exv10w2






Exhibit 10.2




EXECUTION COPY




NON-COMPETITION AGREEMENT



THIS AGREEMENT (this “Agreement”) is made effective as of March 1, 2010, by and between Christopher
J. Graff (“Shareholder”) and THOR INDUSTRIES, INC., a Delaware corporation (the “Company”).




BACKGROUND




          A. Prior to the date hereof, Shareholder was the sole shareholder of SJC Industries Corp., an
Indiana corporation (“SJC Industries”). Pursuant to a Stock Purchase Agreement, with an effective
date of March 1, 2010 (the “Stock Purchase Agreement”), by and among the Company, the Shareholder
and SJC Industries whereby the Company, among other things, will acquire 100% of the issued and
outstanding shares of common stock of SJC Industries (the “Common Stock”) from Shareholder.




          B. As the sole shareholder and former officer of SJC Industries, Shareholder made a
significant contribution to the growth, profitability and financial strength of SJC Industries and,
as the sole shareholder of SJC Industries, Shareholder will receive substantial consideration
consisting of cash pursuant to the Stock Purchase Agreement.




          C. Shareholder acknowledges that he is aware of the Business (as defined below) in which SJC
Industries is engaged, which includes the design, manufacture, assembly and mounting of ambulance
and other specialty vehicle bodies on commercially available truck chassis by SJC Industries; that
Shareholder is one of the very limited number of persons who has developed the business of SJC
Industries to its present condition and who is capable of carrying out a business in competition
with the Business; that the Business is international in scope; that Shareholder’s work with
respect to the Business has brought him into close contact with proprietary and confidential
information and the affairs of SJC Industries that is not readily available to the public; and that
the Company will suffer substantial and irreparable harm in the event Shareholder should enter into
competition with, or give material assistance of any kind to any third party that is in or proposes
to enter into competition with, the Company or any of its subsidiaries (including SJC Industries),
or in the event Shareholder should disclose any of the proprietary or confidential information or
affairs of SJC Industries to any third party.




          D. Accordingly, and as a substantial and material inducement to the Company to enter into and
perform its respective obligations under the Stock Purchase Agreement, Shareholder has agreed to
enter into and perform his obligations under this Agreement, it being understood that the Company
would not have entered into or performed its respective obligations under the Stock Purchase
Agreement unless Shareholder entered into and agreed to perform his obligations under this
Agreement.



NOW, THEREFORE, in consideration of the foregoing premises and for good, valuable and substantial
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:






 









 








     1. Non-Competition and Non-Solicitation.



          (a) Definitions. For purposes hereof, the following terms shall have the meanings set
forth below:





          1. “Business” shall mean any business, or aspect or segment thereof, in which SJC
Industries is engaged as of the date hereof, including, but not limited to, the designing,
manufacturing, assembly and mounting of ambulance and other specialty vehicle bodies on
commercially available truck chassis.



          (b) Covenant. Shareholder hereby agrees that commencing on the date hereof and
continuing until the fifth (5th) anniversary of the date hereof, he will not, directly
or indirectly:





          2. engage, whether as an officer, director, consultant, agent, employee, partner,
member, shareholder, participant, owner, lender, guarantor, investor or otherwise, or
provide any other material assistance to any other person (whether or not for profit), in or
with respect to, any aspect or segment of the Business anywhere in the United States or
Canada, or in any other country in which the Company or any subsidiary is engaged in the
Business at such time (provided, however, that the foregoing shall not
preclude (i) equity investments by Shareholder in publicly traded companies in which
Shareholder does not own more than one percent (1%) of the outstanding equity and does not
actively participate in the business in which such investment is made or (ii) investments by
Shareholder in publicly-traded securities of the Company);




          3. interfere with, disrupt, or attempt to disrupt, any present or prospective
relationship, contractual or otherwise, between the Company or any of its subsidiaries
(including SJC Industries) and any vendor, supplier, dealer, distributor, customer,
employee, consultant or other person having business dealings with the Company or any of its
subsidiaries (including SJC Industries) related to the Business; or




          4. employ or solicit the employment or engagement by others of any employee or
consultant of SJC Industries, or any employee or consultant who has worked or consulted for
SJC Industries within one (1) year prior to the effective date of this Agreement, for a
period of one (1) year after any such person is no longer an employee or consultant of SJC
Industries, other than any such persons who are not Key Employees (as defined in the Stock
Purchase Agreement) and who respond to general solicitations for employment placed in
publications of general distribution.



