RESTATED AGREEMENT RELATING TO THE PURCHASE
OF MARINEMAX COMMON STOCK
between
MARINEMAX, INC.
and
BRUNSWICK CORPORATION
April 28, 1998
RESTATED AGREEMENT RELATING TO THE PURCHASE
OF MARINEMAX COMMON STOCK
RESTATED AGREEMENT RELATING TO THE PURCHASE OF MARINEMAX COMMON STOCK
dated as of the 28th day of April 1998 between MARINEMAX, INC., a Delaware
corporation ("MarineMax"); and BRUNSWICK CORPORATION, a Delaware
corporation for itself and on behalf of its subsidiaries and affiliates
including the Sea Ray Division of Brunswick ("Brunswick").
R E C I T A L S
A. MarineMax 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 MarineMax.
B. The Merged Companies sell and service various boats
manufactured by Brunswick or subsidiaries or divisions of Brunswick
("Brunswick Affiliates," which includes the Sea Ray Division of Brunswick),
including Sea Ray pleasure boats, Boston Whaler fishing boats, and Baja
high-performance boats pursuant to various dealer agreements of even date
(the "Dealer Agreements") between the Merged Companies and the relevant
Brunswick Affiliates.
C. MarineMax and Brunswick 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 MarineMax to close an initial public
offering of its Common Stock (the "IPO") as soon as practicable.
E. MarineMax intends that its growth will be achieved both
internally and through acquisitions.
F. MarineMax and Brunswick desire to reach an understanding
relating to a long-term relationship between MarineMax on the one hand and
Brunswick and the Brunswick Affiliates including the Sea Ray Division on
the other hand, including long-term dealer agreements, an ownership
interest by Brunswick in MarineMax, provisions relating to the purchase and
sale of MarineMax Common Stock in certain circumstances, and provisions
relating to the governance of MarineMax.
G. This Agreement sets forth the terms under which Brunswick will
have the opportunity to acquire an ownership interest in MarineMax.
A G R E E M E N T
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1. APPROVAL OF THE IPO. Brunswick hereby agrees that the IPO
will not violate the terms of the Dealer Agreements.
2. PURCHASE BY BRUNSWICK OF INITIAL PUBLIC OFFERING STOCK OF
MARINEMAX. MarineMax shall afford Brunswick, on an all or none basis, the
opportunity to purchase shares of the Common Stock of MarineMax that will
constitute 14.1% of the issued and outstanding Common Stock of MarineMax after
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giving effect to the IPO including any overallotment option granted to the
underwriters of the IPO (the "Initial Ownership Percentage"). As soon as
practicable after the date of this Agreement, Brunswick shall inform
MarineMax whether or not it intends to purchase such shares subject to the
early termination or expiration of the pre-merger notification period under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, the effectiveness
of the registration statement filed with the Securities and Exchange
Commission relating to the IPO including the shares to be issued to
Brunswick (the "Registration Statement"), and the delivery of a final
prospectus covering the shares to be issued to Brunswick, but such
indication shall not constitute a legal obligation of Brunswick to purchase
the shares and MarineMax shall have no recourse against Brunswick if
Brunswick does not purchase the shares. If Brunswick determines to purchase
the shares, Brunswick shall purchase the shares for cash contemporaneously
with the initial closing of the IPO and the closing of any overallotment
options granted to the underwriters of the IPO. The purchase will be at the
IPO price, less underwriting discounts and commissions. The shares to be
issued to Brunswick may be issued under a registration statement different
from the Registration Statement covering the shares issued to the public in
the IPO in order to reflect the different manner of distribution (together,
the "Registration Statements"). If Brunswick determines to purchase the
shares following the effectiveness of the Registration Statement and to the
extent permitted by applicable law and regulations, Brunswick will execute
standard agreements reasonably acceptable to Brunswick confirming its
suitability under applicable securities laws to make the purchase, agreeing
to a six-month lockup for any shares purchased by it, and providing to
MarineMax and MarineMax's underwriters with Brunswick's commitment to
purchase such shares. If Brunswick does not purchase the Initial Ownership
Percentage as contemplated hereby, Brunswick shall not purchase any shares
of Common Stock of MarineMax for at least six months after the completion
of the IPO. Any commitment by Brunswick to purchase shares shall expire on
the earlier of (a) the completion of the IPO, (b) the withdrawal of the
Registration Statement, (c) the occurrence of a material adverse change in
the business and financial condition of MarineMax since the date of such
Registration Statement, or (d) six months from the date of the commitment.
