EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of March 18, 2002 (the
"Agreement") by and between the investors identified on the signature pages
hereto (the "Investors") and HOLIDAY RV SUPERSTORES, INC., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS pursuant to that certain Securities Purchase Agreement, dated on
or about the date hereof, by and between the Company and the Investors (the
"Purchase Agreement"), the Company has agreed to sell and issue to the
Investors, and the Investors have agreed to purchase from the Company, an
aggregate of 15,000 shares of the Company's Series AA-2 Preferred Stock (the
"Preferred Shares") subject to the terms and conditions set forth therein, and
Warrants (the "Warrants") to purchase up to an aggregate of 750,000 shares of
the Company's Common Stock, par value $0.01 per share (the "Common Stock")
subject to the terms and conditions set forth therein;
WHEREAS the Purchase Agreement contemplates that the Preferred Shares will
be convertible into shares (the "Common Shares") of Common Stock pursuant to the
terms and conditions set forth in the Certificate of Designation, Rights and
Preferences of the Series A Convertible Preferred Stock (the "Certificate"); and
WHEREAS the Warrant is exercisable into Common Shares pursuant to the
terms and conditions of the Warrant.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the Purchase
Agreement and this Agreement, the Company and the Investor agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Purchase Agreement or the
Certificate. As used in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act.
"Closing" and "Closing Date" shall have the meanings ascribed to such
terms in the Purchase Agreement.
"Commission" or "SEC" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"Holder" and "Holders" shall include the Investors and any transferee or
transferees of the Preferred Shares, the Warrant, Common Shares or Registrable
Securities which have not been sold to the public to whom the registration
rights conferred by this Agreement have been transferred in compliance with this
Agreement and the Purchase Agreement.
"Person" shall mean any individual, partnership, corporation, trust or
other entity of any nature whatsoever.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" shall mean: (i) the Common Shares or other
securities issued or issuable to each Holder or its permitted transferee or
designee upon conversion of the Preferred Shares or exercise of the Warrant;
(ii) securities issued or issuable upon any stock split, stock dividend,
recapitalization or similar event with respect to such Common Shares; and (iii)
any other security issued as a dividend or other distribution with respect to,
in exchange for or in replacement of the securities referred to in the preceding
clauses. For purposes of this Agreement, a Person will be deemed to be a holder
of Registrable Securities whenever such Person has the then-existing right to
acquire such Registrable Securities, whether or not such acquisition actually
has been effected.
"Registration Expenses" shall mean all expenses incurred in connection
with the Company's performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, fees and disbursements of all
independent certified public accountants for the Company, blue sky fees and
expenses, any fees and disbursements of underwriters (excluding discounts and
commissions), the fees and expenses of any special experts retained in
connection with the registration, and the reasonable fees and disbursements of,
in each such registration, one counsel chosen by the Holders of at least a
majority of the Registrable Securities, but excluding underwriting discounts,
commissions and transfer taxes, if any, and fees and disbursements of counsel to
Holders in addition to the one counsel per registration to be paid for by the
Company. As used herein, the expression "Registration Expenses" also includes
all internal expenses of the Company (including, but not limited to, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance obtained by the Company, the expense and fees
for listing the securities to be registered on any securities exchange, expenses
incurred in obtaining any comfort letters, and all fees and expenses associated
with filings required to be made with the NASD.
"Registration Statement" shall have the meaning set forth in Section 2(a)
herein.
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"Regulation D" shall mean Regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"Securities Act" or "Act" shall mean the Securities Act of 1933, and the
rules and regulations promulgated thereunder, as amended.
"Selling Expenses" shall mean all underwriting discounts and commissions
applicable to the sale of Registrable Securities and all fees and disbursements
of counsel for Holders not included within "Registration Expenses".
