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EXHIBIT 10.1.g
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AGREEMENT OF MERGER
AND
PLAN OF REORGANIZATION
DATED AS OF THE _____ DAY OF _______________, 1998
BY AND AMONG
MARINEMAX, INC.,
XXXXXXX ACQUISITION CORP.
(A SUBSIDIARY OF MARINEMAX, INC.),
XXXXXXX MARINE, INC.
AND
THE STOCKHOLDERS NAMED HEREIN
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TABLE OF CONTENTS
Page
1. THE MERGER............................................................................................. 4
1.1 Delivery of Filing of Articles of Merger............................................. 4
1.2 Effective Time....................................................................... 4
1.3 Articles/Certificate of Incorporation, Bylaws and Board of Directors of
Surviving Corporation................................................................ 4
1.4 Certain Information With Respect to the Capital Stock of COMPANY,
MARINEMAX and NEWCO........................................................................... 5
1.5 Effect of Merger..................................................................... 5
1.6 Accounting Treatment................................................................. 6
2. CONVERSION AND CANCELLATION OF STOCK.......................................................... 6
2.1 Manner of Conversion and Cancellation................................................ 6
3. DELIVERY OF MERGER CONSIDERATION.............................................................. 7
3.1 Time and Manner of Delivery.......................................................... 7
3.2 Surrender of COMPANY Stock........................................................... 7
3.3 Escrow of Portion of MARINEMAX Stock................................................. 7
4. CLOSING....................................................................................... 8
5. REPRESENTATIONS AND WARRANTIES OF COMPANY AND THE
STOCKHOLDERS.................................................................................. 8
(A) Representations and Warranties of COMPANY and the
STOCKHOLDERS......................................................................... 8
5.1 Due Organization..................................................................... 9
5.2 Authorization........................................................................ 9
5.3 Capital Stock of COMPANY............................................................. 9
5.4 Transactions in Capital Stock, Organization Accounting............................... 10
5.5 No Bonus Shares...................................................................... 10
5.6 Subsidiaries and Affiliates.......................................................... 10
5.7 Predecessor Status; Etc.............................................................. 10
5.8 Spin-off by COMPANY.................................................................. 10
5.9 Financial Statements................................................................. 10
5.10 Liabilities and Obligations.......................................................... 11
5.11 Accounts and Notes Receivable........................................................ 12
5.12 Permits and Intangibles.............................................................. 12
5.13 Environmental Matters................................................................ 12
5.14 Personal Property.................................................................... 13
5.15 Significant Customers; Material Contracts and Commitments............................ 14
5.16 Real Property........................................................................ 14
5.17 Insurance............................................................................ 16
5.18 Compensation; Employment Agreements; Organized Labor Matters......................... 16
5.19 Employee Plans....................................................................... 16
5.20 Compliance with ERISA................................................................ 17
5.21 Conformity with Law; Litigation...................................................... 18
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5.22 Taxes................................................................................ 19
5.23 No Violations........................................................................ 19
5.24 Government Contracts................................................................. 20
5.25 Absence of Changes................................................................... 20
5.26 Deposit Accounts; Powers of Attorney................................................. 21
5.27 Validity of Obligations.............................................................. 21
5.28 Relations with Governments........................................................... 22
5.29 Prohibited Activities................................................................ 22
5.30 Disclosure........................................................................... 22
(B) Representations and Warranties of STOCKHOLDERS....................................... 23
5.31 Authority: Ownership................................................................. 23
5.32 Preemptive Rights.................................................................... 23
5.33 No Intention to Dispose of MARINEMAX Stock........................................... 23
6. REPRESENTATIONS OF MARINEMAX AND NEWCO........................................................ 23
6.1 Due Organization..................................................................... 23
6.2 Authorization........................................................................ 24
6.3 Capital Stock of MARINEMAX and NEWCO................................................. 24
6.4 Transactions in Capital Stock; Organization Accounting............................... 24
6.5 [Intentionally Deleted].............................................................. 24
6.6 Financial Statements................................................................. 24
6.7 [Intentionally Deleted].............................................................. 24
6.8 Validity of Obligations.............................................................. 24
6.9 MARINEMAX Stock...................................................................... 24
6.10 Disclosure........................................................................... 25
7. COVENANTS PRIOR TO CLOSING.................................................................... 25
7.2 Conduct of Business Pending the Merger............................................... 25
7.3 Prohibited Activities................................................................ 26
7.4 [Intentionally Deleted].............................................................. 27
7.5 [Intentionally Deleted.]............................................................. 27
7.6 Agreements........................................................................... 28
7.7 Notification of Certain Matters...................................................... 28
7.8 Delivery of Schedules; Amendment of Schedules........................................ 28
7.9 [Intentionally Deleted].............................................................. 29
7.10 Final Financial Statements........................................................... 29
7.11 Further Assurances................................................................... 29
7.12 [Intentionally Deleted].............................................................. 29
7.13 Compliance with the Xxxx-Xxxxx Act................................................... 29
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE STOCKHOLDERS
AND COMPANY................................................................................... 30
8.1 Representations and Warranties; Performance of Obligations........................... 30
8.2 Satisfaction......................................................................... 30
8.3 No Litigation........................................................................ 30
8.4 Real Estate Leases................................................................... 30
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8.5 Consents and Approvals............................................................... 31
8.6 Good Standing Certificates........................................................... 31
8.7 No Material Adverse Change........................................................... 31
8.8 [Intentionally Deleted].............................................................. 31
8.9 Secretary's Certificate.............................................................. 31
8.10 Employment Agreements................................................................ 31
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF MARINEMAX AND
NEWCO......................................................................................... 31
9.1 Representations and Warranties; Performance of Obligations........................... 32
9.2 No Litigation........................................................................ 32
9.3 Secretary's Certificate.............................................................. 32
9.4 No Material Adverse Effect........................................................... 32
9.5 STOCKHOLDERS' Release................................................................ 32
9.6 Satisfaction......................................................................... 33
9.7 Real Estate Leases................................................................... 33
9.8 Consents and Approvals............................................................... 33
9.9 Good Standing Certificates........................................................... 33
9.10 STOCKHOLDERS' Guarantees............................................................. 33
9.11 Employment Agreements................................................................ 33
9.12 Specific Indemnification Agreement................................................... 33
9.13 [Intentionally Deleted].............................................................. 34
9.14 Investment Agreements................................................................ 34
10. COVENANTS OF MARINEMAX AND THE STOCKHOLDERS AFTER
CLOSING....................................................................................... 34
10.1 Assumption of STOCKHOLDERS' Guarantees............................................... 34
10.2 Preservation of Tax Treatment........................................................ 34
10.3 Preparation and Filing of Tax Returns................................................ 34
10.4 [Intentionally Deleted].............................................................. 35
10.5 Preservation of Employee Benefit Plans............................................... 35
10.6 Dividends............................................................................ 35
10.7 [Intentionally Deleted].............................................................. 35
11. INDEMNIFICATION............................................................................... 35
11.1 General Indemnification by the STOCKHOLDERS.......................................... 35
11.2 Indemnification by MARINEMAX......................................................... 36
11.3 Third Person Claims.................................................................. 36
11.4 Limitations on Indemnification....................................................... 37
.............................................................................................. 38
11.5 Environmental Indemnification by the STOCKHOLDERS.................................... 38
12. TERMINATION OF AGREEMENT...................................................................... 40
12.1 Termination.......................................................................... 40
12.2 Liabilities in Event of Termination.................................................. 40
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13. NONCOMPETITION................................................................................ 40
13.1 Prohibited Activities................................................................ 40
13.2 Damages.............................................................................. 41
13.3 Reasonable Restraint................................................................. 42
13.4 Severability; Reformation............................................................ 42
13.5 Independent Covenant................................................................. 42
13.6 Materiality.......................................................................... 42
14. NONDISCLOSURE OF CONFIDENTIAL INFORMATION..................................................... 42
14.1 STOCKHOLDERS......................................................................... 42
14.2 MARINEMAX AND NEWCO.................................................................. 43
14.3 Damages.............................................................................. 44
14.4 Survival............................................................................. 44
15. [Intentionally Deleted]. .................................................................... 44
16. FEDERAL SECURITIES ACT REPRESENTATIONS........................................................ 44
16.1 Compliance with Law......................................................... 44
16.2 Economic Risk; Sophistication........................................................ 44
17. GENERAL....................................................................................... 45
17.1 Cooperation.......................................................................... 45
17.2 Successors and Assigns............................................................... 45
17.3 Entire Agreement..................................................................... 45
17.4 Counterparts......................................................................... 45
17.5 Brokers and Agents................................................................... 45
17.6 Expenses............................................................................. 46
17.7 Notices.............................................................................. 46
17.8 Governing Law........................................................................ 47
17.9 Survival of Representations and Warranties........................................... 47
17.10 Exercise of Rights and Remedies...................................................... 47
17.11 Time................................................................................. 48
17.12 Reformation and Severability......................................................... 48
17.13 Remedies Cumulative.................................................................. 48
17.14 Captions............................................................................. 48
17.15 Amendments and Waivers............................................................... 48
17.16 Execution by Facsimile; Delivery of Original Signed Agreement........................ 48
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AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
THIS AGREEMENT OF MERGER AND PLAN OF REORGANIZATION (this "Agreement")
is made as of the _____ day of __________________, 1998, by and among MARINEMAX,
INC., a Delaware corporation ("MARINEMAX"), XXXXXXX ACQUISITION CORP., a
Delaware corporation ("NEWCO"), XXXXXXX MARINE, INC., a Georgia corporation (the
"COMPANY"), and XXXX XXXXXX XXXXXXX ("X.X. Xxxxxxx"), XXXXXX X. XXXXXXX ("X.X.
Xxxxxxx") and XXX X. XXXXXXX ("X.X. Xxxxxxx")(X.X. Xxxxxxx, X.X. Xxxxxxx and
X.X. Xxxxxxx may be referred to individually herein as a "STOCKHOLDER" and
collectively as the "STOCKHOLDERS").
WHEREAS, NEWCO is a corporation duly organized and existing under the
laws of the State of Delaware, having been incorporated solely for the purpose
of completing the transactions set forth herein, and is a wholly-owned
subsidiary of MARINEMAX.
WHEREAS, the respective Boards of Directors of NEWCO and COMPANY (which
together are hereinafter collectively referred to as "Constituent Corporations")
deem it advisable and in the best interests of the Constituent Corporations and
their respective stockholders that NEWCO merge with and into COMPANY pursuant to
this Agreement and the applicable provisions of the laws of the States of
Delaware and Georgia;
WHEREAS, the STOCKHOLDERS and Board of Directors of COMPANY and the
stockholders and Board of Directors of NEWCO have approved and adopted this
Agreement, and intend it to be a plan of reorganization pursuant to Sections
368(a)(1)(A) and Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended (the "Code"), and intend the reorganization to be accounted for as a
"purchase" for accounting purposes;
WHEREAS, unless the context otherwise requires, capitalized terms used
in this Agreement or in any schedule attached hereto and not otherwise defined
shall have the following meanings for all purposes of this Agreement:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Acquired Party(ies)" mean(s) the COMPANY.
"Acquisition Company" shall mean NEWCO.
"Affiliates" has the meaning set forth in Section 5.6.
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"Articles of Merger" shall mean those Articles or Certificates of
Merger with respect to the Merger substantially in the forms attached as Annex I
hereto or with such other changes therein as may be required by applicable state
laws.
"Balance Sheet Date" means December 31, 1997.
"Charter Documents" has the meaning set forth in Section 5.1.
"Closing" has the meaning set forth in Section 4.
"Closing Date" has the meaning set forth in Section 4.
"Code" shall have the meaning set forth in the third recital of this
Agreement.
"COMPANY" has the meaning set forth in the first paragraph of this
Agreement.
"COMPANY Financial Statements" has the meaning set forth in Section
5.9.
"COMPANY Stock" has the meaning set forth in Section 2.1.
"Constituent Corporations" has the meaning set forth in the second
recital of this Agreement.
"Delaware GCL" means the Delaware General Corporation Law, as it may be
amended from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Effective Time" shall mean the time as of which the Merger becomes
effective.
"Environmental Laws" has the meaning set forth in Section 5.13.
"Escrow and Security Agreement" has the meaning set forth in Section
3.3.
"Final COMPANY Financial Statements" has the meaning set forth in
Section 7.10.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"Xxxx-Xxxxx Act"" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976.
"Indemnification Deductible" has the meaning set forth in Section 11.4.
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"Indemnified Party" has the meaning set forth in Section 11.3.
"Indemnifying Party" has the meaning set forth in Section 11.3.
"IRS" shall mean the Internal Revenue Service.
"Lease Agreements" has the meaning set forth in Section 8.4.
"MARINEMAX" has the meaning set forth in the first paragraph of this
Agreement.
"MARINEMAX Charter Documents" has the meaning set forth in Section 6.1.
"MARINEMAX Stock" means the common stock, par value $.001 per share, of
MARINEMAX.
"Material Adverse Effect" has the meaning set forth in Section 5.1.
"Material Documents" has the meaning set forth in Section 5.23.
"Merger" means the merger of NEWCO with and into COMPANY pursuant to
this Agreement and the applicable provisions of the laws of the State of
Delaware and the State of Georgia.
"NEWCO" has the meaning set forth in the first paragraph of this
Agreement.
"NEWCO Stock" means the common stock, par value $.001 per share, of
NEWCO.
"Qualified Plans" has the meaning set forth in Section 5.20.
"Restricted Period" means that period of time defined in Section 13.1.
"Returns" means any returns, reports or statements (including, without
limitation, any information returns) required to be filed for purposes of a
particular Tax.
"Schedules" means the schedules attached hereto which reference the
relevant sections of this Agreement, on which parties hereto disclose
information as part of their respective representations, warranties and
covenants.
"SEC" means the United States Securities and Exchange Commission.
"Statutory Liens" has the meaning set forth in Section 7.3.
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"STOCKHOLDERS" has the meaning set forth in the first paragraph of this
Agreement.
"Surviving Corporation" shall mean COMPANY as the surviving party in
the Merger.
"Tax" or "Taxes" means all federal, state, local or foreign net or
gross income, gross receipts, net proceeds, sales, use, ad valorem, value added,
franchise, bank shares, withholding, payroll, employment, excise, property,
deed, stamp, alternative or add on minimum tax, or other taxes, assessments,
duties, fees, levies or other governmental charges of any nature whatever,
whether disputed or not, together with any interest, penalties, additions to tax
or additional amounts with respect thereto.
"Territory" has the meaning set forth in Section 13.1.
"Third Person" has the meaning set forth in Section 11.3.
"Transfer Taxes" has the meaning set forth in Section 17.6.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
1. THE MERGER
1.1 DELIVERY OF FILING OF ARTICLES OF MERGER. The Constituent
Corporations will cause the Articles of Merger to be signed, verified and filed
with the Secretary of State of the State of Delaware and the Secretary of State
of the State of Georgia and stamped receipt copies of each such filing to be
delivered to MARINEMAX at the Effective Time.
1.2 EFFECTIVE TIME. At the Effective Time, NEWCO shall be merged with
and into COMPANY in accordance with the Articles of Merger, the separate
existence of NEWCO shall cease, COMPANY shall be the surviving party in the
Merger. The Merger will be effected in a single transaction.
1.3 ARTICLES/CERTIFICATE OF INCORPORATION, BYLAWS AND BOARD OF
DIRECTORS OF SURVIVING CORPORATION. At the Effective Time:
(i) the Articles/Certificate of Incorporation of COMPANY then
in effect shall be the Articles/Certificate of Incorporation of the Surviving
Corporation until changed as provided by applicable law;
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(ii) the Bylaws of COMPANY then in effect shall become the
Bylaws of the Surviving Corporation; and subsequent to the Effective Time, such
Bylaws shall be the Bylaws of the Surviving Corporation until they shall
thereafter be duly amended;
(iii) the Board of Directors of the Surviving Corporation
shall consist of the persons who are on the Board of Directors of COMPANY
immediately prior to the Effective Time, provided that Xxxxxxx X. XxXxxx, Xx.
shall be elected as a director of the Surviving Corporation effective as of the
Effective Time; the Board of Directors of the Surviving Corporation shall hold
office subject to the provisions of the laws of the State of Georgia and of the
Articles/Certificate of Incorporation and Bylaws of the Surviving Corporation;
and
(iv) the officers of COMPANY immediately prior to the
Effective Time shall continue as the officers of the Surviving Corporation in
the same capacity or capacities, and effective at the Effective Time Xxxxxxx X.
