EXHIBIT 4.1
The securities represented by this certificate and the securities issuable upon
exercise hereof are subject to a Securities Purchase Agreement dated as of May
10, 2001, (the "Securities Purchase Agreement") a copy of which is on file at
the principal office of the Company and will be furnished to the holder on
request to the Secretary of the Company.
The securities represented by this certificate and the securities issuable upon
exercise hereof have not been registered pursuant to the Securities Act of 1933,
as amended (the "Act"), or any state securities law, and such securities may not
be sold, transferred or otherwise disposed of or exercised by or on behalf of
any person unless the same are registered and qualified in accordance with the
Act and any applicable state securities laws, or in the opinion of counsel
reasonably satisfactory to the Company such registration and qualification are
not required under the Act.
No. KC-01 Dated: As of May 10, 2001
Warrant
Holiday RV Superstores, Inc.
This Warrant certifies that KC, or registered assigns, is the registered
holder of a warrant (the "Warrant") to purchase 25,000 shares (as adjusted from
time to time hereunder, the "Exercise Shares") of common stock, par value $.01
per share (the "Common Stock"), of Holiday RV Superstores, Inc., a Delaware
corporation (the "Company"), at an exercise price per share equal to (x) 110%,
multiplied by (y) the arithmetic mean of the closing price, as reported by
Bloomberg, L.P., of shares of Common Stock for the 20 consecutive trading days
proceeding the Closing Date (as defined in the Securities Purchase Agreement)
(the "Exercise Price").
Section 1. Exercise; Expiration; Redemption.
To exercise this Warrant, the Warrant holder must elect and sign the
exercise election form attached to this Warrant certificate and deliver to the
Company (i) this Warrant certificate and (ii) cash or a check payable to the
Company for the Exercise Price for the Warrant.
This Warrant may be exercised by any holder hereof at any time after the
date first set forth above until May 10, 2006, the date of expiration of this
Warrant. To the extent that this Warrant has not been exercised by the date of
its expiration, this Warrant shall become void and all rights hereunder and all
rights in respect hereof shall cease as of such time.
This Warrant shall be exercisable at the election of any holder hereof,
either in full or from time to time in part (but in no event for less than one
whole Share) share of Common Stock and, in the event that a certificate
evidencing this Warrant is exercised in respect of fewer than all of the
Exercise Shares issuable on such exercise at any time prior to the date of
expiration of this Warrant, a new Warrant certificate evidencing the remaining
Warrant with respect to whole Exercise Shares issuable upon exercise will be
issued. No adjustment shall be made for any dividends on any Exercise Shares
issuable upon exercise of this Warrant.
The Company covenants that all Exercise Shares which may be issued upon
exercise of this Warrant will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issue thereof.
The Company will pay all documentary stamp taxes attributable to the
issuance of Exercise Shares upon the exercise of this Warrant; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue of any Warrant
certificates or any certificates for Exercise Shares in a name other than that
of the registered holder of this Warrant certificate surrendered upon the
exercise of this Warrant, and the Company shall not be required to issue or
deliver such Warrant certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
The Company shall not be required to issue fractional shares of Common
Stock on the exercise of this Warrant. If any fraction of a share of Common
Stock would be issuable on the exercise of this Warrant (or specified portion
hereof), in lieu of the issuance of such fraction of a share, the Company shall
pay to the exercising holder an amount in cash equal to the Exercise Price on
the day immediately preceding the date this Warrant certificate is presented for
exercise, multiplied by such fraction.
Section 2. Transfer or Exchange.
This Warrant and the Exercise Shares may only be transferred by the holder
in accordance with the registration requirements of the Act or an exemption
therefrom, and in accordance with any other restrictions set forth herein or in
the Securities Purchase Agreement.
Subject to compliance with the proceeding paragraph, the Company shall from
time to time register the transfer of this Warrant certificate upon the records
to be maintained by it for that purpose, upon surrender hereof, accompanied (if
so required by it) by a written instrument or instruments of transfer in form
satisfactory to the Company, duly executed by the registered holder hereof or by
the duly appointed legal representative thereof or by a duly authorized attorney
and an opinion of counsel in form and substance satisfactory to the Company that
such transfer may be effected under the Act. Upon any such registration of
transfer, a new Warrant certificate(s) shall be issued to the transferee(s) and
the surrendered Warrant certificate shall be canceled by the Company.