2. INCIDENTAL REGISTRATIONS.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. Each time the Company
proposes to register its Common Stock under the Securities Act (other than
a registration on Form S-4 or S-8, or any successor or other forms
promulgated for similar purposes), whether or not for sale for its own
account, pursuant to a registration statement ("Registration Statement")
on which it is permissible to register Registrable Securities for sale to
the public under the Securities Act, it will give prompt written notice
(which shall in any event be given not less than 30 days prior to the
effective date of the Registration Statement) to all Holders of its
intention to do so and of the Holders' rights under this Section 2. Upon
the written request of any Holder made within 30 days after the receipt of
any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Holder), the Company will use its
reasonable efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so requested to
register by the Holders thereof; provided that, (i) if, at any time after
giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any
reason not to proceed with the proposed registration, the Company may, at
its election, give written notice of such determination to each Holder and
thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses in connection therewith), and
(ii) if such registration involves an underwritten offering by the Company
(underwritten, at least in part, by Persons who are not Affiliates or
Associates of the Company or any Holder), all Holders requesting to have
Registrable Securities included in the Company's registration must sell
their Registrable Securities to such underwriters who shall have been
selected by the Company on the same terms and conditions as apply to the
Company, with such differences, including any with respect to
indemnification and contribution, as may be customary or appropriate in
combined primary and secondary offerings.
(b) EXPENSES. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested
pursuant to this Section 2, regardless of whether such registration
statement becomes effective, and each Holder shall pay all Selling
Expenses and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to a Registration
Statement effected pursuant to this Section 2.
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(c) PRIORITY IN INCIDENTAL PRIMARY REGISTRATIONS. If a registration
pursuant to this Section 2 involves an underwritten offering by the
Company (as described in Section 2(a)(ii)) and the managing underwriter
with respect to such offering advises the Company in writing that, in its
opinion, the number of securities (including all Registrable Securities)
which the Company, the Holders and any other persons intend to include in
such registration exceeds the largest number of securities which can be
sold in such offering without having an adverse effect on the offering of
securities as contemplated by the Company (including the price at which
the Company proposes to sell such securities), then the Company will
include in such registration (i) first, all the securities the Company
proposes to sell for its own account, (ii) second, the number of
Registrable Securities which the Holders have requested to be included in
such registration and which, in the opinion of such managing underwriter,
can be sold without having the adverse effect referred to above, such
reduced number of Registrable Securities to be allocated pro rata among
all requesting Holders on the basis of the relative number of shares of
Registrable Securities then held by each such Holder (provided that any
shares thereby allocated to any such Holder that exceed such Holder's
request will be reallocated among the remaining requesting Holders in like
manner).
(d) PRIORITY IN INCIDENTAL SECONDARY REGISTRATIONS. If a
registration pursuant to this Section 2 involves an underwritten secondary
registration on behalf of holders of the Company's securities and the
managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in the registration
exceeds the largest number of securities which can be sold in such
offering without having an adverse effect on the offering of such
securities (including the price at which such securities are proposed to
be sold), the Company will include in such registration first, the
securities requested to be included therein by the Holders requesting such
registration and the Registrable Securities requested to be included in
such registration, pro rata among the holders of such securities on the
basis of the relative number of shares of Registrable Securities which are
owned by such holders, and second, other securities requested to be
included in such registration.
(e) SELECTION OF UNDERWRITERS. In connection with any registration
pursuant to this Section 2, Holders holding at least a majority of the
Registrable Securities requested to be registered shall have the right to
select the managing underwriters (subject to the approval of the Company
which shall not be unreasonably withheld or delayed) to administer any
offering of the Company's securities in which the Company does not
participate, and the Company will have such right in any offering in which
it participates.
(f) CUSTODY AGREEMENT AND POWER OF ATTORNEY. Upon the Company's
request, any Holder will execute and deliver a custody agreement and power
of attorney in form and substance reasonably satisfactory to the Company
with respect to the shares of Common Stock to be registered pursuant to
this Section 2 (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that the
Holder will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing
such shares of Common Stock (duly endorsed in blank by the registered
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owner or owners thereof or accompanied by duly executed stock powers in
blank) and irrevocably appoint said custodian and attorney-in-fact as the
Holder's agent and attorney-in-fact with full power and authority to act
under the Custody Agreement and Power of Attorney on the Holder's behalf
with respect to the matters specified therein.
