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Exhibit 10.2(a)
STOCK CONTRIBUTION AGREEMENT
THIS STOCK CONTRIBUTION AGREEMENT (this "Agreement") is made as of the
___ day of __________, 1998, by and between the transferor set forth on
Attachment 1 to this Agreement ("Transferor") and MARINEMAX, INC. ("Transferee"
or "MarineMax").
1. AGREEMENT OF TRANSFER.
(a) TRANSFER OF THE SHARES. Transferor, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby contributes, transfers, and conveys and Transferee hereby receives all of
the issued and outstanding capital stock (the "▇▇▇▇▇▇▇ Stock") of ▇▇▇▇▇▇▇ Boat
Company, a Florida corporation (the "Company").
(b) TAX-FREE EXCHANGE. Transferor and Transferee acknowledge that
this Agreement is intended to effectuate a tax-free exchange of property under
Section 351 of the Internal Revenue Code of 1986, as amended.
(c) ACCOUNTING TREATMENT. The contribution provided for in this
Agreement shall be accounted for as a pooling-of-interests, in accordance with
generally accepted accounting principles and the rules and regulations of the
SEC.
2. CLOSING. The consummation of the transactions contemplated by this
Agreement shall be deemed to have occurred on and as of the date hereof first
above written ("Effective Time").
3. CONSIDERATION. The consideration for the exchange of the ▇▇▇▇▇▇▇
Stock shall be the number of shares of the common stock, par value $.001 per
share, of the Transferee (the "Shares") set forth on Exhibit "A" attached
hereto.
4. STOCK CERTIFICATES. On or before a date fifteen (15) business days
from and after the date hereof, Transferee shall deliver to Transferor stock
certificate(s) representing the Shares.
5. ESCROW OF PORTION OF THE SHARES. Upon the delivery to Transferor
of the Shares, Transferor agrees to deliver or cause to be delivered into escrow
for a period of one (1) year following the date of the Effective Time an
aggregate of ten percent (10%) of the Shares delivered to Transferor pursuant to
this Agreement for purposes of securing the obligations, representations and
warranties of Transferor arising under this Agreement and all documents executed
in connection herewith, such escrow to be governed by an escrow agreement in the
form attached hereto as Exhibit "B" (the "Escrow Agreement"). Transferor agrees
to execute and deliver the Escrow Agreement at the Effective Time.
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6. REPRESENTATIONS AND WARRANTIES. Transferor represents and warrants
to Transferee as of the date of this Agreement, as follows:
(a) All of the real estate owned by the Company (the "Property")
is zoned for the conduct of Company's business thereon pursuant to the zoning
regulations of the applicable cities, towns, villages or townships in which the
Property is located. The uses to which the Property are presently put (including
the location of all buildings and other improvements thereon) comply in all
material respects with the applicable provisions of such zoning regulations
without the benefit of the legal non-conforming use principle of law, or other
regulations of such cities, towns, villages or townships or any other
governmental body.
(b) There are no material agreements, commitments or
understandings pursuant to which Company and/or Transferor, or its or their
successors in interest, are required to dedicate any part of the Property or to
grant any easement, water rights, rights of way, or license for ingress and
egress or other use in respect to any part of the Property, whether on account
of the development of adjacent or nearby real property or otherwise. Other than
as provided in the leases of the Property owned by Company and leased to others,
if any, and except as otherwise appear of record, no person has any easement,
license or other right whatsoever with respect to the Property.
(c) Company holds good and marketable fee simple title to the
Property subject only to taxes not yet due and payable, current assessments,
encumbrances, covenants, conditions, restrictions, rights of way and easements
as appear of record. No part of the Property is affected by any restrictions
imposed by any governmental authority affecting construction of structures
thereon or the use thereof by Company other than building codes and zoning
classifications.
(d) Transferor and/or Company do not have any knowledge of any
fact or condition existing that would result or could result in the termination
or material reduction of the current access to and from the Property to existing
public roads and highways, or of any reduction in sewer or other utility
services presently serving the Property. The Property has direct access to
public roads and highways.
(e) Transferor and/or Company has not received any notice from any
insurance company of any material defects or inadequacies in the Property or any
part thereof that would materially and adversely affect the insurability of the
Property or the premiums for the insurance thereof.
(f) Transferor and/or Company have not failed to disclose any
material conditions of disrepair or other adverse conditions or defects with
respect to the Property or any portion thereof of which Transferor or Company
has knowledge or which, with the exercise of reasonable diligence, should have
known.
