Exhibit
10.23


 


 


 


 


 


 


RV ACQUISITION INC.


2004 Stock Option Plan


 


 


 


 


 


 


 





 

















 


RV ACQUISITION INC.

2004 STOCK OPTION PLAN


ARTICLE I

Purpose of Plan


This plan shall be known
as the RV Acquisition Inc. 2004 Stock Option Plan (the “Plan”).  The purpose of the Plan shall be to promote
the long-term growth and profitability of RV Acquisition Inc. (the “Company”)
and its Subsidiaries by providing certain directors, officers, consultants and
employees of the Company and its Subsidiaries with incentives to further the development
and financial success of the Company and its Subsidiaries.  By allowing certain individuals to acquire
an ownership interest in the Company, the Plan is intended to motivate certain
individuals to contribute to the success of the Company and its
Subsidiaries.  The Plan will also enable
the Company and its Subsidiaries to attract and retain individuals of
exceptional talent to contribute to the sustained progress, growth and
profitability of the Company and its Subsidiaries.  The Plan is a compensatory benefit plan within the meaning of
Rule 701 under the Securities Act of 1933, as amended (the “Securities Act”),
and, unless and until the Common Stock (as defined below) is publicly traded,
the issuance of stock purchase options (“Options”) for shares of Common
Stock pursuant to the Plan and the issuance of shares of Common Stock pursuant
to such Options are intended to qualify for the exemption from registration
under the Securities Act provided by Rule 701. 
This Plan replaces and supercedes all previous plans, other than the
2004 Lazy Days Employee Stock Appreciation Plan.


ARTICLE II

Definitions


For purposes of the Plan
the following terms have the indicated meanings:


“Board” means the
Board of Directors of the Company.


“Code” means the
Internal Revenue Code of 1986, as amended, and any successor statute.


“Committee” means
the Compensation Committee or such other committee of the Board as the Board
may designate to administer the Plan or, if for any reason the Board has not
designated such a committee, the Board. 
The Committee, if other than the Board, shall be composed of two or more
directors as appointed from time to time by the Board.


“Common Stock”
means the Common Stock, par value $0.01
per share, of the Company, and any other common stock of any class of
the Company hereafter authorized, and any other shares into which any such
stock may be changed by reason of a recapitalization, reorganization, merger,
consolidation or any other change in the corporate structure or capital stock
of the Company.


“Company Sale”
means the consummation of a transaction, whether in a single transaction or in
a series of related transactions, with any Independent Third Party or group of
Independent Third Parties pursuant to which such Person or Persons (i) acquire
(whether by merger, consolidation, recapitalization, reorganization,
redemption, transfer or issuance of capital


 

















 


stock or
otherwise) capital stock of the Company (or any surviving or resulting
corporation) possessing the voting power to elect a majority of the Board (or
the board of directors of such surviving or resulting corporation) or (ii)
acquire assets constituting all or substantially all of the assets of the
Company and its Subsidiaries (as determined on a consolidated basis).


“Independent Third
Party” means any Person who, immediately prior to the contemplated
transaction, does not own in excess of 5% of the Common Stock on a
fully-diluted basis (a “5% Owner”), who is not controlling, controlled
by or under common control with any such 5% Owner and who is not the spouse or
descendent (by birth or adoption) of any such 5% Owner or a trust for the
benefit of such 5% Owner or such other Persons.


“Option Agreement”
has the meaning set forth in Section 5.10.


“Option Shares”
means (i) all shares of Common Stock issued or issuable upon the proper
exercise of an Option and (ii) all equity securities issued or issuable with
respect to the Common Stock referred to in clause (i) above by way of stock
dividend or stock split or in connection with any conversion, merger,
consolidation or recapitalization or other reorganization affecting the Common
Stock.  Unless otherwise provided herein
or in a Participant’s Option Agreement, Option Shares will continue to be
Option Shares in the hands of any holder other than the Participant (except for
the Company and BRS), and each such transferee thereof will succeed to the
rights and obligations of a holder of Option Shares hereunder.


