SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS
FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. ___________)1/
MarineMax, Inc.
(Name of Issuer)
Common Stock, par value $.001 per share
(Title of Class of Securities)
567908 10 8
(CUSIP Number)
Mary D. Allen
Vice President, General Counsel and Secretary
Brunswick Corporation
1 North Field Court
Lake Forest, Illinois 60045
(847) 735-4822
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 5, 1998
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and
is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g),
check the following box. [ ]
(Continued on following pages)
(Page 1 of 17 Pages)
- --------
1/ The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
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CUSIP No. 567908 10 8 13D Page 2 of 17 Pages
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Brunswick Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER 1,861,200
NUMBER OF 8 SHARED VOTING POWER -0-
SHARES
BENEFICIALLY 9 SOLE DISPOSITIVE POWER 1,861,200
OWNED BY EACH
REPORTING 10 SHARED DISPOSITIVE POWER -0-
PERSON WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,861,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 14.1%
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 567908 10 8 13D Page 3 of 17 Pages
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Item 1. Security and Issuer.
The class of equity securities to which this statement on Schedule
13D (this "Statement") relates is the Common Stock, par value $.001 per
share (the "Common Stock") of MarineMax, Inc., a Delaware corporation
("MarineMax"), with principal executive offices located at 18167 US North
#499, Clearwater, Florida 33764.
Item 2. Identity and Background.
This Statement is filed by Brunswick Corporation, a Delaware
corporation ("Brunswick"). Brunswick is a multinational, branded consumer
products company serving the outdoor and indoor active recreation markets.
Brunswick operates in two business segments: Recreation and Marine. The
Recreation segment consists of the Brunswick Outdoor Recreation Group, the
Life Fitness Division and the Brunswick Indoor Recreation Group. The Marine
segment consists of the Mercury Marine Group, Sea Ray Group and US Marine
Division. The address of the principal business and principal office of
Brunswick is 1 North Field Court, Lake Forest, Illinois 60045.
The following table sets forth the names and positions of each
executive officer of Brunswick. Unless otherwise indicated below, the
address of each executive officer is 1 North Field Court, Lake Forest,
Illinois 60045.
Name Position
---- --------
Peter N. Larson Chairman and Chief Executive Officer
Peter B. Hamilton Senior Vice President and Chief
Financial Officer
Mary D. Allen Vice President, General Counsel
and Secretary
George W. Buckley Corporate Vice President and
President -- Mercury Marine Group
W 6250 Pioneer Road
Fond du Lac, Wisconsin 54936
Kathryn J. Chieger Vice President -- Corporate and
Investor Relations
Jim W. Dawson Corporate Vice President and
President -- Brunswick Outdoor
Recreation Group
6101 E. Apache
Tulsa, Oklahoma 74115
Frederick J. Florjancic, Jr. Corporate Vice President and
President -- Brunswick Indoor
Recreation Group
Dudley E. Lyons Vice President -- Strategic Business
Development
Richard S. O'Brien Vice President and Treasurer
Victoria J. Reich Vice President and Controller
James A. Schenk Vice President -- Acquisitions
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CUSIP No. 567908 10 8 13D Page 4 of 17 Pages
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Robert L. Sell Vice President and Chief Information
Officer
Kenneth B. Zeigler Vice President and Chief Human
Resources Officer
Judith P. Zelisko Vice President -- Tax
William J. Barrington President -- Sea Ray Group
2600 Sea Ray Boulevard
Knoxville, Tennessee 37914
Augustine L. Nieto President -- Life Fitness Division
10601 W. Belmont Avenue
Franklin Park, Illinois 60131
J. Roger Patterson President -- US Marine Division
17825 59th Avenue, N.E.
Arlington, Washington 98223
The following table sets forth the names of the directors of
Brunswick, their principal employment and the name and address of any
corporation or other organization in which such employment is conducted.
