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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) October 6, 1998
MARINEMAX, INC.
(Exact name of registrant as specified in its charter)
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1-14173 59-3496957
(Commission File No.) (IRS Employer
Identification
Number)
18167 U.S. 19 NORTH, SUITE 499
Clearwater, Florida 33764
(Address of principal executive offices) (ZIP Code)
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(813) 531-1700
(Registrant's Telephone Number, Including Area Code)
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ITEM 5. OTHER EVENTS
REPORTING OF CERTAIN FINANCIAL AND OTHER INFORMATION FOR REGISTRATION AND
OTHER PURPOSES
Through a wholly owned subsidiary, MarineMax, Inc. (the "Company") acquired the
business and certain assets and assumed specified liabilities of Treasure Cove
Marina, Inc. (Treasure Cove). The acquisition was effected as of September 30,
1998 subject to finalization of certain matters that occurred October 6, 1998.
Treasure Cove operated four pleasure boat dealerships in the state of Ohio. The
assets acquired consisted primarily of new and used pleasure boats, trailers and
related parts and accessories and the liabilities assumed were primarily floor
plan notes payable on the boat inventory acquired. The Company intends to
continue to operate the business conducted by Treasure Cove prior to the
acquisition.
Under the terms of the acquisition, MarineMax agreed to pay up to approximately
250,000 shares of common stock and $7.7 million in cash, subject to adjustment
based on several factors, including calendar year 1998 earnings. At closing, the
Company paid 250,000 shares and approximately $3.1 million in cash from working
capital. The final purchase price is scheduled to be determined by March 31,
1999, at which time an additional payment to the seller or a refund to MarineMax
will occur.
Simultaneous with the transaction, the Company entered into a five-year
employment agreement with the principal executive officer of Treasure Cove.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Businesses Acquired.
As of the date of filing this Current Report on Form 8-K, it is
impracticable for the Registrant to determine whether it is required to provide
the financial statements required by this item 7(a). In the event that the
Company determines that it is required to provide the financial statements
required by this item 7(a), such financial statements shall be filed by
amendment to this Form 8-K no later than December 18, 1998, in accordance with
Item 7(a)(4) of Form 8-K.
(b) Pro Forma Financial Information
As of the date of filing this Current Report on Form 8-K, it is
impracticable for the Registrant to determine whether it is required to provide
the pro forma financial information required by this item 7(b). In the event
that the Company determines that it is required to provide the financial
statements required by this item 7(b), such financial statements shall be filed
by amendment to this Form 8-K no later than December 18, 1998, in accordance
with Item 7(b) of Form 8-K.
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(c) Exhibits.
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Exhibit No. Description of Exhibit
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1 Asset Purchase Agreement Among MarineMax of
Treasure Cove, Inc. (a subsidiary of
MarineMax, Inc.) and Treasure Cove Marina,
Inc.
2 Employment Agreement - John Robert Moore IV
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Pursuant to the requirements of the securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
October 19, 1998 MarineMax, Inc.
By:/s/Michael H. McLamb
Michael H. McLamb
Vice President, Chief Financial Officer,
Treasurer and Secretary
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Index to Exhibits
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99.1 Asset Purchase Agreement Among MarineMax of
Treasure Cove, Inc. (a subsidiary of
MarineMax, Inc.) and Treasure Cove Marina,
Inc.
99.2 Employment Agreement - John Robert Moore IV
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ASSET PURCHASE AGREEMENT
AMONG
MARINEMAX OF TREASURE COVE, INC.
AND
TREASURE COVE MARINA, INC.,
JOHN ROBERT MOORE, III,
AND
JOHN ROBERT MOORE, IV
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SECTION 1 TRANSFER OF ASSETS.........................................................................1
1.1 Purchase and Sale of Assets....................................................................1
1.2 Purchased Assets...............................................................................1
(a) Inventory.............................................................................1
(b) Vehicles, Furniture, and Equipment....................................................1
(c) Claims and Rights to the Purchased Assets.............................................2
(d) Business Contracts....................................................................2
(e) Intellectual Property.................................................................2
(f) Customer and Supplier Lists...........................................................2
(g) Licenses, Permits, and Approvals......................................................2
(h) Books and Records.....................................................................2
(i) Computer Software and Hardware........................................................2
(j) Leased Personalty.....................................................................2
(k) Names.................................................................................3
(l) Phone Numbers.........................................................................3
(m) Deposits and Prepaid Expenses.........................................................3
(n) Stock of Subsidiaries.................................................................3
(o) Leasehold Interests...................................................................3
1.3 Excluded Assets................................................................................3
(a) Rights Hereunder......................................................................3
(b) Corporate Documents...................................................................3
(c) Seller's Records of Negotiations......................................................3
(d) Employee Records......................................................................3
(e) Tax Records...........................................................................3
(f) Disposed of Assets....................................................................3
(g) Cash..................................................................................3
(h) Bank Accounts.........................................................................3
(i) Accounts Receivable...................................................................4
(j) Owned Real Property...................................................................4
SECTION 2 ASSUMPTION OF LIABILITIES..................................................................4
2.1 Assumed Liabilities............................................................................4
2.2 Excluded Liabilities...........................................................................4
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(a) Liabilities Hereunder.................................................................4
(b) Legal and Accounting Fees.............................................................4
(c) Tax Liabilities.......................................................................4
(d) Liability to Buyer for Breach.........................................................4
(e) Liabilities to Employees..............................................................5
(f) Property and Personal Injury Liabilities..............................................5
(g) Liability for Medical, Dental, and Disability Benefits................................5
(h) Liability to Others for Breach........................................................5
(i) Liability Regarding Employee Welfare and Pension Benefits.............................5
(j) ERISA.................................................................................5
(k) Employee Grievances...................................................................5
(l) Liability for Violation of Law........................................................6
(m) Environmental Laws....................................................................6
(n) Transfer and Use Tax Liabilities......................................................6
(o) Seller's Bank Debt and Other Indebtedness.............................................6
(p) Shareholder and Affiliates............................................................6
(q) Trade Accounts Payable................................................................6
(r) Previously Collected and Misapplied Accounts..........................................6
(s) Litigation............................................................................6
(t) Liabilities Not Assumed Hereunder.....................................................6
2.3 No Expansion of Third Party Rights.............................................................6
2.4 Designated Subsidiary..........................................................................6
SECTION 3 PURCHASE PRICE.............................................................................7
3.1 Purchase Price.................................................................................7
3.2 Payment of Purchase Price......................................................................7
(a) MarineMax Common Stock................................................................7
(b) Cash at Closing.......................................................................7
(c) Adjusted Purchase Price Payment.......................................................7
3.3 Adjustment to Purchase Price...................................................................7
3.4 Allocation of Purchase Price...................................................................9
SECTION 4 REPRESENTATIONS AND WARRANTIES.............................................................9
4.1 Representations and Warranties of Seller and Designated Shareholders...........................9
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(a) Due Incorporation, Good Standing, and Qualification...................................9
(b) Corporate Authority...................................................................9
(c) Capital Stock; Options, Warrants, and Rights.........................................10
(d) Subsidiaries.........................................................................10
(e) Financial Statements.................................................................10
(f) Actions in the Ordinary Course of Business...........................................10
(g) No Material Change...................................................................11
(h) Title to Properties..................................................................11
(i) Condition of Assets and Properties...................................................11
(j) Litigation; Absence of Claims or Product or Service Warranties.......................11
(k) Licenses and Permits.................................................................12
(l) No Violation.........................................................................12
(m) Taxes................................................................................12
(n) Accounts Receivable..................................................................13
(o) Contracts............................................................................13
(p) Compliance with Law and Other Regulations............................................13
(i) General..................................................................13
(ii) Environmental............................................................14
(q) Employee Benefit and Employment Matters..............................................14
(i) ERISA Matters............................................................14
(ii) Labor Matters............................................................14
(iii) Arrangements with Employees..............................................15
(r) Insurance............................................................................15
(s) No Payments to Directors, Officers, Shareholders, or Others..........................15
(t) No Prohibited Payments...............................................................15
(u) Charter, Bylaws, and Minute Books....................................................15
(v) Intellectual Property................................................................16
(w) Inventories..........................................................................16
(x) Sufficiency of Purchased Assets......................................................16
(y) Securities Matters...................................................................16
(i) Acquisition of MarineMax Common Stock for Own Account....................16
(ii) Knowledge and Experience in Financial and Business Matters...............16
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(iii) Restricted Securities....................................................17
(iv) Available Information....................................................17
(z) Accuracy of Statements...............................................................17
4.2 Further Representations and Warranties of Designated Shareholders.............................17
(a) Ownership of Stock...................................................................17
(b) Power of Designated Shareholders to Execute Agreement................................17
(c) Agreement Not in Breach of Other Instruments Affecting Designated Shareholders.......17
4.3 Representations and Warranties of Buyer.......................................................18
(a) Due Incorporation, Good Standing, and Qualification..................................18
(b) Corporate Authority..................................................................18
(c) Intent and Access....................................................................18
(d) Accuracy of Statements...............................................................18
(e) SEC Reports..........................................................................18
(f) Status of MarineMax Common Stock to be Issued........................................19
SECTION 5 COVENANTS.................................................................................19
5.1 Covenants of Seller and Designated Shareholders...............................................19
(a) Truth of Representations and Warranties..............................................19
(b) Preservation of Business.............................................................19
(c) No Organic Change....................................................................19
(d) Ordinary Course......................................................................19
(e) Maintenance of Assets and Properties.................................................19
(f) Satisfaction of Obligations and Liabilities..........................................20
(g) Books and Records....................................................................20
(h) Insurance............................................................................20
(i) Entry Into Obligations...............................................................20
(j) No Issuance of Shares, Options, or Other Securities..................................20
(k) Acquisitions and Dispositions........................................................20
(l) Dividends............................................................................20
(m) Compensation.........................................................................20
(n) Employees............................................................................21
(o) Right of Inspection..................................................................21
(p) Confidentiality......................................................................21
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(q) Consents and Approvals...............................................................21
(r) Recommendation of Board of Directors.................................................21
(s) Approval of Shareholders.............................................................21
5.2 Further Covenants of Seller and Designated Shareholders.......................................21
(a) Maintenance of Existence.............................................................21
(b) Change of Name.......................................................................22
(c) Filing of Tax Returns................................................................22
(d) Dividends............................................................................22
5.3 Covenants of Buyer............................................................................22
(a) Truth of Representations and Warranties..............................................22
(b) Consents and Approvals...............................................................22
(c) Right of Inspection..................................................................22
5.4 No Solicitation...............................................................................22
5.5 Best Efforts..................................................................................23
5.6 Public Announcements..........................................................................23
SECTION 6 CONDITIONS PRECEDENT TO OBLIGATIONS.......................................................23
6.1 Conditions Precedent to the Obligations of Buyer..............................................23
(a) Accuracy of Representations and Warranties...........................................23
(b) Performance of Agreements............................................................23
(c) Corporate Approvals..................................................................23
(d) No Material Adverse Change...........................................................23
(e) Litigation...........................................................................23
(f) Proceedings Satisfactory to Counsel..................................................24
(g) Delivery of Documents................................................................24
(h) Closing Certificate of Seller and Designated Shareholders............................24
(i) Environmental Reports................................................................24
(j) Leases...............................................................................24
(k) Escrow and Security Agreement........................................................24
(l) Consents.............................................................................24
(m) Tax Clearance Certificate............................................................24
(n) Listing on New York Stock Exchange National Market...................................24
(o) Termination of HSR Act Waiting Periods...............................................24
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6.2 Conditions Precedent to the Obligations of Seller and Designated Shareholders.................25
(a) Accuracy of Representations and Warranties...........................................25
(b) Performance of Agreements............................................................25
(c) Corporate Approval...................................................................25
(d) No Material Adverse Change...........................................................25
(e) Litigation...........................................................................25
(f) Proceedings Satisfactory to Counsel..................................................25
(g) Delivery of Documents................................................................25
(h) Closing Certificate of Buyer.........................................................25
(i) Leases...............................................................................26
(j) Listing on New York Stock Exchange...................................................26
(k) Termination of HSR Act Waiting Periods...............................................26
SECTION 7 THE CLOSING...............................................................................26
7.1 Closing.......................................................................................26
7.2 Deliveries by Seller and Designated Shareholders..............................................26
(a) Instruments of Conveyance............................................................26
(b) Closing Certificate of Seller and Designated Shareholder.............................26
(c) Interim Management Agreement.........................................................26
(d) Employment Agreements................................................................26
(e) Secretary's Certificate..............................................................26
(f) Books and Records....................................................................26
(g) Environmental Reports................................................................27
(h) The Leases...........................................................................27
(i) Tax Clearance Certificate............................................................27
(j) Escrow and Security Agreement........................................................27
(k) Consents and Estoppel Letters........................................................27
(l) Change of Name.......................................................................27
(m) Good Standing Certificates...........................................................27
7.3 Deliveries by Buyer or Designated Subsidiary..................................................27
(a) Assumption of Liabilities............................................................27
(b) Purchase Price.......................................................................27
(c) Closing Certificate of Buyer.........................................................27
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(d) Secretary's Certificate..............................................................27
(e) Consents and Approvals...............................................................27
(f) The Leases...........................................................................27
(g) The Bill of Sale and Assignment Agreement............................................28
(h) The Interim Management Agreement.....................................................28
(i) The Employment Agreements............................................................28
7.4 Payment of Creditors..........................................................................28
7.5 Obligations of All Parties....................................................................28
(a) Third-Party Claims...................................................................28
(b) Further Assurances...................................................................28
(c) Payment of Disputed Sums.............................................................28
SECTION 8 WAIVER, MODIFICATION, ABANDONMENT.........................................................28
8.1 Waivers.......................................................................................28
8.2 Modification..................................................................................29
8.3 Abandonment...................................................................................29
8.4 Effect of Abandonment.........................................................................29
8.5 Right to Damages..............................................................................29
SECTION 9 NON-COMPETITION...........................................................................30
9.1 Non-competition...............................................................................30
9.2 Duration and Extent of Restriction............................................................30
9.3 Restrictions with Respect to Customers and Employees..........................................30
9.4 Remedies for Breach...........................................................................30
SECTION 10 INDEMNIFICATION...........................................................................31
10.1 Indemnification by Seller and Designated Shareholders.........................................31
(a) General..............................................................................31
(b) Bulk Sales Matters...................................................................31
(c) Environmental........................................................................31
(d) Security for Seller's and Designated Shareholders' Obligations.......................33
10.2 Indemnification by Buyer......................................................................33
10.3 Notice and Right to Defend Third-Party Claims.................................................33
SECTION 11 GENERAL...................................................................................34
11.1 Indemnity Against Finders.....................................................................34
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11.2 Controlling Law...............................................................................34
11.3 Notices.......................................................................................34
11.4 Binding Nature of Agreement; No Assignment....................................................35
11.5 Entire Agreement..............................................................................35
11.6 Severability..................................................................................35
11.7 Paragraph Headings............................................................................35
11.8 Gender........................................................................................35
11.9 Survival of Representations and Warranties....................................................35
11.10 Counterparts; Facsimile.......................................................................35
11.11 Subsidiaries..................................................................................36
11.12 No Obligation to Hire.........................................................................36
11.13 Third-Party Beneficiary.......................................................................36
11.14 Assignability.................................................................................36
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT ("Agreement") dated as of September
30, 1998, among MARINEMAX OF TREASURE COVE, INC., a Delaware corporation
("Buyer"); TREASURE COVE MARINA, INC., an Ohio corporation ("Seller"); and JOHN
ROBERT MOORE, III and JOHN ROBERT MOORE, IV (each a "Designated Shareholder"
and, together, the "Designated Shareholders").
Seller stores boats, and sells, rents, leases, and services
various boating products (the "Watercraft Business").
Buyer desires to acquire, and Seller desires to transfer,
substantially all of the assets, properties, rights, and goodwill and to assume
various designated liabilities of Seller upon the terms and conditions set forth
in this Agreement.
To induce Buyer to enter into and perform this Agreement,
Designated Shareholders, who as the owners of all the outstanding shares of
capital stock of Seller will derive substantial benefit from this Agreement,
have agreed to be parties to this Agreement as specified herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants set forth herein, the parties agree as follows:
SECTION 1
TRANSFER OF ASSETS
1.1 PURCHASE AND SALE OF ASSETS. Based upon and subject to the
representations, warranties, covenants, agreements, and other terms and
conditions set forth in this Agreement, Seller shall sell, convey, transfer,
assign, and deliver on the Closing Date (as defined in Section 7.1), and Buyer
shall purchase, acquire, and accept or cause one of its subsidiaries
("Designated Subsidiary") to purchase, acquire, and accept, as provided in
Section 2.4, all of the assets, properties, rights, and goodwill of Seller of
every kind and description, wherever located, used in or associated with the
business of Seller except for the "Excluded Assets" listed in Section 1.3.
1.2 PURCHASED ASSETS. The assets, properties, rights, and goodwill to
be conveyed, transferred, assigned, and delivered by Seller on the Closing Date
pursuant to Section 1.1 are sometimes herein called the "Purchased Assets" and
shall include, without limitation, all of the assets and properties shown on or
reflected in the Balance Sheet of Seller as at August 31, 1998 (Seller's "Base
Balance Sheet") and all assets and properties acquired by Seller after the date
of Seller's Base Balance Sheet and to the Closing Date. The Purchased Assets are
to be sold to Buyer free and clear of any and all liens, claims, charges,
liabilities, obligations, and security interests of every kind and nature,
except for the "Assumed Liabilities" of Seller to be assumed pursuant to Section
2.1 hereof. Without limiting the foregoing, the Purchased Assets shall include
the following:
(a) INVENTORY. All of Seller's inventory, including, without
limitation, boats, motors, trailers, parts, and accessories (the "Inventory"),
including, without limitation, the inventories set forth on Schedule 1.2(a)
hereto.
