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Exhibit 10.1(c)
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AGREEMENT AND PLAN OF ORGANIZATION
DATED AS OF THE 1ST DAY OF FEBRUARY, 1998
BY AND AMONG
MARINEMAX, INC.,
GULFWIND USA ACQUISITION CORP.
(A SUBSIDIARY OF MARINEMAX, INC.)
GULFWIND USA, 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......................................................... 5
1.3 Articles/Certificate of Incorporation, Bylaws and Board of Directors of
Surviving Corporation.................................................. 5
1.4 Certain Information With Respect to the Capital Stock of COMPANY,
MARINEMAX and NEWCO.................................................... 5
1.5 Effect of Merger....................................................... 6
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....................................................... 8
5.2 Authorization.......................................................... 9
5.3 Capital Stock of COMPANY............................................... 9
5.4 Transactions in Capital Stock, Organization Accounting................. 9
5.5 No Bonus Shares........................................................ 9
5.6 Subsidiaries........................................................... 10
5.7 Predecessor Status; Etc................................................ 10
5.8 Spin-off by COMPANY.................................................... 10
5.9 Financial Statements................................................... 10
5.10 Liabilities and Obligations............................................ 10
5.11 Accounts and Notes Receivable.......................................... 11
5.12 Permits and Intangibles................................................ 11
5.13 Environmental Matters.................................................. 11
5.14 Personal Property...................................................... 12
5.15 Significant Customers; Material Contracts and Commitments.............. 12
5.16 Real Property.......................................................... 13
5.17 Insurance.............................................................. 14
5.18 Compensation; Employment Agreements; Organized Labor Matters........... 14
5.19 Employee Plans......................................................... 15
5.20 Compliance with ERISA.................................................. 15
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5.21 Conformity with Law; Litigation........................................ 16
5.22 Taxes.................................................................. 17
5.23 No Violations.......................................................... 17
5.24 Government Contracts................................................... 17
5.25 Absence of Changes..................................................... 18
5.26 Deposit Accounts; Powers of Attorney................................... 19
5.27 Validity of Obligations................................................ 19
5.28 Relations with Governments............................................. 19
5.29 Prohibited Activities.................................................. 19
5.30 Disclosure............................................................. 19
(B) Representations and Warranties of STOCKHOLDERS......................... 20
5.31 Authority: Ownership................................................... 20
5.32 Preemptive Rights...................................................... 20
5.33 No Intention to Dispose of MARINEMAX Stock............................. 20
6. REPRESENTATIONS OF MARINEMAX AND NEWCO....................................... 20
6.1 Due Organization....................................................... 21
6.2 Authorization.......................................................... 21
6.3 Capital Stock of MARINEMAX and NEWCO................................... 21
6.4 Transactions in Capital Stock; Organization Accounting................. 21
6.5 Subsidiaries........................................................... 21
6.6 Financial Statements................................................... 22
6.7 [Intentionally Deleted]................................................ 22
6.8 Validity of Obligations................................................ 22
6.9 MARINEMAX Stock........................................................ 22
6.10 Disclosure............................................................. 22
6.11 No Undisclosed Agreements.............................................. 22
7. COVENANTS PRIOR TO CLOSING................................................... 22
7.1 Access and Cooperation; Due Diligence.................................. 22
7.2 Conduct of Business Pending the Merger................................. 23
7.3 Prohibited Activities.................................................. 24
7.4 [Intentionally Deleted]................................................ 25
7.5 [Intentionally Deleted.]............................................... 25
7.6 Agreements............................................................. 25
7.7 Notification of Certain Matters........................................ 25
7.8 Delivery of Schedules; Amendment of Schedules.......................... 25
7.9 [Intentionally Deleted]................................................ 26
7.10 Final Financial Statements............................................. 26
7.11 Further Assurances..................................................... 27
7.12 [Intentionally Deleted]................................................ 27
7.13 Compliance with the Xxxx-Xxxxx Act..................................... 27
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE STOCKHOLDERS
AND COMPANY.................................................................. 27
8.1 Representations and Warranties; Performance of Obligations.............. 27
8.2 Satisfaction........................................................... 27
8.3 No Litigation.......................................................... 28