<TABLE>
<CAPTION>
Principal Name and Address
Name Employment where Employed
---- ---------- ----------------
<S> <C> <C>
Peter N. Larson Chairman and Chief Brunswick Corporation
Executive Officer 1 North Field Court
Lake Forest, Illinois 60045
Nolan D. Archibald Chairman of the Board, The Black & Decker Corporation
President and Chief 701 E. Joppa Road
Executive Officer Towson, Maryland 21286
Jeffrey L. Bleustein President and Chief Harley-Davidson, Inc.
Executive 3700 W. Juneau Ave.
Milwaukee, Wisconsin 53208
P.O. Box 653
Milwaukee, Wisconsin 53201
Kenneth Roman Independent Consultant 444 Madison Ave., 19th Floor
New York, New York 10022
Bettye Martin Musham President and Chief Gear Holdings, Inc.
Executive Officer Room 3701, 37th Floor
512 Seventh Avenue
New York, New York 10018
Peter Harf Chairman and Chief Joh. A. Benckiser GmbH and
Executive Officer Coty Inc.
1325 Sixth Avenue, 34th Floor
New York, New York 10019
Jay W. Lorsch Professor Harvard University Graduate
School of Business Administration
Morgan Hall 337
Boston, Massachusetts 02163
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CUSIP No. 567908 10 8 13D Page 5 of 17 Pages
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<CAPTION>
Principal Name and Address
Name Employment where Employed
---- ---------- ----------------
<S> <C> <C>
Michael J. Callahan Executive Vice President FMC Corporation
and Chief Financial 200 E. Randolph Dr., 67th Floor
Officer Chicago, Illinois 60601
Manuel A. Fernandez Chairman and Chief Gartner Group, Inc.
Executive Officer 56 Top Gallant Road
P.O. Box 10212
Stamford, Connecticut 06904
Rebecca P. Mark Vice Chairman Enron Corp.
333 Clay Street, 21st Floor
Houston, Texas 77002
Roger W. Schipke Private Investor 1206 Mazeland Drive
Bel Air, Maryland 21015
</TABLE>
During the last five years, neither Brunswick nor any of its
directors or executive officers has been convicted in any criminal
proceeding.
During the last five years, neither Brunswick nor any of its
directors or executive officers has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result
of such proceeding is or was subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, Federal or State securities laws or finding any violation with
respect to such laws.
Each of the directors and executive officers of Brunswick is a
citizen of the United States, with the exceptions of Peter Harf, who is a
citizen of Germany and George W. Buckley, who is a citizen of the United
Kingdom.
Item 3. Source and Amount of Funds or Other Consideration.
The Common Stock to which this Statement relates was purchased by
Brunswick pursuant to the Restated Agreement Relating To The Purchase Of
MarineMax Common Stock, dated April 28, 1998 (the "Purchase Agreement"),
entered into by and between MarineMax and Brunswick. The Purchase Agreement
is discussed in Item 6. Pursuant to the Purchase Agreement, Brunswick paid
U.S. $21,636,450 for the Common Stock. The funds for the purchase were
obtained from the working capital of Brunswick.
Item 4. Purpose of Transaction.
MarineMax was formed in January of 1998 to acquire several dealers
that operate in the recreational boat industry. MarineMax currently
consists of the following six wholly owned subsidiaries: Bassett Boat
Company of Florida; Louis DelHomme Marine; Gulfwind USA, Inc.; Gulfwind
South, Inc.; Harrison's Boat Center, Inc. and Harrison's Marine Centers of
Arizona, Inc.; and Stovall Marine, Inc. (the "Merged Companies"). MarineMax
is the largest recreational boat dealer in the United States, and the
nation's largest retailer of Sea Ray, Boston Whaler, and other boats
manufactured by Brunswick. Sales of new Brunswick boats accounted for 84%
of MarineMax's new boat sales in calendar 1997.
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CUSIP No. 567908 10 8 13D Page 6 of 17 Pages
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At the time of the acquisitions described above, Brunswick had
dealer agreements in place with each of the Merged Companies that required
the dealer to obtain Brunswick's consent to any change in the ownership of
the dealer. Brunswick and MarineMax disputed the applicability of the
change in control provisions of the dealer agreements. Brunswick was also
concerned about its negotiating posture in light of the large percentage of
Brunswick boats that MarineMax sold through its six dealers.