(b) VEHICLES, FURNITURE, AND EQUIPMENT. All of Seller's motor
vehicles, furniture, machinery, equipment, and tools (the "Equipment"),
including, without limitation, the equipment set forth on Schedule 1.2(b)
hereto.
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(c) CLAIMS AND RIGHTS TO THE PURCHASED ASSETS. All of Seller's
claims and rights (and benefits arising therefrom) related to the Purchased
Assets against all persons and entities, including, without limitation, all
rights against suppliers under warranties covering any of the Equipment and
Inventory.
(d) BUSINESS CONTRACTS. All of Seller's sales orders and sales
contracts, quotations, bids, sales, and sales representative agreements, dealer
agreements, service agreements, service orders, license agreements, supply
agreements, franchise agreements, sales representative agreements, consulting
agreements, technical service agreements (the "Business Contracts"), including
each Business Contract set forth on Schedule 1.2(d) hereto. Attached to Schedule
1.2(d) is a complete, accurate, and executed copy of each Business Contract that
Seller reasonably believes will be in effect on the Closing Date and including
any other Business Contracts transferable by Seller.
(e) INTELLECTUAL PROPERTY. All of Seller's intellectual property
rights that are owned by or licensed to Seller, including, without limitation,
all patents and applications therefor, know-how, unpatented inventions, trade
secrets, formulas, business and marketing plans, ideas for products, production,
or services developed by or on behalf of Seller, copyrights and applications
therefor, trademarks and applications therefor, service marks and applications
therefor, trade names and applications therefor, and all names, fictitious
names, logos, and slogans used by Seller (the "Intellectual Property"),
including the Intellectual Property set forth on Schedule 1.2(e) hereto and
including any other Intellectual Property transferable by Seller. Attached to
Schedule 1.2(e) are copies of all such business and marketing plans, license
agreements, product formulas, copyrighted materials, trademarks, and trade
names, and patents and all applications therefor used in the conduct of or
relating to the business conducted by Seller.
(f) CUSTOMER AND SUPPLIER LISTS. All of Seller's current and
historical customer and supplier lists and customer and supplier records.
Schedule 1.2(f) hereto sets forth a list of all previous (within the last two
years from the date hereof) and existing customers and suppliers of Seller and
its subsidiaries and their last known business addresses.
(g) LICENSES, PERMITS, AND APPROVALS. All of Seller's licenses,
permits, approvals, and authorizations of whatsoever kind and type, governmental
or private, issued, applied for, or pending, used in the conduct of or relating
to the business of Seller (the "Licenses and Permits"). The Licenses and Permits
are set forth on Schedule 1.2(g) hereto. Attached to Schedule 1.2(g) are copies
of all Licenses and Permits.
(h) BOOKS AND RECORDS. All of Seller's books and records with
respect to the Purchased Assets and the business of Seller including, without
limitation, blueprints, drawings, manuals, and other technical papers, and all
accounts receivable, inventory, maintenance, and asset history records, but
excluding all employee and tax records (provided, however, that access to such
employee and tax records shall be provided to Buyer upon written request
following the Closing Date).
(i) COMPUTER SOFTWARE AND HARDWARE. All computer software and
hardware used or intended for use in connection with the business of Seller,
owned, leased, or licensed by or to Seller, to the extent that the transfer of
such software and hardware is not otherwise prohibited by contract between
Seller and the owner thereof.
(j) LEASED PERSONALTY. The leasehold interests created by all
leases of personal property constituting any part of the Purchased Assets or
used in connection with the business of Seller, under which Seller is a lessee,
including those leases that are capitalized leases and all of Seller's rights
arising from any maintenance contracts and deposits in connection therewith (all
such personal property
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that Seller is leasing as lessee shall herein be referred to as "Leased
Personalty"), including, without limitation, the Leased Personalty set forth on
Schedule 1.2(j) hereto and any other Leased Personalty transferable by Seller.
Attached to Schedule 1.2(j) are copies of all the lease agreements listed on
Schedule 1.2(j).
(k) NAMES. All right, title, and interest in and to the names
"Treasure Cove Marina" and any and all names associated with the business of
Seller at any time within the preceding 12 months, and any derivations thereof
(the "Names").
(l) PHONE NUMBERS. All telephone and facsimile numbers used by
Seller.
(m) DEPOSITS AND PREPAID EXPENSES. All of Seller's deposits and
prepaid expenses (the "Deposits") including, without limitation, the Deposits
set forth on Schedule 1.2(m) hereto (including any deposits with respect to the
Leased Personalty assumed by Buyer pursuant to Section 2.1) as reduced in the
ordinary course of business in accordance with past historical practices.
(n) STOCK OF SUBSIDIARIES. All of the capital stock of each
subsidiary of Seller and all other securities owned by Seller. Schedule 1.2(n)
hereto sets forth the name, jurisdiction of incorporation, and stock of each
subsidiary of Seller held by Seller and all other securities owned by Seller.
(o) LEASEHOLD INTERESTS. All of Seller's leasehold interests, as
a tenant or otherwise, related to or arising from the leases of real property
set forth on Schedule 1.2(o) hereto.
Each Schedule provided for in this Section 1.2 also sets forth
separately as appropriate the assets and properties of each subsidiary of
Seller, and any purported restriction on the sale, transfer, or assignment
thereof.
1.3 EXCLUDED ASSETS. The following assets of Seller shall be excluded
from the purchase and sale contemplated by this Agreement (the "Excluded
Assets"):
(a) RIGHTS HEREUNDER. Seller's rights under this Agreement.
(b) CORPORATE DOCUMENTS. Seller's corporate charter, minute and
stock record books, and corporate seal.
(c) SELLER'S RECORDS OF NEGOTIATIONS. Seller's records relating
to the negotiation and sale of Seller's stock or assets.
(d) EMPLOYEE RECORDS. All of Seller's records with respect to
employees, provided that access thereto shall be provided to Buyer upon written
request.
(e) TAX RECORDS. All of Seller's books and records with respect
to taxes, provided that access thereto shall be provided to Buyer upon written
request.
(f) DISPOSED OF ASSETS. Any assets and properties disposed of
since the date of Seller's Base Balance Sheet in the ordinary course of business
and as contemplated by this Agreement.
(g) CASH. All of Seller's cash on hand and in banks.
(h) BANK ACCOUNTS. All right, title, and interest in and to
Seller's bank accounts.
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(i) ACCOUNTS RECEIVABLE. All of Seller's accounts receivable and
notes receivable including any artist or mechanics lien rights arising under
Ohio Revised Code Section 4885.31 and general maritime law in connection with
such accounts receivable.
(j) OWNED REAL PROPERTY. Any real property owned by Seller.
SECTION 2
ASSUMPTION OF LIABILITIES
2.1 ASSUMED LIABILITIES. Buyer shall not assume any liabilities or
obligations of Seller of whatsoever nature or type, except that at the Closing
(as defined in Section 7.1) Buyer shall assume only (a) those nondelinquent
performance obligations of Seller arising after the Closing Date under the
Business Contracts, transferred Licenses and Permits, transferred Leased
Personalty, and Deposits; (b) those liabilities and obligations payable to
Bombardier Capital relating to inventory financing, but only to the extent such
liabilities and obligations are current as of the Closing (the "Assumed
Inventory Financing"); (c) those of Seller's customer deposits listed on
Schedule 2.1(c) hereto (the "Assumed Customer Deposits"); and (d) Seller's
unearned storage income as set forth on Schedule 2.1(d) hereto (the "Assumed
Unearned Storage Income"). The liabilities described in clauses (a), (b), (c),
and (d) are hereinafter referred to as the "Assumed Liabilities".
2.2 EXCLUDED LIABILITIES. Except only with respect to the Assumed
Liabilities expressly assumed pursuant to Section 2.1, Buyer shall not be
obligated to directly or indirectly pay, perform, or discharge any claims,
obligations, or liabilities of Seller, including, without limitation, the
following:
(a) LIABILITIES HEREUNDER. Any obligations or liabilities of
Seller and Designated Shareholders under this Agreement.
(b) LEGAL AND ACCOUNTING FEES. Any obligations or liabilities for
legal, accounting, and other fees and expenses incurred by or on behalf of
Seller, any of its subsidiaries, or Designated Shareholders in connection with
the negotiation of the transactions contemplated by this Agreement, this
Agreement, the sale of the Purchased Assets, the assumption of the Assumed
Liabilities, and the documents related thereto.
(c) TAX LIABILITIES. Any tax and tax related obligations or
liabilities of Seller, including, without limitation, (i) any liabilities
(federal, state, local, or foreign) for or related to taxes on or measured by
the income of Seller; (ii) any liabilities for federal, state, local, or foreign
income and employee FICA taxes that Seller is legally obligated to withhold
through the Closing Date, whether or not Seller has withheld the same as
required by law; (iii) any liabilities for employer FICA and unemployment taxes;
(iv) any sales, use, property, and transfer taxes arising as a result of the
sale of the Purchased Assets as contemplated hereby; (v) any liabilities for
franchise and excise taxes relating to the corporate status of Seller; (vi) any
liabilities for property taxes; and (vii) any other taxes of any kind or
description.
(d) LIABILITY TO BUYER FOR BREACH. Any obligations or liabilities
of Seller to the extent that their existence or magnitude constitutes or results
in a breach of a representation, warranty, or covenant made by Seller or
Designated Shareholders to Buyer, or makes any of the information contained in
this Agreement or any Exhibit, Schedule, or the other document delivered by or
on behalf of Seller or Designated Shareholders (or their representatives)
pursuant to or in connection with this Agreement or any of the transactions
contemplated hereby untrue in any material adverse respect.
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(e) LIABILITIES TO EMPLOYEES. Any obligations or liabilities of
Seller with respect to payroll, bonuses, severance benefits, vacation pay, sick
pay, and other employment benefits or sums, including, without limitation, FICA,
workers' compensation premiums, or unemployment premiums and taxes to or on
behalf of employees of Seller, and any and all obligations or liabilities of
Seller, arising under any collective bargaining agreement or union contract.
(f) PROPERTY AND PERSONAL INJURY LIABILITIES. Any claims against
or liabilities of Seller for injury to or death of persons or damage to or
destruction of property (including, without limitation, any worker's
compensation claim) regardless of when such claim or liability is asserted,
including, without limitation, any claim or liability for damages in connection
with the foregoing, it being understood and agreed that any claim or liability
asserted after the Closing Date arising out of the sale of any product either
sold or produced by Seller or the performance of any services by Seller prior to
the Closing Date, shall be considered to be a claim against or a liability of
Seller for injury to or death of persons or damage to or destruction of property
and therefore, except as otherwise provided for herein, not assumed hereunder by
Buyer.
(g) LIABILITY FOR MEDICAL, DENTAL, AND DISABILITY BENEFITS. Any
obligations or liabilities of Seller for medical, dental, and disability (both
long-term and short-term) benefits, whether insured or self-insured, based upon
a condition existing on or prior to the Closing Date or for claims incurred or
disabilities commencing prior to the Closing Date and any liability for the
foregoing, regardless of when accrued and regardless of when any condition
existed, that arises by virtue of an employment relationship at any time with
Seller.
(h) LIABILITY TO OTHERS FOR BREACH. Any obligations or
liabilities of Seller for any breach of any representation, warranty, or
covenant, or for any claim for indemnification, contained in any contract or
other document referred to in Section 1.2, agreed to be performed pursuant
hereto by Buyer, to the extent that such breach or claim arose out of or by
virtue of the performance or nonperformance by Seller thereunder prior to the
Closing Date, it being understood that, as between Seller and Buyer, this
paragraph shall apply notwithstanding any provisions that may be contained in
any form of consent to the assignment of any such contract or document that, by
its terms, imposes such liabilities upon Buyer and which assignment is accepted
by Buyer notwithstanding the presence of such a provision, and that the failure
by Seller or any of its subsidiaries to discharge any such liability shall
entitle Buyer to indemnification in accordance with the provisions of Section
10.1.
(i) LIABILITY REGARDING EMPLOYEE WELFARE AND PENSION BENEFITS.
Any obligations or liabilities of Seller arising out of or in connection with
any past or present employee welfare and pension benefit plans of Seller
including, without limitation, any obligations or liabilities of Seller to or on
behalf of any past or present employee of Seller arising under any collective
bargaining agreement, union contract, union health and welfare fund, or similar
program.
(j) ERISA. Any obligations or liabilities of Seller with respect
to, or arising under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or any Pension Plan, Welfare Plan or Employee Benefit Plan,
as each are hereinafter defined or as defined by ERISA, and any related trust
agreements or annuity contracts not expressly assumed in Section 2.1.
(k) EMPLOYEE GRIEVANCES. Any obligations or liabilities of Seller
with respect to, or arising under, any grievance or complaint brought by any
past or present employee of Seller while in the employ of Seller or filed
pursuant to any collective bargaining agreement to which Seller is a party or by
which Seller is bound.
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(l) LIABILITY FOR VIOLATION OF LAW. Any obligations or
liabilities of Seller arising out of or in connection with any violation by
Seller of a statute, law, or governmental rule, regulation, policy, or
directive, which violation arises out of any act or omission relating to Seller.
(m) ENVIRONMENTAL LAWS. Any obligations or liabilities of Seller
with respect to, or relating to, environmental laws or environmental matters
applicable to the business, properties, or operations of Seller.
(n) TRANSFER AND USE TAX LIABILITIES. Any obligations or
liabilities of Seller with respect to sales, use, or transfer taxes, if any,
arising as a result of the transfer of the Purchased Assets by Seller to Buyer
or Designated Subsidiary by virtue of the consummation of the transactions
contemplated hereby. Buyer shall pay any tax charged on the retitling of motor
vehicles. Buyer or Designated Subsidiary shall deliver to Seller a resale
exemption certificate as to Inventory sold hereunder.
(o) SELLER'S BANK DEBT AND OTHER INDEBTEDNESS. Except as
expressly assumed pursuant to Section 2.1 hereof, any amounts owing by Seller or
its subsidiaries to banks or other persons, firms, or institutions for borrowed
funds and any obligations or liabilities of Seller with respect to any other
indebtedness of Seller or any of its subsidiaries.
(p) SHAREHOLDER AND AFFILIATES. Any obligations or liabilities of
Seller with respect to any shareholder of Seller or any Affiliate of Seller or
any such shareholder. For purposes of this Agreement, the term "Affiliate" shall
mean any entity in which any Designated Shareholder is an officer or director or
in which any Designated Shareholder or Seller, directly or indirectly, owns or
controls 10 percent or more of the equity securities of the entity, or any
person related to any Designated Shareholder by blood or marriage.
(q) TRADE ACCOUNTS PAYABLE. Any of Seller's or its subsidiaries'
accounts payable.
(r) PREVIOUSLY COLLECTED AND MISAPPLIED ACCOUNTS. Any obligations
or liabilities of Seller for previously collected accounts receivable,
misapplied credits, misapplied payments, overpayments, and duplicate payments.
(s) LITIGATION. Any obligation or liabilities of Seller relating
to lawsuits, claims or judgments against Seller or relating to the business of
Seller or the use of any of its assets or properties.
(t) LIABILITIES NOT ASSUMED HEREUNDER. Consistent with and
without limitation by the specific enumeration of the foregoing, any obligations
or liabilities not expressly assumed by Buyer pursuant to the provisions of
Section 2.1 hereof.
2.3 NO EXPANSION OF THIRD PARTY RIGHTS. The assumption by Buyer or
Designated Subsidiary of the Assumed Liabilities, and the transfer thereof by
Seller, shall in no way expand the rights and remedies of any third party
against Seller or Buyer or Designated Subsidiary as assignee of Seller as
compared to the rights and remedies which such third party would have had
against Seller or Buyer or Designated Subsidiary as assignee of Seller had Buyer
or Designated Subsidiary not assumed such liabilities. Without limiting the
generality of the preceding sentence, the assumption by Buyer or Designated
Subsidiary of such liabilities shall not create any third party beneficiary
rights.
2.4 DESIGNATED SUBSIDIARY. Buyer and Seller contemplate that Buyer may
organize a newly formed, wholly owned subsidiary (referred to herein as
"Designated Subsidiary") to acquire the Purchased Assets and assume the Assumed
Liabilities. In the event that Designated Subsidiary assumes
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Seller's obligations and liabilities described in Section 2.1, Buyer guarantees
to satisfy and discharge such obligations and liabilities assumed by Designated
Subsidiary that are not satisfied by Designated Subsidiary.
SECTION 3
PURCHASE PRICE
3.1 PURCHASE PRICE. The purchase price for the Purchased Assets to be
acquired pursuant to Section 1.1 shall be, in addition to the assumption of
liabilities pursuant to Section 2.1, an amount equal to $10,875,000 (the
"Purchase Price"), subject to adjustment pursuant to Section 3.3.
3.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable as
follows:
(a) MARINEMAX COMMON STOCK. Seller shall receive 250,000 shares
of the common stock, par value $.001 per share (the "MarineMax Common Stock") of
MarineMax, Inc., a Delaware corporation ("MarineMax") that owns all of the
capital stock of Buyer. For purposes of this Agreement, the MarineMax Common
Stock shall be valued at the "MarineMax Measurement Price," which shall mean the
average of the closing sales prices of shares of MarineMax Common Stock as
reported on the New York Stock Exchange, Inc. during the ten consecutive trading
day period ending at the close of the fifth trading day preceding the Closing
Date. Buyer shall cause two stock certificates representing the MarineMax Common
Stock to be issued on the Closing Date or as soon thereafter as practicable, but
in no event more than ten business days after the Closing Date. One certificate
representing 125,000 shares of MarineMax Common Stock shall be issued in the
name of Seller and delivered to Seller, and one certificate representing 125,000
shares of MarineMax Common Stock shall be placed in an escrow for a period of
one year following the Closing Date pursuant to the terms of the Escrow and
Security Agreement attached as Exhibit A hereto (the "Escrow and Security
Agreement").