          (c) Reasonableness. Shareholder acknowledges that the restricted period of time and
geographical area and scope of the restrictions under Section 1(b) hereof are reasonable,
in view of the nature of the business in which the Company and its subsidiaries are engaged in, the
Business and Shareholder’s knowledge of SJC Industries, and the fact that Shareholder, as the sole
shareholder SJC Industries, has received substantial consideration consisting of cash pursuant to
the Stock Purchase Agreement.







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     2. Nondisclosure.



          Except with the prior written consent of the Company, Shareholder shall not disclose, use,
publish, or in any other manner reveal, directly or indirectly, at any time during or after the
term of this Agreement, any confidential information relating to SJC Industries or any subsidiary
or affiliate thereof acquired by him prior to the date hereof or relating to the Company or SJC
Industries during the course of, or incident to, any services Shareholder hereafter may perform on
behalf of the Company or any of its subsidiaries. Such confidential information shall include, but
shall not be limited to, information relating to (a) the business, operations, systems, services,
know-how, trade secrets, customer lists, pricing policies, operational methods, market plans,
product development plans, acquisition plans, products and product ideas, design and design
projects, inventions and research projects and all other plans and processes of the Company or any
of its subsidiaries, and (b) the business, operations, personnel, activities, financial affairs,
and other information relating to the Company or any of its subsidiaries and its vendors,
suppliers, dealers, distributors, customers, employees, consultants, officers, directors,
stockholders and other persons having business dealings with the Company or any of its
subsidiaries. In the event Shareholder is required (by oral questions, interrogatories, requests
for information or documents in legal proceedings, subpoenas, civil investigative demand or similar
process) to disclose any such confidential information, Shareholder shall provide the Company with
prompt written notice of such requirement so that the Company may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this Section. If, in the absence
of such a protective order or other remedy or receipt of a waiver by the Company, Shareholder is
nonetheless advised by his legal counsel that he is legally compelled to disclose such confidential
information, Shareholder may, without liability hereunder, disclose only that portion of such
confidential information which such counsel advises is legally required to be disclosed, provided
that Shareholder exercises his best efforts to preserve the confidentiality of the information,
including, without limitation, by cooperating, at the Company’s expense, with the Company to obtain
an appropriate protective order or other reliable assurance that confidential treatment will be
accorded the confidential information.




     3. Proprietary Information.



          In the event Shareholder hereafter performs services on behalf of the Company or any of its
subsidiaries, Shareholder shall promptly disclose to the Company in such form and manner as the
Company may reasonably require (a) all operations, systems, services, methods, developments,
inventions, products, product ideas, improvements and other information or data pertaining to the
business or activities of the Company or its subsidiaries (which shall include, for these purposes,
SJC Industries) as have been conceived, originated, discovered or developed by Shareholder (whether
or not copyrighted or patented or capable of being copyrighted or patented) prior to the date
hereof, and (b) such information and data pertaining to the business, operations, personnel,
activities, financial affairs, and other information relating to the Company or any of its
subsidiaries and its vendors, suppliers, dealers, distributors, customers, employees, consultants
and other persons having business dealings with the Company or any of its subsidiaries as may be
reasonably required for the Company or any of its subsidiaries to operate its business. It is
understood that such information is proprietary in nature and shall (as between the Company and
Shareholder) be for the exclusive use and benefit of the Company or any of its subsidiaries and
shall be and remain the property of the Company or any of its subsidiaries. If so






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requested by the Company, Shareholder shall execute and deliver to the Company or any of its
subsidiaries any instrument as the Company may reasonably request to effectuate the assignment of
any such proprietary information to the Company or any of its subsidiaries. At any time, and from
time to time, upon the request of the Company, Shareholder shall deliver to the Company (and shall
not keep in his possession, recreate or deliver to anyone other than the Company) any and all
devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, materials, equipment, other documents or property, together with all copies
thereof (in whatever medium recorded) relating to such proprietary information and belonging to the
Company or any of its subsidiaries or their respective successors or assigns.