XxXxxx, Xx. shall be appointed as Vice President of the Surviving Corporation
and Xxxxxxx X. XxXxxx, as Assistant Secretary of the Surviving Corporation, each
of such officers to serve, subject to the provisions of the Articles/Certificate
of Incorporation and Bylaws of the Surviving Corporation, until his successor is
duly elected and qualified.
1.4 CERTAIN INFORMATION WITH RESPECT TO THE CAPITAL STOCK OF COMPANY,
MARINEMAX AND NEWCO. The respective designations and numbers of outstanding
shares and voting rights of each class of outstanding capital stock of COMPANY,
MARINEMAX and NEWCO as of the date of this Agreement are as follows:
(i) as of the date of this Agreement, the authorized and
outstanding capital stock of COMPANY is as set forth on Schedule 5.3 hereto;
(ii) immediately prior to the Effective Time, the authorized
capital stock of MARINEMAX will consist of Forty Million (40,000,000) shares of
MARINEMAX Stock, and Five Million (5,000,000) shares of preferred stock, par
value $.001 per share, of which the number of issued and outstanding shares is
set forth on Schedule 6.3 hereof.
(iii) as of the date of this Agreement, the authorized capital
stock of NEWCO consists of One Thousand (1,000) shares of NEWCO Stock, of which
One Hundred (100) shares are issued and outstanding.
1.5 EFFECT OF MERGER. At the Effective Time, the effect of the Merger
shall be as provided in the applicable provisions of the Delaware GCL and the
Georgia Business Corporation Code of the State of Georgia. Except as herein
specifically set forth, the identity, existence, purposes, powers, objects,
franchises, privileges, rights and immunities of COMPANY shall continue
unaffected and unimpaired by the Merger and the corporate franchises, existence
and rights of NEWCO shall be merged with and into COMPANY, and
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COMPANY, as the Surviving Corporation, shall be fully vested therewith. At the
Effective Time, the separate existence of NEWCO shall cease and, in accordance
with the terms of this Agreement, the Surviving Corporation shall possess all of
the rights, privileges, immunities and franchises, of a public, as well as of a
private, nature, and all property, real, personal and mixed, and all debts due
on all accounts whatsoever, including, without limitation, subscriptions to
shares, and all taxes, including those due and owing and those accrued, and all
other choses in action, and all and every other interest of or belonging to or
due to COMPANY, and NEWCO shall be taken and deemed to be transferred to, and
vested in, the Surviving Corporation without further act or deed; and all of the
respective properties, rights and privileges, powers and franchises and all and
every other interest of COMPANY and NEWCO shall be thereafter be the property of
the Surviving Corporation as they were of COMPANY and NEWCO prior to the Merger;
the title to any real estate, or interest therein, whether by deed or otherwise,
under the laws of the state of incorporation vested in COMPANY and NEWCO, shall
not revert or be in any way impaired by reason of the Merger; and the assets,
liabilities, reserves, and accounts of COMPANY shall be taken up on the books of
the Surviving Corporation at the amounts at which they respectively were carried
on the books of COMPANY, subject to such adjustments as may be appropriate in
giving effect to the Merger and the accounting for the Merger as a purchase
transaction. Except as otherwise provided herein, the Surviving Corporation
shall thenceforth be responsible and liable for all the liabilities and
obligations of COMPANY and NEWCO and any claim existing, or action or proceeding
pending, by or against COMPANY or NEWCO may be prosecuted as if the Merger had
not taken place, or the Surviving Corporation may be substituted in their place.
Neither the rights of creditors nor any liens upon the property of COMPANY or
NEWCO shall be impaired by the Merger, and all debts, liabilities and duties of
COMPANY and NEWCO shall attach to the Surviving Corporation, and may be enforced
against such Surviving Corporation to the same extent as if said debts,
liabilities and duties had been incurred or contracted by such Surviving
Corporation. The separate corporate existence of any direct or indirect
subsidiary of Company existing prior to the Merger shall continue unaffected by
the Merger, and such subsidiaries shall be subsidiaries of the Surviving
Corporation at the Effective Time.
1.6 ACCOUNTING TREATMENT. The Merger shall be accounted for as a
purchase, in accordance with GAAP and the rules and regulations of the SEC.
2. CONVERSION AND CANCELLATION OF STOCK
2.1 MANNER OF CONVERSION AND CANCELLATION. The manner of converting the
shares of the outstanding capital stock of COMPANY (the "COMPANY Stock"), and
the cancellation of the NEWCO Stock, issued and outstanding immediately prior to
the Effective Time, respectively, shall be as follows:
As of the Effective Time:
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(i) all of the shares of COMPANY Stock issued and outstanding
immediately prior to the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, automatically shall be deemed to
represent the right to receive the number of shares of MARINEMAX Stock set forth
on Annex II hereto with respect to such holder;
(ii) all shares of COMPANY Stock that are held by COMPANY as
treasury stock shall be canceled and retired and no shares of MARINEMAX Stock or
other consideration shall be delivered or paid in exchange therefor; and
(iii) each share of NEWCO Stock issued and outstanding
immediately prior to the Effective Time, shall, by virtue of the Merger and
without any action on the part of MARINEMAX, automatically be cancelled.
All MARINEMAX Stock received by the STOCKHOLDERS pursuant to this
Agreement shall, except for restrictions on resale or transfer described in
Section 16 hereof have the same rights as all the other shares of outstanding
MARINEMAX Stock by reason of the provisions of the Certificate of Incorporation
of MARINEMAX or as otherwise provided by the Delaware GCL. All voting rights of
such MARINEMAX Stock received by the STOCKHOLDERS shall be fully exercisable by
the STOCKHOLDERS and the STOCKHOLDERS shall not be deprived nor restricted in
exercising those rights.
3. DELIVERY OF MERGER CONSIDERATION
3.1 TIME AND MANNER OF DELIVERY. At the Closing, or as soon thereafter
as reasonably practicable, but in no event more than Fifteen (15) days after the
Closing, the STOCKHOLDERS shall receive the respective number of shares of
MARINEMAX Stock as set forth on Annex II hereto; provided, however, that the
STOCKHOLDERS shall have previously surrendered all of COMPANY Stock to MARINEMAX
as provided in Section 3.2 below.
3.2 SURRENDER OF COMPANY STOCK. The STOCKHOLDERS shall deliver to
MARINEMAX at the Closing the certificates representing COMPANY Stock, duly
endorsed in-blank by the STOCKHOLDERS, or accompanied by in-blank stock powers,
and with all necessary transfer tax and other revenue stamps, pursuant to
applicable law, acquired at the STOCKHOLDERS' expense, affixed and canceled,
such COMPANY Stock to be free and clear of all liens, claims, rights, charges
and encumbrances of every nature whatsoever. The STOCKHOLDERS agree promptly to
cure any deficiencies with respect to the endorsement of the stock certificates
or other documents of conveyance with respect to such COMPANY Stock or with
respect to the stock powers accompanying the COMPANY Stock.
3.3 ESCROW OF PORTION OF MARINEMAX STOCK. At the Closing, each of the
STOCKHOLDERS agrees to deliver or cause to be delivered into escrow for a period
of one (1) year following the Effective Time an aggregate of ten percent (10%)
of the MARINEMAX
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Stock delivered to each such STOCKHOLDER pursuant to this Agreement for purposes
of securing the obligations, representations and warranties of the STOCKHOLDERS
arising under this Agreement and all documents executed in connection herewith,
such escrow to be governed by an escrow and security agreement in the form
attached hereto as ANNEX III (the "Escrow and Security Agreement"). STOCKHOLDERS
each agree to execute and deliver the Escrow and Security Agreement at the
Closing effective at the Effective Time.
4. CLOSING
At or prior to the Closing, the parties shall take all actions
necessary to prepare to (i) effect the Merger (including, without limitation, if
permitted by applicable state law, the filing with the appropriate state
authorities of the Articles of Merger specifying the Effective Time as the
delayed effective time of the Merger), and (ii) effect the conversion and
delivery of shares referred to in Section 3 hereof; provided, however, that such
actions shall not include the actual completion of the Merger or the conversion
and delivery of the shares referred to in Section 3 hereof, each of which
actions shall be deemed taken at the Effective Time as herein provided. In the
event that the conditions precedent contained in and this Agreement are not
satisfied or waived and this Agreement is thereby terminated, MARINEMAX hereby
covenants and agrees to do all things required by the Delaware GCL and by the
Georgia Business Corporation Code of the State of Georgia in order to stop or
rescind the Merger effected by the filing of the Articles of Merger as described
in this Section. The taking of the actions described in clauses (i) and (ii)
above shall take place at a closing (the "Closing") to be held following the
satisfaction or waiver of the conditions precedent set forth in Sections 8 and 9
hereof on such date as the STOCKHOLDERS and MARINEMAX shall determine (the
"Closing Date") at the offices of X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx &
Xxxxxxxx, P.A., Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000. At
the Effective Time (x) the Articles of Merger shall be or shall have been filed
with the appropriate state authorities so that the Merger shall be effective at
the Effective Time, and (y) the parties shall be deemed to have consummated the
transactions contemplated by this Agreement, including, without limitation, the
conversion and delivery of shares, which the STOCKHOLDERS shall be entitled to
receive pursuant to the Merger referred to in Section 3 hereof. The time at
which the actions described in the preceding clauses (x) and (y) occur shall be
referred to as the "Effective Time."
5. REPRESENTATIONS AND WARRANTIES OF COMPANY AND THE
STOCKHOLDERS
(A) REPRESENTATIONS AND WARRANTIES OF COMPANY AND THE STOCKHOLDERS. the
COMPANY and the STOCKHOLDERS jointly and severally represent and warrant that
all of the following representations and warranties in this Section 5(A) are
true, complete and correct at the date of this Agreement and, subject to Section
7.8 hereof, shall be true, complete, and correct at the time of Closing and at
the Effective Time and that such representations and
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warranties shall survive the Closing and the Effective Time. For purposes of
this Section 5(A), the term COMPANY shall mean and refer to COMPANY and all
other Acquired Parties, if any.
5.1 DUE ORGANIZATION. COMPANY is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia, and has
the requisite power and authority to carry on its business as it is now being
conducted. COMPANY is duly qualified to do business and is in good standing in
each jurisdiction in which the nature of its business or the ownership, sales or
leasing of its properties makes such qualification necessary, except (i) as set
forth on Schedule 5.1 or (ii) where the failure to be so authorized or qualified
would not have a material adverse effect on the business, operations,
properties, assets or condition (financial or otherwise), of COMPANY taken as a
whole (as used herein with respect to COMPANY, or with respect to any person, a
"Material Adverse Effect"). Schedule 5.1 sets forth the jurisdiction in which
COMPANY is incorporated and contains a list of all jurisdictions in which
COMPANY is authorized or qualified to do business. True, complete and correct
copies of the Articles/Certificate of Incorporation and Bylaws, each as amended,
of COMPANY (the "Charter Documents") are attached hereto in Schedule 5.1. The
stock records of COMPANY, as heretofore made available to MARINEMAX, are correct
and complete in all material respects. There are no minutes in the possession of
COMPANY or the STOCKHOLDERS which have not been supplied to MARINEMAX, and all
of such minutes are correct and complete in all respects. The most recent
minutes of COMPANY, which are dated no earlier than ten (10) business days prior
to the date hereof, affirm and ratify all prior acts of COMPANY, and of its
officers and directors on behalf and for the benefit of COMPANY.
5.2 AUTHORIZATION. The representatives of COMPANY executing this
Agreement have the authority to enter into and bind COMPANY to the terms of this
Agreement. COMPANY has the full legal right, power and authority to enter into
this Agreement and the Merger, subject to the terms of the approval of the
STOCKHOLDERS and the Board of Directors of COMPANY described on Schedule 5.2,
executed copies of which are attached thereto.
5.3 CAPITAL STOCK OF COMPANY. The authorized capital stock of COMPANY
is as set forth in Schedule 5.3. All of the issued and outstanding shares of the
capital stock of COMPANY are owned by the STOCKHOLDERS in the amounts set forth
on Schedule 5.3 and further, except as set forth in Schedule 5.3, are owned free
and clear of all liens, security interests, pledges, charges, voting trusts,
restrictions, encumbrances and claims of every kind. The STOCKHOLDERS are the
sole stockholders of COMPANY. All of the issued and outstanding shares of the
capital stock of COMPANY have been duly authorized and validly issued, are fully
paid and nonassessable, are owned of record and beneficially by the STOCKHOLDERS
and further, such shares were offered, issued, sold and delivered by COMPANY in
compliance with all applicable state and federal laws concerning the issuance of
securities. Further, none of such shares were issued in violation of any
preemptive rights of any past or present stockholder.
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5.4 TRANSACTIONS IN CAPITAL STOCK, ORGANIZATION ACCOUNTING. Except as
set forth on Schedule 5.4, COMPANY has not acquired or redeemed any COMPANY
Stock since the Balance Sheet Date. Except as set forth on Schedule 5.4, (i) no
option, warrant, call, conversion right or commitment of any kind exists which
obligates COMPANY to issue any of its capital stock; (ii) COMPANY has no
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any of its equity securities or any interests therein or to pay any dividend or
make any distribution in respect thereof. Schedule 5.4 also includes complete
and accurate copies of all stock option or stock purchase plans, including,
without limitation, a list of all outstanding options, warrants or other rights
to acquire shares of COMPANY's stock.
5.5 NO BONUS SHARES. Except as set forth on Schedule 5.5, none of the
shares of COMPANY Stock have been issued pursuant to awards, grants or bonuses.
5.6 SUBSIDIARIES AND AFFILIATES. Except as set forth on Schedule 5.6,
COMPANY has no subsidiaries. Except as set forth on Schedule 5.6, COMPANY does
not presently own, of record or beneficially, or control, directly or
indirectly, any capital stock, securities convertible into capital stock or any
other equity interest in any corporation, association or business entity, nor is
COMPANY, directly or indirectly, a participant in any joint venture, partnership
or other non-corporate entity. None of the STOCKHOLDERS have any equity
investment in any "Affiliates." The term "Affiliates" shall mean all entities
that directly or indirectly engage in any business that sells, rents, or leases
boating, nautical or other similar lifestyle entertainment products and
services, leases or owns real property used in any such business, and in which
any of the STOCKHOLDERS are officers or directors, or in which any of the
STOCKHOLDERS, directly or indirectly, own or control ten percent (10%) or more
of the equity securities of the entity.
5.7 PREDECESSOR STATUS; ETC. Set forth in Schedule 5.7 is a listing of
all names of all predecessor companies of COMPANY, including the names of any
entities acquired by COMPANY (by stock purchase, merger or otherwise) or owned
by COMPANY or from whom COMPANY previously acquired material assets, in any
case, from the earliest date upon which any STOCKHOLDER acquired his or her
stock in any COMPANY. Except as disclosed on Schedule 5.7, COMPANY has not been,
within such period of time, a subsidiary or division of another corporation or a
part of an acquisition which was later rescinded.
5.8 SPIN-OFF BY COMPANY. Except as set forth on Schedule 5.8, there has
not been any sale, spin-off or split-up of material assets of either COMPANY or
any other person or entity that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
COMPANY since December 31, 1997.
