EXHIBIT 10.7
Debt Conversion and Mutual
Settlement and Release Agreement
This Debt Conversion and Mutual Settlement and Release Agreement
("Conversion Agreement") is entered into at Orlando, Florida, effective as of
April 11, 2001 ("Effective Date"), between Holiday RV Superstores, Inc., a
Delaware corporation ("Holiday RV") and Little Valley Auto and RV Sales, Inc., a
West Virginia corporation ("Little Valley" and collectively with Holiday RV, the
"Holiday RV Group"), and Xxxxxx Xxxxx, Xx., an individual ("Xxxxxx") and Xxxx X
Xxxxx, an individual ("Xxxx" and collectively with Xxxxxx, the "Investor
Group").
WITNESSETH:
Whereas, Holiday RV (as "Buyer"), Little Valley (as "Company"), and the
Investor Group (as "Stockholders") are parties to an agreement entitled Stock
Purchase Agreement made and entered into on March 1, 2000 ("Stock Purchase
Agreement").
Whereas, in connection with the Stock Purchase Agreement, Holiday RV
executed a convertible promissory note dated March 1, 2000 (the "Purchase
Note"), pursuant to which Holiday RV promised to pay to the order of the
Investor Group (as "Holder") the principal sum of one million seven hundred
thirty one thousand nine hundred and nineteen and 60/100ths dollars
($1,731,919.60) together with interest as described therein on or before March
1, 2003.
Whereas, Holiday RV as part of the consideration in connection with the
Stock Purchase Agreement agreed to indemnify and hold harmless the Investor
Group from liability for certain guarantees and other events, including without
limitation those setout on Schedule 6.9 of the Stock Purchase Agreement
(collectively, the "Indemnities").
Whereas, in connection with the Stock Purchase Agreement, Little Valley (as
the "Corporation") entered into an employment agreement dated March 1, 2000 (the
"Employment Agreement") with Xxxxxx (as "Employee"), pursuant to which Little
Valley agreed, among other things, to employ Xxxxxx for a period of three years
as the General Manager, at a salary of eighty thousand dollars ($80,000) per
year.
Whereas, the Holiday RV Group with respect to the Investor Group, and the
Investor Group with respect to the Holiday RV Group, desire to finally settle
all of their respective rights and obligations under the Stock Purchase
Agreement, the Purchase Note, all amendments thereto, and all other related
agreements other than the Employment Agreement (collectively, the "Former
Agreements"), terminate and release all of their respective rights and
obligations under the Former Agreements, and settle all other disputes of any
kind that may or could exist between the Holiday RV Group and the Investor Group
with respect to the Former Agreements, all upon the terms and conditions set
forth in this Conversion Agreement.
Now Therefore, in consideration of the mutual agreements contained herein
and for other good and sufficient consideration, the receipt and sufficiency of
which is hereby acknowledged, Holiday RV, Little Valley, Xxxxxx and Xxxx agree
as follows:
1. Defined Terms. In addition to those terms that may be defined
elsewhere in this Conversion Agreement, the following terms shall have the
meanings defined in this Section 1.
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1.1 "Common Stock" means the common stock, par value $.01 of Holiday
RV.
1.2 "Note Conversion" means the conversion of indebtedness in the
original principal amount of $1,731,919.60 owed by Holiday RV to the Investor
Group (which is the entire principal amount Holiday RV and the Investor Group
have agreed is due and payable pursuant to the Stock Purchase Agreement and the
Purchase Notes), into five hundred thousand (500,000) shares of Common Stock
(the "Conversion Shares") at a price per share of $2.88. All interest on the
indebtedness accrued and unpaid as of the Effective Date shall be paid to the
Investor Group as soon as practicable after the closing (the "Closing") of the
transactions contemplated by this Conversion Agreement.
2. Continuation of Employment. In consideration of the Note Conversion
and as of the Effective Date:
2.1 Holiday RV and Xxxxxx agree that the Employment Agreement shall
remain in full force and effect.
2.2 Survival of Prohibition of Disclosure of Confidential
Information. Xxxxxx and Xxxx acknowledge and agree that in the course of their
employment with Little Valley, they had access to confidential information and
trade secrets relating to the business of Little Valley and Holiday RV. Xxxxxx
and Xxxx agree that neither of them shall not, without the express prior written
consent of Holiday RV, for a period of three (3) years after the Effective Date,
directly or indirectly disclose to any third person any such confidential
information or trade secrets.
3. Completion of Conversion. Upon the date of the Closing (the "Closing
Date"), Holiday RV and the Investor Group shall complete the Note Conversion by
concurrently taking the following actions:
3.1 Actions By Holiday RV.
(a) Holiday RV shall deliver to the Investor Group stock
certificates, without legends or restrictions of any kind, representing the
Conversion Shares to be delivered by Holiday RV to the Investor Group in the
following names and numbers of shares:
(i) Xxxxxx Xxxxx, Xx. and Xxxx X. Xxxxx for 500,000
shares.