In order to avoid a long and costly dispute, Brunswick consented
to the mergers in return for MarineMax's promise to pay Brunswick $15.0
million no later than December 31, 1998. In addition, in order to foster a
long-term and mutually beneficial relationship between MarineMax and
Brunswick, both parties entered into several agreements that allow
Brunswick to participate in the ownership and governance of MarineMax.
These agreements are discussed in greater detail in Item 6. Pursuant to the
Purchase Agreement, Brunswick was allowed to acquire a 14.1% equity
interest in MarineMax.
Except as set forth above or as set forth in Item 6 of this
Statement, Brunswick has no present plans or proposals which may relate to
or would result in any of the following:
(a) The acquisition by any person of additional securities of
the issuer, or the disposition of securities of the issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the issuer or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the
issuer or of any of its subsidiaries;
(d) Any change in the present board of directors or management of
the issuer, including any plans or proposals to change the number or term
of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or
dividend policy of the issuer;
(f) Any other material change in the issuer's business or
corporate structure, including but not limited to, if the issuer is a
registered closed-end investment company, any plans or proposals to make
any changes in its investment policy for which a vote is required by
Section 13 of the Investment Company Act of 1940;
(g) Changes in the issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the issuer by any person;
(h) Causing a class of securities of the issuer to be delisted
from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of the issuer becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
<PAGE>
CUSIP No. 567908 10 8 13D Page 7 of 17 Pages
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Item 5. Interest in Securities of the Issuer.
(a) 1,861,200 shares of MarineMax Common Stock
(14.1%) are beneficially owned by Brunswick.
(b) Brunswick has sole voting and dispositive power
with respect to all shares of MarineMax Common
Stock identified in Item 5(a).
(c) None.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
Purchase Agreement
MarineMax and Brunswick entered into a Restated Agreement Relating
To The Purchase Of MarineMax Common Stock, dated as of April 28, 1998 (the
"Purchase Agreement"). The Purchase Agreement set forth the terms under
which Brunswick was given the opportunity to acquire an ownership interest
in MarineMax. The following summary does not purport to be complete and is
qualified in its entirety by the Purchase Agreement which has been filed as
an exhibit to this Statement.
At the time of execution of the Purchase Agreement, MarineMax
intended to close an initial public offering of its Common Stock ("IPO") as
soon as practical. Pursuant to the Purchase Agreement, MarineMax afforded
Brunswick the opportunity, on an all or none basis, to purchase shares of
the Common Stock of MarineMax that would constitute 14.1% of the issued and
outstanding Common Stock of MarineMax after giving effect to the IPO
including any overallotment option granted to the underwriters of the IPO.
If Brunswick determined to purchase the Common Stock, it was required to
purchase the Common Stock for cash contemporaneously with the initial
closing of the IPO and the closing of any overallotment options granted to
the underwriters of the IPO. The purchase was to be at the IPO price, less
underwriting discounts and commissions.
Brunswick purchased the Common Stock pursuant to the Purchase
Agreement on June 5, 1998.
Stockholders' Agreement
MarineMax, Brunswick, William H. McGill Jr., Richard R. Bassett,
Louis R. DelHomme and Richard C. LaManna Jr. (the four individuals known
collectively as the "Senior Founders") entered into a Stockholders'
Agreement, dated as of April 28, 1998 (the "Stockholders' Agreement").
After the IPO, Brunswick and the Senior Founders owned certain issued and
outstanding shares of Common Stock of MarineMax. The Purpose of the
Stockholders' Agreement was to set forth the rights of Brunswick and the
Senior Founders to purchase or acquire certain shares of Common Stock and
to encumber, sell, transfer, or otherwise dispose of certain shares
<PAGE>
CUSIP No. 567908 10 8 13D Page 8 of 17 Pages
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of Common Stock whenever acquired. The following summary does not purport
to be complete and is qualified in its entirety by the Stockholders'
Agreement which has been filed as an exhibit to this Statement.
