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Exhibit 10.9
STOCKHOLDERS' AGREEMENT
among
MARINEMAX, INC.,
BRUNSWICK CORPORATION,
and
SENIOR FOUNDERS
April 28, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS................................................................. 1
Section 1.1 "Affiliate"................................................................................ 1
Section 1.2 "Agreement"................................................................................ 1
Section 1.3 "Brunswick Shares"......................................................................... 1
Section 1.4 "Change in Control"........................................................................ 1
Section 1.5 "Common Stock"............................................................................. 2
Section 1.6 "Company".................................................................................. 2
Section 1.7 "Covered Shares"........................................................................... 2
Section 1.8 "Dealer Agreements"........................................................................ 2
Section 1.9 "Governance Agreement"..................................................................... 3
Section 1.10 "Initial Ownership Percentage"............................................................ 3
Section 1.11 "IPO"..................................................................................... 3
Section 1.12 "Mergers"................................................................................. 3
Section 1.13 "Other Designated Member"................................................................. 3
Section 1.14 "Permitted Brunswick Leakage Amount"...................................................... 3
Section 1.15 "Person".................................................................................. 3
Section 1.16 "Price Per Share"......................................................................... 3
Section 1.17 "Senior Founder".......................................................................... 3
Section 1.18 "Settlement".............................................................................. 4
Section 1.19 "Shares".................................................................................. 4
Section 1.20 "Stockholders"............................................................................ 4
Section 1.21 "Targeted Investment Percentage".......................................................... 4
Section 1.22 "Trans.................................................................................... 4
Section 1.23 "Transfer"................................................................................ 4
Section 1.24 "Transferring Senior Founder"............................................................. 4
ARTICLE II
RESTRICTIONS ON TRANSFER..................................................... 4
Section 2.1 Restrictions on Senior Founders............................................................ 4
Section 2.2 Restrictions on Brunswick.................................................................. 5
Section 2.3 Restrictions on the Company................................................................ 5
ARTICLE III
LIMITATIONS ON SENIOR FOUNDERS' TRANSFER OF COVERED SHARES................... 5
Section 3.1 Transfer of Covered Shares................................................................. 5
Section 3.2 Option of Brunswick........................................................................ 5
Section 3.3 Option of the Company...................................................................... 5
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PAGE
Section 3.4 Options of Non-Transferring Senior Founders................................................ 6
Section 3.5 Further Options of Non-Transferring Senior Founders........................................ 6
Section 3.6 Option of Brunswick........................................................................ 6
Section 3.7 Transfer of Covered Shares................................................................. 7
ARTICLE IV
LIMITATIONS ON BRUNSWICK'S TRANSFER OF SHARES................................ 7
Section 4.1 Transfer of Brunswick Shares............................................................... 7
Section 4.2 Option of the Company...................................................................... 7
Section 4.3 Options of Senior Founders................................................................. 7
Section 4.4 Further Options of Senior Founders......................................................... 7
Section 4.5 Transfer of Brunswick Shares............................................................... 8
ARTICLE V
PERMITTED TRANSFERS......................................................... 8
Section 5.1 Death of a Senior Founder.................................................................. 8
Section 5.2 Certain Transfers of Shares by Senior Founders............................................. 8
Section 5.3 Transfer to Brunswick Affiliate............................................................ 8
Section 5.4 Change in Control.......................................................................... 8
Section 5.5 Termination of Sea Ray Dealer Agreement.................................................... 9
ARTICLE VI
SETTLEMENT................................................................... 9
Section 6.1 Time and Place of Settlement............................................................... 9
Section 6.2 Delivery of Stock Certificate(s)........................................................... 10
ARTICLE VII
MAINTENANCE AND OTHER BRUNSWICK RIGHTS....................................... 10
Section 7.1 Maintenance Right.......................................................................... 10
Section 7.2 Right of First Refusal on Transfer of Covered Shares....................................... 10
Section 7.3 Right in the Event of Future Offerings by the Company...................................... 10
Section 7.4 Market Purchases of Brunswick.............................................................. 10
Section 7.5 Right in the Event of Issuance of New Class of Stock....................................... 10
Section 7.6 Right in the Event of Proposed Sale........................................................ 11
ARTICLE VIII
TERM OF AGREEMENT............................................................. 11
ARTICLE IX
VOTING........................................................................ 11
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PAGE
ARTICLE X
REPRESENTATION AND WARRANTIES............................................... 11
Section 10.1 Representations and Warranties of the Company............................................. 11
Section 10.2 Representations and Warranties of Brunswick............................................... 12
Section 10.3 Representations and Warranties of Senior Founders......................................... 12
ARTICLE XI
GENERAL PROVISIONS........................................................... 12
Section 11.1 Legal Impediment of the Company; Stockholder Vote......................................... 12
Section 11.2 Stock Certificate(s) To Be Marked with Legend............................................. 13
Section 11.3 Copy of Agreement To Be Kept on File...................................................... 13
Section 11.4 Subsequent Spouses to Become Bound........................................................ 13
Section 11.5 Entire Agreement; Amendment, Modification, Termination.................................... 13
Section 11.6 Controlling Law........................................................................... 14
Section 11.7 Notices................................................................................... 14
Section 11.8 Binding Nature of Agreement; No Assignment................................................ 15
Section 11.9 Execution in Counterparts................................................................. 15
Section 11.10 Provisions Severable..................................................................... 15
Section 11.11 Counting................................................................................. 15
Section 11.12 Effective Date........................................................................... 16
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STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT dated as of the 28th day of April 1998
among MARINEMAX, INC., a Delaware corporation (the "Company"); BRUNSWICK
CORPORATION, a Delaware corporation for itself and on behalf of its subsidiaries
and Affiliates including the Sea Ray Division of Brunswick ("Brunswick"); and
XXXXXXX X. XXXXXX XX., XXXXXXX X. XXXXXXX, XXXXX X. XXXXXXXX, and XXXXXXX X.