“Participant”
means any director, consultant or employee of the Company or any of its Subsidiaries
who has been selected to participate in the Plan by the Committee or the Board.


“Permitted Option
Transferee” means the Executive’s transferees by will or the laws of
descent and distribution.


“Person” means an
individual, a partnership, a corporation, an association, a joint stock
company, a limited liability company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.


“Preferred Stock”
means the Company’s Series A Preferred Stock, par value $0.01 per share, and
any other stock of any class of the Company hereafter authorized, other than
the Common Stock, and any other shares into which any such stock may be changed
by reason of a recapitalization, reorganization, merger, consolidation or any
other change in the corporate structure or capital stock of the Company.


“Public Offering”
means an underwritten public offering and sale of Common Stock pursuant to an
effective registration statement under the Securities Act; provided that a Public Offering shall not
include an offering made in connection with a business acquisition or
combination pursuant to a registration statement on Form S-4 or any form
for similar registration purposes, or an employee benefit plan pursuant to a
registration statement on Form S-8 or any form for similar registration
purposes.


“Securities Act”
has the meaning ascribed thereto in Article 1 hereof.


 


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“Stockholders
Agreement” means the Stockholders Agreement, dated as of May 14, 2004,
by and among the Company, Bruckmann, Rosser & Sherrill Co. II, L.P.
and other stockholders of the Company, as in effect from time to time.


“Subsidiary”
means, with respect to any Person, any corporation, partnership, association or
other business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, limited liability company, association or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a partnership, limited
liability company, association or other business entity if such Person or
Persons shall be allocated a majority of partnership, limited liability
company, association or other business entity gains or losses or shall be or
control the managing director or general partner of such partnership, limited
liability company, association or other business entity.


ARTICLE III

Administration


The Plan shall be
administered by the Committee.  Subject
to the limitations of the Plan, the Committee shall have the sole and complete
authority to:  (i) select Participants,
(ii) grant Options to Participants in such forms and amounts as it shall
determine, (iii) impose such limitations, restrictions and conditions upon such
Options as it shall deem appropriate, (iv) interpret the Plan and adopt, amend
and rescind administrative guidelines and other rules and regulations relating
to the Plan, (v) correct any defect or omission or reconcile any inconsistency
in the Plan or in any Options granted under the Plan, and (vi) make all other
determinations and take all other actions necessary or advisable for the
implementation and administration of the Plan. 
The Committee’s determinations on matters within its authority shall be
conclusive and binding upon the Participants, the Company and all other
persons.  All expenses associated with
the administration of the Plan shall be borne by the Company.  The Committee may, as approved by the Board
and to the extent permissible by law, delegate any of its authority hereunder
to such persons or entities as it deems appropriate.


ARTICLE IV

Limitation on Aggregate Shares


The number of shares of
Common Stock with respect to which Options may be granted under the Plan shall
not exceed, in the aggregate, 606,061 shares of Common Stock, subject to
adjustment in accordance with Section
6.1.  The shares of Common Stock
available under the Plan may consist of authorized and unissued shares,
treasury shares or a combination thereof, as the Committee shall
determine.  If any shares of Common
Stock subject to repurchase or forfeiture rights are repurchased by the Company
pursuant to such rights, or if any Option is canceled, terminates or expires
unexercised, any shares of Common Stock that would otherwise have been issuable
pursuant thereto will be available for issuance under new Options.


 


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ARTICLE V

Options


5.1           Grant of Options.  The Committee may grant Options to Participants
from time to time in accordance with this Article V.  Options granted under the Plan shall be nonqualified stock
options.  The exercise price per share
(the “Exercise Price”) of Common Stock under each Option shall be
determined by the Committee at the time of grant.  Subject to Section 5.6, Options shall be exercisable at such time
or times as the Committee shall determine.


