an improper personal benefit. Except to the extent hereinabove set forth, there is no Charter provision, By-law, contract, arrangement or statute under which any director or officer of the Company is insured or indemnified in any manner against any liability which he may incur in capacity as such. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. Item 8. EXHIBITS. Exhibit No. Exhibit ___________ 3.1 Restated Certificate of Incorporation of the Company. 3.2 By-Laws of the Company (incorporated by reference to the Company's Form S-8 registration statement, File No. 33-13827). 4.1 Thor Industries, Inc. 1999 Stock Option Plan. 5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to legality of the securities being registered. 23.1 Consent of Independent Auditors. 24.1 Power of Attorney (included on signature page of this Form S-8). Item 9. UNDERTAKINGS. (a) The undersigned hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: 3 (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the - -------- ------- information to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's Annual Report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized on this 5th day of November, 1999. THOR INDUSTRIES, INC. /S/ WADE F. B. THOMPSON ---------------------------------- By: Wade F. B. Thompson President, Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY Each of the undersigned officers and directors of Thor Industries, Inc. hereby severally constitutes and appoints Walter L. Bennett, as attorney-in-fact for the undersigned, in any and all capacities, with full power of substitution, to sign this Registration Statement and any amendments to this Registration Statement (including post-effective amendments), and to file the same with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact full power and authority to do and perform each and every act requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
/S/ WADE F. B. THOMPSON __________________________ President, Chairman of the Board, and Wade F.B. Thompson Chief Executive Officer November 5, 1999 (principal executive officer) /S/ PETER B. OTHWEIN __________________________ Peter B. Orthwein Vice-Chairman, Treasurer, and Director November 5, 1999 /S/ WALTER L. BENNET __________________________ Senior Vice President, Chief Walter L. Bennett Administrative and Financial Officer November 5, 1999 (principal accounting officer) /S/ NEIL D. CHRISMAN __________________________ Neil D. Chrisman Director November 5, 1999 __________________________ Alan Siegel Director November 5, 1999 5 /S/ JAN H. SUWINSKI __________________________ Jan H. Suwinski Director November 5, 1999 /S/ WILLIAM C. TOMSON __________________________ William C. Tomson Director November 4, 1999
6 INDEX TO EXHIBITS The following is a complete list of exhibits filed as part of this registration statement: Exhibit No. Exhibit ___________ 3.1 Restated Certificate of Incorporation of the Company. 3.2 By-Laws of the Company (incorporated by reference to the Company's Form S-8 registration statement, File No. 33-13827). 4.1 Thor Industries, Inc. 1999 Stock Option Plan. 5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to legality of the securities being registered. 23.1 Consent of Independent Auditors. 24.1 Power of Attorney (included on signature page of this Form S-8). 7 EX-99 2 EXHIBIT 3.1 - RESTATED CERTIFICATE OF INCORP. EXHIBIT 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF THOR INDUSTRIES, INC. (Under Sections 242 and 245 of the Delaware General Corporation Law) **************** 1. The name of the corporation is Thor Industries, Inc. (the "Corporation") 2. The certificate of incorporation of the Corporation was filed with the Secretary of State on July 26, 1983. 3. The certificate of incorporation is hereby amended and restated to read as follows: FIRST: The name of the Corporation is Thor Industries, Inc. SECOND: The address of the Corporation's registered office in the State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle. The name of the registered agent name is United States Corporation Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: the total number of shares of stock which the Corporation shall have authority to issue is twenty-one million (21,000,000) shares, consisting of twenty million (20,000,000) shares of Common Stock, par value ten cents ($0.10) each, and one million (1,000,000) shares of Preferred Stock, par value ten cents ($0.10) each, which may be issued from time to time in one or more series. The Board of Directors is hereby authorized to fix, by resolution or resolutions providing for the issue of any such series, the voting powers, if any, and the designation, preferences and rights of the shares in such series, and the qualification, limitations or restrictions thereof, including, but not limited to the following: (a) the number of shares constituting that series and the distinctive designation thereof; (b) the dividend rate on the shares that series, whether dividends shall be cumulative and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series; (c) the voting rights, if any, of shares of that series in addition to the voting rights provided by law, and the terms of such voting rights; (d) the terms and conditions of the conversion privileges, if any, of shares of that series, including