This Warrant certificate may be exchanged at the option of the holder
hereof, when surrendered to the Company at its office for another Warrant
certificate or other Warrant certificates of the like tenor and representing a
Warrant with respect to a like aggregate number of Exercise Shares. A Warrant
certificate surrendered for exchange shall be canceled by the Company.
Subject to the payment of any taxes as provided herein, upon an exercise of
this Warrant, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the holder and in such name
or names as the Warrant holder
may designate, a certificate or certificates for the number of full Exercise
Shares issuable upon the exercise of this Warrant. This Warrant shall be deemed
to have been exercised and any person so designated to be named therein shall be
deemed to have become a holder of record of such Exercise Shares as of the date
of the surrender of this Warrant certificate (and payment of the Exercise
Price).
The Company may deem and treat the registered holder hereof as the absolute
owner of this Warrant (notwithstanding any notation of ownership or other
writing hereon made by anyone), for the purpose of any exercise hereof, of any
distribution to the holder hereof, and for all other purposes, and the Company
shall not be affected by any notice to the contrary. Nothing contained in this
Warrant certificate shall be construed prior to the date of surrender of the
Warrant certificate for exercise in accordance with the terms hereof as
conferring upon the holder hereof the right to vote or to consent or to receive
notice as members in respect of the meetings of stockholders or the election of
directors of the Company or any other matter, or rights whatsoever as
stockholders of the Company.
Section 3. Mutilated, Lost, Stolen or Destroyed Warrant Certificate.
In case this Warrant certificate shall be mutilated, lost, stolen or
destroyed, the Company may in its reasonable discretion issue in exchange and
substitution for and upon cancellation of the mutilated Warrant certificate, or
in lieu of and in substitution for the Warrant certificate lost, stolen or
destroyed, a new Warrant certificate of like tenor and representing an
equivalent Warrant, but only upon receipt of evidence satisfactory to the
Company of such loss, theft or destruction of such Warrant certificate and
indemnity, if requested, also satisfactory to the Company.
Section 4. Reservation of Exercise Shares for Issuance.
The Company will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock, for the purpose of enabling it to satisfy any obligation to issue shares
of Common Stock upon exercise of this Warrant, the maximum number of shares of
Common Stock which may then be issuable upon the exercise of this Warrant. The
Company or, if appointed, the transfer agent for the Common Stock and every
subsequent transfer agent for any of the Company's capital securities issuable
upon the exercise of any of the rights of purchase aforesaid will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
of Common Stock as shall be required for such purpose. The Company will keep a
copy of this Warrant certificate on file with any such transfer agent for any of
the Company's capital securities issuable upon the exercise of the rights of
purchase represented by this Warrant certificate.
Section 5. Effect of Subdivision, Reclassification, Merger, Dividend, Etc.
5.1 Subdivision or Combination of Common Stock. If the Company at any
time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Shares in effect immediately prior to
such subdivision will be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Shares in effect immediately prior to
such combination will be proportionately decreased.
5.2 Reorganization, Reclassification, Consolidation, Merger or Sale. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the Company's assets to another Person or other
transaction which is effected in such a way that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as "Organic Change." Prior to the consummation of any Organic Change,
the Company will make appropriate provision (in form and substance reasonably
satisfactory to the registered holders of the Warrant) to insure that the
registered holder of the Warrants will thereafter have the right to acquire and
receive in lieu of or addition to (as the case may be) the shares of Common
Stock immediately theretofore acquirable and receivable upon exercise of such
holder's Warrant, such shares of stock, securities or assets, as may be issued
or payable with respect to or in exchange for the number of shares of Common
Stock immediately theretofore acquirable and receivable upon exercise of such
holder's Warrant had such Organic Change not taken place. In any such case, the
Company will make appropriate provision (in form and substance satisfactory to
the registered holder of the Warrant) with respect to such holders' rights and
interests to insure that the provisions of this Section 5 hereof will thereafter
be applicable to the Warrants (including, in the case of any such consolidation,
merger or sale in which the successor entity or purchasing entity is other than
the Company, an immediate adjustment of the Exercise Price to the value for the
Common Stock reflected by the terms of such consolidation, merger or sale, and a
corresponding immediate adjustment in the number of Exercise Shares, if the
value so reflected is less than the Exercise Price in effect immediately prior
to such consolidation, merger or sale). The Company will not effect any such
consolidation, merger or sale, unless prior to the consummation thereof, the
successor entity (if other than the Company) resulting from consolidation or
merger or the corporation purchasing such assets assumes by written instrument
(in form and substance satisfactory to the registered holders of the Warrant),
the obligation to deliver to each such holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire.