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8.4 [Intentionally Deleted]................................................ 28
8.5 Consents and Approvals................................................. 28
8.6 Good Standing Certificates............................................. 28
8.7 No Material Adverse Change............................................. 28
8.8 [Intentionally Deleted]................................................ 28
8.9 Secretary's Certificate................................................ 28
8.10 Employment Agreements.................................................. 28
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF MARINEMAX AND
NEWCO........................................................................ 28
9.1 Representations and Warranties; Performance of Obligations.............. 28
9.2 No Litigation.......................................................... 29
9.3 Secretary's Certificate................................................ 29
9.4 No Material Adverse Effect............................................. 29
9.5 STOCKHOLDERS' Release.................................................. 29
9.6 Satisfaction........................................................... 29
9.7 [Intentionally Deleted]................................................ 29
9.8 Consents and Approvals................................................. 29
9.9 Good Standing Certificates............................................. 30
9.10 Pooling Letters........................................................ 30
9.11 Employment Agreements.................................................. 30
9.12 Specific Indemnification Agreement..................................... 30
9.13 FIRPTA Certificate..................................................... 30
9.14 Investment Agreements.................................................. 30
10. COVENANTS OF MARINEMAX AND THE STOCKHOLDERS AFTER
CLOSING...................................................................... 30
10.1 Assumption of STOCKHOLDERS' Guarantees................................. 30
10.2 Preservation of Tax and Accounting Treatment........................... 30
10.3 Preparation and Filing of Tax Returns.................................. 31
10.4 Directors and Officers of the Surviving Corporation.................... 31
10.5 Preservation of Employee Benefit Plans................................. 31
10.6 Dividends.............................................................. 32
10.7 Distribution of Financial Statements................................... 32
11. INDEMNIFICATION.............................................................. 32
11.1 General Indemnification by the STOCKHOLDERS............................ 32
11.2 Indemnification by MARINEMAX........................................... 32
11.3 Third Person Claims.................................................... 33
11.4 Limitations on Indemnification......................................... 34
11.5 Environmental Indemnification by the STOCKHOLDERS...................... 34
12. TERMINATION OF AGREEMENT..................................................... 35
12.1 Termination............................................................ 35
12.2 Liabilities in Event of Termination.................................... 36
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13. NONCOMPETITION............................................................... 36
13.1 Prohibited Activities.................................................. 36
13.2 Damages................................................................ 37
13.3 Reasonable Restraint................................................... 37
13.4 Severability; Reformation.............................................. 37
13.5 Independent Covenant................................................... 37
13.6 Materiality............................................................ 38
14. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.................................... 38
14.1 STOCKHOLDERS........................................................... 38
14.2 MARINEMAX AND NEWCO.................................................... 38
14.3 Damages................................................................ 39
14.4 Survival............................................................... 39
15. TRANSFER RESTRICTIONS........................................................ 39
15.1 Transfer Restrictions.................................................. 39
16. FEDERAL SECURITIES ACT REPRESENTATIONS....................................... 39
16.1 Compliance with Law.................................................... 39
16.2 Economic Risk; Sophistication.......................................... 40
17. GENERAL...................................................................... 40
17.1 Cooperation............................................................ 40
17.2 Successors and Assigns................................................. 40
17.3 Entire Agreement....................................................... 40
17.4 Counterparts........................................................... 41
17.5 Brokers and Agents..................................................... 41
17.6 Expenses............................................................... 41
17.7 Notices................................................................ 41
17.8 Governing Law.......................................................... 42
17.9 Survival of Representations and Warranties............................. 42
17.10 Exercise of Rights and Remedies........................................ 42
17.11 Time................................................................... 42
17.12 Reformation and Severability........................................... 43
17.13 Remedies Cumulative.................................................... 43
17.14 Captions............................................................... 43
17.15 Amendments and Waivers................................................. 43
17.16 Execution by Facsimile; Delivery of Original Signed Agreement.......... 43
