SCHEDULE 14A
(SECTION 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A)
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by Section
14(a)-6(e)(2))
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12
HOLIDAY RV SUPERSTORES, INCORPORATED
----------------------------------------------------
(Name of Registrant as Specified In Its Charter)
----------------------------------------------------
(Name of Persons(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
/X/ No fee required.
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:___________
(2) Aggregate number of securities to which transaction applies:
________________________________
(3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11:_________________________________________________
(4) Proposed maximum aggregate value of transaction: _________________________
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(5) Total fee paid: _____________________________
/ / Fee paid previously with preliminary materials: __________________________
/ / Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(1) Amount Previously Paid: _______________________
(2) Form, Schedule or Registration Statement No.: ____________________________
(3) Filing Party: _________________________________
(4) Date Filed: __________________________________
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[HOLIDAY RV LETTERHEAD]
November 26, 1999
Dear Fellow Shareholders:
As you know, in June this year Atlas Recreational Holdings, Inc. acquired
approximately 58% of Holiday RV Superstores, Incorporated's outstanding stock
from its founders, Newton and Joanne Kindlund. It was our intent to build
shareholder value of Holiday through acquisitions with an emphasis on earnings.
On November 12, we closed our first acquisition, County Line RV, providing
Holiday with an additional $70 million in revenue and a significant share of the
Florida market.
To position Holiday for continued growth, we have proposed some changes for
shareholder consideration and approval. These are designed to facilitate our
growth by reincorporating in a jurisdiction and modifying our capitalization to
provide Holiday with the best opportunity to utilize the strength of the capital
markets in the execution of our planned acquisition strategy.
To effect these changes, the board has called a special shareholders
meeting. The meeting will be held at 10:00 a.m. on Friday, January 7, 2000 in
our offices at 7851 Greenbriar Parkway, Orlando, Florida, 32819, and we invite
all shareholders to attend.
The purposes of the meeting include to: (1) approve the reincorporation of
Holiday from Florida to Delaware, (2) increase the authorized capitalization
(including, for the first time, preferred stock), and (3) consider the other
matters addressed in the enclosed proxy statement. The enclosed proxy statement
describes in detail each of the agenda items for the meeting. WHETHER OR NOT YOU
PLAN TO ATTEND THE MEETING IN PERSON, I URGE YOU TO PROMPTLY SEND IN YOUR PROXY
CARD, WITH A VOTE IN FAVOR OF EACH OF THE PROPOSALS.
We at Holiday are very excited about the prospects for the future and
encourage every shareholder to participate in our dynamic plans.
Once again, I urge you to promptly send in your proxy card; and I look
forward to seeing you at the shareholder meeting, if you can attend. Thank you
in advance for your support.
Very truly yours,
/s/ MICHAEL S. RILEY
--------------------
Michael S. Riley
Chairman
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HOLIDAY RV SUPERSTORES, INCORPORATED
7851 Greenbriar Parkway
Orlando, Florida 32819
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON FRIDAY, JANUARY 7, 2000
TO THE SHAREHOLDERS OF HOLIDAY RV:
This notice is to notify you of a special meeting of shareholders of
Holiday RV Superstores, Incorporated, a Florida corporation.
When: Friday, January 7, 2000 at 10:00 a.m., Eastern time.
Where: 7851 Greenbriar Parkway, Orlando, Florida 32819
Why: To consider and vote on the following proposals:
(1) To approve a change in Holiday's state of incorporation
from Florida to Delaware by means of a merger of
Holiday with and into a wholly-owned subsidiary;
(2) To increase the authorized number of shares of capital
stock in Holiday's Certificate of Incorporation (in the
form attached to the proxy statement as Appendix B) to
be filed in Delaware in connection with the
reincorporation from the present 10,000,000 to
25,000,000;
(3) To authorize in Holiday's Delaware Certificate of
Incorporation the issuance of up to 2,000,000 shares of
preferred stock;
(4) To adopt bylaws (in the form attached to the proxy
statement to as Appendix C) in connection with the
reincorporation;
(5) To provide in Holiday's Delaware Certificate of
Incorporation and bylaws for a classified board of
directors and advance notice of shareholder proposals
and nominations for the election of directors;
(6) To approve the Holiday RV Superstores, Inc. 1999 Stock
Compensation Program;
(7) To approve grants of stock options to Holiday's
directors who served as directors in and prior to May
1999; and
(8) To transact such other business as may properly come
before the special meeting of shareholders and any
adjournments thereof.
ONLY SHAREHOLDERS OF RECORD AT THE CLOSE OF BUSINESS ON THE RECORD DATE SET
BY THE BOARD OF DIRECTORS FOR THE MEETING, NOVEMBER 23, 1999, ARE ENTITLED TO
NOTICE OF AND TO VOTE AT THE MEETING. IF
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ANY OF THE REINCORPORATION PROPOSALS--ITEMS 1 THROUGH 7--ARE NOT APPROVED, THEN
NONE OF THOSE PROPOSALS WILL BE ENACTED.
PLEASE FILL IN, SIGN, DATE, AND RETURN THE ENCLOSED PROXY TO HOLIDAY'S
TRANSFER AGENT, ATTN: PROXY SERVICES, WHETHER OR NOT YOU EXPECT TO ATTEND THE
MEETING. A RETURN ENVELOPE IS ENCLOSED FOR YOUR CONVENIENCE.
By Order of the Board of Directors
HOLIDAY RV SUPERSTORES, INCORPORATED
By: /s/ RONALD G. HUNEYCUTT
----------------------------------
Secretary
Dated: November 26, 1999
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HOLIDAY RV SUPERSTORES, INCORPORATED
7851 Greenbriar Parkway
Orlando, Florida 32819
----------------
SPECIAL MEETING OF SHAREHOLDERS
January 7, 2000
--------------------
PROXY STATEMENT
--------------------
This proxy statement is being mailed to the shareholders of Holiday on or
about November 26, 1999 in connection with the solicitation by the board of
directors of proxies for use at a special meeting of shareholders of Holiday.
The meeting will be held at their office, 7851 Greenbriar Parkway, Orlando,
Florida 32819, on Friday, January 7, 2000 at 10:00 a.m., local time.
The Meeting has been called for the following purposes:
(1) To approve a change in Holiday's state of incorporation from
Florida to Delaware by means of a merger of Holiday with and into
a wholly-owned subsidiary;
(2) To increase the authorized number of shares of capital stock in
Holiday's Certificate of Incorporation (in the form attached as
Appendix B) to be filed in Delaware in connection with the
reincorporation from the present 10,000,000 to 25,000,000;
(3) To authorize in Holiday's Delaware Certificate of Incorporation
the issuance of up to 2,000,000 shares of preferred stock;
(4) To adopt bylaws (in the form attached as Appendix C) in
connection with the reincorporation;
(5) To provide in Holiday's Delaware Certificate of Incorporation and
bylaws for a classified board of directors and advance notice of
shareholder proposals and nominations for the election of
directors;
(6) To approve the Holiday RV Superstores, Inc. 1999 Stock
Compensation Program;
(7) To approve grants of stock options to Holiday's directors who
served as directors in and prior to May 1999; and
(8) To transact such other business as may properly come before the
special meeting of shareholders and any adjournments thereof.
ALL OF THE REINCORPORATION PROPOSALS SET FORTH IN ITEMS ONE THROUGH SEVEN
ABOVE ARE BEING CONSIDERED AS ONE INTEGRATED PROPOSAL, AND IF ANY OF THESE
INDIVIDUAL PROPOSALS IS NOT APPROVED, THEN NONE OF THOSE PROPOSALS WILL BE
ENACTED.
Shareholders of record are being asked to vote "FOR" or "AGAINST" the
proposals set forth above.
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PROXIES AND VOTING
The voting securities of Holiday outstanding on November 17, 1999 consisted
of 7,206,500 shares of common stock. Shareholders of record at the close of
business on November 23, 1999 are entitled to notice of and to vote at the
meeting. All shares of common stock have equal voting rights and each share is
entitled to one vote. There was no other class of voting securities of Holiday
outstanding on that date. A majority of the outstanding shares of common stock
is required to be present in person or by proxy to constitute a quorum.
REQUIRED VOTE
Atlas Recreational Holdings, Inc., the current owner of approximately 58%
of the outstanding common stock, supports each of the proposals to be made at
the meeting and could determine the outcome of the vote by virtue of its 58%
stock ownership. However, because of Atlas' recent acquisition of this stock,
Atlas and Holiday's board have agreed that, although Atlas intends to vote in
favor of each of the proposals, none of the proposals will be deemed approved or
enacted unless the vote in favor of that proposal passes each of two tests:
(1) the proposal is approved by the affirmative vote of the
holders of a majority of the issued and outstanding shares of
Holiday's common stock--counting shares held by Atlas; and
(2) the proposal is approved by the affirmative vote of the
holders of a majority of the issued and outstanding shares of
Holiday's common stock--excluding shares held by Atlas.
Holiday believes that this voting requirement is fair and reasonable because in
this way all Holiday shareholders will have meaningful input into the future of
Holiday and its planned growth. This voting requirement will also avoid any
uncertainty or controversy about voting rights under Florida's control share
statute, which may be interpreted to deny voting rights to shares held by Atlas.
PROXIES
Any proxy delivered in this solicitation may be revoked by the person
executing the proxy by notice in writing received at the office of Holiday at
any time prior to its use. If a proxy is not revoked, the shares of common stock
represented by it will be voted at the meeting. Each proxy will be voted in
accordance with the instructions specified on the proxy. If no specification is
indicated on the proxy, the shares of common stock represented by it will be
voted:
o to approve a change in Holiday's state of incorporation from
Florida to Delaware;
o to provide in Holiday's Delaware Certificate of Incorporation for
the number of authorized shares of capital stock to be increased
from 10,000,000 to 25,000,000;
o to provide in Holiday's Delaware Certificate of Incorporation for
the authorization of the issuance of up to 2,000,000 shares of
preferred stock;
o to adopt new bylaws in connection with the reincorporation;
o to provide in Holiday's Delaware Certificate of Incorporation and
bylaws for a classified board of directors and advance notice of
shareholder proposals and nominations for the election of
directors;
o to approve for Holiday Delaware a new 1999 Stock Compensation
Program;
o to approve the May 1999 grants of stock options to Holiday's
directors serving at that time; and
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o for any other matter that may properly be brought before the
meeting in accordance with the judgment of the person or persons
voting the proxy.
QUORUM; ADJOURNMENT
The required quorum for the transaction of business at the meeting is a
majority of the votes eligible to be cast by holders of shares of common stock
issued and outstanding on the record date. Shares that are voted "FOR" or
"AGAINST" a matter are treated as being present at the meeting for purposes of
establishing a quorum and are also treated as shares entitled to vote at the
meeting with respect to such matter. In the absence of a quorum, the
shareholders present in person or by proxy, by majority vote and without further
notice, may adjourn the meeting from time to time until a quorum is attained. At
any reconvened meeting following such adjournment at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally notified.
VOTING; INSPECTOR OF ELECTIONS
Prior to the meeting, Holiday will select one or more inspectors of
election for the meeting. The inspector(s) will determine the number of shares
of common stock represented at the meeting, the existence of a quorum and the
validity and effect of proxies, and shall receive, count and tabulate ballots
and votes and determine the results thereof. Abstentions will be considered as
shares present and entitled to vote at the meeting, but will not be counted as
votes cast for or against any given matter. A broker non-vote generally occurs
when a broker who holds shares in street name for a customer does not have
authority to vote on certain non-routine matters because its customer has not
provided any voting instructions on the matter. Broker non-votes have no effect
under Florida law.
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THE REINCORPORATION TRANSACTIONS
INTRODUCTION
The board of directors of Holiday has determined that it is in the best
interests of Holiday to reincorporate in Delaware and increase its authorized
capitalization. Holiday's current Articles of Incorporation authorize the
issuance of up to 10,000,000 shares of Common Stock, 7,206,500 shares of which
were outstanding as of November 17, 1999. Holiday also has reserved for issuance
approximately 380,000 additional shares of common stock underlying options and
warrants to purchase reserved shares of common stock. In light of Holiday's
plans for future growth through acquisitions, this leaves a very little
availability of common stock. Moreover, no shares of preferred stock are
authorized under Holiday's Articles of Incorporation.
The board believes that it is necessary for Holiday to increase the
authorized amount of common stock and to permit preferred stock to be issued by
the board in the future, to the extent deemed advisable by the board. To make
these changes to Holiday's capitalization it is necessary to amend Holiday's
Articles of Incorporation, which requires shareholder approval. Rather than
simply amend the Articles of Incorporation, the board of directors has proposed
that the state of incorporation of Holiday, which is currently Florida, be
changed to Delaware. The board believes that the reincorporation of Holiday in
Delaware will be advantageous to Holiday. See Proposal 1, "Reasons For and
Advantages of Reincorporation in Delaware."
REINCORPORATION MERGER
These reincorporation and capitalization changes are proposed to be
effected by an Agreement and Plan of Merger, a copy of which is attached to this
proxy statement as Appendix A. The board has unanimously approved the Agreement
and Plan of Merger for submission to Holiday's shareholders. The Agreement and
Plan of Merger provides for the merger of Holiday with and into Holiday RV
Superstores, Inc., a Delaware corporation, which is a wholly-owned subsidiary of
Holiday ("Holiday-Delaware"), with Holiday-Delaware being the surviving
corporation. This reincorporation merger will, in effect, cause Holiday to be
reincorporated in Delaware. On the effective date of the reincorporation merger,
each issued and outstanding share of common stock will be converted into one
share of common stock, $.01 par value per share of Holiday-Delaware. The
following discussion summarizes certain aspects of the reincorporation merger,
but is qualified in its entirety by reference to the Agreement and Plan of
Merger which is attached to this proxy statement as Appendix A.
On the effective date of the reincorporation merger, Holiday-Delaware will
succeed to all of the assets, liabilities and business of Holiday and will
possess all of the rights and powers of Holiday. In addition, Holiday-Delaware
will assume and continue all of the benefit and option plans of Holiday. The
business of Holiday will begin to operate under the name, "Holiday RV
Superstores, Inc." The officers and directors of Holiday-Delaware will be the
same as the officers and directors of Holiday.
EFFECTS OF REINCORPORATION
Except as described below, shareholders of Holiday-Delaware, as
shareholders of a Delaware corporation, will, in general, have the same rights
that they possess as shareholders of Holiday, a Florida corporation. Some
antitakeover provisions are being incorporated into the Certificate of
Incorporation of Holiday, and there are other changes inherent in being
incorporated in Delaware rather than in Florida. A summary of these changes, as
they might affect the shareholders, is discussed in Proposal 1 under the heading
"Summary of Significant Differences Between Delaware and Florida Corporate Laws
Which Would Affect Holiday-Delaware."
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SUMMARY OF CHANGES TO HOLIDAY'S CHARTER DOCUMENTS
In addition, in connection with the reincorporation merger,
Holiday-Delaware will adopt the Certificate of Incorporation and bylaws,
attached as Appendix B and Appendix C to this proxy statement. The Certificate
of Incorporation and bylaws of Holiday-Delaware differ from Holiday's Articles
of Incorporation and bylaws in certain respects, the most important of which are
described below.
o INCREASE IN AUTHORIZED CAPITAL--The proposed Certificate of
Incorporation will increase the authorized number of shares of
capital stock to 25,000,000 shares from 10,000,000 shares and
will authorize the issuance of up to 2,000,000 shares of
preferred stock.
Each share of Holiday-Delaware common stock will have the same par value as
the common stock. The current Articles of Incorporation do not include a
provision for the authorization of a class of preferred stock.
o AUTHORIZATION OF PREFERRED STOCK--The proposed Certificate of
Incorporation of Holiday-Delaware authorizes a class of preferred
stock commonly known as "blank check" preferred stock. The
preferred stock may be issued from time to time in one or more
series, and the board, without further approval of shareholders,
is authorized to fix the relative rights, preferences, privileges
and restrictions applicable to each series of preferred stock.
Shares of preferred stock, if and when issued, may have rights,
powers and preferences superior to those of Holiday's common
stock. There are no current plans, commitments or understandings,
written or oral, to issue any preferred stock. In the event of
any issuance of preferred stock, however, the holders of
Holiday-Delaware common stock will not have any preemptive or
similar rights to acquire any preferred stock.
o CLASSIFIED BOARD--The proposed Certificate of Incorporation
provides for a classified board of directors, commencing with our
2000 annual shareholders meeting and providing for three classes
of as nearly equal number as possible.
o SHAREHOLDER NOTICE PROVISIONS--The proposed Certificate of
Incorporation and bylaws provide that shareholders must give
advance notice of proposals or nominations for director at the
annual shareholders meetings.
AUTOMATIC SHARE CONVERSION; EXCHANGE
On the effective date of the reincorporation merger, each issued and
outstanding share of common stock will automatically be converted into one share
of Holiday-Delaware common stock. Shareholders may, but are not required to,
surrender their present common stock certificates so that replacement
certificates representing shares of Holiday-Delaware common stock may be issued
in exchange. Certificates representing common stock should not be destroyed or
returned to Holiday. After the reincorporation, certificates representing common
stock will constitute "good delivery" in connection with sales through a broker,
or otherwise, of shares of Holiday-Delaware common stock. American Stock
Transfer & Trust Company Holiday's transfer agent, will act as transfer agent
for Holiday-Delaware after the reincorporation.
The Agreement and Plan of Merger provides that it may be amended at any
time, whether before or after approval by the shareholders of the Agreement and
Plan of Merger, by agreement of the boards of directors of Holiday and
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Holiday-Delaware, subject to any restrictions imposed by the laws of Florida and
Delaware. Delaware law will not permit an amendment to the Agreement and Plan of
Merger, absent shareholder approval, if the amendment would adversely affect the
holders of any class of stock of either Holiday or Holiday-Delaware.
The reincorporation will be effected by the approval of seven
reincorporation proposals. If any of the reincorporation proposals are not
approved, then none of the reincorporation proposals will be enacted.
o Proposal 1 is to approve the reincorporation merger;
o Proposal 2 is to approve the increase of the number of authorized
shares of capital stock from 10,000,000 to 25,000,000;
o Proposal 3 is to approve the authorization of the issuance of up
to 2,000,000 shares of preferred stock;
o Proposal 4 is to approve the adoption of the new bylaws;
o Proposal 5 is to approve the provisions to provide for a classified
board of directors and for advance notice of shareholder proposals
and nominations for the election of directors;
o Proposal 6 is to approve the 1999 Stock Compensation Program; and
o Proposal 7 is to approve stock option grants to Holiday's
directors who served in and prior to May 1999.
You should refer to the specific discussion included in this proxy
statement regarding each of the reincorporation proposals.
PROPOSAL 1. THE PROPOSED REINCORPORATION IN DELAWARE
REASONS FOR AND ADVANTAGES OF REINCORPORATION IN DELAWARE
The proposal to reincorporate in Delaware is made for several reasons. For
many years, Delaware has followed a policy of encouraging incorporation in that
state and, in furtherance of that policy, has adopted comprehensive, modern and
flexible corporate laws which are periodically updated and revised to meet
changing business needs. As a result, many major corporations have initially
chosen Delaware for their domicile or have subsequently reincorporated in
Delaware. The Delaware courts have developed considerable expertise in dealing
with corporate issues, and a substantial body of case law has developed
construing Delaware law and establishing public policies with respect to
Delaware corporations, as a result providing greater predictability with respect
to legal affairs.
The differences between the corporate law of Delaware and Florida allow
Delaware corporations greater latitude of corporate action. In the opinion of
management, that latitude affords Delaware corporations more opportunities to
raise capital. The procedures and degree of shareholder approval required for
Delaware corporations for the authorization of additional shares of stock, and
for approval of certain mergers and other transactions, present fewer practical
impediments to the capital raising process than those that apply to Florida
corporations.
For example, a Delaware corporation has greater flexibility in declaring
dividends, which can aid a corporation in marketing various classes or series of
dividend paying securities. Under Delaware law, dividends may be paid out of
surplus, or if there is no surplus, out of net profits from the corporation's
previous fiscal year or the fiscal year in which the dividend is declared, or
both, so long as there remains in the stated capital account an amount equal to
the par value represented by all shares of the corporation's stock, if any,
having a preference upon the distribution of assets. Under Florida law,
dividends may be paid by the corporation unless after giving effect to the
distribution, the corporation
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would not be able to pay its debts as they come due in the usual course of
business, or the corporation's total assets would be less than the sum of its
total liabilities, plus (unless the corporation's articles of incorporation
permit otherwise) amounts payable in dissolution to holders of shares carrying a
liquidation preference over the class of shares to which a dividend is declared.
These and other differences between the corporate law of Florida and
Delaware corporate laws are more fully explained below under the heading
"Summary of Significant Differences between Delaware and Florida Corporate Laws
Which Would Affect Holiday-Delaware."
In management's opinion, underwriters and other members of the financial
services industry may be more willing and better able to assist in capital
raising programs for corporations having the greater flexibility reflected in
the examples mentioned.
In addition, Delaware law permits a corporation to adopt a number of
measures, through amendment of the corporation's certificate of incorporation or
bylaws or otherwise, designed to reduce a corporation's vulnerability to
unsolicited takeover attempts. There is substantial judicial precedent in the
Delaware courts as to the legal principles applicable to those defensive
measures with respect to the conduct of the board of directors under the
business judgment rule with respect to unsolicited takeover attempts. Holiday's
current Articles of Incorporation do not include any antitakeover provisions.
The board of directors has no present intention following the reincorporation to
amend the Certificate of Incorporation of Holiday-Delaware or the bylaws of
Holiday-Delaware to include any additional provisions which might deter an
unsolicited takeover attempt. However, in the discharge of its fiduciary
obligations to the shareholders, the board of directors may consider in the
future certain antitakeover strategies which may enhance the board of directors'
ability to negotiate with an unsolicited bidder. Further, Section 203 of the
Delaware General Corporation Law provides certain protections not available
under Florida laws. For discussion of the differing protections under Delaware
and Florida law, see "Summary of Significant Differences Between Delaware and
Florida Corporate Laws Which Would Affect Holiday-Delaware--Business
Combinations with Substantial Shareholders" below.
DISADVANTAGE OF REINCORPORATION IN DELAWARE
Despite the belief of the board as to the benefits or advantages of
reincorporation in Delaware, some shareholders may find the reincorporation
merger disadvantageous for several reasons. First, as discussed below, Delaware
law, like Florida law, contains statutory provisions intended to discourage
certain takeover attempts of Delaware corporations which are not approved by the
board of directors. Although these provisions are different, both could have the
effect of lessening the possibility that shareholders of Holiday or
Holiday-Delaware would be able to receive a premium above market value for their
shares in the event of a takeover. Either the Delaware or the Florida provisions
could also have an adverse effect on the market value of the shares of Holiday
or Holiday-Delaware common stock. To the extent that the Delaware provision may
be more effective at restricting or discouraging takeover attempts, it may
render less likely a takeover opposed by Holiday's board and may make removal of
the board or management less likely as well.
As discussed below, the Certificate of Incorporation of Holiday-Delaware
will contain a provision limiting director liability under certain
circumstances, and the bylaws of Holiday-Delaware will contain provisions
relating to indemnification of directors and officers. The inclusion of these
provisions could operate to the potential disadvantage of the shareholders of
Holiday-Delaware. For example, their inclusion may have the effect of reducing
the likelihood of Holiday-Delaware's recovering monetary damages from directors
as a result of derivative litigation against directors for breach of their duty
of care, even though such an action, if successful, might otherwise have
benefited Holiday-Delaware and its shareholders. In addition, if the
reincorporation is effected and the limitation on liability provision is part
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of the Certificate of Incorporation of Holiday-Delaware, the shareholders of
Holiday-Delaware will forego potential causes of action for breach of duty of
care involving grossly negligent business decisions, including those relating to
attempts to change control of Holiday-Delaware.
SUMMARY OF SIGNIFICANT DIFFERENCES BETWEEN DELAWARE AND FLORIDA CORPORATE LAWS
WHICH WOULD AFFECT HOLIDAY-DELAWARE
The following is a brief summary of the material ways in which Florida and
Delaware corporate laws differ.
BUSINESS COMBINATIONS WITH SUBSTANTIAL SHAREHOLDERS
Delaware law contains a statutory provision that is intended to curb
abusive takeovers of Delaware corporations. Section 203 of the Delaware General
Corporation Law addresses the problem by preventing business combinations of the
corporation with interested shareholders within three years after such
shareholders become interested unless specified approvals are present. Section
203 provides, with certain exceptions, that a Delaware corporation may not
engage in any of a broad range of business combinations with a person or an
affiliate, or associate of such person, who is an "interested shareholder" for a
period of three (3) years from the date that a person became an interested
shareholder unless:
o the transaction resulting in a person becoming an interested
shareholder, or the business combination, is approved by the
board of the corporation before the person becomes an interested
shareholder;
o the interested shareholder acquired 85% or more of the
outstanding voting stock of the corporation in the same
transaction that makes such person an interested shareholder
(excluding shares owned by persons who are both officers and
directors of the corporation, and shares held by some employee
stock ownership plans); or
o on or after the date the person becomes an interested
shareholder, the business combination is approved by the
corporation's board of directors and by the holders of at least
66-2/3% of the corporation's outstanding voting stock at an
annual or special meeting, excluding shares owned by the
interested shareholder.
Under Section 203, an "interested shareholder" is defined as any person who
is:
o the owner of fifteen percent (15%) or more of the outstanding
voting stock of the corporation; or
o an affiliate or associate of the corporation and who was the
owner of fifteen percent (15%) or more of the outstanding voting
stock of the corporation at any time within the three (3) year
period immediately prior to the date on which it is sought to be
determined whether the person is an interested shareholder.
Florida law also provides two antitakeover protections. One--the control
share statute--addresses the voting rights of acquirers of 20% or more of the
outstanding stock and the other--the interested shareholder statute--addresses
the ability of an interested stockholder to enter into certain transactions with
the corporation.
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The control shares statute applies to persons who acquire or intend to
acquire 20% or more of the voting power of corporations that are defined by
statute as "issuing public corporations." To fall within the definition of an
issuing public corporation, a Florida corporation must have
o 100 or more shareholders;
o its principal place of business, principal office or substantial
assets within the State of Florida; and
o either:
o more than 10% of its shareholders resident in the State of
Florida;
o more than 10% of its shares owned by Florida residents; or
o at least 1,000 Florida resident shareholders (with shares
held by banks, brokers or nominees disregarded for the
purpose of calculating these percentages and numbers).
Holiday's principal place of business and principal office are located in the
State of Florida and Holiday has significant assets in the State of Florida.
Assuming Holiday's shareholders meet the 10% residency test, Holiday falls
within the definition of an issuing public corporation for purposes of the
Florida control share statute, and the voting rights provisions and exceptions
of that statute would apply to Holiday.
Florida's control share statute may also apply to non-Florida corporations
if they have certain characteristics. Generally, the control share statute
applies to a non-Florida corporation that meets the requirements of an issuing
public corporation and, in addition, has:
o authority to conduct business in Florida;
o more than 500 residents of Florida as employees; and
o gross annual payroll of more than $5 million to residents of
Florida.
The Florida interested shareholder statute restricts business combinations
and other significant transactions (such as sales of assets) with an interested
shareholder. An "interested shareholder" is defined as a beneficial owner of
more than 10% of outstanding voting shares of a corporation, together with that
owner's affiliates or associates. The statute requires that any business
combination or other material transaction listed in the statute be approved by
the holders of two-thirds of the voting stock of the corporation, not counting
the votes of the interested shareholder. The interested shareholder statute does
not apply if:
o the transaction has been approved by majority of the
disinterested directors;
o the corporation has not had more than 300 shareholders of record
at any time during the three years preceding the announcement
date;
o the interested shareholder has been the beneficial owner of at
least 80% of the corporation's outstanding voting shares for at
least five years preceding the announcement date;
o the interested shareholder is the beneficial owner of at least
90% of the outstanding voting shares of the corporation,
exclusive of shares acquired directly from the corporation in a
transaction not approved by a majority of the disinterested
directors;
o the corporation is an investment company registered under the
Investment Company Act of 1940; or
o in the transaction, certain fair price requirements are met.
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Florida's interested shareholder statute may also apply to non-Florida
corporations if they have certain characteristics. Generally, the interested
shareholder statute applies to a non-Florida corporation, that has:
o been granted authority to conduct business in Florida;
o 100 or more shareholders;
o its principal place of business, its principal office, or
substantial assets within Florida;
o more than 500 residents of Florida as employees;
o gross annual payroll of more than $5 million to residents of
Florida; and
o either:
o more than 10% of its shareholders resident in Florida;
o more than 10% of its shares owned by residents of Florida;
or
o more than 1,000 shareholders resident in Florida.
A corporation may, at its option, exclude itself from the coverage of the
Florida anti-takeover statutes or Section 203 of the Delaware General
Corporation Law by amending its articles or certificate of incorporation or
bylaws by action of its shareholders to exempt itself from coverage. In
Delaware, such a bylaw or certificate of incorporation amendment does not become
effective until 12 months after the date it is adopted. In Florida, such a bylaw
or articles of incorporation amendment does not become effective until 18 months
after the date it is adopted and does not apply to a transaction with a
shareholder who was interested at the time the amendment was adopted. Holiday
has not opted out of the Florida statutes and is not anticipated that the board
of directors of Holiday-Delaware will seek shareholder approval to opt out of
the operation of Section 203.
MERGER WITH SUBSIDIARY
Under Delaware law, a parent corporation may merge into a subsidiary and a
subsidiary may merge into its parent, without shareholder approval, where the
parent corporation owns at least 90% of the outstanding shares of each class of
capital stock of its subsidiary. Florida law permits such a merger of a
subsidiary without shareholder approval if 80% of each class of capital stock of
the subsidiary is owned by the parent corporation.
DIVIDENDS
Delaware law provides that the corporation may pay dividends out of
surplus, out of the corporation's net profits for the preceding fiscal year, or
both, provided that there remains in the stated capital account an amount equal
to the par value represented by all shares of the corporation's stock having a
distribution preference. Florida law provides that dividends may be paid, unless
after giving effect to such distribution, the corporation would not be able to
pay its debts as they come due in the usual course of business, or the
corporation's total assets would be less than the sum of its total liabilities,
plus (unless the corporation's articles of incorporation permit otherwise) the
amount needed to satisfy preferential distributions.
PROXIES
Under Delaware law, a proxy executed by a shareholder will remain valid for
a period of three years unless the proxy provides for a longer period. Under
Florida law, a proxy is effective only for a period of 11 months unless
otherwise provided in the proxy.
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CONSIDERATION FOR STOCK
Under Delaware law, a corporation may accept as consideration for its stock
a combination of cash, property or past services in an amount not less than the
par value of the shares being issued, and a secured promissory note or other
binding obligation executed by the subscriber for any balance, the total of
which must equal at least the par value of the issued stock, as determined by
the board. Under Florida law, a corporation may issue its capital stock only in
return for certain tangible or intangible property or benefit to the
corporation, including cash, promissory notes, services performed, promises to
perform services evidenced by a written contract, and other securities of the
corporation. In Florida, shares may be issued for less than par value.
LIABILITY OF DIRECTORS
Delaware law permits a Delaware corporation to include in its certificate
of incorporation a provision which eliminates or limits the personal liability
of a director to the corporation or its shareholders for monetary damages for
breach of fiduciary duties as a director. However, no such provision may
eliminate or limit the liability of a director:
o for any breach of the director's duty of loyalty to the corporation or
its shareholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o for declaration of unlawful dividends or illegal redemptions or stock
repurchases; or
o for any transaction from which the director derived an improper
personal benefit.
