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EXHIBIT 10.10
GOVERNANCE AGREEMENT
between
MARINEMAX, INC.
and
BRUNSWICK CORPORATION
April 28, 1998
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GOVERNANCE AGREEMENT
GOVERNANCE AGREEMENT dated as of April 28, 1998, between
MARINEMAX, INC., a Delaware corporation ("Company"), and BRUNSWICK CORPORATION,
a Delaware corporation for itself and on behalf of its subsidiaries and
affiliates including the Sea Ray Division of Brunswick ("Stockholder").
R E C I T A L S
A. Stockholder plans to purchase such number of shares of
Common Stock, par value $.001, of Company that will represent 14.1% of the
issued and outstanding shares of Common Stock of Company upon the closing of the
Company's initial public offering (the "IPO Shares").
B. Company, Stockholder, and others have entered into a
stockholders' agreement of even date (the "Stockholders' Agreement"), among
other things, relating to the purchase and sale of Common Stock of Company.
Terms not otherwise defined in this Agreement shall have the definitions set
forth in the Stockholders' Agreement.
C. Company and Stockholder desire to establish in this
Agreement certain terms and conditions concerning Stockholder's participation in
the corporate governance of Company.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual covenants and agreements contained herein, Company and Stockholder
hereby agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the following meanings:
SECTION 1.1 "AFFILIATE" means that set forth in Rule 12b-2
under the Exchange Act (as in effect on the date of this Agreement).
SECTION 1.2 "BENEFICIALLY OWN" with respect to any securities
means having "beneficial ownership" of such securities (as determined pursuant
to Rule 13d-3 under the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in writing.
SECTION 1.3 "COMMISSION" means the Securities and Exchange
Commission.
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SECTION 1.4 "EXCHANGE ACT" means the Securities Exchange Act
of 1934.
SECTION 1.5 "INITIAL OWNERSHIP PERCENTAGE" means fourteen and
one-tenth percent (14.1%) of the issued and outstanding Common Stock of the
Company after giving effect to the IPO if Stockholder purchases the shares of
the Company's Common Stock as contemplated by the Agreement Relating to the
Purchase of MarineMax Common Stock between Company and Stockholder.
SECTION 1.6 "PERMITTED EXCESS SHARES" means the Total Voting
Power that the Stockholder may beneficially own in excess of the Targeted
Investment Percentage as permitted by Section 2.1, Section 3.1, Section 7.5, and
Section 7.6 of the Stockholders' Agreement.
SECTION 1.7 "PERSON" means any individual, corporation,
limited liability company, partnership, joint venture, trust, unincorporated
organization, or other entity.
SECTION 1.8 "13D GROUP" means any group of Persons acquiring,
holding, voting, or disposing of Voting Securities that would be required under
Section 13(d) of the Exchange Act and the rules and regulations thereunder (as
in effect, and based on legal interpretations thereof existing, on the date
hereof) to file a statement on Schedule 13D with the Commission as a "person"
within the meaning of Section 13(d)(3) of the Exchange Act if such group
beneficially owned Voting Securities representing more than five percent (5%) of
any class of Voting Securities then outstanding.
SECTION 1.9 "STANDSTILL PERIOD" means any period of time
during which Stockholder Beneficially Owns Voting Securities representing at
least five percent (5%) of the Total Voting Power.
SECTION 1.10 "TARGETED INVESTMENT PERCENTAGE" means, to the
extent Stockholder acquires the Initial Ownership Percentage, nineteen percent
(19%) of the issued and outstanding Common Stock of the Company after giving
effect to the IPO.
SECTION 1.11 "TOTAL VOTING POWER" means at any time the total
combined voting power in the general election of directors of all the Voting
Securities then outstanding.
SECTION 1.12 "TRANSFER" means any sale, transfer, pledge,
encumbrance, or other disposition, and to "Transfer" shall mean to sell,
transfer, pledge, encumber, or otherwise dispose of.
SECTION 1.13 "VOTING SECURITIES" means at any time shares of
any class of capital stock of the Company that are then entitled to vote
generally in the election of directors.
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ARTICLE II
STANDSTILL AND TRANSFER RESTRICTIONS
SECTION 2.1 ACQUISITION OF VOTING SECURITIES.