(b) CASH AT CLOSING. At the Closing, Seller shall receive cash, a
cashier's check, or by wire transfer in an amount equal to (i) $5,437,500 less
(ii) the "MarineMax Common Stock Value." For purposes of this Agreement, the
"MarineMax Common Stock Value" shall equal the product of (A) 250,000 times (B)
the MarineMax Measurement Price.
(c) ADJUSTED PURCHASE PRICE PAYMENT. Not later than five business
days following the final determination of the "Adjusted Purchase Price" (as
hereinafter defined), either (i) Buyer shall pay to Seller cash in an amount
equal to the amount by which the Adjusted Purchase Price exceeds $5,437,500, or
(ii) Seller shall refund to Buyer cash in an amount equal to the amount by which
$5,437,500 exceeds the Adjusted Purchase Price. Such payment shall be made in
cash or by a cashier's check or wire transfer pursuant to the instructions of
Seller or Buyer, as the case may be.
3.3 ADJUSTMENT TO PURCHASE PRICE. Because Buyer and Seller determined
the Purchase Price based upon an estimate of the normalized pre-tax earnings
before amortization of the Watercraft Business for the 12-month period ending
December 31, 1998 (the "Adjusted Earnings"), Buyer and Seller agree that the
Purchase Price shall be adjusted as follows:
(a) Not later than March 31, 1999, Buyer shall generate a
statement of operations (the "Adjusted Earnings Statement") reflecting (i) the
Adjusted Earnings of the Watercraft Business as conducted by Seller for the
period from January 1, 1998 to and including the Closing Date (the "Pre-Closing
Period") plus (ii) the Adjusted Earnings of the Watercraft Business as conducted
by Buyer for the period from (but not including) the Closing Date to December
31, 1998 (the "Post-Closing Period"). The Adjusted Earnings Statement shall set
forth the Adjusted Earnings of the Watercraft Business as calculated in the
manner set forth on Schedule 3.3 hereto as based upon (A) the financial
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statements of Seller for the Pre-Closing Period, prepared in accordance with
generally accepted accounting principles ("GAAP") plus (B) the financial
statements of Buyer for the Post-Closing Period, prepared in accordance with
GAAP. The conformity to the provisions of GAAP of the Adjusted Earnings
Statement for the combined Pre-Closing Period and Post-Closing Period and the
combined entities (Seller and Buyer) will be attested to by Arthur Andersen LLP
in its capacity as independent certified public accountants ("Arthur Andersen").
Seller and Designated Shareholders shall provide Buyer and its agents and
representatives with full and complete access to the books of account and
records of Seller and the full cooperation of Seller and Designated Shareholders
to facilitate the compilation of information reasonably necessary to generate
the Adjusted Earnings Statement and to enable Arthur Andersen to attest to the
conformity to GAAP of the calculations used to generate the Adjusted Earnings
Statement. Buyer shall provide Seller and Designated Shareholders with a copy of
the Adjusted Earnings Statement no later than March 31, 1999, or as soon
thereafter as practicable if Buyer is unable to compile the necessary
information as a result of the failure of Seller and/or Designated Shareholders
to provide access to books and records or to cooperate in a manner that Buyer
deems reasonably necessary to facilitate such compilation. Buyer shall provide
reasonable access to Seller to inspect and copy, at Seller's expense, all
earnings and sales records, and books of account in connection with the
calculation of Adjusted Earnings Statement.
(b) The Purchase Price for the Purchased Assets shall be adjusted
(the "Adjusted Purchase Price") by:
(i) increasing or decreasing the Purchase Price by the product of (A)
the total amount of Adjusted Earnings reflected on the Adjusted Earnings
Statement less $4,035,000, times (B) the quotient of (X) 10,875,000 divided by
(Y) 4,035,000; and
(ii) increasing or decreasing the Purchase Price by an amount equal to
the amount, if any, by which the Assumed Inventory Financing exceeds the fair
market value as of the Closing Date (as agreed to between Seller and Buyer
within 45 days of the Closing Date) of the Inventory included as part of the
Purchased Assets; and
(iii) increasing or decreasing the Purchase Price by an amount equal
to the Assumed Customer Deposits and the Assumed Unearned Storage Income.
(c) In the event that Seller shall dispute the information set
forth by Buyer in the Adjusted Earnings Statement or Buyer's computation of the
Adjusted Earnings, then, within fifteen business days following the date of the
delivery by Buyer of the Adjusted Earnings Statement, Seller shall provide
written notice to Buyer specifying the amount disputed and the basis for the
dispute together with supporting documentation reflecting the analysis of and
justification for any recomputation made. Seller and Buyer shall make good faith
efforts to resolve the dispute through negotiations for a period of twenty
business days following the receipt of the written notice defining and
describing the nature of the dispute. In the event that the parties are unable
to finally resolve the dispute within such twenty business day period, the
parties to the dispute may elect by mutual agreement to extend the period of
negotiation and may elect by mutual agreement to engage a mediator to assist in
such negotiation. To the extent that any matter remains unresolved following
negotiations, the unresolved matter only shall be resolved by binding
arbitration before one arbitrator who shall be an audit partner at the Tampa,
Florida office of PriceWaterhouseCoopers, LLP having not less than 15 years of
audit experience. To the extent necessary, at the sole discretion and under the
direction of the arbitrator, the arbitrator may independently review and audit
any matters in dispute. The decision of the arbitrator shall be a final
resolution of the parties' dispute and shall be non-appealable and shall not be
subject to further arbitration or review. The arbitration shall be governed in
accordance with the expedited Commercial Rules of the American Arbitration
Association and shall be held in Tampa, Florida, including all hearings related
to such
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arbitration. All hearings shall be commenced and completed within 60 days of the
selection of the arbitrator. The arbitrator shall render his or her decision
within 30 days of all hearings related thereto. The arbitration award shall be
in writing. If the arbitrator's decision determines that the actual amount of
the Adjusted Earnings is equal to or greater than 1.10 multiplied by the
Adjusted Earnings as calculated by Buyer, then Buyer shall be responsible for
payment of all reasonable costs and expenses incurred by Seller in connection
with the dispute and the arbitration, including all costs and expenses of the
arbitrator. If the arbitrator's decision determines that the actual amount of
the Adjusted Earnings is less than 1.10 multiplied by the Adjusted Earnings as
calculated by Buyer, then Seller shall be responsible for payment of all
reasonable costs and expenses incurred by Buyer in connection with the dispute
in the arbitration, including all costs and expenses of the arbitrator.
3.4 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated among the Purchased Assets owned by Seller in accordance with their
respective fair market values. Without limiting the foregoing, Buyer and Seller
agree that the total purchase price (including liabilities assumed) for the
assets and properties purchased pursuant to this Agreement shall be allocated to
those assets and properties as set forth in Schedule 3.4 hereto, and Buyer and
Seller agree that the allocation set forth in Schedule 3.4 hereto has been made
in accordance with the requirements of Section 1060 of the Internal Revenue Code
of 1986, as amended (the "Code") and any applicable Treasury Regulations
promulgated thereunder. Buyer and Seller, each at its own expense, also agree to
file appropriate forms with the Internal Revenue Service setting forth the
information required to be furnished to the Internal Revenue Service by Section
1060 of the Code and the applicable Treasury Regulations thereunder.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF SELLER AND DESIGNATED
SHAREHOLDERS. Except as otherwise set forth in the Seller Disclosure Schedule
heretofore delivered by Seller to and acknowledged as received by Buyer, Seller
and Designated Shareholders jointly and severally represent and warrant to Buyer
and Designated Subsidiary as follows:
(a) DUE INCORPORATION, GOOD STANDING, AND QUALIFICATION. Each of
Seller and its subsidiaries is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation and
has the requisite corporate power and authority to own, operate, and lease its
assets and properties and to carry on its business as now being conducted.
Neither Seller nor any of its subsidiaries is subject to any material disability
by reason of the failure to be duly qualified as a foreign corporation for the
transaction of business or to be in good standing under the laws of any
jurisdiction. As used in this Agreement with reference to Seller, the term
"subsidiaries" shall include all direct and indirect subsidiaries of Seller.
Schedule 4.1(a) hereto constitutes a list setting forth, as of the date of this
Agreement, each jurisdiction in which Seller and its subsidiaries is qualified
to do business.
(b) CORPORATE AUTHORITY. Seller has the corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby. The Board of Directors and shareholders of Seller have duly
authorized the execution, delivery, and performance of this Agreement. No other
corporate proceedings on the part of Seller or its subsidiaries are necessary to
authorize the execution and delivery by Seller of this Agreement or the
consummation by Seller of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by, and constitutes a legal, valid, and
binding agreement of, Seller and Designated Shareholders, enforceable against
Seller and Designated Shareholders in accordance with its terms, except that (i)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights, and (ii) the remedy of specific performance and injunctive
and other forms of
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equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefore may be brought.
(c) CAPITAL STOCK; OPTIONS, WARRANTS, AND RIGHTS. As of the date
hereof, Seller has an authorized capital stock consisting of 1000 shares of
common stock, no par value, of which four hundred (400) shares are issued and
outstanding, two hundred two (202) of which are owned by John Robert Moore, III
and one hundred ninety-eight (198) of which are owned by John Robert Moore, IV.
As of such date, none of the shares of Seller's capital stock were reserved for
issuance upon the exercise of outstanding stock options. All of the issued and
outstanding shares of capital stock of Seller and of each of its subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable,
and are free of preemptive rights. Seller has no treasury shares. Neither Seller
nor any of its subsidiaries has outstanding any subscriptions, options,
warrants, or other rights to purchase, or securities or other obligations
convertible into or exchangeable for, or contracts, commitments, agreements,
arrangements, or understandings, to issue, any shares of its capital stock or
other securities, other than those referred to above.
(d) SUBSIDIARIES. Schedule 4.1(d) hereto constitutes a list
setting forth, as of the date of this Agreement, (i) the name, jurisdiction of
incorporation, and list of shareholders of each subsidiary of Seller, and (ii)
the name and a description of every other person, corporation, partnership,
limited liability company, joint venture, or other business association in which
Seller directly or indirectly owns a material interest. The outstanding shares
of capital stock of the subsidiaries of Seller are owned by Seller free and
clear of all claims, liens, charges, and encumbrances. Seller does not own,
directly or indirectly, any capital stock or other equity securities of any
corporation or have any direct or indirect equity or ownership interest in any
corporation or other business other than with respect to its subsidiaries.
(e) FINANCIAL STATEMENTS. The Balance Sheets of Seller as of
December 31, 1997 as well as the Statements of Income, the Statements of
Shareholders' Equity, and the Statements of Cash Flows of Seller for the year
ended December 31, 1997, and all related schedules and notes to the foregoing,
have been reported on by Arthur Andersen. The Balance Sheet of Seller as of
August 31, 1998 and the Statement of Operations, the Statement of Shareholders'
Equity, and the Statement of Cash Flows of Seller for the period ended August
31, 1998 have been prepared by Seller without audit. All of the foregoing
financial statements have been prepared in accordance with generally accepted
accounting principles, which were applied on a consistent basis, and present
fairly and accurately, in all material respects, the consolidated financial
position, results of operations, and changes in financial position of Seller and
its subsidiaries as of their respective dates and for the periods indicated.
Neither Seller nor any of its subsidiaries has any material liabilities or
obligations of a type that would be included in a balance sheet prepared in
accordance with generally accepted accounting principles, whether related to tax
or non-tax matters, accrued or contingent, due or not yet due, liquidated or
unliquidated, or otherwise, except as and to the extent disclosed or reflected
in Seller's Base Balance Sheet or incurred since the date of that balance sheet
in the ordinary course of business and as contemplated by this Agreement.
(f) ACTIONS IN THE ORDINARY COURSE OF BUSINESS. Since the date of
Seller's Base Balance Sheet, neither Seller nor any of its subsidiaries (i) has
taken any action or entered into any material transaction other than
contemplated hereby outside the ordinary and usual course of business; (ii) has
borrowed any money or become contingently liable for any obligation or liability
of another; (iii) has failed to pay any of its debts and obligations as they
become due; (iv) has incurred any debt, liability, or obligation of any nature
to any party, except for obligations arising from the purchase of goods or the
rendition of services in the ordinary course of business; or (v) has failed to
use its best efforts to preserve its business organization intact, to keep
available the services of its employees and independent contractors, or to
preserve its relationships with its customers, suppliers, and others with which
it deals,
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(vi) sold, transferred, leased, or encumbered any of its assets or properties
outside the ordinary and usual course of business, (vii) waived any material
right, (viii) written off any assets or properties, (ix) hired any employees or
increased the compensation of any employees outside the ordinary and usual
course of business.
(g) NO MATERIAL CHANGE. Since the date of Seller's Base Balance
Sheet, there has not been and there is not threatened (i) any material adverse
change in the financial condition, business, assets, properties, or operating
results of Seller and its subsidiaries taken as a whole, (ii) any loss or damage
(whether or not covered by insurance) to any of the assets or properties of
Seller or its subsidiaries, which materially affects or impairs their ability to
conduct their business, or (iii) any mortgage or pledge of any assets or
properties of Seller or any of its subsidiaries, or any indebtedness incurred by
Seller or any of its subsidiaries, other than indebtedness, not material in the
aggregate, incurred in the ordinary course of business.
(h) TITLE TO PROPERTIES. Seller and its subsidiaries have good
and marketable title to and rightful possession of all of their respective real
and personal assets and properties, including all assets and properties
reflected in Seller's Base Balance Sheet or acquired subsequent to the date of
Seller's Base Balance Sheet, except assets or properties disposed of subsequent
to the date of the Base Balance Sheet in the ordinary course of business and as
contemplated by this Agreement. Such assets and properties are subject to no
mortgage, indenture, pledge, lien, claim, encumbrance, charge, security interest
or title retention, or other security arrangement, except for liens for the
payment of federal, state, and other taxes, the payment of which is neither
delinquent nor subject to penalties, and except for other liens and encumbrances
incidental to the conduct of the business of Seller and its subsidiaries or the
ownership of their assets or properties, which were not incurred in connection
with the borrowing of money or the obtaining of advances and which do not in the
aggregate materially detract from the value of the assets or properties of
Seller and its subsidiaries taken as a whole or materially impair the use
thereof in the operation of their respective businesses, except in each case as
disclosed in Seller's Base Balance Sheet. All leases pursuant to which Seller or
any of its subsidiaries lease any substantial amount of real or personal
property are valid and effective in accordance with their respective terms.
Schedule 4.1(h) hereto sets forth the location, physical description, basis of
occupancy, ownership, and terms of any mortgages or leases with respect to all
properties used in the conduct of the Watercraft business.
(i) CONDITION OF ASSETS AND PROPERTIES. Except as disclosed on
Schedule 4.1(i), the buildings, equipment, machinery, fixtures, furniture,
furnishings, office equipment, and all other tangible personal assets and
properties of Seller and its subsidiaries presently used in, or necessary for
the operation of, their business, do not require any repairs other than normal
maintenance and are in good operating condition and in a state of reasonable
maintenance and repair.
(j) LITIGATION; ABSENCE OF CLAIMS OR PRODUCT OR SERVICE
WARRANTIES. There are no actions, suits, claims, proceedings, investigations, or
other litigation pending or, to the knowledge of Seller or Designated
Shareholders, threatened or that could be threatened against Seller or any of
its subsidiaries, at law or in equity, or before or by any federal, state,
municipal, or other governmental department, commission, board, bureau, agency,
or instrumentality that, if determined adversely to Seller or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the business, assets, properties, operations, operating results,
prospects, or condition, financial or otherwise, of Seller and its subsidiaries
taken as a whole. Seller is not a party to any decree, order, or arbitration
award (or agreement entered into in any administrative, judicial or arbitration
proceeding with any governmental authority) with respect to or affecting any of
the Purchased Assets (or the use thereof), or the Watercraft Business (or the
conduct thereof). Neither Seller, any subsidiary of Seller, nor any officer,
director, employee, or agent of Seller or any subsidiary of Seller has made any
oral or written warranties with respect to the quality or absence of defect of
the products or services sold or performed by Seller or
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any subsidiary of Seller that are in force as of the date hereof. There are no
material claims pending, anticipated, or threatened against Seller or any
subsidiary of Seller with respect to the quality of or absence of defects in
such products or services. Neither Seller nor any subsidiary of Seller has been
required to pay direct, incidental, or consequential damages to any person or
entity in connection with any of such products or services at any time during
the five-year period preceding the date of this Agreement.
(k) LICENSES AND PERMITS. Neither Seller nor any of its
subsidiaries is subject to any material disability or liability by reason of its
failure to possess any license, permit, franchise, certificate, consent,
approval, or authorization. Each of Seller and its subsidiaries has all
licenses, permits, franchises, certificates, consents, approvals, and
authorizations of whatever kind and type, governmental or private, necessary for
the business conducted by it and the ownership or use of all assets and
properties and the premises occupied by it. Schedule 4.1(k) hereto contains a
true, correct, and complete list of all licenses, permits, franchises,
certificates, consents, approvals, and authorizations necessary for the conduct
of the business of Seller and its subsidiaries.
(l) NO VIOLATION. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will not violate or
result in a breach by Seller or any of its subsidiaries of, or constitute a
default under, or conflict with, or cause any acceleration of any obligation
with respect to, (i) any provision or restriction of any charter, bylaw,
shareholders' agreement, voting trust, proxy, or other similar agreement, (ii)
any loan agreement, indenture, or mortgage of Seller or any of its subsidiaries,
(iii) any provision or restriction of any lien, lease agreement, dealer
agreement, contract, instrument, to which Seller or any of its subsidiaries is a
party or by which any of them is bound, or (iv) any order, judgment, award,
decree, law, rule, ordinance, or regulation or any other restriction of any kind
or character to which any assets or properties of Seller or any of its
subsidiaries is subject or by which Seller or any of its subsidiaries is bound.
Neither the execution and delivery by any Designated Shareholder of this
Agreement or any of the other agreements contemplated hereby, nor the
consummation of the transactions contemplated hereby or thereby, will result in
the creation of any lien, claim, right, charge, encumbrance or security interest
of any nature or type whatsoever with respect to any of the stock of any of
Seller's subsidiaries or any of the assets of Seller.