Subject to certain exceptions, the Stockholders' Agreement
restricts the right of the senior executives (consisting of William H.
McGill Jr., Richard R. Bassett, Louis R. DelHomme Jr., Richard C. LaManna
Jr. and Paul Graham Stovall) and Brunswick to sell Common Stock without
first complying with the provisions of the agreement. Under the
Stockholders' Agreement, the senior executives may not sell any Common
Stock without first offering to sell the Common Stock to Brunswick if
Brunswick has not reached its Targeted Investment Percentage of 19% of the
then-outstanding shares of Common Stock and then to MarineMax, the other
senior executives, and Brunswick. Likewise, Brunswick may not sell any
Common Stock without first offering to sell the Common Stock to MarineMax
and the senior executives. In each case, the price per share will be the
average closing price of the Common Stock on the New York Stock Exchange
during the period commencing on the trading day the offer is made and
ending on the day of the acceptance of the offer.
The Stockholders' Agreement does not restrict transfers of Common
Stock resulting from a transaction that involves a change in control of
MarineMax or a transaction approved by a majority of the Board of
Directors. The Stockholders Agreement excepts each party from the resale
restrictions for sales of Common Stock in any calendar year of up to the
lesser of 1% of the issued and outstanding Common Stock or 10% of the
shares owned by the party. In addition, the senior executives will not be
restricted from selling Common Stock if, at the time of the proposed sale,
Brunswick owns the Targeted Investment Percentage and a majority of the
members of the Board of Directors constitutes the senior executives and
Other Designated Members (as described below) or if the Dealer Agreements
(Sales and Service Agreements, dated April 28, 1998, entered into by
Brunswick, through its Sea Ray division, and MarineMax, through each of the
Merged Companies) between Brunswick and the Merged Companies are not then
in full force and effect. As defined in the Stockholders' Agreement, the
term "Other Designated Member" means any individual designated by MarineMax
to serve as a member of its Board of Directors and agreed to by Brunswick,
which approval will not be unreasonably withheld by Brunswick taking into
account whether such individual has the requisite knowledge and experience
in business and financial matters as to be reasonably capable of serving as
a director of a public corporation with revenue, assets, and operations
comparable to MarineMax. All members of MarineMax's current Board of
Directors are senior executives, and the two proposed directors have been
approved by Brunswick.
The Stockholders' Agreement also gives Brunswick the right to
achieve and maintain its Targeted Investment Percentage through open market
purchases and through purchases in any future stock offerings by MarineMax.
The Stockholders' Agreement also grants Brunswick a right of first refusal
on any proposed sale of MarineMax's capital stock to any person that
competes with the principal lines of Brunswick's marine business.
Under the Stockholders' Agreement, Brunswick and the senior
executives also have agreed to vote their Common Stock in all elections for
directors of MarineMax for board nominees proposed by MarineMax's Board of
Directors if such nominees are either senior executives or Other Designated
Members and if, assuming the election of such persons, the majority of the
Board of Directors will consist of the senior executives and Other
Designated Members. In addition, Brunswick and the senior executives have
agreed to vote their Common Stock in favor of all proposals and
recommendations made by MarineMax's Board of Directors and submitted to a
vote of MarineMax's stockholders at an annual or special meeting as long as
<PAGE>
CUSIP No. 567908 10 8 13D Page 9 of 17 Pages
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such proposals or recommendations were approved by a majority of the Board
of Directors of MarineMax and a majority of MarineMax's Board of Directors
consists of the senior executives and Other Designated Members.
The Stockholders' Agreement has a term of 10 years. The rights of
Brunswick, however, under the Stockholders' Agreement are applicable only
during such time as the Dealer Agreements remain in full force and effect.