5.9 FINANCIAL STATEMENTS. Attached hereto as Schedule 5.9 are copies of
the following financial statements of COMPANY (the "COMPANY Financial
Statements"): COMPANY's audited Balance Sheets as of December 31, 1996 and
September 30, 1997, and
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Statements of Operations, Shareholders' Equity and Cash Flows for the year ended
December 31, 1996, and for the nine month period ended September 30, 1997; and
COMPANY's unaudited Balance Sheets as of December 31, 1997 and March 31, 1998,
and Statements of Operations, Shareholders' Equity and Cash Flows for the year
ended December 31, 1997 and for the three month periods ended December 31, 1997
and March 31, 1998, respectively. COMPANY Financial Statements have been
prepared in accordance with GAAP applied on a consistent basis throughout the
periods indicated and for the periods prior thereto (except as noted thereon or
on Schedule 5.9). Except as set forth on Schedule 5.9, COMPANY'S Balance Sheets
as of December 31, 1996, September 30, 1997, and December 31, 1997 each present
fairly in all material respects the financial position of COMPANY as of the
dates indicated thereon, and COMPANY's Statements of Operations, Shareholders'
Equity and Cash Flows referenced herein present fairly in all material respects
the results of operations for the periods indicated thereon.
5.10 LIABILITIES AND OBLIGATIONS. COMPANY has delivered to MARINEMAX a
true, complete and accurate list (which is set forth on Schedule 5.10) as of the
Balance Sheet Date of (i) all material liabilities of COMPANY which are not
reflected on the balance sheet of COMPANY at the Balance Sheet Date or otherwise
reflected in COMPANY Financial Statements at the Balance Sheet Date which by
their nature would be required in accordance with GAAP to be reflected in such
balance sheet, and (ii) all loan agreements, indemnity or guaranty agreements,
bonds, mortgages, liens, pledges or other security agreements to which COMPANY
or any of its assets is bound and which individually or in the aggregate involve
sums in excess of $25,000. Except as set forth on Schedule 5.10, since the
Balance Sheet Date, COMPANY has not incurred any material liabilities of any
kind, character and description, whether accrued, absolute, secured or
unsecured, contingent or otherwise, other than liabilities incurred in the
ordinary course of business. COMPANY has also delivered to MARINEMAX on Schedule
5.10, in the case of those contingent liabilities related to pending or
threatened litigation, or other liabilities incurred under the agreements listed
pursuant to Section 5.10(ii) which are not fixed or otherwise accrued or
reserved, a good faith and reasonable estimate of the maximum amount which
COMPANY reasonably expects will be payable. For each such contingent liability
or liability for which the amount is not fixed or is contested, COMPANY has
provided to MARINEMAX the following information:
(i) a summary description of the liability
together with the following:
(a) copies of all relevant documentation
relating thereto; and
(b) amounts claimed and any other action or
relief sought;
(ii) the name of each court or agency before
which such claim, suit or proceeding is pending;
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(iii) the date such claim, suit or proceeding was instituted;
and
(iv) a good faith and reasonable estimate of the maximum
amount, if any, which is likely to become payable with respect to each such
liability. If no estimate is provided, the estimate shall for purposes of this
Agreement be deemed zero.
5.11 ACCOUNTS AND NOTES RECEIVABLE. COMPANY has delivered to MARINEMAX
a true, complete and accurate list (which is set forth on Schedule 5.11) of the
accounts and notes receivable of COMPANY, as of the Balance Sheet Date,
including any such amounts which are not reflected in the balance sheet as of
the Balance Sheet Date, and including receivables from and advances to employees
and the STOCKHOLDERS. Except to the extent reflected on Schedule 5.11, such
accounts, notes and other receivables are collectible in the amounts shown on
Schedule 5.11, net of reserves reflected in the balance sheet as of the Balance
Sheet Date.
5.12 PERMITS AND INTANGIBLES. COMPANY and its employees hold all
licenses, franchises, permits and authorizations (governmental or otherwise) the
absence of any of which could have a Material Adverse Effect on COMPANY's
business, including, without limitation, all licenses, franchises, rights and
authorizations from Brunswick Corporation and Ray Industries, Inc., necessary or
beneficial for the business of COMPANY. COMPANY has delivered to MARINEMAX an
accurate list and summary description (which is set forth on Schedule 5.12) of
all such licenses, franchises, permits and authorizations, including permits,
titles (including motor vehicle titles and current registrations), fuel permits,
licenses, franchises, certificates, trademarks, trade names, patents, patent
applications and copyrights owned or held by COMPANY or any of its employees
(including interests in software or other technology systems, programs and
intellectual property) (it being understood and agreed that a list of all
environmental permits and other environmental approvals is set forth on Schedule
5.13). The licenses, franchises, permits and authorizations listed on Schedules
5.12 and 5.13 are valid, and COMPANY has not received any notice that any
entity, governmental or otherwise, intends to cancel, limit, terminate or not
renew any such license, franchise, permit or authorization. COMPANY has
conducted and is conducting its business in compliance with the requirements,
standards, criteria and conditions set forth in the licenses, franchises,
permits and authorizations listed on Schedules 5.12 and 5.13 and is not in
violation of any of the foregoing except where such non-compliance or violation
would not have a Material Adverse Effect on COMPANY. Except as specifically
provided in Schedule 5.12, the transactions contemplated by this Agreement will
not result in a default under or a breach or violation of, or adversely affect
the rights and benefits afforded to COMPANY by, any such licenses, franchises,
permits or authorizations.
5.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 5.13, and
except where any failure to comply or action would not have a Material Adverse
Effect, (i) COMPANY has complied with and is in compliance with all federal,
state, local and foreign statutes (civil and criminal), laws, ordinances,
regulations, rules, notices, permits, judgments, orders and decrees
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applicable to COMPANY or any of its properties, assets, operations and
businesses relating to environmental protection (collectively "Environmental
Laws") including, without limitation, Environmental Laws relating to air, water,
land and the generation, storage, use, handling, transportation, treatment or
disposal of Hazardous Wastes and Hazardous Substances including petroleum and
petroleum products (as such terms are defined in any applicable Environmental
Law); (ii) COMPANY has obtained and adhered to all necessary permits and other
approvals necessary to treat, transport, store, dispose of and otherwise handle
Hazardous Wastes and Hazardous Substances, a list of all of such permits and
approvals is set forth on Schedule 5.13; (iii) COMPANY has reported to the
appropriate authorities, to the extent required by all Environmental Laws, all
past and present sites owned and operated by COMPANY where Hazardous Wastes or
Hazardous Substances have been treated, stored, disposed of or otherwise
handled; (iv) there have been no releases or threats of releases (as defined in
Environmental Laws) at, from, in or on any property owned or operated by COMPANY
except as permitted by Environmental Laws; (v) COMPANY and STOCKHOLDERS know of
no on-site or off-site location to which COMPANY has transported or disposed of
Hazardous Wastes and Hazardous Substances or arranged for the transportation of
Hazardous Wastes and Hazardous Substances, which site is the subject of any
federal, state, local or foreign enforcement action or any other investigation
which is reasonably likely to lead to any claim against COMPANY, MARINEMAX or
NEWCO for any clean-up cost, remedial work, damage to natural resources,
property damage or personal injury, including, without limitation, any claim
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended; and (vi) COMPANY has no contingent liability in connection
with any release of any Hazardous Waste or Hazardous Substance into the
environment.
5.14 PERSONAL PROPERTY. COMPANY has delivered to MARINEMAX a true,
complete and accurate list (which is set forth on Schedule 5.14) of (x) all
personal property included (or that will be included) in "depreciable plant,
property and equipment" on the December 31, 1997 balance sheet of COMPANY; (y)
all other personal property owned by COMPANY with an individual value in excess
of $20,000 (i) as of the Balance Sheet Date and (ii) acquired since the Balance
Sheet Date; and (z) all leases and agreements in respect of personal property,
including, in the case of each of (x), (y) and (z), (1) true, complete and
correct copies of all such leases, and (2) an indication as to which assets are
currently owned, or were formerly owned, by the STOCKHOLDERS, relatives of the
STOCKHOLDERS, or Affiliates of COMPANY. Except as set forth on Schedule 5.14,
(i) all material personal property used by COMPANY in its business is either
owned by COMPANY or leased by COMPANY pursuant to a lease included on Schedule
5.14, (ii) all of the personal property listed on Schedule 5.14 is in good
working order and condition, ordinary wear and tear excepted, and (iii) all
leases and agreements included on Schedule 5.14 are in full force and effect and
constitute valid and binding agreements of the parties (and their successors)
thereto in accordance with their respective terms.
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5.15 SIGNIFICANT CUSTOMERS; MATERIAL CONTRACTS AND COMMITMENTS. COMPANY
has delivered to MARINEMAX a true, complete and accurate list (which is set
forth on Schedule 5.15) of (i) all significant current customers, it being
understood and agreed that a "significant customer," for purposes of this
Section, means a customer (or person or entity) representing 5% or more of
COMPANY's annual revenues as of the Balance Sheet Date. Except to the extent set
forth on Schedule 5.15, none of COMPANY's significant current customers have
canceled or substantially reduced or, to the best knowledge and belief of
COMPANY and the STOCKHOLDERS after due inquiry, are currently attempting or
threatening to cancel a contract or substantially reduce utilization of the
services provided by COMPANY.
COMPANY has listed on Schedule 5.15 all material contracts, commitments
and similar agreements (other than the customer contracts referred to above) to
which COMPANY is a party or by which it or any of its properties are bound
(including, without limitation, contracts with significant customers, joint
venture or partnership agreements, contracts with any labor organizations,
strategic alliances and options to purchase land), other than agreements listed
on Schedule 5.14, 5.15 or 5.16, (a) in existence as of the Balance Sheet Date
and (b) entered into since the Balance Sheet Date, and in each case has attached
a true, complete and correct copy of such agreements to Schedule 5.15 hereto.
COMPANY has complied with all material commitments and obligations pertaining to
it, and is not in default under any contracts or agreements listed on Schedule
5.15 and no notice of default under any such contract or agreement has been
received. COMPANY has also set forth on Schedule 5.15 a true, accurate and
complete summary description of all plans or projects involving the opening of
new operations, expansion of existing operations, the acquisition of any
personal property, business or assets requiring, in any event, the payment of
more than $50,000 by COMPANY.
5.16 REAL PROPERTY. Schedule 5.16 includes a list of all real property
owned, leased or used by COMPANY at the date hereof and all other real property,
if any, used by COMPANY in the conduct of its business. Except as set forth in
Schedule 5.16 hereto,
(i) All real property owned, leased or used
by COMPANY is zoned for the conduct of COMPANY'S business thereon pursuant to
the zoning regulations of the applicable cities, towns, villages or townships or
any other governmental bodies. The uses to which such real property are
presently put (including the location of all buildings and other improvements
thereon) comply in all material respects with the applicable provisions of such
zoning regulations without the benefit of the legal non-conforming use principle
of law, or other regulations of such cities, towns, villages or townships or any
other governmental bodies.
(ii) As to any real property leased, owned
or used by COMPANY there are no material agreements, commitments or
understandings pursuant to which COMPANY, or its successors in interest are
required to dedicate any part of the real property or to grant any easement,
water rights, rights-of-way, or license for ingress and egress or other
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use in respect to any part of the real property, whether on account of the
development of adjacent or nearby real property or otherwise. Other than as
provided in the leases of the real property owned by COMPANY and leased to
others, except as set forth in Schedule 5.16 hereto, no person has any material
easement, license or other right whatsoever with respect to such real property.
(iii) COMPANY holds good and marketable fee
simple title to the real property identified on Schedule 5.16 hereto as owned by
COMPANY and good leasehold title to the real property identified on Schedule
5.16 as leased or used by COMPANY, in each case free and clear of all material
mortgages, charges, claims, liens, encumbrances, leases, options to purchase,
rights of first refusal, contracts of sale, easements, reservations and
restrictions, except those matters identified in any title reports set forth in
Schedule 5.16. No part of such lands is affected by any restrictions imposed by
any governmental authority affecting construction of structures thereon or the
use thereof by COMPANY other than building codes and zoning classifications.
(iv) The STOCKHOLDERS and COMPANY do not,
either individually or collectively, have any knowledge of any fact or condition
existing that would result or could result in the termination or material
reduction of the current access to and from the real property owned or leased or
used by COMPANY to existing public roads and highways, or of any reduction in
sewer or other utility services presently serving such real property. The real
property currently owned, leased or used by COMPANY has direct access to public
roads and highways.
(v) As to the real property owned by
COMPANY, neither the STOCKHOLDERS nor COMPANY has received any notice from any
insurance company of any material defects or inadequacies in the real property
or any part thereof that would materially and adversely affect the insurability
of the real property or the premiums for the insurance thereof.
(vi) As to the real property owned by
COMPANY, neither the STOCKHOLDERS nor COMPANY has failed to disclose any
material conditions of disrepair or other adverse conditions or defects with
respect to the real property or any portion thereof of which any STOCKHOLDER or
COMPANY has knowledge or which, with the exercise of reasonable diligence, any
of them should have known.
(vii) True, complete and correct copies of
all leases and agreements in respect of all real property leased or used by
COMPANY are attached to Schedule 5.16, and an indication as to which such
properties, if any, are currently owned, or were formerly owned, by the
STOCKHOLDERS or affiliates of COMPANY or the STOCKHOLDERS is included in
Schedule 5.16, and except as set forth on Schedule 5.16, all of such leases
included on Schedule 5.16 are in full force and effect and constitute valid and
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binding agreements of the parties (and their successors) thereto in accordance
with their respective terms.
5.17 INSURANCE. COMPANY has delivered to MARINEMAX (i) a true, accurate
and complete list as of the Balance Sheet Date of all insurance policies carried
by COMPANY; (ii) an accurate list of all insurance loss runs or workers
compensation claims received for the past three (3) policy years; (iii) true,
complete and correct copies of all insurance policies currently in effect; and
(iv) a certificate of insurance evidencing that all insurance policies of the
COMPANY are in full force and effect. Such insurance policies evidence all of
the insurance that COMPANY is required to carry pursuant to all of its contracts
and other agreements and pursuant to all applicable laws. All of such insurance
policies are currently in full force and effect and shall remain in full force
and effect through the Effective Time. Since January 1, 1994, no insurance
carried by COMPANY has been canceled by the insurer and COMPANY has not been
denied coverage.
5.18 COMPENSATION; EMPLOYMENT AGREEMENTS; ORGANIZED LABOR MATTERS.
COMPANY has delivered to MARINEMAX a true, complete and accurate list (which is
set forth on Schedule 5.18) showing all officers, directors and key employees of
COMPANY, listing all employment agreements that do not provide for at-will
employment terminable without penalty or that pertain to any officers, directors
or key employees of COMPANY and the rate of compensation (and the portions
thereof attributable to salary, bonus and other compensation, respectively) of
each of such persons as of (i) the Balance Sheet Date and (ii) the date hereof.
COMPANY has provided to MARINEMAX true, complete and correct copies of any
employment agreements for persons listed on Schedule 5.18 and has attached such
copies to Schedule 5.18. Since the Balance Sheet Date, there have been no
increases in the compensation payable or any special bonuses to any officer,
director, key employee or other employee of COMPANY, except ordinary salary
increases implemented on a basis consistent with past practices.
Except as set forth on Schedule 5.18, (i) COMPANY is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
arrangement with any labor union; (ii) no employees of COMPANY are represented
by any labor union or covered by any collective bargaining agreement; (iii) to
the best knowledge and belief of COMPANY and the STOCKHOLDERS after due inquiry,
no campaign to establish such representation is in progress; and (iv) there is
no pending or, to the best knowledge and belief of COMPANY and the STOCKHOLDERS
after due inquiry, threatened, labor dispute involving COMPANY and any group of
its employees nor has COMPANY experienced any labor interruptions over the past
three years. COMPANY believes its relationship with employees to be good.
5.19 EMPLOYEE PLANS. The STOCKHOLDERS have delivered to MARINEMAX a
true, complete and accurate schedule (Schedule 5.19) showing all employee
benefit plans of COMPANY (including COMPANY's subsidiaries, if any), including,
without limitation, all
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employment agreements and other agreements or arrangements containing "golden
parachute" or other similar provisions, and deferred compensation agreements,
together with true, complete and correct copies of such plans, agreements and
any trusts related thereto, and classifications of employees covered thereby
existing as of the Balance Sheet Date. Except for the employee benefit plans, if
any, described on Schedule 5.19, COMPANY (including COMPANY's subsidiaries, if
any) does not sponsor, maintain or contribute to any plan program, fund or
arrangement that constitutes an "employee pension benefit plan," nor does
COMPANY have any obligation to contribute to or accrue or pay any benefits under
any deferred compensation or retirement funding arrangement on behalf of any
employee or employees (such as, for example, and without limitation, any
individual retirement account or annuity, any "excess benefit plan" (within the
meaning of Section 3(36) of ERISA), or any nonqualified deferred compensation
arrangement). For the purposes of this Agreement, the term "employee pension
benefit plan" shall have the same meaning as is given that term in Section 3(2)
of ERISA. Neither COMPANY nor any Acquired Party has sponsored, maintained or
contributed to any employee pension benefit plan other than the plans set forth
on Schedule 5.19, nor is COMPANY or any Acquired Party required to contribute to
any retirement plan pursuant to the provisions of any collective bargaining
agreement establishing the terms and conditions or employment of any of
COMPANY's or any Acquired Party's employees.