(g) OTHER AGREEMENTS. Each Holder agrees that it will execute such
other agreements as the Company may reasonably request to further
accomplish the purposes of this Section 2.
3. MANDATORY REGISTRATION.
(a) REGISTRATION STATEMENT. The Company shall prepare and file with
the SEC, by no later than December 1, 2002, a Registration Statement, on
Form S-3 or similar short-form registration statement if eligible, to
register for resale by the Holders all of the Registrable Securities. The
Company will use its reasonable efforts to cause such Registration
Statement to be declared effective on a date which is no later than the
earlier of (x) five (5) days after notice by the SEC that it may be
declared effective or (y) sixty (60) days after the filing of such
Registration Statement. The Company will use its reasonable efforts to
cause such Registration Statement to remain effective with respect to
particular Securities until the earlier of the following: (w) such
Securities shall have been disposed of in accordance with such
Registration Statement, (x) such Securities shall have been distributed to
the public pursuant to Rule 144 (or any successor provision) under the
Securities Act or may be so distributed within any three month period, (y)
such Securities shall have been otherwise transferred, new certificates
for them shall have been delivered by the Company and subsequent
disposition of them shall not require registration or qualification of
them under the Securities Act or any similar state law then in force, or
(z) such Securities shall have ceased to be outstanding. The registration
effected pursuant to this Section 3(a) is referred to herein as the
"Mandatory Registration."
(b) PAYMENT OF EXPENSES FOR MANDATORY REGISTRATION. The Company will
pay all Registration Expenses in connection with the Mandatory
Registration, regardless of whether the Mandatory Registration becomes
effective, and each Holder shall pay all Selling Expenses and transfer
taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Mandatory Registration.
(c) PRIORITY. If the Mandatory Registration is an underwritten
public offering and the managing underwriters advise the Company in
writing that in their opinion the inclusion of the number of Registrable
Securities and other securities requested to be included (by the Company
or others) creates a substantial risk that the price per Common Share will
be reduced, the Company will include in such registration, prior to the
inclusion of any securities which are not Registrable Securities, the
number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold without creating such a risk, pro
rata among the respective Holders of Registrable Securities on the basis
of the number of Registrable Securities owned by such Holders, with
further successive pro rata allocations among the Holders of Registrable
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Securities if any such holder of Registrable Securities has requested the
registration of less than all such Registrable Securities it is entitled
to register.
(d) RESTRICTIONS. The Company may postpone or suspend for up to 90
days the filing or the effectiveness (but not the preparation) of a
registration statement for the Mandatory Registration if the Board of
Directors of the Company reasonably and in good faith determines that such
filing or effectiveness would require a disclosure of a material fact that
would have a material adverse effect on the Company or any plan by the
Company to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or other
significant transaction. In order to postpone or suspend the filing or
effectiveness of a registration statement pursuant to this Section 3(d),
the Company shall promptly (but in any event within ten days), upon
determining to seek such postponement or suspension, deliver to each
Holder of Registrable Securities a certificate signed by an executive
officer of the Company stating that the Company is postponing such filing
pursuant to this Section 3(d) and a general statement of the reason for
such postponement and an approximation of the anticipated delay.
(e) SELECTION OF UNDERWRITERS. The Holders of at least a majority of
the Registrable Securities included in the Mandatory Registration shall
have the right to select the investment banker(s) and manager(s) to
administer the offering, subject to the Company's approval which will not
be unreasonably withheld or delayed.
(f) OTHER AGREEMENTS. Each Holder agrees that it will execute such
other agreements as the Company may reasonably request to further
accomplish the purposes of this Section 3.
