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EXHIBIT 10.11
AGREEMENT RELATING TO ACQUISITIONS
between
MARINEMAX, INC.
and
BRUNSWICK CORPORATION
April 28, 1998
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AGREEMENT RELATING TO ACQUISITIONS
AGREEMENT RELATING TO ACQUISITIONS dated as of the 28th day of April
1998 among MARINEMAX, INC., a Delaware corporation (the "Company"); and
BRUNSWICK CORPORATION, a Delaware corporation for itself and on behalf of its
subsidiaries and divisions including the Sea Ray Division of Brunswick
("Brunswick").
R E C I T A L S
A. The Company has completed merger transactions (the "Mergers")
involving Xxxxxxx Boat Company of Florida, Xxxxx XxxXxxxx Marine, Gulfwind
Marine, USA, Gulfwind Marine South, and Xxxxxxxx'x Marine Centers as well as
their affiliated and subsidiary companies (collectively, the "Merged Companies")
as a result of which the Merged Companies became wholly owned subsidiaries of
the Company.
B. The Merged Companies sell and service various boats manufactured by
Brunswick or subsidiaries or divisions of Brunswick ("Brunswick Affiliates"),
including Sea Ray pleasure boats, Boston Whaler fishing boats, and Baja
high-performance boats, pursuant to the Dealer Agreements.
C. The Company, Brunswick, and Sea Ray entered into a settlement
agreement dated as of March 12, 1998 (the "Settlement Agreement") pursuant to
which Brunswick and the Brunswick Affiliates consented to a change in the
ownership of each of the Merged Companies resulting from the Mergers.
D. It is the intention of the Company to close an initial public
offering of its Common Stock (the "IPO").
E. The Company's growth will be achieved both internally and through
acquisitions.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 "AGREEMENT" means this Agreement Relating to Acquisitions.
SECTION 1.2 "BRUNSWICK BOAT DEALERS" means boat dealers having dealer
agreements with Brunswick or a Brunswick Affiliate relating to Sea Ray boats.
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SECTION 1.3 "COMPANY" means MarineMax, Inc.
SECTION 1.4 "DEALER AGREEMENTS" means the agreements of even date
between the Merged Companies, Brunswick, and any Brunswick Affiliate providing
for the purchase, sale, and maintenance of boats and related marine products.
SECTION 1.5 "IPO" means the initial public offering of Common Stock of
the Company.
SECTION 1.6 "MERGERS" means the merger transactions involving the
Company, Xxxxxxx Boat Company of Florida, Xxxxx XxxXxxxx Marine, Gulfwind Marine
USA, Gulfwind Marine South, and Xxxxxxxx'x Marine Centers, and their affiliated
and subsidiary companies.
SECTION 1.7 "PERSON" means any individual, corporation, limited
liability company, partnership, joint venture, trust, unincorporated
association, or other entity.
ARTICLE II
FUTURE ACQUISITIONS
SECTION 2.1 BASE ACQUISITIONS. Subject to the procedures set forth in
Schedule A, acquisitions by the Company in any fiscal year of the Company of
Brunswick Boat Dealers with total revenue not to exceed 20% of the Company's
revenue in its previous fiscal year shall be mutually agreed upon by Brunswick
and the Company through cooperative efforts in good faith (the "Base
Acquisitions"), in each case to the extent that any such Brunswick Boat Dealer
desires to be acquired by the Company. In considering Base Acquisitions,
reasonable efforts will be made to include a balance of dealers that are
successful and those that are not. In considering Base Acquisitions, Brunswick
and the Company recognize the need to maximize the value of the stock of the
Company to its stockholders. Brunswick and the Company agree that the revenue of
the Company for the Company's newly adopted fiscal year ended September 30, 1997
shall be deemed to be $233 million. Brunswick and the Company will meet once a
year, or more frequently as they shall mutually determine, to consider proposed
Base Acquisitions with the goal of agreeing upon Base Acquisitions for the next
succeeding year. In presenting possible acquisitions to Brunswick, the Company
shall follow the procedures set forth in Schedule A to this Agreement. Brunswick
will not unreasonably withhold its consent to any Base Acquisition.