3.2 Actions By Investor Group.
(a) The Investor Group shall duly deliver to Holiday RV the
original Buyer Note.
(b) Xxxxxx shall continue to hold his position as General
Manager of Little Valley pursuant to the terms set forth in the Employment
Agreement.
3.3 Effect of Conversion. Upon the Effective Date, (a) any and all
amounts owed by the Holiday RV Group under the Former Agreements to the members
of the Investor Group except accrued and unpaid interest as set forth in Section
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1.2, shall be deemed to have been converted, respectively, into the number of
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shares of Common Stock issued to the Investor Group, as set forth in Section
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3.1; (b) as of and after the Effective Date no member of the Holiday RV Group
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shall owe any debt or have any obligation of any kind to any of the members of
the Investor Group, except for the Indemnities and for the obligations of the
Holiday RV Group under this Conversion Agreement, and (c) each and all of the
Former Agreements shall be terminated and of no further force or effect, except
as this Agreement specifically provided.
3.4 Restricted Securities; Registration. The Investor Group agrees
and acknowledges that the Conversion Shares are "restricted securities" within
the meaning of Rule 144 under the Securities Act of 1933, as amended (the
"Act"), and may not be resold or transferred without registration under the Act
and applicable state securities laws or an exception from such registration.
Holiday RV agrees to file a registration statement under the Act covering the
Conversion Shares as promptly as practicable after the Closing Date and will use
commercially reasonable efforts to cause such registration statement to be
declared effective by the Securities and Exchange Commission no later than the
45th day following the Closing Date. Holiday RV shall not be required to
maintain the effectiveness of such registration statement after any of the
Conversion Shares may be resold pursuant to Rule 144(k) under the Act.
4. Settlement and Mutual Release. As of the Effective Date, the Holiday
RV Group and the Investor Group agree that the terms and conditions of this
Section 4 shall be in effect with respect to the Former Agreements and all of
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the respective rights and obligations of the Holiday RV Group and the Investor
Group pursuant to the Former Agreements and all other related agreements:
4.1 The Former Agreements shall be deemed to have been voluntarily
terminated pursuant to the mutual agreement of Holiday RV, Little Valley, Xxxxxx
and Xxxx, without any remaining liability to either Holiday RV, Little Valley,
Xxxxxx and Xxxx. Without limiting the generality of the foregoing provisions of
this section, Holiday RV, Little Valley and each member of the Investor Group
agree that the Holiday RV Group shall no longer have any obligations of any kind
under the Former Agreements to pay any amount to the Investor Group, and the
Investor Group shall no longer have any rights of any kind under the Former
Agreements to collect from the Holiday RV Group or their predecessors,
successors, former and current subsidiaries, affiliates, shareholders,
directors, officers, agents, attorneys, representatives, insurers, employees and
assigns (collectively, "Related Parties") any amounts owed under the Former
Agreements or convert such amounts into, or to otherwise obtain ownership of,
shares of Common Stock.
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4.2 The Holiday RV Group with respect to the Investor Group, and the
Investor Group with respect to the Holiday RV Group, shall be deemed to have
forever released and discharged each other and each other's Related Parties from
and against any and all claims, damages and causes of action, in law or equity,
whether or not known, suspected, or claimed, direct or indirect fixed or
contingent, whether now existing or hereafter arising that they may have against
each other with respect to and in connection with the Former Agreements and any
matter arising out of the terms and conditions thereof, including without
limitation, any breach of any representation or warranty or noncompliance or
nonfulfillment of any covenant or agreement contained in or arising out of the
Former Agreements.
5. Representations, Warranties and Agreements of Holiday RV and Little
Valley. In addition to any representations and warranties Holiday RV and Little
Valley may make to the Investor Group elsewhere in this Conversion Agreement, or
in any other document delivered to the Investor Group in connection herewith,
each of Holiday RV and Little Valley represents and warrants to the Investor
Group that the statements contained in this Section 5 are true, accurate,
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complete, and not misleading in any material respect, and also shall be so as of
the Effective Date.
5.1 Organization and Good Standing, and Other Status. Holiday RV is
a corporation, legally and validly incorporated, organized and existing under
the laws of the State of Delaware and Little Valley is a corporation legally and
validly incorporated, organized and existing under the laws of the State of West
Virginia.
5.2 Authority to Conduct Business. Each of Holiday RV and Little
Valley possesses full corporate power and lawful authority to own, lease and
operate its assets, and to carry on its business as presently conducted. Each of
Holiday RV and Little Valley is duly and legally qualified to do business and is
in good standing in each country, state, county, city or other jurisdiction in
which the failure to so qualify would have a material adverse impact on Holiday
RV's or Little Valley's business.