4. HOLDBACK AGREEMENTS.
(a) HOLDERS' AGREEMENTS. Each Holder agrees not to effect any public
sale or distribution of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such
securities or make any demand for registration under Sections 2 hereof,
during the seven days prior to, and during the 90 days following, the
effective date of any underwritten registration pursuant to Section 2 in
which Registrable Securities are included (except as part of such
underwritten registration), unless the underwriters managing the
registered public offering otherwise agree. Nothing herein shall prevent a
Holder that is a partnership from making a distribution of Registrable
Securities to its partners, a Holder that is a trust from making a
distribution of Registrable Securities to its beneficiaries or a Holder
that is a company from making a distribution of Registrable Securities to
its stockholders, provided that the transferees of such Registrable
Securities agree to be bound by the provisions of this Agreement to the
extent the transferor would be so bound.
(b) COMPANY'S AGREEMENTS. The Company agrees (i) not to effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities,
during the seven days prior to, and during the 90 days following, the
effective date of any underwritten registration pursuant
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to Section 2 (except as part of such underwritten registration or pursuant
to registrations on Form S-8 or S-4 or any successor forms), unless the
underwriters managing the registered public offering otherwise agree, (ii)
to use commercially reasonable efforts to cause each holder of at least 5%
(on a fully diluted basis) of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities to
agree not to effect any public sale or distribution of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered
public offering otherwise agree, and (iii) if requested by the
underwriters managing the registered public offering, to use all
reasonable efforts to cause each other holder of its equity securities, or
any securities convertible into or exchangeable or exercisable for such
securities, purchased from the Company at any time (other than in a
registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period (except as part of
such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
5. REGISTRATION PROCEDURES.
If and whenever the Company is required to use its reasonable efforts to
effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will, as expeditiously
as possible:
(a) furnish to each Holder of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus included in such registration statement
(including each preliminary prospectus and summary prospectus and
prospectus supplement, as applicable), in conformity with the requirements
of the Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the disposition of the
Registrable Securities by such Holder;
(b) use its reasonable efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each Holder
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Holder, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
Section 5(b), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(c) use its reasonable efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the Holder or Holders thereof to consummate the disposition of such
Registrable Securities;
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(d) notify each Holder of any such Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
Company's becoming aware that the prospectus included in such 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 the light of
the circumstances then existing, and at the request of any such Holder,
prepare and furnish to such Holder a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus 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 then existing;
(e) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the registration statement,
an earnings statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated
thereunder;
(f) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as sellers of a
majority of shares of such Registrable Securities or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities;
(g) make available for inspection by representatives of the Holders
of the Registrable Securities covered by such registration statement, by
any underwriter participating in any disposition to be effected pursuant
to such registration statement and by any attorney, accountant or other
agent retained by such Holders or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
(h) cause all such Registrable Securities to be (i) listed on each
securities exchange on which similar securities issued by the Company are
then listed, (ii) authorized to be quoted and/or listed (to the extent
applicable) on the NASD Automated Quotation System or The Nasdaq National
Market if the Registrable Securities so qualify, or (iii) if no similar
securities issued by the Company are then listed on a securities exchange,
a securities exchange selected by the holders of at least a majority of
the Registrable Securities included in such registration;
(i) at least forty eight (48) hours prior to the filing of any
registration statement or prospectus, or any amendment or supplement to
such registration statement or prospectus, furnish a copy thereof to each
seller of such Registrable Securities and refrain from filing any such
registration statement, prospectus, amendment or supplement to which
counsel selected by the holders of at least a majority of the Registrable
Securities being registered shall have reasonably objected on the grounds
that such
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document does not comply in all material respects with the requirements of
the Securities Act or the rules and regulations thereunder, unless, in the
case of an amendment or supplement, in the opinion of counsel for the