Neither COMPANY nor any Acquired Party is now, or can as a result of
its past activities become, liable to the Pension Benefit Guaranty Corporation
or to any multiemployer employee pension benefit plan under the provisions of
Title IV of ERISA.
All employee benefit plans listed on Schedule 5.19 and the
administration thereof are in substantial compliance with their terms and all
applicable provisions of ERISA and the regulations issued thereunder, as well as
with all other applicable federal, state and local statutes, ordinances and
regulations.
All accrued contribution obligations of COMPANY and any Acquired Party
with respect to any plan listed on Schedule 5.19 have either been fulfilled in
their entirety or are fully reflected on the December 31, 1997 balance sheet of
COMPANY as of the Balance Sheet Date.
5.20 COMPLIANCE WITH ERISA. All such plans listed on Schedule 5.19 that
are intended to qualify (the "Qualified Plans") under Section 401(a) of the Code
are, and have been so qualified and have been determined by the IRS to be so
qualified, and copies of such determination letters are included as part of
Schedule 5.19 hereof. Except as disclosed on Schedule 5.20, all reports and
other documents required to be filed with any governmental agency or distributed
to plan participants or beneficiaries (including, without limitation, actuarial
reports, audits or tax returns) have been timely filed or distributed, and
copies thereof that have been filed for tax years 1995 and 1996 are included as
part of Schedule 5.20 hereof. Neither STOCKHOLDERS, any such plan listed in
Schedule 5.19 or administrator thereof, nor COMPANY has engaged in any
transaction prohibited under the provisions of Section 4975 of
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the Code or Section 406 of ERISA or any other breach of fiduciary responsibility
that could subject STOCKHOLDERS, such administrator or COMPANY to a tax or
penalty on prohibited transactions imposed by Section 4975 of the Code or to any
liability under Section 502(i) of ERISA. No such plan listed in Schedule 5.19
has incurred an accumulated finding deficiency, as defined in Section 412(a) of
the Code and Section 302(1) of ERISA; and COMPANY has not incurred any liability
for excise tax or penalty due to the IRS nor any liability to the Pension
Benefit Guaranty Corporation. It is further represented and warranted that:
(i) there have been no terminations, partial terminations or
discontinuances of contributions to any Qualified Plan intended to qualify under
Section 401(a) of the Code without notice to and approval by the IRS;
(ii) no plan listed in Schedule 5.19 subject to the provisions
of Title IV of ERISA has been terminated;
(iii) there have been no "reportable events" (as that phrase
is defined in Section 4043 of ERISA) with respect to any plan listed in Schedule
5.19;
(iv) COMPANY has not incurred any liability under Section 4062
of ERISA; and
(v) no circumstances exist pursuant to which COMPANY could
have any direct or indirect liability whatsoever (including, without limitation,
any liability to any multiemployer plan or the Pension Benefit Guaranty
Corporation under Title IV of ERISA or to the IRS for any excise tax or
penalty), or be subject to any statutory lien to secure payment of any such
liability with respect to any plan now or heretofore maintained or contributed
to by any entity other than COMPANY that is, or at any time was, a member of a
"controlled group" (as defined in Section 412(n)(6)(B) of the Code) that
includes COMPANY.
5.21 CONFORMITY WITH LAW; LITIGATION. Except to the extent set forth on
Schedule 5.21 or Schedule 5.13, COMPANY is not in violation of any law or
regulation or any order of any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over COMPANY which would have a Material Adverse Effect; and
except to the extent set forth on Schedule 5.10, Schedule 5.13 or Schedule 5.21,
there are no material claims, actions, suits or proceedings, pending or, to the
best knowledge and belief of COMPANY and the STOCKHOLDERS after due inquiry,
threatened against or affecting, COMPANY, at law or in equity, or before or by
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality having jurisdiction over COMPANY, and
no notice of any claim, action, suit or proceeding, whether pending or
threatened, has been received. COMPANY has conducted and is conducting its
business in substantial compliance with the requirements, standards, criteria
and conditions set forth in applicable federal, state and local statutes,
ordinances, permits, licenses,
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orders, approvals, variances, rules and regulations, including all such permits,
licenses, orders and other governmental approvals set forth on Schedules 5.12
and 5.13, and is not in violation of any of the foregoing which would have a
Material Adverse Effect.
5.22 TAXES. COMPANY (including all the Acquired Parties) has timely
filed all required federal, state and other tax returns, filings and extension
requests with respect to all Taxes for all fiscal periods ended on or before the
Balance Sheet Date; and except as set forth on Schedule 5.22, there are no
examinations in progress or claims against any Acquired Party for federal, state
or other Taxes (including, without limitation, related penalties and interest)
for any period or periods prior to and including the Balance Sheet Date, and no
notice of any such claim for Taxes, whether pending or threatened, has been
received. All Tax, including, without limitation, all related interest and
penalties (whether or not shown on any tax return) owed by any of the Acquired
Parties, or with respect to any payment made or deemed made by any of the
Acquired Parties has been paid. The amounts shown as accruals for Taxes on
COMPANY Financial Statements are sufficient for the payment of all Taxes of the
kinds indicated (including, without limitation, penalties and interest) for all
fiscal periods ended on or before the Balance Sheet Date. Copies of (i) any tax
examinations; (ii) extensions of statutory limitations; and (iii) the federal,
state and local income tax returns and franchise tax returns of COMPANY
(including the Acquired Parties) for the last three (3) fiscal years, or such
shorter period of time as any of them shall have existed, are attached hereto as
Schedule 5.22. If COMPANY is an S-Corporation, the STOCKHOLDERS made a valid
election under the provisions of Subchapter S of the Code and COMPANY has
appropriately not, within the past five years, been taxed under the provisions
of Subchapter C of the Code. COMPANY has a taxable year ended on December 31
and, if COMPANY is an S-Corporation, COMPANY has not made an election to retain
a fiscal year ending on a date other than December 31 pursuant to Section 444 of
the Code. COMPANY's methods of accounting have not changed in the past five
years.
5.23 NO VIOLATIONS. COMPANY is not in violation of any Charter
Document. Neither COMPANY nor, to the best knowledge and belief of COMPANY and
the STOCKHOLDERS after due inquiry, any other party thereto, is in material
default under any lease, instrument, agreement, license or permit set forth on
Schedules 5.12 through 5.19 (inclusive), or any other material agreement to
which it is a party or by which its properties are bound (the "Material
Documents"); and, except as set forth in Schedule 5.23, (a) the rights and
benefits of COMPANY under the Material Documents will not be materially
adversely affected by the transactions contemplated hereby and (b) the execution
of this Agreement and the performance of the obligations hereunder and the
consummation of the transactions contemplated hereby will not result in any
material violation or breach or constitute a default under, any of the terms or
provisions of any of the Material Documents or Charter Documents. Except as set
forth on Schedule 5.23, none of the Material Documents requires notice to, or
the consent or approval of, any governmental agency or other third party with
respect to any of the transactions contemplated hereby in order to remain in
full force and effect, and consummation of the transactions contemplated hereby
will not give rise to any right to termination, cancellation,
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acceleration or loss of any right or benefit arising thereunder. Except as set
forth on Schedule 5.23, none of the Material Documents prohibits the use or
publication by COMPANY, MARINEMAX or NEWCO of the name of any other party to
such Material Document, and none of the Material Documents prohibits or
restricts COMPANY from freely providing services to any other customer or
potential customer of COMPANY, MARINEMAX, or NEWCO.
5.24 GOVERNMENT CONTRACTS. Except as set forth on Schedule 5.24,
COMPANY is not now a party to any governmental contracts subject to price
redetermination or renegotiation.
5.25 ABSENCE OF CHANGES. Since the Balance Sheet Date, except as set
forth on Schedule 5.25, there has not been:
(i) any material adverse change in the financial condition,
assets, liabilities (contingent or otherwise), income or business of COMPANY;
(ii) any damage, destruction or loss (whether or not covered
by insurance) materially adversely affecting the properties or business of
COMPANY;
(iii) any change in the authorized capital of COMPANY or its
outstanding securities or any change in its ownership interests or any grant of
any options, warrants, calls, conversion rights or commitments;
(iv) any declaration or payment of any dividend or
distribution in respect of the capital stock of COMPANY, or any direct or
indirect redemption, purchase or other acquisition of any of the capital stock
of COMPANY;
(v) any increase in the compensation, bonus, sales commissions
or fee arrangement payable or to become payable by COMPANY to any of its
officers, directors, the STOCKHOLDERS, employees, consultants or agents, except
for ordinary and customary bonuses and salary increases for employees in
accordance with past practices of COMPANY;
(vi) any work interruptions, labor grievances or claims filed,
or any event or condition of any character, materially and adversely affecting
the business of COMPANY;
(vii) any sale or transfer, or any agreement to sell or
transfer, any material asset, property or right of COMPANY to any person,
including, without limitation, the STOCKHOLDERS or their affiliates;
(viii) any cancellation, or agreement to cancel, any
indebtedness or other obligation owing to COMPANY, including, without
limitation, any indebtedness or obligation of any STOCKHOLDERS or any affiliate
thereof;
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(ix) any plan, agreement or arrangement granting any
preferential rights to purchase or acquire any interest in any of the assets,
properties or rights of COMPANY or requiring consent of any party to the
transfer and assignment of any such assets, properties or rights;
(x) any purchase or acquisition of, or agreement, plan or
arrangement to purchase or acquire, any assets, properties or rights outside of
the ordinary course of COMPANY's business;
(xi) any waiver of any material rights or claims of COMPANY;
(xii) any amendment or termination of any material contract,
agreement, license, permit or other right to which COMPANY is a party or by
which any of COMPANY's assets are bound;
(xiii) any transaction by COMPANY outside the ordinary course
of its business;
(xiv) any cancellation or termination of a material contract
with a customer or client of COMPANY prior to the scheduled termination date; or
(xv) any other distribution of property or assets by COMPANY
other than in the ordinary course of COMPANY's business.
5.26 DEPOSIT ACCOUNTS; POWERS OF ATTORNEY. COMPANY has delivered to
MARINEMAX an accurate schedule (which is set forth on Schedule 5.26) as of the
date of this Agreement of:
(i) the name of each financial institution in which COMPANY
has accounts or safe deposit boxes;
(ii) the names in which the accounts or boxes are held;
(iii) the type of account and account number; and
(iv) the name of each person authorized to draw thereon or
have access thereto. Schedule 5.26 also sets forth the name of each person,
corporation, firm or other entity holding a general or special power of attorney
from COMPANY and a description of the terms of such power.
5.27 VALIDITY OF OBLIGATIONS. The execution and delivery of this
Agreement by COMPANY and the performance of the transactions contemplated herein
have been duly and validly authorized by the Board of Directors and the
stockholders of COMPANY and this
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Agreement has been duly and validly authorized by all necessary corporate action
and is a legal, valid, binding and enforceable obligation of COMPANY. The
execution and delivery of this Agreement by each of the STOCKHOLDERS and the
performance of the transactions contemplated herein is a legal, valid, binding
and enforceable obligation of the STOCKHOLDERS and each of them, each having the
appropriate legal capacity to execute and deliver this Agreement.
5.28 RELATIONS WITH GOVERNMENTS. Except for political contributions
made in a lawful manner which, in the aggregate, do not exceed $10,000 per year
for each year in which any STOCKHOLDER has been a stockholder of COMPANY,
COMPANY has not made, offered or agreed to offer anything of value to any
governmental, official, political party or candidate for government office, nor
has COMPANY or any STOCKHOLDER otherwise taken any action which would cause
COMPANY to be in violation of the Foreign Corrupt Practices Act of 1977, as
amended, or any law of similar effect. If political contributions made by
COMPANY have exceeded $10,000 per year for each year in which any STOCKHOLDER
has been a stockholder of COMPANY, each contribution in the amount of $5,000 or
more is accurately described on Schedule 5.28 hereto.
5.29 PROHIBITED ACTIVITIES. Except as set forth on Schedule 5.29,
COMPANY has not, between the Balance Sheet Date and the date hereof, taken any
of the actions prohibited by Section 7.3 hereof.
5.30 DISCLOSURE. This Agreement, including the annexes and Schedules
hereto, together with the other information furnished to MARINEMAX by COMPANY
and the STOCKHOLDERS in connection herewith, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements herein and therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the foregoing does not
apply to statements contained in or omitted from any of such documents made or
omitted in reliance upon information furnished by MARINEMAX. If, prior to the
Closing, COMPANY or the STOCKHOLDERS become aware of any fact or circumstance
that would affect the accuracy of any representation or warranty of COMPANY or
the STOCKHOLDERS in this Agreement in any material respect, COMPANY and the
STOCKHOLDERS shall immediately give notice of such fact or circumstance to
MARINEMAX. However, subject to the provisions of Section 7.8, such notification
shall not relieve either COMPANY or the STOCKHOLDERS of their respective
obligations under this Agreement, and, subject to the provisions of Section 7.8,
at the sole option of MARINEMAX, the truth and accuracy of any and all
representations and warranties of COMPANY and/or STOCKHOLDERS, or on behalf of
COMPANY and/or STOCKHOLDERS, made at the date of this Agreement and on the
Closing Date and at the Effective Time, shall be a precondition to the
consummation of the Merger and the other transactions contemplated herein.
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(B) REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. STOCKHOLDERS
jointly and severally represent and warrant that the representations and
warranties set forth below are true at the date of this Agreement and, subject
to Section 7.8 hereof, shall be true at the time of Closing and at the Effective
Time, and that such representations and warranties shall survive the Closing and
the Effective Time.
5.31 AUTHORITY: OWNERSHIP. STOCKHOLDERS have the full legal right,
capacity, power and authority to enter into this Agreement. STOCKHOLDERS own
beneficially and of record all of the shares of COMPANY Stock identified in
Schedule 5.3 as being owned by STOCKHOLDERS, and, except as set forth on
Schedule 5.3, such COMPANY Stock is owned free and clear of all liens, security
interests, pledges, charges, voting trusts, restrictions, encumbrances and
claims of every kind.
5.32 PREEMPTIVE RIGHTS. STOCKHOLDERS do not have, or hereby waive, any
preemptive or other right to acquire shares of COMPANY Stock or MARINEMAX Stock
that STOCKHOLDERS have or may have had other than rights of any STOCKHOLDER to
acquire MARINEMAX Stock pursuant to (i) this Agreement, or (ii) any option
granted by MARINEMAX.
5.33 NO INTENTION TO DISPOSE OF MARINEMAX STOCK. No STOCKHOLDER is
under any binding commitment or contract to sell, exchange or otherwise dispose
of any shares of MARINEMAX Stock to be received pursuant to this Agreement.
6. REPRESENTATIONS OF MARINEMAX AND NEWCO
MARINEMAX and NEWCO represent and warrant that all of the following
representations and warranties in this Section 6 are true at the date of this
Agreement and, subject to Section 7.8 hereof, shall be true, complete and
correct on the Closing Date and at the Effective Time, and that such
representations and warranties shall survive the Closing and the Effective Time.
6.1 DUE ORGANIZATION. MARINEMAX and NEWCO are each corporations duly
organized, validly existing and in good standing under the laws of the state of
Delaware, and each has the requisite power and authority to carry on its
business as it is now being conducted. MARINEMAX and NEWCO are each qualified to
do business and are each in good standing in each jurisdiction in which the
nature of its business makes such qualification necessary, except where the
failure to be so authorized or qualified would not have a Material Adverse
Effect. True, complete and correct copies of the Certificate of Incorporation
and Bylaws, each as amended, of MARINEMAX and NEWCO (the "MARINEMAX Charter
Documents") are all attached hereto on Schedule 6.1.