The proposed Certificate of Incorporation includes a provision to limit
director liability.
Under Florida law, a director is not personally liable for monetary damages
to any person for his actions as a director unless the director breached his
duties by way of:
o a criminal violation, unless the director has reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful;
o a transaction from which the director derived an improper personal
benefit;
o declaration of unlawful distributions;
o in a derivative action, conscious disregard by the director for the
best interests of the corporation or willful misconduct by the
director; or
o in a third-party action, recklessness or actions or omissions
committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety or
property.
The charter documents of each of Holiday-Delaware and Holiday provide that
Holiday-Delaware and Holiday shall indemnify its directors and officers to the
fullest extent permitted under Delaware law and Florida law, respectively.
SPECIAL MEETINGS OF SHAREHOLDERS
Under Delaware law, a special meeting of shareholders may be called by the
corporation's board or by such persons as may be authorized by the corporation's
certificate of incorporation or bylaws. The proposed bylaws of Holiday-Delaware
provide that a special meeting may be called by the chairman of the board, the
president, a majority of the board or 10% of the shareholders of record of all
shares entitled to vote.
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Florida law provides that a special meeting of shareholders may be called
by:
o a corporation's board of directors;
o the persons authorized by the articles of incorporation or bylaws; or
o the holders of not less than 10% of all votes entitled to be cast on
any issue to be considered at the proposed special meeting.
A Florida corporation's articles of incorporation may require a higher
percentage of votes, up to a maximum of 50% to call a special meeting of
shareholders. Holiday's current Articles of Incorporation do not include any
such provision. The current bylaws of Holiday provide that a special meeting of
shareholders may be called by the board, the president or 10% of the
shareholders of record of all shares entitled to vote.
COMMITTEES OF THE BOARD OF DIRECTORS
Florida and Delaware law both provide that the board of directors may
delegate certain of their duties to one or more committees elected by a majority
of the board. A Delaware corporation can delegate to a committee of the board of
directors, among other things, the responsibility of nominating candidates for
election to the office of director, to fill vacancies on the board of directors,
and to reduce earned or capital surplus and authorize the acquisition of the
corporation's own stock. Moreover, if either the corporation's Certificate of
Incorporation or bylaws, or the resolution of the board creating the committee
so permits, a committee of the board of directors may declare dividends and
authorize the issuance of stock. Florida law places more limitations on the
types of activities that can be delegated to committees of the board. Under
Florida law, a committee of the board may not approve or recommend to
shareholders actions or proposals required to be approved by the shareholders,
fill a vacancy on the board, adopt, amend or repeal the bylaws, authorize the
issuance of stock, or authorize the reacquisition of the corporation's own
stock. In Delaware, a board committee may have only one member, where in Florida
or board committee must have at least two members.
VOTE REQUIRED FOR MERGERS
Florida law provides that the sale, lease, exchange or disposal of all, or
substantially all, of the assets of a Florida corporation, not in the ordinary
course of business, as well as any merger, consolidation or share exchange
generally must be recommended by the board of directors and approved by a vote
of a majority of the shares of each class of the stock of the corporation
entitled to vote on such matters. Under Florida law, the vote of the
shareholders of a corporation surviving a merger is not required if:
o the certificate or articles of incorporation of the surviving
corporation will not substantially differ from its articles of
incorporation before the merger; and
o each shareholder of the surviving corporation before the effective
date will hold the same number of shares, with identical designations,
preferences, limitations and relative rights immediately after the
merger.
Delaware law has a similar provision requiring shareholder approval in the
case of the disposition of assets or a merger or a share exchange. However, with
respect to mergers which do not require the vote of the corporation's
shareholders, Delaware law, unlike Florida law, also requires that either
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o no shares of common stock of the surviving corporation and no shares,
securities or obligations convertible into such stock are to be issued
or delivered under the plan of merger; or
o the authorized unissued shares or the treasury shares of common stock
of the surviving corporation to be issued or delivered under the plan
of merger, plus those initially issuable upon conversion of any other
shares, securities or obligations to be issued or delivered under such
plan, do not exceed 20% of the shares of common stock of such
constituent corporation outstanding immediately prior to the effective
date of the merger.
DISSENTERS' RIGHTS
Delaware law provides that dissenting shareholders who follow prescribed
statutory procedures are entitled to appraisal rights in the case of a merger of
a corporation, except that such rights are not provided when:
o no vote of the shareholders is required for the merger; or
o shares of the corporation are listed on a national securities exchange
or held by more than 2,000 shareholders and are to be exchanged solely
for shares of stock of another corporation which are listed on a
national securities exchange or held by more than 2,000 shareholders.
Florida law provides appraisal rights in connection with:
o a merger, except that such rights are not provided when:
o no vote of the shareholders is required for the merger; or
o shares of the corporation are listed on a national securities
exchange, traded on the Nasdaq National Market System, or held of
record by at least 2,000 shareholders;
o a sale of substantially all the assets of a corporation (with similar
restrictions as provided under the Delaware law for mergers);
o amendments to the articles of incorporation that may adversely affect
the rights or preferences of shareholders; and
o the granting of voting rights by shareholders to a control share
acquirer who holds a majority of the voting power of all outstanding
stock.
The shares of Holiday are presently traded on the Nasdaq National Market
System.
CORPORATE ACTION WITHOUT A SHAREHOLDER MEETING
Delaware and Florida law both permit corporate action without a meeting of
shareholders upon the written consent of the holders of that number of shares
necessary to authorize the proposed corporate action being taken, unless the
certificate of incorporation or articles of incorporation, respectively,
expressly provide otherwise. In the event such proposed corporate action is
taken without a meeting by less than the unanimous written consent of
shareholders, Delaware law requires that prompt notice of the taking of such
action be sent to those shareholders who have not consented in writing. Florida
law provides that such notice must be given within ten (10) days of the date
such shareholder authorization is granted. Neither Holiday's current Articles of
Incorporation nor the proposed Certificate of Incorporation includes a contrary
provision.
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CHARTER PROVISIONS
Holiday is also proposing for shareholder approval provisions in the
proposed Certificate of Incorporation and bylaws that, although permissible
under Florida law, are not present in our current Articles of Incorporation or
bylaws. Those provisions are:
o the authorization of preferred stock;
o the classification of the board; and
o advance notice provisions for shareholder proposals and director
nominations.
Each of these charter provisions may have the effect or be used to delay or
present a change in control of Holiday and each is discussed in more detail
under the following proposals:
o Proposal 3--authorizing preferred stock; and
o Proposal 5--classifying the board of directors and requiring advance
notice of shareholder proposals and nominations for the election of
directors.
These charter provisions are not being proposed in response to any present
attempt, known by the board of directors of Holiday to acquire control of
Holiday, to obtain representation on Holiday's board of directors or to take
significant corporate action, including the proposed Agreement and Plan of
Merger. Rather, management believes that in connection with the approval of the
transactions contemplated by the Agreement and Plan of Merger, the measures are
prudent and in the best interests of Holiday and its shareholders and should be
adopted for their protection. The board of directors further believes that the
present is an appropriate time to adopt the proposed measures, since they would
lessen the likelihood that Holiday would be required to incur significant
expense and might be subject to substantial disruption in connection with
attempt.
The board of directors does not have any current plans to seek shareholder
approval of any amendments to, or make changes in, Holiday's charter documents
that may be deemed to have antitakeover implications, except as described in
this proxy statement or as set forth in the proposed Certificate of
Incorporation and bylaws.
FEDERAL INCOME TAX CONSEQUENCES
The following description of federal income tax consequences is based on
the Internal Revenue Code of 1986, and applicable Treasury regulations, judicial
authority and current administrative rulings and practices as in effect on the
date of this proxy statement. This discussion should not be considered tax or
investment advice, and the tax consequences may not be the same for all
shareholders. In particular, this discussion does not address the tax treatment
of special classes of shareholders, such as banks, insurance companies,
tax-exempt entities and foreign persons. Shareholders desiring to know their
individual federal, state, local and foreign tax consequences should consult
their own tax advisors.
The reincorporation merger is intended to qualify as a tax-free
reorganization under Section 368(a)(1)(F) or 368(a)(1)(A) of the Code. Assuming
that tax treatment, no taxable income, gain, or loss will be recognized by
Holiday or the shareholders as a result of the exchange of shares of common
stock for shares of Holiday-Delaware common stock upon consummation of the
transaction.
The combination and change of each share of Holiday's common stock into one
share of Holiday-Delaware common stock will be a tax-free transaction, and the
holding period and tax basis of common stock will be carried over to a portion
of Holiday-Delaware common stock received in exchange.
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SECURITIES ACT CONSEQUENCES
The shares of Holiday-Delaware common stock to be issued in exchange for
shares of common stock are not being registered under the Securities Act of
1933, as amended. In that regard, Holiday-Delaware is relying on Rule 145(a)(2)
under the Securities Act, which provides that a merger which has "as its sole
purpose" a change in the domicile of a corporation does not involve the sale of
securities for purposes of the Securities Act, and on interpretations of the
rule by the SEC which indicate that the making of certain changes in the
surviving corporation's charter documents which could otherwise be made only
with the approval of the shareholders of either corporation does not render Rule
145(a)(2) inapplicable.
After the reincorporation merger, Holiday-Delaware will be a publicly-held
company, Holiday-Delaware common stock will be listed for trading in the Nasdaq
National Market system, and Holiday-Delaware will file periodic reports and
other documents with the SEC and provide to its shareholders the same types of
information that Holiday has previously filed and provided. Shareholders whose
common stock is freely tradable before the reincorporation merger will have
freely tradable shares of Holiday-Delaware common stock. Shareholders holding
restricted shares of common stock will have shares of Holiday-Delaware common
stock that are subject to the same restrictions on transfer as those to which
their present shares of common stock are subject, and their stock certificates,
if surrendered for replacement certificates representing shares of
Holiday-Delaware common stock, will bear the same restrictive legend as appears
on their present stock certificates. For purposes of computing compliance with
the holding period requirement of Rule 144 under the Securities Act,
shareholders will be deemed to have acquired their shares of Holiday-Delaware
common stock on the date they acquired their shares of Common Stock. In short,
Holiday-Delaware and its shareholders will be in the same respective positions
under the federal securities laws after the reincorporation merger as were
Holiday and the shareholders prior to the reincorporation merger.
DISSENTERS' RIGHTS OF APPRAISAL
The shareholders of Holiday are not entitled to exercise dissenters' rights
of appraisal under Sections 607.1301, 607.1302 or 607.1320 of the Florida
Business Corporation Act in connection the reincorporation.
APPROVAL BY SHAREHOLDERS OF THE REINCORPORATION MERGER WILL CONSTITUTE
APPROVAL OF THE AGREEMENT AND PLAN OF MERGER AND THE CERTIFICATE OF
INCORPORATION OF HOLIDAY-DELAWARE, EXCEPT AS PROVIDED IN PROPOSALS 2, 3 AND 5.
BOARD RECOMMENDATION
The board of directors recommends a vote "FOR" this proposal.
IF ANY OF THE REINCORPORATION PROPOSALS--PROPOSALS 1 THROUGH 7--ARE NOT
APPROVED, THEN NONE OF THE REINCORPORATION PROPOSALS WILL BE ENACTED.
PROPOSAL 2. INCREASING AUTHORIZED CAPITAL STOCK
The proposed Certificate of Incorporation provides that the number of
authorized shares of capital stock would be 25,000,000 shares of common stock,
an increase from the 10,000,000 shares of common
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stock presently authorized by Holiday's Articles of Incorporation. As of
November 17, 1999, 7,206,500 shares of common stock were outstanding. However,
Holiday has reserved for issuance approximately 380,000 additional shares of
common stock underlying options and warrants to purchase reserved shares of
common stock, which leaves a very small availability of common stock for
Holiday's future anticipated growth. At the meeting, the shareholders will be
asked to approve the portion of Article Fourth of the proposed Certificate of
Incorporation which provides for the authorized capital stock of Holiday to be
25,000,000 shares. The full text of the Certificate of Incorporation is set
forth in Appendix B.
The increase in the number of authorized shares of capital stock is
believed by the board of directors to be desirable in order to assure that there
will be sufficient authorized shares for a variety of corporate purposes,
including without limitation, in connection with financing and acquisition
transactions, programs to facilitate the growth and expansion of Holiday, for
stock splits and dividends, and for stock options and other employee benefit
plans. No plans are currently contemplated for the use of any of additional
authorized shares in the immediate future.
The additional authorized shares of capital stock are desirable and in the
best interests of Holiday in order to assure Holiday's flexibility of action in
the future. The additional shares of capital stock, together with any currently
authorized but unissued and unreserved shares of common stock, may be issued at
such times, to such persons and for such consideration as the board may
determine to be in Holiday's best interests without further shareholder
approval, except as otherwise required by statute or stock exchange rules.
Depending on the circumstances, issuance of additional shares of common stock
could affect the existing holders of shares by diluting the voting power of the
outstanding shares. The shareholders will not have preemptive rights under the
Certificate of Incorporation and will not have those rights with respect to the
additional authorized shares of common stock. See "The Reincorporation
Transactions" for an in-depth discussion of the entire transaction.
BOARD RECOMMENDATION
The board of directors recommends a vote "FOR" this proposal.
IF ANY OF THE REINCORPORATION PROPOSALS--PROPOSALS 1 THROUGH 7--ARE NOT
APPROVED, THEN NONE OF THE REINCORPORATION PROPOSALS WILL BE ENACTED.
PROPOSAL 3. AUTHORIZING PREFERRED STOCK
The proposed Certificate of Incorporation contains provisions which permit
the board to designate one or more series of preferred stock. Currently, no
shares of preferred stock are authorized under Holiday's Certificate of
Incorporation. At the meeting, the shareholders will be asked to approve the
portion of Article Fourth of the proposed Certificate of Incorporation which
authorizes the issuance of up to 2,000,000 shares of preferred stock. The full
text of the Certificate of Incorporation is set forth in Appendix B. Those
provisions are often referred to as "blank check" provisions, as they give the
board of directors the flexibility, at any time or from time to time, without
further shareholder approval, to create one or more series of preferred stock
and to determine the designations, preferences and limitations of each such
series, including but not limited to:
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o the number of shares,
o dividend rights;
o voting rights;
o conversion privileges;
o redemption provisions;
o sinking fund provisions;
o rights upon liquidation, dissolution or winding up of Holiday; and
o other relative rights, preferences and limitations of such series.
The board of directors believes that permitting the board to authorize the
issuance of up to 2,000,000 shares of "blank check" preferred stock provides
Holiday with the flexibility to address potential future financing needs by
creating a series of preferred stock customized to meet the needs of any
particular transaction and to market conditions. Holiday also could issue
preferred stock for other corporate purposes, such as to implement joint
ventures or to make acquisitions. Although Holiday is not currently considering
the issuance of preferred stock for such financing or transactional purposes and
has no present intention to issue any series of preferred stock, the board and
management believe that Holiday should have the flexibility to issue preferred
stock, along with its ability to issue debt and/or additional shares of common
stock. The preferred stock may be issued at such times, to such persons and for
such consideration as the board may determine to be in Holiday's best interests
without further shareholder approval, except as otherwise required by statute or
stock exchange rules.
If any series of preferred stock authorized by the board provides for
dividends, such dividends, when and as declared by the board of directors out of
any funds legally available for that purpose, may be cumulative and may have a
preference over the common stock as to the payment of such dividends. In
addition, if any series of preferred stock authorized by the board so provides,
in the event of any dissolution, liquidation or winding up of Holiday, whether
voluntary or involuntary, the holders of each such series of the then
outstanding preferred stock may be entitled to receive, prior to the
distribution of any assets or funds to the holders of common stock, a
liquidation preference established by the board of directors, together with all
accumulated and unpaid dividends. Depending upon the consideration paid for
preferred stock, the liquidation preference of preferred stock and other
matters, the issuance of preferred stock could therefore result in a reduction
in the assets available for distribution to the holders of common stock in the
event of liquidation of Holiday. Holders of common stock do not have any
preemptive rights to acquire preferred stock or any other securities of Holiday.
The proposal to authorize "blank check" preferred stock is not designed to
deter or to prevent a change in control. However, issuance of preferred stock
could have the effect of delaying, deterring or preventing a change in control
of Holiday, including the imposition of various procedural and other
requirements that could make it more difficult for holders of common stock to
effect certain corporate actions, including the ability to replace incumbent
directors and to accomplish transactions opposed by the incumbent board of
directors. Holiday could also privately place such shares with purchasers who
might favor the board of directors in opposing a hostile takeover bid, although
Holiday has no present intention to do so.
BOARD RECOMMENDATION
The board of directors recommends a vote "FOR" this proposal.
IF ANY OF THE REINCORPORATION PROPOSALS--PROPOSALS 1 THROUGH 7--ARE NOT
APPROVED, THEN NONE OF THE REINCORPORATION PROPOSALS WILL BE ENACTED.
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PROPOSAL 4. ADOPTION OF REVISED BYLAWS
The board of directors has recommended the adoption by Holiday-Delaware of
the bylaws in the event the reincorporation proposals are adopted. The bylaws
differ in substance from Holiday's existing bylaws primarily to comply with
current Delaware law and to conform to the proposed changes between Holiday's
Articles of Incorporation and the Certificate of Incorporation.
Some of the differences, however, may affect the rights of shareholders
under certain circumstances. Notably, the proposed bylaws of Holiday-Delaware
will contain provisions relating to indemnification of directors and officers.
The inclusion of these provisions could operate to the potential disadvantage of
the shareholders of Holiday-Delaware. These provisions are discussed in Proposal
1 under the heading "Disadvantage of Reincorporation in Delaware." For example,
their inclusion may have the effect of reducing the likelihood of
Holiday-Delaware's recovering monetary damages from directors as a result of
derivative litigation against directors for breach of their duty of care, even
though such an action, if successful, might otherwise have benefited
Holiday-Delaware and its shareholders.
In addition, if the reincorporation merger is effected and the limitation
on liability provision is part of the bylaws of Holiday-Delaware, the
shareholders of Holiday-Delaware will forego potential causes of action for
breach of duty of care involving grossly negligent business decisions, including
those relating to attempts to change control of Holiday-Delaware.
The full text of the proposed bylaws is set forth in Appendix C.
BOARD RECOMMENDATION
The board of directors recommends a vote "FOR" this proposal.
IF ANY OF THE REINCORPORATION PROPOSALS--PROPOSALS 1 THROUGH 7--ARE NOT
APPROVED, THEN NONE OF THE REINCORPORATION PROPOSALS WILL BE ENACTED.
PROPOSAL 5. CLASSIFY THE BOARD OF DIRECTORS AND REQUIRE ADVANCE NOTICE OF
SHAREHOLDER PROPOSALS AND NOMINATIONS FOR THE ELECTION OF DIRECTORS
The board has recommended that the shareholders approve provisions of the
proposed Certificate of Incorporation to provide for:
o the classification of the board of directors into three classes of
directors with staggered terms of office; and
o advance notice for shareholder proposals and nominees for director.
CLASSIFIED BOARD
Holiday's bylaws now provide that all directors are to be elected annually
for a term of one year. Delaware law permits provisions in a certificate of
incorporation or bylaw approved by shareholders that provide for a classified
board of directors. The proposed classified board provision in the proposed
Certificate of Incorporation and conforming amendments to the bylaws, described
in Appendices B and C to this proxy statement, would provide that directors will
be classified into three classes, as nearly equal in number as possible,
commencing at the annual meeting of shareholders in 2000. One class (Class I)
would hold office initially for a term expiring at the 2001 annual meeting of
shareholders; another class
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(Class II) would hold office initially for a term expiring at the 2002 annual
meeting; and another class (Class III) would hold office initially for a term
expiring at the 2003 annual meeting. At each annual meeting following this
initial classification and election, the successors to the class of directors
whose terms expire at that meeting would be elected for a term of office to
expire at the third succeeding annual meeting after their election and until
their successors have been duly elected and qualified.
The proposed classified board amendment will significantly extend the time
required to effect a change in control of the board of directors and may
discourage hostile takeover bids for Holiday. Currently, a change in control of
the board of directors can be made by shareholders holding a plurality of the
votes cast at a single annual meeting. If Holiday implements a classified board
of directors, it will take at least two annual meetings for even a majority of
shareholders to make a change in control of the board of directors, because only
a minority of the directors will be elected at each meeting.
Under Delaware law, directors chosen to fill vacancies on a classified
board shall hold office until the next election of the class for which such
directors shall have been chosen, and until their successors are elected and
qualified. Delaware law also provides that, unless the certificate of
incorporation provides otherwise, directors serving on a classified board of
directors may be removed only for cause. The proposed Certificate of
Incorporation does not provide otherwise. Accordingly, if the classified board
proposal is approved by the shareholders, conforming bylaw provisions,
substantially in the form attached as Appendix C to this proxy statement, will
be implemented. Presently, all directors of Holiday are elected annually and all
of the directors may be removed, with or without cause, by a majority vote of
the outstanding shares of the common stock. Cumulative voting is not authorized
by the Certificate of Incorporation.
The classified board proposal is designed to assure continuity and
stability in the board of directors' leadership and policies. While management
has not experienced any problems with such continuity in the past, it wishes to
ensure that this experience will continue. The board of directors also believes
that the classified board proposal will assist the board of directors in
attracting and retaining qualified persons to serve on the board and in
protecting the interests of shareholders in the event of an unsolicited offer
for Holiday.
Because of the additional time required to change control of the board of
directors, the classified board proposal will tend to perpetuate present
management. Without the ability to obtain immediate control of the board of
directors, a takeover bidder will not be able to take action to remove other
impediments to its acquisition of Holiday. Because the classified board proposal
will increase the amount of time required for a takeover bidder to obtain
control of Holiday without the cooperation of the board of directors, even if
the takeover bidder were to acquire a majority of Holiday's outstanding stock,
it will tend to discourage certain tender offers, perhaps including some tender
offers that shareholders may feel would be in their best interests. The
classified board proposal will also make it more difficult for the shareholders
to change the composition of the board of directors even if the shareholders
believe such a change would be desirable.
SHAREHOLDER NOTICE PROVISIONS
The proposed Certificate of Incorporation provides that any shareholder
proposals and nominations for the election of directors be delivered to Holiday
no less than 90 days nor more than 120 days in advance of the first anniversary
of Holiday's annual meeting held in the prior year, provided, however, in the
event Holiday shall not have had an annual meeting in the prior year, such
notice shall be delivered no less than 90 days nor more than 120 days in advance
of March 15 of the current year. The shareholder nominations must contain
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o as to each person whom the shareholder proposed to nominate for
election or re-election as a director at the annual meeting:
o the name, age, business address and residence address of the
proposed nominee;
o the principal occupation or employment of the proposed nominee;
o the class and number of shares of capital stock of Holiday which
are beneficially owned by the proposed nominee; and
o any other information relating to the proposed nominee that is
required to be disclosed in solicitations for proxies for
election of directors pursuant to Section 14(a) under the 1934
Act; and
o as to the shareholder giving notice of nominees for election at the
annual meeting:
o the name and record address of the shareholder; and
o the class and number of shares of capital stock of Holiday which
are beneficially owned by the shareholder.
At the meeting, the shareholders will be asked to approve Article Eighth of
the proposed Certificate of Incorporation and Section 2.13 of the proposed
bylaws relating to these notice provisions. The full text of the proposed
Certificate of Incorporation and bylaws are attached as Appendices B and C.
The purpose of this provision, by requiring advanced notice of a proposal
or nomination by a shareholder, is to afford the board of directors a meaningful
opportunity to consider the merits and/or qualifications of any proposal or
proposed nominee and, to the extent deemed necessary or desirable by the board,
inform shareholders about such qualifications. This provision, it is believed,
will further the objective of the board to identify business proposals which may
advance the interests of Holiday, or to identify candidates who have the
character, experience and proven accomplishments which give promise of
significant contribution to Holiday's business. This provision has not been
included as a result of any specific efforts of which Holiday is aware to
nominate or elect any director, to accumulate shares, or to obtain control of
Holiday by means of a merger, tender offer, solicitation in opposition to
management, or otherwise.
While such notice provision does not give the board of directors any power
to approve or disapprove of a shareholder nomination, it will preclude a
shareholder nomination from the floor or by other means if the proper procedures
are not followed. Although the board of directors does not believe that such
notice provision will have a significant impact on any attempt by a third party
from conducting a solicitation of proxies to elect its own slate of directors or
otherwise attempt to obtain control of Holiday, it is possible that this notice
provision may deter a third party from conducting a solicitation of proxies to
elect its own slate of directors or otherwise attempt to obtain control of
Holiday or effect a change in management, irrespective of whether such action
would be beneficial to shareholders generally, thereby possibly depriving
holders of Holiday's securities of certain opportunities to sell or otherwise
dispose of their securities, of certain opportunities to sell or otherwise
dispose of their securities at above-market prices, or limit the ability of
shareholders to remove incumbent directors as readily as the shareholders may
consider to be in their best interests.
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<PAGE>
BOARD RECOMMENDATION
The board of directors recommends a vote "FOR" this proposal.
IF ANY OF THE REINCORPORATION PROPOSALS--PROPOSALS 1 THROUGH 7--ARE NOT
APPROVED, THEN NONE OF THE REINCORPORATION PROPOSALS WILL BE ENACTED.
PROPOSAL 6. APPROVE THE HOLIDAY RV SUPERSTORES, INC.
1999 STOCK COMPENSATION PROGRAM
The board of directors has approved the adoption of the Holiday RV
Superstores, Inc. 1999 Stock Compensation Program. Neither the 1999 program nor
any proposed grants under the 1999 program will become effective unless the 1999
program is approved by the holders of record of a majority of the shares of
common stock present in person or represented by proxy at the meeting.
The following discussion of the principal features and effects of the 1999
program is qualified in its entirety by reference to the text of the 1999 Stock
Compensation Program set forth in Appendix D to this proxy statement.
PURPOSE, STRUCTURE, AWARDS AND ELIGIBILITY
The 1999 program is intended to secure for Holiday and its stockholders the
benefits arising from ownership of Holiday's common stock by individuals
employed or retained by Holiday who will be responsible for the future growth of
the enterprise. The 1999 program is designed to help attract and retain superior
personnel for positions of substantial responsibility with Holiday (including
advisory relationships where appropriate), and to provide individuals with an
additional incentive to contribute to our success.
The 1999 program is composed of seven parts and the program administrators
may make the following types of awards under the 1999 program:
(1) incentive stock options under the incentive stock option plan;
(2) nonqualified stock options under the nonqualified stock option plan;
(3) restricted shares under the restricted plan;
(4) rights to purchase stock under the employee stock purchase plan;
(5) stock appreciation rights under the stock appreciation rights plan;
(6) grants of options under the non-employee director stock option plan;
and
(7) specified other stock rights under the stock rights plan, which may
include the issuance of units representing the equivalent of shares of
common stock, payments of compensation in the form of shares of common
stock and rights to receive cash or shares of common stock based on
the value of dividends paid on a share of common stock.
Officers, key employees, directors, consultants and other independent
contractors or agents of Holiday who are responsible for or contribute to the
management, growth or profitability of Holiday's business will be eligible for
selection by the program administrators to participate in the 1999 program,
provided, however, that incentive stock options may be granted under the
incentive stock option plan only to a person who is an employee of Holiday.
Under the 1999 program, the board of directors, or its designated administrators
have the flexibility to determine the type and amount of awards to be granted to
eligible participants.
21
<PAGE>
SHARES SUBJECT TO 1999 STOCK PROGRAM
We have authorized and reserved for issuance an aggregate of 3,000,000
shares of our common stock under the 1999 program. The aggregate number of
shares of common stock which may be granted through awards under the 1999
program, other than stock payments and the purchase of stock under the employee
stock purchase plan, to any employee in any calendar year may not exceed three
percent of the then-outstanding shares of common stock. The shares of common
stock issuable under the 1999 program may be authorized but unissued shares,
shares issued and reacquired by Holiday or shares purchased by us on the open
market. If any of the awards granted under the 1999 program expire, terminate or
are forfeited for any reason before they have been exercised, vested or issued
in full, the unused shares subject to those expired, terminated or forfeited
awards will again be available for purposes of the 1999 program.
EFFECTIVE DATE AND DURATION
All of the plans other than the incentive stock option plan and the
employee stock purchase plan became effective upon their adoption by the board
of directors of Holiday. The incentive stock option plan and the employee stock
purchase plan will become effective upon their adoption by the board of
directors of Holiday and approval of the 1999 program by a majority of the
shareholders of Holiday. The 1999 program will continue in effect until
November 18, 2009 unless sooner terminated under the general provisions of the
1999 program.
ADMINISTRATION
The 1999 program will be administered by the board of directors or by a
committee appointed by the board, consisting of not less than two directors of
the company who are:
o non-employee directors (within the meaning of SEC Rule 16b-3
promulgated pursuant to the Securities Exchange Act of 1934), so long
as non-employee director administration is required under Rule 16b-3;
and
o outside directors (as defined in Section 162(m) of the Internal
Revenue Code of 1986), so long as outside directors are required by
the Code.
Subject to the foregoing limitations, the board of directors may from time
to time remove members from the committee, fill all vacancies on the committee,
however caused, and may select one of the members of the committee as its
chairman. The program administrators may hold meetings at such times and places
as they may determine, will keep minutes of their meetings, and may adopt, amend
and revoke rules and procedures in accordance with the terms of the 1999
program.
FEDERAL INCOME TAX CONSEQUENCES FOR PLAN AWARDS
Options granted under the 1999 program may be either incentive stock
options which satisfy the requirements of Section 422 of the Internal Revenue
Code of 1986 or nonqualified stock options which are not intended to meet those
requirements. Options granted under the non-employee director stock option plan
are non-statutory options.
INCENTIVE OPTIONS
No taxable income is recognized by the optionee at the time of the option
grant, and no taxable income is generally recognized at the time the option is
exercised. The optionee will, however, recognize
22
<PAGE>
taxable income in the year in which the purchased shares are sold or otherwise
disposed of. For federal tax purposes, dispositions are divided into two
categories, (i) qualifying and (ii) disqualifying. A qualifying disposition
occurs if the sale or other disposition is made after the optionee has held the
shares for more than two years after the option grant date and more than one
year after the exercise date. If either of these two holding periods is not
satisfied, then a disqualifying disposition will result.
If the optionee makes a disqualifying disposition of the option shares,
then Holiday will be entitled to an income tax deduction, for the taxable year
in which the disposition occurs, equal to the excess of (i) the fair market
value of the disposed shares on the option exercise date over (ii) the exercise
price paid for the shares. In no other instance will Holiday be allowed a
deduction with respect to the optionee's disposition of the option shares.
NONQUALIFIED OPTIONS
The federal income tax treatment for the nonqualified stock options is as
follows:
o No taxable income is recognized by an optionee upon the grant of a
nonqualified stock option. Generally, the optionee will recognize
ordinary income in the year in which the option is exercised. The
amount of ordinary income will equal the excess of the fair market
value of the purchased shares on the exercise date over the exercise
price paid for the shares. That amount increases the grantee's basis
in the stock acquired pursuant to the exercise of the non-qualified
option. The optionee is required to satisfy the tax withholding
requirements applicable to that income. Upon a subsequent sale of the
stock, the grantee will incur short-term or long-term gain or loss
depending upon his holding period for the shares and upon the shares'
subsequent appreciation or depreciation in the value.
o Holiday will be entitled to an income tax deduction equal to the
amount of ordinary income recognized by the optionee with respect to
the exercised nonqualified stock option. The deduction generally will
be allowed for by Holiday in the taxable year that the ordinary income
is recognized by the optionee.