Company the filing of such amendment or supplement is reasonably necessary
to protect the Company from any liabilities under any applicable federal
or state law and such filing will not violate applicable laws;
(j) at the request of any seller of such Registrable Securities in
connection with an underwritten offering, furnish on the date or dates
provided for in the underwriting agreement: (i) an opinion of counsel,
addressed to the underwriters and the sellers of Registrable Securities,
covering such matters as such underwriters and sellers may reasonably
request, including such matters as are customarily furnished in connection
with an underwritten offering and (ii) a letter or letters from the
independent certified public accountants of the Company addressed to the
underwriters and the sellers of Registrable Securities, covering such
matters as such underwriters and sellers may reasonably request, in which
letter(s) such accountants shall state, without limiting the generality of
the foregoing, that they are independent certified public accountants
within the meaning of the Securities Act and that in their opinion the
financial statements and other financial data of the Company included in
the registration statement, the prospectus(es), or any amendment or
supplement thereto, comply in all material respects with the applicable
accounting requirements of the Securities Act;
(k) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than thirty days after the end of the twelve month
period beginning with the first day of the Company's first fiscal quarter
commencing after the effective date of a registration statement, which
earnings statement shall cover such twelve month period, and which
requirement will be deemed to be satisfied if the Company timely files
complete and accurate information on Forms 10-Q, 10-K, and 8-K under the
Exchange Act and otherwise complies with Rule 158 under the Securities
Act;
(l) if requested by the managing underwriter or any seller promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any seller reasonably requests
to be included therein, including, without limitation, with respect to the
Registrable Securities being sold by such seller, the purchase price being
paid therefor by the underwriters and with respect to any other terms of
the underwritten offering of the Registrable Securities to be sold in such
offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment;
(m) cooperate with each seller and each underwriter participating in
the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(n) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act; and
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(o) notify each seller of Registrable Securities promptly of any
request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information.
The Company may require each Holder of Registrable Securities as to which
any registration is being effected to furnish the Company with such information
regarding such Holder and pertinent to the disclosure requirements relating to
the registration and the distribution of such securities as the Company may from
time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 5(d), such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 5(d), and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Securities Act pursuant to
Section 2 or Section 3, the Company hereby indemnifies and agrees to hold
harmless, to the extent permitted by law, each Holder of Registrable
Securities covered by such registration statement, each affiliate of such
Holder and their respective directors and officers or general and limited
partners (and the directors, officers, affiliates and controlling Persons
thereof), each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who
controls such Holder or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and
all losses, claims, damages or liabilities, joint or several, and expenses
to which such Indemnified Party may become subject under the Securities
Act, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof, whether or not
such Indemnified Party is a party thereto) arise out of or are based upon
(a) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or
(b) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and the
Company will reimburse such Indemnified Party for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided,
that the Company shall not be liable to any Indemnified Party in any such
case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises solely out of or is
based solely upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, in
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any such preliminary, final or summary prospectus, or any amendment or
supplement thereto in reliance upon and in strict conformity with written
information with respect to such Indemnified Party furnished to the
Company by such Indemnified Party expressly for use in the preparation
thereof; and provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 6(a) with respect to any preliminary prospectus
or the final prospectus or the final prospectus as amended or
supplemented, as the case may be, to the extent that any such loss, claim,
damage or liability of such underwriter or controlling Person results from
the fact that such underwriter sold Registrable Securities to a person to
whom there was not sent or given, at or prior to the written confirmation
of such sale, a copy of the final prospectus (including any documents
incorporated by reference therein) or of the final prospectus as then
amended or supplemented (including any documents incorporated by reference
therein), whichever is most recent, if the Company has previously
furnished to the Indemnified Party sufficient copies thereof for purposes
of such delivery. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Holder or any
Indemnified Party and shall survive the transfer of such securities by
such Holder.
