UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
MAKO MARINE INTERNATIONAL, INC.
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
560878 10 0
(CUSIP Number)
KENNETH BURROUGHS
TRACKER MARINE, L.P.
2500 EAST KEARNEY
SPRINGFIELD, MISSOURI 65803
(417) 873-5900
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
Copy to:
ROBERT H. WEXLER, ESQ.
GALLOP, JOHNSON & NEUMAN, L.C.
101 SOUTH HANLEY, SUITE 1600
ST. LOUIS, MISSOURI 63105
(314) 862-1200
AUGUST 7, 1997
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Page 1 of 5 Pages
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SCHEDULE 13D
1. NAME OF REPORTING PERSON
SS OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tracker Marine, L.P.
43-1686170
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 ITEMS 2(d) OR 2(e) |_|
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri
NUMBER OF 7. SOLE VOTING POWER
SHARES 7,330,000
BENEFICIALLY
OWNED BY 8. SHARED VOTING POWER
EACH 0
REPORTING
PERSON 9. SOLE DISPOSITIVE POWER
WITH 7,330,000
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,330,000 shares of Common Stock.
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) APPROXIMATELY 81.0%.
Based upon 9,055,000 shares of Mako Common Stock outstanding (including the
6,400,000 issued upon consummation of the transactions described in Item 3
hereof) as of May 12, 1997, as reported by the Issuer.
14. TYPE OF REPORTING PERSON
PN
Page 2 of 5 Pages
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Item 4. Purpose of Transaction.
The purpose of Tracker's acquisition of the CAVC Shares and the Mako
Shares is to control and operate Mako. Tracker, through its wholly-owned
subsidiary Trackaq, Inc. ("Trackaq"), has adopted a plan of merger (the "Plan")
providing for the merger of Trackaq into Mako, with Mako the survivor. Under
Florida law, no authorization or approval of the directors or shareholders of
Mako is required to consummate the merger as provided in the Plan. Under the
Plan (i) the directors of Trackaq would become the directors of the survivor,
and (ii) the articles of association and bylaws of Mako would remain the
articles of association and bylaws of the survivor. Under the Plan, current
shareholders of Mako other than Tracker and holders of warrants and other
derivative securities of Mako will be entitled to receive cash for their
securities. Upon consummation of the merger, Mako will become a wholly-owned
subsidiary of Tracker.
The Board of Directors of Mako on this date has authorized Mako to
terminate the registration of its securities under the Securities Exchange Act
of 1934, as amended.
Except as set forth herein, neither Tracker, JLM, nor any of JLM's
executive officers has any current plans or proposals that relate to or would
result in: (a) the acquisition by any person of additional shares of Mako Common
Stock or the disposition of shares of Mako Common Stock; (b) an extraordinary
corporate transaction, such as a merger, reorganization, or liquidation,
involving Mako or any of its subsidiaries; (c) a sale or transfer of any
material amount of assets of Mako; (d) any change in the present board of
directors or management of Mako, including plans, or proposals to change the
number or term of directors or to fill any vacancies on the board; (e) any
material change in the present capitalization or dividend policy of Mako; (f)
any other material change in Mako's business or corporate structure; (g) any
change in Mako's charter or bylaws, or instruments corresponding thereto, or
other actions that may impede the acquisition of control of Mako by any person,
(h) causing a class of securities of Mako to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an interdealer
quotation system of a registered national securities association; (i) a class of
equity securities of Mako becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended;
or (j) any action similar to any of those enumerated above. Notwithstanding the
foregoing, Tracker may acquire additional shares of Mako Common Stock or effect
any of the aforedescribed transactions if, in the future, Tracker should
determine that such action would be in its best interest.
Page 3 of 5 Pages
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Item 7. Material to be Filed as Exhibits.
The following exhibits are filed as part of this Schedule 13D:
Exhibit 2.1 -- Mako Stock Purchase Agreement (including the
form of Anti-Dilution Option attached as
Exhibit thereto).
Exhibit 2.2 -- CAVC Stock Purchase Agreement.
Exhibit 2.3 -- Letter Agreement dated January 16, 1997.
