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EXHIBIT 10.8
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RESTATED AGREEMENT RELATING TO THE PURCHASE
OF MARINEMAX COMMON STOCK
between
MARINEMAX, INC.
and
BRUNSWICK CORPORATION
April 28, 1998
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RESTATED AGREEMENT RELATING TO THE PURCHASE
OF MARINEMAX COMMON STOCK
RESTATED AGREEMENT RELATING TO THE PURCHASE OF MARINEMAX
COMMON STOCK dated as of the 28th day of April 1998 between MARINEMAX, INC., a
Delaware corporation ("MarineMax"); and BRUNSWICK CORPORATION, a Delaware
corporation for itself and on behalf of its subsidiaries and affiliates
including the Sea Ray Division of Brunswick ("Brunswick").
R E C I T A L S
A. MarineMax has completed merger transactions (the "Mergers")
involving Xxxxxxx Boat Company of Florida, Xxxxx XxxXxxxx Marine, Gulfwind
Marine, USA, Gulfwind Marine South, and Xxxxxxxx'x Marine Centers as well as
their affiliated and subsidiary companies (collectively, the "Merged Companies")
as a result of which the Merged Companies became wholly owned subsidiaries of
MarineMax.
B. The Merged Companies sell and service various boats
manufactured by Brunswick or subsidiaries or divisions of Brunswick ("Brunswick
Affiliates," which includes the Sea Ray Division of Brunswick), including Sea
Ray pleasure boats, Boston Whaler fishing boats, and Baja high-performance boats
pursuant to various dealer agreements of even date (the "Dealer Agreements")
between the Merged Companies and the relevant Brunswick Affiliates.
C. MarineMax and Brunswick entered into a settlement agreement
dated as of March 12, 1998 (the "Settlement Agreement") pursuant to which
Brunswick and the Brunswick Affiliates consented to a change in the ownership of
each of the Merged Companies resulting from the Mergers.
D. It is the intention of MarineMax to close an initial public
offering of its Common Stock (the "IPO") as soon as practicable.
E. MarineMax intends that its growth will be achieved both
internally and through acquisitions.
F. MarineMax and Brunswick desire to reach an understanding
relating to a long-term relationship between MarineMax on the one hand and
Brunswick and the Brunswick Affiliates including the Sea Ray Division on the
other hand, including long-term dealer agreements, an ownership interest by
Brunswick in MarineMax, provisions relating to the purchase and sale of
MarineMax Common Stock in certain circumstances, and provisions relating to the
governance of MarineMax.
G. This Agreement sets forth the terms under which Brunswick
will have the opportunity to acquire an ownership interest in MarineMax.
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A G R E E M E N T
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. APPROVAL OF THE IPO. Brunswick hereby agrees that the IPO
will not violate the terms of the Dealer Agreements.
2. PURCHASE BY BRUNSWICK OF INITIAL PUBLIC OFFERING STOCK OF
MARINEMAX. MarineMax shall afford Brunswick, on an all or none basis, the
opportunity to purchase shares of the Common Stock of MarineMax that will
constitute 14.1% of the issued and outstanding Common Stock of MarineMax after
giving effect to the IPO including any overallotment option granted to the
underwriters of the IPO (the "Initial Ownership Percentage"). As soon as
practicable after the date of this Agreement, Brunswick shall inform MarineMax
whether or not it intends to purchase such shares subject to the early
termination or expiration of the pre-merger notification period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, the effectiveness of the
registration statement filed with the Securities and Exchange Commission
relating to the IPO including the shares to be issued to Brunswick (the
"Registration Statement"), and the delivery of a final prospectus covering the
shares to be issued to Brunswick, but such indication shall not constitute a
legal obligation of Brunswick to purchase the shares and MarineMax shall have no
recourse against Brunswick if Brunswick does not purchase the shares. If
Brunswick determines to purchase the shares, Brunswick shall purchase the shares
for cash contemporaneously with the initial closing of the IPO and the closing
of any overallotment options granted to the underwriters of the IPO. The
purchase will be at the IPO price, less underwriting discounts and commissions.
The shares to be issued to Brunswick may be issued under a registration
statement different from the Registration Statement covering the shares issued
to the public in the IPO in order to reflect the different manner of
distribution (together, the "Registration Statements"). If Brunswick determines
to purchase the shares following the effectiveness of the Registration Statement
and to the extent permitted by applicable law and regulations, Brunswick will
execute standard agreements reasonably acceptable to Brunswick confirming its
suitability under applicable securities laws to make the purchase, agreeing to a
six-month lockup for any shares purchased by it, and providing to MarineMax and
MarineMax's underwriters with Brunswick's commitment to purchase such shares. If
Brunswick does not purchase the Initial Ownership Percentage as contemplated
hereby, Brunswick shall not purchase any shares of Common Stock of MarineMax for
at least six months after the completion of the IPO. Any commitment by Brunswick
to purchase shares shall expire on the earlier of (a) the completion of the IPO,
(b) the withdrawal of the Registration Statement, (c) the occurrence of a
material adverse change in the business and financial condition of MarineMax
since the date of such Registration Statement, or (d) six months from the date
of the commitment.
