Exhibit 10.4
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Xx. Xxxxxx Xxxxxx
00000 Xxxxxxxxxx Xxx
Xxx Xxxxxxx, XX 00000
December 27, 2001
Dear Xxxxxx,
This letter is intended to confirm and memorialize our telephone
conversation of December 27, 2001, in which, based on the best interests of both
parties, we agreed that the intended consulting agreement dated as of August 1,
2001 (the "Consulting Agreement") by and between Holiday RV Superstores, Inc.
(the "Company") and you is void and of no force and effect.
This letter will also confirm the Company's agreement to issue to you
300,000 shares of common stock at the fair market value of such shares as of
October 31, 2001 and make available up to $750,000 of units of series A
preferred stock and warrants pursuant to the Company's series A financing as
follows: up to $250,000 may be purchased by you; up to $250,000 may be purchased
by each of 2 other investors designated by you. To exercise this investment
opportunity you and the designated investors must fund and close the investment
on the terms negotiated by the lead investor before 2:00 p.m. Eastern Time on
January 7, 2002.
This letter will also confirm that you agree that upon completion the
$3,500,000 financing you will serve as a director of the Company upon the
request of the Company.
The Company, for itself and its present and former employees, directors,
officers, shareholders, lenders, consultants, partners, successors, affiliates,
assigns, agents, insurers or reinsurers, parents and subsidiaries (collectively,
the "Company Parties") on the one hand, and you on the other hand, each hereby
irrevocably, unconditionally and completely release and forever discharge each
other and any other person, firm, partnership, company or corporation now,
previously, or hereafter affiliated with any of the above (the "Released
Parties"), from any and all claims, rights, actions, complaints, demands, causes
of action (in law or in equity), obligations, promises, agreements,
controversies, suits, debts, expenses, damages, attorney's fees, costs, and
liabilities of any nature whatsoever, whether or not known, suspected or
claimed, which such parties ever had in the past, now have or may have in the
future and which has arisen or arises directly or indirectly out of, relates
directly or indirectly to, is connected with or concerns the Consulting
Agreement or any circumstance, agreement, activity, action, omission, event,
transaction, occurrence or matter occurring or existing on or prior to the date
of this Agreement in connection therewith (the "Released Claims"); provided,
however, that the foregoing release shall not relate to any obligations of you
or the Company created or preserved in this letter.
It is expressly understood that the Released Claims include, without
limitation, any and all claims or causes of action against the Released Parties
Xx. Xxxxxx Xxxxxx
December 27, 2001
Page 2
based on theories of alter ego, principal-agent, conspiracy, successor
liability, fraudulent conveyance law, or the like, and include specifically,
without limitation, any and all claims or causes of action based upon your
status as an stockholder, employee, consultant, officer or director of the
Company or its affiliates.
You acknowledge and agree that any remedy at law for any breach of the
provisions of this letter would be inadequate, and you hereby consent to the
granting by any court of an injunction or other equitable relief, without the
necessity of actual monetary loss being proved, in order that the breach or
threatened breach of such provisions may be effectively restrained. No exercise
or enforcement by the Company of any right or remedy under this letter will
preclude the exercise or enforcement by the Company of any other right or remedy
under this letter or that the Company is entitled by law to exercise or enforce.
This letter constitutes the entire agreement between the parties hereto
and supersedes all prior agreements between the parties. The parties hereto each
acknowledge that no representations, inducements, promises, agreements, or
warranties, oral or otherwise, have been made by them, or anyone acting on their
behalf, which are not embodied in this letter, and that they have not executed
this letter in reliance upon any such representation, inducement, promise,
agreement, or warranty not contained in this letter.
Any waiver, modification, consent or acquiescence with respect to any
provision of this letter shall be set forth in writing and duly executed by or
on behalf of the party to be bound thereby. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
Should any portion, word clause, phrase, sentence, or paragraph of this
letter be declared void or unenforceable, such portion shall be considered
independent and severable from the remainder, the validity of which shall remain
unaffected. In the event of vagueness or ambiguity, this letter shall not be
construed against the party preparing it, but shall be construed as if all
parties prepared it jointly.
This letter may be executed in multiple counterparts, each of which shall
be considered an original but all of which shall constitute one agreement.
This letter, and all the terms and provisions hereof, shall be binding
upon and shall inure to the benefit of the parties and their respective heirs,
legal representatives, successors, and assigns.
This letter is made and entered into in the State of Florida and shall in
all respects be interpreted, enforced, and governed under the laws of said
state. Any legal action or proceeding with respect to this letter must be
brought in the courts of the County of Broward in the State of Florida.
Xx. Xxxxxx Xxxxxx
December 27, 2001
Page 2
The parties to this letter represent and agree that they fully understand
their right to discuss all aspects of this letter with a private attorney, and
that to the extent, if any, they have desired, they have availed themselves of
this right, that they have carefully read and fully understand all of the
provisions of this letter, and that they are voluntarily entering into this
letter.
Please confirm that the above correctly reflects our understanding and
agreement with respect to the foregoing matters by signing the enclosed copy of
this letter and returning such copy to the Company in the enclosed envelope.
HOLIDAY RV SUPERSTORES, INC.
By: /s/ Xxxxxx Xxxxxxx 1/2/02
__________________________
Xxxxxx Xxxxxxx
Chief Executive Officer
AGREED AND ACCEPTED:
/s/Xxxxxx Xxxxxx 1/2/02
________________ ______
Xxxxxx Xxxxxx Date