     4. Enforcement; “Blue-Pencil” Authorization.



          Shareholder intends to, and does hereby, confer jurisdiction to enforce the covenants
contained in this Agreement upon the courts of (i) any jurisdiction within Indianapolis, Indiana or
(ii) if Shareholder is alleged to be committing, or threatening to commit, a breach of this
Agreement in any other jurisdiction, then in any other jurisdiction in which such alleged breach
takes, or is threatened to take, place. If any provision of this Agreement is held to be
unenforceable because of the duration thereof or the area covered thereby or the scope thereof, or
otherwise, the parties agree that the court making the determination shall have the power to reduce
the duration and/or the area and/or the scope of such provision, or to delete specific words or
phrases, and in its reduced form such provision shall then be enforceable and be enforced to the
fullest extent permitted by law. If the courts of any one or more of such jurisdictions shall hold
such covenants wholly unenforceable against Shareholder by reason of the duration thereof and/or
the area covered thereby and/or the scope thereof, or otherwise, such determination shall not bar
or in any way affect the right of the Company to the relief provided herein in the courts of any
other jurisdiction in which such covenants may be enforced as provided herein, as to breaches of
such covenants in such other respective jurisdictions, the above covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent covenants and,
further, any such determination shall not bar or in any way affect the right of the Company to
enforce any of the covenants. It is the intention of the parties hereto that the covenants
contained in this Agreement shall at all times be enforceable to the fullest extent permitted by
law, and that any court making the determination as to the enforceability of any such covenants be
authorized as provided herein to enforce this Agreement, or such part hereof, in order to
effectuate the intention of the parties, it being agreed that the compliance by Shareholder with
the covenants contained in this Agreement was a substantial and material inducement to the
Company’s decision to enter into the Stock Purchase Agreement and to pay substantial consideration
to Shareholder pursuant to the Stock Purchase Agreement.




     5. Remedies for Certain Breaches.



          If Shareholder commits a breach, or threatens to commit a breach, of any of the provisions of
this Agreement, the Company shall have the following rights and remedies, each of which rights and
remedies shall be independent of the others, and shall be severally enforceable, and all of which
rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies
available under law or in equity to the Company:







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          (a) the right and remedy to have the provisions of this Agreement enforced by any court of
competent jurisdiction by injunction, restraining order, specific performance or other equitable
relief in favor of the Company or any of its subsidiaries, it being acknowledged and agreed that
any breach or threatened breach of this Agreement by Shareholder will cause irreparable injury to
the Company and that money damages will not provide an adequate remedy to the Company; and




          (b) the right and remedy to require Shareholder to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or other benefits (collectively, “Benefits”)
derived or received by Shareholder as the result of any transaction constituting a breach of any of
the provisions of this Agreement and Shareholder hereby agrees to account accurately for such
Benefits and pay over all such Benefits to the Company.




     6. Absence of Restrictions.



          No provision of this Agreement shall be deemed to restrict the absolute right of the Company
at any time to sell or dispose of all or any part of the assets of the Company, or to reconstitute
the same in any one or more other entities, or to merge, consolidate, sell or liquidate or
otherwise abandon or cease the active conduct of its or any of its subsidiaries’ business.




     7. Notices.



     All notices, requests, demands and other communications hereunder shall be given in writing
and shall be: (a) personally delivered; (b) sent by facsimile transmission; or (c) sent to the
parties hereto at their respective addresses indicated herein by registered or certified U.S. mail,
return receipt requested and postage prepaid, or by private overnight mail courier service. The
respective addresses to be used for all such notices, demands or requests are as follows:


Christopher J. Graff

505 North McClurg Court

Suite 2703

Chicago. Illinois 60611

Telephone: 574-536-5963

Email: chris.graff@sbcglobal.net



(with a copy to)



Yoder, Ainlay, Ulmer & Buckingham, LLP

130 North Main Street, Goshen, Indiana 46526

P.O. Box 575, Goshen, Indiana 46527-0575

Attention: R. Gordon Lord, Esq. and Denise C. Davis, Esq.

Facsimile: (574) 534-4174



If to Thor Industries:





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Thor Industries, Inc.