5.2           Conditions and Limitations on
Exercise.  At the discretion of the
Committee, exercised at the time of grant, Options may vest, in one or more
installments, upon (i) the fulfillment of certain conditions, (ii) the passage
of a specified period of time, and/or (iii) the achievement by the Company or
any Subsidiary of certain performance goals. 
Any Options which shall have vested are referred to as “Vested
Options”, and any Options which have not vested are referred to as the “Unvested
Options”.  In addition, Options may
vest on an accelerated or decelerated basis or be subject to certain other
criteria as the Committee shall determine as specified in any Option
Agreement.  In the event of a proposed
Company Sale, the Committee may provide, in its discretion, by written notice
to each applicable Participant, that any or all Options shall become
immediately vested and that any or all Options shall terminate if not exercised
as of the date of such Company Sale or any other designated date or that any
such Options shall thereafter represent only the right to receive such
consideration as the Committee shall deem equitable in the circumstances.


5.3           Exercise Procedure.  Options shall be exercised in whole or in
part, to the extent they are vested, by written notice to the Company (to the
attention of the Company’s Secretary) accompanied by a statement of the
Participant that the Participant has read and has been afforded an opportunity
to ask questions of management of the Company regarding all financial and other
information provided to the Participant regarding the Company together with
payment in full of an amount (the “Option Price”) equal to the product
of (i) the applicable Exercise Price for the applicable Options multiplied by
(ii) the number of Option Shares to be acquired.  Unless otherwise specified in the Option Agreement, payment of the
Option Price may be made in cash (including certified check, bank draft or
money order or the equivalent thereof acceptable to the Company).  Unless otherwise specified in the Option
Agreement or as determined by the Committee, no Option may be exercised for a
fraction of a share of Common Stock.


5.4           Term of Options.  The Committee shall determine the term of
each Option, which term shall in no event exceed ten (10) years from the date
of grant.  In addition, each Option
shall be subject to early termination in accordance with Section 5.5 below.


5.5           Expiration of Options.


(a)           In no event shall any part of any
Option be exercisable after the date of expiration thereof (the “Expiration
Date”), as determined by the Committee in accordance with Section 5.4
above.


(b)           Any Unvested Options of a Participant
on the date of the termination of such Participant’s employment shall expire
and be forfeited as of such date.


 


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5.6           Restrictions on Option Shares.  The Option Shares shall be subject to the
restrictions on transfer as set forth in the Stockholders Agreement and may be
subject to repurchase as set forth in an Option Agreement or in any employment
agreement between the Company and the Participant.


5.7           Options Not Transferable.  Options may not be transferred other than by
will or the laws of descent and distribution and, during the lifetime of the
Participant to whom they were granted, may be exercised only by such
Participant (or, if such Participant is incapacitated, by such  Participant’s legal guardian or legal
representative); provided, that
in the event of the death of a Participant, Options which are not vested on the
date of death shall terminate and the exercise of Options granted hereunder to
such Participant, which are vested as of the date of death, may be made only by
the executor or administrator of such Participant’s estate or the Person or
Persons to whom such Participant’s rights under the Options will pass by will
or the laws of descent and distribution.


5.8           Holdback Agreement.  No holder of Option Shares will effect any
sale or distribution of Common Stock during the twenty  days prior to or the 180-day period
beginning on the effective date of any underwritten Public Offering (except as
part of such underwritten registration), unless the underwriters managing such
underwritten Public Offering otherwise agree.


5.9           Listing, Registration and Legal
Compliance.  If at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of the shares of Common Stock subject to Options upon any
securities exchange or under any state or federal securities or other law or
regulation, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition to or in connection with the granting of
Options or the purchase or issuance of shares thereunder, no Options may be
granted or 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 Committee.  The holders of such Options will supply the Company with such
certificates, representations and information as the Company shall request and
shall otherwise cooperate with the Company in obtaining such listing, registration,
qualification, consent or approval.  In
the case of officers and other persons subject to Section 16(b) of the
Securities Exchange Act of 1934, as amended, the Committee may at any time
impose any limitations upon the exercise of Options that, in the Committee’s
discretion, are necessary or desirable in order to comply with such Section
16(b) and the rules and regulations thereunder.  If the Company, as part of an offering of securities or
otherwise, finds it desirable because of federal or state regulatory
requirements to reduce the period during which any Options may be exercised,
the Committee may, in its discretion and without the Participant’s consent, so
reduce such period on not less than 15 days’ written notice to the holders
thereof.