(b) INDEMNIFICATION BY THE HOLDERS AND UNDERWRITERS. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with Section 2 herein, that the
Company shall have received an undertaking reasonably satisfactory to it
from the prospective Holder of such Registrable Securities or any
underwriter to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 6(a)) the Company, all other
prospective Holders or any underwriter, as the case may be, and any of
their respective affiliates, directors, officers and controlling Persons,
with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary, final
or summary prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information with
respect to such Holder or underwriter furnished to the Company by such
Holder or underwriter expressly for use in the preparation of such
registration statement, preliminary, final or summary prospectus or
amendment or supplement, or a document incorporated by reference into any
of the foregoing, but only to the extent such untrue statement or omission
is contained in any information so furnished in writing by such Holder
specifically for inclusion in the registration statement or prospectus and
provided, further, that such liability will be limited to the net amount
received by such seller from the sale of the Registrable Securities
pursuant to such registration statement and provided, further, that such
seller of Registrable Securities shall not be liable in any such case to
the extent that, prior to the filing of any such registration statement,
prospectus, amendment thereof, or supplement thereto, such seller has
furnished in writing to the Company information expressly for use in such
registration statement, prospectus, amendment thereof, or supplement
thereto that corrected or made not misleading the information previously
furnished to the Company. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company
or any of the
11
Holders, or any of their respective affiliates, directors, officers or
controlling Persons and shall survive the transfer of such securities by
such Holder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 6, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action; provided, that
the failure of the indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under Sections
6(a) or 6(b), except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying
party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any
legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation. If,
in such indemnified party's reasonable judgment, having common counsel
would result in a conflict of interest between the interests of such
indemnified and indemnifying parties, then such indemnified party may
employ separate counsel reasonably acceptable to the indemnifying party to
represent or defend such indemnified party in such action, it being
understood, however, that the indemnifying party shall not be liable for
the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all such indemnified parties (and not more than
one separate firm of local counsel at any time for all such indemnified
parties) in such action. No indemnifying party will consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim
or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in this Section 6 (with appropriate modifications) shall be given by the
Company and each Holder of Registrable Securities with respect to any
required registration or other qualification of securities under any
federal or state law or regulation or governmental authority other than
the Securities Act.
(e) CONTRIBUTION. If recovery is not available under the foregoing
indemnification provisions of this Section 6 for any reason other than as
expressly specified therein, the parties entitled to indemnification by
the terms thereof shall be entitled to contribution to liabilities and
expenses except to the extent that contribution is not permitted under
Section 11(f) of the Securities Act. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering
of the Registrable Securities (taking into account the portion of the
proceeds realized by each), the parties' relative
12
knowledge and access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and prevent any
misstatement or omission and any other equitable considerations
appropriate under the circumstances. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section
6(e) were determined by pro rata allocation (even if the Holders or any
underwriters or all of them were treated as one Person for such purpose)
or by any other method of allocation that does not take account of the
equitable considerations referred to in this Section 6(e). The amount paid
or payable by an Indemnified Party as a result of the losses, liabilities,
claims, damages, or expenses (or actions in respect thereafter referred to
above) shall be deemed to include any legal or other fees or expenses
reasonably incurred by such Indemnified Party in connection with
investigating or, except as provided in Section 6(a), defending any such
action or claim. Notwithstanding the provisions of this Section 6(e), no
Holder shall be required to contribute an amount greater than the dollar
amount by which the net proceeds received by such Holder with respect to
the sale of any Registrable Securities exceeds the amount of damages which
such Holder has otherwise been required to pay by reason of any and all
untrue or alleged untrue statements of material fact or omissions or
alleged omissions of material fact made in any registration statement,
prospectus, or preliminary prospectus or any amendment thereof or
supplement thereto, related to such sale of Registrable Securities. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation.
The Holders' obligations in this Section 6(e) to contribute shall be
several in proportion to the amount of Registrable Securities registered
by them and not joint. If indemnification is available under this Section
6, the Indemnifying Parties shall indemnify each Indemnified Party to the
full extent provided in Sections 6(c) and 6(d) without regard to the
relative fault of such Indemnifying Party or Indemnified Party or any
other equitable consideration provided for in this Section 6(e) subject,
in the case of the Holders, to the limited dollar amounts get forth
herein.
(f) NON-EXCLUSIVITY. The obligations of the parties under this
Section 6 shall be in addition to any liability which any party may
otherwise have to any other party.
(g) SURVIVAL. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified Person or any officer, director or
controlling Person of such indemnified Person and will survive the
transfer of securities. The Company also agrees to make such provisions as
are reasonably requested by any indemnified Person for contribution to
such Person in the event the Company's indemnification is unavailable for
any reason.
7. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have
obtained the written consent to such amendment, action or omission to act,
of the Holders holding at
13
least 60% of the Registrable Securities that are subject to this
Agreement; provided, that, if any amendment is not unanimously approved by
all Holders of shares of Registrable Securities that are subject to this
Agreement, any changes set forth in such amendment must apply in the same
manner to all such Holders. Each Holder of any Registrable Securities that
are subject to this Agreement shall be bound by any consent authorized by
this Section 7(a), whether or not such Registrable Securities shall have
been marked to indicate such consent.
(b) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. In addition, and whether or not
any express assignment shall have been made, the provisions of this
Agreement which are for the benefit of the parties hereto other than the
Company shall also be for the benefit of and enforceable by any subsequent
Holder of any Registrable Securities that are subject to this Agreement,
subject to the provisions contained herein.
(c) NOTICES. All notices and other communications provided for in
this Agreement shall be in writing and delivered by registered or
certified mail, postage prepaid, or delivered by overnight courier (for
next business day delivery) or telecopied, addressed as set forth on the
signature pages hereof, or at such other address as any of the parties
hereto may hereafter designate by notice to the other parties given in
accordance with this Section. Any such notice or communication shall be
deemed to have been duly given on the seventh day after being so mailed,
the next business day after delivery by overnight courier, when received
when transmitted by telecopy with confirmation of successful transmission
or upon receipt when delivered personally.
(d) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of the terms contained herein.
(e) SEVERABILITY. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision, paragraph, word,
clause, phrase or sentence in every other respect and of the remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof shall
not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto shall be enforceable to the fullest
extent permitted by law.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of
which shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed therein. The parties to
this Agreement hereby
14
agree to submit to the non-exclusive jurisdiction of the courts of the
State of Delaware in any action or proceeding arising out of or relating
to this Agreement.
(h) INJUNCTIVE RELIEF. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms
or were otherwise breached. Accordingly, it is agreed that they shall be
entitled to an injunction, restraining order or other equitable relief to
prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any
other remedy to which they may be entitled at law or equity.
(i) SIGNATURES. Facsimile signatures shall be valid and binding on
each party submitting the same.
(j) ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the
Purchase Agreement, the Certificate, the Warrant and the agreements and
documents contemplated hereby and thereby, contains the entire
understanding and agreement of the parties.
(k) JURY TRIAL. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY
JURY. EACH PARTY HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE REGISTRABLE SECURITIES OR ANY OTHER AGREEMENTS RELATING TO
THE REGISTRABLE SECURITIES OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION. NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, THE REGISTRABLE SECURITIES OR ANY OTHE RDOCUMENTS OR AGREEMENTS
RELATING TO THE REGISTRABLE SECURITIES.
(l) NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement.
(m) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would
adversely affect the marketability of such Registrable Securities in any
such registration, including, but not limited to, effecting a stock split
or combination of shares.
15
(n) FINAL AGREEMENT. This Agreement, together with the Stock
Purchase Agreement and all other agreements entered into by the parties
hereto pursuant to the Stock Purchase Agreement, constitutes the complete
and final agreement of the parties concerning the matters referred to
herein, and supersedes all prior agreements and understandings.
[Signature page follows]
16
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
THE COMPANY:
HOLIDAY RV SUPERSTORES, INC.
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
Address for Notices: With a copy of any notice to:
----------------------------------- ----------------------------------------
Holiday RV Superstores, Inc. Sheppard, Mullin, Xxxxxxx & Xxxxxxx, LLP
000 X. Xxxxxxx Xxxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000 Xxxxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
INVESTORS:
THE XXXXXXX XXXXX LIVING TRUST
UTA dated September 15, 1997
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx, Trustee
Address for Notices: With a copy of any notice to:
----------------------------------- ----------------------------------------
2575 Vista del Mar Drive Xxxxxx, Xxxxxxxx and Xxxxxx, P.A.
Xxxxxxx, XX 00000 5500 Xxxxx Fargo Center
Attn: Xxxxxxx Xxxxx 00 Xxxxx Xxxxxxx Xxxxxx
Phone: Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: Attn: Xxxxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
