EXHIBIT 2.2
TRACKER/CAVC STOCK PURCHASE AGREEMENT
This TRACKER/CAVC STOCK PURCHASE AGREEMENT ("Agreement"), dated as of
December 4, 1996, is made by and between Tracker Marine, L.P., a Missouri
limited partnership ("Tracker"), and CreditAmerica Venture Capital, Inc., a
Florida corporation ("CAVC").
WHEREAS, CAVC is the record and beneficial owner of 930,000 shares (the
"CAVC Shares") of the $.01 par value common stock (the "Mako Common Stock") of
Mako Marine International, Inc. ("Mako"); and
WHEREAS, Tracker has this date entered into an agreement with Mako (the
"Tracker/Mako Agreement") providing for, among other things, the purchase by
Tracker of shares of Mako Common Stock; and
WHEREAS, the Tracker/Mako Agreement requires that as a condition to
Tracker's purchase of the shares of Mako Common Stock thereunder, Tracker shall
have first acquired the CAVC Shares; and
WHEREAS, the Board of Directors of CAVC has determined that it is in the
best interest of CAVC that (i) the transactions contemplated in the Tracker/Mako
Agreement be effected, and (ii) the CAVC Shares be sold to Tracker, subject to
the terms, provisions and conditions set forth herein.
NOW, THEREFORE, to induce Tracker to enter into the Tracker/Mako Agreement,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged by the parties hereto, and intending to be legally bound hereby,
the parties agree as follows:
ARTICLE I
SALE AND TRANSFER OF SHARES; CLOSING
1.1 THE SHARES; PURCHASE PRICE. Subject to the terms and conditions of
this Agreement, at the "Closing" (as hereinafter defined), CAVC will sell and
transfer the CAVC Shares to Tracker, and Tracker will purchase the CAVC Shares
from CAVC, for a total cash purchase price (the "Purchase Price") of One Million
Eight Hundred Sixty Thousand Dollars ($1,860,000) (or Two Dollars ($2.00) per
share).
1.2 THE CLOSING. The consummation of the purchase and sale of the CAVC
Shares (the "Closing") provided in this Agreement will take place at the offices
of Stroock & Stroock & Xxxxx, First Union Financial Center, 000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000-0000, at 9:30 a.m. (local time), on
a date selected by Tracker upon the giving of at least two days prior written
notice to CAVC, which date may occur at any time between the date hereof and
January 31, 1997. The date on which the Closing actually takes place is
referred to herein as the Closing Date.
1.3 CLOSING OBLIGATIONS. At Closing, CAVC will deliver to Tracker the
certificates representing the CAVC Shares duly endorsed for transfer by separate
stock powers, and Tracker will deliver the Purchase Price, by wire transfer to
the interest bearing account designated by CAVC.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CAVC
CAVC hereby represents and warrants to Tracker as follows:
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2.1 CORPORATE ORGANIZATION. CAVC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
2.2 AUTHORITY. CAVC has full corporate power and authority to execute and
deliver this Agreement and the other documents contemplated to be executed and
delivered by CAVC in connection with the sale of the CAVC Shares contemplated
hereby (this Agreement, together with such other documents, collectively the
"CAVC Documents"), and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of each of the CAVC Documents and the
consummation of the transactions contemplated hereby and thereby have been
validly authorized and approved by the board of directors and the shareholders
of CAVC, and no other corporate proceedings on the part of CAVC are necessary to
approve the CAVC Documents and to consummate the transactions contemplated
hereby and thereby. Each of the CAVC Documents has been duly and validly
executed and delivered by CAVC and (assuming due authorization, execution and
delivery by Tracker), this Agreement and each of the other CAVC Documents
constitute the valid and binding obligations of CAVC, enforceable against CAVC
in accordance with the respective terms, except as enforcement may be limited by
general principals of equity whether applied in a court of law or a court of
equity and by bankruptcy, insolvency and similar laws affecting creditors'
rights and remedies generally.