XXXXXXX XX., each of whom is the senior founder of a company that has merged
with the Company (the "Senior Founders").
R E C I T A L S
A. After the IPO as defined herein, Brunswick and the Senior
Founders will own certain issued and outstanding shares of the Company's Common
Stock.
B. The Senior Founders and Brunswick desire to set forth their
rights to purchase or acquire certain Shares and to encumber, sell, transfer, or
otherwise dispose of certain Shares whenever acquired.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual covenants and agreements herein contained, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 "AFFILIATE" means, with respect to a specified
Person, a Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the specified Person.
SECTION 1.2 "AGREEMENT" means this Stockholders' Agreement.
SECTION 1.3 "BRUNSWICK SHARES" means that number of Shares
owned by Brunswick or an Affiliate of Brunswick.
SECTION 1.4 "CHANGE IN CONTROL" means a change in control of
the Company of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended, as in effect on the date of this Agreement, or
if Item 6(e) is no longer in effect, any regulations issued by the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended, which serve similar purposes, that occurs if and when:
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(a) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended), other than the
Company or an employee benefit plan of the Company, that acquires directly or
indirectly the beneficial ownership (as defined in Section 13(d) of the
Securities Exchange Act of 1934, as amended) of any voting security of the
Company and immediately after such acquisition such person is, directly or
indirectly, the beneficial owner of voting securities representing 50% or more
of the total voting power of all of the then-outstanding voting securities of
the Company; or
(b) a tender offer or exchange offer is made whereby the
effect of such offer is to take over and control the Company, and such offer is
consummated for the equity securities of the Company representing fifty percent
(50%) or more of the combined voting power of the Company's then outstanding
voting securities; or
(c) the stockholders of the Company shall approve a merger,
consolidation, recapitalization, or reorganization of the Company as a result of
which less than seventy-five percent (75%) of the total voting power represented
by the voting securities of the surviving entity outstanding immediately after
such transaction are beneficially owned by the holders of at least seventy-five
percent (75%) of the outstanding voting securities of the Company immediately
prior to the transaction, with the voting power of each such continuing holder
relative to other such continuing holders not substantially altered in the
transaction; or
(d) the stockholders of the Company shall approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or a substantial portion of the Company's assets to
another person or entity that is not a wholly owned subsidiary of the Company
(i.e., over fifty percent (50%) of the total assets of the Company).
SECTION 1.5 "COMMON STOCK" means all shares of the Company's
Common Stock.
SECTION 1.6 "COMPANY" means MarineMax, Inc.
SECTION 1.7 "COVERED SHARES" means that portion of Transaction
Shares that a Senior Founder wishes to Transfer in any calendar year during any
period in which Section 2.1 is applicable, which portion constitutes more than
the lesser of (a) one percent (1%) of the issued and outstanding Shares existing
at the time of the proposed Transfer or (b) ten percent (10%) of the Transaction
Shares owned by such Senior Founder existing at the time of the Proposed
Transfer.
SECTION 1.8 "DEALER AGREEMENTS" means the agreements of even
date between subsidiaries of the Company, Brunswick, and any Affiliate of
Brunswick providing for the purchase, sale, and maintenance of boats and related
marine products.
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SECTION 1.9 "GOVERNANCE AGREEMENT" means that agreement of
even date between the Company and Brunswick with respect to the ownership of
Shares by Brunswick and Brunswick's conduct as a stockholder of the Company.
SECTION 1.10 "INITIAL OWNERSHIP PERCENTAGE" means fourteen and
one-tenth percent (14.1%) of the issued and outstanding Common Stock of the
Company after giving effect to the IPO, if Brunswick purchases the shares of
Common Stock of the Company as contemplated by the Agreement Relating to the
Purchase of MarineMax Common Stock between Brunswick and the Company.
SECTION 1.11 "IPO" means the initial public offering of Common
Stock of the Company.
SECTION 1.12 "MERGERS" means the merger transactions involving
the Company, Xxxxxxx Boat Company of Florida, Xxxxx XxxXxxxx Marine, Gulfwind
Marine USA, Gulfwind Marine South, and Xxxxxxxx'x Marine Centers, and their
affiliated and subsidiary companies.
SECTION 1.13 "OTHER DESIGNATED MEMBER" means any individual
designated by the Company to serve as a member of the Board of Directors of the
Company and agreed to by Brunswick, which approval will not be unreasonably
withheld by Brunswick taking into account whether such individual has the
requisite knowledge and experience in business and financial matters as to be
reasonably capable of serving as a director of a public corporation with
revenue, assets, and operations comparable to the Company.