Exhibit 2.4 -- Plan of Merger adopted by Trackaq, Inc.
Page 4 of 5 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.
TRACKER MARINE, L.P.
By: JLM Management Company,
its General Partner
By: /s/ Kenneth Burroughs
------------------------------
Name: Kenneth Burroughs
Title: President
Dated: August 8, 1997
Page 5 of 5 Pages
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EXHIBIT INDEX
Exhibit Description
2.1 Stock Purchase Agreement, dated
December 4, 1996, by and between
Tracker Marine, L.P. and Mako Marine
International, Inc. (including the
form of Anti-Dilution Option
attached as Exhibit A thereto).
2.2 Stock Purchase Agreement, dated
December 4, 1996, by and between
Tracker Marine, L.P. and Credit
America Venture Capital, Inc.
2.3 Letter Agreement, dated January 16,
1997, amending the Mako Stock
Purchase Agreement and the CAVC
Stock Purchase Agreement.
2.4 Plan of Merger adopted by Trackaq,
Inc.
PLAN OF MERGER
TRACKAQ, Inc. ("Merging Company"), a business corporation organized
under the laws of the State of Florida, is a wholly-owned subsidiary of Tracker
Marine, L.P. ("Parent"), a limited partnership organized under the laws of the
State of Missouri.
Merging Company owns of record and beneficially 7,330,000 shares of the
$.01 par value common stock of Mako Marine International, Inc. ("Subsidiary"), a
business corporation organized under the laws of the State of Florida,
representing approximately 81% of the issued and outstanding shares of the $.01
par value common stock of Mako (the "Subsidiary Common Stock").
The authorized capital stock of Subsidiary consists of (i) 15,000,000
shares of Subsidiary Common Stock, of which 9,055,000 shares are issued and
outstanding, and (ii) 2,000,000 shares of preferred stock, of which no shares
are issued and outstanding.
In addition to the issued and outstanding shares of Subsidiary Common
Stock, there are outstanding warrants and options to purchase an aggregate of
3,622,900 shares of Subsidiary Common Stock (collectively, the "Derivative
Securities"), including publicly traded redeemable common stock purchase
warrants to acquire an aggregate of 3,100,000 shares of Subsidiary Common Stock
(the "Public Warrants").
The Board of Directors of JLM Management Company, a privately-held
business corporation organized under the laws of the State of Missouri ("JLM")
and the sole general partner of Tracker, has approved the merger of Merging
Company with and into Subsidiary (the "Merger"), with Subsidiary as the
surviving corporation, pursuant to the terms of this Plan of Merger (the
"Plan").
The Florida Corporation Law does not require that this Plan be
approved, authorized or otherwise acted upon by the shareholders or the Board of
Directors of Subsidiary.
Parent has concluded that the Merger is fair to the holders
(collectively, the "Holders") of the "Public Shares" (as hereinafter defined),
Public Warrants and the other Derivative Securities (collectively, the
"Subsidiary Securities").
1. MERGER
1.1 Upon the terms and subject to the conditions hereof, Merging
Company and Subsidiary shall, on the "Effective Date" (as hereinafter defined),
be merged into a single corporation in accordance with Section 607.1104 and all
other applicable provisions of the Florida Corporation Law by means of the
merger of Merging Company with and into Subsidiary. At the "Effective Time" (as
hereinafter defined), Subsidiary shall be the surviving corporation (the
"Surviving Corporation"), and the separate existence of Merging Company will
cease. The Merger shall have the effects set forth in Section 607.1106 of the
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Florida Corporation Law. At the Effective Time, Subsidiary shall become a
wholly-owned subsidiary of Parent.
1.2 Not less than thirty (30) days prior to the Effective Date,
Subsidiary shall cause a copy of the Plan, together with a transaction
statement, describing, among other things, the Merger transaction, the purpose
of and reasons for the Merger, the determination of the fairness of the Merger,
the rights of Holders to dissent and the procedure for so doing and certain
other information relative to the Merger (the "Transaction Statement") to be
mailed to each Holder of Subsidiary Securities who does not waive such mailing
requirement in writing. A copy of this Plan and Sections 607.1301, 607.1302 and
607.1320 of the Florida Corporation Law (the "Florida Dissenters' Rights
Statute") shall be attached to and made a part of the Transaction Statement.