provision for adjustment of the conversion rate in such events as the Board of Directors shall determine; (e) the terms and conditions of redemption if shares of that series shall be redeemable, including the date or dates on or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; (f) the terms and amount of any sinking fund for the redemption or purchase of shares of that series, if any; (g) the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that series; and (h) any other relative rights, preferences and limitations of that series. Dividends on outstanding Preferred Stock shall be declared and paid, or set apart for payment, before any dividend shall be declared and paid, or set apart for payment, on the Common Stock with respect to the same dividend period. FIFTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders: (a) Election of directors need not be by ballot unless the by-laws so provide. (b) The Board of Directors shall have power, without the assent or vote of the stockholders, to make, alter, amend, change, add to, or repeal the by-laws of the Corporation. (c) Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on 2 the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and do any reorganization of this Corporation as consequence of said compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation. SIXTH: The Corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto. In addition, a director of this Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for the breach of any fiduciary duty as a director, except: (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the Delaware General Corporation Law, as amended from time to time, or (d) for any transaction from which the director derived an improper personal benefit. SEVENTH: Effective with the election of directors at the annual meeting of stockholders to be held in 1998, the directors shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as shall be provided in the manner specified in the by-laws, one class to hold office for a term expiring at the annual meeting of stockholders to be held in 1999, and another class to hold office for a term expiring at the annual meeting of stockholders to be held in 2000, and another class to hold office for a term expiring at the annual meeting of stockholders to be held in 2001, with the members of each class to hold office until their successors are elected and qualified. Effective 3 with the election of directors at the annual meeting of stockholders to be held in 1998, the successors to the class of directors whose term expires at that meeting and thereafter shall be elected to hold office for a three-year term and until their successors are elected and qualified. Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation to the contrary and notwithstanding the fact that a lesser percentage may be permitted by law or the by-laws of the Corporation, the affirmative vote of the holders of at least 75 percent of the shares of the Corporation entitled to vote generally for the election of directors, voting together as a single class, shall be required to remove any director from office without cause. Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation to the contrary and notwithstanding the fact that a lesser percentage may e permitted by law or the by-laws of the Corporation, the affirmative vote of the holders of at least 75 percent of the shares of the Corporation entitled to vote generally for the election of director, voting together as a single class, shall be required to alter, amend or repeal this Article SEVENTH. EIGHTH: Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation to the contrary and notwithstanding the fact that a lesser percentage may be permitted by law or the by-laws of the Corporation, the affirmative vote of the holders of at least 75 percent of the shares of the Corporation entitled to vote generally for the election of directors, voting together as a single class, shall be required to in order to approve or authorize any Business Combination (as defined below) which has not been approved or authorized by 75 percent of the directors then in office. The term "Business Combination" as used in this Article EIGHTH shall mean: (a) any merger or consolidation of the Corporation or an subsidiary of the Corporation with any other corporation which is required by law to be approved or authorized by the stockholders; (b) any sale, lease or exchange of all, or substantially all, of the property and assets of the Corporation or any subsidiary of the Corporation; (c) any distribution to stockholders in partial or complete liquidation of the assets of the Corporation or any subsidiary of the Corporation; (d) the issuance or transfer by the Corporation or any subsidiary of the Corporation of any securities of the Corporation or any subsidiary which is required by law to be approved or authorized by the stockholders, or with respect to which stockholder approval or authorization would be a prerequisite to the listing on the New York Stock Exchange of the securities to be issued or transferred; and 4 (e) any reclassification of securities or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its subsidiaries, which is required by law to be approved or authorized by the stockholders, or with respect to which stockholder approval or authorization would be a prerequisite to the listing on the New York Stock Exchange of the securities to be issued or transferred. 