5.10         Written Agreements.  The granting of Options hereunder shall be
evidenced by a written agreement executed by the Participant receiving such
Options and the Company (an “Option Agreement”) which shall include
relevant provisions described in this Article V and shall contain such other
provisions as approved by the Committee. 
In the event of any conflict or inconsistency between the terms set
forth in this Plan and the terms of any Option Agreement, the terms of such
Option Agreement shall control and govern the interpretation of this Plan as it


 


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relates to such
Participant and such Participant’s Options. 
In addition, each Participant shall execute a joinder to the
Stockholders Agreement in form and substance satisfactory to the Committee and
otherwise in accordance with the terms of the Stockholders Agreement, which
shall restrict the transfer of any Option Shares in the manner provided
therein.


5.11         Rights with Respect to Shares of
Common Stock.


(a)                   Unless otherwise determined
by the Committee in its discretion or as otherwise set forth in an Option
Agreement evidencing an Option, a Participant that receives such Option (and
any person succeeding to such a Participant’s rights pursuant to the Plan) shall
have no rights as a stockholder with respect to any Option Shares issuable
pursuant to any such Option until the date of the issuance of a stock
certificate to the Participant for such Option Shares upon the exercise of such
Option.


(b)                   Except as provided in Section 6.1, no adjustment shall be
made for dividends, distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities, other property or other forms
of consideration, or any combination thereof) for which the record date is
prior to the date a stock certificate is issued and described in
Section 5.11(a) above.


5.12         Securities and Tax
Law Compliance.


(a)                   Unless otherwise determined
by the Committee in its discretion, Options shall not be granted unless counsel
for the Company shall be satisfied that such issuance will qualify as
performance-based compensation for purposes of Section 162(m) of the Code
and that such issuance will be in compliance with the Code and regulations
issued thereunder.


(b)                   No shares of Common Stock,
other company securities or property, other securities or property, or other
forms of payment shall be issued hereunder with respect to any Option unless
counsel for the Company shall be satisfied that such issuance will be in
compliance with applicable federal, state, local and foreign legal, securities
exchange and other applicable requirements.


ARTICLE VI

General Provisions


6.1           Adjustments.  In the event of a reorganization,
recapitalization, stock dividend,  stock
split, combination or other change in the shares of Common Stock, the Board or
the Committee may, in order to prevent the dilution or enlargement of rights
under the Plan, adjust the terms of any Option or the number of shares of
Common Stock available for Options under the Plan and such adjustment shall be
final, conclusive and binding for all purposes of the Plan.


6.2           Organic Change.  Any recapitalization, reorganization,
reclassification, consolidation, merger, sale of all or substantially all of
the Company’s assets 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 an “Organic Change.”  Except as otherwise provided herein, after
the consummation of any Organic Change, each Option shall thereafter be


 


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exercisable for, rather than the applicable Option
Shares immediately theretofore acquirable and receivable upon exercise of such
Option, such shares of stock, securities or assets (including cash) as may be
issued or payable with respect to or in exchange for the number and class of
Option Shares immediately theretofore acquirable and receivable upon exercise
of such Option had such Organic Change not taken place.  Notwithstanding the foregoing, in the event
of any proposed Organic Change which would represent a Company Sale, the Board
may, in its discretion, terminate any or all of the Options by written notice
to the then holders of the Options, subject to the payment, upon the
consummation of such Company Sale, by the Company to the then holders of
Options of the difference, if any, between the consideration which the holders
of such Options would receive in such Organic Change for the applicable Option
Shares if such holders exercised such Options immediately prior to such Organic
Change and the exercise price of such Options.