RESTRICTED PLAN PURCHASES
The tax principles applicable to the issuance of restricted shares under
the 1999 program will be substantially the same as those summarized above for
the exercise of non-statutory option grants in that they are both governed by
Section 83 of the Code. Restricted shares are not taxed at the time of grant
unless the grantee elects to be taxed under Section 83(b) of the Code. When the
restriction lapses, the grantee will have ordinary income equal to the fair
market value of the shares on the vesting date. Alternatively, at the time of
the grant, the grantee may elect under Section 83(b) of the Code to include as
ordinary income in the year of the grant, an amount equal to the fair market
value of the granted shares on the grant date. If the Section 83(b) election is
made, the grantee will not recognize any additional income when the restriction
lapses. Holiday will be entitled to an income tax deduction equal to the
ordinary income recognized by the grantee in the year in which the grantee
recognizes such income.
EMPLOYEE STOCK PURCHASE PLAN PURCHASES
The employee stock purchase plan is intended to be an employee stock
purchase plan within the meaning of Section 423 of the Code. Under a Section 423
qualified plan, no taxable income will be recognized by a participant, and no
deductions will be allowable to Holiday, in connection with the grant or the
exercise of an outstanding purchase right. Taxable income will not be recognized
until there is a
23
<PAGE>
sale or other disposition of the shares acquired under the plan or in the event
the participant should die while still owning the purchased shares.
If the participant sells or otherwise disposes of the purchased shares
within two years after the start date of the purchase period in which the shares
were acquired, then the participant will recognize ordinary income in the year
of sale or disposition equal to the amount by which the fair market value of the
shares on the purchase date exceeded the purchase price paid for those shares,
and Holiday will be entitled to an income tax deduction, for the taxable year in
which the sale or disposition occurs, equal in amount to the excess.
If the participant sells or disposes of the purchased shares more than two
years after the start date of the purchase period in which the shares were
acquired, then the participant will recognize ordinary income in the year of
sale or disposition equal to the lesser of (1) the amount by which the fair
market value of the shares on the sale or disposition date exceeded the purchase
price paid for those shares or (2) 15% of the fair market value of the shares on
the start date of that purchase period, and any additional gain upon the
disposition will be taxed as a long-term capital gain. Holiday will not be
entitled to any income tax deduction with respect to that sale or disposition.
If the participant still owns the purchased shares at the time of death,
the lesser of (1) the amount by which the fair market value of the shares on the
date of death exceeds the purchase price or (2) 15% of the fair market value of
the shares on the start date of the purchase period in which those shares were
acquired will constitute ordinary income in the year of death.
STOCK APPRECIATION RIGHTS
A 1999 program participant who is granted a stock appreciation right will
recognize ordinary income in the year of exercise equal to the amount of the
appreciation distribution. Holiday will be entitled to an income tax deduction
equal to the appreciation distribution for in the taxable year that the ordinary
income is recognized by the participant.
STOCK RIGHTS
Generally, a program participant who is granted other stock rights will
recognize ordinary income in the year of the grant of the right, if a present
transfer of stock or value is made to the participant, or in the year of
payment, such as in the case of a dividend equivalent right. That income will
generally be equal to the fair market value of the granted right or payment.
Holiday will generally be entitled to an income tax deduction equal to the
income recognized by the participant on the grant or payment date for the
taxable year in which the ordinary income is recognized by the participant.
DEDUCTIBILITY OF EXECUTIVE COMPENSATION
We anticipate that any compensation deemed paid by Holiday in connection
with the disqualifying disposition of incentive stock option shares or the
exercise of nonqualified stock options granted with exercise prices equal to the
fair market value of the shares on the grant date will generally qualify as
performance-based compensation for purposes of Code Section 162(m) and will not
have to be taken into account for purposes of the $1 million limitation per
covered individual on the deductibility of the compensation paid to certain
executive officers of Holiday. Accordingly, we believe all compensation deemed
paid under the 1999 program with respect to those dispositions or exercises will
remain deductible by Holiday without limitation under Code Section 162(m).
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<PAGE>
ACCOUNTING TREATMENT
Option grants or stock issuances with exercise or issue prices less than
the fair market value of the shares on the grant or issue date will result in
compensation expense to Holiday equal to the difference between the exercise or
issue price and the fair market value of the shares on the grant or issue date.
The only exception to this are shares issued under the employee stock purchase
plan. Under current accounting rules, the issuance of common stock under the
employee stock purchase plan allows Holiday to continue to measure compensation
cost of this plan using the intrinsic value. However, the impact of purchase
rights granted under the employee stock purchase plan must be disclosed in pro
forma financial statements to reflect their impact on reported earnings and
earnings per share as if the fair value method had been applied. Compensation
expense will be expensed over the period that the option shares or issued shares
are to vest. Option grants or stock issuances at 100% of fair market value will
not result in any charge to Holiday's earnings. Whether or not granted at a
discount, the number of outstanding options may be a factor in determining
Holiday's earnings per share on a diluted basis.
Under a recently proposed amendment to the current accounting principles,
option grants made to non-employee board members or consultants after December
15, 1998 will result in a direct charge to Holiday's reported earnings based
upon the fair value of the option measured on the vesting date of each
installment of the underlying option shares. The charge must include the
appreciation in the value of the option shares over the period between the grant
date of the option (or, if later, the effective date of the final amendment) and
the vesting date of each installment of the option shares. In addition, if the
proposed amendment is adopted, any options that are repriced after December 15,
1998 also will trigger a direct charge to Holiday's reported earnings measured
by the appreciation in the value of the underlying shares over the period
between the grant date of the repriced option (or, if later, the effective date
of the final amendment) and the date the option is exercised.
If an optionee is granted stock appreciation rights having no conditions
upon exercisability other than a service or employment requirement, then those
rights will result in compensation expense to Holiday.
The foregoing outline is no more than a summary of the federal income tax
and accounting provisions relating to the grant and exercise of options, stock
awards and stock appreciation rights under the 1999 program and the sale of
shares acquired under the 1999 program. Individual circumstances may vary these
results. The federal income tax laws and regulations are constantly being
amended, and each participant should rely upon his or her own tax counsel for
advice concerning the federal income tax provisions applicable to the 1999
program.
The board of directors believes it is in Holiday's best interests to
approve the 1999 program which would allow Holiday to grant options and make
other awards under the 1999 program to secure for Holiday the benefits of the
additional incentive inherent in the ownership of shares of Holiday's common
stock by key employees and to help Holiday secure and retain the services of key
employees to enable compensation under the 1999 program to qualify as
"performance-based" for purposes of Section 162(m) of the Code.
BOARD RECOMMENDATION
The board of directors recommends a vote "FOR" this proposal.
IF ANY OF THE REINCORPORATION PROPOSALS--PROPOSALS 1 THROUGH 7--ARE NOT
APPROVED, THEN NONE OF THE REINCORPORATION PROPOSALS WILL BE ENACTED.
25
<PAGE>
PROPOSAL 7. APPROVE THE GRANT IN MAY 1999 OF OPTIONS
TO HOLIDAY'S DIRECTORS
In May 1999, the board of directors approved the grant of options to
purchase 10,000 shares to each of the seven directors who had served on the
board of directors for at least three years. These proposed grants were made in
consideration of the substantial work the directors had performed for Holiday in
prior years. The exercise price for the options was the fair market value of
Holiday's common stock on May 21, 1999 or $3.44. The options have a 10-year term
and are not exercisable until May 17, 2000.
As an issuer of securities quoted on the Nasdaq National Market, Holiday
must comply with certain rules of the National Association of Securities
Dealers, Inc. The Nasdaq Stock Market, Inc. for continued listing on the Nasdaq
National Market. Under NASD Marketplace Rule 4460(i), Holiday must obtain
stockholder approval of a plan or arrangement under which stock may be acquired
by officers or directors, except for warrants or rights issued generally to
security holders of the company or broadly based plans or arrangements including
other employees. This requirement generally does not apply if the amount of
securities which may be issued under the plan or arrangement does not exceed the
lesser of (1) 1% of the number of shares of common stock, (2) 1% of the voting
power outstanding, or (3) 25,000 shares. The stock option grants to the
directors aggregate 70,000 shares. Accordingly, Holiday is seeking shareholder
approval and authorization of:
o the grant of the stock options to the directors; and
o the issuance of shares to the directors upon exercise of the options.
Principal effects of the approval and ratification of the options
If shareholder approval is obtained, the option grants will become
effective and Holiday would be permitted to issue shares of common stock upon
exercise of the options under NASD Marketplace Rule 4460(i). The grant of the
options to the directors was in consideration of past services. If the grants
are not approved, Holiday may lose the services of the three directors who have
continued to serve on the board of directors, Messrs. Clubbe, Kamm and
McAlhaney.
The issuance of common stock upon exercise of the options will likely cause
dilution to the interests of the holders of common stock. Although the options
were not dilutive on the date of grant--because the exercise price was equal to
the fair market value of the common stock on those dates--as with all options,
it is most likely that they will be exercised only when the stock price is in
excess of the exercise price, in which case the issuance will be dilutive to
other shareholders' interests.
If Holiday does not obtain approval from its shareholders for the grant of
the options, but Holiday nonetheless grants the options as described in this
proposal, Nasdaq could delist Holiday's common stock from the Nasdaq National
Market. Because the same NASD Marketplace Rule applies to the Nasdaq SmallCap
Market, if this happens, the common stock could be traded in the
over-the-counter market (1) on the OTC Bulletin Board, an electronic bulletin
board established for securities that do not meet the Nasdaq National or
SmallCap Market listing requirements, or (2) in what is commonly referred to as
the "pink sheets" reporting mechanism of the National Quotation Bureau,
Incorporated. If the common stock were delisted, its market price may be
adversely impacted and shareholders may find it difficult to dispose, or obtain
accurate quotations as to the market value, of your shares of common stock. In
addition, Holiday may find it more difficult to obtain future financing.
The board of directors believes it is in Holiday's best interests to
approve the stock option grants to the directors to compensate the directors for
their past service to Holiday and to secure for Holiday the
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<PAGE>
benefits of the additional incentive inherent in the ownership of shares of
Holiday's common stock by the continuing directors.
BOARD RECOMMENDATION
The board of directors recommends a vote "FOR" this proposal.
IF ANY OF THE REINCORPORATION PROPOSALS--PROPOSALS 1 THROUGH 7--ARE NOT
APPROVED, THEN NONE OF THE REINCORPORATION PROPOSALS WILL BE ENACTED.
27
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as to the shares of common stock
owned as of November 17, 1999, by:
(i) each person who beneficially owned more than five percent of the
outstanding common stock of Holiday;
(ii) each director or director nominee;
(iii) each of the CEO and each of the other four most highly compensated
executive officers whose annual compensation exceeded $100,000; and
(iv) all the directors, directors nominees and officers as a group.
Subject to community property laws where applicable, the person(s) as to
whom the information is given had sole voting and investment power over the
shares of common stock shown as beneficially owned. However, Holiday understands
that each of Newton and Joanne Kindlund disclaim beneficial ownership of the
other's stock. The share numbers and percentages are calculated on the basis of
the number of outstanding securities on November 17, 1999, which was 7,206,500,
plus securities underlying each holder's options, warrants and securities
convertible into common stock which have been issued and were exercisable within
sixty (60) days of November 17, 1999, in accordance with SEC Rule 13d-3. Under
this rule, the proposed option grants to the directors made in May 1999, which
are not exercisable for one year, are not included in the table. Unless a person
beneficially owns more than one percent of the outstanding common stock, no
percentage is presented in the table. The address of all officers and directors
is 7851 Greenbriar Parkway, Orlando, Florida 32819. Michael S. Riley, the
Chairman of Holiday, is the Chairman of Atlas Recreational Holdings, Inc. and,
as a result, all shares owned by Atlas are presented as beneficially owned by
Mr. Riley also.
<TABLE>
OPTIONS
NUMBERS OF SHARES INCLUDED IN
NAME AND ADDRESS BENEFICIALLY OWNED IN TOTAL PERCENTAGE OF CLASS
- ------------------------------------------- ------------------------ ------------------- --------------------
<S> <C> <C> <C>
Atlas Recreational Holdings, Inc. 4,158,244 57.86%
701 Brickell Avenue,
Suite 3120
Miami, Florida 33131
Newton C. Kindlund 144,292 2.00
Joanne M. Kindlund 144,292 2.00
Michael S. Riley 4,158,244 57.86
W. Hardee McAlhaney 135,000 125,000 1.85
Paul G. Clubbe 50,000 *
David A. Kamm 0 *
William E. Curtis 0 *
David J. Doerge 0 *
Ronald G. Huneycutt 0 *
All directors, director nominees
and officers as a group (11 persons) 4,631,828 135,000 63.26%
</TABLE>
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<PAGE>
OTHER INFORMATION
EXECUTIVE COMPENSATION
The table below sets forth the cash compensation including salaries,
bonuses, contributions to retirement plans, premium paid on health and dental
insurance plans and disability insurance plans, paid by Holiday for the years
ended October 31, 1999, 1998, and 1997, to, or for the benefit of, the chief
executive officer and each other executive officer whose aggregate cash
compensation exceeded, or would have exceeded, $100,000 for the fiscal year
ended October 31, 1999. Mr. Kindlund resigned as an officer of Holiday in June
1999 and Mr. McAlhaney was named chief executive officer concurrently with that
resignation. Mr. Kindlund's options were granted to him in connection with his
retention as a consultant following his resignation as an officer and director
of Holiday.
<TABLE>
SUMMARY COMPENSATION TABLE
- -----------------------------------------------------------------------------------------------------------------------------
ANNUAL LONG-TERM
COMPENSATION COMPENSATION
-------------------------------------- -----------------------------------------
OTHER ANNUAL RESTRICTED STOCK
NAME AND SALARY BONUS COMPENSATION STOCK OPTIONS OTHER
PRINCIPAL POSITION YEAR ($) ($) ($) AWARD(S) ($) (#) ($)
- ------------------------------ --------- ----------- ----------- ------------- ------------ --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Newton C. Kindlund 1999 $ 69,592 $ 59,666 -- -- 40,000 --
Chairman, President 1998 108,847 -- -- -- -- --
Chief Executive Officer 1997 107,587 -- -- -- -- --
W. Hardee McAlhaney 1999 $ 97,500 $ 88,128 -- -- -- $597
President and Chief 1998 80,196 75,002 -- -- -- 597
Executive Officer 1997 81,437 52,477 -- -- -- 597
</TABLE>
The salary figures include contributions by Holiday pursuant to an employee
benefit plan established under Section 401(k) of the Internal Revenue Code in
the amounts of $0, $2,859 and $3,181 for Mr. Kindlund for 1999, 1998 and 1997
respectively, and $0, $4,549 and $4,027 for Mr. McAlhaney for 1999, 1998 and
1997 respectively. Mr. McAlhaney's bonuses are based on Holiday's net income
before taxes. The other compensation payable to Mr. McAlhaney consisted of
Holiday's payment of a part of the premium on a term life insurance policy for
Mr. McAlhaney whose sole beneficiary is designated by Mr. McAlhaney. The policy
has no cash surrender value provisions.
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<PAGE>
OPTION/SAR GRANTS IN LAST FISCAL YEAR
The following table sets forth information concerning stock option grants
made in the fiscal year ended October 31, 1999, to the individuals named in the
Summary Compensation Table. There were no grants of SARs during the year. Mr.
Kindlund's options were granted to him in connection with his retention as a
consultant following his resignation as an officer and director of Holiday.
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE
VALUE AT ASSUMED ANNUAL
RATES OF STOCK PRICE
APPRECIATION FOR OPTION
INDIVIDUAL GRANTS TERM
- ---------------------------------------------------------------------------------------------------------------------------
PERCENT OF
NUMBER OF TOTAL
SECURITIES OPTIONS/SARS
UNDERLYING GRANTED TO EXERCISE OR
OPTIONS EMPLOYEES IN BASE PRICE EXPIRATION
NAME GRANTED (#) FISCAL YEAR ($/SH) DATE 5% ($) 10%($)
- -------------------------- ------------- --------------- ------------- ------------ ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Newton C. Kindlund 40,000 100% $3.21 6/30/04 $35,600 $78,400
</TABLE>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR END OPTION
VALUES
The following table sets forth information concerning the number and value
of options held at October 31, 1999, by the individuals named in the Summary
Compensation Table. There were no options or SARs exercised during fiscal 1999
and no SARs were held at year-end. The fiscal year-end values are based on a
price of $4.313, the reported closing price of common stock on October 29, 1999.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY OPTIONS
OPTIONS AT FY-END (#) FY-END ($) (1)
---------------------------------------- ----------------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ----------------------- ----------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
W. Hardee McAlhaney 125,000 -- $326,765 --
Newton C. Kindlund -- -- -- --
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
DISCRETIONARY AND INCENTIVE BONUSES
The board of directors awards discretionary cash bonuses to executive
officers and other employees each year. Bonuses have been paid under various
informal arrangements that have provided for the payment of stipulated amounts
to some executive officers ratably during the fiscal year, fiscal year-end
bonuses to some executive officers and to marketing and sales support personnel.
Holiday has established an incentive bonus program for its employees with
bonuses generally paid monthly or annually. Bonuses are primarily based on net
pre-tax profits from the various profit centers within each dealership and are
contingent upon continued employment with Holiday.
30
<PAGE>
DIRECTORS FEES
Directors who are not salaried employees of Holiday receive $500 for their
attendance at each meeting of the board of directors and the annual shareholders
meeting and $175 for their attendance at each committee meeting. The directors
are reimbursed for their travel, lodging and food expense incurred when
attending these meetings if the meetings are held in a location in excess of
twenty five (25) miles from Holiday's principal place of business of Holiday in
Orlando, Florida. Directors are also reimbursed for their travel, lodging and
food expenses incurred when traveling on behalf of Holiday when requested to do
so by an officer of Holiday or by the board of directors.
DIRECTORS' OPTIONS
Each outside director serving on the board as of February 20, 1993 was
granted an option for 10,000 shares of common stock of Holiday, exercisable
after February 20, 1995. The exercise price was $1.81 per share, the price of
Holiday's common stock at the time of the grant. A total of five (5) options
were granted, one to each of five directors (total of 50,000 shares).
In May 1999, the board of directors approved the grant of options to
purchase 10,000 shares to each of the seven directors who had served on the
board of directors for at least three years. These proposed grants were made in
consideration of the substantial work the directors had performed for Holiday in
prior years. The exercise price for the options was the fair market value of
Holiday's common stock on May 21, 1999 or $3.44. The options have a ten-year
term and are not exercisable until May 17, 2000.
CONSULTING AGREEMENTS
In June 1999, following the Kindlund's sale of substantially all of their
Holiday common stock and resignation from their management roles with Holiday,
each of Joanne and Newton Kindlund entered into a consulting agreement with
Holiday. The purposes for these agreements were to provide for the smooth
transition of our management and support Holiday's current acquisition and
expansion efforts. As consideration for the Kindlund's continued services,
Holiday's board approved the grant to each of Joanne and Newton Kindlund of an
option to purchase 40,000 shares of common stock. The exercise price for the
options was the fair market value of Holiday's common stock on June 22, 1999, or
$3.21. The options have a five-year term.
EMPLOYEE BENEFIT PLANS
Holiday maintains a tax qualified, profit sharing and 401(k) employee
investment plan. All employees who have attained 21 years of age and complete
one year of service are eligible to participate in the plan. Plan participants
must complete at least two (2) years of service to begin partial vesting, with
total vesting occurring when a plan participant has completed five and one half
(5-1/2) years of service to Holiday. Normal retirement age under the retirement
plan is 65 years. The plan fiscal year ends October 31 each year.
In fiscal 1999, there were no contributions made to the plan for the
benefit of 140 plan participants. Annual contributions are made at the
discretion of the board of directors, which typically occurs at the first board
meeting following the end of the fiscal year. In fiscal 1998, $98,427 was
contributed to the plan for the benefit of 115 plan participants.
31
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Prudential Bank and Trust Company (One Ravinia Drive, Ste. 1000, Atlanta,
GA 30346, 770-551-6700), is the plan trustee. Holiday is the plan administrator.
The plan document provides for contributions at the discretion of the board
of directors, to be allocated to each plan participant in an amount not greater
than 10% of each participant's compensation, subject to the annual contribution
limitation of the top-heavy rules. Under the plan, compensation is broadly
defined to include wages, salaries, bonuses, overtime and commissions. Amounts
contributed to the plan by Holiday for the 1999, 1998 and 1997 plan years on
behalf of the named individuals are included in the Executive Compensation
Table, of this report are included in said table.
1987 INCENTIVE STOCK OPTION PLAN
In August 1987, the board of directors adopted the 1987 incentive stock
option plan which provides that Holiday may grant to officers and managerial
employees of Holiday and its subsidiaries incentive stock options. The purpose
of the plan is to provide Holiday with a means of attracting, retaining and
increasing the incentive of officers and managerial employees by offering them
the opportunity to invest in, or increase their investment in, Holiday. Options
under the plan are designed to qualify under Section 422 of the Code. The plan
terminated in August 1997.
The plan is administered by the compensation advisory committee of the
board of directors which was entitled to grant options to purchase up to an
aggregate of 280,000 shares of common stock. The option exercise price was
required to be at least 100% of the fair market value per share of common stock
on the date of grant. The options are exercisable, as determined by the
committee, over a period of time, but not more than ten years from the date of
grant. Any option granted to an employee lapses following termination of
employment; PROVIDED, HOWEVER, that in the discretion of the committee,
employees have up to three (3) months following termination of employment to
exercise options. In addition, upon the employee's permanent and total
disability, any option granted to the employee may be exercised within 12 months
following termination of employment because of disability. The plan provides for
certain anti-dilution adjustments upon the occurrence of certain events.
Five separate options for 25,000 shares each were granted under the plan to
W. Hardee McAlhaney, president, chief executive officer and a director of
Holiday. The options were approved by the board of directors on the following
dates and at the following option exercise prices:
DATE SHARES EXERCISE PRICE
---------------- ------------ ----------------
May 23, 1994 25,000 $1.819
February 20, 1993 25,000 $1.813
March 24, 1992 25,000 $1.375
November 17, 1990 25,000 $1.625
May 14, 1990 25,000 $2.500
------------
125,000
BONUS STOCK
In September 1987, Holiday issued 250,000 shares of common stock to various
individuals including officers, directors and employees of Holiday for services
rendered. These shares have certain restrictions and forfeiture provisions
attached to them. Since September 1987, a number of recipients of those shares
have terminated their employment with Holiday, resulting in their bonus shares
being forfeited to Holiday. After September 1987, Holiday made additional awards
of bonus shares to employees; however, no shares in excess of the initial
250,000 shares have been issued, since forfeited
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shares equaled or exceeded the number of bonus shares subsequently issued.
Beginning with the year ended October 31, 1987, and over a period of two to
five years the value of these shares were charged against earnings of Holiday.
Holiday valued the shares initially issued at 50% of the initial public offering
price of the common stock or $1.25. Shares issued subsequent to September 1987
were valued at 100% of the market value on the day of issue.
The amount of shares awarded and fair market value assigned to the shares
for the last three fiscal years are as follows:
BONUS STOCK
- --------------------------------------------------------------------------------
FAIR MARKET VALUE AT TIME OF
FISCAL YEAR NUMBER SHARES AWARDED AWARD
- -------------- ---------------------------- -------------------------------
1999 -- --
1998 -- --
1997 5,000 $11,250
The bonus stock awards listed above require a two-year vesting and
employment period. As of October 31, 1999, 218,700 shares had been granted
pursuant to the plan.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Holiday's compensation advisory committee consisted of Messrs. W. Hardee
McAlhaney, James P. Williams and Roy W. Parker until June 30, 1999. Messrs.
Williams and Parker resigned as directors on June 30, 1999. Mr. McAlhaney
resigned as a committee member on August 20, 1999, and Michael S. Riley was
appointed to the committee on that date. On August 20, 1999, Ronald G.
Huneycutt, the secretary and a director appointee, and Patrick R. McNair, the
chief financial officer, were also appointed as EX OFFICIO members of the
committee. Mr. McAlhaney is the president and chief executive officer of Holiday
and Mr. Riley is the chairman of the board.
SOLICITATION EXPENSES AND MANNER
All expenses in connection with the solicitation of proxies will be borne
by Holiday. In addition to the use of the mails, solicitations may be made by
regular employees of Holiday, by telephone, telegraph or personal contact,
without additional compensation.
SHAREHOLDER PROPOSALS
Holiday anticipates holding an annual meeting in March 2000. In order to be
considered for inclusion in the proxy materials to be distributed in connection
with the next annual meeting of shareholders of Holiday, under Rule 14a-8,
shareholder proposals for such meeting must be submitted to Holiday no later
than October 31, 1999. If the reincorporation proposals are approved, notice of
shareholder proposals submitted outside the provisions of Rule 14a-8 will be
considered untimely if they are not submitted by December 17, 1999.
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OTHER MATTERS
So far as now known, there is no business other than that described in this
proxy statement to be presented for action by the shareholders at the meeting,
but it is intended that the proxies will be voted upon any other matters and
proposals that may legally come before the meeting or any adjournment thereof,
in accordance with the discretion of the persons named in the proxies.
By Order of the Board of Directors of
HOLIDAY RV SUPERSTORES, INCORPORATED
By: /s/ RONALD G. HUNEYCUTT
----------------------------------
Ronald G. Huneycutt
Secretary
November 26, 1999
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APPENDIX A
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN MERGER (the "Agreement"), dated as of November 23,
1999, is entered into by and between Holiday RV Superstores, Incorporated, a
Florida corporation ("Holiday Florida") and Holiday RV Superstores, Inc., a
Delaware corporation ("Holiday-Delaware").
WITNESSETH:
WHEREAS, Holiday Florida is a corporation duly organized and existing under
the laws of the State of Florida;
WHEREAS, the respective Boards of Directors of Holiday Florida and Holiday
Delaware have determined that it is advisable and in the best interests of each
of such corporations that Holiday Florida merge with and into Holiday Delaware
(the "Merger") upon the terms and subject to the conditions set forth in this
Agreement for the purpose of effecting the change of the state of incorporation
of Holiday Florida from Florida to Delaware;
WHEREAS, the respective Boards of Directors of Holiday Florida and Holiday
Delaware have, by resolutions duly adopted, approved this Agreement, subject to
the approval of the shareholders of each of Holiday Delaware and Holiday
Florida; and
WHEREAS, this Agreement is intended as a tax free plan of reorganization
within the meaning of Section 368 of the Internal Revenue Code.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Holiday Florida and Holiday Delaware hereby agree as follows:
1. MERGER. Holiday Florida shall be merged with and into Holiday Delaware
and Holiday Delaware shall be the surviving corporation (hereinafter sometimes
referred to as the "Surviving Corporation"). The Merger shall become effective
upon the date and time when this Agreement is made effective in accordance with
applicable law (the "Effective Time").
2. GOVERNING DOCUMENTS; EXECUTIVE OFFICERS AND DIRECTORS. The Certificate
of Incorporation of Holiday Delaware, from and after the Effective Time, shall
be the Certificate of Incorporation of the Surviving Corporation without change
or amendment until thereafter amended in accordance with the provisions thereof
and applicable laws. The Bylaws of Holiday Delaware from and after the Effective
Time, shall be the Bylaws of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof, or
the Certificate of Incorporation of the Surviving Corporation and applicable
laws. The executive officers, directors and members of committees of the Board
of Directors of Holiday Florida, as of the Effective Time, shall become the
executive officers, directors and members of committees of the Board of
Directors of the Surviving Corporation, from and after the Effective Time, until
their respective successors have been duly elected and qualify, unless they
earlier die, resign or are removed.
3. SUCCESSION. At the Effective Time, the separate corporate existence of
Holiday Florida shall cease, and Holiday Delaware shall possess all the rights,
privileges, powers and franchises of a public and private nature of Holiday
Florida; and all property, real, personal and mixed, and all debts due to
Holiday Florida on whatever account, as well as for share subscriptions as all
other things in action belonging to Holiday Florida, shall be vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every interest shall be thereafter as effectually the
property of the Surviving
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Corporation as they were of Holiday Florida, and the title to any real estate
vested by deed or otherwise in Holiday Florida shall not revert or be in any way
impaired by reason of the Merger; but all rights of creditors and all liens upon
any property of Holiday Florida shall be preserved unimpaired, and all debts,
liabilities and duties of Holiday Florida shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as if
such debts, liabilities and duties had been incurred or contracted by it. All
corporate acts, plans, policies, agreements, arrangements, approvals and
authorizations of Holiday Florida its shareholders, Board of Directors and
committees thereof, officers and agents which were valid and effective
immediately prior to the Effective Time, shall be taken for all purposes as the
acts, plans, policies, agreements, approvals and authorizations of the Surviving
Corporation and shall be as effective and binding thereon as the same were with
respect to Holiday Florida. The employees and agents of Holiday Florida shall
become the employees and agents of the Surviving Corporation and continue to be
entitled to the same rights and benefits which they enjoyed as employees and
agents of Holiday Florida. The requirements of any plans or agreements of
Holiday Florida involving the issuance or purchase by Holiday Florida of certain
shares of its capital stock shall be satisfied by the issuance or purchase of a
like number of shares of the Surviving Corporation.
4. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of Holiday Florida such deeds and other instruments, and
there shall be taken or caused to be taken by it all such further and other
action, as shall be appropriate, advisable or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Holiday Florida, and otherwise
to carry out the purposes of this Agreement, and the officers and directors of
the Surviving Corporation are fully authorized in the name and on behalf of
Holiday Florida or otherwise, to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
5. CONVERSION OF SHARES. At the Effective Time, by virtue of the Merger and
without any action on the part of the holder thereof:
(a) Each share of the common stock, par value $.01 per share
(the "Holiday Florida Common Stock") of Holiday Florida outstanding
immediately prior to the Effective Time shall be changed and converted
into and shall be one fully paid and nonassessable share of common
stock, par value $.01 per share (the "Holiday Delaware Common Stock")
of Holiday Delaware and no fractional shares shall be issued and
fractions of half or more shall be rounded to a whole share and
fractions of less than half shall be disregarded, such that the issued
and outstanding capital stock of Holiday Delaware resulting from the
conversion of the capital stock of Holiday Florida upon the Effective
Time shall be equal to the number of shares of Common Stock at that
time; and
(b) As of the Effective Time, Holiday Delaware hereby assumes
all obligations under any and all employee benefit plans of Holiday
Florida in effect as of the Effective Time or with respect to which
employee rights or accrued benefits are outstanding as of the Effective
Time and shall continue the stock option plans of Holiday Florida. Each
outstanding and unexercised option, warrant or other right to purchase,
or security convertible into Holiday Florida Common Stock shall become
an option, warrant or right to purchase, or a security convertible into
the Surviving Corporation's Common Stock on the basis of one share of
the Surviving Corporation's Common Stock for each share of Holiday
Florida Common Stock issuable pursuant to any such option, warrant or
stock purchase right or convertible security, on the same terms and
conditions and at an exercise or conversion price per share equal to
the exercise or conversion price per share applicable to any such
Holiday Florida option, warrant, stock purchase right or other
convertible security at the Effective Time. A number of shares of the
Surviving Corporation's
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Common Stock shall be reserved for issuance upon the exercise of
options, warrants, stock purchase rights and convertible securities
equal to the number of shares of Holiday Florida Common Stock so
reserved immediately prior to the Effective Time.
(c) The shares of Holiday Delaware Common Stock presently
issued and outstanding in the name of Holiday Florida shall be canceled
and retired and resume the status of authorized and unissued shares of
Holiday Delaware Common Stock, and no shares of Holiday Delaware Common
Stock or other securities of Holiday Florida shall be issued in respect
thereof.