2. ARTICLES OF INCORPORATION, BYLAWS, DIRECTORS AND OFFICERS
2.1 The Articles of Incorporation of Subsidiary in effect at the
Effective Time shall continue in full force and effect, unless and until
subsequently amended, as the Articles of Incorporation of Surviving Corporation.
2.2 The Bylaws of Subsidiary in effect at the Effective Time shall
continue in full force and effect, unless and until subsequently amended, as the
Bylaws of Surviving Corporation.
2.3 The Directors and Officers of Merging Company in office at the
Effective Time shall become the Directors and Officers of Surviving Corporation
and shall continue in office until their successors have been duly elected or
appointed and qualified, subject to removal, resignation or such other change as
may otherwise occur, or as otherwise provided by law, and at the Effective Time,
all other officers and directors of Subsidiary shall thereupon cease to hold
office.
3. STATUS OF OUTSTANDING CAPITAL STOCK
3.1 The designation and number of outstanding shares of capital stock
of each of Subsidiary and Merging Company is as follows:
(a) There are 9,055,000 shares of Subsidiary Common Stock
issued and outstanding. Holders of Subsidiary Common Stock are not
entitled to vote on the Merger.
(b) Merging Company has 100 shares of no par value common
stock ("Merging Company Common Stock") issued and outstanding, all of
which is owned of record and beneficially by Parent. The sole holder of
the Merging Company Common Stock is not entitled to vote on the Merger.
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3.2 At the Effective Time, by virtue of the Merger and without any
action on the part of Merging Company, Surviving Corporation or Parent:
(a) Each share of Subsidiary Common Stock issued and
outstanding immediately prior to the Effective Date of the Merger,
other than (i) shares to be cancelled pursuant to Section 3.2(b)
hereof, and (ii) shares constituting "Dissenting Securities, as defined
in Section 5.2 (such shares, except for those described in clauses (i)
and (ii), being collectively called the "Public Shares") shall be
cancelled and extinguished and be converted into and become solely a
right to receive $1.25 in cash without interest thereon, payable to the
holder thereof upon surrender of the certificates (or other indicia of
ownership of shares acceptable to Surviving Corporation) formerly
representing such Public Shares as provided in Section 5 hereof.
(b) Each share of Subsidiary Common Stock issued and
outstanding immediately prior to the Effective Date of the Merger and
held by Merging Company shall be cancelled and retired, and no payment
shall be made with respect thereto.
(c) Each share of Merging Company Common Stock owned by Parent
issued and outstanding immediately prior to the Effective Date shall be
converted into one (1) share of common stock, par value $.01 per share
of Surviving Corporation.
(d) Each Public Warrant outstanding immediately prior to the
Effective Date (other than Public Warrants held by any holder who
becomes entitled to payment of the fair value therefor pursuant to the
exercise of dissenters' rights) shall be cancelled and extinguished and
be converted into and become solely a right to receive $0.125 in cash
without interest thereon payable to the holder thereof upon surrender
of the warrant (or other indicia of ownership acceptable to Surviving
Corporation) formerly representing Public Warrants as provided in
Section 5 hereof.
(e) Each holder of Derivative Securities (other than Public
Warrants) issued and outstanding immediately prior to the Effective
Date of the Merger (other than such Derivative Securities held by a
holder who becomes entitled to payment of the fair value therefor
pursuant to the exercise of dissenters' rights), shall be cancelled and
extinguished and be converted into and become solely a right to receive
such amount in cash without interest thereon as listed in Annex I
hereto and by this reference incorporated herein, upon surrender of the
instrument (or other indicia of ownership acceptable to Surviving
Corporation) formerly representing such Derivative Securities as
provided in Section 5 hereof.
(f) The cash consideration specified in clauses (a), (d) and
(e) above with respect to the Public Shares, Public Warrants and other
Derivative Securities is hereinafter collectively called the "Merger
Consideration."