(m) TAXES. Seller has duly filed in correct form all Tax Returns
(as defined below) relating to the activities of Seller and its subsidiaries
required or due to be filed (with regard to applicable extensions) on or prior
to the date hereof. All such Tax Returns are accurate and complete in all
material respects, and Seller has paid or made provision for the payment of all
Taxes (as defined below) that have been incurred or are due or claimed to be due
from Seller or any of its subsidiaries by federal, state, or local taxing
authorities for all periods ending on or before the date hereof, other than
Taxes or other charges that are not delinquent or are being contested in good
faith and have not been finally determined and have been disclosed to Buyer. The
amounts set up as reserves for Taxes on the books of Seller and its subsidiaries
are sufficient in the aggregate for the payment of all unpaid Taxes (including
any interest or penalties thereon), whether or not disputed, accrued, or
applicable. No claims for Taxes or assessments are being asserted or threatened
against Seller or any of its subsidiaries. Seller has furnished to Buyer a copy
of all Tax Returns filed for it or its subsidiaries within the five-year period
prior to the date of the Agreement. For purposes of this Agreement, the term
"Taxes" shall mean all taxes, charges, fees, levies, or other assessments,
including, without limitation, income, gross receipts, excise, property, sales,
transfer, license, payroll, and franchise taxes, imposed by the United States or
any state, local, or foreign government or subdivision or agency thereof, and
such term shall include any interest, penalties, or additions to tax
attributable to such assessments or to the failure to file any Tax Return; and
the term "Tax Return" shall mean any report, return, or other information
required to be supplied to a taxing authority or required by a taxing authority
to be supplied to any other person.
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(n) ACCOUNTS RECEIVABLE. The accounts receivable of Seller and
its subsidiaries have been acquired in the ordinary course of business, are
valid and enforceable, and are fully collectible, subject to no defenses,
deductions, set-offs, or counterclaims, except to the extent of the reserve
reflected in Seller's Base Balance Sheet or in such other amount which is not
material in the aggregate. Each such account receivable is fully collectible to
the extent of the face value thereof (less the amount of the reserve for
doubtful accounts, if any, reflected on the books of Seller or its subsidiaries
with respect to such account), no later than 30 days after such account
receivable is due, and no account receivable is due more than 90 days after it
was created.
(o) CONTRACTS. Neither Seller nor any of its subsidiaries is a
party to (i) any plan or contract providing for bonuses, incentives, pensions,
stock options, stock purchases, deferred compensation, retirement payments,
pension, profit sharing, or welfare benefits, (ii) any plan or agreement
providing for fringe benefits to present or former employees, including sick
leave, severance pay, medical, hospitalization, life insurance, or related
benefits, (iii) any lease, installment purchase agreement, or other contract
with respect to any real or personal property used or proposed to be used in its
operations, excepting, in each case, items included within aggregate amounts
disclosed or reflected in Seller's Base Balance Sheet, (iv) any employment,
consulting, or other similar arrangement not terminable by it upon 30 days or
less notice without penalty to it or that provides for payments upon or after
termination, (v) any contract or agreement for the purchase of any commodity,
material, fixed asset, or equipment in excess of $10,000, (vi) any contract or
agreement creating an obligation of $10,000 or more, (vii) any mortgage, deed of
trust, pledge agreement, security agreement, lease or other contract of
agreement, which by its terms does not terminate or is not terminable by it
without penalty to it, (viii) any loan agreement, letter of credit, financing
agreement, indenture, promissory note, or other similar type of arrangement,
(ix) any dealer, distributorship, agency, sales, brokerage, wholesaling,
franchise, license, conditional sales agreement, or similar agreement, (x)
purchase commitment to or contract or agreement with, any manufacturer or other
supplier, or (xi) license, authority, or permit in favor of any person or entity
with respect to the Watercraft Business or any Purchased Assets. All mortgages,
leases, contracts, agreements, and other arrangements to which Seller or any of
its subsidiaries is a party are valid and enforceable in accordance with their
terms; Seller, its subsidiaries, and all other parties to each of the foregoing
have performed all obligations required to be performed to date and have waived
no rights thereunder; neither Seller, nor any of its subsidiaries, nor any such
other party is in default or in arrears under the terms of any of the foregoing;
and no condition exists or event has occurred that, with the giving of notice or
lapse of time or both, would constitute a default under any of them. With
respect to the Watercraft Business, neither Seller nor any subsidiary of Seller
is bound by any agreement or arrangement to sell or provide goods or services at
prices below the prevailing market prices therefor, or to purchase goods or
services at prices above the prevailing market prices therefor. With respect to
the Watercraft Business, neither Seller nor any Designated Shareholder has any
reason to believe that there is a likelihood that any of the manufacturers for
or suppliers to Seller or any of its subsidiaries will terminate its or their
business relationship with Seller or any of its subsidiaries for any reason
whatsoever.
(p) COMPLIANCE WITH LAW AND OTHER REGULATIONS.
(i) GENERAL. Each of Seller and its subsidiaries is in
compliance in all material respects with all requirements of federal, state, and
local law and all requirements of all governmental bodies and agencies having
jurisdiction over it, the conduct of its business, the use of its assets and
properties, and all premises occupied by it. Without limiting the foregoing,
each of Seller and its subsidiaries has properly filed all reports, paid all
monies, and obtained all licenses, permits, certificates, and authorizations
needed or required for the conduct of its business and the use of its assets and
properties and the premises occupied by it in connection therewith and is in
compliance in all material respects with all conditions, restrictions, and
provisions of all of the foregoing. Neither Seller nor any of its subsidiaries
has received any notice from any federal, state, or local authority or any
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insurance or inspection body that any of its assets, properties, facilities,
equipment, or business procedures or practices fails to comply with any
applicable law, ordinance, regulation, building, or zoning law or requirement of
any public authority or body.
(ii) ENVIRONMENTAL. Without limiting the foregoing, there is
no environmental contamination, toxic waste or other discharge, spill,
construction component, structural element or condition, adversely affecting any
of the properties of Seller or its subsidiaries, nor has Seller or any of its
subsidiaries received any official notice or citation that any of its properties
in any way contravene any federal, state, or local law or regulation relating to
environmental, health, or safety matters, including without limitation any
requirements of CERCLA or any OSHA requirements. There has been no (A) storage,
treatment, generation, or transportation or any (B) spill, discharge, leak,
emission, injection, escape, dumping, or release of any kind into the
environment (including without limitation, into air, water, or ground water) of
any materials (including, without limitation, industrial, toxic, or hazardous
substances or solid, medical, or hazardous waste) by, or on behalf of, Seller or
any subsidiary of Seller in violation of any federal, state or local law,
statute, rule or regulation or the common law or any decree, order, arbitration
award or agreement with or any license or permit from any federal, state or
local governmental authority. Schedule 4.3(p) hereto, sets forth a complete list
of all aboveground and underground storage tanks, vessels, and related equipment
and containers that are or have been used by Seller or any subsidiary of Seller,
or are located on property owned, leased or operated by Seller or any subsidiary
of Seller, and that are subject to federal, state or local laws, statutes, rules
or regulations, and such schedule sets forth their present contents, what the
contents have been at any time in the past, and what program of redemption, if
any, is contemplated with respect thereto.
(q) EMPLOYEE BENEFIT AND EMPLOYMENT MATTERS.
(i) ERISA MATTERS. Each of Seller and its subsidiaries has
fulfilled its obligations, if any, under the minimum funding standards of
Section 302 of ERISA and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of ERISA and
such regulations and published interpretations) in which employees of Seller or
its subsidiaries are eligible to participate and each such plan is in compliance
in all material respects with the presently applicable provisions of ERISA and
such regulations and published interpretations. Seller has not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such plan under Title IV
of ERISA. Seller has furnished to Buyer as an attachment to Schedule 4.1(q)
hereto true and complete copies of each pension plan, welfare plan, and
employment benefit plan applicable to Seller or any of its subsidiaries and
related trust agreements or annuity contracts, Internal Revenue Service
determination letters and summary plan descriptions; all of the foregoing plans,
agreements, and commitments are valid, binding, in full force and effect, and
there are no defaults thereunder; and none of the rights of Seller or any of its
ERISA Affiliates (as defined under ERISA) thereunder will be impaired by this
Agreement or the consummation of the transactions contemplated by this
Agreement.
(ii) LABOR MATTERS. Each of Seller and its subsidiaries has
complied with all other applicable federal, state, and local laws relating to
the employment of labor, including, but not limited to, the provisions thereof
relative to wages, hours, collective bargaining, working conditions, and payment
of taxes of any kind, and neither Seller nor any of its subsidiaries is liable
for any arrears of wages or any taxes or penalties for failure to comply with
any of the foregoing or has any obligations for any vacation, sick leave, or
other compensatory time. Neither Seller nor any of its subsidiaries is a party
to any collective bargaining or other contract or agreement with any labor
union, and there is no request for union representation pending or threatened
against Seller or any of its subsidiaries. There is not pending or threatened
any (A) labor dispute, grievance, strike or work stoppage involving any of the
employees of Seller or any of its subsidiaries, (B) charge or complaint against
or involving any employees
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of Seller or any of its subsidiaries by the National Labor Relations Board, the
Department of Labor, the Occupational Health and Safety Administration, or any
similar federal, state, or local board or agency, or (C) unfair employment or
labor practice charges by or on behalf of any employee of Seller or any of its
subsidiaries.
(iii) ARRANGEMENTS WITH EMPLOYEES. The employment of each
employee of Seller and its subsidiaries is terminable at will without cost to
Seller or any of its subsidiaries. All officers and independent contractors of
Seller and its subsidiaries are paid salaries or other compensation in
accordance with the amounts set forth in Schedule 4.1(q) hereto, and Schedule
4.1(q) correctly and accurately sets forth all salaries, expenses, and personal
benefits paid to or accrued for all directors, officers, and principal
shareholders of Seller and its subsidiaries as of the date of this Agreement,
all of which are reflected as appropriate in Seller's Base Balance Sheet.
(r) INSURANCE. Each of Seller and its subsidiaries maintains in
full force and effect insurance coverage on its assets, properties, premises,
operations, and personnel in such amounts as Seller deems appropriate. Schedule
4.1(r) hereto contains a description (identifying insurer, coverage, premiums,
named insured, deductibles, and expiration date) of all policies of fire,
liability, and other forms of insurance that currently are, or at any time
within the past five years have been, maintained in force by or for the account
of Seller or any of its subsidiaries with respect to the business and assets of
Seller or its subsidiaries (such policies are hereinafter referred to as the
"Policies"). Each of Seller and its subsidiaries has been continuously, and is
presently, insured by insurers unaffiliated with Seller with respect to its
property and the conduct of its business in such amounts and against such risks
as are adequate to protect its business and assets, including, without
limitation, liability insurance. The insurance coverage provided by the Policies
presently in force will not in any material respect be affected by, and will not
terminate or lapse by reason of, the transactions contemplated hereby.
(s) NO PAYMENTS TO DIRECTORS, OFFICERS, SHAREHOLDERS, OR OTHERS.
Since the date of Seller's Base Balance Sheet, there has not been any purchase
or redemption of any shares of capital stock of Seller or its subsidiaries or
any transfer, distribution, or payment by Seller or its subsidiaries, directly
or indirectly, of any assets or properties to any director, officer,
shareholder, or other person other than the payment of compensation for services
actually rendered at rates not in excess of the rates prevailing on the date of
Seller's Base Balance Sheet.
(t) NO PROHIBITED PAYMENTS. Neither Seller and its subsidiaries
nor, to the knowledge of Designated Shareholders, any officer, director,
employee, independent contractor, or agent, acting on behalf of Seller or its
subsidiaries, has at any time (i) made any contributions to any candidate for
political office in violation of law or failed to disclose fully any
contributions to any candidate for political office in accordance with any
applicable statute, rule, regulation, or ordinance requiring such disclosure,
(ii) made any payment to any local, state, federal, or foreign governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or allowed by applicable law, (iii) made
any payment outside the ordinary course of business to any purchasing or selling
agent or person charged with similar duties of any entity to which Seller or its
subsidiaries sell products or render services or from which Seller or its
subsidiaries buy products or services for the purpose of influencing such agent
or person to buy products or services from or sell products or services to
Seller or its subsidiaries, or (iv) engaged in any transaction, maintained any
bank account, or used any corporate funds, except for transactions, bank
accounts, and funds that have been and are reflected in the normally maintained
books and records of Seller or its subsidiaries.
(u) CHARTER, BYLAWS, AND MINUTE BOOKS. Seller has previously
delivered to Buyer true and complete copies of the charter and bylaws of Seller
and its subsidiaries as currently in effect. The minute books of Seller and its
subsidiaries contain complete and accurate records of all
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meetings and other corporate actions held or taken by the Boards of Directors
(or committees of the Boards of Directors) and shareholders of Seller and its
subsidiaries, as the case may be, since their incorporation.
(v) INTELLECTUAL PROPERTY. Each of Seller and its subsidiaries
owns or holds all of the rights to use all trademarks, trade names, trade
secrets, logos, fictitious names, service marks, slogans, patents, and
copyrights that are used in or necessary to the operation of its business.
Schedule 4.1(v) hereto sets forth a true, complete, and correct list of all of
the Intellectual Property owned or used by Seller or any of its subsidiaries.
None of the matters covered by the Intellectual Property, nor any of the
products or services sold or provided by Seller or any of its subsidiaries, nor
any of the processes used or the business practices followed by Seller or any of
its subsidiaries, infringes or has infringed upon any trademark, trade name,
trade secret, logo, fictitious name, service mark, slogan, patent, or copyright
owned by any person or entity (or any application with respect thereto), or
constitutes unfair competition. Neither Seller nor any of its subsidiaries is,
and following the Closing Buyer will be, obligated to pay any royalty or other
payment with respect to any of the Intellectual Property. No person or entity is
producing, providing, selling, or using products or services that would
constitute an infringement of any of the Intellectual Property.
(w) INVENTORIES. The inventories of Seller and its subsidiaries
(including boats, motors, trailers, parts, and accessories) are in first class
and merchantable condition and are stated in the Seller's Base Balance Sheet at
not more than the lower of cost or market, with adequate adjustments for
obsolete, out-of-date, or otherwise not readily marketable items. Since the date
of Seller's Base Balance Sheet, there have not been and there are not required
to be any write-downs in the value of such inventories or write-offs with
respect to such inventories. The inventories of Seller and its subsidiaries
(including boats, motors, trailers, parts, and accessories) are all in first
class condition and are usable and currently being used in the present sales
activities of Seller and its subsidiaries, and neither Seller nor any of its
subsidiaries has on hand or on order any inventory in excess of its normal
requirements (based upon sales experience for the last 12 months) for products
that are included in its current line and for which Seller or its subsidiaries
are now taking orders. Without limiting the foregoing, (i) Seller and its
subsidiaries do not have more than a six-month supply of inventory, all of which
is saleable at prices currently quoted by Seller and its subsidiaries, and (ii)
all inventory being transferred to Buyer or Designated Subsidiary pursuant to
this Agreement are in accordance with manufacturers' specifications and the sale
thereof to customers will not result in any liability of any kind to Buyer or
Designated Subsidiary.
(x) SUFFICIENCY OF PURCHASED ASSETS. The Purchased Assets
constitute all or substantially all of the assets and properties of Seller, and
constitute all or substantially all of the assets and properties that are
necessary to permit Buyer or Designated Subsidiary to continue to conduct the
Watercraft Business after the Closing Date in the manner in which the Watercraft
Business is currently being conducted by Seller.
(y) SECURITIES MATTERS.
(i) ACQUISITION OF MARINEMAX COMMON STOCK FOR OWN ACCOUNT.
Seller will acquire the MarineMax Common Stock for its own account and not with
a view to distribute the MarineMax Common Stock in violation of the Securities
Act of 1933, as amended (the "Securities Act").
(ii) KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS
MATTERS. Seller has sufficient knowledge and experience in financial and
business matters that it is
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capable of evaluating the merits and risks of the acquisition of the MarineMax
Common Stock, and Seller has the ability to bear the economic risk of acquiring
the MarineMax Common Stock.
(iii) RESTRICTED SECURITIES. Seller acknowledges and
understands that the MarineMax Common Stock will constitute "restricted
securities" as defined under Rule 144 under the Securities Act and the
certificates representing such shares will contain a legend to this effect. As a
result, such shares may be sold only pursuant to registration under the
Securities Act or pursuant to an exemption therefrom.
(iv) AVAILABLE INFORMATION. Seller has been supplied with,
or had access to, information to which a reasonable investor would attach
significance in making investment decisions, including, but not limited to,
MarineMax's Prospectus dated June 3, 1998; all publicly available filings by
MarineMax under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"); MarineMax's reports to stockholders; any information with respect to
MarineMax's financial condition, business, and prospects; and any other
information Seller has requested to enable Seller to make the decision to
acquire the MarineMax Common Stock.
(z) ACCURACY OF STATEMENTS. Neither this Agreement nor any
statement, list, certificate, or any other agreement executed in connection with
this Agreement or other information furnished or to be furnished by Seller or
any Designated Shareholder to Buyer in connection with this Agreement or any of
the transactions contemplated hereby contains or will contain an untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein, in light of
circumstances in which they are made, not misleading.
4.2 FURTHER REPRESENTATIONS AND WARRANTIES OF DESIGNATED SHAREHOLDERS.
Each Designated Shareholder, jointly and severally, further represents,
warrants, and acknowledges to Buyer and Designated Subsidiary as follows:
(a) OWNERSHIP OF STOCK. Designated Shareholders own, and at all
times preceding the date hereof, have owned, all of the issued and outstanding
shares of capital stock of Seller, free and clear of all liens, claims, rights,
charges, encumbrances and security interests of whatsoever nature or type.