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AGREEMENT AND PLAN OF ORGANIZATION
THIS AGREEMENT AND PLAN OF ORGANIZATION (this "Agreement") is made as of
the 1st day of February, 1998, by and among MARINEMAX, INC., a Delaware
corporation ("MARINEMAX"), GULFWIND USA ACQUISITION CORP., a Delaware
corporation ("NEWCO"), GULFWIND USA, INC., a Florida corporation (the
"COMPANY"), and XXXXXXX X. XXXXXX, XX. ("Stockholder 1"), XXXXXXX XXXXX XXXXXX
("Stockholder 2"), XXXXXX X. XXXXXXX ("Stockholder 3"), XXXXX ST. XXXXXX
("Stockholder 4"), and XXXXXX X. XXXXXX AND XXXXXXX X. XXXXXX, AS HUSBAND AND
WIFE ("Stockholder 5")(Stockholder 1, Stockholder 2, Stockholder 3, Stockholder
4, and Stockholder 5 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 Florida;
WHEREAS, MARINEMAX is entering into other separate agreements
substantially similar to this Agreement (the "Other Agreements"), each of which
is entitled "Agreement and Plan of Organization," with each of the Other
Founding Companies and their respective stockholders in order to acquire
additional companies engaged in the business of selling, renting and leasing
nautical and other lifestyle entertainment products and services, and related
activities;
WHEREAS, this Agreement and the Other Agreements constitute the "MARINEMAX
Plan of Organization," and the parties intend that each merger comprising the
MARINEMAX Plan of Organization be accounted for as a pooling-of-interests for
accounting purposes;
WHEREAS, the STOCKHOLDERS and the Boards of Directors and the stockholders
of MARINEMAX, NEWCO, each of the Other Founding Companies and each of the
subsidiaries of MARINEMAX that are parties to the Other Agreements have approved
and adopted the MARINEMAX Plan of Organization as an integrated plan pursuant to
which the STOCKHOLDERS and the stockholders of each of the Other Founding
Companies will transfer the capital stock of each of the Founding Companies to
MARINEMAX and the STOCKHOLDERS and the stockholders of each of the Other
Founding Companies as a tax-free transfer of property under Section 351 of the
Internal Revenue Code of 1986, as amended ("Code");
WHEREAS, in consideration of the agreements of the Other Founding
Companies pursuant to the Other Agreements, and other consideration herein
recited, the Board of Directors of COMPANY has approved this Agreement as part
of the MARINEMAX Plan of Organization in order to transfer all of the capital
stock of COMPANY to MARINEMAX:
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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" means the COMPANY and any indirect or direct subsidiaries
of COMPANY.
"Acquisition Companies" shall mean NEWCO and each of the other Delaware
companies wholly-owned by MARINEMAX prior to the Effective Time.
"Affiliates" has the meaning set forth in Section 5.8.
"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 September 30, 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 fifth 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.
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"Expiration Date" has the meaning set forth in Section 5(A).
"Final COMPANY Financial Statements" has the meaning set forth in Section
7.10.
"Founding Companies" means:
XXXXXXX BOAT COMPANY OF FLORIDA, a Florida corporation,
11502 XXXXX, INC., a Texas corporation,
GULFWIND SOUTH, INC., a Florida corporation,
GULFWIND USA, INC., a Florida corporation,
XXXXXXXX'X BOAT CENTER, INC., a California corporation, and
XXXXXXXX'X MARINE CENTERS OF ARIZONA, INC., an Arizona corporation,
"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.
"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.
"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 Plan of Organization" has the meaning set forth in the fourth
recital of this Agreement.
"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
other applicable state laws.
"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.
"Other Agreements" has the meaning set forth in the third recital of this
Agreement.
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"Other Founding Companies" means all of the Founding Companies other than
COMPANY.
"Pooling Letters" shall have the meaning set forth in Section 9.10.
"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 or that will be provided
within fifteen (15) days from the execution of this Agreement (as amended in
compliance with Section 7.8 hereof), 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.
"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 18.6.
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 Florida and stamped receipt copies of each such filing to be delivered
to MARINEMAX at the Effective Time.
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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;
(ii) the Bylaws of NEWCO 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 Florida 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, Treasurer and Assistant Secretary, shall be appointed as an 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 Thirty Million (30,000,000) shares of
MARINEMAX Stock, of which the number of issued and outstanding shares will be
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
(1) share is issued and outstanding.
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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
laws of the State of Florida. 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 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
pooling-of-interests. 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
pooling-of-interests, 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:
(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;
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(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
Sections 15 and 16 hereof and in the Pooling Letters referred to in Section 9.10
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 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 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.