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6.2 AUTHORIZATION. The respective representatives of MARINEMAX and
NEWCO executing this Agreement have the authority to enter into and bind
MARINEMAX and NEWCO to the terms of this Agreement. MARINEMAX and NEWCO have the
full legal right, power and authority to enter into this Agreement and the
Merger.
6.3 CAPITAL STOCK OF MARINEMAX AND NEWCO. The authorized capital stock
of MARINEMAX and NEWCO is as set forth in Sections 1.4(ii) and (iii),
respectively. All of the issued and outstanding shares of the capital stock of
NEWCO are owned by MARINEMAX and all of the issued and outstanding shares of the
capital stock of MARINEMAX are owned by the persons set forth on Schedule 6.3
hereof.
6.4 TRANSACTIONS IN CAPITAL STOCK; ORGANIZATION ACCOUNTING. Except as
set forth on Schedule 6.4, (i) no option, warrant, call, conversion right or
commitment of any kind exists which obligates MARINEMAX or NEWCO to issue any of
their respective authorized but unissued capital stock; and (ii) neither
MARINEMAX nor NEWCO has any obligation (contingent or otherwise) to purchase,
redeem or otherwise acquire any of its equity securities or any interests
therein or to pay any dividend or make any distribution in respect thereof.
6.5 [INTENTIONALLY DELETED].
6.6 FINANCIAL STATEMENTS. MARINEMAX has previously provided
consolidated financial statements of MARINEMAX as of December 31, 1997, as set
forth on pages F-10 through F-23 of the Registration Statement of MARINEMAX as
filed with the SEC on March 12, 1998, and as attached as Schedule 6.4 hereto, to
the COMPANY and the STOCKHOLDERS.
6.7 [INTENTIONALLY DELETED].
6.8 VALIDITY OF OBLIGATIONS. The execution and delivery of this
Agreement by MARINEMAX and NEWCO and the performance of the transactions
contemplated herein have been duly and validly authorized by the respective
Boards of Directors of MARINEMAX and NEWCO, and this Agreement has been duly and
validly authorized by all necessary corporate action and is a legal, valid and
binding obligation of MARINEMAX and NEWCO.
6.9 MARINEMAX STOCK. At the time of issuance thereof, the MARINEMAX
Stock to be delivered to the STOCKHOLDERS pursuant to this Agreement will
constitute valid and legally issued shares of MARINEMAX, fully paid and
nonassessable, and with the exception of restrictions upon resale set forth in
Section 16 hereof, will be identical in all respects (which do not include the
form of certificate upon which it is printed or the presence or absence of a
CUSIP number on any such certificate) to the MARINEMAX Stock issued and
outstanding as of the date hereof by reason of the provisions of the Delaware
GCL. The shares of MARINEMAX Stock to be issued to the STOCKHOLDERS pursuant to
this Agreement will not
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be registered under the 1933 Act, and will be issued to the STOCKHOLDERS
pursuant to a valid exemption from registration under the 1933 Act and
applicable state securities laws.
6.10 DISCLOSURE. The information furnished by MARINEMAX and NEWCO to
COMPANY and the STOCKHOLDERS in connection with this Agreement, does not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the foregoing does
not apply to statements contained in or omitted from any of such information
made or omitted in reliance upon information furnished by COMPANY or the
STOCKHOLDERS.
7. COVENANTS PRIOR TO CLOSING
7.1 ACCESS AND COOPERATION; DUE DILIGENCE. (a) Between the date of this
Agreement and the Closing Date, COMPANY will afford to the officers and
authorized representatives of MARINEMAX and the Other Founding Companies access
to all of COMPANY's and any Acquired Party's sites, properties, books and
records and will furnish MARINEMAX with such additional financial and operating
data and other information as to the business and properties of COMPANY and any
Acquired Party as MARINEMAX and NEWCO may from time to time reasonably request.
COMPANY will cooperate with MARINEMAX and NEWCO, its and their representatives,
auditors and counsel in the preparation of any documents or other material which
may be required in connection with any documents or materials required by this
Agreement. MARINEMAX, NEWCO, the STOCKHOLDERS and COMPANY will treat all
information obtained in connection with the negotiation and performance of this
Agreement as confidential in accordance with the provisions of Section 14
hereof.
(b) Between the date of this Agreement and the Closing Date, MARINEMAX
will afford to the officers and authorized representatives of COMPANY access to
all of MARINEMAX's and NEWCO's sites, properties, books and records and will
furnish COMPANY with such additional financial and operating data and other
information as to the business and properties of MARINEMAX and NEWCO as COMPANY
may from time to time reasonably request. MARINEMAX and NEWCO will cooperate
with COMPANY, its representatives, auditors and counsel in the preparation of
any documents or other material which may be required in connection with any
documents or materials required by this Agreement. COMPANY will cause all
information obtained in connection with the negotiation and performance of this
Agreement to be treated as confidential in accordance with the provisions of
Section 14 hereof.
7.2 CONDUCT OF BUSINESS PENDING THE MERGER. Between the date of this
Agreement and the Effective Time, COMPANY shall, and Company shall cause all
Acquired Parties to, except as set forth on Schedule 7.2:
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(i) carry on its business in substantially the same manner as
it has heretofore and not introduce any material new method of management,
operation or accounting;
(ii) maintain its properties and facilities, including those
held under leases, in as good working order and condition as at present,
ordinary wear and tear excepted;
(iii) perform in all material respects all of its respective
obligations under agreements relating to or affecting its respective assets,
properties or rights;
(iv) use all reasonable efforts to keep in full force and
effect present insurance policies or other comparable insurance coverage;
(v) use its reasonable efforts to maintain and preserve its
business organization intact, retain its respective present key employees and
maintain its respective relationships with suppliers, customers and others
having business relations with COMPANY or any Acquired Party, as applicable;
(vi) maintain compliance with all material permits, laws,
rules and regulations, consent orders, and all other orders of applicable
courts, regulatory agencies and similar governmental authorities;
(vii) maintain present debt and lease instruments and not
enter into new or amended debt or lease instruments, without the knowledge and
consent of MARINEMAX (which consent shall not be unreasonably withheld),
provided that debt and/or lease instruments may be replaced without the consent
of MARINEMAX if such replacement instruments are on terms at least as favorable
to COMPANY or any Acquired Party, as applicable, as the instruments being
replaced; and
(viii) maintain or reduce present salaries and commission
levels for all officers, directors, employees and agents except for ordinary and
customary bonus and salary increases for employees in accordance with past
practices of COMPANY or any Acquired Party, as applicable.
7.3 PROHIBITED ACTIVITIES. Except as disclosed on Schedule 7.3, between
the date of this Agreement and the Effective Time, COMPANY shall not, and
Company shall cause all Acquired Parties to not, without prior written consent
of MARINEMAX:
(i) make any change in its Articles/Certificate of
Incorporation or Bylaws;
(ii) issue any securities, options, warrants, calls,
conversion rights or commitments relating to its securities of any kind other
than in connection with the exercise of options or warrants listed in Schedule
5.4;
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(iii) declare or pay any dividend, or make any distribution in
respect of its stock whether now or hereafter outstanding, or purchase, redeem
or otherwise acquire or retire for value any shares of its stock;
(iv) enter into any contract or commitment or incur or agree
to incur any liability or make any capital expenditures, except if it is in the
normal course of business (consistent with past practice) or involves an amount
not in excess of $50,000;
(v) create, assume or permit to exist any mortgage, pledge or
other lien or encumbrance upon any assets or properties whether now owned or
hereafter acquired, except (1) with respect to purchase money liens incurred in
connection with the acquisition of equipment with an aggregate cost not in
excess of $50,000 necessary or desirable for the conduct of its business, (2)
(a) liens for taxes either not yet due or being contested in good faith and by
appropriate proceedings (provided that with respect to contested taxes, adequate
reserves have been established and are being maintained) or (b) materialmen's,
mechanics', workers', repairmen's, employees' or other like liens arising in the
ordinary course of its business (the liens set forth in clause (2) above may be
referred to herein as "Statutory Liens"), or (3) liens set forth on Schedule
5.10 and/or 5.15 hereto;
(vi) sell, assign, lease or otherwise transfer or dispose of
any property or equipment except in the normal course of business;
(vii) negotiate for the acquisition of any business or the
start-up of any new business;
(viii) merge or consolidate or agree to merge or consolidate
with or into any other corporation;
(ix) waive any material rights or claims of COMPANY or any
Acquired Party, as applicable, provided that COMPANY or any Acquired Party, as
applicable, may negotiate and adjust bills in the course of good faith disputes
with customers in a manner consistent with past practice of COMPANY, or any
Acquired Party, as applicable;
(x) commit a material breach or amend or terminate any
material agreement, permit, license or other right of COMPANY or any Acquired
Party, as applicable; or
(xi) enter into any other transaction outside the ordinary
course of its business or prohibited hereunder.
7.4 [INTENTIONALLY DELETED].
7.5 [INTENTIONALLY DELETED.]
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7.6 AGREEMENTS. The STOCKHOLDERS and COMPANY shall terminate (i) any
stockholders agreements, voting agreements, voting trusts, options, warrants and
employment agreements between COMPANY, any Acquired Party and any of COMPANY'S
or any Acquired Party's employees. Such termination agreements are listed on
Schedule 7.6 and copies thereof shall be attached thereto.
7.7 NOTIFICATION OF CERTAIN MATTERS. The STOCKHOLDERS and COMPANY shall
give prompt notice to MARINEMAX of (i) the occurrence or non-occurrence of any
event the occurrence or non-occurrence of which would be likely to cause any
representation or warranty of COMPANY as defined in Section 5 or the
STOCKHOLDERS contained herein to be untrue or inaccurate in any material respect
at or prior to the Closing, and (ii) any material failure of any STOCKHOLDER or
COMPANY to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by such person hereunder. MARINEMAX and NEWCO shall
give prompt notice to COMPANY of (i) the occurrence or non-occurrence of any
event the occurrence or non-occurrence of which would be likely to cause any
representation or warranty of MARINEMAX or NEWCO contained herein to be untrue
or inaccurate in any material respect at or prior to the Closing, and (ii) any
material failure of MARINEMAX or NEWCO to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder. The
delivery of any notice pursuant to this Section 7.7 shall not be deemed to (i)
modify the representations or warranties hereunder of the party delivering such
notice, which modification may only be made pursuant to Section 7.8; (ii) modify
the conditions set forth in Sections 8 and 9; or (iii) limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
7.8 DELIVERY OF SCHEDULES; AMENDMENT OF SCHEDULES. The Schedules
required by this Agreement from the respective parties hereto shall be delivered
at the execution of this Agreement. Each party hereto agrees that, with respect
to the representations and warranties of such party contained in this Agreement,
such party shall have the continuing obligation until the Effective Time to
supplement or amend promptly the Schedules hereto with respect to any matter
hereafter arising or discovered which, if existing or known at the date of this
Agreement, would have been required to be set forth or described in the
Schedules, provided however, that supplements and amendments to Schedules 5.10,
5.11, 5.14 and 5.15 shall only have to be delivered at the Closing Date, unless
such Schedule is to be amended to reflect an event occurring other than in the
ordinary course of business. Notwithstanding the foregoing sentence, no
amendment or supplement to a Schedule prepared by COMPANY or the STOCKHOLDERS
that constitutes or reflects an event or occurrence that would have a Material
Adverse Effect may be made unless MARINEMAX consents to such amendment or
supplement; and provided further, that no amendment or supplement to a Schedule
prepared by MARINEMAX or NEWCO that constitutes or reflects an event or
occurrence that would have a Material Adverse Effect may be made unless the
COMPANY consents to such amendment or supplement. For all purposes of this
Agreement, including without limitation for purposes of determining whether the
conditions set forth in Sections 8.1 and 9.1 have been fulfilled, the Schedules
hereto shall
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be deemed to be the Schedules as amended or supplemented pursuant to this
Section 7.8. In the event that COMPANY seeks to amend or supplement a Schedule
pursuant to this Section 7.8, and MARINEMAX does not consent to such amendment
or supplement, this Agreement shall be deemed terminated by mutual consent as
set forth in Section 12.1(i) hereof. In the event that MARINEMAX or NEWCO seeks
to amend or supplement a Schedule pursuant to this Section 7.8 and the COMPANY
does not consent to such amendment or supplement, this Agreement shall be deemed
terminated by mutual consent as set forth in Section 12.1(i) hereof. No party to
this Agreement shall be liable to any other party if this Agreement shall be
terminated pursuant to the provisions of this Section 7.8. No amendment of or
supplement to a Schedule shall be made later than twenty-four (24) hours prior
to the Effective Time.
7.9 [INTENTIONALLY DELETED].
7.10 FINAL FINANCIAL STATEMENTS. COMPANY shall provide prior to the
Closing Date, and MARINEMAX shall have had sufficient time to review the
unaudited consolidated balance sheets of COMPANY as of the end of all months and
fiscal quarters following the Balance Sheet Date, and the unaudited consolidated
statement of income, cash flows and retained earnings of COMPANY for all months
and fiscal quarters ended after the Balance Sheet Date and on or before February
28, 1997 (collectively, the "Final COMPANY Financial Statements"), disclosing no
material adverse change in the financial condition of COMPANY or the results of
its operations from the COMPANY Financial Statements as of the Balance Sheet
Date. The Final COMPANY Financial Statements shall have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated and with past periods (except as noted therein). Except as noted in
the Final COMPANY Financial Statements, all of such financial statements will
present fairly the results of operations of COMPANY for the periods indicated
therein.
7.11 FURTHER ASSURANCES. The parties hereto agree to execute and
deliver, or cause to be executed and delivered, such further instruments or
documents and take such other actions as may be reasonably necessary or
convenient to carry out the transactions contemplated hereby, including, without
limitation, all further instruments, documents and actions as may be reasonably
required by MARINEMAX's independent public accountants and attorneys.
7.12 [INTENTIONALLY DELETED]
7.13 COMPLIANCE WITH THE XXXX-XXXXX ACT. All parties to this Agreement
hereby recognize that one or more filings under the Xxxx-Xxxxx Act may be
required in connection with the transactions contemplated herein. If it is
determined by the parties to this Agreement that filings under the Xxxx-Xxxxx
Act are required, then: (i) each of the parties hereto agrees to cooperate and
use its best efforts to comply with the Xxxx-Xxxxx Act, (ii) such compliance by
the STOCKHOLDERS and COMPANY shall be deemed a condition precedent in addition
to the conditions precedent set forth in Section 9 of this Agreement, and such
compliance by
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MARINEMAX and NEWCO shall be deemed a condition precedent in addition to the
conditions precedent set forth in Section 8 of this Agreement, and (iii) the
parties agree to cooperate and use their best efforts to cause all filings
required under the Xxxx-Xxxxx Act to be made. If filings under the Xxxx-Xxxxx
Act are required, the costs and expenses thereof (including filing fees) shall
be borne by MARINEMAX.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE STOCKHOLDERS
AND COMPANY
The obligations of the STOCKHOLDERS and COMPANY with respect to actions
to be taken on the Closing Date are subject to the satisfaction or waiver on or
prior to the Closing Date of all of the conditions in this Section 8. As of the
Closing Date, if any of such conditions have not been satisfied, the
STOCKHOLDERS (acting in unison) shall have the right to terminate this
Agreement, or in the alternative, waive any condition not so satisfied. Any act
or action of the STOCKHOLDERS in consummating the Closing or delivering
certificates representing the COMPANY Stock shall constitute a waiver of any
conditions not so satisfied. However, no such waiver shall be deemed to affect
the survival of the representations and warranties of MARINEMAX and NEWCO
contained in Section 6 hereof.