6. STOCK CERTIFICATES. As of and after the Effective Time, all of the
outstanding certificates which, immediately prior to the Effective Time,
represented shares of Holiday Florida Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent, shares of Holiday Delaware
Common Stock into which the shares of Holiday Florida Common Stock formerly
represented by such certificates, have been converted as herein provided. The
registered owner on the books and records of the Surviving Corporation or its
transfer agents of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to the Surviving Corporation or its transfer agents, have and be entitled to
exercise any voting and other rights with respect to, and to receive any
dividends and other distributions upon, the shares of Holiday Delaware Common
Stock evidenced by such outstanding certificate as above provided.
7. SHAREHOLDER APPROVAL. This Agreement has been approved by Holiday
Florida under Section 607.1103 of the Florida Business Corporation Act by the
shareholders representing in excess of 50% of the issued and outstanding voting
securities of Holiday Florida entitled to vote on this Agreement. This Agreement
has been approved by Holiday Delaware under Section 253 of the General
Corporation Law of the State of Delaware. The signature of Holiday Florida on
this Agreement shall constitute its written consent as sole shareholder of
Holiday Delaware, to this Agreement and the Merger.
8. AMENDMENT. To the full extent permitted by applicable law, this
Agreement may be amended, modified or supplemented by written agreement of the
parties hereto, either before or after approval of the shareholders of the
constituent corporations and at any time prior to the Effective Time with
respect to any of the terms contained herein.
9. ABANDONMENT. At any time prior to the Effective Time, this Agreement may
be terminated and the Merger may be abandoned by the Boards of Directors of
Holiday Florida or Holiday Delaware, notwithstanding approval of this Agreement
by the shareholders of Holiday Delaware or by the shareholders of Holiday
Florida, or both, if, in the opinion of either of the Boards of Directors of
Holiday Florida or Holiday Delaware, circumstances arise which in the opinion of
such Boards of Directors, make the Merger for any reason inadvisable.
10. COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement, the same may be executed in two or more counterparts, each of which
shall be deemed to be an original and the same agreement.
11. FLORIDA APPOINTMENT. Holiday Delaware hereby agrees that it may be
served with process in the State of Florida in any action or special proceeding
for enforcement of any liability or obligation of Holiday Florida or Holiday
Delaware arising from the Merger. Holiday Delaware appoints the Secretary of
State of the State of Florida as its agent to accept service of process in any
such suit or other proceeding and a copy of such process shall be mailed by the
Secretary of State of Florida to Holiday Delaware at 7851 Greenbriar Parkway,
Orlando, Florida 32819.
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12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, Holiday Florida and Holiday Delaware have caused this
Agreement to be executed and delivered at Orlando, Florida by their respective
duly authorized officers as of the date first above written.
HOLIDAY RV SUPERSTORES, INCORPORATED
a Florida corporation
By: /s/ MICHAEL S. RILEY
------------------------
Michael S. Riley
Chairman
HOLIDAY RV SUPERSTORES, INC.,
a Delaware corporation
By: /s/ MICHAEL S. RILEY
------------------------
Michael S. Riley
Chairman
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APPENDIX B
RESTATED CERTIFICATE OF INCORPORATION
OF
HOLIDAY RV SUPERSTORES, INC.
Sherrie Smith hereby certifies that:
1. The original name of this corporation is Holiday RV Superstores,
Inc. and that the date of filing the original Certificate of Incorporation of
this corporation with the Secretary of the State of Delaware is October 19,
1999.
2. She is the incorporator of Holiday RV Superstores, Inc., a Delaware
corporation.
3. The Certificate of Incorporation of this corporation is hereby
amended and restated to read as follows:
FIRST: The name of the Corporation is: Holiday RV Superstores, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware shall be at Corporation Service Company, 1013 Centre Road,
City of Wilmington, County of New Castle, Delaware 19805. The name and address
of the Corporation's registered agent in the State of Delaware is Corporation
Service Company, 1013 Centre Road, City of Wilmington, County of New Castle,
Delaware 19805.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH:
1. The total number of shares of stock which the Corporation
shall have authority to issue is Twenty-Five Million (25,000,000) shares,
consisting of Twenty-Three Million (23,000,000) shares of Common Stock, par
value $.01 per share (the "Common Stock"), and Two Million (2,000,000) shares
of Preferred Stock, par value $.01 per share (the "Preferred Stock").
2. Shares of Preferred Stock may be issued from time to time
in one or more series as may be established from time to time by resolution of
the Board of Directors of the Corporation (the "Board of Directors"), each of
which series shall consist of such number of shares and have such distinctive
designation or title as shall be fixed by resolution of the Board of Directors
prior to the issuance of any shares of such series. Each such class or series of
Preferred Stock shall have such voting powers, full or limited, or no voting
powers, and such preferences and relative, participating, optional or other
special rights and such qualifications, limitations or restrictions thereof, as
shall be stated in such resolution of the Board of Directors providing for the
issuance of such series of Preferred Stock. The Board of Directors is further
authorized to increase or decrease (but not below the number of shares
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of such class or series then outstanding) the number of shares of any series
subsequent to the issuance of shares of that series.
FIFTH: In furtherance and not in limitation of the powers conferred by
statute and subject to Article Sixth hereof, the Board of Directors is expressly
authorized to adopt, repeal, rescind, alter or amend in any respect the Bylaws
of the Corporation (the "Bylaws").
SIXTH: Notwithstanding Article Fifth hereof, the Bylaws may be adopted,
rescinded, altered or amended in any respect by the stockholders of the
Corporation, but only by the affirmative vote of the holders of not less than a
majority of the voting power of all outstanding shares of voting stock
regardless of class and voting together as a single voting class.
SEVENTH: The business and affairs of the Corporation shall be managed
by and under the direction of the Board of Directors. Except as may otherwise be
provided pursuant to Section 2 of Article Fourth hereof in connection with
rights to elect additional directors under specified circumstances which may be
granted to the holders of any series of Preferred Stock, the exact number of
directors of the Corporation shall be determined from time to time by a Bylaw or
amendment thereto provided that the number of directors shall not be reduced to
less than three (3), except that there need be only as many directors as there
are stockholders in the event that the outstanding shares are held of record by
fewer than three (3) stockholders. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide.
EIGHTH:
1. The directors, other than those who may be elected pursuant
to Section 2 of Article Fourth hereof in connection with rights to elect such
additional directors under specified circumstances which may be granted to the
holders of any series of Preferred Stock, shall be classified with respect to
the time for which they severally hold office into three classes, as nearly
equal in number as possible, and designated as Class I, Class II and Class III,
commencing at the first annual meeting of stockholders after the effective date
of this Certificate of Incorporation under Section 103 of the Delaware General
Corporation Law (hereinafter, the "First Meeting"). The directors first
appointed to Class I at the First Meeting shall hold office for a term expiring
at the annual meeting of the stockholders immediately following the First
Meeting; the directors first appointed to Class II shall hold office for a term
expiring at the second annual meeting of the stockholders following the First
Meeting; and the directors first appointed to Class III shall hold office for a
term expiring at the third annual meeting of the stockholders following the
First Meeting. Members of each class shall hold office until their successors
are elected and qualified or until such member's death, resignation or removal.
Thereafter, at each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election, and until their successors are elected and qualified or until their
death, resignation or removal. Notwithstanding the foregoing, if at the time of
any annual meeting of stockholders, the Corporation is prohibited by applicable
law from having a classified Board of Directors, all of the directors shall be
elected at such annual meeting for a one year term only. If at the time of any
subsequent annual meeting of stockholders the Corporation is no longer
prohibited by applicable law from having a classified Board of Directors, the
Board of Directors shall again be classified in accordance with the first
sentence of this paragraph, and at such annual meeting directors initially
elected shall be elected to serve in either Class I, Class II or Class III to
hold office for a term expiring at the first, second or third succeeding annual
meeting of the stockholders, respectively; thereafter successors to each Class
shall be elected in the accordance with the fourth sentence of this paragraph.
No decrease in the authorized number of directors shall shorten the term of any
incumbent director; and additional directors, elected pursuant to Section 2 of
Article Fourth hereof in connection
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with rights to elect such additional directors under specified circumstances
which may be granted to the holders of any series of Preferred Stock, shall not
be included in any class, but shall serve for such term or terms and pursuant to
such other provisions as are specified in the resolution of the Board of
Directors establishing such series.
2. Any stockholder proposals and nominations for the election
of a director by a stockholder shall be delivered to the Corporate Secretary of
the Corporation no less than ninety (90) days nor more than one hundred twenty
(120) days in advance of the first anniversary of the Corporation's annual
meeting held in the prior year, provided, however, in the event the Corporation
shall not have had an annual meeting in the prior year, such notice shall be
delivered no less than ninety (90) days nor more than one hundred twenty (120)
days in advance of March 15 of the current year. Such stockholder nominations
must contain (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director at the annual meeting: (w) the name, age,
business address and residence address of the proposed nominee, (x) the
principal occupation or employment or the proposed nominee, (y) the class and
number of shares of capital stock of the Corporation which are beneficially
owned by the proposed nominee, and (z) any other information relating to the
proposed nominee that is required to be disclosed in solicitations for proxies
for election of directors pursuant to Section 14(a) of the Securities Exchange
Act of 1934, as amended; and (b) as to the stockholder giving notice of nominees
for election at the annual meeting, (x) the name and record address of the
stockholder, and (y) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder.
NINTH: Except as may otherwise be provided pursuant to Section 2 of
Article Fourth hereof in connection with rights to elect additional directors
under specified circumstances which may be granted to the holders of any series
of Preferred Stock, newly created directorships resulting from any increase in
the number of directors, or any vacancies on the Board of Directors resulting
from death, resignation, removal or other causes, shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified or until such director's death, resignation or
removal, whichever first occurs.
TENTH: Except for such additional directors as may be elected by the
holders of any series of Preferred Stock pursuant to the terms thereof
established by a resolution of the Board of Directors pursuant to Article Fourth
hereof, any director may be removed from office with or without cause and only
by the affirmative vote of the holders of not less than 50% of the voting power
of all outstanding shares of voting stock entitled to vote in connection with
the election of such director regardless of class and voting together as a
single voting class.
ELEVENTH: Meetings of stockholders of the Corporation may be held
within or without the State of Delaware, as the Bylaws may provide. The books of
the Corporation may be kept (subject to any provision of applicable law) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the Bylaws.
TWELFTH: For the purposes of this Certificate of Incorporation, the
terms "affiliate," "associate," "control," "interested stockholder," "owner,"
"person" and "voting stock" shall have the meanings set forth in Section 203(c)
of the Delaware General Corporation Law.
THIRTEENTH: The provisions set forth in this Article Thirteenth and in
Articles Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh hereof
may not be repealed, rescinded, altered or amended in any respect, and no other
provision or provisions may be adopted which impair(s) in any
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respect the operation or effect of any such provision, except by the affirmative
vote of the holders of a majority of the voting power of all outstanding shares
of voting stock regardless of class and voting together as a single voting
class, and, where such action is proposed by an interested stockholder or by any
associate or affiliate of an interested stockholder, the affirmative vote of the
holders of a majority of the voting power of all outstanding shares of voting
stock, regardless of class and voting together as a single class, other than
shares held by the interested stockholder which proposed (or the affiliate or
associate of which proposed) such action, or any affiliate or associate of such
interested stockholder.
FOURTEENTH: The Corporation reserves the right to adopt, repeal,
rescind, alter or amend in any respect any provision contained in this
Certificate in the manner now or hereafter prescribed by applicable law, and all
rights conferred on stockholders herein are granted subject to this reservation.
Notwithstanding the preceding sentence, the provisions set forth in Articles
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Thirteenth may
not be repealed, rescinded, altered or amended in any respect, and no other
provision or provisions may be adopted which impair(s) in any respect the
operation or effect of any such provision, unless such action is approved as
specified in Article Thirteenth hereof.
FIFTEENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the Delaware General Corporation Law,
or (d) for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law hereafter is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law. Any
repeal or modification of this Section by the stockholders of the Corporation
shall be prospective only and shall not adversely affect any limitation on the
personal liability of a director of the Corporation existing at the time of such
repeal or modification.
SIXTEENTH: No contract or other transaction of the Corporation with any
other person, firm or corporation, or in which this corporation is interested,
shall be affected or invalidated by: (a) the fact that any one or more of the
directors or officers of the Corporation is interested in or is a director or
officer of such other firm or corporation; or, (b) the fact that any director or
officer of the Corporation, individually or jointly with others, may be a party
to or may be interested in any such contract or transaction, so long as the
contract or transaction is authorized, approved or ratified at a meeting of the
Board of Directors by sufficient vote thereon by directors not interested
therein, to which such fact of relationship or interest has been disclosed, or
the contract or transaction has been approved or ratified by vote or written
consent of the stockholders entitled to vote, to whom such fact of relationship
or interest has been disclosed, or so long as the contract or transaction is
fair and reasonable to the Corporation. Each person who may become a director or
officer of the Corporation is hereby relieved from any liability that might
otherwise arise by reason of his contracting with the Corporation for the
benefit of himself or any firm or corporation in which he may in any way be
interested.
SEVENTEENTH: The name and mailing address of the incorporator is
Sherrie Smith, 800 Anacapa Street, Santa Barbara, California 93101.
4. This Restated Certificate of Incorporation has been duly approved by
the incorporator of this corporation.
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5. The Corporation has not received any payment for any of its stock
and this Restated Certificate of Incorporation has been duly adopted in
accordance with the provisions of Sections 241 and 245 of the General
Corporation Law of the State of Delaware by the incorporator of this
Corporation.
IN WITNESS WHEREOF, Holiday RV Superstores, Inc. has caused this
Restated Certificate of Incorporation to be signed by the incorporator in Santa
Barbara, California on this 23rd day of November, 1999.
HOLIDAY RV SUPERSTORES, INC.
By: /s/ SHERRIE SMITH
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Sherrie Smith
Incorporator
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APPENDIX C
BYLAWS
OF
HOLIDAY RV SUPERSTORES, INC.
(A DELAWARE CORPORATION)
The following are the Bylaws of HOLIDAY RV SUPERSTORES, INC., a Delaware
corporation (the "Corporation"), effective as of January 7, 2000, after approval
by the Corporation's Board of Directors and stockholders:
ARTICLE I
OFFICES
SECTION 1.01. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the Corporation shall be located at 7851 Greenbriar Parkway, Orlando, Florida
32819. The Board of Directors of the Corporation (the "Board of Directors") may
change the location of said principal executive office.
SECTION 1.02. OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. ANNUAL MEETINGS. The annual meeting of stockholders of the
Corporation shall be held at a date and at such time as the Board of Directors
shall determine. At each annual meeting of stockholders, directors shall be
elected in accordance with the provisions of Section 3.03 hereof and any other
proper business may be transacted.
SECTION 2.02. SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called at any time by a majority of the Board of
Directors, by the Chairman of the Board, the President or by holders of not less
than ten percent (10%) of the voting power of all outstanding shares of voting
stock regardless of class and voting together as a single voting class. The term
"voting stock" as used in these Bylaws shall have the meaning set forth in
Section 203(c) of the Delaware General Corporation Law. Special meetings may not
be called by any other person or persons. Each special meeting shall be held at
such date and time as is requested by the person or persons calling the meeting,
within the limits fixed by law.
SECTION 2.03. PLACE OF MEETINGS. Each annual or special meeting of
stockholders shall be held at such location as may be determined by the Board of
Directors or, if no such determination is made, at such place as may be
determined by the Chairman of the Board. If no location is so determined, any
annual or special meeting shall be held at the principal executive office of the
Corporation.
SECTION 2.04. NOTICE OF MEETINGS. Written notice of each annual or special
meeting of stockholders stating the date and time when, and the place where, it
is to be held shall be delivered either personally or by mail to stockholders
entitled to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting. The purpose or purposes for which the
meeting is called
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may, in the case of an annual meeting, and shall, in the case of a special
meeting, also be stated. If mailed, such notice shall be directed to a
stockholder at his address as it shall appear on the stock books of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices intended for him be mailed to some other address,
in which case such notice shall be mailed to the address designated in such
request.
SECTION 2.05. CONDUCT OF MEETINGS. All annual and special meetings of
stockholders shall be conducted in accordance with such rules and procedures as
the Board of Directors may determine subject to the requirements of applicable
law and, as to matters not governed by such rules and procedures, as the
chairman of such meeting shall determine. The chairman of any annual or special
meeting of stockholders shall be the Chairman of the Board. The Secretary, or in
the absence of the Secretary, a person designated by the Chairman of the Board,
shall act as secretary of the meeting.
SECTION 2.06. QUORUM. At any meeting of stockholders of the Corporation,
the presence, in person or by proxy, of the holders of record of a majority of
the shares then issued and outstanding and entitled to vote at the meeting shall
constitute a quorum for the transaction of business; provided, however, that
this Section 2.06 shall not affect any different requirement which may exist
under statute, pursuant to the rights of any authorized class or series of
stock, or under the Certificate of Incorporation of the Corporation, as amended
or restated from time to time (the "Certificate"), for the vote necessary for
the adoption of any measure governed thereby.
In the absence of a quorum, the stockholders present in person or by proxy,
by majority vote and without further notice, may adjourn the meeting from time
to time until a quorum is attained. At any reconvened meeting following such
adjournment at which a quorum shall be present, any business may be transacted
which might have been transacted at the meeting as originally notified.
SECTION 2.07. VOTES REQUIRED. The affirmative vote of a majority of the
shares present in person or represented by proxy at a duly called meeting of
stockholders f the Corporation, at which a quorum is present and entitled to
vote on the subject matter, shall be sufficient to take or authorize action upon
any matter which may properly come before the meeting, except that the election
of directors shall be by plurality vote, unless the vote of a greater or
different number thereof is required by statute, by the rights of any authorized
class of stock or by the Certificate.
Unless the Certificate or a resolution of the Board of Directors adopted in
connection with the issuance of shares of any class or series of stock provides
for a greater or lesser number of votes per share, or limits or denies voting
rights, each outstanding share of stock, regardless of class or series, shall be
entitled to one (l) vote on each matter submitted to a vote at a meeting of
stockholders.
SECTION 2.08. PROXIES. A stockholder may vote the shares owned of record by
him either in person or by proxy executed in writing (which shall include
writings sent by telex, telegraph, cable or facsimile transmission) by the
stockholder himself or by his duly authorized attorney-in-fact. No proxy shall
be valid after three (3) years from its date, unless the proxy provides for a
longer period. Each proxy shall be in writing, subscribed by the stockholder or
his duly authorized attorney-in-fact, and dated, but it need not be sealed,
witnessed or acknowledged.
SECTION 2.09. ACTION BY WRITTEN CONSENT. Any action that may be taken at
any annual or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Notice of the
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taking of such action shall be given promptly to each stockholder that would
have been entitled to vote thereon at a meeting of stockholders and that did not
consent thereto in writing.
SECTION 2.10. LIST OF STOCKHOLDERS. The Secretary of the Corporation shall
prepare and make (or cause to be prepared and made), at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing the
address of, and the number of shares registered in the name of, each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the duration thereof, and may be inspected by any stockholder
who is present.
SECTION 2.11. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board of Directors may appoint inspectors of election to act
at such meeting or at any adjournment or adjournments thereof. If such
inspectors are not so appointed or fail or refuse to act, the chairman of any
such meeting may (and, upon the demand of any stockholder or stockholder's
proxy, shall) make such an appointment.
The number of inspectors of election shall be one (1) or three (3). If
there are three (3) inspectors of election, the decision, act or certificate of
a majority shall be effective and shall represent the decision, act or
certificate of all. No such inspector need be a stockholder of the Corporation.
Subject to any provisions of the Certificate of Incorporation, the
inspectors of election shall determine the number of shares outstanding, the
voting power of each, the shares represented at the meeting, the existence of a
quorum and the authenticity, validity and effect of proxies; they shall receive
votes, ballots or consents, hear and determine all challenges and questions in
any way arising in connection with the right to vote, count and tabulate all
votes or consents, determine when the polls shall close and determine the
result; and finally, they shall do such acts as may be proper to conduct the
election or vote with fairness to all stockholders. On request, the inspectors
shall make a report in writing to the secretary of the meeting concerning any
challenge, question or other matter as may have been determined by them and
shall execute and deliver to such secretary a certificate of any fact found by
them.
SECTION 2.12 NOTICE OF STOCKHOLDERS ACTION. Any stockholder proposal or
nomination for the election of a director by a stockholder shall be delivered to
the Corporate Secretary of the Corporation no less than ninety (90) days nor
more than one hundred twenty (120) days in advance of the first anniversary of
the Corporation's annual meeting held in the prior year, provided, however, in
the event the Corporation shall not have had an annual meeting in the prior
year, such notice shall be delivered no less than ninety (90) days nor more than
one hundred twenty (120) days in advance of March 15 of the current year. Such
stockholder nominations must contain (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director at the annual
meeting: (w) the name, age, business address and residence address of the
proposed nominee, (x) the principal occupation or employment or the proposed
nominee, (y) the class and number of shares of capital stock of the Corporation
which are beneficially owned by the proposed nominee, and (z) any other
information relating to the proposed nominee that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Section 14(a) of
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving notice of nominees for election at the annual meeting, (x) the name and
record address of the stockholder, and (y) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder.
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ARTICLE III
DIRECTORS
SECTION 3.01. POWERS. The business and affairs of the Corporation shall be
managed by and be under the direction of the Board of Directors. The Board of
Directors shall exercise all the powers of the Corporation, except those that
are conferred upon or reserved to the stockholders by statute, the Certificate
of Incorporation or these Bylaws.
SECTION 3.02. NUMBER. The number of directors shall be fixed from time to
time by resolution of the Board of Directors but shall not be less than three
(3) nor more than nine (9).
SECTION 3.03. ELECTION AND TERM OF OFFICE. Each director shall serve until
his successor is elected and qualified or until his death, resignation or
removal, no decrease in the authorized number of directors shall shorten the
term of any incumbent director, and additional directors elected in connection
with rights to elect such additional directors under specified circumstances
which may be granted to the holders of any series of Preferred Stock shall not
be included in any class, but shall serve for such term or terms and pursuant to
such other provisions as are specified in the resolution of the Board of
Directors establishing such series.
SECTION 3.04. ELECTION OF CHAIRMAN OF THE BOARD. At the organizational
meeting immediately following the annual meeting of stockholders, the directors
shall elect a Chairman of the Board from among the directors who shall hold
office until the corresponding meeting of the Board of Directors in the next
year and until his successor shall have been elected or until his earlier
resignation or removal. Any vacancy in such office may be filled for the
unexpired portion of the term in the same manner by the Board of Directors at
any regular or special meeting.
SECTION 3.05. REMOVAL. Any director may be removed from office only as
provided in the Certificate of Incorporation.
SECTION 3.06. VACANCIES AND ADDITIONAL DIRECTORSHIPS. Newly created
directorships resulting from death, resignation, disqualification, removal or
other cause shall be filled solely by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
SECTION 3.07. REGULAR AND SPECIAL MEETINGS. Regular meetings of the Board
of Directors shall be held immediately following the annual meeting of the
stockholders; without call at such time as shall from time to time be fixed by
the Board of Directors; and as called by the Chairman of the Board in accordance
with applicable law.
Special meetings of the Board of Directors shall be held upon call by or at
the direction of the Chairman of the Board, the President or any two (2)
directors, except that when the Board of Directors consists of one (1) director,
then the one director may call a special meeting. Except as otherwise required
by law, notice of each special meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least three
days before the day on which the meeting is to be held,
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or shall be sent to him at such place by telex, telegram, cable, facsimile
transmission or telephoned or delivered to him personally, not later than the
day before the day on which the meeting is to be held. Such notice shall state
the time and place of such meeting, but need not state the purpose or purposes
thereof, unless otherwise required by law, the Certificate of Incorporation or
these Bylaws ("Bylaws").
Notice of any meeting need not be given to any director who shall attend
such meeting in person (except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened) or who shall
waive notice thereof, before or after such meeting, in a signed writing.
SECTION 3.08. QUORUM. At all meetings of the Board of Directors, a majority
of the fixed number of directors shall constitute a quorum for the transaction
of business, except that when the Board of Directors consists of one (1)
director, then the one director shall constitute a quorum.
In the absence of a quorum, the directors present, by majority vote and
without notice other than by announcement, may adjourn the meeting from time to
time until a quorum shall be present. At any reconvened meeting following such
an adjournment at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 3.09. VOTES REQUIRED. Except as otherwise provided by applicable
law or by the Certificate of Incorporation, the vote of a majority of the
directors present at a meeting duly held at which a quorum is present shall be
sufficient to pass any measure.
SECTION 3.10. PLACE AND CONDUCT OF MEETINGS. Each regular meeting and
special meeting of the Board of Directors shall be held at a location determined
as follows: The Board of Directors may designate any place, within or without
the State of Delaware, for the holding of any meeting. If no such designation is
made: (a) any meeting called by a majority of the directors shall be held at
such location, within the county of the Corporation's principal executive
office, as the directors calling the meeting shall designate; and (b) any other
meeting shall be held at such location, within the county of the Corporation's
principal executive office, as the Chairman of the Board may designate or, in
the absence of such designation, at the Corporation's principal executive
office. Subject to the requirements of applicable law, all regular and special
meetings of the Board of Directors shall be conducted in accordance with such
rules and procedures as the Board of Directors may approve and, as to matters
not governed by such rules and procedures, as the chairman of such meeting shall
determine. The chairman of any regular or special meeting shall be the Chairman
of the Board, or, in his absence, a person designated by the Board of Directors.
The Secretary, or, in the absence of the Secretary, a person designated by the
chairman of the meeting, shall act as secretary of the meeting.
SECTION 3.11. FEES AND COMPENSATION. Directors shall be paid such
compensation as may be fixed from time to time by resolution of the Board of
Directors: (a) for their usual and contemplated services as directors; (b) for
their services as members of committees appointed by the Board of Directors,
including attendance at committee meetings as well as services which may be
required when committee members must consult with management staff; and (c) for
extraordinary services as directors or as members of committees appointed by the
Board of Directors, over and above those services for which compensation is
fixed pursuant to items (a) and (b) in this Section 3.11. Compensation may be in
the form of an annual retainer fee or a fee for attendance at meetings, or both,
or in such other form or on such basis as the resolutions of the Board of
Directors shall fix. Directors shall be reimbursed for all reasonable expenses
incurred by them in attending meetings of the Board of Directors and committees
appointed by the Board of Directors and in performing compensable extraordinary
services. Nothing contained herein shall be construed to preclude any director
from serving the Corporation in any other
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capacity, such as an officer, agent, employee, consultant or otherwise, and
receiving compensation therefor.
SECTION 3.12. COMMITTEES OF THE BOARD OF DIRECTORS. To the full extent
permitted by applicable law, the Board of Directors may from time to time
establish committees, including, but not limited to, standing or special
committees and an executive committee with authority and responsibility for
bookkeeping, with authority to act as signatories on Corporation bank or similar
accounts and with authority to choose attorneys for the Corporation and direct
litigation strategy, which shall have such duties and powers as are authorized
by these Bylaws or by the Board of Directors. Committee members, and the
chairman of each committee, shall be appointed by the Board of Directors. The
Chairman of the Board, in conjunction with the several committee chairmen, shall
make recommendations to the Board of Directors for its final action concerning
members to be appointed to the several committees of the Board of Directors. Any
member of any committee may be removed at any time with or without cause by the
Board of Directors. Vacancies which occur on any committee shall be filled by a
resolution of the Board of Directors. If any vacancy shall occur in any
committee by reason of death, resignation, disqualification, removal or
otherwise, the remaining members of such committee, so long as a quorum is
present, may continue to act until such vacancy is filled by the Board of
Directors. The Board of Directors may, by resolution, at any time deemed
desirable, discontinue any standing or special committee. Members of standing
committees, and their chairmen, shall be elected yearly at the regular meeting
of the Board of Directors which is held immediately following the annual meeting
of stockholders. The provisions of Sections 3.07, 3.08, 3.09 and 3.10 of these
Bylaws shall apply, mutatis mutandis, to any such Committee of the Board of
Directors.
ARTICLE IV
OFFICERS
SECTION 4.01. DESIGNATION, ELECTION AND TERM OF OFFICE. The Corporation
shall have a Chairman of the Board, a President, Treasurer, such senior vice
presidents and vice presidents as the Board of Directors deems appropriate, a
Secretary and such other officers as the Board of Directors may deem
appropriate. These officers shall be elected annually by the Board of Directors
at the organizational meeting immediately following the annual meeting of
stockholders, and each such officer shall hold office until the corresponding
meeting of the Board of Directors in the next year and until his successor shall
have been elected and qualified or until his earlier resignation, death or
removal. Any vacancy in any of the above offices may be filled for the unexpired
portion of the term by the Board of Directors at any regular or special meeting.
SECTION 4.02. CHAIRMAN OF THE BOARD. The Chairman of the Board of Directors
shall preside at all meetings of the directors and shall have such other powers
and duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 4.03. PRESIDENT. The President shall be the chief executive officer
of the Corporation and shall, subject to the power of the Board of Directors,
have general supervision, direction and control of the business and affairs of
the Corporation. He shall preside at all meetings of the stockholders and, in
the absence of the Chairman of the Board, at all meetings of the directors. He
shall have the general powers and duties of management usually vested in the
office of president of a corporation, and shall have such other duties as may be
assigned to him from time to time by the Board of Directors.
SECTION 4.04. TREASURER. The Treasurer shall keep and maintain, or cause to
be kept and maintained, adequate and correct books and records of account of the
properties and business transactions of the Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses,
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capital, retained earnings and shares. The books of account shall at all
reasonable times be open to inspection by the directors.
The Treasurer shall deposit all moneys and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated by
the Board of Directors. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, shall render to the President and directors,
whenever they request it, an account of all of his transactions as the Treasurer
and of the financial condition of the Corporation, and shall have such other
powers and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
SECTION 4.05. SECRETARY. The Secretary shall keep the minutes of the
meetings of the stockholders, the Board of Directors and all committees. He
shall be the custodian of the corporate seal and shall affix it to all documents
which he is authorized by law or the Board of Directors to sign and seal. He
also shall perform such other duties as may be assigned to him from time to time
by the Board of Directors or the Chairman of the Board or President.
SECTION 4.06. ASSISTANT OFFICERS. The President may appoint one or more
assistant secretaries and such other assistant officers as the business of the
Corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as may be specified from time to time by
the President.
SECTION 4.07. WHEN DUTIES OF AN OFFICER MAY BE DELEGATED. In the case of
absence or disability of an officer of the Corporation or for any other reason
that may seem sufficient to the Board of Directors, the Board of Directors or
any officer designated by it, or the President, may, for the time of the absence
or disability, delegate such officer's duties and powers to any other officer of
the Corporation.
SECTION 4.08. OFFICERS HOLDING TWO OR MORE OFFICES. The same person may
hold any two (2) or more of the above-mentioned offices.
SECTION 4.09. COMPENSATION. The Board of Directors shall have the power to
fix the compensation of all officers and employees of the Corporation.
SECTION 4.10. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors, to the President, or to the Secretary
of the Corporation. Any such resignation shall take effect at the time specified
therein unless otherwise determined by the Board of Directors. The acceptance of
a resignation by the Corporation shall not be necessary to make it effective.