(a) Stockholder shall not, directly or indirectly,
Beneficially Own any Voting Securities that exceed the Targeted Investment
Percentage and the Permitted Excess Shares. Stockholder shall not permit any
Affiliate (regardless of whether such Person becomes an Affiliate of Stockholder
after the date of this Agreement) to acquire, directly or indirectly, any Voting
Securities that exceed the Targeted Investment Percentage and the Permitted
Excess Shares. Stockholder shall not be deemed to have violated this Section
2.1(a) as a result of an inadvertent acquisition of Voting Securities by
Stockholder or an Affiliate of Stockholder so long as Stockholder complies with
Section 2.1(b) promptly after Stockholder learns of any such inadvertent
acquisition.
(b) If at any time Stockholder and its Affiliates
Beneficially Own more than the Targeted Investment Percentage and the Permitted
Excess Shares other than as a result of Company purchasing or acquiring its own
Voting Securities, then Stockholder shall reasonably promptly take all action
necessary to reduce the amount of Voting Securities Beneficially Owned by such
Persons to an amount not greater than the Targeted Investment Percentage and the
Permitted Excess Shares.
SECTION 2.2 ADDITIONAL RESTRICTIONS ON TRANSFER. Stockholder
shall comply with the Stockholders' Agreement with respect to any proposed
Transfer of Voting Securities by Stockholder and Affiliates of Stockholder. In
addition, during the Standstill Period, Stockholder shall not, directly or
indirectly, Transfer, or permit any Affiliate to Transfer, any Voting Securities
to any Person (including its Affiliates and any Person that are, to
Stockholder's knowledge after reasonable inquiry, part of any 13D Group, which
includes such transferee or any of its Affiliates) that, after giving effect to
such Transfer, would Beneficially Own Voting Securities representing more than
5% of the Total Voting Power, and provided, further, that Stockholder shall have
complied in good faith with Section 2.3 in all material respects.
SECTION 2.3 FURTHER RESTRICTIONS ON CONDUCT. Except as
permitted by the Stockholders' Agreement, Stockholder covenants and agrees that
during the Standstill Period, without the prior written consent of Company:
(a) Neither Stockholder nor any Affiliate of Stockholder
shall act, alone or in concert with others, to seek to affect or influence the
control of the management or Board of Directors of Company or the business,
operations, or policies of Company;
(b) Neither Stockholder nor any Affiliate of Stockholder
shall deposit any Voting Securities in a voting trust (except a voting trust or
agreement or agreement to which Company is a party) or, except as provided in
the Stockholders' Agreement, subject any Voting
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Securities to any arrangement or agreement with respect to the voting of such
Voting Securities or other agreement having similar effect;
(c) Neither Stockholder nor any Affiliate of Stockholder
shall make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote, or seek to influence any Person with
respect to the voting of, any Voting Securities, or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act, as in effect on the date hereof) in opposition to the recommendation of the
majority of the directors of Company with respect to any matter;
(d) Neither Stockholder nor any Affiliate of Stockholder
shall initiate, propose, or otherwise solicit any stockholders of Company for
the approval of any stockholder proposals with respect to Company or induce or
attempt to induce any other Person to initiate any stockholder proposal;
(e) Except as provided in the Stockholders' Agreement,
neither Stockholder nor any Affiliate of Stockholder shall join a partnership,
limited partnership, syndicate, or other group, or otherwise act in concert with
any other Person, for the purpose of acquiring, holding, voting, or disposing of
Voting Securities, or otherwise become a "person" within the meaning of Section
13(d)(3) of the Exchange Act;
(f) Neither Stockholder nor any Affiliate of Stockholder
shall encourage, support, or participate in any tender or exchange offer for
Voting Securities of Company without the prior written consent of Company unless
at least fifty-one percent (51%) of the then outstanding Common Stock of Company
(excluding any Common Stock Beneficially Owned by Stockholder or any Affiliate
of Stockholder) has been tendered in response to such tender offer or exchange
offer or the Company announces that it supports the tender or exchange offer;
and
(g) Neither Stockholder nor any Affiliate of Stockholder
shall take any other action inconsistent with the foregoing, provided that
nothing in this Agreement shall restrict Stockholder from exercising its rights
under the Dealer Agreements.
SECTION 2.4 REPORTS. During the Standstill Period, Stockholder
shall deliver to Company, promptly after any acquisition or Transfer of Voting
Securities, an accurate written report specifying the amount and class of Voting
Securities acquired or Transferred in such transaction and the amount of each
class of Voting Securities owned by Stockholder and Stockholders' Affiliates
after giving effect to such transaction; provided, however, that no such report
need be delivered with respect to any such acquisition or Transfer of Voting
Securities by Stockholder or any Affiliate of Stockholder that is reported in a
statement on Schedule 13D filed with the Commission and delivered to Company by
Stockholder in accordance with Section 13(d) of the Exchange Act and the rules
thereunder. Company shall be entitled to rely on such reports and statements on
Schedule 13D for all purposes of this Agreement.