8.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS. All
representations and warranties of MARINEMAX and NEWCO contained in Section 6
shall be true and correct in all material respects as of the Closing Date and
the Effective Time as though such representations and warranties had been made
on and as of such date and time; all of the terms, covenants and conditions of
this Agreement to be complied with and performed by MARINEMAX and NEWCO on or
before the Closing Date shall have been duly complied with and performed in all
material respects; and certificates to the foregoing effect dated the Closing
Date and effective both on the Closing Date and at the Effective Time, and
signed by the President or any Vice President of MARINEMAX shall have been
delivered to the STOCKHOLDERS.
8.2 SATISFACTION. All actions, proceedings, instruments and documents
required to carry out this Agreement or incidental hereto and all other related
legal matters shall be approved by COMPANY and its counsel.
8.3 NO LITIGATION. No action or proceeding before a court or any other
governmental agency or body shall have been instituted or threatened to restrain
or prohibit the Merger and no governmental agency or body shall have taken any
other action or made any request of COMPANY as a result of which the management
of COMPANY deems it inadvisable to proceed with the transactions hereunder.
8.4 REAL ESTATE LEASES. COMPANY shall have entered into new lease
agreements pertaining to the real property and facilities located at (i) 0000
X-00 Xxxxx, Xxxxxx Xxxx, Xxxxxxx;
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(ii) 0000 Xxxx Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx; (iii) 0000 Xxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxx; and (iv) 0000 Xxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx, in the
forms attached hereto as Annex IV (the "Lease Agreements"), and such Lease
Agreements shall terminate and supersede any existing lease agreements with
respect to the foregoing properties.
8.5 CONSENTS AND APPROVALS. All necessary consents of and filings with
any governmental authority or agency relating to the consummation of the
transactions contemplated herein shall have been obtained and made, and no
action or proceeding shall have been instituted or threatened to restrain or
prohibit the Merger, and no governmental agency or body shall have taken any
other action or made any request of COMPANY as a result of which COMPANY deems
it inadvisable to proceed with the transactions contemplated herein.
8.6 GOOD STANDING CERTIFICATES. MARINEMAX and NEWCO each shall have
delivered to COMPANY a certificate, dated as of a date no later than ten (10)
days prior to the Closing Date, duly issued by the Delaware Secretary of State
and in each state in which MARINEMAX or NEWCO is authorized to do business,
showing that each of MARINEMAX and NEWCO is in good standing and authorized to
do business.
8.7 NO MATERIAL ADVERSE CHANGE. No event or circumstance shall have
occurred with respect to MARINEMAX or NEWCO that would constitute a Material
Adverse Effect.
8.8 [INTENTIONALLY DELETED].
8.9 SECRETARY'S CERTIFICATE. COMPANY shall have received a certificate
or certificates, dated the Closing Date and signed by the secretary of MARINEMAX
and of NEWCO, certifying the truth and correctness of attached copies of the
MARINEMAX's and NEWCO's respective Certificates of Incorporation (including
amendments thereto), Bylaws (including amendments thereto), and resolutions of
the boards of directors and, if required, the stockholders of MARINEMAX and
NEWCO, in each case approving MARINEMAX's and NEWCO's entering into this
Agreement and the consummation of the transactions contemplated hereby.
8.10 EMPLOYMENT AGREEMENTS. Each of the persons listed on Schedule 9.11
shall have been afforded the opportunity to enter into an employment agreement
substantially in the form attached hereto as Annex V.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF MARINEMAX AND NEWCO
The obligations of MARINEMAX and NEWCO with respect to actions to be
taken on the Closing Date are subject to the satisfaction or waiver on or prior
to the Closing Date of all of the conditions in this Section 9. As of the
Closing Date, all conditions not satisfied shall be deemed to have been waived,
except that no such waiver shall be deemed to affect the survival
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of the representations and warranties of COMPANY and the STOCKHOLDERS contained
in Section 5 hereof.
9.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS. All the
representations and warranties of the STOCKHOLDERS, and COMPANY as defined in
Section 5 hereof, contained in this Agreement shall be true and correct in all
material respects as of the Closing Date and the Effective Time with the same
effect as though such representations and warranties had been made on and as of
such date and time; all of the terms, covenants and conditions of this Agreement
to be complied with or performed by the STOCKHOLDERS and COMPANY on or before
the Closing Date or the Effective Time, as the case may be, shall have been duly
performed or complied with in all material respects; and the STOCKHOLDERS shall
have delivered to MARINEMAX certificates to the foregoing effect dated the
Closing Date and effective both on the Closing Date and at the Effective Time,
and signed by each of the STOCKHOLDERS.
9.2 NO LITIGATION. No action or proceeding before a court or any other
governmental agency or body shall have been instituted or threatened to restrain
or prohibit the Merger and no governmental agency or body shall have taken any
other action or made any request of MARINEMAX as a result of which the
management of MARINEMAX deems it inadvisable to proceed with the transactions
hereunder.
9.3 SECRETARY'S CERTIFICATE. MARINEMAX shall have received a
certificate, dated the Closing Date and signed by the secretary of COMPANY,
certifying the truth and correctness of attached copies of the Charter Documents
(including amendments thereto), Bylaws (including amendments thereto), and
resolutions of the board of directors and the STOCKHOLDERS approving COMPANY's
entering into this Agreement and the consummation of the transactions
contemplated hereby.
9.4 NO MATERIAL ADVERSE EFFECT. No event or circumstance shall have
occurred with respect to COMPANY that would constitute a Material Adverse
Effect, and COMPANY shall not have suffered any material loss or damages to any
of its properties or assets, whether or not covered by insurance, which change,
loss or damage materially affects or impairs the ability of COMPANY to conduct
its business.
9.5 STOCKHOLDERS' RELEASE. The STOCKHOLDERS shall have executed and
delivered to MARINEMAX an instrument at the Closing releasing COMPANY as of the
Effective Time from (a) any and all claims of the STOCKHOLDERS against COMPANY
and MARINEMAX and (b) obligations of COMPANY and MARINEMAX to the STOCKHOLDERS,
except for (i) items specifically identified on Schedules 5.10 and 5.15 as being
claims of or obligations to the STOCKHOLDERS, (ii) continuing obligations to the
STOCKHOLDERS relating to their employment by COMPANY and (iii) obligations
arising under this Agreement or the transactions contemplated hereby. The
STOCKHOLDER Release
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to be delivered pursuant to this Section shall be in form and content as set
forth in Annex VI hereto.
9.6 SATISFACTION. All actions, proceedings, instruments and documents
required to carry out the transactions contemplated by this Agreement or
incidental hereto and all other related legal matters shall have been approved
by counsel to MARINEMAX.
9.7 REAL ESTATE LEASES. MARINEMAX and NEWCO shall have approved the
forms and terms of the Lease Agreements as described and set forth in Section
8.4 and Annex IV hereof.
9.8 CONSENTS AND APPROVALS. All necessary consents of and filings with
any governmental authority or agency relating to the consummation of the
transactions contemplated herein shall have been obtained and made; all consents
and approvals of third parties listed on Schedule 5.23 shall have been obtained;
and no action or proceeding shall have been instituted or threatened to restrain
or prohibit the Merger and no governmental agency or body shall have taken any
other action or made any request of MARINEMAX as a result of which MARINEMAX
deems it inadvisable to proceed with the transactions hereunder.
9.9 GOOD STANDING CERTIFICATES. COMPANY shall have delivered to
MARINEMAX certificates, dated as of a date no earlier than ten (10) days prior
to the Closing Date, duly issued by the appropriate governmental authority in
COMPANY's and all Acquired Parties' states of incorporation and, unless waived
by MARINEMAX, in all states in which COMPANY and all Acquired Parties are
authorized to do business, showing COMPANY and all Acquired Parties are in good
standing and authorized to do business and that all state franchise and/or
income tax returns and taxes for COMPANY and all Acquired Parties for all
periods prior to the Closing have been filed and paid.
9.10 STOCKHOLDERS' GUARANTEES. STOCKHOLDERS shall each have executed
and delivered a guaranty securing the obligations of MARINEMAX arising under
that certain Loan Agreement and Security Agreement, by and between NationsCredit
Distribution Finance, Inc. and MARINEMAX.
9.11 EMPLOYMENT AGREEMENTS. Each of the persons listed on Schedule 9.11
shall enter into an employment agreement effective as of the Effective Time,
substantially in form and content as attached hereto as Annex V.
9.12 SPECIFIC INDEMNIFICATION AGREEMENT. The STOCKHOLDERS shall have
delivered a specific indemnification agreement in favor of MARINEMAX and NEWCO,
in form and content satisfactory to MARINEMAX in its sole discretion, pursuant
to which the STOCKHOLDERS shall agree to hold MARINEMAX and NEWCO harmless for,
from and against certain specific items for which indemnification shall be
required.
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9.13 [INTENTIONALLY DELETED].
9.14 INVESTMENT AGREEMENTS. STOCKHOLDERS shall each have executed and
delivered to MARINEMAX and NEWCO an investment agreement, in form and content as
set forth in Annex VII attached hereto (the "Investment Agreement").
10. COVENANTS OF MARINEMAX AND THE STOCKHOLDERS AFTER CLOSING
10.1 ASSUMPTION OF STOCKHOLDERS' GUARANTEES. MARINEMAX shall use its
commercially reasonable best efforts to have the STOCKHOLDERS released from any
and all guarantees on any indebtedness that they personally guaranteed and from
any and all pledges of assets that they pledged to secure such indebtedness for
the benefit of COMPANY, with all such guarantees on indebtedness being assumed
by MARINEMAX, except for the guarantees referenced in Section 9.10 hereof.
10.2 PRESERVATION OF TAX TREATMENT. Except as contemplated by this
Agreement after the Effective Time, MARINEMAX shall not, and shall not permit
any of its subsidiaries, to undertake any act that would jeopardize the tax-free
status of the reorganization contemplated by this Agreement, including, without
limitation, the retirement or reacquisition, directly or indirectly, of all or
part of the MARINEMAX Stock issued in connection with the transactions
contemplated hereby.
10.3 PREPARATION AND FILING OF TAX RETURNS.
(i) COMPANY shall, if possible, file or cause to be filed all
separate Returns of any Acquired Party for all taxable periods that end at or
before the Effective Time, which Returns as to the taxable periods that end at
or before the Effective Time shall be acceptable to the STOCKHOLDERS in their
reasonable judgment. Notwithstanding the foregoing, the STOCKHOLDERS shall file
or cause to be filed all separate federal income tax returns (and any state and
local tax returns filed on the basis similar to that of S corporations under
federal income tax rules) of any Acquired Party for all taxable periods that end
at or before the Effective Time. Each STOCKHOLDER shall pay or cause to be paid
all Tax liabilities (in excess of all amounts already paid with respect thereto
or properly accrued or reserved with respect thereto on COMPANY Financial
Statements) shown by such returns to be due.
(ii) MARINEMAX shall file or cause to be filed all separate
Returns of, or that include, any Acquired Party for all taxable periods ending
after the Effective Time.
(iii) Each party hereto shall, and shall cause its
subsidiaries and affiliates to, provide to each of the other parties hereto such
cooperation and information as any of them reasonably may request in filing any
Return, amended Return or claim for refund, determining a liability for Taxes or
a right to refund of Taxes or in conducting any audit or other proceeding
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in respect of Taxes. Such cooperation and information shall include providing
copies of all relevant portions of relevant Returns, together with relevant
accompanying schedules and relevant work papers, relevant documents relating to
rulings or other determinations by any taxing authority and relevant records
concerning the ownership and tax basis of property, which such party may
possess. Each party shall make its employees reasonably available on a mutually
convenient basis at its cost to provide explanation of any documents or
information so provided. Subject to the preceding sentence, each party required
to file Returns pursuant to this Agreement shall bear all costs of filing such
Returns.
(iv) Each of COMPANY, NEWCO, MARINEMAX and each STOCKHOLDER
shall treat the transaction as a plan of reorganization pursuant to Section
368(a)(1)(A) and Section 368(a)(2)(E) of the Code.
10.4 [INTENTIONALLY DELETED].
10.5 PRESERVATION OF EMPLOYEE BENEFIT PLANS. Following the Effective
Time, MARINEMAX shall not terminate any health insurance, life insurance or
401(k) plan in effect at COMPANY until such time as MARINEMAX is able to replace
such plan with a plan that is applicable to MARINEMAX and all of its then
existing subsidiaries, provided that MARINEMAX shall have no obligation to
provide replacement plans that have the same terms and provisions as the
existing plans, provided, further, that any new health insurance plan shall
provide for coverage for preexisting conditions. At the Effective Time, the
employees of COMPANY will be the employees of the Surviving Corporation provided
that this provision is for purposes of clarifying that the Merger, in and of
itself, will not have any impact on the employment status of any employee and
provided, further that this provision shall not in any way limit the management
rights of the Surviving Corporation or MARINEMAX to assess work force needs and
make appropriate adjustments as necessary or desirable within their discretion
(subject to applicable laws).
10.6 DIVIDENDS. The COMPANY and all Acquired Parties shall not declare
or pay any dividends or distributions to any of the STOCKHOLDERS, or COMPANY, as
applicable.
10.7 [INTENTIONALLY DELETED].
11. INDEMNIFICATION
The STOCKHOLDERS, MARINEMAX and NEWCO each make the following covenants
that are applicable to them, respectively:
11.1 GENERAL INDEMNIFICATION BY THE STOCKHOLDERS. The STOCKHOLDERS
jointly and severally covenant and agree that they will indemnify, defend,
protect and hold harmless MARINEMAX, NEWCO, COMPANY and the Surviving
Corporation at all times,
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from and after the date of this Agreement for, from and against all claims,
damages, actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) incurred by MARINEMAX, NEWCO,
COMPANY or the Surviving Corporation as a result of or arising from (a) any
breach of the representations and warranties of the STOCKHOLDERS or COMPANY set
forth herein or on the Schedules or certificates delivered in connection
herewith; (b) any breach of any agreement on the part of the STOCKHOLDERS or
COMPANY under this Agreement; and (c) any environmental matters set forth in
Section 11.5 hereof. For purposes of this Section 11, the term COMPANY shall
refer to COMPANY and all other Acquired Parties, if any.
11.2 INDEMNIFICATION BY MARINEMAX. MARINEMAX covenants and agrees that
it will indemnify, defend, protect and hold harmless the STOCKHOLDERS at all
times from and after the date of this Agreement for, from and against all
claims, damages, actions, suits, proceedings, demands, assessments, adjustments,
costs and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) incurred by the STOCKHOLDERS as a
result of or arising from (a) any breach by MARINEMAX or NEWCO of their
representations and warranties set forth herein or on the schedules or
certificates attached hereto; (b) any breach of any agreement or any
nonfulfillment of any agreement on the part of MARINEMAX or NEWCO under this
Agreement; or (c) any liabilities which the STOCKHOLDERS may incur due to
MARINEMAX's or NEWCO's failure to be responsible for the liabilities and
obligations of COMPANY as provided in Section 1 hereof (except to the extent
that MARINEMAX or NEWCO has claims against the STOCKHOLDERS by reason of such
liabilities).
11.3 THIRD PERSON CLAIMS. Promptly after any party hereto (hereinafter
the "Indemnified Party") has received notice of or has knowledge of any claim by
a person not a party to this Agreement ("Third Person"), or the commencement of
any action or proceeding by a Third Person, the Indemnified Party shall, as a
condition precedent to a claim with respect thereto being made against any party
obligated to provide indemnification pursuant to Section 11.1, 11.2 or 11.5
hereof hereinafter (the "Indemnifying Party"), give the Indemnifying Party
written notice of such claim or of the commencement of such action or
proceeding. Such notice shall state the nature and the basis of such claim and a
reasonable estimate of the amount thereof. The Indemnifying Party shall have the
right to defend and settle, at its own expense and by its own counsel, any such
matter so long as the Indemnifying Party pursues the same in good faith and
diligently, provided that the Indemnifying Party shall not settle any criminal
proceeding or agree to any nonmonetary remedy without the prior written consent
of the Indemnified Party, whose consent may be withheld in its sole discretion.