SECTION 4.11. REMOVAL. Any officer of the Corporation may be removed, with
or without cause, by the affirmative vote of a majority of the entire Board of
Directors. Any assistant officer of the Corporation may be removed, with or
without cause, by the President or by the Board of Directors.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS
EMPLOYEES END OTHER CORPORATE AGENTS
SECTION 5.01. ACTION, ETC. OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
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Corporation as a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other enterprise (all such
persons being referred to hereinafter as an "Agent"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, that he had reasonable cause to believe that his
conduct was unlawful.
SECTION 5.02. ACTION, ETC., BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was an Agent against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation by a court of competent jurisdiction, after exhaustion
of all appeals therefrom, unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
SECTION 5.03. DETERMINATION OF RIGHT OF INDEMNIFICATION. Any
indemnification under Sections 5.01 or 5.02 (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Agent is proper in the circumstances
because the Agent has met the applicable standard of conduct set forth in
Sections 5.01 and 5.02 hereof, which determination is made (a) by the Board of
Directors, by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
stockholders.
SECTION 5.04. INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article V, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal of
an action without prejudice or the settlement of an action without admission of
liability, in defense of any action, suit or proceeding referred to in Sections
5.01 or 5.02 hereof, or in defense of any claim, issue or matter therein, such
Agent shall be indemnified against expenses, including attorneys' fees actually
and reasonably incurred by such Agent in connection therewith.
SECTION 5.05. ADVANCES OF EXPENSES. Except as limited by Section 5.06 of
this Article V, expenses incurred by an Agent in defending any civil or criminal
action, suit, or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding, if the Agent shall
undertake to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified as authorized in this Article V.
Notwithstanding the foregoing, no advance shall be made by the Corporation if a
determination is reasonably and promptly made by the Board of Directors by a
majority vote of a quorum of disinterested directors, or (if such a quorum is
not obtainable or, even if obtainable, a quorum of disinterested directors so
directs) by independent legal counsel in a written opinion, that, based upon the
facts known to the Board of Directors or counsel at the time such
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determination is made, such person acted in bad faith and in a manner that such
person did not believe to be in or not opposed to the best interest of the
Corporation, or, with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe his conduct was unlawful.
SECTION 5.06. RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION,
PROCEDURE, UPON APPLICATION. Any indemnification or advance under this Article V
shall be made promptly, and in any event within ninety days, upon the written
request of the Agent, unless a determination shall be made in the manner set
forth in the second sentence of Subsection 5.05 hereof that such Agent acted in
a manner set forth therein so as to justify the Corporation's not indemnifying
or making an advance to the Agent. The right to indemnification or advances as
granted by this Article V shall be enforceable by the Agent in any court of
competent jurisdiction, if the Board of Directors or independent legal counsel
denies the claim, in whole or in part, or if no disposition of such claim is
made within ninety (90) days. The Agent's expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such proceeding shall also be indemnified by the Corporation.
SECTION 5.07. OTHER RIGHTS AND REMEDIES. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article V
shall not be deemed exclusive of any other rights to which an Agent seeking
indemnification or advancement of expenses may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be an Agent and shall inure
to the benefit of the heirs, executors and administrators of such a person. All
rights to indemnification under this Article V shall be deemed to be provided by
a contract between the Corporation and the Agent who serves in such capacity at
any time while these Bylaws and other relevant provisions of the Delaware
General Corporation Law and other applicable law, if any, are in effect. Any
repeal or modification thereof shall not affect any rights or obligations then
existing.
SECTION 5.08. INSURANCE. Upon resolution passed by the Board of Directors,
the Corporation may purchase and maintain insurance on behalf of any person who
is or was an Agent against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether or not
the Corporation would have the power to indemnify him against such liability
under the provisions of this Article V.
SECTION 5.09. CONSTITUENT CORPORATIONS. For the purposes of this Article V,
references to "the Corporation" shall include, in addition to the resulting
corporation, all constituent corporations (including all constituents of
constituents) absorbed in a consolidation or merger as well as the resulting or
surviving corporation, which, if the separate existence of such constituent
corporation had continued, would have had power and authority to indemnify its
Agents, so that any Agent of such constituent corporation shall stand in the
same position under the provisions of the Article V with respect to the
resulting or surviving corporation as that Agent would have with respect to such
constituent corporation if its separate existence had continued.
SECTION 5.10. OTHER ENTERPRISES, FINES, AND SERVING AT CORPORATION'S
REQUEST. For purposes of this Article V, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
V.
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SECTION 5.11. SAVINGS CLAUSE. If this Article V or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Agent as to expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether internal or external, including a
grand jury proceeding and an action or suit brought by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article V that shall not have been invalidated, or by any other applicable law.
ARTICLE VI
STOCK
SECTION 6.01. CERTIFICATES. Except as otherwise provided by law, each
stockholder shall be entitled to a certificate or certificates which shall
represent and certify the number and class (and series, if appropriate) of
shares of stock owned by him in the Corporation. Each certificate shall be
signed in the name of the Corporation by the Chairman of the Board or a
Vice-Chairman of the Board or the President or a Vice President, together with
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Any or all of the signatures on any certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue.
SECTION 6.02. TRANSFER OF SHARES. Shares of stock shall be transferable on
the books of the Corporation only by the holder thereof, in person or by his
duly authorized attorney, upon the surrender of the certificate representing the
shares to be transferred, properly endorsed, to the Corporation's transfer
agent, if the Corporation has a transfer agent, or to the Corporation's
registrar, if the Corporation has a registrar, or to the Secretary, if the
Corporation has neither a transfer agent nor a registrar. The Board of Directors
shall have power and authority to make such other rules and regulations
concerning the issue, transfer and registration of certificates of the
Corporation's stock as it may deem expedient.
SECTION 6.03. TRANSFER AGENTS AND REGISTRARS. The Corporation may have one
or more transfer agents and one or more registrars of its stock whose respective
duties the Board of Directors or the Secretary may, from time to time, define.
No certificate of stock shall be valid until countersigned by a transfer agent,
if the Corporation has a transfer agent, or until registered by a registrar, if
the Corporation has a registrar. The duties of transfer agent and registrar may
be combined.
SECTION 6.04. STOCK LEDGERS. Original or duplicate stock ledgers,
containing the names and addresses of the stockholders of the Corporation and
the number of shares of each class of stock held by them, shall be kept at the
principal executive office of the Corporation or at the office of its transfer
agent or registrar.
SECTION 6.05. RECORD DATES. The Board of Directors may fix, in advance, a
date as the record date for the purpose of determining stockholders entitled to
notice of, or to vote at, any meeting of stockholders or any adjournment
thereof, or stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or in order to make a
determination of stockholders for any other proper purpose. Such date in any
case shall be not more than sixty (60) days, and in case of a meeting of
stockholders, not less than ten (10) days, prior to the date on which the
particular action requiring such determination of stockholders is to be taken.
Only those stockholders of record on the date so fixed shall
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be entitled to any of the foregoing rights, notwithstanding the transfer of any
such stock on the books of the Corporation after any such record date fixed by
the Board of Directors.
Article VII
EMERGENCY BY-LAWS
SECTION 7.01. EMERGENCY BYLAWS. The Emergency Bylaws provided in this
Section 7.01 shall be operative during any emergency in the conduct of the
business of the corporation resulting from an attack on the United States or on
a locality in which the corporation conducts its business or customarily holds
meetings of its Board of Directors or its stockholders, or during any nuclear or
atomic disaster, or during the existence of any catastrophe, or other similar
emergency condition, as a result of which a quorum of the Board of Directors or
a standing committee thereof cannot readily be convened for action
notwithstanding any different provision in the preceding Bylaws or in the
Certificate of Incorporation or in the law. To the extent not inconsistent with
provisions of this Section, the Bylaws of the Corporation shall remain in effect
during any emergency and upon its termination the Emergency Bylaws shall cease
to be operative. Any amendments of these Emergency Bylaws may make any further
or different provision that may be practical and necessary for the circumstances
of the emergency.
During any such emergency: (A) A meeting of the Board of Directors or a
committee thereof may be called by any officer or director of the Corporation.
Notice of the time and place of the meeting shall be given by the person calling
the meeting to such of the directors as it may be feasible to reach by any
available means of communication. Such notice shall be given at such time in
advance of the meeting as circumstances permit in the judgment of the person
calling the meeting; (B) The director or directors in attendance at the meeting
shall constitute a quorum; (C) The officers or other persons designated on a
list approved by the Board of Directors before the emergency, all in such order
of priority and subject to such conditions and for such period of time (not
longer than reasonably necessary after the termination of the emergency) as may
be provided in the resolution approving the list, shall, to the extent required
to provide a quorum at any meeting of the Board of Directors, be deemed
directors for such meeting; (D) The Board of Directors, either before or during
any such emergency, may provide, and from time to time modify, lines of
succession in the event that during such emergency any or all officers or agents
of the corporation shall for any reason be rendered incapable of discharging
their duties; (E) The Board of Directors, either before or during any such
emergency, may, effective in the emergency, change the head office or designate
several alternative head offices or regional offices, or authorize the officers
so to do; and (F) To the extent required to constitute a quorum at any meeting
of the Board of Directors during such an emergency, the officers of the
corporation who are present shall be deemed, in order of rank and within the
same rank in order of seniority, directors for such meeting.
No officer, director or employee acting in accordance with any Emergency
Bylaws shall be liable except for willful misconduct.
These Emergency Bylaws shall be subject to repeal or change by further
action of the Board of Directors or by action of the stockholders.
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APPENDIX D
HOLIDAY RV SUPERSTORES, INC.
1999 STOCK COMPENSATION PROGRAM
1. PURPOSE. This 1999 Stock Compensation Program (the "Program") is
intended to secure for Holiday RV Superstores, Inc., a Delaware corporation (the
"Company"), its subsidiaries, and its stockholders the benefits arising from
ownership of the Company's common stock (the "Common Stock") by those selected
individuals of the Company and its subsidiaries, who will be responsible for the
future growth of such corporations. The Program is designed to help attract and
retain superior personnel for positions of substantial responsibility with the
Company and its subsidiaries, and to provide individuals with an additional
incentive to contribute to the success of the corporations. Nothing contained
herein shall be construed to amend or terminate any existing options, whether
pursuant to any existing plans or otherwise granted by the Company.
2. ELEMENTS OF THE PROGRAM. In order to maintain flexibility in the award
of stock benefits, the Program is composed of seven parts. The first part is the
Incentive Stock Option Plan (the "Incentive Plan") under which are granted
incentive stock options (the "Incentive Options"). The second part is the
Non-Qualified Stock Option Plan (the "Nonqualified Plan") under which are
granted nonqualified stock options (the "Nonqualified Options"). The third part
is the Restricted Share Plan (the "Restricted Plan") under which are granted
restricted shares of Common Stock. The fourth part is the Employee Stock
Purchase Plan (the "Stock Purchase Plan"). The fifth part is the Non-Employee
Director Stock Option Plan (the "Directors Plan") under which grants of options
to purchase shares of Common Stock may be made to non-employee directors of the
Company. The sixth part is the Stock Appreciation Rights Plan (the "SAR Plan")
under which SARs (as defined therein) are granted. The seventh part is the Other
Stock Rights Plan (the "Stock Rights Plan") under which (i) units representing
the equivalent of shares of Common Stock (the "Performance Shares") are granted;
(ii) payments of compensation in the form of shares of Common Stock (the "Stock
Payments") are granted; and (iii) rights to receive cash or shares of Common
Stock based on the value of dividends paid with respect to a share of Common
Stock (the "Dividend Equivalent Rights") are granted. The Incentive Plan, the
Nonqualified Plan, the Restricted Plan, the Stock Purchase Plan, the Directors
Plan, the SAR Plan and the Stock Rights Plan are included herein as Part I, Part
II, Part III, Part IV, Part V, Part VI and Part VII, respectively, and are
collectively referred to herein as the "Plans." The grant of an option, SAR or
restricted share or rights to purchase shares under one of the Plans shall not
be construed to prohibit the grant of an option, SAR or restricted share or
rights to purchase shares under any of the other Plans.
3. APPLICABILITY OF GENERAL PROVISIONS. Unless any Plan specifically
indicates to the contrary, all Plans shall be subject to the General Provisions
of the Program set forth below.
4. ADMINISTRATION OF THE PLANS. The Plans shall be administered, construed,
governed, and amended in accordance with their respective terms.
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GENERAL PROVISIONS OF STOCK COMPENSATION PROGRAM
Article 1. ADMINISTRATION. The Program shall be administered by the
Company's Board of Directors (the "BOARD"). If an award under the Program is to
be made to an "Executive Officer" as defined in the Exchange Act (as hereinafter
defined), it must be approved if the Company has a class of equity securities
registered under Section 12 or 15(d) of the Exchange Act, by the Board or by a
committee of the Board, that is composed solely of two or more directors who are
"Non-Employee Directors" within the meaning of Rule 16b-3 promulgated pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
members of the Board, such committee of the Board or such other persons
appointed to administer the Program, when acting to administer the Program, are
herein collectively referred to as the "Program Administrators." To the extent
permitted under the Exchange Act, the Internal Revenue Code of 1986, as amended
(the "Code") or any other applicable law, the Program Administrators, shall have
the authority to delegate any and all power and authority to administer and
operate the Program hereunder to such person or persons as the Program
Administrators deems appropriate which if formed may be referred to by such
title specified by the Board. Subject to the foregoing limitations, as
applicable, the Board may from time to time remove members from the committee,
fill all vacancies on the committee, however caused, and may select one of the
members of the committee as its Chairman.
The Program Administrators shall hold meetings at such times and places as
they may determine and as necessary to approve all grants and other transactions
under the Program as required under Rule 16b-3(d) under the Exchange Act, shall
keep minutes of their meetings, and shall adopt, amend, and revoke such rules
and procedures as they may deem proper with respect to the Program. Any action
of the Program Administrators shall be taken by majority vote or the unanimous
written consent of the Program Administrators.
Article 2. AUTHORITY OF PROGRAM ADMINISTRATORS. Subject to the other
provisions of this Program, and with a view to effecting its purpose, the
Program Administrators shall have sole authority, in their sole and absolute
discretion, (a) to construe and interpret the Program; (b) to define the terms
used herein; (c) to determine the individuals to whom options and restricted
shares and rights to purchase shares shall be granted under the Program; (d) to
determine the time or times at which options and restricted shares, rights to
purchase shares or other awards shall be granted under the Program; (e) to
determine the number and type of shares or securities subject to each option,
restricted share, purchase right and other award, the duration of each award
granted under the Program, and the price of any share purchase; (f) to determine
all of the other terms and conditions of options, restricted shares, purchase
rights and other awards granted under the Program; and (g) to make all other
determinations necessary or advisable for the administration of the Program and
to do everything necessary or appropriate to administer the Program; PROVIDED,
HOWEVER, that the Board shall establish the price for all shares issued
hereunder. All decisions, determinations, and interpretations made by the
Program Administrators shall be binding and conclusive on all participants in
the Program (the "PLAN PARTICIPANTS") and on their legal representatives, heirs
and beneficiaries.
Article 3. MAXIMUM NUMBER OF SHARES SUBJECT TO THE PROGRAM. Subject to the
provisions of Article 7, the maximum aggregate number of shares of Common Stock
subject to the Program shall be 3,000,000 shares. Subject to the limitation
contained in Section 2 of Part 1, the maximum number of shares of Common Stock
issuable pursuant to the Program to any single Program Participant in any given
fiscal year shall be 500,000 shares. The Board of Directors of the Company shall
make recommendations to the Program Administrators from time to time with
respect to the allocation of the shares reserved under the Program for the
directors, officers, employees and agents of the Company and its subsidiaries.
The shares of Common Stock issued under the Program may be authorized but
unissued shares, shares issued and reacquired by the Company or shares purchased
by the Company on
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the open market. If any of the options granted under the Program expire or
terminate for any reason before they have been exercised in full, the
unpurchased shares subject to those expired or terminated options shall cease to
reduce the number of shares available for purposes of the Program. If the
conditions associated with the grant of restricted shares are not achieved
within the period specified for satisfaction of the applicable conditions, or if
the restricted share grant terminates for any reason before the date on which
the conditions must be satisfied, the shares of Common Stock associated with
such restricted shares shall cease to reduce the number of shares available for
purposes of the Program.
The proceeds received by the Company from the sale of its Common Stock
pursuant to the exercise of options, transfer of restricted shares or issuance
of stock purchased under the Program, if in the form of cash, shall be added to
the Company's general funds and used for general corporate purposes.
Article 4. ELIGIBILITY AND PARTICIPATION. Officers, employees, directors
(whether employee directors or non-employee directors), and independent
contractors or agents of the Company or its subsidiaries who are responsible for
or contribute to the management, growth or profitability of the business of the
Company or its subsidiaries shall be eligible for selection by the Program
Administrators to participate in the Program. However, awards of Incentive
Options under the Incentive Plan may be granted only to employees of the Company
or its subsidiaries. An employee may be granted Nonqualified Options under the
Program; PROVIDED, HOWEVER, that the grant of Nonqualified Options and Incentive
Options to an employee shall be the grant of separate options and each
Nonqualified Option and each Incentive Option shall be specifically designated
as such in accordance with applicable provisions of the Treasury Regulations.
Employees of the Company or its subsidiaries whose customary employment for tax
purposes is at least twenty (20) hours per week and more than five consecutive
months in any calendar year, and who own less than 5% of the Common Stock, shall
be eligible to participate in the Employee Stock Purchase Plan. Consultants or
advisors of the Company or its subsidiaries shall be eligible to receive awards
under the Program, provided that such awards would be exempt from registration
under Rule 701 of the Securities Act of 1933, during such time that offers of
securities by the Company are eligible for exemption under Rule 701, or that
such awards would be eligible for registration on Form S-8, during such time
that offers of securities to employees under an employee benefit plan of the
Company are eligible for registration on Form S-8.
The term "subsidiary" as used herein means any company, other than the
Company, in an unbroken chain of companies, beginning with the Company if, at
the time of any grant hereunder, each of the companies, other than the last
company in the unbroken chain, owns stock possessing more than 50% of the total
combined voting power of all classes of stock in one of the other companies in
such chain.
Article 5. EFFECTIVE DATE AND TERM OF PROGRAM. The Program shall become
effective upon its adoption by the Board of Directors of the Company subject to
approval of the Program by a majority of the voting shares of the Company voting
in person or by proxy at a meeting of stockholders, in either case following
adoption of the Program by the Board of Directors, which vote shall be taken or
consent granted within 12 months of adoption of the Program by the Company's
Board of Directors. The Program shall continue in effect for a term of 10 years
unless sooner terminated under Article 8 of these General Provisions.
Article 6. FAIR MARKET VALUE. As used in the Program, "Fair Market Value"
shall mean, as of any date, the value of the Common Stock determined by the
Program Administrators on the basis of such factors as they deem appropriate.
Prior to the grant of any option under the Program, the Program Administrator
shall specify those factors or formulas used to determine Fair Market Value of
the Common Stock subject to such option. In each case, the Program
Administrators' determination of Fair Market Value shall be conclusive and
binding on the Company and the Plan Participants.
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Article 7. ADJUSTMENTS. If the outstanding shares of Common Stock are
increased, decreased, changed into, or exchanged for a different number or kind
of shares or securities through merger, consolidation, combination, exchange of
shares, other reorganization, recapitalization, reclassification, stock
dividend, stock split or reverse stock split, an appropriate and proportionate
adjustment shall be made in the maximum number and kind of shares as to which
options and restricted shares may be granted under this Program. A corresponding
adjustment changing the number and kind of shares allocated to unexercised
options, restricted shares, or portions thereof, which shall have been granted
prior to any such change, shall likewise be made. Any such adjustment in
outstanding options shall be made without change in the aggregate purchase price
applicable to the unexercised portion of the option, but with a corresponding
adjustment in the price for each share or other unit of any security covered by
the option.
Article 8. TERMINATION AND AMENDMENT OF PROGRAM. The Program shall
terminate ten (10) years from the date the Program is adopted by the Board of
Directors, or, if applicable, the date a particular Plan is approved by the
stockholders, whichever is earlier, or shall terminate at such earlier time as
the Board of Directors may so determine. No options or restricted shares shall
be granted and no stock shall be sold and purchased under the Program after that
date. Subject to the limitation contained in Article 9 of these General
Provisions, the Program Administrators may at any time amend or revise the terms
of the Program, including the form and substance of the option, restricted share
and stock purchase agreements to be used hereunder; PROVIDED, HOWEVER, that
without approval by the stockholders of the Company representing a majority of
the voting power (as contained in Article 5 of these General Provisions) no
amendment or revision shall (a) increase the maximum aggregate number of shares
that may be sold or distributed pursuant to options granted or stock sold and
purchased under Part I or Part IV, except as permitted under Article 7 of these
General Provisions; (b) change the minimum purchase price for shares under
Section 4 of Part I or the Purchase Price for shares under Part IV; (c) increase
the maximum term established under Parts I or IV for any option or restricted
share; (d) permit the granting of an option, or right to purchase shares under
Parts I or IV to anyone other than as provided in Article 4 of the General
Provisions; (e) change the term of Parts I or IV described in Article 5 of these
General Provisions; or (f) materially increase the benefits accruing to Plan
Participants under Parts I or IV of the Program.
Article 9. PRIOR RIGHTS AND OBLIGATIONS. No amendment, suspension, or
termination of the Program shall, without the consent of the individual who has
received an option or restricted share or who has purchased a specified share or
shares under Part IV, alter or impair any of that individual's rights or
obligations under any option or restricted share granted or shares sold and
purchased under the Program prior to that amendment, suspension, or termination.
Article 10. PRIVILEGES OF STOCK OWNERSHIP. Notwithstanding the exercise of
any option granted pursuant to the terms of this Program, the achievement of any
conditions specified in any restricted share granted pursuant to the terms of
this Program or the election to purchase any shares pursuant to the terms of
this Program, no individual shall have any of the rights or privileges of a
stockholder of the Company in respect of any shares of stock issuable upon the
exercise of his or her option, the satisfaction of his or her restricted share
conditions or the sale, purchase and issuance of such purchased shares until
certificates representing the shares have been issued and delivered. No shares
shall be required to be issued and delivered upon exercise of any option,
satisfaction of any conditions with respect to a restricted share or a purchaser
under Part IV unless and until all of the requirements of law and of all
regulatory agencies having jurisdiction over the issuance and delivery of the
securities shall have been fully complied with.
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Article 11. RESERVATION OF SHARES OF COMMON STOCK. The Company, during the
term of this Program, will at all times reserve and keep available such number
of shares of its Common Stock as shall be sufficient to satisfy the requirements
of the Program. In addition, the Company will from time to time, as is necessary
to accomplish the purposes of this Program, seek or obtain from any regulatory
agency having jurisdiction any requisite authority in order to issue and sell
shares of Common Stock hereunder. The inability of the Company to obtain from
any regulatory agency having jurisdiction the authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any shares of its
stock hereunder shall relieve the Company of any liability in respect of the
nonissuance or sale of the stock as to which the requisite authority shall not
have been obtained.
Article 12. TAX WITHHOLDING. The exercise of any option or restricted share
granted or the sale and issuance of any shares to be purchased under this
Program are subject to the condition that if at any time the Company shall
determine, in its discretion, that the satisfaction of withholding tax or other
withholding liabilities under any state or federal law is necessary or desirable
as a condition of, or in connection with, such exercise or the delivery or
purchase of shares pursuant thereto, then in such event, the exercise of the
option or restricted share or the sale and issuance of any shares to be
purchased shall not be effective unless such withholding shall have been
effected or obtained in a manner acceptable to the Company. At the Company's
sole and absolute discretion, the Company may, from time to time, accept shares
of the Company's Common Stock subject to one of the Plans as the source of
payment for such liabilities.
Article 13. COMPLIANCE WITH LAW. It is the express intent of the Company
that this Program complies in all respect with all applicable provisions of
state and federal law. It is the express intent of the Company that when any
equity security of the Company is registered pursuant to Section 12 of the
Exchange Act, this Program shall comply in all respects with applicable
provisions of the Rule 16b-3 or Rule 16a-1(c)(3) under the Exchange Act in
connection with any grant of awards to, or other transaction by, a Plan
Participant who is subject to Section 16 of the Exchange Act (except for
transactions exempted under alternative Exchange Act rules). Accordingly, if any
provision of the Program or any agreement relating to any award thereunder does
not comply with Rule 16b-3 or Rule 16a-1(c)(3) as then applicable to any such
transaction, such provision will be construed or deemed amended to the extent
necessary to conform to the applicable requirements of Rule 16b-3 or Rule
16a-1(c)(3) so that such Plan Participant shall avoid liability under Section
16(b). Unless otherwise provided in any grant or award to any person who is or
may thereafter be subject to Section 16 of the Exchange Act, the approval of
such grant or award shall include the approval of the disposition of the Company
of Company equity securities for the purposes of satisfying the payment of the
exercise or purchase price or tax withholding obligations related to such grant
or award within the meaning of Rules 16a-1(c)(3) and 16b-3(e).
Article 14. INDEMNIFICATION. No Program Administrator, as that term is
defined in the Program, or any officer or employee of the Company or an
affiliate acting at the direction or on behalf of the Program Administrator
shall be personally liable for any action or determination taken or made in good
faith with respect to the Program, and shall, to the extent permitted by law, be
fully indemnified and protected by the Company with respect to any such action
or determination.
Article 15. PERFORMANCE-BASED AWARDS.
(a) Each agreement for the grant of Performance Shares shall
specify the number of Performance Shares subject to such agreement,
the Performance Period and the Performance Objective (each as defined
below), and each agreement for the grant of any other award that the
Program Administrators determine to make subject to a Performance
Objective similarly shall specify the applicable number of shares of
Common Stock, the period for
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measuring performance and the Performance Objective. As used herein,
"PERFORMANCE OBJECTIVE" means a performance objective specified in the
agreement for a Performance Share, or for any other award which the
Program Administrators determine to make subject to a Performance
Objective, upon which the vesting or settlement of such award is
conditioned, and "PERFORMANCE PERIOD" means the period of time
specified in an agreement over which Performance Shares, or another
award which the Program Administrators determine to make subject to a
Performance Objective, are to be earned. Each agreement for a
performance-based grant shall specify in respect of a Performance
Objective the minimum level of performance below which no payment will
be made, shall describe the method for determining the amount of any
payment to be made if performance is at or above the minimum
acceptable level, but falls short of full achievement of the
Performance Objective, and shall specify the maximum percentage payout
under the agreement. Such maximum percentage in no event shall exceed
one hundred percent (100%) in the case of performance-based restricted
shares and two hundred percent (200%) in the case of Performance
Shares or performance-based Dividend Equivalent Rights.
(b) The Program Administrators shall determine and specify, in
their discretion, the Performance Objective in the agreement for a
Performance Share or for any other performance-based award, which
Performance Objective shall consist of: (i) one or more business
criteria, including (except as limited under subparagraph (c) below
for awards to Covered Employees (as defined below)) financial, service
level and individual performance criteria; and (ii) a targeted level
or levels of performance with respect to such criteria. Performance
Objectives may differ between Plan Participants and between types of
awards from year to year.
(c) The Performance Objective for Performance Shares and any
other performance-based award granted to a Covered Employee, if deemed
appropriate by the Program Administrators, shall be objective and
shall otherwise meet the requirements of Section 162(m)(4)(C) of the
Code, and shall be based upon one or more of the following
performance-based business criteria, either on a business unit or
Company-specific basis or in comparison with peer group performance:
net sales; gross sales; return on net assets; return on assets; return
on equity; return on capital; return on revenues; cash flow; book
value; share price performance (including options and SARs tied solely
to appreciation in the Fair Market Value of the shares); earnings per
share; stock price earnings ratio; earnings before interest, taxes,
depreciation and amortization expenses ("EBITDA"); earnings before
interest and taxes ("EBIT"); or EBITDA, EBIT or earnings before taxes
and unusual or nonrecurring items as measured either against the
annual budget or as a ratio to revenue. Achievement of any such
Performance Objective shall be measured over a period of years not to
exceed ten (10) as specified by the Program Administrators in the
agreement for the performance-based award. No business criterion other
than those named above in this Article 15(c) may be used in
establishing the Performance Objective for an award to a Covered
Employee under this Article 15. For each such award relating to a
Covered Employee, the Program Administrators shall establish the
targeted level or levels of performance for each such business
criterion. The Program Administrators may, in their discretion, reduce
the amount of a payout otherwise to be made in connection with an
award under this Article 15(c), but may not exercise discretion to
increase such amount, and the Program Administrators may consider
other performance criteria in exercising such discretion. All
determinations by the Program Administrators as to the achievement of
Performance Objectives under this Article 15(c) shall be made in
writing. The Program Administrators may not delegate any
responsibility under this Article 15(c). As used herein, "COVERED
EMPLOYEE" shall mean, with respect to any grant of an award, an
executive of the Company or any subsidiary who is a member of the
executive compensation group under the Company's compensation
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practices (not necessarily an executive officer) whom the Program
Administrators deem may be or become a covered employee as defined in
Section 162(m)(3) of the Code for any year that such award may result
in remuneration over $1 million which would not be deductible under
Section 162(m) of the Code but for the provisions of the Program and
any other "qualified performance-based compensation" plan (as defined
under Section 162(m) of the Code) of the Company; PROVIDED, HOWEVER,
that the Program Administrators may determine that a Plan Participant
has ceased to be a Covered Employee prior to the settlement of any
award.
(d) The Program Administrators, in their sole and absolute discretion, may
require that one or more award agreements contain provisions which
provide that, in the event Section 162(m) of the Code, or any
successor provision relating to excessive employee remuneration, would
operate to disallow a deduction by the Company with respect to all or
part of any award under the Program, a Plan Participant's receipt of
the benefit relating to such award that would not be deductible by the
Company shall be deferred until the next succeeding year or years in
which the Plan Participant's remuneration does not exceed the limit
set forth in such provisions of the Code.
Article 16. DEATH BENEFICIARIES. In the event of a Plan Participant's
death, all of such person's outstanding awards, including his or her rights to
receive any accrued but unpaid Stock Payments, will transfer to the maximum
extent permitted by law to such person's beneficiary (except to the extent a
permitted transfer of a Nonqualified Option or SAR was previously made pursuant
hereto). Each Plan Participant may name, from time to time, any beneficiary or
beneficiaries (which may be named contingently or successively) as his or her
beneficiary for purposes of this Program. Each designation shall be on a form
prescribed by the Program Administrators, will be effective only when delivered
to the Company, and when effective will revoke all prior designations by the
Plan Participant. If a Plan Participant dies with no such beneficiary
designation in effect, such person's beneficiary shall be his or her estate and
such person's awards will be transferable by will or pursuant to laws of descent
and distribution applicable to such person.
Article 17. UNFUNDED PROGRAM. The Program shall be unfunded and the Company
shall not be required to segregate any assets that may at any time be
represented by awards under the Program. Neither the Company, its affiliates,
the Program Administrators, nor the Board shall be deemed to be a trustee of any
amounts to be paid under the Program nor shall anything contained in the Program
or any action taken pursuant to its provisions create or be construed to create
a fiduciary relationship between any such party and a Plan Participant or anyone
claiming on his or her behalf. To the extent a Plan Participant or any other
person acquires a right to receive payment pursuant to an award under the
Program, such right shall be no greater than the right of an unsecured general
creditor of the Company.
Article 18. CHOICE OF LAW AND VENUE. The Program and all related documents
shall be governed by, and construed in accordance with, the laws of the State of
Delaware. Acceptance of an award shall be deemed to constitute consent to the
jurisdiction and venue of the state and federal courts located in Orlando
County, State of Florida for all purposes in connection with any suit, action or
other proceeding relating to such award, including the enforcement of any rights
under the Program or any agreement or other document, and shall be deemed to
constitute consent to any process or notice of motion in connection with such
proceeding being served by certified or registered mail or personal service
within or without the State of Florida, provided a reasonable time for
appearance is allowed.