419 West Pike Street

Jackson Center, Ohio 45334

Attn: Chief Executive Officer

Facsimile: 937-596-6539

Telephone: 937-596-6849


(with a copy to)


Akin Gump Strauss Hauer & Feld LLP

One Bryant Park

New York, New York 10036

Attn: Ackneil M. Muldrow, III

Facsimile: 212-872-1002

Telephone: 212-872-1000

E-mail: tmuldrow@akingump.com


          If personally delivered, such communication shall be deemed delivered upon actual receipt; if
sent by overnight courier pursuant to this paragraph, such communication shall be deemed delivered
upon receipt; and if sent by U.S. mail pursuant to this paragraph, such communication shall be
deemed delivered as of the date of delivery indicated on the receipt issued by the relevant postal
service, or, if the addressee fails or refuses to accept delivery, as of the date of such failure
or refusal. Any party hereto may change its address for the purposes of this Agreement by giving
notice thereof in accordance with this Section. Any party hereto may send any notice, request,
demand, claim, or other communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), and such notice, request, demand, claim, or
other communication will be deemed to have been duly given on the calendar day it actually is
received by the intended recipient (or next calendar day that constitutes a Business Day in the
event the calendar day received is not a Business Day).




     8. Miscellaneous.



          (a) Entire Agreement. This Agreement, together with the Stock Purchase Agreement,
constitutes the entire agreement between Shareholder and the Company with respect to the subject
matter hereof and supersedes all prior agreements and understandings, written or oral, with respect
to the subject matter hereof.




          (b) 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 the
Company 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 the Company to exercise, and no delay in


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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 the Company, preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.




          (c) Successors and Assigns. The Company shall have the right to assign its rights
under this Agreement in connection with any sale or disposition of all or substantially all of the
assets of the Company or any of its subsidiaries or any merger or consolidation by the Company or
any of its subsidiaries. This Agreement shall inure to the benefit of, and be binding upon (a) the
parties hereto, (b) the heirs, administrators, executors and personal representatives of
Shareholder and (c) the successors and assigns of the Company.




          (d) Governing Law. This Agreement, including the validity hereof and the rights 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 Indiana 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.




          (e) Severability. If any provisions of this Agreement as applied 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.




          (f) Captions; Certain References. 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. 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 Section,
subsections or other provision are references to Sections, subsections or other provisions of this
Agreement. All references to the term “Business Day” shall mean any day on which banks in New York
are not required or permitted to be closed.




          (g) 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.




          (h) Capacity. Shareholder represents and warrants that he has all right, power and
capacity required by law to enter into and fully perform his obligations under this Agreement.
Shareholder further represents and warrants that he and his legal counsel have adequate information
regarding the terms of this Agreement, the scope and effect of the covenants contained herein, and
all other matters encompassed by this Agreement, to make an informed and knowledgeable decision
with regard to entering into this Agreement, and that he has independently and without reliance
upon the Company made his own analysis and decision to enter into this Agreement.







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          (i) No Conflicting Obligation. Shareholder represents and warrants that the terms of
this Agreement do not and will not breach any agreement or other obligation to keep any information
acquired by Shareholder in confidence or in trust. Shareholder further represents and warrants
that he has not entered into, and agrees that he will not enter into, any agreement or other
obligation (written or oral) that is in conflict with this Agreement.




          (j) Consent to Jurisdiction and Service of Process. Shareholder, for himself, his
personal representatives, legatees, heirs and assigns, hereby consents to the personal jurisdiction
of any of the state or federal courts described in Section 4, 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 Shareholder at
the address provided herein, and that any actions therein may be consolidated in a single action.
Shareholder also agrees not to bring any dispute or controversy arising under or in connection with
this Agreement in any other court. Shareholder 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 with respect to such dispute or controversy. Nothing contained herein shall
be deemed to prevent the Company from effecting service of process upon Shareholder in any other
manner permitted by law or from commencing any action in any other court having competent
jurisdiction.




          (k) Interpretation. This Agreement shall be construed reasonably to carry out its
intent without presumption against or in favor of any party.









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          IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer and Shareholder has executed this Agreement on the day and year first above
written.



	 	 	 	 	 	 	 
	 	 	SHAREHOLDER:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Christopher J. Graff	 	 
	 
	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	THOR INDUSTRIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Peter B. Orthwein
	 	 
	 

	 	Title:
	 	Chairman, President and CEO	 	 





Signature Page to SJC Industries Non-Compete Agreement