Governance Agreement
MarineMax and Brunswick entered into a Governance Agreement, dated
as of April 28, 1998 (the "Governance Agreement"). Pursuant to the
Governance Agreement, terms and conditions are placed on Brunswick's
participation in the corporate governance of MarineMax, including
restrictions on the acquisition of additional shares of Common Stock of
MarineMax. The following summary does not purport to be complete and is
qualified in its entirety by the Governance Agreement which has been filed
as an exhibit to this Statement.
The Governance Agreement generally restricts Brunswick from owning
more than its Targeted Investment Percentage of 19% of the outstanding
Common Stock. The Governance Agreement prohibits Brunswick from (i) seeking
to affect or influence the control of the management or Board of Directors
of MarineMax or its business, operations, or policies; (ii) entering into a
voting trust or other agreement respecting the voting of Common Stock other
than the Stockholders' Agreement; (iii) making or participating in any
solicitation of proxies to vote Common Stock or seeking to influence any
person to vote Common Stock or being a participant in any solicitation in
opposition to the recommendation of the majority of MarineMax's Board of
Directors with respect to any matter; (iv) initiating, proposing, or
otherwise soliciting any stockholder proposals; (v) entering into any group
or otherwise acting in concert with any person for the purpose of
acquiring, holding, voting, or disposing of any Common Stock; or (vi)
encouraging, supporting, or participating in any tender or exchange offer
unless at least 51% of the then-outstanding Common Stock (excluding any
Common Stock owned by Brunswick) has been tendered in response to such
offer or MarineMax announces that it supports such offer.
The Governance Agreement terminates upon the earlier of (a) 10
years from the date of the agreement; (b) such time, if any, that a
majority of the Board of Directors has not consisted of the senior
executives and Other Designated Members for a period of 60 consecutive
days; or (c) the date on which Brunswick has owned less than 5% of the
Common Stock for two consecutive years; provided that Brunswick may take no
actions inconsistent with the agreement for a period of six months after
the termination by it of the Dealer Agreements for cause. The Governance
Agreement also will be inoperative during any period that Brunswick owns
less than 5% of the Common Stock.
Acquisition Agreement
MarineMax and Brunswick entered into an Agreement Relating To
Acquisitions, dated April 28, 1998 (the "Acquisition Agreement"). Pursuant
to the Acquisition Agreement, Brunswick is given the right to consent to
the acquisition by MarineMax of additional Brunswick boat dealers. The
following summary does not purport to be complete and is qualified in its
entirety by the Acquisition Agreement which has been filed as an exhibit to
this Statement.
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CUSIP No. 567908 10 8 13D Page 10 of 17 Pages
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The Acquisition Agreement provides for Brunswick to cooperate in
good faith and not to unreasonably withhold its consent to the acquisitions
each year by MarineMax of Sea Ray boat dealers with aggregate total revenue
not exceeding 20% of MarineMax's revenue in its prior fiscal year. The
Stovall Acquisition will not count against the 20% benchmark. Any
acquisitions in excess of the 20% benchmark will be at Brunswick's
discretion. In the event that MarineMax's sales of Sea Ray boats exceed 49%
of the sales of Sea Ray boats by all Sea Ray boat dealers (including
MarineMax) in any fiscal year of Brunswick, the agreement provides that
MarineMax and Brunswick will negotiate in good faith the standards for
acquisitions of Sea Ray boat dealers by MarineMax during Brunswick's next
succeeding fiscal year but that Brunswick may grant or withhold its consent
to any such acquisition in its sole discretion for as long as MarineMax's
Sea Ray boat sales exceed the 49% benchmark.
Item 7. Material to be Filed as Exhibits.
(a) Restated Agreement Relating To The Purchase Of MarineMax
Common Stock, dated April 28, 1998, by and between
MarineMax, Inc. and Brunswick Corporation.
(b) Stockholders' Agreement, dated April 28, 1998,
by and among MarineMax, Inc., Brunswick
Corporation, and Senior Founders (incorporated by reference
to Exhibit 10.9 to MarineMax's Registration Statement on
FormS-1, Registration No. 333-47873).