Notwithstanding the foregoing, Brunswick hereby approves and will support the
acquisition by the Company of each Brunswick Boat Dealer identified on Schedule
B and C to this Agreement to the extent that any such Brunswick Boat Dealer
desires to be acquired by the Company, provided that the acquisitions listed on
Schedule B shall not count against the 20% revenue cap.
SECTION 2.2 ADDITIONAL ACQUISITIONS. Purchases of Brunswick Boat
Dealers by the Company in addition to those in accordance with Section 2.1 will
be discussed by Brunswick and the Company at the request of either of them upon
at least 30 days prior notice to the other ("Additional Acquisitions").
Brunswick's consent to any Additional Acquisition may be granted or withheld in
Brunswick's discretion.
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SECTION 2.3 CERTAIN OTHER PROVISIONS RELATING TO THE ACQUISITIONS.
After such time, if any, that Brunswick informs the Company in writing that
Brunswick's sales of Sea Ray boats to the Company constituted 49% or more of its
sales of Sea Ray boats to all Brunswick Boat Dealers including the Company for
any fiscal year of Brunswick (the "49% Cap"), Brunswick and the Company will
negotiate in good faith the standards for acquisitions of Brunswick Boat Dealers
by the Company during the next succeeding fiscal year of Brunswick provided that
Brunswick may grant or withhold its consent to any acquisition in its sole
discretion for so long as the Company exceeds the 49% Cap. If the Company falls
under the 49% Cap, it may propose in accordance with Section 2.1 acquisitions
that fall within the 49% Cap and Brunswick's consent may not be unreasonably
withheld.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.1 ENTIRE AGREEMENT; AMENDMENT, MODIFICATION, TERMINATION.
Except for the Settlement Agreements, the Dealer Agreements, the Agreement
Relating to the Purchase of MarineMax Common Stock, the Stockholders' Agreement,
and the Governance Agreement, this Agreement contains the entire understanding
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements and conditions, express or implied, oral or written, unless
otherwise specified in this Agreement. This Agreement may be amended, modified
or terminated at any time or times only by unanimous written agreement of the
parties hereto.
SECTION 3.2 CONTROLLING LAW. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement, shall be governed
by and construed in accordance with the laws of the state of Delaware,
notwithstanding any Delaware or other conflict-of-laws rules to the contrary.
SECTION 3.3 TERMINATION. This Agreement shall terminate in the event
the Dealer Agreements have been terminated by Brunswick due to the actions of
the Company and its Affiliates.
SECTION 3.4 NOTICES. Unless otherwise specifically stated herein, all
notices, requests, demands, and other communications required or permitted under
this Agreement shall be in writing and shall be deemed to have been duly given,
made, and received when delivered against receipt, 12 hours after being sent by
facsimile, or 72 hours after being sent by registered or certified mail, postage
prepaid, addressed as set forth below:
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(i) If to the Company:
MarineMax, Inc.
Attention: Xx. Xxxxxxx X. XxXxxx Xx.
00000 XX Xxxxx #000
Xxxxxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx
& Xxxxxxxx, P.A.
Attention: Xxxxxx X. Xxxx, Esquire
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(ii) If to Brunswick:
Brunswick Corporation
Attention: Mr. Xxxxx Xxxxxx
0 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Brunswick Corporation
Attention: General Counsel
0 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Any party may alter the address to which communications or copies are
to be sent by giving notice of that change of address in conformity with the
provisions of this Section for the giving of notice.
SECTION 3.5 BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. Except to the
extent set forth herein, this Agreement shall be binding upon and inure to the
benefit of the parties hereto
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and their respective heirs, personal representatives, successors, and assigns,
except that no party may assign or transfer his, her, or its rights or
obligations under this Agreement without the prior written consent of the other
parties hereto.