Article 19. ARBITRATION. Any disputes involving the Program will be
resolved by arbitration in Orlando, Florida before one (1) arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
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Article 20. PROGRAM ADMINISTRATORS' RIGHT. Except as may be provided in an
award agreement, the Program Administrators may, in their discretion, waive any
restrictions or conditions applicable to, extend or modify any period (including
any period in which an option or other exercisable award may be exercised,
subject to the requirements of the Code) applicable to, or accelerate the
vesting of, any award (other than the right to purchase shares pursuant to the
Stock Purchase Plan).
Article 21. TERMINATION OF BENEFITS UNDER CERTAIN CONDITIONS. The Program
Administrators, in their sole and absolute discretion, may cancel any unexpired,
unpaid or deferred award (other than a right to purchase shares pursuant to the
Stock Purchase Plan) at any time if the Plan Participant is not in compliance
with all applicable provisions of the Program or any award agreement or if the
Plan Participant, whether or not he or she is currently employed by the Company
or one of its subsidiaries, acts in a manner contrary to the best interests of
the Company and its subsidiaries.
Article 22. CONFLICTS IN PROGRAM. In case of any conflict in the terms of
the Program, or between the Program and an award agreement, the provisions in
the Program which specifically grant such award shall control, and the
provisions in the Program shall control over the provisions in any award
agreement.
Article 23. OPTIONAL DEFERRAL. The right to receive any award under the
Program (other than the right to purchase shares pursuant to the Stock Purchase
Plan) may, at the request of the Plan Participant, be deferred to such period
and upon such terms and conditions as the Program Administrators shall, in their
discretion, determine, which may include crediting of interest on deferrals of
cash and crediting of dividends on deferrals denominated in shares of Common
Stock.
Article 24. INFORMATION TO PLAN PARTICIPANTS. To the extent required by
applicable law, the Company shall provide Plan Participants with the Company's
financial statements at least annually.
Article 25. LOCK-UP. To the extent requested by any managing underwriter to
the Company, the Plan Participants shall enter into such market lock-up, escrow
or other agreements as may be requested by such underwriter in connection with
any public offering of the Company's securities.
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PART I
HOLIDAY RV SUPERSTORES, INC.
INCENTIVE STOCK OPTION PLAN
Section 1. PURPOSE. The purpose of this Holiday RV Superstores, Inc.
Incentive Stock Option Plan (the "INCENTIVE PLAN") is to promote the growth and
general prosperity of the Company by permitting the Company to grant options to
purchase shares of its Common Stock. The Incentive Plan is designed to help
attract and retain superior personnel for positions of substantial
responsibility with the Company and its subsidiaries, and to provide individuals
with an additional incentive to contribute to the success of the Company. The
Company intends that options granted pursuant to the provisions of the Incentive
Plan will qualify as "INCENTIVE STOCK OPTIONS" within the meaning of Section 422
of the Code. This Incentive Plan is Part I of the Program. Unless any provision
herein indicates to the contrary, this Incentive Plan shall be subject to the
General Provisions of the Program, and terms used but not defined in this
Incentive Plan shall have the meanings, if any, ascribed thereto in the General
Provisions of the Program.
Section 2. MAXIMUM NUMBER OF SHARES; OPTION TERMS AND CONDITIONS. The
maximum aggregate number of shares of Common Stock subject to the Incentive Plan
shall be 3,000,000. The terms and conditions of options granted under the
Incentive Plan may differ from one another as the Program Administrators shall,
in their discretion, determine as long as all options granted under the
Incentive Plan satisfy the requirements of the Incentive Plan.
Section 3. DURATION OF OPTIONS. Each option and all rights thereunder
granted pursuant to the terms of the Incentive Plan shall expire on the date
determined by the Program Administrators, but in no event shall any option
granted under the Incentive Plan expire later than ten (10) years from the date
on which the option is granted. However, notwithstanding the above portion of
this Section 3, if at the time the option is granted the Optionee (the
"OPTIONEE") owns or would be considered to own by reason of Code Section 424(d)
more than 10% of the total combined voting power of all classes of stock of the
Company or its subsidiaries, such option shall expire not more than five years
from the date the option is granted. In addition, each option shall be subject
to early termination as provided in the Incentive Plan.
Section 4. PURCHASE PRICE. The purchase price for shares acquired pursuant
to the exercise, in whole or in part, of any option shall not be less than the
Fair Market Value of the shares at the time of the grant of the option.
Notwithstanding the preceding sentence, if at the time an option is granted the
Optionee owns or would be considered to own by reason of Code Section 424(d)
more than 10% of the total combined voting power of all classes of stock of the
Company or its subsidiaries, the purchase price of the shares covered by such
option shall not be less than 110% of the Fair Market Value of a share of Common
Stock on the date the option is granted.
Section 5. MAXIMUM AMOUNT OF OPTIONS EXERCISABLE IN ANY CALENDAR YEAR.
Notwithstanding any other provision of this Incentive Plan, to the extent that
the aggregate Fair Market Value of stock with respect to which options
(determined without regard to this Section 5) are exercisable for the first time
by any Optionee during any calendar year under all stock option plans of the
Company and its subsidiaries exceeds $100,000, such options shall be treated as
options which are not incentive stock options within the meaning of Section 422
of the Code. The Program Administrators may provide in any option grant that the
aggregate Fair Market Value of the Common Stock with respect to which options
granted under the Incentive Plan become exercisable for the first time by any
Optionee during any calendar year under all stock option plans of the Company
and its subsidiaries shall not exceed $100,000.
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Section 6. EXERCISE OF OPTIONS. Each option shall be exercisable in one or
more installments during its term as determined by the Program Administrators,
and the right to exercise may be cumulative as determined by the Program
Administrators. No option may be exercised for a fraction of a share of Common
Stock. The purchase price of any shares purchased shall be paid in full in cash
or by certified or cashier's check payable to the order of the Company or by
shares of Common Stock, if permitted by the Program Administrators, or by a
combination of cash, check, or shares of Common Stock, at the time of exercise
of the option. If any portion of the purchase price is paid in shares of Common
Stock, those shares shall be tendered at their then Fair Market Value as
determined by the Program Administrators in accordance with Article 6 under the
General Provisions of the Program Payment in shares of Common Stock includes the
automatic application of shares of Common Stock received upon exercise of an
option to satisfy the exercise price for additional options.
Section 7. REORGANIZATION. In the event of the dissolution or liquidation
of the Company, any option granted under the Incentive Plan shall terminate as
of a date to be fixed by the Program Administrators; provided that not less than
30 days' written notice of the date so fixed shall be given to each Optionee and
each such Optionee shall have the right during such period (unless such option
shall have previously expired) to exercise any option, including any option that
would not otherwise be exercisable by reason of an insufficient lapse of time.
In the event of a Reorganization (as defined below) in which the Company is
not the surviving or acquiring company, or in which the Company is or becomes a
subsidiary of another company after the effective date of the Reorganization,
then:
(a) if there is no plan or agreement respecting the Reorganization
(the "REORGANIZATION AGREEMENT") or if the Reorganization Agreement does
not specifically provide for the change, conversion or exchange of the
outstanding options for options of another corporation, then exercise and
termination provisions equivalent to those described in this Section 7
shall apply (which shall include the right to receive upon exercise the
consideration that would be received by a holder of a number of shares of
Common Stock issuable upon exercise of the option immediately prior to the
consummation of the Reorganization); or
(b) if there is a Reorganization Agreement and if the Reorganization
Agreement specifically provides for the change, conversion, or exchange of
the outstanding options for options of another corporation, then the
Program Administrators shall adjust the outstanding unexercised options
(and shall adjust the options remaining under the Incentive Plan which have
not yet been granted if the Reorganization Agreement makes specific
provision for such an adjustment) in a manner consistent with the
applicable provisions of the Reorganization Agreement.
The term "REORGANIZATION" as used in this Section 7 shall mean any statutory
merger, statutory consolidation, sale of all or substantially all of the assets
of the Company or a sale of the Common Stock pursuant to which the Company is or
becomes a subsidiary of another company after the effective date of the
Reorganization.
Adjustments and determinations under this Section 7 shall be made by the
Program Administrators, whose decisions as to such adjustments or determinations
shall be final, binding, and conclusive.
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Section 8. WRITTEN NOTICE REQUIRED. Any option granted pursuant to the
terms of the Incentive Plan shall be exercised when written notice of that
exercise has been given to the Company at its principal office by the person
entitled to exercise the option and full payment for the shares with respect to
which the option is exercised, together with payment of applicable income taxes,
has been received by the Company.
Section 9. COMPLIANCE WITH SECURITIES LAWS. Shares shall not be issued with
respect to any option granted under the Incentive Plan, unless the exercise of
that option and the issuance and delivery of the shares pursuant to that
exercise shall comply with all applicable provisions of foreign, state and
federal law including, without limitation, the Securities Act of 1933, as
amended, and the Exchange Act, and the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Program Administrators may also
require an Optionee to furnish evidence satisfactory to the Company, including a
written and signed representation letter and consent to be bound by any transfer
restriction imposed by law, legend, condition, or otherwise, that the shares are
being purchased only for investment and without any present intention to sell or
distribute the shares in violation of any state or federal law, rule, or
regulation. Further, each Optionee shall consent to the imposition of a legend
on the shares of Common Stock subject to his or her option and the imposition of
stop-transfer instructions restricting their transferability as required by law
or by this Section 9.
Section 10. EMPLOYMENT OF OPTIONEE. Each Optionee, if requested by the
Program Administrators, must agree in writing as a condition of receiving his or
her option, that he or she will remain in the employment of the Company or its
subsidiary corporations following the date of the granting of that option for a
period specified by the Program Administrators. Nothing in the Incentive Plan or
in any option granted hereunder shall confer upon any Optionee any right to
continued employment by the Company or its subsidiary corporations or limit in
any way the right of the Company or its subsidiary corporations at any time to
terminate or alter the terms of that employment.
Section 11. OPTION RIGHTS UPON TERMINATION OF EMPLOYMENT. If an Optionee
ceases to be employed by the Company or any subsidiary corporation for any
reason other than death or disability, his or her option shall terminate thirty
(30) days after the date of termination of employment (unless sooner terminated
in accordance with its terms); PROVIDED, HOWEVER, that in the event employment
is terminated for cause, his or her option shall terminate immediately,
PROVIDED, FURTHER, HOWEVER, that the Program Administrators may, in their sole
and absolute discretion, allow the option to be exercised (to the extent
exercisable on the date of termination of employment) at any time within ninety
(90) days after the date of termination of employment, unless either the option
or the Incentive Plan otherwise provides for earlier termination.
Section 12. OPTION RIGHTS UPON DISABILITY. If an Optionee becomes disabled
within the meaning of Code Section 422(e)(3) while employed by the Company or
any subsidiary, his or her option shall terminate six months after the date of
termination of employment due to disability (unless sooner terminated in
accordance with its terms); PROVIDED, HOWEVER, that the Program Administrators
may, in their sole and absolute discretion, allow the option to be exercised (to
the extent exercisable on the date of termination of employment) at any time
within one year after the date of termination of employment due to disability,
unless either the option or the Incentive Plan otherwise provides for earlier
termination.
Section 13. OPTION RIGHTS UPON DEATH OF OPTIONEE. If an Optionee dies while
employed by the Company or any subsidiary corporation, his or her option shall
expire six months after the date of death (unless sooner terminated in
accordance with its terms); PROVIDED, HOWEVER, that the Program Administrators
may, in their sole and absolute discretion, allow the option to be exercised (to
the
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extent exercisable on the date of termination of employment) at any time within
one year after the date of death, unless either the option or the Incentive Plan
otherwise provides for earlier termination. During this one-year or shorter
period, the option may be exercised, to the extent that it remains unexercised
on the date of death, by the person or persons to whom the Optionee's rights
under the option shall pass by will or by the laws of descent and distribution,
but only to the extent that the Optionee is entitled to exercise the option at
the date of death.
Section 14. OPTIONS NOT TRANSFERABLE. Options granted pursuant to the terms
of the Incentive Plan may not be sold, pledged, assigned, or transferred in any
manner otherwise than by will or the laws of descent or distribution and may be
exercised during the lifetime of an Optionee only by that Optionee. No such
options shall be pledged or hypothecated in any way nor shall they be subject to
execution, attachment, or similar process.
Section 15. ADJUSTMENTS TO NUMBER AND PURCHASE PRICE OF OPTIONED SHARES.
All options granted pursuant to the terms of this Incentive Plan shall be
adjusted in the manner prescribed by Article 7 of the General Provisions of this
Program.
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HOLIDAY RV SUPERSTORES, INC.
INCENTIVE STOCK OPTION PLAN
GRANT OF OPTION
Date of Grant: ____________________, ____
This GRANT, dated as of the date of grant first stated above (the "DATE OF
GRANT"), is delivered by Holiday RV Superstores, Inc., a Delaware corporation
(the "COMPANY"), to __________________ (the "OPTIONEE"), who is an employee of
the Company or one of its subsidiaries (the Optionee's employer is sometimes
referred to herein as the "EMPLOYER").
WHEREAS, the Board of Directors of the Company (the "Board") on November
__, 1999 adopted, with subsequent stockholder approval, the Holiday RV
Superstores, Inc. Incentive Stock Option (the "PLAN");
WHEREAS, the Plan provides for the granting of incentive stock options by
the Board or Program Administrators to employees of the Company or any
subsidiary of the Company to purchase, or to exercise certain rights with
respect to, shares of the Common Stock of the Company, $.01 par value (the
"STOCK"), in accordance with the terms and provisions thereof; and
WHEREAS, the Program Administrators consider the Optionee to be a person
who is eligible for a grant of incentive stock options under the Plan, and have
determined that it would be in the best interest of the Company to grant the
incentive stock options documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Grant of Option.
Subject to the terms and conditions hereinafter set forth, the Company,
with the approval and at the direction of the Program Administrators, hereby
grants to the Optionee, as of the Date of Grant, an option to purchase up to
_____ shares of Stock at a price of $_____ per share, the Fair Market Value as
defined in Article 6 under General Provisions of the Program (or, with respect
to 10% stockholders, 110% of Fair Market Value) on the Date of Grant. Such
option is hereinafter referred to as the "OPTION" and the shares of stock
purchasable upon exercise of the Option are hereinafter sometimes referred to as
the "OPTION SHARES." The Option is intended by the parties hereto to be, and
shall be treated as, an incentive stock option (as such term is defined under
Section 422 of the Internal Revenue Code of 1986).
2. Installment Exercise.
Subject to such further limitations as are provided herein, the Option
shall become exercisable in __________ installments, the Optionee having the
right hereunder to purchase from the Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion as determined by the Program Administrators:
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Option Shares Exercisable Date
________________________________ _____________
________________________________ _____________
________________________________ _____________
3. Termination of Option.
(a) Subject to the other provisions of this Grant, the Option and all
rights hereunder with respect thereto, to the extent such rights shall not have
been exercised, shall terminate and become null and void after the expiration of
_____ years from the Date of Grant (the "OPTION TERM").
(b) Upon the occurrence of the Optionee ceasing for any reason to be
employed by the Employer (such occurrence being a "termination of the Optionee's
employment"), the Option, to the extent not previously exercised, shall
terminate and become null and void within thirty (30) days after the date of
such termination of the Optionee's employment, except (1) in the event
employment is terminated for cause as defined by applicable law, in which case
Optionee's Option shall terminate and become null and void immediately or (2) in
a case where the Program Administrators may otherwise determine in their sole
and absolute discretion for up to ninety (90) days following the termination of
employment. Upon a termination of the Optionee's employment by reason of
disability or death, the Option may be exercised, but only to the extent that
the Option was outstanding and exercisable on such date of disability or death,
for up to a six-month period following the date of such termination of the
Optionee's employment, unless extended for a period of up to one year, at the
sole discretion of the Program Administrators.
(c) In the event of the death of the Optionee, the Option may be exercised
by the Optionee's legal representative, but only to the extent that the option
would otherwise have been exercisable by the Optionee.
(d) A transfer of the Optionee's employment between the Company and any
subsidiary of the Company, or between any subsidiaries of the Company, shall not
be deemed to be a termination of the Optionee's employment.
4. Exercise of Option.
(a) The Optionee may exercise the option with respect to all or any part of
the number of Option Shares then exercisable hereunder by giving the Secretary
of the Company written notice of intent to exercise. The notice of exercise
shall specify the number of Option Shares as to which the Option is to be
exercised and the date of exercise thereof.
(b) Full payment (in U.S. dollars) by the Optionee of the option price for
the Option Shares purchased shall be made on or before the exercise date
specified in the notice of exercise in cash, or, with the prior written consent
of the Program Administrators, in whole or in part through the surrender of
shares of Stock at their Fair Market Value on the exercise date. The Optionee
shall also pay any required income tax withholding taxes which may be payable in
U.S. dollars or Option Shares if acceptable to the Company.
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(c) On the exercise date specified in the Optionee's notice or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Optionee, a certificate or certificates for the Option Shares then being
purchased (out of theretofore unissued Stock or reacquired Stock, as the Company
may elect) upon full payment for such option Shares. However, if (i) the
Optionee is subject to Section 16 of the Securities Exchange Act of 1934 and
(ii) the Optionee exercises the Option before six months have passed from the
Date of Grant, the Company shall be permitted, if required to comply with the
exemptive provisions of Section 16 of the Securities Exchange Act of 1934, to
hold in its custody any stock certificate arising from such exercise until six
months has passed from the Date of Grant. The obligation of the Company to
deliver Stock shall, however, be subject to the condition that if at any time
the Program Administrators shall determine in their discretion that the listing,
registration or qualification of the Option or the Option Shares upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the Option or the issuance or purchase of
Stock thereunder, the Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Program
Administrators.
(d) If the Optionee fails to pay for any of the Option Shares specified in
such notice or fails to accept delivery thereof, the Optionee's right to
purchase such Option Shares may be terminated by the Company. The date specified
in the Optionee's notice as the date of exercise shall be deemed the date of
exercise of the Option, provided that payment in full for the Option Shares to
be purchased upon such exercise shall have been received by such date.
5. Adjustment of and Changes in Stock of the Company.
In the event of a reorganization, recapitalization, change of shares, stock
split, spin-off, stock dividend, reclassification, subdivision or combination of
shares, merger, consolidation, rights offering, or any other change in the
corporate structure or shares of capital stock of the Company, the Program
Administrators shall make such adjustment as may be required under the
applicable reorganization agreement in the number and kind of shares of Stock
subject to the Option or in the option price; PROVIDED, HOWEVER, that no such
adjustment shall give the Optionee any additional benefits under the Option. If
there is no provision for the treatment of the Option under an applicable
reorganization agreement, the Option may terminate on a date determined by the
Program Administrators following at least 30 days written notice to the
Optionee.
6. No Rights of Stockholders.
Neither the Optionee nor any personal representative shall be, or shall
have any of the rights and privileges of, a stockholder of the Company with
respect to any shares of Stock purchasable or issuable upon the exercise of the
Option, in whole or in part, prior to the date of exercise of the Option.
7. Non-Transferability of Option.
During the Optionee's lifetime, the Option hereunder shall be exercisable
only by the Optionee or any guardian or legal representative of the Optionee,
and the Option shall not be transferable except, in case of the death of the
Optionee, by will or the laws of descent and distribution, nor shall the Option
be subject to attachment, execution or other similar process. In the event of
(a) any attempt by the Optionee to alienate, assign, pledge, hypothecate or
otherwise dispose of the option, except as provided for herein, or (b) the levy
of any attachment, execution or similar process upon the rights or interest
hereby conferred, the Company may terminate the Option by notice to the Optionee
and it shall thereupon become null and void.
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8. Restriction on Exercise.
The Option may not be exercised if the issuance of the Option Shares upon
such exercise would constitute a violation of any applicable federal or State
securities or other law or valid regulation. As a condition to the exercise of
the Option, the Company may require the Optionee exercising the Option to make
any representation or warranty to the Company as may be required by any
applicable law or regulation and, specifically, may require the Optionee to
provide evidence satisfactory to the Company that the Option Shares are being
acquired only for investment purposes and without any present intention to sell
or distribute the shares in violation of any federal or State securities or
other law or valid regulation.
7. Employment Not Affected.
The granting of the Option or its exercise shall not be construed as
granting to the Optionee any right with respect to continuance of employment of
the Employer. Except as may otherwise be limited by a written agreement between
the Employer and the Optionee, the right of the Employer to terminate at will
the Optionee's employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by the Company, as the
Employer or on behalf of the Employer (whichever the case may be), and
acknowledged by the Optionee.
8. Amendment of Option.
The Option may be amended by the Program Administrators at any time (i) if
the Program Administrators determine, in their sole and absolute discretion,
that amendment is necessary or advisable in the light of any addition to or
change in the Internal Revenue Code of 1986 or in the regulations issued
thereunder, or any federal or state securities law or other law or regulation,
which change occurs after the Date of Grant and by its terms applies to the
Option; or (ii) other than in the circumstances described in clause (i), with
the consent of the Optionee.
9. Notice.
All notices, requests, demands, and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally
or by certified mail, return receipt requested, as follows:
To Company: Holiday RV Superstores, Inc.
7851 Greenbriar Parkway
Orlando, Florida 32819
Attn: Chief Financial Officer
To Optionee: ______________________________
______________________________
______________________________
______________________________
10. Incorporation of Plan by Reference.
The Option is granted pursuant to the terms of the Plan, the terms of which
are incorporated herein by reference, and the Option shall in all respects be
interpreted in accordance with, and shall be subject to, the Plan. The Program
Administrators shall interpret and construe the Plan and this instrument, and
its interpretations and determinations shall be conclusive and binding on the
parties
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hereto and any other person claiming an interest hereunder, with respect to any
issue arising hereunder or thereunder.
11. Governing Law.
The validity, construction, interpretation and effect of this instrument
shall exclusively be governed by and determined in accordance with the law of
the State of Delaware, except to the extent preempted by federal law, which
shall to the extent govern.
IN WITNESS WHEREOF, the Company has caused its duly authorized officers to
execute this Grant of Option, and to apply the corporate seal hereto, and the
Optionee has placed his or her signature hereon, effective as of the Date of
Grant.
HOLIDAY RV SUPERSTORES, INC.,
a Delaware corporation
By:______________________________________
Name:
Title:
ACCEPTED AND AGREED TO:
_________________________________________
[Optionee]
By:______________________________________
Name:
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PART II
HOLIDAY RV SUPERSTORES, INC.
NON-QUALIFIED STOCK OPTION PLAN
Section 1. PURPOSE. The purpose of this Holiday RV Superstores, Inc.
Non-Qualified Stock Option Plan (the "NONQUALIFIED PLAN") is to permit the
Company to grant options to purchase shares of its Common Stock. The
Nonqualified Plan is designed to help attract and retain superior personnel for
positions of substantial responsibility with the Company and its subsidiaries,
and to provide individuals with an additional incentive to contribute to the
success of the Company. Any option granted pursuant to the Nonqualified Plan
shall be clearly and specifically designated as not being an incentive stock
option, as defined in Section 422 of the Code. This Nonqualified Plan is Part II
of the Program. Unless any provision herein indicates to the contrary, the
Nonqualified Plan shall be subject to the General Provisions of the Program, and
terms used but not defined in this Nonqualified Plan shall have the meanings, if
any, ascribed thereto in the General Provisions of the Program.
Section 2. OPTION TERMS AND CONDITIONS. The terms and conditions of options
granted under the Nonqualified Plan may differ from one another as the Program
Administrators shall in their discretion determine as long as all options
granted under the Nonqualified Plan satisfy the requirements of the Nonqualified
Plan.
Section 3. DURATION OF OPTIONS. Each option and all rights thereunder
granted pursuant to the terms of the Nonqualified Plan shall expire on the date
determined by the Program Administrators, but in no event shall any option
granted under the Nonqualified Plan expire later than ten (10) years from the
date on which the option is granted. In addition, each option shall be subject
to early termination as provided in the Nonqualified Plan.
Section 4. PURCHASE PRICE. The purchase price for shares acquired pursuant
to the exercise, in whole or in part, of any option shall not be less than 85%
of the Fair Market Value of the shares at the time of the grant of the option.
Notwithstanding the preceding sentence, if at the time the option is granted the
Optionee is a Covered Employee, the Purchase Price shall not be less than 100%
of the Fair Market Value.
Section 5. EXERCISE OF OPTIONS. Each option shall be exercisable in one or
more installments during its term and the right to exercise may be cumulative as
determined by the Program Administrators. No option may be exercised for a
fraction of a share of Common Stock. The purchase price of any shares purchased
shall be paid in full in cash or by certified or cashier's check payable to the
order of the Company or by shares of Common Stock, if permitted by the Program
Administrators, or by a combination of cash, check, or shares of Common Stock,
at the time of exercise of the option. If any portion of the purchase price is
paid in shares of Common Stock, those shares shall be tendered at their then
Fair Market Value as determined by Article 6 of the General Provisions of the
Program. Payment in shares of Common Stock includes the automatic application of
shares of Common Stock received upon exercise of an option to satisfy the
exercise price for additional options.
Section 6. REORGANIZATION. In the event of the dissolution or liquidation
of the Company, any option granted under the Nonqualified Plan shall terminate
as of a date to be fixed by the Program Administrators; provided that not less
than 30 days' written notice of the date so fixed shall be given to each
Optionee and each such Optionee shall have the right during such period (unless
such option shall have previously expired) to exercise any option, including any
option that would not otherwise be exercisable by reason of an insufficient
lapse of time.
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In the event of a Reorganization (as defined below) in which the Company is
not the surviving or acquiring company, or in which the Company is or becomes a
subsidiary of another company after the effective date of the Reorganization,
then:
(a) if there is no plan or agreement respecting the Reorganization
(the "REORGANIZATION AGREEMENT") or if the Reorganization Agreement does
not specifically provide for the change, conversion or exchange of the
outstanding options for options of another corporation, then exercise and
termination provisions equivalent to those described in this Section 6
shall apply (which shall include the right to receive upon exercise the
consideration that would be received by a holder of a number of shares of
Common Stock issuable upon exercise of the option immediately prior to the
consummation of the Reorganization); or
(b) if there is a Reorganization Agreement and if the Reorganization
Agreement specifically provides for the change, conversion, or exchange of
the outstanding options for options of another corporation, then the
Program Administrators shall adjust the outstanding unexercised options
(and shall adjust the options remaining under the Nonqualified Plan which
have not yet been granted if the Reorganization Agreement makes specific
provision for such an adjustment) in a manner consistent with the
applicable provisions of the Reorganization Agreement.
The term "REORGANIZATION" as used in this Section 6 shall mean any
statutory merger, statutory consolidation, sale of all or substantially all of
the assets of the Company or a sale of the Common Stock pursuant to which the
Company is or becomes a subsidiary of another company after the effective date
of the Reorganization.
Adjustments and determinations under this Section 6 shall be made by the
Program Administrators, whose decisions as to such adjustments or determinations
shall be final, binding, and conclusive.
Section 7. WRITTEN NOTICE REQUIRED. Any option granted pursuant to the
terms of this Nonqualified Plan shall be exercised when written notice of that
exercise has been given to the Company at its principal office by the person
entitled to exercise the option and full payment for the shares with respect to
which the option is exercised has been received by the Company.
Section 8. COMPLIANCE WITH SECURITIES LAWS. Shares shall not be issued with
respect to any option granted under the Nonqualified Plan, unless the exercise
of that option and the issuance and delivery of the shares pursuant thereto
shall comply with all applicable provisions of foreign, state and federal law,
including, without limitation, the Securities Act of 1933, as amended, and the
Exchange Act, and the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance. The Program Administrators may also require an Optionee to
furnish evidence satisfactory to the Company, including a written and signed
representation letter and consent to be bound by any transfer restrictions
imposed by law, legend, condition, or otherwise, that the shares are being
purchased only for investment purposes and without any present intention to sell
or distribute the shares in violation of any state or federal law, rule, or
regulation. Further, each Optionee shall consent to the imposition of a legend
on the shares of Common Stock subject to his or her option and the imposition of
stop-transfer instructions restricting their transferability as required by law
or by this Section 8.
Section 9. CONTINUED EMPLOYMENT OR SERVICE. Each Optionee, if requested by
the Program Administrators, must agree in writing as a condition of receiving
his or her option, to remain in
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the employment of, or service to, the Company or any of its subsidiaries
following the date of the granting of that option for a period specified by the
Program Administrators. Nothing in this Nonqualified Plan or in any option
granted hereunder shall confer upon any Optionee any right to continued
employment by, or service to, the Company or any of its subsidiaries, or limit
in any way the right of the Company or any subsidiary at any time to terminate
or alter the terms of that employment or service arrangement.
Section 10. OPTION RIGHTS UPON TERMINATION OF EMPLOYMENT OR SERVICE. If an
Optionee ceases to be employed by, or ceases to serve, the Company or any
subsidiary for any reason other than death or disability, his or her option
shall terminate thirty (30) days after the date of termination of employment or
service unless sooner terminated in accordance with its terms; PROVIDED,
HOWEVER, that in the event employment or service is terminated for cause, his or
her option shall terminate immediately, PROVIDED, FURTHER, HOWEVER, that the
Program Administrators may, in their sole and absolute discretion, allow the
option to be exercised (to the extent exercisable on the date of termination of
employment or service) at any time within one year after the date of termination
of employment or service, unless either the option or the Nonqualified Plan
otherwise provides for earlier termination.
Section 11. OPTION RIGHTS UPON DISABILITY. If an Optionee becomes disabled
within the meaning of Code Section 422(e)(3) while employed by the Company or
any subsidiary corporation, his or her option shall terminate six months after
the date of termination of employment due to disability (unless sooner
terminated in accordance with its terms); PROVIDED, HOWEVER, that the Program
Administrators may, in their sole and absolute discretion, allow the option to
be exercised (to the extent exercisable on the date of termination of employment
at any time within one year after the date of termination of employment due to
disability, unless either the option or the Nonqualified Plan otherwise provides
for earlier termination.
Section 12. OPTION RIGHTS UPON DEATH OF OPTIONEE. If an Optionee dies while
employed by, or providing services to, the Company or any of its subsidiaries,
his or her option shall expire six months after the date of death (unless sooner
terminated in accordance with its terms); provided, however, that the Program
Administrators may, in their sole and absolute discretion, allow the option to
be exercised (to the extent exercisable on the date of death) at any time within
one year after the date of death, unless either the option or the Nonqualified
Plan otherwise provides for earlier termination. During this one-year or shorter
period, the option may be exercised, to the extent that it remains unexercised
on the date of death, by the person or persons to whom the Optionee's rights
under the option shall pass by will or by the laws of descent and distribution,
but only to the extent that the Optionee is entitled to exercise the option at
the date of death.
Section 13. OPTIONS NOT TRANSFERABLE. Options granted pursuant to the terms
of this Nonqualified Plan may not be sold, pledged, assigned, or transferred in
any manner otherwise than by will or the laws of descent or distribution and may
be exercised during the lifetime of an Optionee only by that Optionee. No such
options shall be pledged or hypothecated in any way nor shall they be subject to
execution, attachment, or similar process.
Section 14. ADJUSTMENTS TO NUMBER AND PURCHASE PRICE OF OPTIONED SHARES.
All options granted pursuant to the terms of this Nonqualified Plan shall be
adjusted in a manner prescribed by Article 7 of the General Provisions of the
Program.
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HOLIDAY RV SUPERSTORES, INC.