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ARTICLE III
REPRESENTATION AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF COMPANY.
Company represents and warrants as follows:
(a) Company is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Delaware and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder.
(b) The execution and delivery of this Agreement by Company
and the consummation by Company of the transactions contemplated hereby has been
duly authorized by all necessary corporate action on the part of Company, and no
other corporate proceedings on the part of Company are necessary to authorize
this Agreement or any of the transactions contemplated hereby.
(c) This Agreement has been duly executed and delivered by
Company, constitutes a valid and binding obligation of Company, and is
enforceable against Company in accordance with its terms.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
Stockholder represents and warrants as follows:
(a) Stockholder is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Delaware and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder.
(b) The execution and delivery of this Agreement by
Stockholder and the consummation by Stockholder of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Stockholder, and no other corporate proceedings on the part of Stockholder
are necessary to authorize this Agreement or any of the transactions
contemplated hereby.
(c) This Agreement has been duly executed and delivered by
Stockholder, constitutes a valid and binding obligation of Stockholder, and is
enforceable against Stockholder in accordance with its terms.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 NOTICES. Unless otherwise specifically stated
herein, all notices, requests, demands, and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given, made, and received when delivered
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against receipt, twelve (12) hours after being sent by facsimile, or seventy-two
(72) hours after being sent by registered or certified mail, postage prepaid,
addressed as set forth below:
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 the Stockholder, 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
SECTION 4.2 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by Stockholder and Company, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or future exercise
thereof or the exercise of any right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 4.3 SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns; except, however,
Stockholder may not transfer or assign any of its rights hereunder without the
written consent of Company.
SECTION 4.4 GOVERNING LAW. This Agreement shall be construed
in accordance with and governed by the laws of the state of Delaware.
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SECTION 4.5 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts thereof signed by the other party hereto.
SECTION 4.6 SPECIFIC PERFORMANCE. Company and Stockholder each
acknowledges and agrees that the parties' respective remedies at law for a
breach or threatened breach of any of the provisions of this Agreement would be
inadequate and, in recognition of that fact, agrees that, in the event of a
breach or threatened breach by Company or Stockholder of the provisions of this
Agreement, in addition to any remedies at law, Stockholder and Company,
respectively, without posting any bond shall be entitled to obtain equitable
relief in the form of specific performance, a temporary restraining order, a
temporary or permanent injunction or any other equitable remedy which may then
be available.
SECTION 4.7 TERMINATION. This Agreement shall be inoperative
during any period that Stockholder and its Affiliates Beneficially Own less than
five percent (5%) of the Voting Securities and neither Stockholder nor its
Affiliates take any action or pursue any course of conduct that could result in
Stockholder and its Affiliates owning more than a total of five percent (5%) of
the Voting Securities. This Agreement shall terminate and be of no further force
and effect upon the earlier of (a) ten (10) years from the date of this
Agreement, (b) such time, if any, that a majority of the members of the Board of
Directors of Company has not consisted of the Senior Founders and Other
Designated Members for a period of sixty (60) consecutive days, or (c) the date
on which Brunswick and its Affiliates have owned a total of less than five
percent (5%) of the Voting Securities for two (2) consecutive years.
Notwithstanding the foregoing, Brunswick shall be bound by the provisions of
Section 2.3 and shall take no actions inconsistent therewith for a period of six
(6) months after the termination of the Dealer Agreements as a result of
termination by Brunswick for cause.
SECTION 4.8 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated. It is hereby stipulated
and declared to be the intention of the parties that they would have executed
the remaining terms, provisions, covenants and restrictions without including
any of such which may be hereafter declared invalid, void or unenforceable.
SECTION 4.9 EFFECTIVE DATE. This Agreement shall be effective
upon the final closing under the IPO and Brunswick's purchase of Voting
Securities, but no party shall take any actions inconsistent with this Agreement
after its execution except that the Senior Founders may sell securities as
Selling Stockholders in the IPO.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
MARINEMAX, INC.
By: /s/ Xxxxxxx X. XxXxxx, Xx.
Title: Chairman CEO
Date: April 30, 1998
BRUNSWICK CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Title: Chairman & Chief Executive Officer
Date: April 30, 1998
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