(b) POWER OF DESIGNATED SHAREHOLDERS TO EXECUTE AGREEMENT. Such
Designated Shareholder has the full right, power and authority to execute,
deliver, and perform this Agreement, and this Agreement is the legal and binding
obligation of such Designated Shareholder and is enforceable against such
Designated Shareholder in accordance with its terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights, and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefore may be
brought.
(c) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS AFFECTING
DESIGNATED SHAREHOLDERS. The execution and delivery of this Agreement, the
consummation of the transactions hereby contemplated, and the fulfillment of the
terms hereof will not result in the breach of any term or provision of, or
constitute a default under, or conflict with, or cause the acceleration of any
obligation under any agreement or other instrument of any description to which
such Designated Shareholder is a party or by which such Designated Shareholder
is bound, or any judgment, decree, order, or award of any court, governmental
body, or arbitrator, or any applicable law, rule, or regulation.
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4.3 REPRESENTATIONS AND WARRANTIES OF BUYER. Except as otherwise set
forth in the Buyer Disclosure Schedule heretofore delivered by Buyer to Seller,
and except as disclosed in any document heretofore filed by MarineMax with the
Securities and Exchange Commission ("SEC"), Buyer represents and warrants to
Seller and Designated Shareholders as follows:
(a) DUE INCORPORATION, GOOD STANDING, AND QUALIFICATION. Each of
Buyer and its subsidiaries is a corporation duly organized, validly existing,
and in good standing under the laws of Delaware. As used in this Agreement with
reference to Buyer, the term "subsidiaries" shall include all direct or indirect
subsidiaries of Buyer, other than Seller and all direct and indirect
subsidiaries of Seller. No warranty relating to Buyer or its subsidiaries shall
be deemed to be breached as a result of any circumstances that would constitute
a breach of warranty by Seller.
(b) CORPORATE AUTHORITY. Buyer has the corporate power and
authority to enter into this Agreement and carry out the transactions
contemplated hereby. The Board of Directors and stockholders of Buyer and
Designated Subsidiary have taken all actions required by law to authorize the
execution and delivery by Buyer of this Agreement and the consummation by Buyer
or Designated Subsidiary of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by and constitutes a legal, valid, and
binding agreement of Buyer, enforceable against it in accordance with its terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefore may be brought.
(c) INTENT AND ACCESS. Buyer and its Designated Subsidiary are
acquiring the shares of common stock of Seller's Subsidiaries and any other
securities owned by Seller without a view to the distribution or resale of such
stock or securities in violation of any applicable federal or state securities
laws. Buyer and its Designated Subsidiary have been furnished with such
information, both financial and non-financial, with respect to the operations,
business, capital structure, and financial position of Seller and its
subsidiaries as they believe necessary and have been given the opportunity to
ask questions of and receive answers from Seller and its subsidiaries and their
officers concerning Seller and its subsidiaries.
(d) ACCURACY OF STATEMENTS. Neither this Agreement nor any
statement, list, certificate, or other information furnished or to be furnished
by Buyer to Seller in connection with this Agreement or any of the transactions
contemplated hereby contains or will contain an untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances in which
they are made, not misleading.
(e) SEC REPORTS. MarineMax's Prospectus dated June 3, 1998 and
all subsequent reports and proxy statements filed by MarineMax thereafter with
the SEC pursuant to Section 13(a) or 14(a) of the Exchange Act, do not contain a
misstatement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading as of
the time the document was filed. No report, proxy statement, or other document
has been required to be filed by MarineMax pursuant to Section 13(a) or 14(a) of
the Exchange Act that has not been filed. All such reports, registrations, and
statements, which are filed between the date hereof and the Closing Date, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they are made, not misleading.
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(f) STATUS OF MARINEMAX COMMON STOCK TO BE ISSUED. The shares of
MarineMax Common Stock to be issued in partial payment for the Purchased Assets
will be, when issued, validly authorized and issued, fully paid, nonassessable,
free of preemptive or other similar rights, and listed for trading on the New
York Stock Exchange.
SECTION 5
COVENANTS
5.1 COVENANTS OF SELLER AND DESIGNATED SHAREHOLDERS. Seller and
Designated Shareholders jointly and severally agree that, unless Buyer otherwise
agrees in writing and except as set forth in the Seller Disclosure Schedule, at
all times prior to the Closing Date:
(a) TRUTH OF REPRESENTATIONS AND WARRANTIES. Seller and its
subsidiaries shall not take or suffer or permit any action that would render
untrue any of the representations or warranties of Seller herein contained, and
Seller and its subsidiaries shall not omit to take any action, the omission of
which would render untrue any such representation or warranty.
(b) PRESERVATION OF BUSINESS. Seller shall use its best efforts
to (i) preserve intact the present business organization of Seller and its
subsidiaries, (ii) preserve the present goodwill and advantageous relationships
of Seller and its subsidiaries with all persons having business dealings with
Seller or its subsidiaries, and (iii) preserve and maintain in force all
licenses, registrations, franchises, patents, trademarks, copyrights, bonds, and
other similar rights of Seller and its subsidiaries.
(c) NO ORGANIC CHANGE. Neither Seller nor its subsidiaries shall
(i) amend their charters or bylaws, (ii) make any change in their capital stock
by reclassification, subdivision, reorganization, or otherwise, or (iii) merge
or consolidate with or sell any assets to any other corporation, trust, or
entity or change the character of their business, except as contemplated by this
Agreement.
(d) ORDINARY COURSE. Seller and its subsidiaries shall operate
their business only in the usual, regular, and ordinary course and manner.
Without limiting the foregoing, Seller and its subsidiaries shall not (i)
encumber or mortgage any assets or properties, (ii) incur any obligation or
liability (contingent or otherwise), incur or modify any indebtedness, incur or
make any capital expenditures, purchase or acquire, or transfer or convey, any
assets or properties, or enter into any transaction or make or enter into any
contract or commitment, except in the usual and ordinary course of business and
as contemplated by this Agreement, (iii) create or acquire any subsidiary,
invest in or acquire any stock or other equity interest in any corporation,
trust, or other entity, or purchase any investment assets, (iv) expend more than
$25,000 in any month except in the ordinary course of business consistent with
prior periods and as permitted by this Agreement without the written approval of
Buyer, which shall not be unreasonably withheld, (v) waive any material right,
or (vi) make any material change in the nature or conduct of their business.
(e) MAINTENANCE OF ASSETS AND PROPERTIES. Seller and its
subsidiaries shall keep the premises occupied by them and all of the equipment
and other tangible assets and personal property of Seller and its subsidiaries
in good operating condition and shall perform all necessary repairs and
maintenance. Seller and its subsidiaries shall not remove any personal property
from any facility of Seller or its subsidiaries unless same are replaced with
similar items of at least equal quality prior to the Closing Date. Seller and
its subsidiaries shall not permit any modifications or additions to and shall
not sell or permit to be sold or otherwise transferred or disposed of any item
or group of items constituting personal property, except items sold in the
ordinary course of business. Seller and its subsidiaries shall not convey any
interest in any of their assets or properties or subject any of their assets or
properties, or any portion thereof, to any additional liens, encumbrances, or
similar matters.
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(f) SATISFACTION OF OBLIGATIONS AND LIABILITIES. Each of Seller
and its subsidiaries shall (i) pay or cause to be paid all of the obligations
and liabilities arising out of its business as they mature including those
related to taxes, except for those that are in good faith disputed with the
written approval of Buyer, (ii) maintain and perform in all material respects
its obligations under all agreements and contracts to which it is bound in
accordance with their terms, and (iii) comply in all material respects with all
requirements of applicable federal, state, and local laws, regulations, and
rules. Seller and its subsidiaries shall pay or cause to be paid in full all
bills and invoices for labor, goods, materials, supplies, services, and
utilities of any kind relating to their business, which were contracted for by
Seller or any of its subsidiaries or which were delivered to or performed on the
their assets or properties.
(g) BOOKS AND RECORDS. Seller and its subsidiaries shall maintain
their books, accounts, and records in the usual, regular, and ordinary manner
and on a basis consistent with prior years, and Seller and its subsidiaries
shall comply with all laws applicable to them or to the conduct of their
business.
(h) INSURANCE. Seller and its subsidiaries shall maintain in
force through the Closing Date all of the property, casualty, crime, directors
and officers, and other forms of insurance that they are presently carrying and
shall refrain from making any change in any such insurance coverage.
(i) ENTRY INTO OBLIGATIONS. Seller and its subsidiaries shall not
(i) enter into any lease, contract, agreement, or other obligation with any
party other than contracts for the sale of products or services and contracts
for the purchase of supplies or services in the ordinary and usual course of
business or, whether or not in the ordinary course of business, which involve
obligations in excess of $25,000 or which extend beyond six months from the date
of this Agreement, (ii) amend, modify, extend, change, or terminate any
presently existing lease, contract, agreement, or other obligation, or (iii)
enter into any service agreement, maintenance agreement, contract, or other
arrangement relating to the operation or maintenance of the assets and
properties of Seller or its subsidiaries other than in the ordinary course of
business.
(j) NO ISSUANCE OF SHARES, OPTIONS, OR OTHER SECURITIES. Neither
Seller nor its subsidiaries shall (i) issue any shares of capital stock, or (ii)
grant any option, warrant, or other right to purchase or to convert any
obligation into shares of capital stock.
(k) ACQUISITIONS AND DISPOSITIONS. Neither Seller nor its
subsidiaries shall (i) order, purchase, or lease any boats, motors, trailers,
parts, accessories or other products, inventory, equipment, except in the
ordinary course of business and consistent with past practice and as
contemplated by this Agreement, (ii) transfer, sell, pledge, dispose of, or
encumber any assets or properties, except in the ordinary course of business and
consistent with past practice and as contemplated by this Agreement, or (iii)
directly or indirectly acquire, purchase, or redeem any shares of its capital
stock or that of its subsidiaries or permit any of its subsidiaries to do so.
(l) DIVIDENDS. Neither Seller nor it subsidiaries shall declare,
make, or pay any dividend or other distribution with respect to Seller's capital
stock or otherwise.
(m) COMPENSATION. Neither Seller nor its subsidiaries shall (i)
increase the compensation payable (including bonus compensation) to any officer
or director or to other management personnel from the amount payable as of the
date of Seller's Base Balance Sheet, or (ii) introduce or change any pension or
profit sharing plan or any other employee benefit arrangement.
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(n) EMPLOYEES. Seller shall retain and keep available, and
Designated Shareholders shall use their best efforts to cause Seller to retain
and keep available, the services of each of its present employees,
representatives, and agents. Neither Seller nor its subsidiaries shall hire any
employees except in the ordinary course of business and consistent with past
practice or adopt any employee benefit plan or arrangement for the benefit of
employees. Seller and its subsidiaries shall not enter into any employment
agreements with any of their officers or management personnel that may not be
canceled by them without penalty upon notice not exceeding 30 days.
(o) RIGHT OF INSPECTION. Seller shall make available to Buyer and
its representatives for inspection at all reasonable times all of the assets,
properties, facilities, and agreements (including all documents of any
description evidencing any right or obligation of Seller or its subsidiaries)
and the books, records, accounts, and financial statements of Seller and its
subsidiaries as they shall reasonably request and allow Buyer and its
representatives the right to make whatever copies of such materials they
require, and Seller shall permit Buyer and its independent accountants to audit
or make such audit tests respecting the accounts of Seller and its subsidiaries
as Buyer or those accountants consider appropriate.
(p) CONFIDENTIALITY. Seller and its subsidiaries shall not
reveal, orally or in writing, to any person, other than Buyer and Designated
Subsidiary and their representatives, any of the business procedures or
practices followed by them in the conduct of their business or any other
information of a confidential nature.
(q) CONSENTS AND APPROVALS. Seller and its subsidiaries shall use
their best efforts to obtain all consents and approvals of other persons and
governmental authorities necessary to the performance by Seller and its
subsidiaries of the transactions contemplated by this Agreement. Seller and its
subsidiaries shall make or cause to be made all filings, applications,
statements, and reports to all federal, state, and local government agencies and
entities that are required to be made prior to the Closing Date by or on behalf
of Seller or its subsidiaries pursuant to any statute, rule, or regulation in
connection with the transactions contemplated by this Agreement and necessary to
the continued conduct of the business of Seller and its subsidiaries in the
current manner.
(r) RECOMMENDATION OF BOARD OF DIRECTORS. The board of directors
of Seller shall not modify its action taken on or prior to the date of this
Agreement approving the transactions contemplated hereby and recommending
approval of the transactions contemplated hereby by Seller's shareholders.
(s) APPROVAL OF SHAREHOLDERS. Seller and Designated Shareholders
shall (i) cause a meeting of its shareholders to be duly called and held in
accordance with the laws of the state of Ohio and Seller's Articles of
Incorporation and bylaws as soon as reasonably practicable for the purpose of
voting on the adoption and approval of this Agreement; (ii) recommend to its
shareholders approval of this Agreement; and (iii) use its best efforts to
obtain the necessary approval of its shareholders. Except with the prior written
consent of Buyer or Designated Subsidiary, Seller and Designated Shareholders
shall not distribute any materials to its shareholders in connection with this
Agreement other than a notice of meeting, form of proxy, and a copy of this
Agreement.
5.2 FURTHER COVENANTS OF SELLER AND DESIGNATED SHAREHOLDERS. Seller
and Designated Shareholders further agree, unless Buyer otherwise agrees in
writing, subsequent to the Closing:
(a) MAINTENANCE OF EXISTENCE. Seller shall retain its corporate
existence and Designated Shareholders shall cause Seller to remain in good
standing under the laws of the State of Ohio at least two years following the
Closing Date.
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(b) CHANGE OF NAME. Within five days after the Closing, Seller
shall deliver to Buyer a certified copy of the Amendment to Seller's Articles of
Incorporation reflecting the change of name referenced in Section 7.2(k) hereof.
(c) FILING OF TAX RETURNS. As promptly as practicable after the
Closing Date, Seller shall file all federal, state, and local corporate and
income tax returns for its last fiscal year.
(d) DIVIDENDS. Nothing in this Agreement shall limit the ability
or right of Seller to declare or pay dividends to its shareholders subsequent to
the Closing, and Buyer hereby acknowledges such.
5.3 COVENANTS OF BUYER. Buyer agrees that, unless Seller otherwise
agrees in writing and except as set forth in the Buyer Disclosure Schedule or
contemplated by this Agreement, at all times prior to the Closing Date:
(a) TRUTH OF REPRESENTATIONS AND WARRANTIES. Buyer and its
subsidiaries shall not take or suffer or permit any action that would render
untrue any of the representations or warranties of Buyer herein contained, and
Buyer and its subsidiaries shall not omit to take any action, the omission of
which would render untrue any such representation or warranty.
(b) CONSENTS AND APPROVALS. Buyer shall use its best efforts to
obtain all necessary consents and approvals of other persons and governmental
authorities to the performance by Buyer and its subsidiaries of the transactions
contemplated by this Agreement. Buyer shall make or cause to be made all
filings, applications, statements, and reports to all federal and state
government agencies and entities that are required to be made prior to the
Closing Date by or on behalf of Buyer or its subsidiaries pursuant to any
statute, rule, or regulation in connection with the transactions contemplated by
this Agreement.
(c) RIGHT OF INSPECTION. Buyer shall make available to Seller and
its representatives for inspection at all reasonable times all of the assets,
properties, facilities, records, agreements (including all documents of any
description evidencing any right or obligation of Buyer or its subsidiaries),
and financial statements of Buyer and its subsidiaries as they shall reasonably
request and allow Seller and its representatives the right to make whatever
copies of such materials they require at Seller's expense.
5.4 NO SOLICITATION. Unless and until this Agreement shall have been
terminated pursuant to Section 8, neither Seller nor any of its officers,
directors, affiliates, representatives, or agents shall:
(a) directly or indirectly, encourage, solicit, or initiate
discussions or negotiations with, any corporation, partnership, person, or other
entity or group (other than Buyer, its affiliates, employees, representatives,
and advisors) concerning any merger, sale of assets, sale of shares of capital
stock, tender offer, or similar transaction involving Seller or any of its
subsidiaries; or
(b) disclose, directly or indirectly, any non-public information
to any corporation, partnership, person, or other entity or group (other than to
Buyer, its affiliates, employees, representatives, or agents) concerning the
business and assets of Seller or its subsidiaries, afford to any such party
access to the books or records of Seller or its subsidiaries, or otherwise
assist or encourage any such party in connection with any of the foregoing.
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5.5 BEST EFFORTS. Subject to the terms and conditions of this
Agreement, and subject to fiduciary duties under applicable law, as advised by
counsel, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper, or advisable to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
using its best efforts to obtain all necessary, proper, or advisable permits,
consents, authorizations, requests, and approvals of third parties and
governmental authorities. If at any time after the Closing Date, any further
action is necessary or desirable to carry out the purposes of this Agreement
(including providing any information in any way related to the assets to be
purchased pursuant to this Agreement), the proper officers and directors of each
party to this Agreement shall take all such action.
5.6 PUBLIC ANNOUNCEMENTS. Buyer and Seller shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by law on the advice of counsel or by any listing agreement with any
national securities exchange.
SECTION 6
CONDITIONS PRECEDENT TO OBLIGATIONS
6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER. The obligations
of Buyer to consummate the transactions contemplated by this Agreement are, at
the option of Buyer, subject to the satisfaction of the following conditions on
or before the Closing Date.
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller and Designated Shareholders herein
contained shall have been true and correct in all material respects when made
and, in addition, shall be true and correct in all material respects on the
Closing Date with the same force and effect as though made on and as of the
Closing Date, except as affected by transactions contemplated hereby.
(b) PERFORMANCE OF AGREEMENTS. Seller and each Designated
Shareholder shall have in all material respects performed all obligations and
agreements and complied with all covenants and conditions contained in this
Agreement to be performed and complied with by them on or prior to the Closing
Date and shall have delivered all documents, instruments, and materials required
by Section 7.2.
(c) CORPORATE APPROVALS. All necessary corporate action on the
part of the directors and shareholders of Seller approving this Agreement and
approving the transactions contemplated hereby shall have been duly and validly
taken.