4. The foregoing Amended and Restated Certificate of Incorporation was duly adopted in accordance with the provisions of Sections 242 and 245 of the Delaware General Corporation Law. IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been signed this 9th day of March, 1998 by Wade F.B. Thompson, the President of Thor Industries, Inc. /S/ WADE F.B. THOMPSON ---------------------- Wade F.B. Thompson President Attest: /S/ WALTER L. BENNETT - --------------------- Walter L. Bennett Secretary 5 EX-99 3 EXHIBIT 4.1 - STOCK OPTION PLAN EXHIBIT 4.1 THOR INDUSTRIES, INC. 1999 STOCK OPTION PLAN 1. Purpose. The purpose of the Thor Industries, Inc. 1999 ------- Stock Option Plan (the "Plan") is to enhance the ability of Thor Industries, Inc. (the "Company") and its subsidiaries to attract and retain employees, directors and consultants of outstanding ability and to provide employees, directors and consultants with an interest in the Company parallel to that of the Company's shareholders. 2. Definitions. ----------- (a) "Award" shall mean an award determined in accordance with the terms of the Plan. (b) "Board" shall mean the Board of Directors of the Company. (c) "Change in Control" shall mean the occurrence of any one of the following events: (i) any "person" (as such term is defined in Section 3(a) (9) of 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 the Company 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 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 of the Company 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 of the Company 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 of the Company shall occur. (d) "Code" shall mean the Internal Revenue Code of 1986, as amended. (e) "Committee" shall mean a committee of at least two members of the Board appointed by the Board to administer the Plan and to perform the functions set forth herein and who are "non-employee directors" within the 2 meaning of Rule 16b-3 as promulgated under Section 16 of the Exchange Act and who are also "outside directors" within the meaning of Section 162(m) of the Code. (f) "Common Stock" shall mean the common stock, $0.10 par value per share, of the Company. (g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (h) "Fair Market Value" per share as of a particular date shall mean the last reported sale price (on the day immediately preceding such date) of the Common Stock on the NASDAQ National Market List or such other exchange as the Common Stock may then be trading. (i) "Immediate Family Member" shall except as otherwise determined by the Committee, a Participant's children, stepchildren, grandchildren, parents, stepparents, grandparents, spouse, siblings, in-laws and persons related by reason of legal adoption. (j) "Incentive Stock Option" shall mean a stock option which is intended to meet the requirements of Section 422 of the Code. (k) "Nonqualified Stock Option" shall mean a stock option which is not intended to be an Incentive Stock Option. (l) "Option" shall mean either an Incentive Stock Option or a Nonqualified Stock Option. (m) "Participant" shall mean an employee, director or consultant of the Company or its Subsidiaries who is selected to participate in the Plan in accordance with Section 5. (n) "Subsidiary" shall mean any subsidiary of the Company that is a corporation and which at the time qualifies as a "subsidiary corporation" within the meaning of Section 424(f) of the Code. 3. Shares Subject to the Plan. Subject to adjustment in ---------------------------- accordance with Section 14, the total of the number of shares of Common Stock which shall be available for the grant of Awards under the Plan shall not exceed 500,000 shares; provided, that, for purposes of this limitation, any Option -------- ---- which is canceled or expires without exercise shall again become available for Awards under the Plan. Upon forfeiture of Awards in accordance with the provisions of the Plan, and the terms and conditions of the Award, such shares shall no longer be counted in any determination of the number of shares available under the Plan and shall be available for subsequent Awards. Subject to adjustment in accordance with Section 14, no employee shall be granted in any calendar year Options to purchase more than 500,000 shares of Common Stock. Shares of Common Stock available for issue or distribution under the Plan shall be authorized and unissued shares or shares reacquired by the Company in any manner. 3 4. Administration. -------------- (a) The Plan shall be administered by the Committee. (b) The Committee shall (i) approve the selection of Participants, (ii) determine the type of Awards to be made to Participants, (iii) determine the number of shares of Common Stock subject to Awards, (iv) determine the terms and conditions of any Award granted hereunder (including, but not limited to, any restriction and forfeiture conditions on such Award) and (v) have the authority to interpret the Plan, to establish, amend, and rescind any rules and regulations relating to the Plan, to determine the terms and provisions of any agreements entered into hereunder, and to make all other determinations necessary or advisable for the administration of the Plan. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Award in the manner and to the extent it shall deem desirable to carry it into effect. (c) Any action of the Committee shall be final, conclusive and binding on all persons, including the Company and its Subsidiaries and shareholders, Participants and persons claiming rights from or through a Participant. (d) The Committee may delegate to officers or employees of the Company or any Subsidiary, and to service providers, the authority, subject to such terms as the Committee shall determine, to perform administrative functions with respect to the Plan and Award agreements. (e) Members of the Committee and any officer or employee of the Company or any Subsidiary acting at the direction of, or on behalf of, the Committee shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified by the Company with respect to any such action or determination. 5. Eligibility. Individuals eligible to receive Awards ----------- under the Plan shall be the directors, consultants and officers and other employees of the Company and its Subsidiaries selected by the Committee. 6. Awards. Awards under the Plan may consist of Options. ------ Awards shall be subject to the terms and conditions of the Plan and shall be evidenced by an agreement containing such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall deem desirable. 7. Options. Options may be granted under the Plan in ------- such form as the Committee may from time to time approve pursuant to terms set forth in an Option agreement. The Committee may alter or waive, at any time, any term or condition of an Option that is not mandatory under the Plan. 4 (a) Types of Options. Each Option agreement shall ----------------- state whether or not the Option will be treated as an Incentive Stock Option or Nonqualified Stock Option. Incentive Stock Options shall only be granted to employees of the Company and its subsidiaries. (b) Option Price. The purchase price per share of the ------------ Common Stock purchasable under an Option shall be determined by the Committee, but in the case of Incentive Stock Options, the Option price will be not less than 100% of the Fair Market Value of the Common Stock on the date of the grant of the Option and in the case of Incentive Stock Options granted to an employee owning stock possessing more than 10% of the total combined voting power of all classes of stock of the Company and its Subsidiaries (a "10% Shareholder") the price per share specified in the agreement relating to such Option shall not be less than 110% of the Fair Market Value per share of the Common Stock on the date of grant. (c) Option Period. The term of each Option shall be -------------- fixed by the Committee, but no option shall be exercisable after the expiration of 10 years from the date the Option is granted, provided, however, that in the case of Incentive Stock Options granted to 10% Shareholders, the term of such Option shall not exceed 5 years from the date of grant. (d) Exercisability. Each Option shall vest and become -------------- exercisable at a rate determined by the Committee at or subsequent to grant; provided, however, that no Option granted under this Section 7 shall become exercisable earlier than the time that the Plan is approved by the shareholders of the Company in accordance with Section 19. (e) Method of Exercise. Options may be exercised, in ------------------ whole or in part, by giving written notice of exercise to the Company specifying the number of shares of Common Stock to be purchased. Such notice shall be accompanied by the payment in full of the Option purchase price. Such payment shall be made in cash or through additional methods prescribed by the Committee. 8. Change in Control. Upon the occurrence of a Change in ----------------- Control, all Options shall automatically become vested and exercisable in full. The Committee may, in its discretion, include such further provisions and limitations in any agreement documenting such Options as it may deem equitable and in the best interests of the Company. 9. Forfeiture. Notwithstanding anything in the Plan to ---------- the contrary, the Committee may provide in any Award agreement that in the event of a serious breach of conduct by a current or former Participant (including, without limitation, any conduct prejudicial to or in conflict with the Company or its Subsidiaries), or any activity of a current or former Participant in competition with any of the businesses of the Company or any Subsidiary, (a) cancel any outstanding Award granted to such current or former Participant, in whole or in part, whether or not vested, and/or (b) if such conduct or activity occurs within 1 year following the exercise or payment of an Award, require such current or former Participant to repay to the Company any gain realized or payment received upon the exercise or payment of such Award (with such gain or payment valued as of the date of exercise or payment). Such cancellation or repayment obligation shall be effective as of the date specified by the Committee. Any repayment obligation may be satisfied in Common Stock or cash or a combination thereof (based upon the Fair Market Value of Common Stock on the day prior to the date of payment), and the Committee may provide for an offset 5 to any future payments owed by the Company or any Subsidiary to the current or former Participant if necessary to satisfy the repayment obligation. The determination of whether a current or former Participant has engaged in a serious breach of conduct or any activity in competition with any of the businesses of the Company or any Subsidiary shall be determined by the Committee in good faith and in its sole discretion. This Section 9 shall have no application following a Change in Control. 