AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THOR INDUSTRIES, INC.
(UNDER SECTIONS 242 AND 245 OF
THE DELAWARE GENERAL CORPORATION LAW)
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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
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
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
(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.
WADE F.B. THOMPSON
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Wade F.B. Thompson
President
Attest:
/S/ WALTER L. BENNETT
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Walter L. Bennett
Secretary