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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 applicable corporate
laws of the State of Florida 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 Section 5, 8 and 9 hereof on such date as
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. Each
of COMPANY and the STOCKHOLDERS represents and warrants 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 warranties shall survive the Closing and
the Effective Time for a period of the earlier of (i) the date of the first
audit of financial statements of the Surviving Corporation containing combined
operations of MARINEMAX and the Surviving Corporation for those representations
and warranties set forth within Section 5(A) which representations and
warranties specifically deal with items that would be expected to be encountered
in the audit process, or (ii) twelve (12) months, the last day of such period
being the "Expiration Date". 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 Florida, 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").
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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
in 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. Except as disclosed in Schedule 5.3 hereto, each
STOCKHOLDER has at all times during the two (2) year period immediately
preceding the date hereof owned or maintained sole equitable and beneficial
interest in all of the issued and outstanding shares of the capital stock of
COMPANY as to which such STOCKHOLDER is the registered holder, as set forth in
Schedule 5.3 hereto. 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.
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; and (iii) neither the voting stock
structure of COMPANY nor the relative ownership of shares among any of its
respective stockholders has been altered or changed in contemplation of the
Merger and/or the MARINEMAX Plan of Organization. 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 was issued pursuant to awards, grants or bonuses in
contemplation of the Merger or the MARINEMAX Plan of Organization.
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5.6 SUBSIDIARIES. 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.
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 ("Affiliates") since September 30, 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 Statements of Operations, Shareholders' Equity and Cash
Flows for the years ended December 31, 1995 and December 31, 1996 and for the
nine month period ended September 30, 1997. 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 and September 30, 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:
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(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;
(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). To the best knowledge and belief of COMPANY and STOCKHOLDERS after due
inquiry, 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
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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 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 September 30, 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.
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
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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. 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 body.
(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 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.
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(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 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; and (iii)
true, complete and correct copies of all insurance policies currently in 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.
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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 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
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(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 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
discontinuance 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, 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.
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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 September 30
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. COMPANY is not an investment company as defined in Section 351(e)(1) of
the Code.
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, 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,
NEWCO or any Other Founding Company.
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.
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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;
(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;
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(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 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
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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.
(B) REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each STOCKHOLDER
severally represents and warrants 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 for a period of the earlier of
(i) the date of the first audit of financial statements of the Surviving
Corporation containing combined operations of MARINEMAX and the Surviving
Corporation for those representations set forth within Section 5(B) which
representations and warranties specifically deal with items that would be
expected to be encountered in the audit process, or (ii) twelve (12) months.
5.31 AUTHORITY: OWNERSHIP. Such STOCKHOLDER has the full legal right,
capacity, power and authority to enter into this Agreement. Such STOCKHOLDER
owns beneficially and of record all of the shares of COMPANY Stock identified in
Schedule 5.3 as being owned by such STOCKHOLDER, 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. Such STOCKHOLDER does not have, or hereby waives,
any preemptive or other right to acquire shares of COMPANY Stock or MARINEMAX
Stock that such STOCKHOLDER has 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
for a period of the earlier of (i) the date of the first audit of financial
statements of the Surviving Corporation containing combined operations of
MARINEMAX and the Surviving Corporation for those representations and warranties
set forth within Section 6 which representations and warranties specifically
deal with items that would be expected to be
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encountered in the audit process, or (ii) twelve (12) months, the last day of
such period being the "Expiration Date".
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.
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, in each
case, free and clear of all liens, security interests, pledges, charges, voting
trusts, restrictions, encumbrances and claims of every kind. All of the issued
and outstanding shares of the capital stock of MARINEMAX and NEWCO have been
duly authorized and validly issued, are fully paid and nonassessable, are owned
of record and beneficially by MARINEMAX and the persons set forth on Schedule
6.3, respectively, and further, such shares were offered, issued, sold and
delivered by MARINEMAX and NEWCO in compliance with applicable state and federal
laws concerning the issuance of securities. Further, none of such shares were
issued in violation of the preemptive rights of any past or present stockholder
of MARINEMAX or NEWCO.
6.4 TRANSACTIONS IN CAPITAL STOCK; ORGANIZATION ACCOUNTING. Except for the
Other Agreements and 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. Schedule 6.4 also includes complete and
accurate copies of all stock option or stock purchase plans, including a list,
accurate as of the date hereof, of all outstanding options, warrants or other
rights to acquire shares of the stock of MARINEMAX.