(c) Governance Agreement, dated April 28, 1998, by and
between MarineMax, Inc. and Brunswick Corporation
(incorporated by reference to Exhibit 10.10 to MarineMax's
Registration Statement on Form S-1, Registration No
333-47873)
(d) Agreement Relating To Acquisitions, dated April 28,
1998, by and between MarineMax, Inc. and Brunswick
Corporation (incorporated by reference to Exhibit 10.11
to MarineMax's Registration Statement on Form S-1,
Registration No. 333-47873).
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CUSIP No. 567908 10 8 13D Page 11 of 17 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Date: June 29, 1998 BRUNSWICK CORPORATION
By: /s/ Mary D. Allen
-------------------------
Mary D. Allen
Vice President, General Counsel
and Secretary
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CUSIP No. 567908 10 8 13D Page 12 of 17 Pages
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EXHIBIT INDEX
No. Page
(1) Restated Agreement Relating To The Purchase Of 13
MarineMax Common Stock, dated April 28, 1998, by
and between MarineMax, Inc. and Brunswick
Corporation.
(2) Stockholders' Agreement, dated April 28, 1998,
by and among MarineMax, Inc., Brunswick
Corporation, and Senior Founders (incorporated
by reference to Exhibit 10.9 to MarineMax's
Registration Statement on FormS-1, Registration
No. 333-47873).
(3) Governance Agreement, dated April 28, 1998, by and
between MarineMax, Inc. and Brunswick Corporation.
(incorporated by reference to Exhibit 10.10 to
MarineMax's Registration Statement on Form S-1,
Registration No 333-47873)
(4) Agreement Relating To Acquisitions, dated April 28,
1998, by and between MarineMax, Inc. and Brunswick
Corporation (incorporated by reference to Exhibit 10.11
to MarineMax's Registration Statement on Form S-1,
Registration No. 333-47873).
RESTATED AGREEMENT RELATING TO THE PURCHASE
OF MARINEMAX COMMON STOCK
between
MARINEMAX, INC.
and
BRUNSWICK CORPORATION
April 28, 1998
<PAGE>
RESTATED AGREEMENT RELATING TO THE PURCHASE
OF MARINEMAX COMMON STOCK
RESTATED AGREEMENT RELATING TO THE PURCHASE OF MARINEMAX COMMON STOCK
dated as of the 28th day of April 1998 between MARINEMAX, INC., a Delaware
corporation ("MarineMax"); and BRUNSWICK CORPORATION, a Delaware
corporation for itself and on behalf of its subsidiaries and affiliates
including the Sea Ray Division of Brunswick ("Brunswick").
R E C I T A L S
A. MarineMax has completed merger transactions (the "Mergers")
involving Bassett Boat Company of Florida, Louis DelHomme Marine, Gulfwind
Marine, USA, Gulfwind Marine South, and Harrison's Marine Centers as well
as their affiliated and subsidiary companies (collectively, the "Merged
Companies") as a result of which the Merged Companies became wholly owned
subsidiaries of MarineMax.
B. The Merged Companies sell and service various boats
manufactured by Brunswick or subsidiaries or divisions of Brunswick
("Brunswick Affiliates," which includes the Sea Ray Division of Brunswick),
including Sea Ray pleasure boats, Boston Whaler fishing boats, and Baja
high-performance boats pursuant to various dealer agreements of even date
(the "Dealer Agreements") between the Merged Companies and the relevant
Brunswick Affiliates.
C. MarineMax and Brunswick entered into a settlement agreement
dated as of March 12, 1998 (the "Settlement Agreement") pursuant to which
Brunswick and the Brunswick Affiliates consented to a change in the
ownership of each of the Merged Companies resulting from the Mergers.
D. It is the intention of MarineMax to close an initial public
offering of its Common Stock (the "IPO") as soon as practicable.
E. MarineMax intends that its growth will be achieved both
internally and through acquisitions.
F. MarineMax and Brunswick desire to reach an understanding
relating to a long-term relationship between MarineMax on the one hand and
Brunswick and the Brunswick Affiliates including the Sea Ray Division on
the other hand, including long-term dealer agreements, an ownership
interest by Brunswick in MarineMax, provisions relating to the purchase and
sale of MarineMax Common Stock in certain circumstances, and provisions
relating to the governance of MarineMax.