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4. DISSENTING SHARES
4.1 Notwithstanding anything in this Plan to the contrary, holders of
Public Shares, Public Warrants and other Derivative Securities who shall have
delivered a written notice of dissent for such Public Shares, Public Warrants or
other Derivative Securities and any other required documents, as, in the manner,
and within the time period provided in Section 607.1320 of the Florida
Corporation Law and who shall not have lost such right to a determination of
fair value shall not be converted into or represent a right to receive the
applicable Merger Consideration, but the holders thereof shall be entitled
solely to such rights as are granted thereby.
4.2 Subsidiary shall give Parent and Merging Company (i) prompt notice
of receipt of any written demands for payment and any other instruments received
pursuant to Section 607.1320 of the Florida Corporation Law, and (ii) the
opportunity to direct all negotiations and proceedings with respect to
Dissenting Securities. Subsidiary shall not, except with the prior written
consent of Parent, voluntarily make any payment with respect to any demands for
payment or offer to settle or settle any such demands.
5. PAYMENT FOR SHARES
5.1 Prior to the Effective Date, Parent and Merging Company shall
designate a bank, trust company or other qualified company to act as paying
agent in the Merger (the "Paying Agent") pursuant to a written agreement (the
"Paying Agent Agreement"). At or prior to the Effective Date, Parent will take
all steps necessary to enable and cause Merging Company to provide the Paying
Agent with the amounts necessary to make the payments to the holders of the
Public Shares, the Public Warrants and the other Derivative Securities as
required hereunder, which amounts shall be placed by the Paying Agent in a
separate account (the "Fund"). Out of the Fund, the Paying Agent shall make such
payments to the Holders of the Subsidiary Securities as provided hereunder. The
Fund shall not be used for any other purpose. The Paying Agent may invest
portions of the Fund, as directed by Parent and/or Merging Company (so long as
such directions do not impair the Paying Agent's ability to make the payments
referred to in Section 3 hereof or otherwise impair the rights of Holders of
Subsidiary Securities). Any net earnings resulting from, or interest or income
produced by, such investments shall be paid to Parent as and when requested by
Parent. The Surviving Corporation shall replace any monies lost through any
investment pursuant to this Section 5.1.
5.2 Not less than thirty (30) days prior to the Effective Date,
Subsidiary shall cause the Paying Agent to mail to each record Holder of
Subsidiary Securities (i) the Transaction Statement (with a copy of this Plan
attached thereto), (ii) a notice of the adoption of this Plan approved by
Parent, (iii) a form of letter of transmittal approved by Parent and Merging
Company for use by the Holders (the "Letter of Transmittal"), which shall
specify, among other things, the procedure for delivery of the certificates or
instruments representing Subsidiary Securities ("Certificates") and describe the
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procedures for Holders to exercise and perfect their dissenters' rights with
respect to their Subsidiary Securities ("Dissenting Securities") and (iv) any
other required documents, instruments or disclosures requested by Parent,
Merging Company or the Paying Agent to be transmitted to the Holders.
5.3 Promptly after the Effective Date, Parent shall cause the Paying
Agent to mail to each record Holder of Subsidiary Securities immediately prior
to the Effective Date, a notice of the completion of the Merger in a form
approved by Parent and Merging Company, together with any other documents,
instruments or disclosures requested by Parent and Merging Company to be
transmitted to the Holders.
5.4 Upon surrender to the Paying Agent of a Certificate, together with
the Letter of Transmittal and any other duly executed required documents, the
Holder of such Certificate shall be entitled to receive in exchange therefor, on
the Effective Date, cash in an amount equal to the applicable Merger
Consideration, and such Certificate shall forthwith be cancelled. No interest
will be paid or accrued on the cash payable upon the surrender of Subsidiary
Securities. Until surrendered in accordance with the provisions of this Section
5, each share of Subsidiary Securities (other than shares of Subsidiary Common
Stock held by Merging Company or Dissenting Securities) shall represent for all
purposes only the right to receive the applicable Merger Consideration, without
any interest thereon.