SECTION 1.14 "PERMITTED BRUNSWICK LEAKAGE AMOUNT" means in any
calendar year that amount of Shares equal to the lesser of (a) one percent (1%)
of the issued and outstanding Shares existing at the time of a proposed Transfer
or (b) ten percent (10%) of the Brunswick Shares existing at the time of a
proposed Transfer.
SECTION 1.15 "PERSON" means any individual, corporation,
limited liability company, partnership, joint venture, trust, unincorporated
association, or other entity.
SECTION 1.16 "PRICE PER SHARE" means the average of the
closing price of the Company's Common Stock, as reported by the exchange or
other market on which the Company's Common Stock is principally traded, during
the period commencing on the trading day of an Offer and ending on the day of
the acceptance of an Offer.
SECTION 1.17 "SENIOR FOUNDER" means any of Xxxxxxx X. XxXxxx
Xx., Xxxxxxx X. Xxxxxxx, Xxxxx X. XxxXxxxx, and Xxxxxxx X. XxXxxxx Xx. The term
Senior Founder also shall include, for purposes of Sections 2.1 and 2.2, any
Person that acquires shares from a Senior Founder pursuant to Sections 5.1 or
5.2 and any other Person that the Company, Brunswick, and Messrs. McGill,
Bassett, DelHomme, and XxXxxxx unanimously agree, each
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acting in its or his sole discretion, shall be deemed a Senior Founder and who
agrees to be bound by this Agreement.
SECTION 1.18 "SETTLEMENT" means the date on which Shares are
purchased by the Company, the Senior Founders, or Brunswick pursuant to this
Agreement, as set forth in Article VI hereof.
SECTION 1.19 "SHARES" means shares of Common Stock of the
Company.
SECTION 1.20 "STOCKHOLDERS" means collectively the Senior
Founders, Brunswick, and any Brunswick Affiliate, if and for as long as they or
it remain the holders of record of Shares.
SECTION 1.21 "TARGETED INVESTMENT PERCENTAGE" means, to the
extent Brunswick acquires the Initial Ownership Percentage, nineteen percent
(19%) of the issued and outstanding Common Stock of the Company from time to
time, provided that any Shares transferred by Brunswick or any Affiliate of
Brunswick shall be deemed to continue to be owned by Brunswick in calculating
the Targeted Investment Percentage.
SECTION 1.22 "TRANSACTION SHARES" means all Shares issued to
Senior Founders (and/or to, or for the benefit of, their wives, lineal
descendants, or other members of their immediate families) by virtue of the
Mergers. A Senior Founder's Transaction Shares shall also include Transaction
Shares Transferred at any time, or from time to time to, or for the benefit of,
his wife, lineal descendants, or other members of his immediate family.
SECTION 1.23 "TRANSFER" means to sell, assign, transfer, give,
donate, pledge, deposit, alienate, bequeath, devise, permit to pass pursuant to
any proceedings involving the dissolution of a marriage, or otherwise encumber
or dispose of, in any way or manner whatsoever, excluding any Transfer to, or
for the benefit of, a Senior Founder's wife or lineal descendants or any other
member of his immediate family or, in the case of Brunswick, a Transfer to a
Brunswick Affiliate.
SECTION 1.24 "TRANSFERRING SENIOR FOUNDER" means any Senior
Founder who desires to Transfer any Covered Shares during any period in which
Section 2.1 is applicable.
ARTICLE II
RESTRICTIONS ON TRANSFER
SECTION 2.1 RESTRICTIONS ON SENIOR FOUNDERS. No Senior Founder
shall Transfer any Covered Shares, or any interest therein, whenever acquired by
such Senior Founder, during such time as the Dealer Agreements are in full force
and effect, except as expressly provided in this Agreement and in accordance
with its terms and conditions. Nothing contained in this Agreement shall
restrict the right of a Senior Founder to Transfer any or all
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Shares held by such Senior Founder to any third party if, at the time of the
proposed Transfer, (a) Brunswick owns the Targeted Investment Percentage and (b)
a majority of the members of the Board of Directors of the Company consists of
the Senior Founders and Other Designated Members. In addition, without the
approval of Brunswick, no Senior Founder may Transfer any Covered Shares, or any
interest therein, for a period of six (6) months from the date of this Agreement
unless such Shares remain subject to the terms and conditions of this Agreement.
SECTION 2.2 RESTRICTIONS ON BRUNSWICK. Except for the
Permitted Brunswick Leakage Amount or as otherwise permitted in accordance with
the terms and conditions of this Agreement, Brunswick shall not Transfer any
Brunswick Shares, or any interest therein, whenever acquired by Brunswick,
except as expressly provided in this Agreement and in accordance with its terms
and conditions. All restrictions on Brunswick also shall apply to all Affiliates
of Brunswick.
SECTION 2.3 RESTRICTIONS ON THE COMPANY. Except in accordance
with the terms and conditions of this Agreement, the Company shall not (a) cause
or permit the Transfer of any Covered Shares or any Brunswick Shares to be made
on its books, or (b) repurchase, redeem, or otherwise acquire any Covered Shares
or any Brunswick Shares.