(d) NO MATERIAL ADVERSE CHANGE. There shall be no material
adverse change in the business, assets, properties, operating results, financial
condition, or property of Seller and its subsidiaries taken as a whole.
(e) LITIGATION. No action or proceeding by any governmental
agency shall have been instituted or threatened that would enjoin, restrain, or
prohibit, or might result in substantial damages in respect of, this Agreement
or the consummation of the transactions contemplated by this Agreement and
would, in the reasonable judgment of Buyer, make it inadvisable to consummate
such transactions, and no court order shall have been entered in any action or
proceeding instituted by any other party that enjoins, restrains, or prohibits
this Agreement or consummation of the transactions contemplated by this
Agreement.
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(f) PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Seller and its subsidiaries and Designated Shareholders and all instruments
executed and delivered by Seller and its subsidiaries and Designated
Shareholders on or prior to the Closing Date in connection with the transactions
contemplated hereby shall be satisfactory in form and substance to counsel for
Buyer.
(g) DELIVERY OF DOCUMENTS. All other documents required to be
delivered by Seller and Designated Shareholders on or prior to the Closing Date
shall be delivered or shall be tendered by the Closing Date.
(h) CLOSING CERTIFICATE OF SELLER AND DESIGNATED SHAREHOLDERS.
Buyer and Designated Subsidiary shall have received from Seller a closing
certificate executed by the Seller and Designated Shareholders, dated the date
of the Closing Date the form of which is attached hereto as Exhibit B ("Closing
Certificate of Seller and Designated Shareholders"), certifying that all
representations and warranties of Seller and Designated Shareholders,
respectively, set forth in this Agreement are true, complete, and correct in all
material respects on and as of the Closing Date as if made at that time, and
that each of Seller and Designated Shareholders has performed and complied in
all material respects with all agreements, covenants, and conditions required by
this Agreement to be performed or complied with by them at or before the Closing
Date.
(i) ENVIRONMENTAL REPORTS. Buyer shall have received reports, in
form and content satisfactory to Buyer, in the exercise of Buyer's sole
discretion, from Buyer's independent environmental consultants and its legal
counsel, concerning the real properties of Seller, which reports shall be based,
in part, on the results of environmental site assessments which Buyer and Seller
shall have caused to be completed prior to the Closing Date on all such real
properties, the cost and expense of which shall be paid for by Seller (the
"Environmental Reports").
(j) LEASES. Seller or Designated Shareholders, as applicable,
shall have entered into a lease in the form of Exhibit C for each of the
premises identified on Schedule 6.1(j) (the "Leases").
(k) ESCROW AND SECURITY AGREEMENT. Seller and Designated
Shareholders shall have entered into the Escrow and Security Agreement.
(l) CONSENTS. All necessary consents, approvals, and estoppel
letters of Seller's or Buyer's lenders, landlords, and other person whose
consent or approval is required shall have been obtained and, to the extent
licenses, authorities or permits held by Seller are not assignable or
transferrable, Buyer shall have either obtained licenses, authorities, and
permits on substantially the same terms as such licenses, authorities, and
permits were originally issued to Seller, or Buyer shall have obtained binding
commitments from the applicable authorities to issue such licenses, authorities,
and permits to Buyer following the Closing Date.
(m) TAX CLEARANCE CERTIFICATE. Buyer shall have received from the
Ohio Secretary of State to the effect that Seller has filed, or is on extension
to file, all franchise tax returns and has paid all franchise taxes, penalties
and interest, if any, due with respect thereto (the "Tax Clearance
Certificate").
(n) LISTING ON NEW YORK STOCK EXCHANGE NATIONAL MARKET. The
shares of MarineMax Common Stock to be issued hereunder shall have been
authorized for listing, subject to official notice of issuance, on the New York
Stock Exchange.
(o) TERMINATION OF HSR ACT WAITING PERIODS. Any and all
applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the "HSR Act") and other
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applicable federal and state laws, rules, and regulations with respect to the
transactions contemplated by this Agreement shall have expired or shall have
been terminated.
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER AND DESIGNATED
SHAREHOLDERS. The obligations of Seller and Designated Shareholders under this
Agreement are, at the option of Seller and Designated Shareholders, subject to
the satisfaction of the following conditions on or before the Closing Date:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer herein contained shall have been true
and correct in all material respects when made and, in addition, shall be true
and correct in all material respects on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date, except as
affected by transactions contemplated hereby.
(b) PERFORMANCE OF AGREEMENTS. Buyer and Designated Subsidiary
shall have in all material respects performed all obligations and agreements and
complied with all covenants and conditions contained in this Agreement to be
performed and complied with by them on or prior to the Closing Date and shall
have delivered all consideration, documents, instruments, and other materials
required by Section 7.3 hereof.
(c) CORPORATE APPROVAL. All necessary corporate action on the
part of the directors of Buyer and Designated Subsidiary approving this
Agreement and approving the transactions contemplated hereby shall have been
taken, and Buyer's and Designated Subsidiary's stockholders shall have approved
this Agreement and the transactions contemplated hereby as required by
applicable law.
(d) NO MATERIAL ADVERSE CHANGE. There shall be no material
adverse change in the business, properties, or financial condition of Buyer and
its subsidiaries taken as a whole.
(e) LITIGATION. No action or proceeding by any governmental
agency shall have been instituted or threatened that would enjoin, restrain, or
prohibit, or might result in substantial damages in respect of, this Agreement
or the consummation of the transactions contemplated by this Agreement and
would, in the reasonable judgment of Seller, make it inadvisable to consummate
such transactions, and no court order shall have been entered in any action or
proceeding instituted by any other party that enjoins, restrains, or prohibits
this Agreement or consummation of the transactions contemplated by this
Agreement.
(f) PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Buyer and Designated Subsidiary and all instruments executed and delivered by
Buyer and Designated Subsidiary on or prior to the Closing Date in connection
with the transactions contemplated hereby shall be satisfactory in form and
substance to counsel for Seller.
(g) DELIVERY OF DOCUMENTS. All other documents, required to be
delivered by Buyer and Designated Subsidiary on or prior to the Closing Date
shall be delivered or shall be tendered by the Closing Date.
(h) CLOSING CERTIFICATE OF BUYER. Seller shall have received from
Buyer a certificate executed by a duly authorized officer of Buyer, dated the
date of the Closing Date, the form of which is attached hereto as Exhibit D
("Closing Certificate of Buyer"), certifying that all representations and
warranties of Buyer set forth in this Agreement are true, complete, and correct
in all material respects on and as of the Closing Date as if made at that time
and that Buyer has performed and complied in all
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material respects with all agreements, covenants, and conditions required by
this Agreement to be performed or complied with by Buyer on or before the
Closing Date.
(i) LEASES. Buyer or Designated Subsidiary shall have entered
into the Leases.
(j) LISTING ON NEW YORK STOCK EXCHANGE. The shares of MarineMax
Common Stock to be issued hereunder shall have been authorized for listing,
subject to official notice of issuance, on the New York Stock Exchange.
(k) TERMINATION OF HSR ACT WAITING PERIODS. Any and all
applicable waiting periods under the HSR Act and other applicable federal and
state laws, rules, and regulations with respect to the transactions contemplated
by this Agreement shall have expired or shall have been terminated.
SECTION 7
THE CLOSING
7.1 CLOSING. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place at the offices of Buyer, 18167
U.S. Highway 19 North, Suite 499, Clearwater, Florida on September 30, 1998, or
at such other date, time, and place as may be agreed upon by Buyer and Seller,
which date is sometimes herein called the "Closing Date."
7.2 DELIVERIES BY SELLER AND DESIGNATED SHAREHOLDERS. At the Closing,
Seller and Designated Shareholders shall deliver:
(a) INSTRUMENTS OF CONVEYANCE. Such deeds, bills of sale,
instruments of assignment, and other instruments and documents as may be
necessary to convey to Buyer or Designated Subsidiary title to the Purchased
Assets, including without limitation, a bill of sale and assignment agreement,
the form of which is attached hereto as Exhibit E (the "Bill of Sale and
Assignment Agreement").
(b) CLOSING CERTIFICATE OF SELLER AND DESIGNATED SHAREHOLDER. The
Closing Certificate of Seller and Designated Shareholders.
(c) INTERIM MANAGEMENT AGREEMENT. An interim management
agreement, by and between, Buyer and Seller, in the form of which is attached
hereto as Exhibit F, pursuant to which Buyer shall manage the Watercraft
Business for and on behalf of Seller until Buyer obtains all necessary and
requisite licenses, permits and approvals to operate the Watercraft Business
(the "Interim Management Agreement").
(d) EMPLOYMENT AGREEMENTS. Employment agreements, by and between
Buyer and each of the Designated Shareholders, the forms of which are attached
hereto as Exhibits G and H, respectively (the "Employment Agreements").
(e) SECRETARY'S CERTIFICATE. The certificate of the Secretary of
Seller certifying to the resolutions constituting all necessary corporate action
by the board of directors and by the shareholders of Seller to authorize the
consummation of the transactions provided for herein.
(f) BOOKS AND RECORDS. All of the books, records, and files of
Seller and its subsidiaries, excepting only Seller's corporate minute books,
stock books or records, and employee and tax records.
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(g) ENVIRONMENTAL REPORTS. The Environmental Reports.
(h) THE LEASES. The Leases.
(i) TAX CLEARANCE CERTIFICATE. The Tax Clearance Certificate.
(j) ESCROW AND SECURITY AGREEMENT. The Escrow and Security
Agreement.
(k) CONSENTS AND ESTOPPEL LETTERS. All written consents,
approvals, and estoppel letters of all parties whose consent is necessary to the
continued effectiveness and validity of, or otherwise reasonably requested by
Buyer to or in connection with the assignment of, or alternate arrangements
satisfactory to Buyer with respect to, any Business Contract, lease, license,
permit, agreement, indenture, or other instrument that is to be a Purchased
Asset or which may be necessary, appropriate or required in order to permit
Buyer to conduct the business and operations of Seller after the Closing in all
respects the same as Seller and Designated Shareholders conducted the Watercraft
Business prior to the Closing, and written evidence of other consents and
approvals of the transactions contemplated hereby.
(l) CHANGE OF NAME. Documents and instruments amending Seller's
Articles of Incorporation changing Seller's name to another name that is not
deceptively similar to "Treasure Cove Marina" or any deviations thereof.
(m) GOOD STANDING CERTIFICATES. Certificates of good standing of
Seller, issued not earlier than seven days prior to the Closing Date by the
Secretary of State of Ohio and by the Secretary of State of each state in which
Seller is qualified to transact business.
All assignments, consents, certificates, and other documents
delivered by Seller shall be in form reasonably satisfactory to counsel for
Buyer.
7.3 DELIVERIES BY BUYER OR DESIGNATED SUBSIDIARY. At the Closing,
Buyer or its Designated Subsidiary shall deliver:
(a) ASSUMPTION OF LIABILITIES. One or more assumptions of
liabilities necessary to assume the obligations and liabilities being assumed
hereunder.
(b) PURCHASE PRICE. Payment of the cash portion of the Purchase
Price and delivery of the MarineMax Common Stock as provided for in Section 2.1.
(c) CLOSING CERTIFICATE OF BUYER. The Closing Certificate of
Buyer required by Section 6.2(i).
(d) SECRETARY'S CERTIFICATE. The Certificate of the Secretary or
an Assistant Secretary of Buyer certifying to the resolutions constituting all
necessary corporate action by the Board of Directors of Buyer and its Designated
Subsidiary to authorize the consummation of the transactions provided for
herein.
(e) CONSENTS AND APPROVALS. Written evidence of all consents and
approvals of the transactions contemplated hereby.
(f) THE LEASES. The Leases.
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(g) THE BILL OF SALE AND ASSIGNMENT AGREEMENT. The Bill of Sale
and Assignment Agreement.
(h) THE INTERIM MANAGEMENT AGREEMENT. The Interim Management
Agreement.
(i) THE EMPLOYMENT AGREEMENTS.
All certificates and other documents delivered by Buyer or its
Designated Subsidiary shall be in form reasonably satisfactory to counsel for
Seller.
7.4 PAYMENT OF CREDITORS. Contemporaneously with the Closing, Seller
shall, from the cash portion of the Purchase Price received, pay off entirely
all accounts payable and all of Seller's creditors, except with respect to the
Assumed Liabilities. Seller shall supply evidence of such payoffs to Buyer at
the Closing in the form of copies of each check of Seller issued to creditors
and other third parties.
7.5 OBLIGATIONS OF ALL PARTIES.
(a) THIRD-PARTY CLAIMS. The parties shall cooperate with each
other with respect to the defense of any claims or litigation made or commenced
by third parties subsequent to the Closing Date that are not subject to the
indemnification provisions contained in Section 10 of this Agreement.
(b) FURTHER ASSURANCES. The parties shall execute such further
documents and perform such further acts as may be necessary to consummate the
transactions contemplated herein on the terms herein contained and to otherwise
comply with the terms of this Agreement.
(c) PAYMENT OF DISPUTED SUMS. The parties recognize that certain
liabilities described in Section 2 may, depending upon certain factors, be an
Assumed Liability in accordance with Section 2.1 or be an Excluded Liability in
accordance with Section 2.2. The parties also recognize the importance of the
prompt discharge of the Excluded Liabilities to Buyer's future conduct of the
Watercraft Business and recognize that Buyer may be called upon to discharge
Excluded Liabilities in connection with its conduct of the Watercraft Business
following the Closing Date. Accordingly, it is understood that, in the conduct
of the Watercraft Business, Buyer may (but shall not be obligated to) discharge
certain liabilities that may in fact constitute an Excluded Liability with
respect to which there is not a good faith dispute between Seller and the party
to whom the Excluded Liability is owed as to Seller's liability therefor. In
such event, Buyer shall give Seller or Designated Shareholders notice of the
liability or obligation discharged by Buyer pursuant to this subsection and,
notwithstanding anything in this Agreement to the contrary, Seller and
Designated Shareholders shall, upon request of Buyer, promptly reimburse Buyer
for the amount thereof.
SECTION 8
WAIVER, MODIFICATION, ABANDONMENT
8.1 WAIVERS. The failure of Seller or Designated Shareholders to
comply with any of their obligations, agreements, or conditions as set forth in
this Agreement may be waived expressly in writing by Buyer, by action of its
Board of Directors. The failure of Buyer or Designated Subsidiary to comply with
any of their obligations, agreements, or conditions as set forth in this
Agreement may be waived expressly in writing by Seller, by action of its Board
of Directors, without the vote of its shareholders.
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8.2 MODIFICATION. This Agreement may be modified at any time in any
respect by the mutual consent of all of the parties, notwithstanding prior
approval by the shareholders of Seller. Any such modification may be approved
for any party by its Board of Directors, without further shareholder approval,
except that the amount of consideration to be paid for the Purchased Assets may
not be decreased (except as provided herein) without the consent of the
shareholders of Seller given by the same vote as is required under applicable
state law for approval of this Agreement.
8.3 ABANDONMENT. The transactions contemplated by this Agreement may
be abandoned on or before the Closing Date, notwithstanding approval of this
Agreement by the shareholders of Seller:
(a) By the mutual agreement of the Boards of Directors of Buyer
and Seller, or
(b) By the Board of Directors of Buyer, if any of the conditions
provided in Section 6.1 shall not have been satisfied, complied with, or
performed in any material respect by the Closing Date, and Buyer shall not have
waived such failure of satisfaction, noncompliance, or nonperformance, or
(c) By the Board of Directors of Seller, if any of the conditions
provided in Section 6.2 shall not have been satisfied, complied with, or
performed in any material respect by the Closing Date, and Seller shall not have
waived such failure of satisfaction, noncompliance, or nonperformance, or
(d) At the option of Buyer or Seller, if there shall have been
instituted and be pending or threatened any legal proceeding before any court or
governmental agency seeking to restrain or prohibit or to obtain damages in
respect of this Agreement or the consummation of the transactions contemplated
by this Agreement, or if any order restraining or prohibiting the transactions
contemplated by this Agreement shall have been issued by any court or
governmental agency and shall be in effect.
In the event of any termination pursuant to this Section 8.3
(other than pursuant to subparagraph (a) hereof), written notice setting forth
the reasons thereof shall forthwith be given by Seller if it is the terminating
party, to Buyer, or by Buyer, if Buyer is the terminating party, to Seller. This
Agreement shall terminate automatically if the Closing Date shall not have
occurred on or before October 31, 1998, (subject to extension as specified
herein), or such later date as shall have been agreed to by the parties hereto
under Section 8.2.
8.4 EFFECT OF ABANDONMENT. In the event that the transactions
contemplated by this Agreement are abandoned as provided for in Section 8.3,
then (a) this Agreement shall forthwith become wholly void and of no effect
without liability to any party to this Agreement or to the directors, officers,
representatives, and agents of any such party subject to Section 8.5, (b) Buyer
and Seller shall each pay its own fees and expenses incident to the negotiation,
preparation, and execution of this Agreement and the obtaining of the necessary
approvals thereof, including fees and expenses of its counsel, accountants,
investment bankers, and other experts, and (c) Seller and Buyer (and their
representatives) shall return to the other all copies of books, records,
documents, or other papers given by Seller or Buyer (or their representatives)
to the other (or their representatives).
8.5 RIGHT TO DAMAGES. If this Agreement is terminated, no party hereto
shall have any liability or obligation to the others; provided, however, that
each party hereto shall remain liable for any breach of any of that party's
representations and warranties or the terms of this Agreement, or any willful
failure by the party to perform any of his, her or its obligations or agreements
contained or referenced in this Agreement, in which case that party shall be
liable for all of the other parties' out-of-pocket costs and
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expenses incurred in connection with the negotiations, due diligence reviews,
and preparation of the term sheet, this Agreement, and all of the other
documents related to this transaction, and those costs and expenses that are
incurred by the other parties in pursuing such rights and remedies, including
reasonable attorneys' fees.