(g) True, complete and correct copies of all leases and agreements
in respect of the Property, if any, are attached hereto as Exhibit "C". All such
leases are in full
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force and effect and constitute valid and binding agreements of the parties (and
their successors) thereto in accordance with their respective terms.
(h) In respect of the Property (i) Company has complied with and
is in compliance with all federal, state, local and foreign statutes (civil and
criminal), laws, ordinances, regulations, rules, notices, permits, judgments,
orders and decrees applicable to Company relating to environmental protection
(collectively "Environmental Laws"), including, without limitation,
Environmental Laws relating to air, water, land and the generation, storage,
use, handling, transportation, treatment or disposal of Hazardous Wastes and
Hazardous Substances including petroleum and petroleum products (as such terms
are defined in any applicable Environmental Law); (ii) Company has obtained and
adhered to all necessary permits and other approvals necessary to treat,
transport, store, dispose of and otherwise handle Hazardous Wastes and Hazardous
Substances; (iii) Company has reported to the appropriate authorities, to the
extent required by all Environmental Laws, all past and present activities where
Hazardous Wastes or Hazardous Substances have been treated, stored, disposed of
or otherwise handled on the Property; (iv) there have been no releases or
threats of releases (as defined in Environmental Laws) at, from, in or on the
Property except as permitted by Environmental Laws; (v) Company knows of no
location on the Property to which has been transported or on which has been
disposed of Hazardous Wastes and Hazardous Substances or which location is the
subject of any federal, state, local or foreign enforcement action or any other
investigation which is reasonably likely to lead to any claim against Company,
Transferor, Transferee or any of Transferee's affiliates for any clean-up cost,
remedial work, damage to natural resources, property damage or personal injury,
including, without limitation, any claim under the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (as amended); and (vi) Company
has no contingent liability in connection with any release of any Hazardous
Waste or Hazardous Substance into the environment at or from the Property.
(i) Transferor is the sole shareholder of Company, and the Shares
are free and clear of all liens, claims, rights, charges, encumbrances and
security interests of whatsoever nature or type, and Transferor has good and
marketable title to all of the Shares.
(j) Transferor has sufficient knowledge and experience in business
and financial matters (or has received from a person of Transferor's selection
sufficient advice with respect to such matters) to be capable of evaluating the
merits and risks of the acquisition of the Shares.
(k) Transferor has been encouraged and has had the opportunity to
rely upon the advice of Transferor's legal counsel and other advisers with
respect to the ownership of the Shares. Transferor has reviewed with
Transferor's own tax advisors the federal, state, local and foreign tax
consequences in connection with the acquisition of the Shares (including any tax
consequences that may result under recently enacted legislation). Transferor
shall be responsible for Transferor's own tax liability that may arise as a
result of this transaction.
(l) Transferor has had the opportunity to ask questions and
receive information with respect to, among other things, the proposed business
affairs, financial
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condition, plans and prospects of the Transferee and the terms and conditions of
the acquisition of the Shares, as Transferor has requested so as to more fully
understand his investment.
(m) Neither the Transferee nor any person representing or acting
on behalf of the Transferee, or purportedly representing or acting on behalf of
the Transferee, has made any representations, warranties, agreements or
statements other than those contained herein which influenced or affected
Transferor's decision to acquire the Shares.
(n) Transferor is acquiring the Shares for Transferor's own
account without any view to a transfer, sale, assignment or other distribution
thereof other than a transfer, sale, assignment or other distribution not in
violation of the Securities Act of 1933, as amended.
(o) Transferor acknowledges, understands and agrees that the
Shares have not been and will not be registered under any federal or state
securities law including, but not limited to, the Securities Act of 1933, as
amended, and that no federal or state governmental agency or authority has
approved or passed upon the issuance of the Shares. Transferor understands that
there is not now, and that there is not likely to be in the future, any market
for the Shares and that the Shares must be held by Transferor for an indefinite
period of time, absent registration or qualification of the Shares under
applicable laws or the receipt of an opinion of counsel satisfactory to
Transferee that registration or qualification is not required. Transferor
acknowledges that the certificate representing the Shares to be issued to
Transferor will bear legends restricting the transferability thereof to the
foregoing effect.
(p) Transferor has the ability to bear the economic risk of the
acquisition of the Shares, including the complete loss of Transferor's
investment.