5.5 Subject to full compliance with this Section 5, any cash provided
to the Paying Agent pursuant to this Section 5 and not exchanged for Subsidiary
Securities within 180 days after the Effective Date will be returned by the
Paying Agent to Surviving Corporation which thereafter will act as Paying Agent.
Surviving Corporation will escheat to the appropriate state, in accordance with
applicable law, any funds set aside to exchange for Subsidiary Securities which
are not tendered. Notwithstanding the foregoing, neither the Paying Agent nor
any party hereto shall be liable to a Holder of Subsidiary Securities for any
Merger Consideration delivered to a public official pursuant to applicable
abandoned property, escheat and similar laws.
5.6 In connection with the Merger, Subsidiary will cause its transfer
agent promptly to furnish Parent and Merging Company with mailing labels,
security position listings and any available listing or computer file containing
the names and addresses of the record Holders of Public Shares and Public
Warrants as of a recent date immediately prior to the Effective Date and will
cause its transfer agent to furnish Parent and Merging Subsidiary with such
additional information and assistance as Parent or its agents may reasonably
request in transmitting the Transaction Statement and the Letter of Transmittal
to each holder of Public Shares and Public Warrants. Merging Company shall cause
Subsidiary to furnish the Transaction Statements and Letter of Transmittal to
each holder of Derivative Securities other than the Public Warrants.
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6. NO FURTHER RIGHTS OR TRANSFERS
At and after the Effective Time, each Holder of issued and outstanding
Subsidiary Securities immediately prior to the Effective Time shall cease to
have any rights (i) with respect to Holders of Public Shares, as a shareholder
of Subsidiary, and (ii) with respect to holders of Public Warrants and/or other
Derivative Securities, to acquire shares of Subsidiary Common Stock, except for
the right to surrender his or her Subsidiary Securities in exchange for the
applicable Merger Consideration or to perfect his or her right to receive
payment for Subsidiary Securities pursuant to and in accordance with the Florida
Dissenters' Rights Statute and Section 4. There shall be no transfers on the
stock transfer books of the Surviving Corporation of the shares of Subsidiary
Securities from and after the Effective Date. If, after the Effective Date and
without affecting the rights of Holders to receive the applicable Merger
Consideration for their Subsidiary Securities, Certificates formerly
representing Subsidiary Securities are presented to the Surviving Corporation,
they shall be cancelled and exchanged solely for the applicable Merger
Consideration (unless such certificates are being deposited solely in connection
with the exercise of dissenters rights as Dissenting Securities or represent
shares to be cancelled pursuant to Section 3.2(b)).
7. ADJUSTMENTS
If, between the date of adoption of this Plan and the Effective Date,
the outstanding shares of Subsidiary Common Stock shall be changed into a
different number of shares or a different class by reason of any
reclassification, recapitalization, split-up, combination, exchange of shares or
readjustment, or a stock dividend thereon shall be declared with a record date
prior to the Effective Date, the amount of Merger Consideration to be received
pursuant to this Plan in exchange for each outstanding Subsidiary Security shall
be appropriately adjusted.
8. CONSUMMATION OF THE MERGER
The Board of Directors of Merging Company shall take all action
necessary in order that the Merger provided for herein shall be effected
pursuant to the laws of the State of Florida. The Merger shall be consummated at
the time (the "Effective Time") that Articles of Merger are filed with the
Department of State of Florida, and the date upon which the Effective Time
occurs shall be (and is referred herein as) the "Effective Date."
9. TERMINATION AND AMENDMENT
Notwithstanding anything to the contrary contained herein, (i) this
Plan and the Merger provided for herein may be terminated and abandoned at any
time prior to the Effective Time by the Board of Directors of Merging Company,
and (ii) this Plan may be amended at any time prior to the Effective Time by the
Board of Directors of Merging Company. To the full extent permitted by
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applicable law, after the Effective Date, the provisions of this Plan may be
interpreted, amended or waived by the Board of Directors of the Surviving
Corporation.
APPROVED AND ADOPTED this 8th day of August, 1997.
TRACKAQ, INC.
By:
Title:
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