SECTION 9
NON-COMPETITION
9.1 NON-COMPETITION. Because of the importance of Designated
Shareholders to the development and operation of the business of Seller, as well
as their knowledge of and reputation in Seller's industry, Buyer is unwilling to
enter into and perform this Agreement unless Seller and Designated Shareholders
all enter into the non-competition agreement contained in this Section 9. To
induce Buyer to enter into this Agreement and for the benefit of Buyer and
Designated Subsidiary, Seller and Designated Shareholders jointly and severally
agree as follows:
9.2 DURATION AND EXTENT OF RESTRICTION. Neither Seller nor Designated
Shareholders shall, for a period ending five years after the Closing Date,
within a 200 mile radius of any location where Seller conducts the Watercraft
Business as of the Closing Date, engage in a business the same as, similar to,
or in general competition with the business being conducted by Seller and its
subsidiaries at or within 12 months prior to the Closing Date. The term "engage
in" shall include, but shall not be limited to, activities, whether direct or
indirect, as proprietor, partner, shareholder, principal, agent, employee,
consultant or lender; provided, however, that the ownership of not more than 5%
in the aggregate by Seller and Designated Shareholders of the stock of a
publicly held corporation shall not be included in such term.
9.3 RESTRICTIONS WITH RESPECT TO CUSTOMERS AND EMPLOYEES. In
furtherance of, and without in any way limiting the restriction in Section 9.2,
for the period specified in Section 9.2, neither Seller nor Designated
Shareholders shall, directly or indirectly,
(a) request any past, present, or future customers of Seller or
any subsidiary of Seller to curtail or cancel their business with Buyer or any
of its subsidiaries;
(b) disclose the identity of any past, present, or future
customers of Seller or any subsidiary of Seller, Buyer, or any subsidiary of
Buyer to any other person, firm or entity engaged in a business the same as,
similar to, or in general competition with the business being conducted by
Seller or its subsidiaries within the territorial limits described in Section
9.2;
(c) solicit, canvas, or accept, or authorize any other person to
solicit, canvas, or accept, from any past, present, or future customers of
Seller or any subsidiary of Seller, Buyer or any subsidiary of Buyer, any
business for any other person, firm, or entity engaged in a business the same
as, similar to, or in general competition with the business of Seller or its
subsidiaries being conducted within the territorial limits described in Section
9.2; or
(d) induce or attempt to influence any employee of Seller or any
subsidiary of Seller, Buyer or any subsidiary of Buyer to terminate his
employment.
As used in this Section 9.3, "future customer" shall mean a customer with whom
business will have been transacted between the date hereof and the end of the
term specified in Section 9.2.
9.4 REMEDIES FOR BREACH. Seller and Designated Shareholders
acknowledge that the restrictions contained in this Section 9, in view of the
nature of the business in which they are engaged,
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are reasonable and necessary to protect the legitimate interests of Buyer and
its parent, subsidiaries and other affiliated entities and that any violation of
these restrictions would result in irreparable injury to Buyer and its parent,
subsidiaries and other affiliated entities. Seller and Designated Shareholders
agree that, in the event of a violation of any of such restrictions, Buyer and
Designated Subsidiary shall be entitled to preliminary and permanent injunctive
relief as well as an equitable accounting of all earnings, profits, and other
benefits arising from such violation, which rights shall be cumulative and in
addition to any other rights or remedies to which Buyer and Designated
Subsidiary may be entitled. In the event of a violation, the period of
non-competition referred to in Section 9.2 shall be extended by a period of time
equal to that period beginning when such violation commenced and ending when the
activities constituting such violation shall have been finally terminated in
good faith.
SECTION 10
INDEMNIFICATION
10.1 INDEMNIFICATION BY SELLER AND DESIGNATED SHAREHOLDERS.
(a) GENERAL. Seller and Designated Shareholders, jointly and
severally, covenant and agree to defend, indemnify, and hold Buyer and
Designated Subsidiary and each of their officers, directors, shareholders,
employees, and agents (each, a "Buyer Indemnitee") harmless for, from, and
against any and all damages, losses, liabilities (absolute and contingent),
fines, penalties, costs, and expenses (including, without limitation, reasonable
counsel fees and costs and expenses incurred in the investigation, defense or
settlement of any claim covered by this indemnity) with respect to or arising
out of any demand, claim, inquiry, investigation, proceeding, action or cause of
action that any Buyer Indemnitee may suffer or incur by reason of (i) the
material inaccuracy of any of the representations or warranties of Seller or any
Designated Shareholder contained in this Agreement, or any of the agreements,
certificates, documents, exhibits or schedules delivered in connection with this
Agreement; (ii) the failure to comply with, or the breach, or the default by
Seller or any Designated Shareholder of, any of the covenants, warranties or
agreements made by Seller or any Designated Shareholder contained in this
Agreement, or any of the agreements, certificates, documents, exhibits or
schedules delivered in connection with this Agreement; or (iii) any of the
Excluded Liabilities.
(b) BULK SALES MATTERS. Seller and each Designated Shareholder,
jointly and severally, covenant and agree to defend, indemnify, and hold each
Buyer Indemnitee harmless for, from, and against any and all damages, losses,
liabilities (absolute and contingent), fines, penalties, costs, and expenses
(including, without limitation, reasonable counsel fees and costs and expenses
incurred in the investigation, defense, or settlement of any claim covered by
this indemnity) with respect to or arising out of any demand, claim, inquiry,
investigation, proceeding, action, or cause of action that Buyer may suffer or
incur by reason of any liability or obligation of Seller, of whatsoever nature
and type, with respect to or arising under any applicable Bulk Sales Act.
(c) ENVIRONMENTAL. Seller and each Designated Shareholder,
jointly and severally, covenant and agree to defend, indemnify, and hold each
Buyer Indemnitee harmless for, from, and against any and all damages, losses,
liabilities (absolute and contingent), fines, penalties, costs, and expenses
(including, without limitation, reasonable counsel fees and costs and expenses)
incurred by reason of any inaccuracy of any of the representations or warranties
set forth in Section 4.1(p) hereof, or any demand, claim, inquiry,
investigation, proceeding, action, or cause of action, environmental
assessments, costs of cleanup, and/or remediation expenses such Buyer Indemnitee
may suffer or incur directly or indirectly by reason of or in any way relating
to:
(i) any use, generation, transportation, storage, treatment,
disposal or presence of Hazardous Substances (as defined below) occurring on or
prior to the Closing Date
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including, without limitation, any waste or other disposal activities or
Releases (as defined below) that occurred at a facility on which a portion of
Seller's or its subsidiaries' (or its or their predecessors') business was
conducted, any waste or other disposal activities or Releases that 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 that
occurred on real estate at any time whether or not Seller or any of its
subsidiaries (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 Seller or any of its subsidiaries performed such waste or other disposal
activities or Releases. As used herein, the term "Hazardous Substances" shall
mean and include those substances included within the definitions of "hazardous
substances," "hazardous materials," "toxic substances," "extremely hazardous
substances," "medical waste," or "solid waste" in the environmental laws and in
rules and regulations promulgated pursuant thereto; those substances listed in
the United States Department of Transportation Table or by the United States
Environmental Protection Agency as hazardous substances; any materials,
substances or wastes that are toxic, ignitable, corrosive or reactive and that
are regulated by any local, state or federal governmental authority; petroleum,
its derivatives, by-products, other hydrocarbons, gasoline, crude oil or any
fraction thereof that is liquid at standard conditions of temperature and
pressure (including, but not limited to motor fuels, jet fuels, distillate fuel
oils, residual fuel oils, lubricants, petroleum solvents, and used oils); and
all other substances, materials, and wastes that are, or that become,
prohibited, controlled or regulated under, or that are classified as hazardous
or toxic under, any environmental law or that pose or could pose a threat or
nuisance to health, safety or the environment or any other substance, material
or waste, the presence of which requires reporting, investigation or remediation
under any environmental laws, causes or threatens to cause a nuisance on
Seller's or any of its subsidiaries' properties or on any adjacent property or
poses or threatens to pose a hazard to the health or safety of persons, or
which, if it emanated or migrated, could constitute a trespass;
(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 CERCLA, as amended or reauthorized from time to time,
or any other similar federal, state or local laws, statutes, rules or
regulations to surface waters, groundwaters, soil, ambient air or otherwise into
the environment ("Releases") occurring on or prior to the Closing Date,
including, without limitation, both those Releases or incidents involving
potential or actual environmental contamination that required notification or
reporting to appropriate federal, state or local officials or agencies, or
clean-up or remedial activities, and those releases or incidents that 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 Seller or any of its
subsidiaries, to any mineral, chemical or industrial product, raw material
intermediate, by-product or Hazardous Substance created, stored, treated,
generated, processed, handled or originating at a facility at which Seller or
any of its subsidiaries (or any of its or their predecessors) conducted business
on or prior to the Closing Date or otherwise used by Seller or any of its
subsidiaries (or any of its or their predecessors) in the conduct of its
business;
(iv) any violations or claim of violations by Seller or any
of its subsidiaries, or pertaining to its or their properties, which violations
or alleged violations occurred prior to the Closing Date, of federal, state, or
local Environmental Laws, occupational or employee health and safety laws, or
otherwise arising out of or under such laws;
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(v) any and all actions, failures to act and negligence in
monitoring, maintaining, reporting, and upkeep of on-site generation, storage,
treatment, transportation and disposal operations on or prior to the Closing
Date;
(vi) any installation, use, removal, maintenance or
monitoring of storage tanks or related facilities on or prior to the Closing
Date; 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 Closing
Date.
Notwithstanding anything to the contrary herein, this
indemnification shall take effect upon the discovery of any condition set forth
herein within five years of the Closing Date and applies to voluntary as well as
governmental or court mandated cleanups.
(d) SECURITY FOR SELLER'S AND DESIGNATED SHAREHOLDERS'
OBLIGATIONS. A portion of the MarineMax Common Stock shall be set aside and held
pursuant to the Escrow and Security Agreement as security for Seller's and
Designated Shareholders' obligations under this Section 10.1.
10.2 INDEMNIFICATION BY BUYER. Buyer covenants and agrees to defend,
indemnify, and hold Seller and Designated Shareholders harmless for, from, and
against any and all damages, losses, liabilities (absolute and contingent),
fines, penalties, costs, and expenses (including, without limitation, reasonable
counsel fees and costs and expenses incurred in the investigation, defense or
settlement of any claim covered by this indemnity) with respect to or arising
out of any demand, claim, inquiry, investigation, proceeding, action, or cause
of action that Seller or any Designated Shareholder may suffer or incur by
reason of (a) the inaccuracy of any of the representations or warranties of
Buyer contained in this Agreement or any of the agreements, certificates,
documents, exhibits, or schedules delivered in connection with this Agreement;
or (b) the failure to comply with, or the breach or the default by Buyer, of any
of the covenants, warranties, or agreements made by Buyer in this Agreement or
any of the agreements, certificates, documents, exhibits, or schedules delivered
in connection with this Agreement. Buyer shall have no obligation to defend,
indemnify, and hold Seller or any Designated Shareholder harmless pursuant to
this Section 10.2 hereof with respect to any liability that is an Excluded
Liability set forth in Section 2.2 hereof; or (c) any Assumed Liability.
10.3 NOTICE AND RIGHT TO DEFEND THIRD-PARTY CLAIMS. Promptly upon
receipt of notice of any claim, demand, or assessment or the commencement of any
suit, action, or proceeding with respect to which indemnity may be sought
pursuant to this Agreement, the party seeking to be indemnified or held harmless
(the "Indemnitee") shall notify in writing, if possible, within sufficient time
to respond to such claim or answer or otherwise plead in such action, the party
from whom indemnification is sought (the "Indemnitor"). In case any claim,
demand, or assessment shall be asserted, or suit, action, or proceeding
commenced against the Indemnitee, the Indemnitor shall be entitled, at the
Indemnitor's expense, to participate therein, and, to the extent that it may
wish, to assume the defense, conduct, or settlement thereof, at its own expense,
with counsel satisfactory to the Indemnitee, whose consent to the selection of
counsel shall not be unreasonably withheld or delayed, provided that the
Indemnitor confirms to the Indemnitee that it is a claim to which its rights of
indemnification apply. The Indemnitor shall have the right to settle or
compromise monetary claims without the consent of Indemnitee; however, as to any
other claim, the Indemnitor shall first obtain the prior written consent from
the Indemnitee, which consent shall be exercised in the sole discretion of the
Indemnitee. After notice from the Indemnitor to the Indemnitee of Indemnitor's
intent so to assume the defense, conduct, settlement, or compromise of such
action, the Indemnitor shall not be liable to the Indemnitee for any legal or
other expenses (including, without limitation, settlement costs) subsequently
incurred by the Indemnitee in connection with the
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defense, conduct, or settlement of such action while the Indemnitor is
diligently defending, conducting, settling, or compromising such action. The
Indemnitor shall keep the Indemnitee apprised of the status of the suit, action,
or proceeding and shall make Indemnitor's counsel available to the Indemnitee,
at the Indemnitor's expense, upon the request of the Indemnitee. The Indemnitee
shall cooperate with the Indemnitor in connection with any such claim and shall
make personnel, books, and records and other information relevant to the claim
available to the Indemnitor to the extent that such personnel, books, and
records and other information are in the possession and/or control of the
Indemnitee. If the Indemnitor decides not to participate, the Indemnitee shall
be entitled, at the Indemnitor's expense, to defend, conduct, settle or
compromise such matter with counsel satisfactory to the Indemnitor, whose
consent to the selection of counsel shall not be unreasonably withheld or
delayed.
SECTION 11
GENERAL
11.1 INDEMNITY AGAINST FINDERS. Each party hereto shall indemnify and
hold the other parties harmless against any claim for finders' fees based on
alleged retention of a finder by it.
11.2 CONTROLLING LAW. This Agreement, and all questions relating to
its validity, interpretation, performance, and enforcement, shall be governed by
and construed in accordance with the laws of Delaware, notwithstanding any
Delaware or other conflict-of-law provisions to the contrary.
11.3 NOTICES. All notices, requests, demands, and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made, and received when delivered against
receipt, 12 hours after being sent by facsimile, or 72 hours after being sent by
registered or certified mail, postage prepaid, as set forth below:
If to Buyer:
18167 U.S. 19 North, Suite 499
Clearwater, Florida 33605
Attention: William H. McGill Jr.
Phone: (727) 531-1700
Fax: (727) 531-0123
with a copy given in the manner
prescribed above, to:
O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears, P.A.
One East Camelback Road, Suite 1100
Phoenix, Arizona 85012
Attention: Robert S. Kant, Esq.
Phone: (602) 263-2606
Fax: (602) 263-2900
If to Seller:
2555 N.E. Catawba Road
Port Clinton, Ohio 43452
Attention: John Robert Moore, III and John Robert
Moore, IV
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Phone: (419) 797-4492
Fax: (419) 797-0030
with a copy given in the manner
prescribed above, to:
Reinheimer & Reinheimer
208 Madison Street
Port Clinton, Ohio 43532
Attn: Jim Reinheimer, Esq.
Fax: (419) 734-3620
Any party may alter the address to which communications or
copies are to be sent by giving notice to such other parties of change of
address in conformity with the provisions of this paragraph for the giving of
notice.
11.4 BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no party may assign, delegate, or
transfer its rights or obligations under this Agreement (other than as provided
for herein) without the prior written consent of the other parties hereto. Any
assignment, delegation, or transfer made in violation of this Section 11.4 shall
be null and void.
11.5 ENTIRE AGREEMENT. This Agreement and the Exhibits and Schedules
hereto contain the entire understanding among the parties hereto with respect to
the subject matter hereof and supersede all prior and contemporaneous agreements
and understandings, inducements or conditions, express or implied, oral or
written, except as herein contained. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing.
11.6 SEVERABILITY. Each and every provision set forth in this
Agreement is independent and severable from the others, and no provision shall
be rendered unenforceable by virtue of the fact that, for any reason, any other
or others of them may be unenforceable in whole or in part. The parties hereto
agree that if any provision of any of paragraphs of this Agreement shall be
declared by a court of competent jurisdiction to be unenforceable for any reason
whatsoever, the court may appropriately limit or modify such provision, and such
provision shall be given effect to the maximum extent permitted by applicable
law.
11.7 PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
11.8 GENDER. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
11.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
or warranties made in or pursuant to Section 4 shall survive the Closing.
11.10 COUNTERPARTS; FACSIMILE. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement, and this Agreement may be
executed by facsimile provided that the parties deliver the original execution
pages within 48 hours of the Closing.
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11.11 SUBSIDIARIES. For purposes of this Agreement, all references to
a subsidiary or subsidiaries of Seller or Buyer shall mean any corporation,
partnership or limited liability company in which Seller or Buyer, as the case
may be, owns a majority interest or otherwise controls.
11.12 NO OBLIGATION TO HIRE. Nothing contained in this Agreement shall
impose, or be deemed to impose, upon Buyer any obligation to employ or retain
any persons who are employed by Seller as of the Closing Date or to offer
employment to such persons under similar working conditions as those existing
prior to the Closing.
11.13 THIRD-PARTY BENEFICIARY. MarineMax shall at all times be and
remain an express third-party beneficiary under this Agreement and all
documents, instruments, and agreements made and entered into pursuant hereto.
11.14 ASSIGNABILITY. At any time hereafter, Buyer may assign all or
part of its rights under this Agreement to MarineMax and any of its
subsidiaries, and MarineMax and any of its subsidiaries (as applicable) shall
receive and enjoy the benefits of all of Seller's and Designated Shareholders'
obligations hereunder with respect to the rights so assigned.
[THE REMAINDER OF THIS PAGE HAS BEEN 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.
MARINEMAX OF TREASURE COVE, INC.
By: /s/ Michael McLamb
Names: Michael McLamb
Its: Vice President
TREASURE COVE MARINA, INC.