(q) Transferor further acknowledges, understands and agrees that
the Transferee shall affix the following legends in substantially the following
form to the certificates evidencing the Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
ACT AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF SUCH ACTS.
THE SHARES MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER SUCH ACTS
OR THE RECEIPT OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
TERMS AND
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CONDITIONS OF THAT CERTAIN LETTER AGREEMENT DATED __________________,
1998 BY THE BENEFICIAL HOLDER OF THIS CERTIFICATE, WHICH RESTRICTS THE
SALE, TRANSFER OR DISPOSITION OF THE SHARES. A COPY OF THE LETTER
AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE
OFFICES OF THIS CORPORATION.
(r) All of the information set forth in this Agreement concerning
Transferor is true and correct.
7. INDEMNIFICATION. Transferor makes the following covenants that are
applicable to him:
(a) GENERAL INDEMNIFICATION BY THE TRANSFEROR. Transferor
covenants and agrees that he will indemnify, defend, protect and hold harmless
MarineMax at all times, from and after the date of this Agreement until the
applicable Expiration Date (as herein defined), for, from and against all
claims, damages, actions, suits, proceedings, demands, assessments, adjustments,
costs and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) incurred on or prior to the
Expiration Date (or thereafter if a claim has been made therefor prior to such
date) by MarineMax as a result of or arising from (i) any breach of the
representations and warranties of the Transferor set forth in Section 6 hereof;
and (ii) any breach of any agreement on the part of the Transferor under this
Agreement.
(b) LIMITATIONS ON INDEMNIFICATION. The indemnification
obligations of Transferor set forth in Section 7(a) shall survive only for a
period of the earlier of (i) the date of the first audit of financial statements
of the Company containing combined operations of Transferee and the Company, for
those representations and warranties set forth in Section 6, which
representations and warranties specifically deal with items that would be
expected to be encountered in the audit process, or (ii) twelve months from the
Effective Time (the end of such period being the "Expiration Date"). MarineMax
and the Company shall not assert any claim hereunder against the Transferor
until such time as, and solely to the extent that, the aggregate of all claims
against the Transferor shall exceed the sum of $5,000 (the "Indemnification
Deductible"); and after such Indemnification Deductible amount has been
attained, only claims in excess of such amount shall be indemnified hereunder.
Transferee may recover for indemnification hereunder only from the
Shares held in escrow pursuant to and as provided in the Escrow Agreement. It is
hereby understood and agreed that Transferor may only satisfy an indemnification
obligation through payment of stock, such stock to be valued as described
immediately below, except as may otherwise be permitted and still preserve
pooling-of-interests accounting treatment. Notwithstanding any term of this
Agreement to the contrary, no provision of this Agreement shall limit or be
deemed to limit any liability or remedy one party may have against any other
parties hereto that arises by statute or any applicable federal, state or local
law.
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For purposes of calculating the value of the Shares received by
Transferor, the Shares shall be valued at $13.00 per share.
No provision of this Agreement or in this Section 8 shall limit or
be deemed to limit any liability or remedy one party may have against any other
party hereto with respect to a claim of fraud.
8. FURTHER ASSURANCES. Transferor and Transferee hereby agree to
execute and deliver, or cause Transferor's spouse, partners, members,
shareholders, officers, directors or any other necessary party to execute and
deliver, such further instruments and documents and take such other actions as
may be reasonably necessary or convenient to carry out the transactions
contemplated hereby, including, without limitation, all further instruments,
documents and actions as may be reasonably required to transfer the Property
from Transferor to Transferee such that the Property complies with all
municipal, county and state regulations, including any necessary lot split,
subdivision or platting process which shall be accomplished at Transferor's
expense. The provisions of this Section 8 shall survive the date of this
Agreement.
9. NOTICES. Unless otherwise required by law, all notices required to
be given hereunder shall be in writing and shall be conveyed by (i) personal
delivery (including by any messenger, courier service or facsimile), or (ii)
United States Postal Service by certified or registered mail, postage prepaid,
with return receipt requested, if to Transferor, at the address set forth on
Attachment 1, and if to Transferee, at ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇. Notice given by personal delivery shall be deemed to
have been given upon delivery to the appropriate address against receipt
therefor (or upon refusal or acceptance), and notice given by U.S. mail shall be
deemed to have been given two days after deposit in the U.S. mail. Each party
may designate from time to time, another address in place of the address
hereinabove set forth by notifying the other parties in the same manner as
provided in this paragraph.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of Transferor's
representations and warranties contained in Sections 6 shall survive only for a
period of the earlier of (i) the date of the first audit of financial statements
of the Company containing combined operations of Transferee and the Company,
which representations and warranties specifically deal with items that would be
expected to be encountered in the audit process, or (ii) twelve months from the
Effective Time.