ARTICLE III
LIMITATIONS ON SENIOR FOUNDERS' TRANSFER OF COVERED SHARES
SECTION 3.1 TRANSFER OF COVERED SHARES. At any time a Senior
Founder desires to Transfer any Covered Shares owned by him, the Transferring
Senior Founder shall first offer in writing to sell all of those Transferring
Senior Founder's Covered Shares to be transferred (a) to Brunswick in the event
that Brunswick does not own the Targeted Investment Percentage or (b) first to
the Company, then to the other Senior Founders, and then to Brunswick in the
event Brunswick owns the Targeted Investment Percentage, in any such case at the
Price Per Share, as set forth below.
SECTION 3.2 OPTION OF BRUNSWICK. For a period of twenty (20)
days after the submission of an offer to Brunswick pursuant to Section 3.1(a),
Brunswick shall have the option, exercisable by written notice to the
Transferring Senior Founder, with a copy to each of the other Senior Founders
and the Company, to purchase all or any part of the Covered Shares to be
transferred at the Price Per Share.
SECTION 3.3 OPTION OF THE COMPANY. For a period of ten (10)
days after the submission of an offer to the Company pursuant to Section 3.1(b),
the Company shall have the option, exercisable by written notice to the
Transferring Senior Founder, with a copy to each of the other Senior Founders
and Brunswick, to purchase all or any part of the Covered Shares to be
transferred at the Price Per Share.
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SECTION 3.4 OPTIONS OF NON-TRANSFERRING SENIOR FOUNDERS. If
the Company does not exercise its option to purchase all of the Transferring
Senior Founder's Covered Shares to be transferred in accordance with Section
3.3, the Transferring Senior Founder shall offer in writing to sell that portion
of the Covered Shares to be transferred that were not purchased in accordance
with Section 3.3 to the non-Transferring Senior Founders at the Price Per Share.
For a period of twenty (20) days after submission of the Transferring Senior
Founder's offer to each of the non-Transferring Senior Founders, each of the
non-Transferring Senior Founders shall have an option, exercisable by written
notice to the Transferring Senior Founder, with copies to the other
non-Transferring Senior Founders, the Company, and Brunswick, to purchase, at
the Price Per Share, that portion of the Covered Shares to be transferred not
otherwise purchased pursuant to Section 3.3 represented by the ratio that such
non-Transferring Senior Founder's then existing Transaction Shares bears to the
total number of the then existing Transaction Shares held by all of the
non-Transferring Senior Founders (or in such other amounts as may be agreed upon
by the non-Transferring Senior Founders).
SECTION 3.5 FURTHER OPTIONS OF NON-TRANSFERRING SENIOR
FOUNDERS. If one or more non-Transferring Senior Founders having an option under
Section 3.4 to purchase the remaining Covered Shares to be transferred do not
exercise their options and do not otherwise agree to purchase all of the
remaining Covered Shares to be transferred in accordance with Section 3.4, then
those non-Transferring Senior Founders who exercised their options to purchase a
portion of the Covered Shares to be transferred pursuant to Section 3.4, shall
have further options for a period of twenty (20) days to purchase the remaining
Covered Shares to be transferred at the Price Per Share; provided, however, that
if the exercise of those further options would result in the purchase of more
than that number of Covered Shares remaining to be transferred, the remaining
Covered Shares to be transferred shall be allocated to each non-Transferring
Senior Founder having the option to purchase pursuant to this Section 3.5, to
the extent of the lesser of (a) the number of remaining Covered Shares to be
transferred that such non-Transferring Senior Founder desires to purchase, or
(b) that portion of the remaining Covered Shares represented by the ratio that
such non-Transferring Senior Founder's then existing Transaction Shares bears to
the total number of the then existing Transaction Shares held by those other
non-Transferring Senior Founders desiring to exercise options pursuant to this
Section 3.5.
SECTION 3.6 OPTION OF BRUNSWICK. If the Company and the
non-Transferring Senior Founders do not exercise their options to purchase all
of the Transferring Senior Founder's Covered Shares to be transferred in
accordance with Sections 3.3, 3.4, and 3.5, the Transferring Senior Founder
shall promptly offer in writing to Brunswick to sell those Covered Shares that
were not purchased in accordance with Sections 3.3, 3.4, and 3.5 at the Price
Per Share. For a period of twenty (20) days after submission of the Transferring
Senior Founder's offer to Brunswick, Brunswick shall have an option, exercisable
by written notice to the Transferring Senior Founder with a copy to the Company,
to purchase all or any portion of the remaining Covered Shares.
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SECTION 3.7 TRANSFER OF COVERED SHARES. If options granted
pursuant to this Article III have not been exercised to purchase all of the
Covered Shares to be transferred by the end of the option periods set forth in
Sections 3.2, 3.3, 3.4, 3.5, and 3.6, then the Transferring Senior Founder shall
be free for a period of one hundred eighty (180) days thereafter to Transfer
that number of the Covered Shares for which options were not exercised. If the
Covered Shares to be transferred are not sold within the one hundred eighty
(180) day period, those Covered Shares shall continue to be subject to all of
the terms and conditions of this Agreement and the Transferring Senior Founder
shall not be permitted to Transfer any Covered Shares without again complying
with the provisions of this Article III.