6.5 SUBSIDIARIES. NEWCO has no subsidiaries. MARINEMAX has no subsidiaries
except for (i) NEWCO and each of the companies identified as "NEWCO" in each of
the Other Agreements, and (ii) those newly formed corporations which will
receive certain pieces and parcels of real property, and except as set forth in
the preceding sentence, neither MARINEMAX nor NEWCO presently owns, of record or
beneficially, or controls, directly or indirectly, any capital stock, securities
convertible into capital stock or any other equity interest in any corporation,
association or business entity, and neither
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MARINEMAX nor NEWCO, directly or indirectly, is a participant in any joint
venture, partnership or other non-corporate entity.
6.6 FINANCIAL STATEMENTS. MARINEMAX was formed on January 23, 1998, and
has had no operations to the date hereof except with respect to the transactions
contemplated by this Agreement and the Other Agreements with each of the Other
Founding Companies, and accordingly MARINEMAX has not delivered any Financial
Statements or other financial information of MARINEMAX to any of 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 Sections 15 and 16
hereof and in the "Pooling Letters", 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 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.
6.11 NO UNDISCLOSED AGREEMENTS. There do not exist any agreements,
understandings or commitments by MARINEMAX or NEWCO or, to the knowledge of
MARINEMAX or NEWCO, any of the Other Founding Companies, which provide any
material benefit or other thing of material value to any stockholder of any of
the Other Founding Companies in connection with their relation to MARINEMAX, or
that vary materially the express terms of the Other Agreements, except as set
forth in any of the Other Agreements or any employment or consultant agreement
entered into pursuant thereto or appended thereto as an Annex, or except as
described on Schedule 6.11.
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
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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 or the
Other Founding Companies may from time to time reasonably request. COMPANY will
cooperate with MARINEMAX and the Other Founding Companies, 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 or the due diligence investigations conducted
with respect to the Other Founding Companies as confidential in accordance with
the provisions of Section 14 hereof. In addition, MARINEMAX will cause each of
the Other Founding Companies to enter into a provision similar to this Section
7.1 requiring each such Other Founding Company, its stockholders, directors,
officers, representatives, employees and agents to keep confidential any
information obtained by such Other Founding Company.
(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:
(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;
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(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 except as permitted by Section 10.6,
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;
(iii) except as permitted by Section 10.6 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;
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(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.]
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
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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 and a majority of the Founding Companies other than
COMPANY consent 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 a majority of the Founding Companies consent
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 be
deemed to be the Schedules as amended or supplemented pursuant to this Section
7.8. In the event that one of the Other Founding Companies seeks to amend or
supplement a Schedule pursuant to Section 7.8 of one of the Other Agreements,
and such amendment or supplement constitutes or reflects an event or occurrence
that would have a Material Adverse Effect on such Other Founding Company,
MARINEMAX shall give COMPANY notice thereof. If MARINEMAX and a majority of the
Founding Companies consent to such amendment or supplement, which consent shall
have been deemed given by MARINEMAX or any Founding Company if no response is
received within twenty-four (24) hours following receipt of notice of such
amendment or supplement (or sooner if required by the circumstances under which
such consent is requested), but COMPANY does not give its consent, COMPANY
shall, without further act or action, be deemed to have given its consent and
may not thereafter terminate this Agreement. In the event that COMPANY seeks to
amend or supplement a Schedule pursuant to this Section 7.8, and MARINEMAX and a
majority of the Other Founding Companies do 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 a majority of
the Founding Companies do 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 December
31, 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 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.
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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 with respect to the
pooling-of-interests accounting issues.
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 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 has 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 reasonably satisfactory to COMPANY and its counsel.
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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 [INTENTIONALLY DELETED].
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 IV.
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 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
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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 to be delivered pursuant to this Section shall be in form
and content as set forth in Annex V 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 [INTENTIONALLY DELETED].
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
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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 POOLING LETTERS. The STOCKHOLDERS shall each have executed and
delivered a letter agreement in favor of MARINEMAX and NEWCO, in form and
content as set forth in Annex VI attached hereto (the "Pooling Letters"),
pursuant to which each STOCKHOLDER shall agree to hold the MARINEMAX Stock
received by such STOCKHOLDER, for such period of time as is necessary to allow
the Merger to be accounted for as a "pooling-of-interests" under the rules and
regulations of the SEC.
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 IV.
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.
9.13 FIRPTA CERTIFICATE. Each STOCKHOLDER shall have delivered to
MARINEMAX a certificate to the effect that he is not a foreign person pursuant
to Section 1.1445-2(b) of the Treasury Regulations.