NON-QUALIFIED STOCK OPTION PLAN
GRANT OF OPTION
Date of Grant: __________, ____
This GRANT, dated as of the date of grant first stated above (the "DATE OF
GRANT"), is delivered by Holiday RV Superstores, Inc. a Delaware corporation
(the "COMPANY"), to __________________ (the "OPTIONEE"), who is an employee or
non-employee of the Company or one of its subsidiaries (the Optionee's employer
is sometimes referred to herein as the ("EMPLOYER").
WHEREAS, the Board of Directors of the Company (the "BOARD") on November
__, 1999 adopted, with subsequent stockholder approval, the Holiday RV
Superstores, Inc. Non-Qualified Stock Option (the "PLAN");
WHEREAS, the Plan provides for the granting of stock options by the Board
or the Program Administrators to employees or non-employees of the Company or
any subsidiary of the Company to purchase, or to exercise certain rights with
respect to, shares of the Common Stock of the Company, $.01 par value (the
"Stock"), in accordance with the terms and provisions thereof; and
WHEREAS, the Program Administrators consider the Optionee to be a person
who is eligible for a grant of non-qualified stock options under the Plan, and
has determined that it would be in the best interest of the Company to grant the
non-qualified stock options documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Grant of Option.
Subject to the terms and conditions hereinafter set forth, the Company,
with the approval and at the direction of the Program Administrators, hereby
grants to the Optionee, as of the Date of Grant, an option to purchase up to
__________ shares of Stock at a price of $__________ per share, the [Fair Market
Value/ ___% (__%) of the Fair Market Value].
Such option is hereinafter referred to as the "OPTION" and the shares of
stock purchasable upon exercise of the Option are hereinafter sometimes referred
to as the "OPTION SHARES." The Option is intended by the parties hereto to be,
and shall be treated as, an option not qualified as an incentive stock option
(as such term is defined under Section 422 of the Internal Revenue Code of
1986).
2. Installment Exercise.
Subject to such further limitations as are provided herein, the Option
shall become exercisable in __________ installments, the Optionee having the
right hereunder to purchase from the Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion as determined by the Program Administrators:
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Option Share Exercisable Date
_____________________________ ________________
_____________________________ ________________
_____________________________ ________________
3. Termination of Option.
(a) Subject to the other provisions of this Grant, the Option and all
rights hereunder with respect thereto, to the extent such rights shall not have
been exercised, shall terminate and become null and void after the expiration of
__________ years from the Date of Grant (the "OPTION TERM").
(b) Upon the occurrence of the Optionee's ceasing for any reason to be
employed by, or to serve, the Company (such occurrence being a "termination of
the Optionee's employment"), the Option, to the extent not previously exercised,
shall terminate and become null and void within thirty (30) days after the date
of such termination of the Optionee's employment, except (1) in the event
employment is terminated for cause as defined by applicable law, in which case
Optionee's Option shall terminate and become null and void immediately or (2) in
a case where the Program Administrators may otherwise determine in their sole
and absolute discretion for up to ninety (90) days following the termination of
employment or service. As determined by the Program Administrators, upon a
termination of the Optionee's employment by reason of disability or death, the
Option may be exercised, but only to the extent that the Option was outstanding
and exercisable on such date of disability or death, for up to a six-month
period following the date of such termination of the Optionee's employment,
unless extended for a period of up to one year, at the sole discretion of the
Program Administrators.
(c) In the event of the death of the Optionee, the Option may be exercised
by the Optionee's legal representative, but only to the extent that the Option
would otherwise have been exercisable by the Optionee.
(d) A transfer of the Optionee's employment between the Company and any
subsidiary of the Company, or between any subsidiaries of the Company, shall not
be deemed to be a termination of the Optionee's employment.
4. Exercise of Options.
(a) The Optionee may exercise the Option with respect to all or any part of
the number of Option Shares then exercisable hereunder by giving the Secretary
of the Company written notice of intent to exercise. The notice of exercise
shall specify the number of Option Shares as to which the Option is to be
exercised and the date of exercise thereof.
(b) Full payment (in U.S. dollars) by the Optionee of the option price for
the Option Shares purchased shall be made on or before the exercise date
specified in the notice of exercise in cash, or, with the prior written consent
of the Program Administrators, in whole or in part through the surrender of
shares of Stock at their Fair Market Value as defined under Article 6 of the
General Provisions of the Program on the exercise date. The Optionee shall also
pay any required income tax withholding taxes which may be payable in U.S.
dollars or Option Shares if acceptable to the Company.
(c) On the exercise date specified in the Optionee's notice or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Optionee, a certificate or certificates for the Option Shares then being
purchased (out of theretofore unissued Stock or reacquired Stock, as the Company
may elect) upon full payment for such Option Shares. However, if (i) the
Optionee is subject to Section 16 of the Securities Exchange Act of 1934 and
(ii) the Optionee exercises the option before six
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<PAGE>
months have passed from the Date of Grant, the Company shall be permitted, if
required to comply with the exemptive provisions of Section 16 of the Securities
Exchange Act of 1934, to hold in its custody any stock certificate arising from
such exercise until six months has passed from the Date of Grant. The obligation
of the Company to deliver Stock shall, however, be subject to the condition that
if at any time the Program Administrators shall determine in their discretion
that the listing, registration or qualification of the Option or the Option
Shares upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the Option or the issuance
or purchase of Stock thereunder, the Option may not be exercised in whole or in
part unless such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to the
Program Administrators.
(d) If the Optionee fails to pay for any of the Option Shares specified in
such notice or fails to accept delivery thereof, the Optionee's right to
purchase such Option Shares may be terminated by the Company. The date specified
in the Optionee's notice as the date of exercise shall be deemed the date of
exercise of the Option, provided that payment in full for the Option Shares to
be purchased upon such exercise shall have been received by such date.
5. Adjustment of and Changes in Stock of the Company.
In the event of a reorganization, recapitalization, change of shares, stock
split, spin-off, stock dividend, reclassification, subdivision or combination of
shares, merger, consolidation, rights offering, or any other change in the
corporate structure or shares of capital stock of the Company, the Program
Administrators shall make such adjustment as may be required under the
applicable reorganization agreement in the number and kind of shares of Stock
subject to the Option or in the option price; provided, however, that no such
adjustment shall give the Optionee any additional benefits under the Option. If
there is no provision for the treatment of the Option under an applicable
reorganization agreement, the Option may terminate on a date determined by the
Program Administrators following at least 30 days written notice to the
Optionee.
6. No Rights of Stockholders.
Neither the Optionee nor any personal representative shall be, or shall
have any of the rights and privileges of, a stockholder of the Company with
respect to any shares of Stock purchasable or issuable upon the exercise of the
Option, in whole or in part, prior to the date of exercise of the Option.
7. Non-Transferability of Option.
During the Optionee's lifetime, the Option hereunder shall be exercisable
only by the Optionee or any guardian or legal representative of the Optionee,
and the Option shall not be transferable except, in case of the death of the
Optionee, by will or the laws of descent and distribution, nor shall the Option
be subject to attachment, execution or other similar process. In the event of
(a) any attempt by the Optionee to alienate, assign, pledge, hypothecate or
otherwise dispose of the Option, except as provided for herein, or (b) the levy
of any attachment, execution or similar process upon the rights or interest
hereby conferred, the Company may terminate the Option by notice to the Optionee
and it shall thereupon become null and void.
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<PAGE>
8. Restriction on Exercise.
The Option may not be exercised if the issuance of the Option Shares upon
such exercise would constitute a violation of any applicable federal or state
securities or other law or valid regulation. As a condition to the exercise of
the Option, the Company may require the Optionee exercising the Option to make
any representation or warranty to the Company as may be required by any
applicable law or regulation and, specifically, may require the Optionee to
provide evidence satisfactory to the Company that the Option Shares are being
acquired only for investment purposes and without any present intention to sell
or distribute the shares in violation of any federal or state securities or
other law or valid regulation.
9. Employment or Service Not Affected.
The granting of the Option or its exercise shall not be construed as
granting to the Optionee any right with respect to continuance of employment by
or service relationship with the Employer. Except as may otherwise be limited by
a written agreement between the Employer and the Optionee, the right of the
Employer to terminate at will the Optionee's employment or service relationship
with it at any time (whether by dismissal, discharge, retirement or otherwise)
is specifically reserved by the Company, as the Employer or on behalf of the
Employer (whichever the case may be), and acknowledged by the Optionee.
10. Amendment of Option.
The Option may be amended by the Program Administrators at any time (i) if
the Program Administrators determine, in their sole and absolute discretion,
that amendment is necessary or advisable in the light of any addition to or
change in the Internal Revenue Code of 1986 or in the regulations issued
thereunder, or any federal or state securities law or other law or regulation,
which change occurs after the Date of Grant and by its terms applies to the
Option; or (ii) other than in the circumstances described in clause (i), with
the consent of the Optionee.
11. Notice.
All notices, requests, demands, and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally
or by certified mail, return receipt requested, as follows:
To Company: Holiday RV Superstores, Inc.
7851 Greenbriar Parkway
Orlando, Florida 32819
Attn: Chief Financial Officer
To Optionee: ____________________________
____________________________
____________________________
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12. Incorporation of Plan by Reference.
The Option is granted pursuant to the terms of the Plan, the terms of which
are incorporated herein by reference, and the Option shall in all respects be
interpreted in accordance with, and shall be subject to, the Plan. The Program
Administrators shall interpret and construe the Plan and this instrument, and
its interpretations and determinations shall be conclusive and binding on the
parties hereto and any other person claiming an interest hereunder, with respect
to any issue arising hereunder or thereunder.
13. Governing Law.
The validity, construction, interpretation and effect of this instrument
shall exclusively be governed by and determined in accordance with the law of
the State of Delaware, except to the extent preempted by federal law, which
shall to the extent govern.
IN WITNESS WHEREOF, the Company has caused its duly authorized officers to
execute this Grant of Option, and to apply the corporate seal hereto, and the
Optionee has placed his or her signature hereon, effective as of the Date of
Grant.
HOLIDAY RV SUPERSTORES, INC.,
a Delaware corporation
By:_______________________________
Name:
Title:
ACCEPTED AND AGREED TO:
__________________________________
[Optionee]
By: ______________________________
Name:
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PART III
HOLIDAY RV SUPERSTORES, INC.
RESTRICTED SHARE PLAN
Section 1. PURPOSE. The purpose of this Holiday RV Superstores, Inc.
Restricted Share Plan (the "RESTRICTED PLAN") is to promote the growth and
general prosperity of the Company by permitting the Company to grant restricted
shares to help attract and retain superior personnel for positions of
substantial responsibility with the Company and its subsidiaries and to provide
individuals with an additional incentive to contribute to the success of the
Company. The Restricted Plan is Part III of the Program. Unless any provision
herein indicates to the contrary, the Restricted Plan shall be subject to the
General Provisions of the Program and terms used but not defined in this
Restricted Plan shall have the meanings, if any, ascribed thereto in the General
Provisions of the Program.
Section 2. TERMS AND CONDITIONS. The terms and conditions of restricted
shares granted under the Restricted Plan may differ from one another as the
Program Administrators shall, in their discretion, determine as long as all
restricted shares granted under the Restricted Plan satisfy the requirements of
the Restricted Plan.
Each restricted share grant shall provide to the recipient (the "HOLDER")
the transfer of a specified number of shares of Common Stock of the Company that
shall become nonforfeitable upon the achievement of specified service or
performance conditions within a specified period or periods (the "RESTRICTION
PERIOD") as determined by the Program Administrators. At the time that the
restricted share is granted, the Program Administrators shall specify the
service or performance conditions and the period of duration over which the
conditions apply.
The Holder of restricted shares shall not have any rights with respect to
such award, unless and until such Holder has executed an agreement evidencing
the terms and conditions of the award (the "RESTRICTED SHARE AWARD AGREEMENT").
Each individual who is awarded restricted shares shall be issued a stock
certificate in respect of such shares. Such certificate shall be registered in
the name of the Holder and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such award, substantially in
the following form:
The transferability of this certificate and the shares of stock represented
hereby are subject to the terms and conditions (including forfeiture) of
the Holiday RV Superstores, Inc. Restricted Share Plan and the Restricted
Share Award Agreement entered into between the registered owner and Holiday
RV Superstores, Inc. Copies of such Plan and Agreement are on file in the
offices of Holiday RV Superstores, Inc.
The Program Administrators shall require that the stock certificates
evidencing such shares be held in the custody of the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any
restricted share award, the Holder shall have delivered a stock power, endorsed
in blank, relating to the stock covered by such award. At the expiration of each
Restriction Period, the Company shall redeliver to the Holder certificates held
by the Company representing the shares with respect to which the applicable
conditions have been satisfied.
Section 3. NONTRANSFERABLE. Subject to the provisions of the Restricted
Plan and the Restricted Share Award Agreements, during the Restriction Period as
may be set by the Program Administrators commencing on the grant date, the
Holder shall not be permitted to sell, transfer, pledge, or assign shares of
restricted shares awarded under the Restricted Plan.
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Section 4. RESTRICTED SHARE RIGHTS UPON EMPLOYMENT OR SERVICE. If a Holder
terminates employment or service with the company prior to the expiration of the
Restriction Period, any restricted shares granted to him subject to such
Restriction Period shall be forfeited by the Holder and shall be transferred to
the Company. The Program Administrators may, in their sole and absolute
discretion, accelerate the lapsing of or waive such restrictions in whole or in
part based upon such factors and such circumstances as the Program
Administrators may determine, in their sole and absolute discretion, including,
but not limited to, the Plan Participant's retirement, death, or disability.
Section 5. STOCKHOLDER RIGHTS. The Holder shall have, with respect to the
restricted shares granted, all of the rights of a stockholder of the Company,
including the right to vote the shares, and the right to receive any dividends
thereon. Certificates for shares of unrestricted stock shall be delivered to the
Optionee promptly after, and only after, the Restriction Period shall expire
without forfeiture in respect of such restricted shares.
Section 6. COMPLIANCE WITH SECURITIES LAWS. Shares shall not be issued
under the Restricted Plan unless the issuance and delivery of the shares
pursuant thereto shall comply with all relevant provisions of foreign, state and
federal law, including, without limitation, the Securities Act of 1933, as
amended, and the Exchange Act, and the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Program Administrators may also
require a Holder to furnish evidence satisfactory to the Company, including a
written and signed representation letter and consent to be bound by any transfer
restrictions imposed by law, legend, condition, or otherwise, that the shares
are being purchased only for investment purposes and without any present
intention to sell or distribute the shares in violation of any state or federal
law, rule, or regulation. Further, each Holder shall consent to the imposition
of a legend on the shares of Common Stock issued pursuant to the Restricted
Share Plan and the imposition of stop-transfer instructions restricting their
transferability as required by law or by this Section 6.
Section 7. CONTINUED EMPLOYMENT OR SERVICE. Each Holder, if requested by
the Program Administrators, must agree in writing as a condition of the granting
of his or her restricted shares, to remain in the employment of, or service to,
the Company or any of its subsidiaries following the date of the granting of
that restricted share for a period specified by the Program Administrators.
Nothing in the Restricted Plan or in any restricted share granted hereunder
shall confer upon any Holder any right to continued employment by, or service
to, the Company or any of its subsidiaries, or limit in any way the right of the
Company or any subsidiary at any time to terminate or alter the terms of that
employment or service arrangement.
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<PAGE>
HOLIDAY RV SUPERSTORES, INC.
RESTRICTED SHARES PLAN
RESTRICTED SHARE AWARD AGREEMENT
This AGREEMENT is made as of __________, _____, by and between Holiday RV
Superstores, Inc. a Delaware corporation (the "COMPANY"), and _________________
("HOLDER"):
WHEREAS, the Company maintains the Holiday RV Superstores, Inc. Restricted
Shares Plan ("RESTRICTED PLAN") under which the Program Administrators may award
shares of the Company's common stock, $.01 par value ("COMMON STOCK") to
employees and non-employees as the Program Administrators may determine, subject
to terms, conditions, or restrictions as they may deem appropriate; and
WHEREAS, pursuant to the Restricted Plan, the Program Administrators have
awarded to Holder a restricted stock award conditioned upon the execution by the
Company and Holder of a Restricted Share Award Agreement setting forth all the
terms and conditions applicable to such award.
NOW, THEREFORE, in consideration of the mutual promise and covenant
contained herein, it is hereby agreed as follows:
1. Award of Shares.
Under the terms of the Restricted Plan, the Program Administrators hereby
award and transfer to Holder a restricted stock award on __________________
("GRANT DATE"), covering shares of Common Stock ("SHARES") subject to the terms,
conditions, and restrictions set forth in this Agreement. This transfer of
Shares shall constitute a transfer of such property in connection with Holder's
performance of service to the Company (which transfer is intended to constitute
a "transfer" for purposes of Section 83 of the Internal Revenue Code).
2. Share Restrictions.
During the period beginning on the Grant Date and ending on the date(s)
specified by the Program Administrators (the "RESTRICTION PERIOD"), Holder's
ownership of the Shares shall be subject to a risk of forfeiture (which risk is
intended to constitute a "substantial risk of forfeiture" for purposes of
Section 83 of the Internal Revenue Code). Specifically, if Holder's employment
or service with the Company is terminated for any reason, including Holder's
death, disability, or retirement at any time before the Restriction Period ends,
Holder shall forfeit his or her ownership in the Shares. However, in the event
of Holder's termination of employment or service, the Program Administrators
may, in their sole and absolute discretion, based upon relevant circumstances
such as the Holder's death, disability, or retirement, waive the minimum
employment or service requirement and provide Holder with a nonforfeitable right
to the Shares as of the date of such termination of employment or service.
3. Stock Certificates.
A stock certificate evidencing the Shares shall be issued in the name of
Holder as of the Grant Date. Holder shall thereupon be the shareholder of all
the Shares represented by the stock certificate. As such, Holder shall be
entitled to all rights of a stockholder of the Company, including the right to
vote the Shares and receive dividends and/or other distributions declared on
such Shares.
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Physical possession or custody of the stock certificate shall be retained
by the Company until such time as the Restriction Period lapses without the
occurrence of any forfeiture of the Shares in a manner described in the above
Paragraph 2. Upon the expiration of the Restriction Period without the
occurrence of such a forfeiture, the Company shall cause the stock certificate
covering the Shares to be delivered to Holder. In the event that Holder's
employment or service with the Company is terminated prior to the lapse of the
Restriction Period and there occurs a forfeiture of the Shares, the stock
certificate representing such Shares shall be then canceled and revert to the
Company.
4. Nontransferable.
During the Restriction Period, the Shares covered by the restricted stock
award shall not be transferable by Holder by means of sale, assignment, sale,
pledge, encumbrance, or otherwise. During the Restriction Period, the Company
shall place a legend on the stock certificate restricting the transferability of
such certificate and referring to the terms and conditions applicable to the
Shares pursuant to the Restricted Share Plan and this Agreement.
Upon the lapse of the Restriction Period, the Shares shall not be delivered
to Holder if such delivery would constitute a violation of any applicable
federal or state securities or other law or valid regulation. As a condition to
the delivery of the Shares to Holder, the Company may require Holder to make any
representation or warranty as may be required by any applicable law or
regulation and, specifically, may require Holder to provide evidence
satisfactory to the Company that the Shares are being acquired only for
investment purposes and without any present intention to sell or distribute the
shares in violation of any federal or state securities or other law or valid
regulation.
5. Administration.
The Program Administrators shall have full authority and discretion
(subject only to the express provisions of the Restricted Plan) to decide all
matters relating to the administration and interpretation of the Restricted Plan
and this Agreement. All such Program Administrators determinations shall be
final, conclusive, and binding upon the Company, Holder, and any and all
interested parties.
6. Right to Continued Employment or Service.
Nothing in the Restricted Plan or this Agreement shall confer on Holder any
right to continue in the employ of or service to the Company or, except as may
otherwise be limited by a written agreement between the Company and Holder, in
any way affect the Company's right to terminate Holder's employment or service,
at will, at any time without prior notice at any time for any or no reason
(whether by dismissal, discharge, retirement or otherwise).
7. Amendment.
This Agreement shall be subject to the terms of the Restricted Plan as
amended, the terms of which are incorporated herein by reference. However, the
restricted stock award that is the subject of this Agreement may not in any way
be restricted or limited by any Restricted Plan amendment or termination
approved after the date of the award without Holder's written consent.
8. Force and Effect.
The various provisions of this Agreement are severable in their entirety.
Any determination of invalidity or unenforceability of any one provision shall
have no effect on the continuing force and effect of the remaining provisions.
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9. Governing Law.
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware.
10. Successors.
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns, and heirs of the respective parties.
11. Notice.
All notices, requests, demands, and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally
or by certified mail, return receipt requested, as follows:
To Company: Holiday RV Superstores, Inc.
7851 Greenbriar Parkway
Orlando, Florida 32819
Attn: Chief Financial Officer
To Holder: ______________________________
______________________________
______________________________
______________________________
12. Incorporation of Plan by Reference.
The Shares are awarded pursuant to the terms of the Plan, the terms of
which are incorporated herein by reference, and the Share award shall in all
respects be interpreted in accordance with the Plan. The Program Administrators
shall interpret and construe the Plan and this instrument, and its
interpretations and determinations shall be conclusive and binding on the
parties hereto and any other person claiming an interest hereunder, with respect
to any issue arising hereunder or thereunder.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date hereof.
HOLIDAY RV SUPERSTORES, INC.,
a Delaware corporation ___________________________________
[Optionee]
By: ______________________________ ___________________________________
Name: Name:
Title:
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PART IV
HOLIDAY RV SUPERSTORES, INC.
EMPLOYEE STOCK PURCHASE PLAN
Section 1. PURPOSE. The purpose of the Holiday RV Superstores, Inc.
Employee Stock Purchase Plan (the "STOCK PURCHASE PLAN") is to promote the
growth and general prosperity of the Company by permitting the Company to sell
to employees of the Company and its subsidiaries shares of the Company's stock
in accordance with Section 423 of the Code ("SECTION 423"), and it is the
intention of the Company to have the Stock Purchase Plan qualify as an Employee
Stock Purchase Plan in accordance with Section 423, and the Stock Purchase Plan
shall be construed to administer stock purchases and to extend and limit
participation consistent with the requirements of Section 423. The Stock
Purchase Plan will be administered by the Program Administrators, and terms used
but not defined in this Stock Purchase Plan shall have the meanings, if any,
ascribed thereto in the General Provisions of the Program.
Section 2. MAXIMUM NUMBER OF SHARES; TERMS AND CONDITIONS. The maximum
aggregate number of shares of Common Stock subject to the Stock Purchase Plan
shall be 3,000,000. The terms and conditions of shares to be offered to be sold
to employees of the Company and its subsidiaries under the Stock Purchase Plan
shall comply with Section 423.
Section 3. OFFERING PERIODS AND PARTICIPATION. The Stock Purchase Plan
shall be implemented through a series of consecutive six (6) month periods
commencing on the first trading day on or after January 1 or July 1 of each year
and terminating on the last trading day ending approximately six (6) months
later(the "OFFERING PERIODS"). Any employee who shall be employed by the Company
or one of its subsidiaries on a given Enrollment Date (defined below) whose
customary employment for tax purposes is at least twenty (20) hours per week and
more than five (5) consecutive months in any calendar year, and who own less
than 5% of the Common Stock, is eligible to participate in the Stock Purchase
Plan (an "ELIGIBLE EMPLOYEE") An Eligible Employees may become a participant in
the Stock Purchase Plan by completing and delivering to the Company's payroll
office an agreement authorizing payroll deductions and evidencing the terms and
conditions of the stock subscription in a form prescribed by the Program
Administrators (the "SUBSCRIPTION AGREEMENT") prior to the first day of each
Offering Period. The first day of each Offering Period will be the "Enrollment
Date" and the last day of each period will be the "Exercise Date." The Program
Administrators shall have the power to change the duration of Offering Periods
(including the commencement date thereof) with respect to future offerings
without stockholder approval if such change is announced at least five (5) days
prior to the scheduled beginning of the first Offering Period to be affected
thereafter. Under this Stock Purchase Plan, "Purchase Period" shall mean an
approximately six (6) month period commencing after one Exercise Date and ending
with the next Exercise Date.
Section 4. PURCHASE PRICE. The "Purchase Price" means an amount as
determined by the Program Administrators that is the lesser of: (a) the Purchase
Price Discount (as defined below) from the Fair Market Value of a share of
Common Stock on the Enrollment Date, or (b) the Purchase Price Discount from the
Fair Market Value of a share of Common Stock on the Exercise Date. The "Purchase
Price Discount" shall mean the amount of the discount from the Fair Market Value
granted to Plan Participants not to exceed fifteen percent (15%) of the Fair
Market Value.
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Section 5. GRANTS.
(a) GRANTS. On the Enrollment Date of each Offering Period, each
Eligible Employee participating in such Offering Period shall be granted an
option to purchase on each Exercise Date during such Offering Period (at
the applicable Purchase Price) shares of Common Stock in an amount from
time to time specified by the Program Administrators as set forth in
Section 5(b) below. The Program Administrators will also establish the
Purchase Price Discount and the maximum number or value of shares that may
be purchased by any Plan Participant (the "Periodic Exercise Limit"), which
in no event shall exceed the lowest amount provided under Section 5(b)(i)
through (iii) below (the "Statutory Maximum"), and if no Periodic Exercise
Limit is specified by the Program Administrators, shall equal the Statutory
Maximum. The right to purchase shall expire immediately after the last
Exercise Date of the Offering Period.
(b) GRANT LIMITATIONS. Any provisions of the Stock Purchase Plan to
the contrary notwithstanding, no Plan Participant shall be granted a right
to purchase under the Stock Purchase Plan:
(i) if, immediately after the grant, such Plan Participant would
own stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or of any
subsidiary (applying the constructive ownership rules of Section
424(d) of the Code and treating stock that a Plan Participant may
acquire under outstanding options as stock owned by the Plan
Participant);
(ii) that permits such Plan Participant's rights to purchase
stock under all employee stock purchase plans of the Company and its
subsidiaries to accrue at a rate that exceeds Twenty-Five Thousand
Dollars ($25,000) worth of stock (determined at the Fair Market Value
of the shares at the time such option is granted) for each calendar
year in which such option is outstanding at any time (computed
utilizing the rules of Section 423(b)(8) of the Code);
(iii) that permits a Plan Participant to purchase Stock in excess
of twenty percent (20%) of his or her compensation, which shall
include the gross base salary or hourly compensation paid to a Plan
Participant and the gross amount of any targeted bonus, without
reduction for contributions to any 401(k) plan sponsored by the
Company; or
(iv) that exceeds the Periodic Exercise Limit.
(c) NO RIGHTS IN RESPECT OF UNDERLYING STOCK. The Plan Participant
will have no interest or voting right in shares covered by a right to
purchase until such purchase has been completed.
(d) PLAN ACCOUNT. The Company shall maintain a plan account (a "Plan
Account") for the Plan Participants in the Stock Purchase Plan, to which
are credited the payroll deductions made for such Plan Participant pursuant
to Section 6 and from which are debited amounts paid for the purchase of
shares.
Section 6. PAYROLL DEDUCTIONS/DIRECT PURCHASES.
(a) PLAN PARTICIPANT DESIGNATIONS. The Subscription Agreement
applicable to an Offering Period shall designate payroll deductions to be
made on each payday during the Offering Period as a whole number percentage
specified by the Program Administrators of such
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Eligible Employee's compensation for the pay period preceding such payday.
Direct purchases may be permitted on such terms specified by the Program
Administrators.
(b) PLAN ACCOUNT BALANCES. The Company shall make payroll deductions
as specified in each Plan Participant's Subscription Agreement on each
payday during the Offering Period and credit such payroll deductions to
such Plan Participant's Plan Account. A Plan Participant may not make any
additional payments into such Plan Account. No interest will accrue on any
payroll deductions. All payroll deductions received or held by the Company
under the Stock Purchase Plan may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such payroll
deductions.
(c) PLAN PARTICIPANT CHANGES. A Plan Participant may discontinue his
or her participation in the Stock Purchase Plan as provided in Section 9,
or may increase or decrease (subject to such limits as the Program
Administrators may impose) the rate of his or her payroll deductions during
any Offering Period by filing with the Company a new Subscription Agreement
authorizing such a change in the payroll deduction rate. The change in rate
shall be effective with the first full payroll period following five (5)
business days after the Company's receipt of the new Subscription
Agreement, unless the Company elects to process a given change in
participation more quickly. A Plan Participant's Subscription Agreement
shall remain in effect for successive Offering Periods unless terminated
sooner as provided by Section 9 hereof.
(d) DECREASES. Notwithstanding the foregoing, to the extent necessary
to comply with Section 423(b)(8) of the Code and Section 5(b) herein, a
Plan Participant's payroll deductions shall be decreased to zero percent at
such time during any Purchase Period that is scheduled to end during the
current calendar year (the "CURRENT PURCHASE PERIOD") when the aggregate of
all payroll deductions previously used to purchase stock under the Stock
Purchase Plan in a prior Purchase Period which ended during that calendar
year plus all payroll deductions accumulated with respect to the Current
Purchase Period equal to the maximum permitted by Section 423(b)(8) of the
Code. Payroll deductions shall recommence at the rate provided in such Plan
Participant's Subscription Agreement at the beginning of the first Purchase
Period that is scheduled to end in the following calendar year, unless
terminated by the Plan Participant as provided in Section 9.
(e) TAX OBLIGATIONS. At the time of the option is exercised, and at
the time any Common Stock issued under the Stock Purchase Plan to a Plan
Participant is disposed of, the Plan Participant must adequately provide
for the Company's federal, state or other tax withholding obligations, if
any, that arise upon the purchase of shares or the disposition of the
Common Stock. At any time, the Company may, but will not be obligated to,
withhold from the Plan Participant's compensation the amount necessary for
the Company to meet applicable withholding obligations, including, but not
limited to, any withholding required to make available to the Company any
tax deductions or benefit attributable to sale or early disposition of
Common Stock by the Eligible Employee.
(f) STATEMENTS OF ACCOUNT. The Company shall maintain each Plan
Participant's Plan Account and shall give each Plan Participant a statement
of account at least annually. Such statements will set forth the amounts of
payroll deductions, the Purchase Price applicable to the Common Stock
purchased, the number of shares purchased, the remaining cash balance and
the dividends received, if any, for the period covered.
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Section 7. EXERCISE OF OPTION.
(a) AUTOMATIC EXERCISE ON EXERCISE DATES. Unless a Plan Participant
withdraws as provided in Section 9 below, his or her option for the purchase of
shares will be exercised automatically on the Exercise Date and the maximum
whole number of shares of Common Stock as can then be purchased at the
applicable Purchase Price with the payroll deductions accumulated in such Plan
Participant's Plan Account and not yet applied to the purchase of shares under
the Stock Purchase Plan, subject to the Periodic Exercise Limit. Any payroll
deductions accumulated in a Plan Participant's Plan Account which are not
sufficient to purchase a full share shall be retained in the Plan Participant's
Plan Account for the subsequent Purchase Period, subject to earlier withdrawal
by the Plan Participant as provided in Section 9 hereof.. As promptly as
practicable after each Exercise Date on which a purchase of shares occurs, the
Company shall arrange delivery to each participant, as appropriate, of a
certificate representing the shares purchased upon exercise of his or her
option. During a Plan Participant's lifetime, a Plan Participant's options to
purchase shares under the Stock Purchase Plan shall be exercisable only by the
Plan Participant.