G. This Agreement sets forth the terms under which Brunswick will
have the opportunity to acquire an ownership interest in MarineMax.
A G R E E M E N T
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1. APPROVAL OF THE IPO. Brunswick hereby agrees that the IPO
will not violate the terms of the Dealer Agreements.
2. PURCHASE BY BRUNSWICK OF INITIAL PUBLIC OFFERING STOCK OF
MARINEMAX. MarineMax shall afford Brunswick, on an all or none basis, the
opportunity to purchase shares of the Common Stock of MarineMax that will
constitute 14.1% of the issued and outstanding Common Stock of MarineMax after
1
<PAGE>
giving effect to the IPO including any overallotment option granted to the
underwriters of the IPO (the "Initial Ownership Percentage"). As soon as
practicable after the date of this Agreement, Brunswick shall inform
MarineMax whether or not it intends to purchase such shares subject to the
early termination or expiration of the pre-merger notification period under
the Hart-Scott-Rodino Antitrust Improvement Act of 1976, the effectiveness
of the registration statement filed with the Securities and Exchange
Commission relating to the IPO including the shares to be issued to
Brunswick (the "Registration Statement"), and the delivery of a final
prospectus covering the shares to be issued to Brunswick, but such
indication shall not constitute a legal obligation of Brunswick to purchase
the shares and MarineMax shall have no recourse against Brunswick if
Brunswick does not purchase the shares. If Brunswick determines to purchase
the shares, Brunswick shall purchase the shares for cash contemporaneously
with the initial closing of the IPO and the closing of any overallotment
options granted to the underwriters of the IPO. The purchase will be at the
IPO price, less underwriting discounts and commissions. The shares to be
issued to Brunswick may be issued under a registration statement different
from the Registration Statement covering the shares issued to the public in
the IPO in order to reflect the different manner of distribution (together,
the "Registration Statements"). If Brunswick determines to purchase the
shares following the effectiveness of the Registration Statement and to the
extent permitted by applicable law and regulations, Brunswick will execute
standard agreements reasonably acceptable to Brunswick confirming its
suitability under applicable securities laws to make the purchase, agreeing
to a six-month lockup for any shares purchased by it, and providing to
MarineMax and MarineMax's underwriters with Brunswick's commitment to
purchase such shares. If Brunswick does not purchase the Initial Ownership
Percentage as contemplated hereby, Brunswick shall not purchase any shares
of Common Stock of MarineMax for at least six months after the completion
of the IPO. Any commitment by Brunswick to purchase shares shall expire on
the earlier of (a) the completion of the IPO, (b) the withdrawal of the
Registration Statement, (c) the occurrence of a material adverse change in
the business and financial condition of MarineMax since the date of such
Registration Statement, or (d) six months from the date of the commitment.
3. INDEMNIFICATION OF BRUNSWICK. MarineMax hereby indemnifies and
holds harmless Brunswick and each person who controls Brunswick (within the
meaning of Section 15 of the Securities Act of 1933) against any and all
losses, claims, damages, liabilities, and expenses (including reasonable
costs of investigation and counsel fees) caused by (a) any untrue statement
of a material fact contained in the Registration Statements in the form
declared effective or in any amendment or supplement thereto except for
information relating to Brunswick furnished in writing by Brunswick
expressly for use in connection with the Registration Statements or in any
amendment or supplement thereto, or (b) any omission to state in the
Registration Statements any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading, excepting such information
furnished in writing by Brunswick.
4. GENERAL.
(a) NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed given when delivered
against receipt, or upon the receipt of a facsimile copy, or three days
after being deposited in the United States mail, postage prepaid,
registered or certified mail, addressed as follows:
If to the Company, to: With a copy to:
MarineMax, Inc. O'Connor, Cavanagh, Anderson,
Attn: Mr. William H. McGill Jr. Killingsworth & Beshears, P.A.