3. INDEMNIFICATION OF BRUNSWICK. MarineMax hereby indemnifies and
holds harmless Brunswick and each person who controls Brunswick (within the
meaning of Section 15 of the Securities Act of 1933) against any and all
losses, claims, damages, liabilities, and expenses (including reasonable
costs of investigation and counsel fees) caused by (a) any untrue statement
of a material fact contained in the Registration Statements in the form
declared effective or in any amendment or supplement thereto except for
information relating to Brunswick furnished in writing by Brunswick
expressly for use in connection with the Registration Statements or in any
amendment or supplement thereto, or (b) any omission to state in the
Registration Statements any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading, excepting such information
furnished in writing by Brunswick.
4. GENERAL.
(a) NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed given when delivered
against receipt, or upon the receipt of a facsimile copy, or three days
after being deposited in the United States mail, postage prepaid,
registered or certified mail, addressed as follows:
If to the Company, to: With a copy to:
MarineMax, Inc. X'Xxxxxx, Cavanagh, Anderson,
Attn: Xx. Xxxxxxx X. XxXxxx Xx. Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
00000 XX Xxxxx #000 Xxxx: Xxxxxx X. Xxxx, Esq.
Xxxxxxxxxx, Xxxxxxx 00000 One East Camelback Road, Suite 1100
Tel: 000-000-0000 Xxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000
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If to Brunswick, to: With a copy to:
Brunswick Corporation Brunswick Corporation
Attn: Mr. Xxxxx Xxxxxx Attn: General Counsel
0 Xxxxx Xxxxx Xxxxx 0 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000 Xxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be
designated by notice given in accordance with the provisions of this
Section.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
assigns, legal representatives, executors, heirs and successors; provided,
however, that no party hereto shall have the right to assign any right
hereunder or delegate any obligation hereunder, in whole or in part,
without the prior written consent of the other parties hereto, and any
attempt to do so shall be void.
(c) AMENDMENT, MODIFICATION, OR WAIVER. No amendment,
modification, or waiver of any condition, provision, or term of this
Agreement shall be valid or of any effect unless made in writing, signed by
the party or parties to be bound, and specifying with particularity the
nature and extent of such amendment, modification, or waiver. Failure on
the part of any party to complain of any act or failure to act of another
party or to declare another party in default, irrespective of how long such
failure continues, shall not constitute a waiver by such party of its
rights hereunder. Any waiver by any party of any default of another party
shall not affect or impair any right arising from any other or subsequent
default. Nothing herein shall limit the remedies and rights of the parties
hereto under and pursuant to this Agreement.
(d) SEVERABLE PROVISIONS; ENFORCEABILITY. Each provision of this
Agreement is intended to be severable. If any provision hereof shall be
declared by a court of competent jurisdiction to be illegal, unenforceable,
or invalid for any reason whatsoever, such illegality, unenforceability, or
invalidity shall not affect the validity of the remainder of this
Agreement.
(e) ENTIRE AGREEMENT. Except for the Dealer Agreements, the
Stockholders' Agreement, the Governance Agreement, and the Agreement
Relating to Acquisitions, this Agreement, including the exhibits and
schedules hereto, contains the entire understanding and agreement among the
parties hereto with respect to the subject matter hereof, and supersedes
all prior agreements and understandings, express or implied, oral or
written, among the parties with respect to such subject matter. The express
terms of this Agreement shall control and supersede any course of
performance or usage of the trade inconsistent with any of the terms
hereof. Each of the exhibits and schedules hereto is incorporated herein by
this reference and constitutes a part of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, and all of which together shall
constitute one and the same agreement. This Agreement shall become binding
when one or more counterparts have been signed by each of the parties
hereto and delivered to the other parties hereto.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the state of
Delaware, regardless of any applicable conflict-of-law rules to the
contrary.
(h) CONSTRUCTION. The parties hereto acknowledge that each party
was represented by legal counsel (or had the opportunity to be represented
by legal counsel) in connection with this Agreement and that each of them
and their counsel have reviewed and revised this Agreement, or have had an
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opportunity to do so, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or any
exhibits hereto or thereto.
(i) ADDITIONAL ACTIONS. Each party hereto agrees to do all acts
and things and to make, execute, and deliver such written instruments and
documents as shall from time to time be reasonably required to carry out
the terms of this Agreement.
(j) REMEDIES CUMULATIVE. The remedies of the parties hereto under
this Agreement are cumulative and shall not exclude any other remedies to
which any party may be lawfully entitled.
(k) AUTHORITY. Each individual signing below personally represents
that he or she has full authority to bind the party or parties on whose
behalf he or she is signing.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
MARINEMAX, INC.
By: /s/
Name: _____________________________
Title: ____________________________
BRUNSWICK CORPORATION
By: /s/
Name: _____________________________
Title: ____________________________
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