5.3 Authority Regarding this Agreement.
5.3.1 Each of Holiday RV and Little Valley has the complete and
unrestricted right, power, authority and capacity to (a) execute and deliver
this Conversion Agreement, and every other document executed and delivered by
Holiday RV and Little Valley to the Investor Group in connection therewith
(collectively the "Transaction Documents"); and (b) carry out and perform each
of Holiday RV's or Little Valley's obligations pursuant to the Transaction
Documents.
5.3.2 This Conversion Agreement has been, and, as of the
Effective Date all of the other Transaction Documents will have been, duly and
validly executed and delivered by each of Holiday RV and Little Valley, and when
so executed and delivered, will constitute legal, valid and binding obligations
of each of Holiday RV and Little Valley, enforceable in accordance with their
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as
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limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
5.4 Valid Issuance of Common Stock. The Conversion Shares, when
issued and delivered in accordance with the terms of this Conversion Agreement,
will be duly and validly issued, fully paid, and nonassessable, and will be free
of restrictions on transfer.
5.5 Disclosure. Each of Holiday RV and Little Valley has fully
provided each member of the Investor Group with all information each such party
has requested for deciding whether to enter into the transactions contemplated
by the Transaction Documents, including without limitation, the acquisition of
the Common Stock.
6. Representations, Warranties and Agreements of the Investor Group. In
addition to any representations and warranties the Investor Group may make to
the Holiday RV Group elsewhere in this Conversion Agreement, or in any other
document delivered to Holiday RV or Little Valley in connection herewith, the
members of the Investor Group, jointly and severally represent and warrant to
Holiday RV and Little Valley that the statements contained in this Section 6 are
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true, accurate, complete, and not misleading in any material respect.
6.1 Authority Regarding this Agreement.
6.1.1 Each member of the Investor Group has the complete and
unrestricted right, power, authority and capacity to (a) execute and deliver
each Transaction Document to which it is a party; and (b) carry out and perform
each of their respective obligations pursuant to such Transaction Documents.
6.1.2 This Conversion Agreement has been, and, as of the
Effective Date all of the other Transaction Documents will have been, duly and
validly executed and delivered by each member of the Investor Group which is a
party to such agreements or documents, and when so executed and delivered, will
constitute legal, valid and binding obligations of each member of the Investor
Group which is a party to such agreements or documents, enforceable in
accordance with their terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
6.2 Purchase Entirely For Own Account. Each member of the Investor
Group is aware that Holiday RV is entering into the Transaction Documents in
reliance on the representation made by each member of the Investor Group, which
representation is respectively confirmed by each such member's execution of this
Conversion Agreement, and each such member hereby confirms, that the Conversion
Shares will be acquired for investment and not with a view to the resale or
distribution of any part thereof, and that such member has no present intention
of selling, granting any participation in, or otherwise distributing the same.
By executing this Conversion Agreement, each
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member of the Investor Group further represents that such member does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Conversion Shares.
6.3 Disclosure of Information. Each member of the Investor Group is
an insider of Holiday RV and has received all the information it considers
necessary or appropriate in making an investment decision with respect to the
Conversion Shares. Each member of the Investor Group has had an opportunity to
ask questions and has received answers from Holiday RV regarding the terms and
conditions of the Transaction Documents and the business, properties, prospects
and financial condition of Holiday RV.
6.4 Investment Experience. Each member of the Investor Group
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Conversion Shares. Each member of the Investor Group has carefully
evaluated such member's financial resources and investment position and the
risks associated with an investment in the Conversion Shares, and acknowledges
that such member is able to bear the economic risks of this investment. Each
member of the Investor Group further acknowledges that such member's financial
condition is such that the member is not under any present necessity or
constraint to dispose of the securities to satisfy any existing or contemplated
debt or undertaking.
7. Representations, Warranties and Agreements of the Parties with Regard
to Insider Status. In addition to any representations and warranties any member
of the Holiday RV Group and any member of the Investor Group may make elsewhere
in this Conversion Agreement, or in any other document delivered to any party in
connection herewith, Holiday RV, Little Valley, Xxxxxx and Xxxx, jointly and
severally represent and warrant to each other party that the statements
contained in this Section 7 are true, accurate, complete, and not misleading in
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any material respect, and acknowledge that each of them are relying upon such
representations, warranties and agreements in entering into this Conversion
Agreement and the transactions contemplated herein.