By: /s/John Robert Moore, IV
Names: John Robert Moore, IV
Its: President
/s/John Robert Moore, III
JOHN ROBERT MOORE, III
/s/John Robert Moore, IV
JOHN ROBERT MOORE, IV
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EXHIBIT LIST
Exhibit A - Form of Escrow and Security Agreement
Exhibit B - Form of Closing Certificate of Seller and Designated Shareholders
Exhibit C - Form of Lease
Exhibit D - Form of Closing Certificate of Buyer
Exhibit E - Form of Bill of Sale and Assignment Agreement
Exhibit F - Form of Interim Management Agreement
Exhibit G - Form of Employment Agreement - John Robert Moore, III
Exhibit H - Form of Employment Agreement - John Robert Moore, IV
<PAGE> 1
EMPLOYMENT AGREEMENT
BETWEEN
MARINEMAX OF TREASURE COVE, INC.
AND
JOHN ROBERT MOORE, IV
<PAGE> 2
TABLE OF CONTENTS
PAGE
1. EMPLOYMENT.............................................................1
2. FULL TIME OCCUPATION...................................................1
3. COMPENSATION AND OTHER BENEFITS........................................1
(a) Salary...........................................................1
(b) Bonus............................................................1
(c) Commissions......................................................1
(d) Fringe Benefits..................................................2
(e) Reimbursement....................................................2
4. TERM OF EMPLOYMENT.....................................................2
(a) Employment Term..................................................2
(b) Termination Under Certain Circumstances..........................2
(i) Death......................................................2
(ii) Disability.................................................2
(iii) Unilateral Decision of Employer............................2
(iv) Unilateral Decision by Employee............................3
(v) For "Cause\................................................3
(c) Result of Termination............................................3
5. COMPETITION AND CONFIDENTIAL INFORMATION...............................3
(a) Interests to be Protected........................................3
(b) Non-Competition..................................................4
(c) Non-Solicitation of Employees, Customers, or Acquisition
Candidates.......................................................4
(d) Confidential Information.........................................4
(e) Return of Property...............................................5
(f) Disclosure of Information........................................5
(g) Assignment.......................................................5
(h) Equitable Relief.................................................5
(i) Restrictions Separable...........................................5
6. MISCELLANEOUS..........................................................5
(a) Third-Party Beneficiary..........................................5
(b) Notices..........................................................6
-i-
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
PAGE
(c) Indulgences; Waivers.............................................6
(d) Controlling Law..................................................6
(e) Execution in Counterpart.........................................7
(f) Provisions Separable.............................................7
(g) Entire Agreement.................................................7
(h) Paragraph Headings...............................................7
(i) Binding Nature of Agreement......................................7
(j) Construction.....................................................7
-ii-
<PAGE> 4
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of Contents/
Authorities. Deleting this break will cause Table of Contents/Authorities
headers and footers to appear on any pages following the Table of
Contents/Authorities.
<PAGE> 5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 30th day of September, 1998, by
and between MARINEMAX OF TREASURE COVE, INC., a Delaware corporation
("Employer") and a direct subsidiary of MarineMax, Inc., a Delaware corporation
("MarineMax"), and JOHN ROBERT MOORE, IV ("Employee").
WHEREAS, Employee has experience selling, renting and leasing boating,
nautical and other similar lifestyle entertainment products and services (the
"Watercraft Business").
WHEREAS, Employer desires to employ Employee, and Employee desires to
accept such employment, upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. EMPLOYMENT.
Employer hereby employs Employee, and Employee hereby accepts such
employment, as President of Employer and in such other capacities and for such
other duties and services as shall from time to time be mutually agreed upon by
Employer and Employee.
2. FULL TIME OCCUPATION.
Employee shall devote Employee's entire business time, attention, and
efforts to the performance of Employee's duties under this Agreement, shall
serve Employer faithfully and diligently, and shall not engage in any other
employment while employed by Employer.
3. COMPENSATION AND OTHER BENEFITS.
(a) SALARY. Employer shall pay to Employee, as full compensation for
the services rendered by Employee during Employee's employment under this
Agreement, a salary at a rate of $150,000 per annum to be paid in 26 equal
installments per annum, or in such other periodic installments upon which
Employer and Employee shall mutually agree (less all applicable deductions for
all taxes, including federal, state, and FICA; insurance; pension plans; etc.).
(b) BONUS. Employee shall be eligible to receive an annual bonus in
such an amount, if any, to be determined by the Board of Directors of Employer
based upon such factors as may be deemed relevant by the directors, including
the performance of Employee.
(c) COMMISSIONS. Employee shall be eligible to receive commissions
based upon a percentage of Employer's overall annual boat sales, in an amount to
be determined by the Board of Directors of Employer in its discretion.
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(d) FRINGE BENEFITS. Employee shall be entitled to participate in
any stock option, employee stock purchase, group insurance, pension, retirement,
vacation, expense reimbursement or other plans, programs, or benefits approved
by the Board of Directors and made available from time to time to employees of
Employer generally during the term of Employee's employment hereunder. The
foregoing shall not obligate Employer to adopt or maintain any particular plan,
program, or benefit.
(e) REIMBURSEMENT. Employer shall reimburse Employee for all travel
and entertainment expenses and other ordinary and necessary business expenses
incurred by Employee in connection with the business of Employer and Employee's
duties under this Agreement. The term "business expenses" shall not include any
item not deductible in whole or in part by Employer for federal income tax
purposes. To obtain reimbursement, Employee shall submit to Employer receipts,
bills or sales slips for the expenses incurred. Reimbursements shall be made by
Employer monthly within 30 days of presentation by Employee of evidence of the
expenses incurred.
4. TERM OF EMPLOYMENT.
(a) EMPLOYMENT TERM. The term of this Agreement shall be for a
period of five years commencing as of the date hereof and from year to year
thereafter, unless and until terminated pursuant to Section 4(b) of this
Agreement or by either party giving written notice to the other not less than 60
days prior to the end of the then-current term.
(b) TERMINATION UNDER CERTAIN CIRCUMSTANCES. Not-withstanding
anything to the contrary herein contained:
(i) DEATH. Employee's employment shall be automatically
terminated, without notice, effective upon the date of Employee's death.
(ii) DISABILITY. Employer may, at its option and upon notice to
Employee, terminate Employee's employment as a result of "Total and Permanent
Disability" (as defined below) effective on the date of that notice. For
purposes of this Agreement, the term "Total and Permanent Disability" shall mean
such physical or mental condition of Employee that renders Employee incapable of
performing Employee's duties for a period of more than 60 consecutive days or
for 60 days within any 180-day period; provided, however, that Employee shall
not be terminated for Total and Permanent Disability until a qualified and
independent (i.e., having no prior affiliations with Employer, Employee,
MarineMax or any MarineMax affiliate) medical specialist provides written
confirmation, after examination, that Employee is totally and permanently
incapacitated such that Employee can no longer perform Employee's duties
hereunder. In the event that Employee is a "qualified individual with a
disability," as defined in the Americans With Disabilities Act, Employer shall
not terminate Employee's employment hereunder if Employee is able to perform the
essential functions of Employee's job with reasonable accommodation from
Employer.
(iii) UNILATERAL DECISION OF EMPLOYER. Employer may, at its
option, upon notice to Employee, terminate Employee's employment effective on
the date of that notice.
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(iv) UNILATERAL DECISION BY EMPLOYEE. Employee may, at his
option and upon notice to Employer, terminate Employee's employment effective on
the date of that notice.
(v) FOR "CAUSE". Employer may, at its option and upon notice to
Employee, terminate Employee's employment for "Cause" (as defined below)
effective on the date of that notice. For purposes of this Agreement, the term
"Cause" shall mean (i) the failure or inability (other than as a consequence of
any illness, accident or other disability, as confirmed by competent medical
evidence) of Employee to perform Employee's duties hereunder for a period in
excess of 60 days in a manner reasonably satisfactory to Employer's Board of
Directors, provided the decision of the Board of Directors is not arbitrary or
capricious and is not made in bad faith; or (ii) "Serious Misconduct" of
Employee (as defined below). For purposes of this Agreement, the term "Serious
Misconduct" shall mean embezzlement or misappropriation of corporate funds; acts
of Dishonesty (as defined below); activities harmful to the reputation of
Employer (other than as a consequence of good faith decisions made by Employee
in the normal performance of Employee's duties hereunder); the conviction of or
the plea by Employee to any criminal felony offense (other than those arising
within the scope of Employee's employment hereunder, of which offenses Employee
was not personally aware or did not personally and knowingly order in violation
of the law, and other than a traffic or other offense that in the sole
discretion of the Board of Directors of Employer does not affect Employee's
position as an Employee of Employer) or any criminal felony offense involving
dishonesty or moral turpitude; the refusal to perform the duties assigned to
Employee pursuant to this Agreement (unless such duties shall be unlawful); or
the breach of any of the terms or conditions contained in this Agreement. For
purposes of this Agreement, the term "Dishonesty" shall mean the varnishing of
any information, reports, documents or certificates by Employee to Employer
which Employee knew or reasonably should have known to be false or misleading.
(c) RESULT OF TERMINATION. In the event of the termination of
Employee's employment pursuant to Sections 4(b)(i) or (ii) above, Employee's
estate or Employee, as the case may be, shall be entitled to receive an amount
equal to Employee's fixed salary as provided in Section 3(a) above for a period
of one year after such termination. In the event of the termination of
Employee's employment pursuant to Section 4(b)(iii) above, Employee shall
continue to receive Employee's fixed compensation for the lesser of (i) one year
or (ii) the remainder of the term of this Agreement. In the event of the
termination of Employee pursuant to Section 4(b)(iv) or (v) above, Employee
shall receive no further compensation under this Agreement.
5. COMPETITION AND CONFIDENTIAL INFORMATION.
(a) INTERESTS TO BE PROTECTED. For the purposes of this Section 5,
the term "Employer" shall include MarineMax and any other entity directly or
indirectly controlled by, in control of, or under common control with MarineMax.
The parties acknowledge that Employee will perform essential services for
Employer, its employees, and its stockholders during the term of Employee's
employment with Employer. Employee will be exposed to, have access to, and work
with, a considerable amount of Confidential Information (as defined below). The
parties also expressly recognize and acknowledge that the personnel of Employer
have been trained by, and are valuable to, Employer and that Employer will incur
substantial recruiting and
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training expenses if Employer must hire new personnel or retrain existing
personnel to fill vacancies. The parties expressly recognize that it could
seriously impair the goodwill and diminish the value of Employer's business
should Employee compete with Employer in any manner whatsoever. The parties
acknowledge that this covenant has an extended duration; however, they agree
that this covenant is reasonable and it is necessary for the protection of
Employer, its stockholders, and employees. For these and other reasons, and the
fact that there are many other employment opportunities available to Employee if
Employee should terminate Employee's employment, the parties are in full and
complete agreement that the following restrictive covenants are fair and
reasonable and are entered into freely, voluntarily, and knowingly. Furthermore,
each party was given the opportunity to consult with independent legal counsel
before entering into this Agreement.
(b) NON-COMPETITION. During the term of Employee's employment with
Employer and for the period ending 12 months after the termination of Employee's
employment with Employer, regardless of the reason therefor, Employee shall not
(whether directly or indirectly, as owner, principal, agent, stockholder,
director, officer, manager, employee, partner, participant, or in any other
capacity) engage or become financially interested in the Watercraft Business in
direct competition with Employer within the Restricted Territory (as defined
below). As used herein, the term "Restricted Territory" shall mean within a 200
mile radius of any location where Employer conducts the Watercraft Business.
(c) NON-SOLICITATION OF EMPLOYEES, CUSTOMERS, OR ACQUISITION
CANDIDATES. During the term of Employee's employment and for a period of 12
months after the termination of Employee's employment with Employee, regardless
of the reason therefor, Employee shall not directly or indirectly, for himself,
or on behalf of, or in conjunction with, any other person, company, partnership,
corporation, or governmental entity, (A) seek to hire or hire any of Employer's
personnel or employees for the purpose of having any such employee engage in
services that are the same as or similar or related to the services that such
employee provided for Employer; (B) call upon any person or entity that is or
has been, within one year prior to such date, a customer of Employer for the
purpose of soliciting or selling products or services in direct competition with
Employer; or (C) call upon any prospective acquisition candidate that Employee
knows or has reason to know was called upon by Employer or for which Employer
made an acquisition analysis for the purpose of acquiring such entity.
(d) CONFIDENTIAL INFORMATION. Employee shall maintain in strict
secrecy all confidential or trade secret information relating to the business of
Employer (the "Confidential Information") obtained by Employee in the course of
Employee's employment, and Employee shall not, unless first authorized in
writing by Employer, disclose to, or use for Employee's benefit or for the
benefit of, any person, firm, or entity at any time either during or subsequent
to the term of Employee's employment, any Confidential Information, except as
required in the performance of Employee's duties on behalf of Employer. For
purposes hereof, Confidential Information shall include without limitation any
materials, trade secrets, knowledge, or information with respect to management,
operational, or investment policies and practices of Employer; any business
methods or forms; any names or addresses of customers or suppliers or data on
customers or suppliers; and any business policies or other information relating
to or dealing with the management, operational, or investment policies or
practices of Employer.
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(e) RETURN OF PROPERTY. Upon the termination of Employee's
employment with Employer for any reason, Employee shall deliver promptly to
Employer all files, lists, books, records, manuals, memoranda, drawings, and
specifications; all cost, pricing, and other financial data; all other written
or printed materials that are the property of Employer (and any copies of them);
and all other materials that may contain Confidential Information relating to
the business of Employer, which Employee may then have in Employee's possession,
whether prepared by Employee or not.
(f) DISCLOSURE OF INFORMATION. Employee shall disclose promptly to
Employer, or its nominee, any and all ideas, designs, processes, and
improvements of any kind relating to the business of Employer, whether
patentable or not, conceived or made by Employee, either alone or jointly with
others, during working hours or otherwise, during the entire period of
Employee's employment with Employer or within six months thereafter.
(g) ASSIGNMENT. Employee hereby assigns to Employer or its nominee,
the entire right, title, and interest in and to all inventions, discoveries, and
improvements, whether patentable or not, that Employee may conceive or make
during Employee's employment with Employer, or within six months thereafter, and
which relate to the business of Employer.
(h) EQUITABLE RELIEF. In the event a violation of any of the
restrictions contained in this Section is established, Employer shall be
entitled to preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits, and other benefits arising
from such violation, which right shall be cumulative and in addition to any
other rights or remedies to which Employer may be entitled. In the event of a
violation of any provision of subsection (b), (c), (f), or (g) of this Section
5, the period for which those provisions would remain in effect shall be
extended for a period of time equal to that period beginning when such violation
commenced and ending when the activities constituting such violation shall have
been finally terminated in good faith.
(i) RESTRICTIONS SEPARABLE. If the scope of any provision of this
Agreement (whether in this Section 5 or otherwise) is found by a Court to be too
broad to permit enforcement to its full extent, then such provision shall be
enforced to the maximum extent permitted by law. The parties agree that the
scope of any provision of this Agreement may be modified by a judge in any
proceeding to enforce this Agreement, so that such provision can be enforced to
the maximum extent permitted by law. Each and every restriction set forth in
this Section 5 is independent and severable from the others, and no such
restriction shall be rendered unenforceable by virtue of the fact that, for any
reason, any other or others of them may be unenforceable in whole or in part.
6. MISCELLANEOUS.
(a) THIRD-PARTY BENEFICIARY. MarineMax shall at all times be and
remain a third-party beneficiary under this Agreement and all documents,
instruments and agreements made and entered into pursuant hereto.
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(b) NOTICES. 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 (i) if
personally delivered, on the date of delivery, (ii) if by facsimile
transmission, upon receipt, (iii) if mailed, three days after deposit in the
United States mail, registered or certified, return receipt requested, postage
prepaid, and addressed as provided below, or (iv) if by a courier delivery
service providing overnight or "next-day" delivery, on the next business day
after deposit with such service addressed as follows:
(1) If to Employer:
MarineMax of Treasure Cove, Inc.
18167 U.S. Highway 19 North, Suite 499
Clearwater, Florida 33764
Attention: Chief Financial Officer
with a copy given in the manner
prescribed above, to:
O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears, P.A.
One East Camelback Road
Phoenix, Arizona 85012
Attention: Robert S. Kant, Esq.
(2) If to Employee:
John Robert Moore, IV
2555 N.E. Catawba Road
Port Clinton, Ohio 43452
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 6 for the giving of notice.
(c) INDULGENCES; WAIVERS. Neither any failure nor any delay on the
part of either party to exercise any right, remedy, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power, or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or privilege,
nor shall any waiver of any right, remedy, power, or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power, or
privilege with respect to any other occurrence. No waiver shall be binding
unless executed in writing by the party making the waiver.
(d) CONTROLLING LAW. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement, shall be governed by
and construed in
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accordance with the laws of the state of Delaware, notwithstanding any Delaware
or other conflict-of-interest provisions to the contrary.
(e) EXECUTION IN COUNTERPART. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
(f) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(h) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(i) BINDING NATURE OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors, and assigns; provided that because the
obligations of Employee hereunder involve the performance of personal services,
such obligations shall not be delegated by Employee. For purposes of this
Agreement successors and assigns shall include, but not be limited to, any
individual, corporation, trust, partnership, or other entity that acquires a
majority of the stock or assets of Employer by sale, merger, consolidation,
liquidation, or other form of transfer. Employer will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of Employer to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that Employer would be required to perform it if no such
succession had taken place. Without limiting the foregoing, unless the context
otherwise requires, the term "Employer" includes all subsidiaries of Employer.
(j) CONSTRUCTION. The parties hereto acknowledge and agree that each
party has participated in the drafting of this Agreement and that this document
has been reviewed by the respective legal counsel for the parties hereto. No
inference in favor of or against, any party shall be drawn from the fact that
one party has drafted any portion hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MARINEMAX OF TREASURE COVE, INC.
By: /s/Michael McLamb
--------------------
Its: Vice President
/s/ John Robert Moore, IV
-------------------------
JOHN ROBERT MOORE, IV
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