SECTION 3.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party hereto whose signature appears hereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
SECTION 3.7 PROVISIONS SEVERABLE. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Further, if a court of competent jurisdiction determines that any provision of
this Agreement is invalid or unenforceable as written, such court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties hereto.
SECTION 3.8 COUNTING. In computing the number of days or hours for
purposes of this Agreement, all days and hours shall be counted, including
Saturdays, Sundays and holidays; provided, however, that if the final day or
hour of any time period falls on a Saturday, Sunday or day that is a legal
holiday in the state of Delaware, then the final day or hour shall be deemed to
be the next day or hour that is not, or does not fall on, a Saturday, Sunday or
day that is a legal holiday in the state of Delaware.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
MARINEMAX, INC.
By: /s/ Xxxxxxx X. XxXxxx, Xx.
Name: Xxxxxxx X. XxXxxx, Xx.
Title: Chairman CEO
BRUNSWICK CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chairman & Chief Executive Officer
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SCHEDULE A
1. Brunswick will not be asked to review a candidate for
acquisition (a "Candidate") unless and until such Candidate has agreed to
Brunswick and any Applicable Brunswick Affiliate (collectively, the "Brunswick
Grantor") being informed of such possible acquisition.
2. The Brunswick Grantor and the Company will be provided with
financial statements of the Candidate prepared by the Candidate, and will
discuss expected future financial performance and the Company's business plans
for the Candidate.
3. The Candidate, the Company or a wholly-owned subsidiary of
the Company, as applicable, will agree to enter into a Dealer Agreement
substantially similar to the existing Dealer Agreements.
4. In reviewing Candidates for Base Acquisitions, the Brunswick
Grantor may consider any relevant facts and circumstances (taking into
consideration the Candidate's prospects under Company ownership), including but
not limited to the Candidate's qualifications and abilities to perform the
Dealer Agreement obligations, the effects that approval would have on the
resulting territory configuration and adjacent or other dealer sales, and the
Company's capabilities to successfully operate the dealership.
5. The Brunswick Grantor shall not unreasonably withhold its
consent to a Base Acquisition; provided that in making its decision, any of the
following circumstances, without limitation, shall be deemed to be reasonable
grounds to withhold consent.
(A) The offer or entering into of the applicable
Dealer Agreement or the resulting
relationship would require compliance by the
Brunswick Grantor with any applicable
federal, state or local franchise disclosure
or business opportunity law, regulation,
rule or order;
(B) The Candidate does not submit the
information and data requested by the
Brunswick Grantor;
(C) The approval or entering into of the
applicable Dealer Agreement would be
contrary to or cause a breach or default of
any contractual rights granted by the
Brunswick Grantor to a third party, or would
violate or be contrary to any applicable
federal, state or local law, regulation,
rule or order;
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(D) The Brunswick Grantor is enjoined from the
entering into of the applicable Dealer
Agreement, or is threatened with litigation
or an administrative or other proceeding in
which it could be asserted that Brunswick is
prohibited by law, contract or otherwise
from the entering into of such a Dealer
Agreement; or
(E) The products listed on the applicable Dealer
Agreement are no longer sold by Brunswick,
including but not limited to instances where
the assets or business related to such
products has been sold or transferred to a
nonaffiliated third party.
6. The purchase and sale agreement will include language that
it is subject to the consent of the Brunswick Grantor, which shall be deemed
given upon approval of the Acquisition, subject to the original information
given to the Brunswick Grantor being accurate at the time of acquisition.
7. Any approval given with respect to a Base Acquisition shall
terminate if the Base Acquisition is not completed within six months from the
date that approval is given.
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SCHEDULE B
Xxxxxxx Tire & Marine, Inc.
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SCHEDULE C
Xxxxxxx Marine
Xxxxxxx Xxx of North Carolina
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