ARTICLE IV
LIMITATIONS ON BRUNSWICK'S TRANSFER OF SHARES
SECTION 4.1 TRANSFER OF BRUNSWICK SHARES. At any time
Brunswick desires to Transfer any or all of the Brunswick Shares other than the
Brunswick Leakage Amount, whenever acquired by Brunswick, Brunswick shall first
offer in writing to sell all of the Brunswick Shares first to the Company and
then to the Senior Founders at the Price Per Share, as set forth below.
SECTION 4.2 OPTION OF THE COMPANY. For a period of twenty (20)
days after the submission of the offer to the Company pursuant to Section 4.1,
the Company shall have the option, exercisable by written notice to Brunswick,
with a copy to each of the Senior Founders, to purchase all or any part of the
Brunswick Shares at the Price Per Share.
SECTION 4.3 OPTIONS OF SENIOR FOUNDERS. If the Company does
not exercise its option to purchase all of the Brunswick Shares in accordance
with Section 4.2, Brunswick shall offer in writing to sell all of the Brunswick
Shares that were not purchased in accordance with Section 4.2 to the Senior
Founders at the Price Per Share. For a period of twenty (20) days after
submission of Brunswick's offer to each of the Senior Founders, each Senior
Founder shall have an option, exercisable by written notice to Brunswick, with
copies to the Company and the other Senior Founders, to purchase, at the Price
Per Share, that portion of the Brunswick Shares not otherwise purchased pursuant
to Section 4.2 represented by the ratio such Senior Founder's existing
Transaction Shares bears to the total number of Transaction Shares of all of the
Senior Founders (or in such other amounts as may be agreed upon by the Senior
Founders).
SECTION 4.4 FURTHER OPTIONS OF SENIOR FOUNDERS. If one or more
Senior Founders having an option to purchase the remaining Brunswick Shares do
not exercise their options and do not otherwise agree to purchase all of the
remaining Brunswick Shares in accordance with Section 4.3, then those Senior
Founders who exercised their options to purchase a portion of the Brunswick
Shares pursuant to Section 4.3 shall have further options for a period of twenty
(20) days to purchase the remaining Brunswick Shares at the Price Per Share;
provided, however, that if the exercise of those further options would result in
the purchase of more than that number of Brunswick Shares remaining, the
remaining Brunswick Shares shall
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be allocated to each Senior Founder to the extent of the lesser of (a) the
number of remaining Brunswick Shares that the Senior Founder desires to
purchase, or (b) that portion of the remaining Brunswick Shares represented by
the ratio of such Senior Founder's then existing Transaction Shares bears to the
total number of the then existing Transaction Shares held by those Senior
Founders desiring to exercise options pursuant to this Section 4.4.
SECTION 4.5 TRANSFER OF BRUNSWICK SHARES. If options granted
pursuant to this Article IV have not been exercised to purchase all of the
Brunswick Shares by the end of the option periods set forth in Sections 4.2,
4.3, and 4.4, then Brunswick shall be free for a period of one hundred eighty
(180) days thereafter to transfer that number of the Brunswick Shares for which
options were not exercised. If all of the Brunswick Shares are not so sold
within the one hundred eighty (180) day period, the remaining Brunswick Shares
shall continue to be subject to all of the terms and conditions of this
Agreement and Brunswick shall not be permitted to Transfer the Brunswick Shares
without again complying with the provisions of this Article IV.
ARTICLE V
PERMITTED TRANSFERS
SECTION 5.1 DEATH OF A SENIOR FOUNDER. Notwithstanding the
terms of any other section of this Agreement, the Senior Founders shall be
permitted to Transfer Covered Shares, without complying with the provisions of
Article III hereof, upon the death of a Senior Founder, in which case the Senior
Founder's Shares may be Transferred consistent with the terms of his will or
estate, or such applicable laws of descent and distribution, provided that in
any such case such Shares will continue to be subject to the terms of this
Agreement with the same force and effect as such Shares were owned by such
Senior Founder.
SECTION 5.2 CERTAIN TRANSFERS OF SHARES BY SENIOR FOUNDERS.
The pledge by a Senior Founder of any of his Shares to secure indebtedness or
the Transfer by a Senior Founder of any of his Shares to a trust shall not be
deemed to be a Transfer for the purposes of this Agreement and shall not be
subject to the provisions of Article III hereof, provided that such Shares will
continue to be subject to the terms of this Agreement after such pledge or
transfer to a trust with the same force and effect as such Shares were owned by
such Senior Founder.
SECTION 5.3 TRANSFER TO BRUNSWICK AFFILIATE. The Transfer of
any Shares to a Brunswick Affiliate provided such Shares will continue to be
subject to the terms of such Agreement with the same force and effect as if such
Shares were owned by Brunswick.
SECTION 5.4 CHANGE IN CONTROL AND OTHER TRANSACTIONS. The
Transfer of any Shares arising out of, or occurring in connection with, a Change
in Control of the Company or the Transfer of any Shares occurring as a result of
a transaction approved by a majority of the members of the Board of Directors of
the Company not affiliated with such transaction shall not
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be deemed to be a Transfer for purposes of this Agreement and shall not be
subject to the provisions hereof.