6.3           Rights of Participants.  Nothing in the Plan shall interfere with or
limit in any way the right of the Company or any of its Subsidiaries to
terminate any Participant’s employment at any time (with or without cause), or
confer upon any Participant any right to continue in the employ of the Company
or any Subsidiary for any period of time or to continue to receive such
Participant’s current (or other) rate of compensation.  No employee shall have a right to be
selected as a Participant or, having been so selected, to be selected again as
a Participant.


6.4           Withholding Tax Requirements.  The Company shall be entitled, if necessary
or desirable, to withhold from any amounts due and payable by the Company to
any Participant (or secure payment from such Participant in lieu of
withholding) the amount of any withholding or other tax due from the Company
with respect to any amounts payable to such Participant under the Plan, and the
Company may defer such payments unless indemnified to its satisfaction.


6.5           Notification of Inquiries and
Agreements.  Each Participant and
each Permitted Option Transferee shall notify the Company in writing within 10
days after the date such Participant or Permitted Option Transferee (i) first
obtains knowledge of any Internal Revenue Service inquiry, audit, assertion,
determination, investigation, or question relating in any manner to the value
of any Options granted hereunder; (ii) includes or agrees (including, without
limitation, in any settlement, closing or other similar agreement) to include
in gross income with respect to any Option granted under this Plan (A) any
amount in excess of the amount reported on Form 1099 or Form W-2 to such
Participant by the Company, or (B) if no such Form was received, any amount;
and/or (iii) exercises, sells, disposes of, or otherwise transfers an Option
acquired pursuant to this Plan.  Upon
request, a Participant or Permitted Option Transferee shall provide to the
Company any information or document relating to any event described in the
preceding sentence which the Company (in its sole discretion) requires in order
to calculate and substantiate any change in the Company’s tax liability as a
result of such event.


6.6           Amendment, Suspension and
Termination of Plan.  The Board may
suspend or terminate the Plan or any portion thereof at any time and may amend
it from time to time in such respects as the Board may deem advisable; provided, that no such amendment shall be
made without stockholder approval to the extent such approval is required by
law, agreement or the rules of any exchange upon which the Common Stock is
listed, and no such amendment, suspension or termination shall impair the
rights of Participants under outstanding Options


 


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without the consent of the Participants affected
thereby.  No Options shall be granted
hereunder after the tenth anniversary of the adoption of the Plan.


6.7           Amendment of Outstanding Options.  The Committee may amend or modify any Option
in any manner to the extent that the Committee would have had the authority
under the Plan initially to grant such Option; provided
that, except as expressly contemplated in an Option Agreement evidencing such
Option, no such amendment or modification shall impair the rights of any
Participant under any outstanding Option without the consent of such
Participant.


6.8           Indemnification.  In addition to such other rights of
indemnification as they may have as members of the Board or the Committee, the
members of the Board and the Committee shall be indemnified by the Company
against (i) all costs and expenses reasonably incurred by them in connection
with any action, suit or proceeding to which they or any of them may be party
by reason of any action taken or failure to act under or in connection with the
Plan or any Option granted under the Plan, and (ii) all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding; provided,
that (a) any such Committee or Board member shall be entitled to the
indemnification rights set forth in this Section 6.8 only if such member acted
in good faith and in a manner that such member reasonably believed to be in,
and not opposed to, the best interests of the Company, and with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
conduct was unlawful, and (b) upon the institution of any such action, suit or
proceeding a Committee or Board member shall give the Company written notice
thereof and an opportunity to handle and defend the same before such Committee
member undertakes to handle and defend it on his own behalf.


6.9           Restricted Securities.  All Common Stock issued pursuant to the
terms of this Plan shall constitute “restricted securities,” as that term is
defined in Rule 144 promulgated by the Securities and Exchange Commission
pursuant to the Securities Act, and may not be transferred except in compliance
with the registration requirements of the Securities Act or an exemption
therefrom.


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