10. Withholding. The Company shall have the right to ----------- deduct from any payment to be made pursuant to the Plan the amount of any taxes required by law to be withheld therefrom, or to require a Participant to pay to the Company in cash such amount required to be withheld prior to the issuance or delivery of any shares of Common Stock or the payment of cash under the Plan. If permitted by the Committee in its sole discretion, such taxes may be paid by (a) delivering previously owned shares of Common Stock or (b) having the Company retain shares of Common Stock which would otherwise be delivered upon exercise or payment of Awards or (c) any combination of a cash payment or the methods set forth in (a) and (b) above. For purposes of (a) and (b) above, shares of Common Stock shall be valued at Fair Market Value determined as of the day immediately prior to exercise or payment. If and to the extent specifically authorized by the Committee, the Company may, upon election by a Participant, withhold from any distribution of Common Stock hereunder shares of Common Stock with a Fair Market Value in excess of the Participant's required withholding obligation. 11. Nontransferability, Beneficiaries. Unless otherwise ---------------------------------- determined by the Committee with respect to the transferability of Nonqualified Stock Options by a Participant to his Immediate Family Members (or to trusts or partnerships limited liability companies or other entities established for such family members), no Award shall be assignable or transferable by the Participant, otherwise than by will or the laws of descent and distribution or pursuant to a beneficiary designation, and Options shall be exercisable, during the Participant's lifetime, only by the Participant (or by the Participant's legal representatives in the event of the Participant's incapacity). Each Participant may designate a beneficiary to exercise any Option held by the Participant at the time of the Participant's death or to be assigned any other Award outstanding at the time of the Participant's death. If no beneficiary has been named by a deceased Participant, any Award held by the Participant at the time of death shall be transferred as provided in his will or by the laws of descent and distribution. Except in the case of the holder's incapacity, an Option may only be exercised by the holder thereof. 12. No Right to Employment. Nothing contained in the Plan ---------------------- or in any Award under the Plan shall confer upon any employee any right with respect to the continuation of employment with the Company or any of its Subsidiaries, or interfere in any way with the right of the Company to terminate his or her employment at any time. Nothing contained in the Plan shall confer upon any employee or other person any claim or right to any Award under the Plan. 13. Governmental Compliance. Each Award under the Plan ------------------------ shall be subject to the requirement that if at any time the Committee shall determine that the listing, registration or qualification of any shares issuable or deliverable thereunder upon any securities exchange or under any Federal or 6 state law, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition thereof, or in connection therewith, no such grant or award may be exercised or shares issued or delivered unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee. 14. Adjustments. In the event of any change in the ----------- outstanding shares of Common Stock by reason of any stock dividend or split, recapitalization, merger, consolidation, spinoff, combination or exchange of shares or other corporate change, or any distribution to holders of Common Stock other than regular cash dividends, the number or kind of shares available for Awards under the Plan may be adjusted by the Committee as it shall in its sole discretion deem equitable and the number and kind of shares subject to any outstanding Awards granted under the Plan and the purchase price thereof may be adjusted by the Committee as it shall in its sole discretion deem equitable to preserve the value of such Awards. In addition, in the event that the Company is not the surviving entity in a corporate transaction (or, if it is the surviving entity and the Committee so determines it is appropriate), the Committee may, in its sole discretion, cancel each outstanding Award (whether or not vested) without a Participant's consent, and cause the Company or the surviving entity to make a payment to such Participant in consideration of such cancellation in an amount equal to the product of (a) and (b), where (a) is the difference between (i) and (ii), where (i) is the greater of (A) the Fair Market Value of a share of Common Stock on such cancellation date of (B) the value of the per share of Common Stock consideration in such corporate event and (ii) is the exercise price per share of an Option and (b) is the number of shares of Common Stock subject to such Option. 