SECTION 5.5 TERMINATION OF SEA RAY DEALER AGREEMENT. In the
event of the termination of the Dealer Agreements or if a majority of the Board
of Directors of the Company does not consist of the Senior Founders and Other
Designated Members for a period of sixty (60) consecutive days, Brunswick shall
have the right upon thirty (30) days prior notice to the Company to Transfer all
but not less than all of the capital stock of the Company owned by it for cash
subject to the right of the Company to purchase such shares for cash at the
Price Per Share. Notification by the Company of the exercise of such purchase
right shall occur within thirty (30) days of the prior notice given to the
Company by Brunswick and the closing of any purchase by the Company shall occur
within thirty (30) days after the Company's purchase notice. In the event that
the Company is unable to pay cash for Brunswick's shares, the Company may
propose a full recourse promissory note due no later than one (1) year after the
repurchase date, which either shall be fully secured with collateral or be
supported by other assurances of payment, in each case, reasonably acceptable to
Brunswick. The note shall bear interest at a rate equal to the rate payable by
the Company under its principal line of credit. In the event that the Company
does not exercise its right to repurchase the shares under this Section 5.5 or
is unable to provide reasonable security or assurances as to its ability to
repay the note, Brunswick shall have the right to sell the shares in any
transaction or transactions that is not likely to result in any Person or any
Affiliate of such Person owning more than five percent (5%) of the then
outstanding shares of the Company's Common Stock, which may include a registered
secondary offering at the expense of the Company. To the extent that Brunswick
has not sold the shares one hundred eighty (180) days after the date that
Brunswick became free to sell the shares, Brunswick shall again offer the
remaining shares to the Company in accordance with the terms hereof.
ARTICLE VI
SETTLEMENT
SECTION 6.1 TIME AND PLACE OF SETTLEMENT. The Settlement for
the purchase of Shares by a party hereto pursuant to any provision of this
Agreement shall be held as soon as practical but in any event within thirty (30)
days after the date of the exercise of the last option exercised, at the
principal executive offices of the Company during regular business hours, unless
otherwise agreed to by all of the parties to the Settlement. The precise date
and hour of the Settlement shall be fixed (within the time limits specified
herein) by the purchaser of the Shares (the "Purchaser") upon at least seven (7)
days' written notice to the seller of the Shares (the "Seller"). If more than
one Purchaser is involved in a Settlement and the Purchasers cannot agree on a
time of the Settlement, the precise time of the Settlement shall be fixed by the
President of the Company (within the time limits specified herein) upon at least
seven (7) days' written notice to the Purchasers and Seller.
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SECTION 6.2 DELIVERY OF STOCK CERTIFICATE(S). If any Shares
are sold pursuant to this Agreement, the Seller shall deliver to the Purchaser
or Purchasers at the Settlement the stock certificate(s) representing the Shares
being sold, duly endorsed for transfer or with duly executed stock powers
attached, with any necessary documentary and transfer tax stamps affixed by the
Seller.
ARTICLE VII
MAINTENANCE AND OTHER BRUNSWICK RIGHTS
SECTION 7.1 MAINTENANCE RIGHT. Brunswick shall have the right
to maintain its ownership percentage in the Company at the Targeted Investment
Percentage as provided in Sections 7.2, 7.3, and 7.4. The Company will promptly
advise Brunswick in writing of the issuance of any Shares.
SECTION 7.2 RIGHT OF FIRST REFUSAL ON TRANSFER OF COVERED
SHARES. Brunswick shall have the right to purchase from a Transferring Senior
Founder in accordance with Section 3.2.
SECTION 7.3 RIGHT IN THE EVENT OF FUTURE OFFERINGS BY THE
COMPANY. In the event of a follow-on public offering or a private placement of
Common Stock by the Company, the Company shall offer to Brunswick the
opportunity to purchase such number of shares of Common Stock as are necessary
as a result of such follow-on public offering or private placement for Brunswick
to achieve or maintain the Targeted Investment Percentage. Any purchase by
Brunswick will occur contemporaneously with the closing of the offering upon at
least ten (10) days prior written notice to Brunswick at a per share purchase
price equal to the per share offering price, less underwriting discounts and
commissions.
SECTION 7.4 MARKET PURCHASES OF BRUNSWICK. Brunswick shall
have the right to purchase Shares in ordinary brokerage transactions in order to
achieve, and thereafter to, maintain its ownership percentage in the Company at
the Targeted Investment Percentage during any period in which Brunswick has not
been informed in writing by the Company in good faith that any such purchases by
Brunswick would have a material adverse effect on the ability of the Company to
effect a material transaction. In the event the Company so notified Brunswick of
any such restriction on the right of Brunswick to so purchase Shares, the
Company shall promptly notify Brunswick of the termination of such restriction.
SECTION 7.5 RIGHT IN THE EVENT OF ISSUANCE OF NEW CLASS OF
STOCK. In the event that the Company issues a class of capital stock other than
Common Stock, the Company shall offer to Brunswick the opportunity to purchase a
percentage of such new class of capital stock that is equal to the ratio that
the Brunswick Shares bears to the issued and outstanding Shares existing at the
time of the proposed issuance with such purchase to be on the same terms as the
issuance to third parties.
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SECTION 7.6 RIGHT IN THE EVENT OF PROPOSED SALE. In the event
that the Company proposes to sell any capital stock (or any security convertible
into, exchangeable for, or carrying a right to acquire capital stock of the
Company) to any Person that is a competitor of Brunswick in the principal lines
of its marine business, the Company shall provide Brunswick with an opportunity
for twenty (20) days to purchase all of such securities on the same terms and
conditions as to the Brunswick competitor.