If the Indemnifying Party undertakes to defend or settle, it shall promptly
notify the Indemnified Party of its intention to do so, and the Indemnified
Party shall cooperate with the Indemnifying Party and its counsel in the defense
thereof and in any settlement thereof. Such cooperation shall include, but shall
not be limited to, furnishing the Indemnifying Party with any books, records or
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information reasonably requested by the Indemnifying Party that are in the
Indemnified Party's possession or control. All Indemnified Parties shall use the
same counsel, which shall be the counsel selected by Indemnifying Party,
provided that if counsel to the Indemnifying Party shall have a conflict of
interest that prevents counsel for the Indemnifying Party from representing
Indemnified Party, Indemnified Party shall have the right to participate in such
matter through counsel of its own choosing and Indemnifying Party will reimburse
the Indemnified Party for the reasonable expenses of such counsel. After the
Indemnifying Party has notified the Indemnified Party of its intention to
undertake to defend or settle any such asserted liability, and for so long as
the Indemnifying Party diligently pursues such defense, the Indemnifying Party
shall not be liable for any additional legal expenses incurred by the
Indemnified Party in connection with any defense or settlement of such asserted
liability, except (a) as set forth in the preceding sentences, and (b) to the
extent such participation is requested by the Indemnifying Party, in which event
the Indemnified Party shall be reimbursed by the Indemnifying Party for
reasonable additional legal expenses and out-of-pocket expenses. If the
Indemnifying Party desires to accept a final and complete settlement of any
Third Person's claim and the Indemnified Party refuses to consent to such
settlement, then the Indemnifying Party's liability under this Section with
respect to such Third Person claim shall be limited to the amount so offered in
settlement by said Third Person. Upon agreement as to a settlement between said
Third Person and the Indemnifying Party, the Indemnifying Party shall, in
exchange for a complete release from the Indemnified Party, promptly (x) in the
case of MARINEMAX being the Indemnifying Party, pay to the Indemnified Party the
amount agreed to in such settlement, and (y) in the case of the STOCKHOLDERS
being the Indemnifying Party, cause the MARINEMAX Stock held in escrow to be
used in such settlement; and the Indemnified Party shall, from that moment on,
bear full responsibility for any additional costs of defense which it
subsequently incurs with respect to such claim and all additional costs of
settlement or judgment. If the Indemnifying Party does not undertake to defend
such matter to which the Indemnified Party is entitled to indemnification
hereunder, or fails diligently to pursue such defense, the Indemnified Party may
undertake such defense through counsel of its choice, at the cost and expense of
the Indemnifying Party, and the Indemnified Party may settle such matter, and
the Indemnifying Party shall reimburse the Indemnified Party in the manner set
forth above in this Section 11.3 for the amount paid in such settlement and any
other liabilities or expenses incurred by the Indemnified Party in connection
therewith, provided, however, that under no circumstances shall the Indemnified
Party settle any Third Person's claim without the written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
All settlements hereunder shall effect a complete release of the Indemnifying
Party, unless the Indemnifying Party otherwise agrees in writing. The parties
hereto will make appropriate adjustments for insurance proceeds in determining
the amount of any indemnification obligation under this Section.
11.4 LIMITATIONS ON INDEMNIFICATION. MARINEMAX, NEWCO, the Surviving
Corporation and the other persons or entities entitled to indemnification
pursuant to Section 11.1, 11.2 or 11.5 shall not assert any claim for
indemnification hereunder against the
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STOCKHOLDERS until such time as, and solely to the extent that, the aggregate of
all claims that such persons may have against the STOCKHOLDERS shall exceed the
sum of $250,000 (the "Indemnification Deductible"); and after such
Indemnification Deductible amount has been attained, only claims in excess of
such amount shall be indemnified hereunder. The STOCKHOLDERS shall not assert
any claim for indemnification hereunder against MARINEMAX or NEWCO until such
time as, and solely to the extent that, the aggregate of all claims which the
STOCKHOLDERS may have against MARINEMAX or NEWCO shall exceed the sum of
$250,000.
No person shall be entitled to indemnification under this Section 11 if
and to the extent that such person's claim for indemnification is directly or
indirectly related to a breach by such person of any representation, warranty,
covenant or other agreement set forth in this Agreement.
The liability of the Company for breaches of its representations and
warranties contained in this Agreement and for any indemnification obligation
herein shall cease as of the Effective Time, and MARINEMAX and Surviving
Corporation may recover for such breaches and recover for such indemnification
only from the MARINEMAX Stock held in escrow pursuant to and as provided in the
Escrow and Security Agreement, except to the extent specific and separate
indemnification is provided by the STOCKHOLDERS.
MARINEMAX and Surviving Corporation may recover for indemnification
hereunder only from the MARINEMAX Stock held in escrow pursuant to and as
provided in the Escrow and Security Agreement, except to the extent specific and
separate indemnification is provided by the STOCKHOLDERS. It is hereby
understood and agreed that STOCKHOLDERS may only satisfy an indemnification
obligation through payment of stock, such stock to be valued as described
immediately below. Notwithstanding any term of this Agreement to the contrary,
no provision of this Agreement shall limit or be deemed to limit any liability
or remedy one party may have against any other parties hereto that arises by
statute or any applicable federal, state or local law.
For purposes of calculating the value of the MARINEMAX Stock received
by STOCKHOLDERS, MARINEMAX Stock shall be valued at $13.00 per share.
No provision of this Agreement or in this Section 11 shall limit or be
deemed to limit any liability or remedy one party may have against any other
parties hereto with respect to a claim of fraud.
11.5 ENVIRONMENTAL INDEMNIFICATION BY THE STOCKHOLDERS. The
STOCKHOLDERS jointly and severally covenant and agree that they will indemnify,
defend, protect and hold harmless MARINEMAX, NEWCO, COMPANY and the Surviving
Corporation at all times, from and after date of this Agreement for, from and
against all claims, damages, actions, suit, proceedings, demands, assessments,
adjustments, costs and expenses (including
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specifically, but without limitation, reasonable attorneys' fees and expenses of
investigation) incurred by MARINEMAX, NEWCO, COMPANY or the Surviving
Corporation as a result of or arising from: (i) any use, generation,
transportation, storage, treatment, disposal or presence of Hazardous Wastes
and/or Hazardous Substances occurring on or prior to the Effective Time
including, without limitation, any waste or other disposal activities or
releases which occurred at a facility on which any portion of the COMPANY'S (or
its predecessors') business was conducted, any waste or other disposal
activities or releases which occurred off of any such facility with regard to
wastes and other substances generated on such facility, and any waste or other
disposal activities or releases which occurred on real estate at any time
whether or not the COMPANY (or its predecessors) owned or leased such real
estate at the time such waste or other disposal activities or releases were
engaged in, and whether or not the COMPANY performed such waste or other
disposal activities or releases; (ii) any past, present or threatened spills,
discharges, leaks, emissions, injections, escapes, dumping, pumping, pouring,
emptying, leaching, leaking, disposing or any releases or threatened releases as
defined now or in the future under any applicable Environmental Law, to surface
waters, groundwaters, soil, ambient air or otherwise into the environment
occurring as a result of any activities of the COMPANY (or its predecessors') on
or prior to the Effective Time, including, without limitation, both those
releases or incidents involving potential or actual environmental contamination
which required notification or reporting to appropriate federal, state or local
officials or agencies, or clean-up or remedial activities and those releases or
incidents which occurred prior to the effective date of any requirements
imposing such notification or reporting obligations or clean-up or remedial
activities, but which would have been subject to such obligations if they had
occurred subsequent to the effective date of such requirements; (iii) the
exposure of and resulting consequences to any persons, including, without
limitation, employees of the COMPANY, to any mineral, chemical or industrial
product, raw material intermediate, by-product or Hazardous Waste and/or
Hazardous Substance created, stored, treated, generated, processed, handled or
originating at a facility at which the COMPANY (or any of its predecessors)
conducted business on or prior to the Effective Time or otherwise used by the
COMPANY (or any of its predecessors) in the conduct of its or their business;
(iv) any violations or claim of violations by the COMPANY, or pertaining to its
properties, of Environmental Laws, occupational or employee health and safety
laws or otherwise arising out of or under such laws, which violations or alleged
violations occurred prior to the Effective Time; (v) any and all actions,
failures to act and negligence in monitoring, maintaining and upkeep of on-site
generation, storage, treatment, transportation and disposal operations on or
prior to the Effective Time; (vi) any installation, use, removal, maintenance or
monitoring of storage tanks or related facilities on or prior to the Effective
Time; or (vii) any violations, fees, obligations or failures to comply with any
and all Environmental Laws, permit requirements, authorizations, orders and
other administrative or legal directives on or prior to the Effective Time.
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12. TERMINATION OF AGREEMENT
12.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time solely:
(i) by mutual consent of the boards of directors of MARINEMAX,
NEWCO and COMPANY;
(ii) by the STOCKHOLDERS or COMPANY (acting through its board
of directors), on the one hand, or by MARINEMAX (acting through its board of
directors), on the other hand, if the transactions contemplated by this
Agreement to take place at the Closing shall not have been consummated by July
31, 1998, unless the failure of such transactions to be consummated is due to
the willful failure of the party seeking to terminate this Agreement to perform
any of its obligations under this Agreement or satisfy any conditions precedent
set forth in this Agreement and over which such party has influence or to the
extent required to be performed by such party prior to the Effective Time.
(iii) by the STOCKHOLDERS or COMPANY, on the one hand, or by
MARINEMAX, on the other hand, if a material breach or default shall be made by
the other party in the observance or in the due and timely performance of any of
the covenants or agreements contained herein, and the curing of such default
shall not have been made on or before the Closing Date or by the STOCKHOLDERS or
COMPANY, if the conditions set forth in Section 8 hereof have not been satisfied
or waived as of the Closing Date, as applicable, or by MARINEMAX, if the
conditions set forth in Section 9 hereof have not been satisfied or waived as of
the Closing Date; or
(iv) pursuant to Section 7.8 hereof.
12.2 LIABILITIES IN EVENT OF TERMINATION. Except as provided in Section
7.8 hereof, the termination of this Agreement will in no way limit any
obligation or liability of any party based on or arising from a breach or
default by such party with respect to any of its representations, warranties,
covenants or agreements contained in this Agreement including, without
limitation, legal and audit costs and out-of-pocket expenses.
13. NONCOMPETITION
13.1 PROHIBITED ACTIVITIES. The STOCKHOLDERS will not, for a period of
five (5) years following the Effective Time (the "Restricted Period"), for any
reason whatsoever, directly or indirectly, for themselves or on behalf of or in
conjunction with any other person, persons, company, partnership, corporation or
business of whatever nature:
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(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales representative, in
any business that sells, rents and leases boating, nautical or other similar
lifestyle entertainment products and services, in direct competition with
MARINEMAX or any of the subsidiaries thereof, within 100 mile radius of where
COMPANY, any Acquired Party, MARINEMAX or any of its or their existing or future
subsidiaries conduct business (the "Territory");
(ii) call upon any person who is or becomes during the
Restricted Period an employee of MARINEMAX (including the subsidiaries thereof)
in a sales representative or managerial capacity for the purpose or with the
intent of enticing such employee away from or out of the employ of MARINEMAX
(including the subsidiaries thereof);
(iii) call upon any person or entity that is, or becomes
during the Restricted Period, or which has been, within one (1) year prior to
the Effective Time, a customer of MARINEMAX (including the subsidiaries
thereof), of COMPANY, or any Acquired Party for the purpose of soliciting or
selling products or services in direct competition with MARINEMAX within the
Territory;
(iv) call upon any prospective acquisition candidate, on any
STOCKHOLDERS own behalf or on behalf of any competitor in the business of
selling, renting and leasing boating, nautical or other similar lifestyle
entertainment products and services, which candidate, to the actual knowledge of
such STOCKHOLDER after due inquiry, was called upon by MARINEMAX (including any
subsidiary thereof) or for which, to the best knowledge and belief of such
STOCKHOLDER after due inquiry, MARINEMAX (or any subsidiary thereof) made an
acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customers, whether in existence or proposed, of
MARINEMAX and its subsidiaries, COMPANY, or other Acquired Party to any person,
firm, partnership, corporation or business for any reason or purpose whatsoever
except to the extent that COMPANY or any Acquired Party has in the past
disclosed such information to the public for valid business reasons.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit any STOCKHOLDER from acquiring as an investment not more than three
percent (3%) of the capital stock of a competing business whose stock is traded
on a national securities exchange or over-the-counter market.
13.2 DAMAGES. Because of the difficulty of measuring economic losses to
MARINEMAX as a result of a breach of the foregoing covenant, and because of the
immediate and irreparable damage that could be caused to MARINEMAX for which it
would have no other adequate remedy, each STOCKHOLDER agrees that the foregoing
covenant may be enforced
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by MARINEMAX in the event of breach by such STOCKHOLDER, by injunctions and
restraining orders.
13.3 REASONABLE RESTRAINT. It is agreed by the parties hereto that the
foregoing covenants in this Section 13 impose a reasonable restraint on the
STOCKHOLDERS in light of the activities and business of MARINEMAX (including the
subsidiaries thereof) on the date of the execution of this Agreement and the
current plans of MARINEMAX.
13.4 SEVERABILITY; REFORMATION. The covenants in this Section 13 are
severable and separate, and the unenforceability of any specific covenant shall
not affect the provisions of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth herein are unreasonable, then it is the
intention of the parties that such restrictions be enforced to the fullest
extent the court deems reasonable, and the Agreement shall thereby be reformed.
13.5 INDEPENDENT COVENANT. All of the covenants in this Section 13
shall be construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of any STOCKHOLDER
against MARINEMAX (including the subsidiaries thereof), whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by MARINEMAX of such covenants. It is specifically agreed that the period of
five (5) years stated at the beginning of this Section 13, during which the
agreements and covenants of each STOCKHOLDER made in this Section 13 shall be
effective, shall be computed by excluding from such computation any time during
which such STOCKHOLDER is in violation of any provision of this Section 13. The
covenants contained in Section 13 shall not be affected by any breach of any
other provision hereof by any party hereto and shall have no effect if the
transactions contemplated by this Agreement are not consummated.
13.6 MATERIALITY. COMPANY and the STOCKHOLDERS hereby agree that this
covenant is a material and substantial part of this transaction.
14. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
14.1 STOCKHOLDERS. The STOCKHOLDERS recognize and acknowledge that they
had in the past, currently have, and in the future may possibly have, access to
certain confidential information of COMPANY, any Acquired Party, and/or
MARINEMAX and its subsidiaries, such as operational policies, and pricing and
cost policies that are valuable, special and unique assets of COMPANY's, any
Acquired Party, and/or MARINEMAX and its subsidiaries' respective businesses.
The STOCKHOLDERS each agree that they will not disclose such confidential
information to any person, firm, corporation, association or other entity for
any purpose or reason whatsoever, except (a) to authorized representatives of
MARINEMAX, (b) following the Closing, such information may be disclosed by the
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STOCKHOLDERS as is required in the course of performing their duties for
MARINEMAX or the Surviving Corporation, and (c) to counsel and other advisers,
provided that such advisers (other than counsel) agree to the confidentiality
provisions of this Section 14.1, unless (i) such information becomes known to
the public generally through no fault of the STOCKHOLDERS, (ii) disclosure is
required by law or the order of any governmental authority under color of law,
provided, that prior to disclosing any information pursuant to this clause (ii),
the STOCKHOLDERS shall, if possible, give prior written notice thereof to
MARINEMAX and provide MARINEMAX with the opportunity to contest such disclosure,
or (iii) the disclosing party reasonably believes that such disclosure is
required in connection with the defense of a lawsuit against the disclosing
party. In the event of a breach or threatened breach by any of the STOCKHOLDERS
of the provisions of this Section, MARINEMAX shall be entitled to an injunction
restraining such STOCKHOLDERS from disclosing, in whole or in part, such
confidential information. Nothing herein shall be construed as prohibiting
MARINEMAX from pursuing any other available remedy for such breach or threatened
breach, including the recovery of damages. In the event the transactions
contemplated by this Agreement are not consummated, the STOCKHOLDERS shall have
none of the above-mentioned restrictions on their ability to disseminate
confidential information with respect to COMPANY.
14.2 MARINEMAX AND NEWCO. MARINEMAX and NEWCO recognize and acknowledge
that they had in the past and currently have access to certain confidential
information of COMPANY, such as operational policies, and pricing and cost
policies that are valuable, special and unique assets of COMPANY's business.