15. Award Agreement. Each Award under the Plan shall be ---------------- evidenced by an agreement setting forth the terms and conditions, as determined by the Committee, which shall apply to such Award, in addition to the terms and conditions specified in the Plan. 16. Amendment. The Board may amend, suspend or terminate --------- the Plan or any portion thereof at any time, provided that (a) no amendment shall be made without shareholder approval if such approval is necessary to comply with any applicable law, regulation or stock exchange rule and (b) except as provided in Section 14, no amendment shall be made that would adversely affect the rights of a Participant under an Award theretofore granted, without such Participant's written consent. 17. General Provisions. ------------------ (a) The Committee may require each Participant purchasing or acquiring shares pursuant to an Award under the Plan to represent to and agree with the Company in writing that such Participant is acquiring the shares for investment and without a view to distribution thereof. (b) All certificates for shares of Common Stock delivered under the Plan pursuant to any Award shall be subject to such stock-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed, and 7 any applicable Federal or state securities law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. If the Committee determines that the issuance of shares of Common Stock hereunder is not in compliance with, or subject to an exemption from, any applicable Federal or state securities laws, such shares shall not be issued until such time as the Committee determines that the issuance is permissible. (c) It is the intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule 16b-3, or any other rule promulgated under Section 16 of the Exchange Act, and will not be subject to short-swing liability under Section 16. Accordingly, if the operation of any provision of the Plan would conflict with the intent expressed in this Section 17(c), such provision to the extent possible shall be interpreted and/or deemed amended so as to avoid such conflict. (d) Except as otherwise provided by the Committee in the applicable -grant or Award agreement, a Participant shall have no rights as a shareholder with respect to any shares of Common Stock subject to Options until a certificate or certificates evidencing shares of Common Stock shall have been issued to the Participant and, subject to Section 14, no adjustment shall be made for dividends or distributions or other rights in respect of any share for which the record date is prior to the date on which Participant shall become the holder of record thereof. (e) The law of the State of Delaware shall apply to all Awards and interpretations under the Plan regardless of the effect of such state's conflict of laws principles. (f) Where the context requires, words in any gender shall include any other gender. 18. Term of Plan. Subject to earlier termination pursuant ------------ to Section 16, the Plan shall have a term of 10 years from its Effective Date. 19. Effective Date; Approval of Shareholders. The Plan is ---------------------------------------- effective as of July 22, 1999. The Plan is conditioned upon the approval of the shareholders of the Company, and failure to receive their approval shall render the Plan and all outstanding Awards issued thereunder void and of no effect. 8 EX-5 4 EXHIBIT 5.1 - OPINION OF COUNSEL EXHIBIT 5.1 [LOGO OF AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.] November 2, 1999 Thor Industries, Inc. 419 West Pike Street Jackson Center, Ohio 45334 Dear Sirs and Madams: We have acted as counsel to Thor Industries, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing by the Company of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, for the registration of 500,000 shares of Common Stock, $0.10 par value per share (the "Shares"), of the Company which may be issued upon exercise of stock options pursuant to the Thor Industries, Inc. 1999 Stock Option Plan (the "Plan"). We have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and officers of the Company and such other instruments as we have deemed necessary or appropriate as a basis for the opinions expressed below. Based on the foregoing, we are of the opinion that: 1. The issuance of the Shares upon exercise of stock options granted under the Plan has been duly authorized; and 2. When the Shares have been issued and delivered in accordance with the terms of the Plan, the Shares will be legally issued, fully paid and nonassessable. AKIN, GUMP, STRAUSS & FELD, L.L.P November 2, 1999 Page 2 We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /S/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. EX-23 5 EXHIBIT 23.1 - INDEPENDENT AUDITOR'S CONSENT EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Thor Industries, Inc. on Form S-8 of our report dated October 1, 1999, appearing in the Annual Report on Form 10-K of Thor Industries, Inc. for the year ended July 31, 1999. /S/ DELOITTE & TOUCHE LLP DELOITTE & TOUCHE LLP Dayton, Ohio November 2, 1999 -----END PRIVACY-ENHANCED MESSAGE-----