ARTICLE VIII
TERM OF AGREEMENT
Unless terminated sooner by unanimous agreement in writing of
the parties hereto, this Agreement shall terminate, without any further action
by any person or entity, on the date that is ten (10) years from the date
hereof. Notwithstanding the Transfer of any or all of his Shares by a Senior
Founder, such Senior Founder shall remain a party to this Agreement during his
lifetime. The rights of Brunswick as provided in Sections 3.2, 3.6, 7.1, 7.2,
7.3, 7.5, and 7.6 shall be applicable only during such time as the Dealer
Agreements are in full force and effect.
ARTICLE IX
VOTING
In all elections for directors of the Company, each of the
parties hereto agrees to vote such party's Shares for the board nominees
proposed by the Company's then Board of Directors that are Senior Founders or
Other Designated Members if, assuming the election of such slate, the majority
of the members of the Board of Directors of the Company will consist of the
Senior Founders and Other Designated Members. On all other matters submitted to
a vote of the stockholders of the Company at any annual or special meeting of
the stockholders, each of the parties hereto shall vote such party's Shares in
favor of all proposals and recommendations made by the Board of Directors of the
Company for approval or disapproval by the stockholders (including those
relating to a transaction that may involve a Change of Control) if, but only if,
(a) such proposals were approved by a majority of the members of the Board of
Directors of the Company and, (b) a majority of the members of the Board of
Directors of the Company consists of the Senior Founders and Other Designated
Members. In the event that a majority of the members of the Board of Directors
of the Company does not consist of the Senior Founders and Other Designated
Members for a period of sixty (60) consecutive days, this Article IX shall be of
no force and effect.
ARTICLE X
REPRESENTATION AND WARRANTIES
SECTION 10.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as follows:
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(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Delaware and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder.
(b) The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby has been duly authorized by all necessary corporate action on the part of
the Company, and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or any of the transactions contemplated
hereby.
(c) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company and is
enforceable against the Company in accordance with its terms.
SECTION 10.2 REPRESENTATIONS AND WARRANTIES OF BRUNSWICK.
Brunswick represents and warrants as follows:
(a) Brunswick is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Delaware and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder.
(b) The execution and delivery of this Agreement by Brunswick
and the consummation by Brunswick of the transactions contemplated hereby has
been duly authorized by all necessary corporate action on the part of Brunswick,
and no other corporate proceedings on the part of Brunswick are necessary to
authorize this Agreement or any of the transactions contemplated hereby.
(c) This Agreement has been duly executed and delivered by
Brunswick and constitutes a valid and binding obligation of Brunswick and is
enforceable against Brunswick in accordance with its terms.
SECTION 10.3 REPRESENTATIONS AND WARRANTIES OF SENIOR
FOUNDERS. Each Senior Founder represents and warrants that such Senior Founder
has the power and authority to execute, deliver, and perform this Agreement and
that this Agreement is the legal and binding obligation of such Senior Founder
and is enforceable against such Senior Founder in accordance with its terms.
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.1 LEGAL IMPEDIMENT OF THE COMPANY; STOCKHOLDER
VOTE. If the Company cannot legally purchase Shares without a vote of its
stockholders at any time the Company desires to purchase Shares under the terms
of this Agreement, then the Stockholders
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shall vote their respective Shares so as to allow the Company to take all steps
permitted or required under the laws of the state of Delaware, as they may be
amended from time to time, to enable the Company to purchase those Shares. The
Company shall take all such steps as soon as practicable.
SECTION 11.2 STOCK CERTIFICATE(S) TO BE MARKED WITH LEGEND.
All certificate(s) representing Shares now outstanding, hereafter issued by the
Company to the Senior Founders or Brunswick Transferred on the books of the
Company shall be marked during the term of this Agreement with a legend in form
and content substantially similar to the following:
"This certificate and the shares represented hereby are held
subject to the terms and conditions of a Stockholders'
Agreement dated as of April 28, 1998, and any and all
amendments thereto, to which this Company is a party, and may
not be encumbered, sold, transferred or otherwise disposed of
except in accordance with the terms and conditions thereof. A
copy of that agreement and any and all amendments thereto is
on file and may be inspected at the principal executive
office(s) of the Company. The Company will mail, without
charge, a copy of the agreement to any Stockholder after
receiving a written request therefor."
SECTION 11.3 COPY OF AGREEMENT TO BE KEPT ON FILE. The Company
shall keep on file at its principal executive office, and shall exhibit to any
Stockholder or the Stockholder's duly authorized representative at any and all
reasonable times, an executed copy of this Agreement (together with any and all
amendments thereto) and a copy of the Company's most recent fiscal year end
balance sheet and income statement.
SECTION 11.4 SUBSEQUENT SPOUSES TO BECOME BOUND. If after the
date of execution of this Agreement, any Senior Founder shall marry, that party
shall use his best efforts to require his spouse to sign a Consent of Spouse in
form and content satisfactory to the Company.