18167 US North #499 Attn: Robert S. Kant, Esq.
Clearwater, Florida 33764 One East Camelback Road, Suite 1100
Tel: 813-531-1700 Phoenix, Arizona 85012
Fax: 813-531-0123 Tel: 602-263-2606
Fax: 602-263-2900
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If to Brunswick, to: With a copy to:
Brunswick Corporation Brunswick Corporation
Attn: Mr. Peter Larson Attn: General Counsel
1 North Field Court 1 North Field Court
Lake Forest, Illinois 60045 Lake Forest, Illinois 60045
Tel: (847) 735-4822 Tel: (847) 735-4305
Fax: (847) 735-4425 Fax: (847) 735-4050
and/or to such other respective addresses and/or addressees as may be
designated by notice given in accordance with the provisions of this
Section.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
assigns, legal representatives, executors, heirs and successors; provided,
however, that no party hereto shall have the right to assign any right
hereunder or delegate any obligation hereunder, in whole or in part,
without the prior written consent of the other parties hereto, and any
attempt to do so shall be void.
(c) AMENDMENT, MODIFICATION, OR WAIVER. No amendment,
modification, or waiver of any condition, provision, or term of this
Agreement shall be valid or of any effect unless made in writing, signed by
the party or parties to be bound, and specifying with particularity the
nature and extent of such amendment, modification, or waiver. Failure on
the part of any party to complain of any act or failure to act of another
party or to declare another party in default, irrespective of how long such
failure continues, shall not constitute a waiver by such party of its
rights hereunder. Any waiver by any party of any default of another party
shall not affect or impair any right arising from any other or subsequent
default. Nothing herein shall limit the remedies and rights of the parties
hereto under and pursuant to this Agreement.
(d) SEVERABLE PROVISIONS; ENFORCEABILITY. Each provision of this
Agreement is intended to be severable. If any provision hereof shall be
declared by a court of competent jurisdiction to be illegal, unenforceable,
or invalid for any reason whatsoever, such illegality, unenforceability, or
invalidity shall not affect the validity of the remainder of this
Agreement.
(e) ENTIRE AGREEMENT. Except for the Dealer Agreements, the
Stockholders' Agreement, the Governance Agreement, and the Agreement
Relating to Acquisitions, this Agreement, including the exhibits and
schedules hereto, contains the entire understanding and agreement among the
parties hereto with respect to the subject matter hereof, and supersedes
all prior agreements and understandings, express or implied, oral or
written, among the parties with respect to such subject matter. The express
terms of this Agreement shall control and supersede any course of
performance or usage of the trade inconsistent with any of the terms
hereof. Each of the exhibits and schedules hereto is incorporated herein by
this reference and constitutes a part of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, and all of which together shall
constitute one and the same agreement. This Agreement shall become binding
when one or more counterparts have been signed by each of the parties
hereto and delivered to the other parties hereto.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the state of
Delaware, regardless of any applicable conflict-of-law rules to the
contrary.
(h) CONSTRUCTION. The parties hereto acknowledge that each party
was represented by legal counsel (or had the opportunity to be represented
by legal counsel) in connection with this Agreement and that each of them
and their counsel have reviewed and revised this Agreement, or have had an
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opportunity to do so, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or any
exhibits hereto or thereto.
(i) ADDITIONAL ACTIONS. Each party hereto agrees to do all acts
and things and to make, execute, and deliver such written instruments and
documents as shall from time to time be reasonably required to carry out
the terms of this Agreement.
(j) REMEDIES CUMULATIVE. The remedies of the parties hereto under
this Agreement are cumulative and shall not exclude any other remedies to
which any party may be lawfully entitled.
(k) AUTHORITY. Each individual signing below personally represents
that he or she has full authority to bind the party or parties on whose
behalf he or she is signing.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
MARINEMAX, INC.
By: /s/
Name: _____________________________
Title: ____________________________
BRUNSWICK CORPORATION
By: /s/
Name: _____________________________
Title: ____________________________
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