(b) COMPLIANCE WITH SECURITIES LAW. Shares of Common Stock shall not be
issued with respect to any purchase of shares granted under the Stock Purchase
Plan, unless the purchase of shares and the issuance and delivery of those
shares pursuant to that exercise comply with all applicable provisions of
foreign, state and federal law including, without limitation, the Securities Act
of 1933, as amended and the Exchange Act, and the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. The Program
Administrators may also require a Plan Participant to furnish evidence
satisfactory to the Company, including a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition, or otherwise, that the shares are being purchased only for
investment purposes and without any present intention to sell or distribute the
shares in violation of any state or federal law, rule, or regulation. Further,
each Plan Participant shall consent to the imposition of a legend on the shares
of Common Stock purchased and the imposition of stop-transfer instructions
restricting their transferability as required by law or by this Section 7.
(c) EXCESS PLAN ACCOUNT BALANCES. If, due to application of the Periodic
Exercise Limit or otherwise, there remains in a Plan Participant's Plan Account
immediately following exercise of such Plan Participant's option to purchase
shares on an Exercise Date any cash accumulated immediately preceding such
Exercise Date and not applied to the purchase of shares under the Stock Purchase
Plan, such cash shall be retained in the Plan Participant's Plan Account for the
subsequent Purchase Period, subject to earlier withdrawal by the Plan
Participant as provided in Section 9 hereof.
Section 8. HOLDING PERIOD. The Program Administrators may establish, as a
condition to participation, a holding period of up to one (1) year.
Section 9. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) VOLUNTARY WITHDRAWAL. A Plan Participant may withdraw from an Offering
Period by giving written notice to the Company's payroll office at least ten
(10) business days prior to the next Exercise Date. Such withdrawal shall be
effective ten (10) business days after receipt by the Company's payroll office
of notice thereof. On or promptly following the effective date of any
withdrawal, all (but not less than all) of the withdrawing Plan Participant's
payroll deductions credited to his or her Plan Account and not yet applied to
the purchase of
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shares under the Stock Purchase Plan will be paid to such Plan Participant,
and on the effective date of such withdrawal such Plan Participant's option
to purchase shares for the Offering Period will be automatically terminated
and no further payroll deductions for the purchase of shares will be made
during the Offering Period. If a Plan Participant withdraws from an
Offering Period, payroll deductions will not resume at the beginning of any
succeeding Offering Period, unless the Plan Participant delivers to the
Company a new Subscription Agreement with respect thereto.
(b) TERMINATION OF EMPLOYMENT. Promptly after a Plan Participant's
ceasing to be an employee for any reason the payroll deductions credited to
such Plan Participant's Plan Account and not yet applied to the purchase of
shares under the Stock Purchase Plan will be returned to such Plan
Participant or, in the case of his or her death, to the person or persons
entitled thereto, and such Plan Participant's option to purchase shares
will be automatically terminated, PROVIDED that, if the Company does not
learn of such death more than ten (10) business days prior to an Exercise
Date, payroll deductions credited to such Plan Participant's Plan Account
may be applied to the purchase of shares under the Stock Purchase Plan on
such Exercise Date.
Section 10. NONTRANSFERABILITY. Neither payroll deductions credited to a
Plan Participant's Plan Account nor any rights with regard to the exercise of a
purchase of shares or to receive shares under the Stock Purchase Plan may be
assigned, transferred, pledged or otherwise disposed of by the Plan Participant
in any way other than by will or the laws of descent and distribution, and any
purchase of shares by a Plan Participant shall, during such Plan Participant's
lifetime, be exercisable only by such Plan Participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Program Administrator may treat such act as an election to
withdraw from an Offering Period in accordance with Section 9.
Section 11. COMPLIANCE WITH SECURITIES LAWS. Shares shall not be issued
with respect to the Stock Purchase Plan, unless the issuance and delivery of the
shares pursuant thereto shall comply with all applicable provisions of foreign,
state and federal law, including, without limitation, the Securities Act of
1933, as amended, and the Exchange Act, and the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. The Program
Administrators may also require a Plan Participant to furnish evidence
satisfactory to the Company, including a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition, or otherwise, that the shares are being purchased only for
investment purposes and without any present intention to sell or distribute the
shares in violation of any state or federal law, rule, or regulation. Further,
each Plan Participant shall consent to the imposition of a legend on the shares
of Common Stock subject to his or her option and the imposition of stop-transfer
instructions restricting their transferability as required by law or by this
Section 11.
Section 12. CONTINUED EMPLOYMENT OR SERVICE. Each Plan Participant, if
requested by the Program Administrators, must agree in writing, to remain in the
employment of, or service to, the Company or any of its subsidiaries following
the date of the granting of the option to purchase shares for a period specified
by the Program Administrators. Nothing in this Stock Purchase Plan shall confer
upon any Plan Participant any right to continued employment by, or service to,
the Company or any of its subsidiaries, or limit in any way the right of the
Company or any subsidiary at any time to terminate or alter the terms of that
employment or service arrangement.
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PART V
HOLIDAY RV SUPERSTORES, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Section 1. PURPOSE; PLAN. The purpose of this Holiday RV Superstores, Inc.
Non-Employee Director Stock Option Plan (the "DIRECTORS PLAN") is to permit the
Company to grant options to purchase shares of its Common Stock to non-employee
directors of the Company. Any option granted pursuant to the Directors Plan
shall be clearly and specifically designated as not being an incentive stock
option, as defined in Section 422 of the Code. This Directors Plan is Part V of
the Program. Unless any provision herein indicates to the contrary, the
Directors Plan shall be subject to the General Provisions of the Program, and
terms used but not defined in this Directors Plan shall have the meanings, if
any, ascribed thereto in the General Provisions of the Program.
Section 2. OPTION TERMS AND CONDITIONS. The Program shall grant to each
director of the Company, at such times including upon election or appointment
and from time to time thereafter, options to purchase that number of shares of
Common Stock as determined annually by the Program Administrators. The terms and
conditions of options granted under the Directors Plan shall be in duration,
form and substance as the Program Administrators shall in their discretion
determine, but in no event shall any option granted under the Directors Plan
expire later than ten (10) years from the date on which the option is granted.
Section 3. COMPLIANCE WITH SECURITIES LAWS. Shares of Common Stock shall
not be issued with respect to any option granted under the Directors Plan,
unless the exercise of that option and the issuance and delivery of the shares
pursuant thereto shall comply with all applicable provisions of foreign, state
and federal law, including, without limitation, the Securities Act of 1933, as
amended, and the Exchange Act, and the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Program Administrators may also
require an Optionee to furnish evidence satisfactory to the Company, including a
written and signed representation letter and consent to be bound by any transfer
restrictions imposed by law, legend, condition, or otherwise, that the shares
are being purchased only for investment purposes and without any present
intention to sell or distribute the shares in violation of any state or federal
law, rule, or regulation. Further, each Optionee shall consent to the imposition
of a legend on the shares of Common Stock subject to his or her option and the
imposition of stop-transfer instructions restricting their transferability as
required by law or by this Section 2.
Section 4. ADJUSTMENTS TO NUMBER AND PURCHASE PRICE OF OPTIONED SHARES. All
options granted pursuant to the terms of this Directors Plan shall be adjusted
in a manner prescribed by Article 7 of the General Provisions of the Program.
Section 5. PURCHASE PRICE. The purchase price for shares acquired pursuant
to the exercise, in whole or in part, of any option shall not be less than the
Fair Market Value of the shares at the time of the grant of the option.
Section 6. EXERCISE OF OPTIONS. Each option shall be exercisable in one
or more installments during its term and the right to exercise may be cumulative
as determined by the Program Administrators. No option may be exercised for a
fraction of a share of Common Stock. The purchase price of any shares purchased
shall be paid in full in cash or by certified or cashier's check payable to the
order of the Company or, if permitted by the Program Administrators, by shares
of Common Stock or by a combination of cash, check, or, if permitted by the
Program Administrators, shares of Common Stock,
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at the time of exercise of the option. If any portion of the purchase price is
paid in shares of Common Stock, those shares shall be tendered at their then
Fair Market Value as determined by Article 6 under General Provisions of the
Program. Payment in shares of Common Stock includes the automatic application of
shares of Common Stock received upon exercise of an option to satisfy the
exercise price for additional options.
Section 7. REORGANIZATION. In the event of the dissolution or liquidation
of the Company, any option granted under the Directors Plan shall terminate as
of a date to be fixed by the Program Administrators; provided that not less than
30 days' written notice of the date so fixed shall be given to each Optionee and
each such Optionee shall have the right during such period (unless such option
shall have previously expired) to exercise any option, including any option that
would not otherwise be exercisable by reason of an insufficient lapse of time.
In the event of a Reorganization (as defined below) in which the Company is
not the surviving or acquiring company, or in which the Company is or becomes a
subsidiary of another company after the effective date of the Reorganization,
then:
(a) if there is no plan or agreement respecting the
Reorganization (the "REORGANIZATION AGREEMENT") or if the
Reorganization Agreement does not specifically provide for the change,
conversion or exchange of the outstanding options for options of
another corporation, then exercise and termination provisions
equivalent to those described in this Section 7 shall apply (which
shall include the right to receive upon exercise the consideration
that would be received by a holder of a number of shares of Common
Stock issuable upon exercise of the option immediately prior to the
consummation of the Reorganization); or
(b) if there is a Reorganization Agreement and if the
Reorganization Agreement specifically provides for the change,
conversion, or exchange of the outstanding options for options of
another corporation, then the Program Administrators shall adjust the
outstanding unexercised options (and shall adjust the options
remaining under the Directors Plan which have not yet been granted if
the Reorganization Agreement makes specific provision for such an
adjustment) in a manner consistent with the applicable provisions of
the Reorganization Agreement.
The term "REORGANIZATION" as used in this Section 7 shall mean any
statutory merger, statutory consolidation, sale of all or substantially all of
the assets of the Company or a sale of the Common Stock pursuant to which the
Company is or becomes a subsidiary of another company after the effective date
of the Reorganization.
Adjustments and determinations under this Section 7 shall be made by the
Program Administrators, whose decisions as to such adjustments or determinations
shall be final, binding, and conclusive.
Section 8. WRITTEN NOTICE REQUIRED. Any option granted pursuant to the
terms of this Directors Plan shall be exercised when written notice of that
exercise has been given to the Company at its principal office by the person
entitled to exercise the option and full payment for the shares with respect to
which the option is exercised has been received by the Company.
Section 9. OPTION RIGHTS UPON TERMINATION OF EMPLOYMENT OR SERVICE. If a
director ceases to serve as a member of the Board of Directors for any reason
other than death or disability, his or her option shall terminate thirty (30)
days after the date of termination of service (unless sooner terminated in
accordance with its terms); PROVIDED, HOWEVER, that in the event service as a
director is
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terminated for cause as defined by applicable law, his or her option shall
terminate immediately, PROVIDED, FURTHER, HOWEVER, that the Program
Administrators may, in their sole and absolute discretion, allow the option to
be exercised (to the extent exercisable on the date of termination of service)
at any time within ninety (90) days after the date of termination of service,
unless either the option or the Directors Plan otherwise provides for earlier
termination.
Section 10. OPTION RIGHTS UPON DISABILITY. If a director becomes disabled
within the meaning of Code Section 422(e)(3) while serving as a director the
Company, his or her option shall terminate six months after the date of
termination of service as a director due to disability (unless sooner terminated
in accordance with its terms); PROVIDED, HOWEVER, that the Program
Administrators may, in their sole and absolute discretion, allow the option to
be exercised (to the extent exercisable on the date of termination of service as
a director at any time within one year after the date of termination of service
as a director due to disability, unless either the option or the Directors Plan
otherwise provides for earlier termination.
Section 11. OPTION RIGHTS UPON DEATH OF OPTIONEE. If a director dies while
serving as a director of the Company, his or her option shall expire six months
after the date of death (unless sooner terminated in accordance with its terms);
PROVIDED, HOWEVER, that the Program Administrators may, in their sole and
absolute discretion, allow the option to be exercised (to the extent exercisable
on the date of death) at any time within one year after the date of death,
unless either the option or the Directors Plan otherwise provides for earlier
termination. During this [one-year] or shorter period, the option may be
exercised, to the extent that it remains unexercised on the date of death, by
the person or persons to whom the director's rights under the option shall pass
by will or by the laws of descent and distribution, but only to the extent that
the director is entitled to exercise the option at the date of death.
Section 12. OPTIONS NOT TRANSFERABLE. Options granted pursuant to the terms
of this Directors Plan may not be sold, pledged, assigned, or transferred in any
manner otherwise than by will or the laws of descent or distribution and may be
exercised during the lifetime of a non-employee director only by that director.
No such options shall be pledged or hypothecated in any way nor shall they be
subject to execution, attachment, or similar process.
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PART VI
HOLIDAY RV SUPERSTORES, INC.
STOCK APPRECIATION RIGHTS PLAN
Section 1. SAR TERMS AND CONDITIONS. The purpose of this Holiday RV
Superstores, Inc. Stock Appreciation Rights Plan (the "SAR PLAN") is to promote
the growth and general prosperity of the Company by permitting the Company to
grant stock appreciation rights ("SARs") to help attract and retain superior
personnel for positions of substantial responsibility with the Company and its
subsidiaries and to provide individuals with an additional incentive to
contribute to the success of the Company. The terms and conditions of SARs
granted under the SAR Plan may differ from one another as the Program
Administrators shall, in their discretion, determine in each SAR agreement (the
"SAR AGREEMENT"). Unless any provision herein indicates to the contrary, this
SAR Plan shall be subject to the General Provisions of the Program, and terms
used but not defined in this SAR Plan shall have the meanings, if any, ascribed
thereto in the General Provisions of the Program.
Section 2. DURATION OF SARS. Each SAR and all rights thereunder granted
pursuant to the terms of the SAR Plan shall expire on the date determined by the
Program Administrators as evidenced by the SAR Agreement, but in no event shall
any SAR expire later than ten (10) years from the date on which the SAR is
granted. In addition, each SAR shall be subject to early termination as provided
in the SAR Plan.
Section 3. GRANT. Subject to the terms and conditions of the SAR Agreement,
the Program Administrators may grant the right to receive a payment upon the
exercise of a SAR which reflects the appreciation in the Fair Market Value of
the number of shares of Common Stock for which such SAR was granted to any
person who is eligible to receive awards either: (i) in tandem with the grant of
an Incentive Option; (ii) in tandem with the grant of a Nonqualified Option; or
(iii) independent of the grant of an Incentive Option or Nonqualified Option.
Each grant of a SAR which is in tandem with the grant of an Incentive Option or
Nonqualified Option shall be evidenced by the same agreement as the Incentive
Option or Nonqualified Option which is granted in tandem with such SAR and such
SAR shall relate to the same number of shares of Common Stock to which such
Option shall relate and such other terms and conditions as the Program
Administrators, in their sole and absolute discretion, deem are not inconsistent
with the terms of the SAR Plan, including conditions on the exercise of such SAR
which relate to the employment of the Plan Participant or any requirement that
the Plan Participant exchange a prior outstanding option and/or SAR.
Section 4. PAYMENT AT EXERCISE. Upon the settlement of a SAR in accordance
with the terms of the SAR Agreement, the Plan Participant shall (subject to the
terms and conditions of the SAR Plan and SAR Agreement) receive a payment equal
to the excess, if any, of the SAR Exercise Price (as defined below) for the
number of shares of the SAR being exercised at that time over the SAR Grant
Price (as defined below) for such shares. Such payment may be paid in cash or in
shares of the Company's Common Stock or by a combination of the foregoing, at
the time of exercise of the SAR, specified by the Program Administrators in the
SAR Agreement. If any portion of the payment is paid in shares of the Company's
Common Stock, such shares shall be valued for this purpose at the SAR Exercise
Price on the date the SAR is exercised and any payment in shares which calls for
a payment in a fractional share shall automatically be paid in cash based on
such valuation. As used herein, "SAR EXERCISE DATE" shall mean the date on which
the exercise of a SAR occurs under the SAR AGREEMENT, "SAR EXERCISE PRICE" shall
mean the Fair Market Value of a share of Common Stock on a SAR Exercise Date and
"SAR GRANT PRICE" shall mean the price which would have been the option exercise
price for
VI-1
<PAGE>
one share of Common Stock if the SAR had been granted as an option, or if the
SAR was granted in tandem with an option, the option exercise price per share
for the related option.
Section 5. SPECIAL TERMS AND CONDITIONS. Each SAR Agreement which evidences
the grant of a SAR shall incorporate such terms and conditions as the Program
Administrators in their sole and absolute discretion deem are not inconsistent
with the terms of the SAR Plan and the agreement for Incentive Option or
Nonqualified Option, if any, granted in tandem with such SAR except that: (i) if
a SAR is granted in tandem with an Incentive Option or Nonqualified Option, the
SAR shall be exercisable only when the related Incentive Option or Nonqualified
Option is exercisable; and (ii) the Plan Participant's right to exercise a SAR
granted in tandem with an Incentive Option or Nonqualified Option shall be
forfeited to the extent that the Plan Participant exercises the related
Incentive Option or Nonqualified Option and the Plan Participant's right to
exercise the Incentive Option or Nonqualified Option shall be forfeited to the
extent the Plan Participant exercises the related SAR, but any such forfeiture
shall not count as a forfeiture for purposes of making the shares subject to
such option or SAR again available for use under the General Provisions of the
Plan.
Section 6. COMPLIANCE WITH SECURITIES LAWS. SARs shall not be granted and
shares shall not be issued with respect to any SAR granted under the SAR Plan
unless the grant of that SAR or the exercise of that SAR and the issuance and
delivery of the shares pursuant thereto shall comply with all applicable
provisions of foreign, state and federal law, including, without limitation, the
Securities Act of 1933, as amended, and the Exchange Act, and the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance. The Program
Administrators may also require a Plan Participant to furnish evidence
satisfactory to the Company, including a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition, or otherwise, that any securities are being acquired only for
investment purposes and without any present intention to sell or distribute the
securities in violation of any state or federal law, rule, or regulation.
Further, each Plan Participant shall consent to the imposition of a legend on
securities and the imposition of stop-transfer instructions restricting their
transferability as required by law or by this Section 6.
Section 7. CONTINUED EMPLOYMENT OR SERVICE. Each Plan Participant, if
requested by the Program Administrators, must agree in writing as a condition of
receiving his or her SAR or any shares as a result thereof, to remain in the
employment of, or service to, the Company or any of its subsidiaries following
the date of the granting of that SAR or the issuance of such shares for a period
specified by the Program Administrators. Nothing in this SAR Plan or in any SAR
Agreement shall confer upon any Plan Participant any right to continued
employment by, or service to, the Company or any of its subsidiaries, or limit
in any way the right of the Company or any subsidiary at any time to terminate
or alter the terms of that employment or service arrangement.
Section 8. SAR RIGHTS UPON TERMINATION OF EMPLOYMENT OR SERVICE. If a Plan
Participant under this SAR Plan ceases to be employed by, or provide services
to, the Company or any of its subsidiaries for any reason other than death or
disability, his or her SAR shall terminate thirty (30) days after the date of
termination of employment (unless sooner terminated in accordance with its
terms); PROVIDED, HOWEVER, that in the event employment is terminated for cause
as defined by applicable law, his or her option shall terminate immediately,
PROVIDED, FURTHER, HOWEVER, that the Program Administrators may, in their sole
and absolute discretion, allow the SAR to be exercised, to the extent
exercisable on the date of termination of employment or service, at any time
within ninety (90) days after the date of termination of employment or service,
unless either the SAR Agreement or this SAR Plan otherwise provides for earlier
termination.
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<PAGE>
Section 9. RIGHTS UPON DISABILITY. If a Plan Participant under this SAR
Plan becomes disabled within the meaning of Code Section 422(e)(3) while
employed by or providing service to the Company or any subsidiary, his or her
SAR shall terminate six months after the date of termination of employment or
service, due to disability (unless sooner terminated in accordance with its
terms); PROVIDED, HOWEVER, that the Program Administrators may, in their sole
and absolute discretion, allow the SAR to be exercised (to the extent
exercisable on the date of termination of employment or service) at any time
within one year after the date of termination of employment or service due to
disability, unless either the SAR Agreement or the SAR Plan otherwise provides
for earlier termination.
Section 10. RIGHTS UPON DEATH. Except as otherwise limited by the Program
Administrators at the time of the grant of a SAR, if an a Plan Participant under
the SAR Plan dies while employed by, or providing services to, the Company or
any of its subsidiaries, his or her SAR shall expire six months after the date
of death (unless sooner terminated in accordance with its terms); PROVIDED,
HOWEVER, that the Program Administrators may, in their sole and absolute
discretion, allow the SAR to be exercised (to the extent exercisable on the date
of death) at any time within one year after the date of death, unless the SAR
Agreement or the SAR Plan otherwise provides for earlier termination. During
this one-year or shorter period, the SAR may be exercised, to the extent that it
remains unexercised on the date of death, by the person or persons to whom the a
Plan Participant's rights under the SAR shall pass by will or by the laws of
descent and distribution, but only to the extent that the Plan Participant is
entitled to exercise the SAR at the date of death.
VI-3
<PAGE>
PART VII
HOLIDAY RV SUPERSTORES, INC.
OTHER STOCK RIGHTS PLAN
Section 1. TERMS AND CONDITIONS. The purpose of the Holiday RV Superstores,
Inc. Other Stock Rights Plan (the "STOCK RIGHTS PLAN") is to promote the growth
and general prosperity of the Company by permitting the Company to grant
restricted shares to help attract and retain superior personnel for positions of
substantial responsibility with the Company and its subsidiaries to provide
individuals with an additional incentive to the success of the Company. The
terms and conditions of Performance Shares, Stock Payments or Dividend
Equivalent Rights granted under the Stock Rights Plan may differ from one
another as the Program Administrators shall, in their discretion, determine in
each stock rights agreement (the "STOCK RIGHTS AGREEMENT"). Unless any provision
herein indicates to the contrary, this Stock Rights Plan shall be subject to the
General Provisions of the Program, and terms used but not defined in this Stock
Rights Plan shall have the meanings, if any, ascribed thereto in the General
Provisions of the Program.
Section 2. DURATION. Each Performance Share, Stock Payment or Dividend
Equivalent Right and all rights thereunder granted pursuant to the terms of the
Stock Rights Plan shall expire on the date determined by the Program
Administrators as evidenced by the Stock Rights Agreement, but in no event shall
any Performance Shares or Dividend Equivalent Rights expire later than ten (10)
years from the date on which the Performance Shares or Dividend Equivalent
Rights are granted. In addition, each Performance Share, Stock Payment or
Dividend Equivalent Right shall be subject to early termination as provided in
the Stock Rights Plan.
Section 3. GRANT. Subject to the terms and conditions of the Stock Rights
Agreement, the Program Administrators may grant Performance Shares, Stock
Payments or Dividend Equivalent Rights as provided under the Stock Rights Plan.
Each grant of Performance Shares, Dividend Equivalent Rights or Stock Payments
shall be evidenced by a Stock Rights Agreement, which shall state the terms and
conditions of each as the Program Administrators, in their sole and absolute
discretion, deem are not inconsistent with the terms of the Stock Rights Plan.
Section 4. PERFORMANCE SHARES. Performance Shares shall become payable to a
Plan Participant based upon the achievement of specified Performance Objectives
and upon such other terms and conditions as the Program Administrators may
determine and specify in the Stock Rights Agreement evidencing such Performance
Shares. Each grant shall satisfy the conditions for performance-based awards
hereunder and under the General Provisions of the Program. A grant may provide
for the forfeiture of Performance Shares in the event of termination of
employment or other events, subject to exceptions for death, disability,
retirement or other events, all as the Program Administrators may determine and
specify in the Stock Rights Agreement for such grant. Payment may be made for
the Performance Shares at such time and in such form as the Program
Administrators shall determine and specify in the Stock Rights Agreement and
payment for any Performance Shares may be made in full in cash or by certified
cashier's check payable to the order of the Company or, if permitted by the
Program Administrators, by shares of the Company's Common Stock or by the
surrender of all or part of an award, or in other property, rights or credits
deemed acceptable by the Program Administrators or, if permitted by the Program
Administrators, by a combination of the foregoing. If any portion of the
purchase price is paid in shares of the Company's Common Stock, those shares
shall be tendered at their then Fair Market Value. Payment in shares of Common
Stock includes the automatic application of shares of Common Stock received upon
the exercise or settlement of Performance Shares or other option or award to
satisfy the exercise or settlement price.
VII-1
<PAGE>
Section 5. STOCK PAYMENTS. The Program Administrators may grant Stock
Payments to a person eligible to receive the same as a bonus or additional
compensation or in lieu of the obligation of the Company or a subsidiary to pay
cash compensation under other compensatory arrangements, with or without the
election of the eligible person, provided that the Plan Participant will be
required to pay an amount equal to the aggregate par value of any newly issued
Stock Payments. A Plan Participant shall have all the voting, dividend,
liquidation and other rights with respect to shares of Common Stock issued to
the Plan Participant as a Stock Payment upon the Plan Participant becoming
holder of record of such shares of Common Stock; PROVIDED, HOWEVER, the Program
Administrators may impose such restrictions on the assignment or transfer of
such shares of Common Stock as they deem appropriate and as are evidenced in the
Stock Rights Agreement for such Stock Payment.
Section 6. DIVIDEND EQUIVALENT RIGHTS. The Program Administrators may grant
Dividend Equivalent Rights in tandem with the grant of Incentive Options or
Nonqualified Options, SARs, Restricted Shares or Performance Shares that
otherwise do not provide for the payment of dividends on the shares of Common
Stock subject to such awards for the period of time to which such Dividend
Equivalent Rights apply, or may grant Dividend Equivalent Rights that are
independent of any other such award. A Dividend Equivalent Right granted in
tandem with another award may be evidenced by the agreement for such other
award; otherwise, a Dividend Equivalent Right shall be evidenced by a separate
Stock Rights Agreement. Payment may be made by the Company in cash or by shares
of the Company's Common Stock or by a combination of the foregoing, may be
immediate or deferred and may be subject to such employment, performance
objectives or other conditions as the Program Administrators may determine and
specify in the Stock Rights Agreement for such Dividend Equivalent Rights. The
total payment attributable to a share of Common Stock subject to a Dividend
Equivalent Right shall not exceed one hundred percent (100%) of the equivalent
dividends payable with respect to an outstanding share of Common Stock during
the term of such Dividend Equivalent Right, taking into account any assumed
investment (including assumed reinvestment in shares of Common Stock) or
interest earnings on the equivalent dividends as determined under the Stock
Rights Agreement in the case of a deferred payment, provided that such
percentage may increase to a maximum of two hundred percent (200%) if a Dividend
Equivalent Right is subject to a Performance Objective.
Section 7. COMPLIANCE WITH SECURITIES LAWS. Securities shall not be issued
with respect to any award under the Stock Rights Plan, unless the issuance and
delivery of the securities pursuant thereto shall comply with all applicable
provisions of foreign, state and federal law, including, without limitation, the
Securities Act of 1933, as amended, and the Exchange Act, and the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the securities may then be listed, and shall be further subject to
the approval of counsel for the Company with respect to such compliance. The
Program Administrators may also require a Plan Participant to furnish evidence
satisfactory to the Company, including a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition, or otherwise, that the securities are being acquired only for
investment purposes and without any present intention to sell or distribute the
securities in violation of any state or federal law, rule, or regulation.
Further, each Plan Participant shall consent to the imposition of a legend on
the securities subject to his or her award and the imposition of stop-transfer
instructions restricting their transferability as required by law or by this
Section 7.
Section 8. CONTINUED EMPLOYMENT OR SERVICE. Each Plan Participant, if
requested by the Program Administrators, must agree in writing as a condition of
receiving his or her award, to remain in the employment of, or service to, the
Company or any of its subsidiaries following the date of the granting of that
award for a period specified by the Program Administrators. Nothing in this
Stock Rights Plan in any award granted hereunder shall confer upon any Plan
Participant any right to continued employment by, or service to, the Company or
any of its subsidiaries, or limit in any way the right of the
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<PAGE>
Company or any subsidiary at any time to terminate or alter the terms of that
employment or service arrangement.
Section 9. RIGHTS UPON TERMINATION OF EMPLOYMENT OR SERVICE. If a Plan
Participant under this Stock Rights Plan ceases to be employed by, or provide
service to, the Company or any of its subsidiaries for any reason his or her
award shall immediately terminate.
VII-3
<PAGE>
P R O X Y
HOLIDAY RV SUPERSTORES, INCORPORATED
THIS PROXY IS BEING SOLICITED BY THE BOARD OF DIRECTORS
FOR A SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON FRIDAY, JANUARY 7, 2000
The undersigned shareholder appoints Michael S. Riley and W. Hardee
McAlhaney, or either of them, as proxy with full power of substitution, to vote
the shares of voting securities of Holiday RV Superstores, Incorporated (the
"Company") which the undersigned is entitled to vote at a Special Meeting of
Shareholders to be held at 7851 Greenbriar Parkway, Orlando, Florida, 32819, on
Friday, January 7, 2000, at 10:00 a.m., local time, and at any adjournments
thereof, upon matters properly coming before the meeting, as set forth in the
Notice of Special Meeting and Proxy Statement, both of which have been received
by the undersigned. Without otherwise limiting the general authorization given
hereby, such proxy is instructed to vote as follows:
THIS PROXY WILL BE VOTED AS DIRECTED, OR IF NO CONTRARY DIRECTION IS
INDICATED, WILL BE VOTED FOR THE PROPOSALS INDICATED ON THIS CARD AND AS SUCH
PROXIES DEEM ADVISABLE WITH DISCRETIONARY AUTHORITY ON SUCH OTHER BUSINESS AS
MAY PROPERLY COME BEFORE THE MEETING AND ANY ADJOURNMENT OR ADJOURNMENTS
THEREOF. NOTE THAT IF ANY OF PROPOSALS 1-7 ARE NOT APPROVED, THEN NONE OF THOSE
PROPOSALS WILL BE ENACTED.
(1) To approve a change in Holiday's state of incorporation from
Florida to Delaware by means of a merger of Holiday with and into a wholly-owned
subsidiary.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
(2) To provide in Holiday's Certificate of Incorporation to be filed in
Delaware in connection with the reincorporation for the number of authorized
shares of capital stock of Holiday, $.01 par value, to be increased from
10,000,000 to 25,000,000.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
(3) To provide in Holiday's Certificate of Incorporation to be filed in
Delaware in connection with the reincorporation for the authorization of the
issuance of up to 2,000,000 shares of preferred stock, par value $.01 per share.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
(4) To adopt bylaws in connection with the reincorporation.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
(5) To provide in Holiday's Certificate of Incorporation to be filed in
Delaware in connection with the reincorporation and bylaws to be adopted in
connection with the reincorporation for a classified board of directors and for
advance notice of shareholder proposals and nominations for the election of
directors.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
<PAGE>
(6) To approve the Holiday RV Superstores, Inc. 1999 Stock Compensation
Program.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
(7) To approve grants of stock options to Holiday's directors who served
as directors in and prior to May 1999.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
DATED:____________________ ____________________________________
Signature
____________________________________
Signature (if held jointly)
____________________________________
Print Name(s)
(Please sign exactly as your name appears
hereon. When signing as attorney, executor,
administrator, trustee or guardian, please
give your full title. If shares are jointly
held, each holder must sign. If a
corporation, please sign in full corporate
name by President or other authorized
officer. If a partnership, please sign in
partnership name by authorized person.)
PLEASE CHECK THE BOXES ABOVE, SIGN, DATE AND RETURN THIS PROXY TO
AMERICAN STOCK TRANSFER CO., ATTN: PROXY SERVICES, IN THE SELF-ADDRESSED
ENVELOPE PROVIDED.