MARINEMAX and NEWCO agree that, prior to the Closing, or if the transactions
contemplated by this Agreement are not consummated, they will not disclose such
confidential information to any person, firm, corporation, association or other
entity for any purpose or reason whatsoever, except (a) to authorized
representatives of COMPANY, and (b) to counsel and other advisers, provided that
such advisers (other than counsel) agree to the confidentiality provisions of
this Section 14.1, unless (i) such information becomes known to the public
generally through no fault of MARINEMAX or NEWCO, (ii) disclosure is required by
law or the order of any governmental authority under color of law, provided,
that prior to disclosing any information pursuant to this clause (ii), MARINEMAX
and NEWCO shall, if possible, give prior written notice thereof to COMPANY and
the STOCKHOLDERS and provide COMPANY and the STOCKHOLDERS with the opportunity
to contest such disclosure, or (iii) the disclosing party reasonably believes
that such disclosure is required in connection with the defense of a lawsuit
against the disclosing party, and (d) to the public to the extent necessary or
advisable in connection with applicable securities laws. In the event of a
breach or threatened breach by MARINEMAX or NEWCO of the provisions of this
Section, COMPANY and the STOCKHOLDERS shall be entitled to an injunction
restraining MARINEMAX and NEWCO from disclosing, in whole or in part, such
confidential information. Nothing herein shall be construed as prohibiting
COMPANY and the STOCKHOLDERS from pursuing any other available remedy for such
breach or threatened breach, including the recovery of damages.
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14.3 DAMAGES. Because of the difficulty of measuring economic losses as
a result of the breach of the foregoing covenants in Sections 14.1 and 14.2, and
because of the immediate and irreparable damage that would be caused for which
they would have no other adequate remedy, the parties hereto agree that, in the
event of a breach by any of them of the foregoing covenants, the covenant may be
enforced against them by injunctions and restraining orders.
14.4 SURVIVAL. The obligations of the parties under this Section 14
shall survive the termination of this Agreement for a period of five (5) years
from the Effective Time.
15. [INTENTIONALLY DELETED].
16. FEDERAL SECURITIES ACT REPRESENTATIONS
16.1 COMPLIANCE WITH LAW. The STOCKHOLDERS acknowledge that the shares
of MARINEMAX Stock to be delivered to the STOCKHOLDERS pursuant to this
Agreement have not been and will not be registered under the Act and therefore
may not be resold without compliance with the Act. The MARINEMAX Stock to be
acquired by such STOCKHOLDERS pursuant to this Agreement is being acquired
solely for their own respective accounts, for investment purposes only, and with
no present intention of distributing, selling or otherwise disposing of it in
connection with a distribution. The STOCKHOLDERS jointly and severally covenant,
warrant and represent that none of the shares of MARINEMAX Stock issued to such
STOCKHOLDERS will be offered, sold, assigned, pledged, hypothecated, transferred
or otherwise disposed of except after full compliance with all of the applicable
provisions of the Act and the rules and regulations of the SEC. The certificates
evidencing the MARINEMAX Stock delivered to the STOCKHOLDERS pursuant to this
Agreement will bear a legend substantially in the form set forth below and
containing such other information as MARINEMAX may deem necessary or
appropriate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
ACT AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF SUCH ACTS.
THE SHARES MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER SUCH ACTS
OR THE RECEIPT OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
16.2 ECONOMIC RISK; SOPHISTICATION. The STOCKHOLDERS are able to bear
the economic risk of an investment in the MARINEMAX Stock to be acquired
pursuant to this Agreement and can afford to sustain a total loss of such
investment and have such knowledge and experience in financial and business
matters that they are capable of evaluating the merits
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and risks of the proposed investment in the MARINEMAX Stock. The STOCKHOLDERS
have had an adequate opportunity to ask questions and receive answers from the
officers of MARINEMAX concerning any and all matters relating to the
transactions described herein including, without limitation, the background and
experience of the current and proposed officers of MARINEMAX, the business,
operations and financial condition of MarineMax, and any plans for additional
acquisitions and the like. The STOCKHOLDERS have asked any and all questions in
the nature described in the preceding sentence and all questions have been
answered to their satisfaction.
17. GENERAL
17.1 COOPERATION. COMPANY, the STOCKHOLDERS, MARINEMAX and NEWCO shall
each deliver or cause to be delivered to the other on the Closing Date, and at
such other times and places as shall be reasonably agreed to, such additional
instruments as the other may reasonably request for the purpose of carrying out
this Agreement. COMPANY will cooperate and use its reasonable efforts to have
the present officers, directors and employees of COMPANY cooperate with
MARINEMAX on and after the Closing Date in furnishing information, evidence,
testimony and other assistance in connection with any tax return filing
obligations, actions, proceedings, arrangements or disputes of any nature with
respect to matters pertaining to all periods ending at or prior to the Effective
Time.
17.2 SUCCESSORS AND ASSIGNS. This Agreement and the rights of the
parties hereunder may not be assigned (except by operation of law) and shall be
binding upon and shall inure to the benefit of the parties hereto, the
successors of MARINEMAX, and the heirs and legal representatives of the
STOCKHOLDERS.
17.3 ENTIRE AGREEMENT. This Agreement (including the Schedules and
annexes attached hereto) and the documents delivered pursuant hereto constitute
the entire agreement and understanding among the STOCKHOLDERS, COMPANY, NEWCO
and MARINEMAX and supersede any prior agreement and understanding relating to
the subject matter of this Agreement. This Agreement, upon execution,
constitutes a valid and binding agreement of the parties hereto enforceable in
accordance with its terms and may be modified or amended only by a written
instrument executed by the STOCKHOLDERS, COMPANY, NEWCO and MARINEMAX, acting
through their respective officers, duly authorized by their respective Boards of
Directors.
17.4 COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, all of which shall be deemed an original and all of which together
shall constitute but one and the same instrument.
17.5 BROKERS AND AGENTS. Except as disclosed on Schedule 17.5, each
party represents and warrants that it employed no broker or agent in connection
with this transaction
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and agrees to indemnify the other parties hereto against all loss, cost, damages
or expense arising out of claims for fees or commission of brokers employed or
alleged to have been employed by such indemnifying party.
17.6 EXPENSES. Whether or not the transactions herein contemplated
shall be consummated, MARINEMAX will pay the fees, expenses and disbursements of
MARINEMAX and its agents, representatives, accountants and counsel incurred in
connection with the subject matter of this Agreement and any amendments thereto,
including all costs and expenses incurred in the performance and compliance with
all conditions to be performed by MARINEMAX under this Agreement, including the
fees and expenses of X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx & Xxxxxxxx,
P.A., Xxxxxx Xxxxxxxx, L.L.P., and any other person or entity retained by
MARINEMAX. Each STOCKHOLDER shall pay all sales, use, transfer, real property
transfer, recording, gains, stock transfer and other similar taxes and fees
("Transfer Taxes") imposed in connection with the Merger, other than Transfer
Taxes, if any, imposed by the State of Delaware. Each STOCKHOLDER shall file all
necessary documentation and Returns with respect to such Transfer Taxes. In
addition, each STOCKHOLDER acknowledges that he or she, and not COMPANY or
MARINEMAX, will pay all taxes due upon receipt of the consideration payable
pursuant to Section 2 hereof, and will assume all tax risks and liabilities of
such STOCKHOLDER in connection with the transactions contemplated hereby.
17.7 NOTICES. All notices of communication required or permitted
hereunder shall be in writing and may be given by depositing the same in United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, or by delivering the same
in person to an officer or agent of such party.
(a) If to MARINEMAX, or NEWCO, addressed to them at:
MarineMax, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. XxXxxx, Xx.
with copies to:
X'Xxxxxx Xxxxxxxx
One East Camelback Road
Suite 1100
Attn: Xxxxxx X. Xxxx, Esq. and Xxxx X. Xxxxxx, Esq.
Xxxxxxx, Xxxxxxx 00000
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(b) If to the STOCKHOLDERS, addressed to them at:
_______________________________
_______________________________
_______________________________
Attn: _________________________
With copies to:
Xxxxxxx Xxxxxx, Esq.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
(c) If to COMPANY, addressed to it at:
Xxxxxxx Marine, Inc.
0000 X-00 Xxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Attn: _________________________
with copies to:
Xxxxxxx Xxxxxx, Esq.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
or to such other address or counsel as any party hereto shall specify pursuant
to this Section 17.7 from time to time.
17.8 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Delaware, notwithstanding any conflict of laws
principles applicable in such state.
17.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements of the parties made herein and at the time
of the Closing or in writing delivered pursuant to the provisions of this
Agreement shall survive the consummation of the transactions contemplated hereby
and any examination on behalf of the parties.
17.10 EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided
herein, no delay of or omission in the exercise of any right, power or remedy
accruing to any party as a result of any breach or default by any other party
under this Agreement shall impair any such right, power or remedy, nor shall it
be construed as a waiver of or acquiescence in any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single
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breach or default be deemed a waiver of any other breach or default occurring
before or after that waiver.
17.11 TIME. Time is of the essence with respect to this Agreement.
17.12 REFORMATION AND SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
17.13 REMEDIES CUMULATIVE. No right, remedy or election given by any
term of this Agreement shall be deemed exclusive but each shall be cumulative
with all other rights, remedies and elections available at law or in equity.
17.14 CAPTIONS. The headings of this Agreement are inserted for
convenience only, shall not constitute a part of this Agreement or be used to
construe or interpret any provision hereof.
17.15 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived only with the
written consent of MARINEMAX, NEWCO, COMPANY and the STOCKHOLDERS who hold or
who will hold at least 50% of the MARINEMAX Stock issued or to be issued upon
consummation of the Merger. Any amendment or waiver effected in accordance with
this Section 17.15 shall be binding upon each of the parties hereto, any other
person receiving MARINEMAX Stock in connection with the Merger and each future
holder of such MARINEMAX Stock.
17.16 EXECUTION BY FACSIMILE; DELIVERY OF ORIGINAL SIGNED AGREEMENT.
This Agreement may be executed by facsimile, and shall be deemed effectively
executed upon the receipt by all parties hereto of the last page of this
Agreement duly executed by the other parties hereto. Each party to this
Agreement agrees to deliver six (6) original, inked and signed copies of the
execution page of this Agreement within four (4) days of faxing the executed
last page hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MARINEMAX:
MARINEMAX, INC., a Delaware
corporation
By: /s/_____________________
Name:_______________________
Title:______________________
NEWCO:
XXXXXXX ACQUISITION CORP., a
Delaware corporation
By: /s/_____________________
Name:_______________________
Title:______________________
COMPANY:
XXXXXXX MARINE, INC., a Georgia
corporation
By: /s/_____________________
Name:_______________________
Title:______________________
STOCKHOLDERS:
/s/_________________________
XXXX XXXXXX XXXXXXX
/s/_________________________
XXXXXX X. XXXXXXX
/s/_________________________
XXX X. XXXXXXX
00
00
CONSENT OF SPOUSE
The undersigned spouse of Xxxx Xxxxxx Xxxxxxx, who is a party to the
foregoing Agreement of Merger and Plan of Reorganization, pertaining to the
merger of Xxxxxxx Acquisition Corp., a Delaware corporation with, and into
Xxxxxxx Marine, Inc., a Georgia corporation (the "Agreement"), hereby declares,
contemporaneously with the execution of the Agreement, that she has read the
Agreement in its entirety, and being fully convinced of the wisdom of the terms
of the Agreement, and in consideration of the premises and of the provisions of
the Agreement, hereby expresses her consent to the execution and consummation of
the Agreement by Xxxx Xxxxxx Xxxxxxx.
The undersigned further agrees that in the event of the death of Xxxx
Xxxxxx Xxxxxxx, the dissolution of their marriage, or any occurrence
contemplated by the Agreement that gives rise to any liability or obligation of
Xxxx Xxxxxx Xxxxxxx, the provisions of the Agreement shall be binding upon her
to the extent of any community property she may now have or hereafter acquire,
and any and all separate property that she hereafter acquires which arises
(directly or indirectly) from any consideration given to Xxxx Xxxxxx Xxxxxxx,
pursuant to the Agreement or any agreement executed in connection thereto.
The undersigned further agrees that she will, at any and all times,
make, execute and deliver such instruments and documents as may be reasonable
necessary to carry out the provisions of the Agreement, provided that no such
documents require the incurring of any liabilities in excess of that already
provided in the Agreement.
Dated this ____ day of _________________, 1998.
/s/_____________________________
Spouse of Xxxx Xxxxxx Xxxxxxx
State of _________________ )
) ss.
County of ________________ )
The foregoing was acknowledged before me this ___ day of ____________,
1998 by ________________.
__________________________________
Notary Public
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CONSENT OF SPOUSE
The undersigned spouse of Xxxxxx X. Xxxxxxx, who is a party to the
foregoing Agreement of Merger and Plan of Reorganization, pertaining to the
merger of Xxxxxxx Acquisition Corp., a Delaware corporation with and into
Xxxxxxx Marine, Inc., a Georgia corporation (the "Agreement"), hereby declares,
contemporaneously with the execution of the Agreement, that she has read the
Agreement in its entirety, and being fully convinced of the wisdom of the terms
of the Agreement, and in consideration of the premises and of the provisions of
the Agreement, hereby expresses her consent to the execution and consummation of
the Agreement by Xxxxxx X. Xxxxxxx.
The undersigned further agrees that in the event of the death of Xxxxxx
X. Xxxxxxx, the dissolution of their marriage, or any occurrence contemplated by
the Agreement that gives rise to any liability or obligation of Xxxxxx X.
Xxxxxxx, the provisions of the Agreement shall be binding upon her to the extent
of any community property she may now have or hereafter acquire, and any and all
separate property that she hereafter acquires which arises (directly or
indirectly) from any consideration given to Xxxxxx X. Xxxxxxx, pursuant to the
Agreement or any agreement executed in connection thereto.
The undersigned further agrees that she will, at any and all times,
make, execute and deliver such instruments and documents as may be reasonable
necessary to carry out the provisions of the Agreement, provided that no such
documents require the incurring of any liabilities in excess of that already
provided in the Agreement.
Dated this ____ day of _________________, 1998.
/s/_________________________
Spouse of Xxxxxx X. Xxxxxxx
State of _________________ )
) ss.
County of ________________ )
The foregoing was acknowledged before me this ___ day of ____________,
1998 by _______________.
____________________________________
Notary Public
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CONSENT OF SPOUSE
The undersigned spouse of Xxx X. Xxxxxxx, who is a party to the
foregoing Agreement of Merger and Plan of Reorganization, pertaining to the
merger of Xxxxxxx Acquisition Corp., a Delaware corporation with and into
Xxxxxxx Marine, Inc., a Georgia corporation (the "Agreement"), hereby declares,
contemporaneously with the execution of the Agreement, that she has read the
Agreement in its entirety, and being fully convinced of the wisdom of the terms
of the Agreement, and in consideration of the premises and of the provisions of
the Agreement, hereby expresses her consent to the execution and consummation of
the Agreement by Xxx X. Xxxxxxx.
The undersigned further agrees that in the event of the death of Xxx X.
Xxxxxxx, the dissolution of their marriage, or any occurrence contemplated by
the Agreement that gives rise to any liability or obligation of Xxx X. Xxxxxxx,
the provisions of the Agreement shall be binding upon her to the extent of any
community property she may now have or hereafter acquire, and any and all
separate property that she hereafter acquires which arises (directly or
indirectly) from any consideration given to Xxx X. Xxxxxxx, pursuant to the
Agreement or any agreement executed in connection thereto.
The undersigned further agrees that she will, at any and all times,
make, execute and deliver such instruments and documents as may be reasonable
necessary to carry out the provisions of the Agreement, provided that no such
documents require the incurring of any liabilities in excess of that already
provided in the Agreement.
Dated this ____ day of _________________, 1998.
/s/_________________________
Spouse of Xxx X. Xxxxxxx
State of _________________ )
) ss.
County of ________________ )
The foregoing was acknowledged before me this ___ day of ____________,
1998 by ________________.
___________________________________
Notary Public
52