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.
10.2 PRESERVATION OF TAX AND ACCOUNTING 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 or the "pooling-of-interests" accounting
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treatment of the organization set forth herein, 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 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
comply with the tax reporting requirements of Section 1.351-3 of the Treasury
Regulations promulgated under the Code, and treat the transaction as a tax-free
contribution under Section 351(a) of the Code subject to gain, if any,
recognized on the receipt of cash or other property under Section 351(b) of the
Code.
10.4 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. The persons who
are the directors and officers of NEWCO shall be appointed as directors and
elected as officers of the Surviving Corporation, promptly following the
Effective Time.
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
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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 DISTRIBUTION OF FINANCIAL STATEMENTS. MARINEMAX shall use its
reasonable business efforts to prepare, publish and disseminate financial
statements including at least thirty (30) days of combined operations of COMPANY
and MARINEMAX after giving effect to the Merger and the transactions
contemplated by the Other Agreements, to the end that the STOCKHOLDERS may
thereafter sell the MARINEMAX Stock received in the Merger, without such sale
violating the rules and regulations of the SEC.
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 each
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 the date of this Agreement until the applicable Expiration Date, 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 on or prior to the Expiration Date (or thereafter if a claim has been
made therefor prior to such date) 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 until the Expiration Date, 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 on or prior to the Expiration Date (or thereafter if a claim has been
made therefor prior to such date) 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 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
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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
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
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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 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, except as may otherwise be permitted and still preserve
pooling-of-interests accounting treatment. 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
covenant and agree that they will indemnify, defend, protect and hold harmless
MARINEMAX,
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NEWCO, COMPANY and the Surviving Corporation at all times, from and after date
of this Agreement until the applicable Expiration Date, for, from and against
all claims, damages, actions, suit, proceedings, demands, assessments,
adjustments, costs and expenses (including specifically, but without limitation,
reasonable attorneys' fees and expenses of investigation) incurred on or prior
to the Expiration Date (or thereafter if a claim has been made therefor prior to
such date) 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.
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;
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(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 June
30, 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:
(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 and 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), provided that each STOCKHOLDER shall be permitted to
call upon and hire any member of his or her immediate family;
(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,
any Acquired Party or of any of the Other Founding
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Companies 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
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 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
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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, the Other
Founding Companies, and/or MARINEMAX, such as operational policies, and pricing
and cost policies that are valuable, special and unique assets of COMPANY's, any
Acquired Party, the Other Founding Companies' and/or MARINEMAX's 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 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, (b) to counsel and other advisers,
provided that such advisers (other than counsel) agree to the confidentiality
provisions of this Section 14.1, (c) to the Other Founding Companies and their
representatives pursuant to Section 7.1(a), 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
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(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.
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. TRANSFER RESTRICTIONS
15.1 TRANSFER RESTRICTIONS. STOCKHOLDERS shall not sell, assign, exchange,
transfer, encumber, pledge, distribute, appoint, or otherwise dispose of any
shares of MARINEMAX Stock received by the STOCKHOLDERS in the Merger in
violation of the provisions of the Pooling Letters referred to in Section 9.10
hereof. 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:
THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
TERMS AND CONDITIONS OF THAT CERTAIN LETTER AGREEMENT DATED
__________________, 1998 BY THE BENEFICIAL HOLDER OF THIS CERTIFICATE,
WHICH RESTRICTS THE SALE, TRANSFER OR DISPOSITION OF THE SHARES. A COPY OF
THE LETTER AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL
EXECUTIVE OFFICES OF THIS CORPORATION.
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 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
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45
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 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 the Other
Founding Companies, 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
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46
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 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
Xxx Xxxx Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq. and Xxxx X. Xxxxxx, Esq.
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(b) If to the STOCKHOLDERS, addressed to them at:
Stockholder 1:
Xxxxxxx X. XxXxxx, Xx.
000 Xx. Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Stockholder 2:
Xxxxxxx Xxxxx XxXxxx
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Stockholder 3:
Xxxxxx X. Xxxxxxx
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Stockholder 4:
Xxxxx St. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Stockholder 5:
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
with copies to:
Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxx X. Xxxxxxxxxx, Esq.
(c) If to COMPANY, addressed to it at:
Gulfwind USA, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. XxXxxx, Xx.
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with copies to:
Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxx X. Xxxxxxxxxx, Esq.