2.3 OWNERSHIP OF SHARES. CAVC has, and immediately prior to the Closing
will have, good and valid title to the CAVC Shares being sold hereunder, and,
except as described in Schedule 2.3, free and clear of all liens, security
interests, encumbrances, equities, stockholder agreements, voting trusts or
claims of any nature whatsoever (collectively, "Encumbrances").
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Upon delivery of the CAVC Shares and the payment therefor pursuant hereto,
good and valid title to the CAVC Shares, free and clear of all Encumbrances,
will pass to Tracker.
2.4 CONSENTS AND APPROVALS. Except as specified in Schedule 2.3 hereto,
all required consents, approvals, authorizations or orders of, or any filing or
declaration with, any person, entity, court or governmental agency or body
required for the consummation by CAVC of the transactions on its part
contemplated herein have been obtained or satisfied. CAVC shall use its best
efforts to obtain the consents of the persons, entities, courts or governmental
agencies listed on Schedule 2.3 hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRACKER
3.1 ORGANIZATION. Tracker is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Missouri.
3.2 AUTHORITY. Tracker has full power and authority to execute and
delivery this Agreement and the other documents contemplated to be executed and
delivered by Tracker, in connection with the transactions contemplated hereby
(this Agreement, together with such other documents, collectively the "Tracker
Documents"), and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of the Tracker Documents and the consummation of the
transactions contemplated hereby and thereby have been duly and validly approved
by the board of directors of the sole general partner of Tracker. No other
proceedings on the part of Tracker are necessary to approve the Tracker
Documents and to consummate the transactions contemplated hereby and thereby.
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3.3 ENFORCEABILITY. Each of the Tracker Documents has been duly and
validly executed and delivered by Tracker and (assuming due authorization,
execution, and delivery by CAVC), this Agreement and each of the other Tracker
Documents constitute the valid and binding obligations of Tracker, enforceable
against Tracker in accordance with their respective terms, except as enforcement
may be limited by general principles of equity whether applied in a court of law
or a court of equity and by bankruptcy, insolvency, and similar laws affecting
creditors' rights and remedies generally.
3.4 INVESTMENT INTENT. Tracker is acquiring the CAVC Shares solely for
its own account and not with a view to, or for resale in connection with, any
distribution thereof, except pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") or pursuant
to and in compliance with an exemption from such registration afforded by the
Securities Act or the rules and regulations promulgated thereunder. Tracker is
an "accredited investor" as that term is defined in Regulation D promulgated
under the Securities Act and (a) has such knowledge, sophistication and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its acquisition of the CAVC Shares, (b) has received
sufficient information concerning Mako and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and risks
inherent in holding the CAVC Shares, and (c) is able to bear the economic risk
in lack of liquidity in holding the CAVC Shares.
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ARTICLE IV
CONDITIONS TO CLOSING; TERMINATION
4.1 CONDITIONS. (a) The obligation of either party to consummate the
transactions contemplated hereunder shall be subject to: (i) the continued
accuracy of all the representations and warranties of the other party made
hereunder and the performance and satisfaction in all material respects of the
agreements and obligations of the other party hereunder; (ii) the obtaining of
those consents described in Schedule 2.3 hereto; and (iii) the contemporaneous
closing of Tracker's purchase of shares of Mako Common Stock under the
Tracker/Mako Agreement.
(b) Unless waived by Tracker, the obligation of Tracker to Close is
also subject to Tracker's receipt of an opinion of Stroock & Stroock & Xxxxx,
counsel to CAVC in form and substance reasonably satisfactory to Tracker, dated
as of the Closing Date to the effect that: (i) CAVC is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Florida; (ii) CAVC has full power and authority to make, execute and deliver
the Agreement, and to perform all of its obligations thereunder; (iii) the
Agreement has been duly authorized and approved by all necessary corporate
action of CAVC; (iv) the Agreement has been duly executed and delivered and
constitutes the valid and binding obligation of CAVC, enforceable in accordance
with its terms, subject to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and to the availability of equity
remedies in general; and (v) to such counsel's knowledge, there is no litigation
or
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proceeding pending or threatened against CAVC related to the consummation of
the transactions contemplated by the Agreement.