11. ATTORNEYS' FEES. If any party to this Agreement shall breach its
representations or warranties hereunder or shall fail to fulfill or perform any
of its covenants or obligations in this Agreement, that party shall pay all
costs, including, without limitation, reasonable attorneys' fees and expert
witness fees, that may be incurred to enforce the terms, covenants, conditions
and provisions of this Agreement, or that may be incurred as a result of the
default under or breach of this Agreement, in the event legal action is
commenced.
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12. ENTIRE AGREEMENT; AMENDMENT. All attachments and exhibits attached
to this Agreement are incorporated into this Agreement by reference and made a
part hereof. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution hereof or in effect between the parties. No change
or addition may be made to this Agreement except by a written agreement executed
by the parties.
13. TIME OF ESSENCE. Time is of the essence with respect to the
performance of all terms, covenants, conditions and provisions of this
Agreement.
14. APPLICABLE LAW. This Agreement and the rights of the parties
hereto shall be interpreted, governed and construed in accordance with the laws
of the state of Delaware.
15. SECTION HEADINGS. The section headings in this Agreement are
inserted only for convenience and reference and the parties intend that they
shall be disregarded in interpreting the terms, covenants, conditions and
provisions of this Agreement.
16. WAIVER. Each party shall have the right to excuse or waive
performance by the other party of any obligation under this Agreement by a
writing signed by the party so excusing or waiving. No delay in exercising any
right or remedy shall constitute a waiver thereof, and no waiver by Transferor
or Transferee of the breach of any covenant of this Agreement shall be construed
as a waiver of any preceding or succeeding breach of the same or any other
covenant or condition of this Agreement.
17. BINDING EFFECT, NOMINEE. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. Transferee may assign this Agreement or nominate a substitute
Transferee for this Agreement.
18. CONSTRUCTION. As used in this Agreement, the masculine, feminine
or neuter gender and the singular or plural numbers shall each be deemed to
include the other whenever the context so requires. This Agreement shall be
construed as a whole and in accordance with its fair meaning and without regard
to any presumption or other rule requiring construction against the party
causing this Agreement or any part of this Agreement to be drafted. The parties
acknowledge that each party has reviewed this Agreement and has had the
opportunity to have it reviewed by legal counsel. If any words or phrases in
this Agreement are stricken or otherwise eliminated, whether or not other words
or phrases have been added, this Agreement shall be construed as if the words or
phrases stricken or otherwise eliminated were never included in this Agreement,
and no implication or inference will be drawn from the fact that the words or
phrases were stricken or otherwise eliminated.
19. NO PARTNERSHIP, THIRD PERSON. It is not intended by this Agreement
to, and nothing contained in this Agreement shall, create any partnership, joint
venture or other arrangement between Transferor and Transferee except as
specifically provided herein. No term or provision of this Agreement is intended
to benefit any person, partnership, corporation or
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other entity not a party hereto (including, without limitation, any broker), and
no such other person, partnership, corporation or entity shall have any right or
cause of action hereunder.
20. TIME OF PERFORMANCE. If the date for performance of any obligation
hereunder or the last day of any time period provided for herein shall fall on a
Saturday, Sunday or legal holiday, then said date for performance or time period
shall expire on the first day thereafter which is not a Saturday, Sunday or
legal holiday. Except as may otherwise be set forth herein, any performance
provided for herein shall be timely made and completed if made and completed no
later than 5:00 P.M. Eastern Standard Time on the day for performance.
21. TRANSFER TAXES. Any transaction, privilege, sales, transfer, or
other taxes payable by reason of the purchase and sale provided for in this
Agreement shall be paid by Transferor.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts; each of which shall upon execution be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first set forth above.
TRANSFEROR:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a single man
TRANSFEREE:
MARINEMAX, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:___________________________________
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ATTACHMENT 1
TRANSFEROR
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a single man
Address: __________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
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EXHIBIT "A"
NUMBER OF SHARES OF TRANSFEREE STOCK
TO BE RECEIVED BY TRANSFEROR
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 47,985 (4,798 of which shall be placed into escrow)
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EXHIBIT "B"
ESCROW AGREEMENT
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EXHIBIT "C"
LEASES AND AGREEMENTS