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 until the Expiration Date.
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 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
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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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
STOCKHOLDERS:
MARINEMAX:
MARINEMAX, INC., a Delaware corporation /s/ Xxxxxxx X. XxXxxx, Xx.
----------------------------
Xxxxxxx X. XxXxxx, Xx.
By: /s/
--------------------------------------- /s/ Xxxxxxx Xxxxx XxXxxx
Name: ----------------------------
--------------------------------------- Xxxxxxx Xxxxx XxXxxx
Title:
---------------------------------------
NEWCO: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
XXXXXXXX USA ACQUISITION CORP., a
Delaware corporation /s/ Xxxxx St. Xxxxxx
----------------------------
Xxxxx St. Xxxxxx
By: /s/
---------------------------------------
Name: Xxxxxx X. Xxxxxx & Xxxxxxx X.
--------------------------------------- Xxxxxx, as husband and wife
Title:
---------------------------------------
COMPANY: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
XXXXXXXX USA, INC., a Florida corporation
By: /s/ /s/ Xxxxxxx X. Xxxxxx
--------------------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title:
---------------------------------------
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51
CONSENT OF SPOUSE
The undersigned spouse of Xxxxxxx X. XxXxxx, Xx., who is a party to the
foregoing Agreement and Plan of Organization, pertaining to the merger of
Gulfwind USA Acquisition Corp., a Delaware corporation with and into Gulfwind
USA, Inc., a Florida 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 Xxxxxxx X. XxXxxx, Xx..
The undersigned further agrees that in the event of the death of Xxxxxxx
X. XxXxxx, Xx., the dissolution of their marriage, or any occurrence
contemplated by the Agreement that gives rise to any liability or obligation of
Xxxxxxx X. XxXxxx, Xx., 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 Xxxxxxx X.
XxXxxx, Xx. 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 January, 1998.
/s/____________________________________
State of _________________ )
)ss.
County of ________________ )
The foregoing was acknowledged before me this ___ day of January, 1998 by
_____________.
___________________________________________
Notary Public
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52
CONSENT OF SPOUSE
The undersigned spouse of Xxxxxxx Xxxxx XxXxxx, who is a party to the
foregoing Agreement and Plan of Organization, pertaining to the merger of
Gulfwind USA Acquisition Corp., a Delaware corporation with and into Gulfwind
USA, Inc., a Florida 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 Xxxxxxx Xxxxx XxXxxx.
The undersigned further agrees that in the event of the death of Xxxxxxx
Xxxxx XxXxxx, the dissolution of their marriage, or any occurrence contemplated
by the Agreement that gives rise to any liability or obligation of Xxxxxxx Xxxxx
XxXxxx, 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 Xxxxxxx Xxxxx XxXxxx 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 January, 1998.
/s/______________________________
State of _________________ )
)ss.
County of ________________ )
The foregoing was acknowledged before me this ___ day of January, 1998 by
_____________.
____________________________________________
Notary Public
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53
CONSENT OF SPOUSE
The undersigned spouse of Xxxxxx X. Xxxxxxx, who is a party to the
foregoing Agreement and Plan of Organization, pertaining to the merger of
Gulfwind USA Acquisition Corp., a Delaware corporation with and into Gulfwind
USA, Inc., a Florida 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 January, 1998.
/s/
___________________________________________
State of _________________ )
)ss.
County of ________________ )
The foregoing was acknowledged before me this ___ day of January, 1998 by
_____________.
___________________________________________
Notary Public
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54
CONSENT OF SPOUSE
The undersigned spouse of Xxxxx St. Xxxxxx, who is a party to the
foregoing Agreement and Plan of Organization, pertaining to the merger of
Gulfwind USA Acquisition Corp., a Delaware corporation with and into Gulfwind
USA, Inc., a Florida 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 Xxxxx St. Xxxxxx.
The undersigned further agrees that in the event of the death of Xxxxx St.
Xxxxxx, the dissolution of their marriage, or any occurrence contemplated by the
Agreement that gives rise to any liability or obligation of Xxxxx St. Xxxxxx,
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 Xxxxx St. Xxxxxx 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 January, 1998.
/s/
_________________________________________
State of _________________ )
)ss.
County of ________________ )
The foregoing was acknowledged before me this ___ day of January, 1998 by
_____________.
___________________________________________
Notary Public
49