(c) Unless waived by CAVC, the obligation of CAVC to Close is also
subject to CAVC's receipt of an opinion of Xxxxxx & Xxxxxx, L.L.P., counsel to
Tracker in form and substance reasonably satisfactory to CAVC, dated as of the
Closing Date to the effect that: (i) Tracker is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Missouri; (ii) Tracker has full power and authority to make, execute and deliver
the Agreement, and to perform all of its obligations thereunder; (iii) the
Agreement has been duly executed and delivered and constitutes the valid and
binding obligation of Tracker, enforceable in accordance with its terms, subject
to bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally and to the availability of equity remedies in
general; (iv) the Agreement has been duly authorized and approved by all
necessary action of Tracker; and (v) to such counsels' knowledge, there is no
litigation or proceeding pending or threatened against Tracker related to the
consummation of the transactions contemplated by the Agreement.
4.2 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date (i) with the mutual consent of the parties hereto, or (ii) by
either party, if any of the conditions to Closing shall not have been satisfied,
complied with or performed in any material respect by the other party. This
Agreement shall automatically terminate upon the termination of or other failure
to close the Tracker/Mako Agreement. Neither party shall incur liability to the
other party as a result of any termination pursuant to this Section 4.2;
provided, however,
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that notwithstanding the foregoing, neither Tracker nor CAVC shall be
relieved or released from any liabilities or damages for a willful breach of
any provision of this Agreement, including, without limitation, a willful
failure to Close.
ARTICLE V
MISCELLANEOUS
5.1 ENTIRE AGREEMENT. This Agreement may not be amended, supplemented or
otherwise modified by an instrument in writing signed by all of the parties
hereto. This Agreement contains the entire agreement of the parties hereto with
respect to the transactions covered hereby, superseding all negotiations, prior
discussions and preliminary agreements made prior to the date hereof.
5.2 WAIVER. The failure of any party to enforce any condition a part of
this Agreement at any time shall not be construed as a waiver of that condition
or part, nor shall it forfeit any rights to future enforcement thereof.
5.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Florida, without regard
to conflicts of laws, provisions thereof.
5.4 HEADINGS. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
5.5 COUNTERPARTS. More than one counterpart of this agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed an original. Each party hereto will, at the request of the other party,
execute and deliver to such other party all such
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further instruments, assignments, assurances and other documents as such
other party may reasonably request in connection with the carrying out of
this Agreement.
5.6 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and no provision of this Agreement shall be deemed
to confer upon third parties any remedy, claim, liability, reimbursement, claim
of action or other right in excess of those existing without reference to this
Agreement.
5.7 NO ASSIGNMENT. Neither this Agreement nor any interest therein shall
be assignable.
5.8 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation), mailed by registered or certified mail (return receipt requested)
or delivered by an express courier (with confirmation) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) if to Tracker, to:
Tracker Marine, L.P.
Attn: Xxxxxxx Xxxxxxxxx
0000-X Xxxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxx & Xxxxxx, LLP
Attn: Xxx X. Xxxxxx, Esq.
0000 Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to CAVC, to:
CreditAmerica Venture Capital, Inc.
c/o Xxxxxxx X. Xxxxx
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (305)
with a copy to:
Stroock & Stroock & Xxxxx
Attn: Xxxxxxx X. Xxxxxx, Esq.
First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.9 SURVIVABILITY. The representations, warranties, agreements and
obligations of the parties hereto shall survive the Closing.
5.10 BEST EFFORTS. CAVC shall use its best efforts to obtain all necessary
consents and approvals to the performance of its obligations hereunder and the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their officers/general partner as of the date first above written.
TRACKER MARINE, L.P.
By: JLM Management Company, its sole general
partner
By: /s/ Xxxxxxx Xxxxxxxxx
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Title: President
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CREDITAMERICA VENTURE CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: President
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[Schedule 2.4 to Tracker CAVC Stock Purchase Agreement Omitted]