3. INDEMNIFICATION OF BRUNSWICK. MarineMax hereby indemnifies
and holds harmless Brunswick and each person who controls Brunswick (within the
meaning of Section 15 of the Securities Act of 1933) against any and all losses,
claims, damages, liabilities, and
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expenses (including reasonable costs of investigation and counsel fees) caused
by (a) any untrue statement of a material fact contained in the Registration
Statements in the form declared effective or in any amendment or supplement
thereto except for information relating to Brunswick furnished in writing by
Brunswick expressly for use in connection with the Registration Statements or in
any amendment or supplement thereto, or (b) any omission to state in the
Registration Statements any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading, excepting such information furnished in
writing by Brunswick.
4. GENERAL.
(a) NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed given when delivered against
receipt, or upon the receipt of a facsimile copy, or three days after being
deposited in the United States mail, postage prepaid, registered or certified
mail, addressed as follows:
If to the Company, to: With a copy to:
MarineMax, Inc. X'Xxxxxx, Cavanagh, Anderson,
Attn: Xx. Xxxxxxx X. XxXxxx Xx. Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
00000 XX Xxxxx #000 Xxxx: Xxxxxx X. Xxxx, Esq.
Xxxxxxxxxx, Xxxxxxx 00000 One East Camelback Road, Suite 1100
Tel: 000-000-0000 Xxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000
If to Brunswick, to: With a copy to:
Brunswick Corporation Brunswick Corporation
Attn: Mr. Xxxxx Xxxxxx Attn: General Counsel
0 Xxxxx Xxxxx Xxxxx 0 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000 Xxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
assigns, legal representatives, executors, heirs and successors; provided,
however, that no party hereto shall have the right to
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assign any right hereunder or delegate any obligation hereunder, in whole or in
part, without the prior written consent of the other parties hereto, and any
attempt to do so shall be void.
(c) AMENDMENT, MODIFICATION, OR WAIVER. No amendment,
modification, or waiver of any condition, provision, or term of this Agreement
shall be valid or of any effect unless made in writing, signed by the party or
parties to be bound, and specifying with particularity the nature and extent of
such amendment, modification, or waiver. Failure on the part of any party to
complain of any act or failure to act of another party or to declare another
party in default, irrespective of how long such failure continues, shall not
constitute a waiver by such party of its rights hereunder. Any waiver by any
party of any default of another party shall not affect or impair any right
arising from any other or subsequent default. Nothing herein shall limit the
remedies and rights of the parties hereto under and pursuant to this Agreement.
(d) SEVERABLE PROVISIONS; ENFORCEABILITY. Each provision of
this Agreement is intended to be severable. If any provision hereof shall be
declared by a court of competent jurisdiction to be illegal, unenforceable, or
invalid for any reason whatsoever, such illegality, unenforceability, or
invalidity shall not affect the validity of the remainder of this Agreement.
(e) ENTIRE AGREEMENT. Except for the Dealer Agreements, the
Stockholders' Agreement, the Governance Agreement, and the Agreement Relating to
Acquisitions, this Agreement, including the exhibits and schedules hereto,
contains the entire understanding and agreement among the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings, express or implied, oral or written, among the parties with
respect to such subject matter. The express terms of this Agreement shall
control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof. Each of the exhibits and schedules
hereto is incorporated herein by this reference and constitutes a part of this
Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, and all of which together shall
constitute one and the same agreement. This Agreement shall become binding when
one or more counterparts have been signed by each of the parties hereto and
delivered to the other parties hereto.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the state of Delaware,
regardless of any applicable conflict-of-law rules to the contrary.
(h) CONSTRUCTION. The parties hereto acknowledge that each
party was represented by legal counsel (or had the opportunity to be represented
by legal counsel) in connection with this Agreement and that each of them and
their counsel have reviewed and
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revised this Agreement, or have had an opportunity to do so, and that any rule
of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or any exhibits hereto or thereto.
(i) ADDITIONAL ACTIONS. Each party hereto agrees to do all
acts and things and to make, execute, and deliver such written instruments and
documents as shall from time to time be reasonably required to carry out the
terms of this Agreement.
(j) REMEDIES CUMULATIVE. The remedies of the parties hereto
under this Agreement are cumulative and shall not exclude any other remedies to
which any party may be lawfully entitled.
(k) AUTHORITY. Each individual signing below personally
represents that he or she has full authority to bind the party or parties on
whose behalf he or she is signing.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
MARINEMAX, INC.
By: /s/
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Name:
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Title:
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BRUNSWICK CORPORATION
By: /s/
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Name:
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Title:
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