SECTION 11.5 ENTIRE AGREEMENT; AMENDMENT, MODIFICATION,
TERMINATION. Except for the Settlement Agreement, the Dealer Agreements, the
Agreement Relating to the Purchase of MarineMax Common Stock, the Governance
Agreement, and the Agreement Relating to Acquisitions among the Company,
Brunswick, and others, this Agreement contains the entire understanding among
the parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements and
conditions, express or implied, oral or written, unless otherwise specified in
this Agreement. This Agreement may be amended, modified, or terminated at any
time or times only by unanimous written agreement of the parties hereto.
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SECTION 11.6 CONTROLLING LAW. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement, shall be
governed by and construed in accordance with the laws of the state of Delaware,
notwithstanding any Delaware or other conflict-of-laws rules to the contrary.
SECTION 11.7 NOTICES. Unless otherwise specifically stated
herein, all notices, requests, demands, and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given, made, and received when delivered against receipt, twelve (12)
hours after being sent by facsimile, or seventy-two (72) hours after being sent
by registered or certified mail, postage prepaid, addressed as set forth below:
(i) If to the Company:
MarineMax, Inc.
Attention: Xx. Xxxxxxx X. XxXxxx Xx.
00000 XX Xxxxx #000
Xxxxxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx
& Xxxxxxxx, P.A.
Attention: Xxxxxx X. Xxxx, Esquire
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(ii) If to Brunswick:
Brunswick Corporation
Attention: Mr. Xxxxx Xxxxxx
0 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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With a copy to:
Brunswick Corporation
Attention: General Counsel
0 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(iii) If to any other party hereto:
To that party's last address appearing on
the records of the Company.
Any party may alter the address to which communications or
copies are to be sent by giving notice of that change of address in conformity
with the provisions of this Section for the giving of notice.
SECTION 11.8 BINDING NATURE OF AGREEMENT; NO ASSIGNMENT.
Except to the extent set forth herein, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and assigns, except that no party may assign or
transfer his, her, or its rights or obligations under this Agreement without the
prior written consent of the other parties hereto.
SECTION 11.9 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party hereto whose signature appears hereon, and all of
which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
SECTION 11.10 PROVISIONS SEVERABLE. The provisions of this
Agreement are independent of and severable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or unenforceable
in whole or in part. Further, if a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable as written,
such court may interpret, construe, rewrite or revise such provision, to the
fullest extent allowed by law, so as to make it valid and enforceable consistent
with the intent of the parties hereto.
SECTION 11.11 COUNTING. In computing the number of days or
hours for purposes of this Agreement, all days and hours shall be counted,
including Saturdays, Sundays and holidays; provided, however, that if the final
day or hour of any time period falls on a
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Saturday, Sunday or day that is a legal holiday in the state of Delaware, then
the final day or hour shall be deemed to be the next day or hour that is not, or
does not fall on, a Saturday, Sunday or day that is a legal holiday in the state
of Delaware.
SECTION 11.12 EFFECTIVE DATE. This Agreement shall be
effective upon the final closing under the IPO and Brunswick's purchase of
Shares, but no party shall take any actions inconsistent with this Agreement
after its execution, except that the Senior Founders may sell stock as Selling
Stockholders in the IPO.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
MARINEMAX, INC.
By: /s/ Xxxxxxx X. XxXxxx, Xx.
--------------------------------
Name: /s/ Xxxxxxx X. XxXxxx, Xx.
Title: Chairman CEO
BRUNSWICK CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman & Chief
Executive Officer
SENIOR FOUNDERS:
By: /s/ Xxxxxxx X. XxXxxx Xx.
--------------------------------
Name: Xxxxxxx X. XxXxxx Xx.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
By: /s/ Xxxxx X. XxxXxxxx
--------------------------------
Name: Xxxxx X. XxxXxxxx
By: /s/ Xxxxxxx X. XxXxxxx Xx.
--------------------------------
Name: Xxxxxxx X. XxXxxxx Xx.
-----------------------------
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CONSENT OF SPOUSES
The undersigned spouses of the Senior Founders who are parties to the
Stockholders' Agreement (the "Agreement") with MARINEMAX, INC., a Delaware
corporation (the "Company"), hereby declare that they have read the Agreement in
its entirety, and being fully convinced of the wisdom and equity of the terms of
the Agreement, and in consideration of the premises and of the provisions of the
Agreement, the undersigned hereby express their acceptance of the same and do
agree to its provisions.
The undersigned further agree that in the event of the death of their
respective spouses, the dissolution of their respective marriages or any other
occurrence contemplated by the Agreement, the provisions of the Agreement shall
be binding upon them to the extent of any interest that they may have in the
Company.
The undersigned further agree that they will at any time make, execute
and deliver such instruments and documents that may be necessary to carry out
the provisions of the Agreement.
This instrument is not a present transfer or release of any rights
which the undersigned may have in any of the community property of their
respective marriages.
DATED as of the 28th day of April, 1998.
/s/ Xxxxxxxx X. XxXxxx
--------------------------------
Spouse of Xxxxxxx X. XxXxxx Xx.
/s/ Xxxxxxx XxxXxxxx
--------------------------------
Spouse of Xxxxx X. XxxXxxxx
/s/ Xxxxxx X. XxXxxxx
--------------------------------
Spouse of Xxxxxxx X. XxXxxxx Xx.
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