For clarification and by way of example, the protective provisions of this
Section 5.2 shall apply to the stock conversion plan publicly announced by the
Company on March 26, 2001, whereby each share of Common Stock would be converted
into one share of Common Stock and a warrant to purchase an additional share of
Common Stock, upon completion of that plan.
5.3 If the Company shall declare a dividend upon its Common Stock, the
Exercise Price in effect on the date following the record date for payment of
such dividend shall be reduced by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which is equal to the
consolidated equity of the Company immediately after giving effect to such
dividend and the denominator of which is equal to the consolidated equity of the
Company prior to giving effect to the payment of such dividend.
5.4 If the Company declares or pays a dividend upon the Common Stock
payable otherwise than in cash out of earnings or earned surplus (determined in
accordance with generally accepted accounting principles, consistently applied)
except for a stock dividend payable in shares of Common Stock (a "Liquidating
Dividend"), then the Company will pay to the registered holder of this Warrant
at the time of payment thereof the positive difference obtained by subtracting
from (i) the Liquidating Dividend which would have been paid to such registered
holder on the Common Stock had this Warrant been fully exercised immediately
prior to the date on which a record is taken for such Liquidating Dividend, or,
if no record is taken, the date as of which the record holders of Common Stock
entitled to such dividends are to be determined, (ii) the Exercise Price in
effect immediately prior thereto. In the event a Liquidating Dividend shall
result in a payment to the registered holder of this Warrant pursuant to this
Section 5.4, the Exercise Price of this Warrant shall be reduced to the par
value of the Common Stock.
Section 6. Notices.
Immediately upon any adjustment of the Exercise Price or Exercise Shares
pursuant to Section 5 above, the Company will given written notice thereof to
the registered holder, setting forth in reasonable detail and certifying the
calculation of such adjustment. The Company will give written notice to the
registered holder at least 20 days prior to the date on which the Company closes
its books or takes a record (A) with respect to any dividend or distribution
upon the Common Stock, (B) with respect to any pro rata subscription offer to
holders of Common Stock or (C) for determining rights to vote with respect to
any Organic Change, dissolution or liquidation.
The Company will also give written notice to the registered holder at
least 20 days prior to the date on which any Organic Change, dissolution or
liquidation will take place.
Section 7. Miscellaneous.
This Warrant certificate and Warrant shall be deemed to be a contract made
under the law of the State of Delaware and for all purposes shall be construed
in accordance with the internal law of said State.
Nothing in this Warrant certificate shall be construed to give to any
person or company other than the Company and the registered holder of this
Warrant certificate any legal or equitable right, remedy or claim under this
Warrant certificate; but this Warrant certificate shall be for the sole and
exclusive benefit of the Company and the registered holder of this Warrant.
[Signature Page Follows]
IN WITNESS WHEREOF, Holiday RV Superstores, Inc., a Delaware
corporation, has caused this Warrant certificate to be signed by its duly
authorized officer.
Dated as of May 10, 2001
HOLIDAY RV SUPERSTORES, INC.
By: ________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
Exercise Election
To be Executed by the Holder
in Order to Exercise the Warrant
The undersigned holder of the foregoing Warrant hereby irrevocably elects
to exercise the purchase rights represented by such Warrant, and to purchase
thereunder, ________ shares of common stock, $.01 par value ("Shares"), and
herewith makes payment of an aggregate of $___________ therefor in accordance
with the terms of the Warrant Certificate. The undersigned requests that the
certificates for Shares to be issued in the name(s) of, and delivered to, the
person(s) whose name(s) and address(es) are set forth below:
_______________________________________
(Please type or print name and address)
_______________________________________
(Social Security or tax identification number, if
applicable)
and delivered to________________________________________________________________
(Please type or print name and address)
and, if such number of Shares shall not be all the Shares purchasable under this
Warrant, that a new Warrant of like tenor for the balance of the Shares subject
to the Warrant be registered in the name of, and delivered to, the holder at the
address stated below.
In full payment of the purchase price with respect to the portion of the
Warrant exercised and transfer taxes, if any, the undersigned hereby tenders
payment of $_________ by check or money order payable in United States currency
to the order of Holiday RV Superstores, Inc., or its successor.
Dated:____________________ ___________________________________
___________________________________
(Address)
___________________________________
___________________________________
Signatures guaranteed by:
____________________________