7.1 Possession of Material Non-Public Information.
7.1.1 The parties acknowledge that Xxxxxx and/or Xxxx xxx have
possession of, or may have received, confidential or material non-public
information concerning the Common Stock and/or Holiday RV that the Holiday RV
and/or Little Valley do not possess or have access to (the "Buyer
Information"). In addition, the parties acknowledge that Holiday RV and/or
Little Valley may have possession of, or may have received, confidential or
material non-public information concerning the Common Stock and/or Holiday RV,
that Xxxxxx and/or Xxxx do no possess or have access to (the "Seller
Information");
7.1.2 The Holiday RV Group and the Investor Group have each
requested that the other not disclose to it any of the Buyer Information or the
Seller Information;
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7.1.3 The Holiday RV Group and the Investor Group have each
complied with the other's request not to disclose to it any of the Buyer
Information or the Seller Information; and
7.1.4 As a consequence of such non-disclosure of the Buyer
Information or the Seller Information, as the case may be, there may exist a
disparity of information between the Holiday RV Group and the Investor Group
with respect to the Common Stock and/or Holiday RV.
7.2 Indemnification. As a condition to the Investor Group's
agreement to purchase, and the Holiday RV Group's agreement to sell the
Conversion Shares, each agree to waive against the other, and hereby release and
agree to indemnify and hold harmless the other from, claims, if any the other
could otherwise have with respect to the non-disclosure of the Buyer Information
or the Seller Information.
8. Miscellaneous Provisions.
8.1 Exhibits. All exhibits described in this Conversion Agreement
are incorporated by reference as if fully set forth herein, and constitute a
material part of this Conversion Agreement, whether or not such exhibits are
attached hereto.
8.2 Governing Law. This Conversion Agreement shall in all respects
be construed, interpreted and enforced in accordance with and governed by the
laws of the State of Florida, United States of America. Any legal action between
the parties regarding this Conversion Agreement shall be brought in, and the
parties hereby consent to the jurisdiction of and venue in the federal and state
courts located in the State of Florida, United States of America.
8.3 Notices. Any notice, demand or other communication required or
permitted under this Conversion Agreement shall be deemed given and delivered
when in writing and (a) personally served upon the receiving party, or (b) upon
the third (3rd) calendar day after mailing to the receiving party by either (i)
United States registered or certified mail, postage prepaid, or (ii) Federal
Express or other comparable overnight delivery service, delivery charges
prepaid, and addressed as follows:
To Holiday RV: Holiday RV Superstores, Inc.
000 X. Xxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
To any member of
the Investor Group: Xxxxxx Xxxxx, Xx. and Xxxx Xxxxx
000 Xxx Xxxxxxxxx Xxxx
Xxxxxx, Xxxx Xxxxxxxx 00000
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Telephone: 000-000-0000
Facsimile.: 000-000-0000
Any party may change the address specified in this section by giving the other
party notice of such new address in the manner set forth herein.
8.4 Severability. In the event that any provision of this
Conversion Agreement becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or invalid, then this Conversion Agreement shall
continue in full force and effect without said provision. If this Conversion
Agreement continues in full force and effect as provided above, the parties
shall replace the invalid provision with a valid provision which corresponds as
far as possible to the spirit and purpose of the invalid provision.
8.5 Counterparts. This Conversion Agreement may be executed in any
number of counterparts, each of which may be executed by less than all of the
parties hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
document.
8.6 Entire Agreement. This Conversion Agreement, and the documents
and agreements contemplated herein and therein, constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersede all
prior oral or written agreements, representations or warranties between the
parties other than those set forth herein or herein provided for.
8.7 Successors and Assigns. Except as specifically permitted
pursuant to the terms and conditions hereof, no party shall be permitted to
assign their respective rights or obligations under this Conversion Agreement
without the prior written consent of the other parties. The provisions hereof
shall inure to the benefit of, and be binding upon, the permitted successors and
assigns, heirs, executors, and administrators of the parties hereto.
8.8 Amendment and Waiver. No modification or waiver of any
provision of this Conversion Agreement shall be binding upon the party against
whom it is sought to be enforced, unless specifically set forth in writing
signed by an authorized representative of that party. A waiver by any party of
any of the terms or conditions of this Conversion Agreement in any one instance
shall not be deemed or construed to be a waiver of such terms or conditions for
the future, or of any subsequent breach thereof. The failure by any party hereto
at any time to enforce any of the provisions of this Conversion Agreement, or to
require at any time performance of any of the provisions hereof, shall in no way
to be construed to be a waiver of such provisions or to affect either the
validity of this Conversion Agreement or the right of any party to thereafter
enforce each and every provision of this Conversion Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Conversion
Agreement as of the date first above written.
HOLIDAY RV SUPERSTORES, INC.
By: ________________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer
LITTLE VALLEY AUTO AND RV SALES, INC.
By: ________________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer
___________________________________
Xxxxxx Xxxxx, Xx.
___________________________________
Xxxx Xxxxx
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