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Exhibit 10.2(d)
MEMBERSHIP INTERESTS CONTRIBUTION AGREEMENT
THIS MEMBERSHIP INTERESTS CONTRIBUTION AGREEMENT (this "Agreement")
is made as of the ___ day of __________, 1998, by and among the transferors set
forth on Attachment 1 to this Agreement ("Transferors") and MARINEMAX, INC.
("Transferee" or "MarineMax").
1. AGREEMENT OF TRANSFER.
(a) TRANSFER OF MEMBERSHIP INTERESTS. Transferors, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby contribute, transfer and convey and Transferee hereby
receives all of Transferors' membership interests (the "Membership Interests")
in ▇▇▇▇▇▇▇▇'▇ Realty, L.L.C., a Delaware limited liability company (the
"Company"), such Membership Interests constituting all of the membership
interests in the Company.
(b) TAX-FREE EXCHANGE. Transferors 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
Membership Interests 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. If there is more than one Transferor, Exhibit "A" also sets
forth the allocation of the Shares between the Transferors.
4. STOCK CERTIFICATES AND STOCK POWER. On or before a date fifteen
(15) business days from and after the date hereof, Transferee shall deliver to
Transferors stock certificates representing the Shares.
5. ESCROW OF PORTION OF THE SHARES. Upon the delivery to Transferors
of the Shares, each of the Transferors agree to deliver or cause to be delivered
into escrow for a period of one (1) year following the Effective Time an
aggregate of ten percent (10%) of the Shares delivered to each such Transferors
pursuant to this Agreement for purposes of securing
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the obligations, representations and warranties of the Transferors 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"). Transferors each agree to execute and deliver the
Escrow Agreement at or before the Effective Time.
6. REPRESENTATIONS AND WARRANTIES. Transferors represent and warrant
to Transferee as of the date of this Agreement, as follows:
(a) Transferors own all of the Membership Interests, such
Membership Interests constituting all of the membership interests in the
Company, and the Membership Interests are free and clear of all liens, claims,
rights, charges, encumbrances and security interests of whatsoever nature or
type, and Transferors have good title to all of the Membership Interests.
(b) The Company has no liabilities except liabilities relating
to any outstanding mortgages or deeds of trust, and relating to any obligations
of record with respect to real property owned by the Company.
(c) Transferors acknowledge that they have received the
Private Placement Memorandum and are familiar with and understand the
information set forth therein, including the "Risk Factors."
(d) Transferors have sufficient knowledge and experience in
business and financial matters (or has received from a person of Transferors'
selection sufficient advice with respect to such matters) to be capable of
evaluating the merits and risks of the acquisition of the Shares.
(e) Transferors represent and warrant that they have relied
solely upon the Private Placement Memorandum and upon the advice of Transferors'
legal counsel and other advisers with respect to the ownership of the Shares.
Transferors have reviewed with Transferors' 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). Transferors shall be responsible for Transferors' own tax
liability that may arise as a result of this transaction.
(f) Transferors have the opportunity to ask questions and
receive information with respect to, among other things, the proposed business
affairs, financial condition, plans and prospects of the Transferee and the
terms and conditions of the acquisition of the Shares, as Transferors have
requested so as to more fully understand their investment.
(g) Neither the Transferee nor any person representing or
acting on behalf of the Transferee, or purportedly representing or acting on
behalf of the Transferee in the Private Placement Memorandum or set forth in the
Contribution Agreement, have made any
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representations, warranties, agreements or statements other than those contained
herein which influenced or affected Transferors' decision to acquire the Shares.
(h) Transferors are acquiring the Shares for Transferors' 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.
(i) Transferors acknowledge, understand and agree 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. Transferors understand 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 Transferors 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. Transferors
acknowledge that the certificate representing the Shares to be issued to
Transferors will bear legends restricting the transferability thereof to the
foregoing effect.
(j) Transferors have the ability to bear the economic risk of
the acquisition of the Shares, including the complete loss of Transferors'
investment.
(k) Transferors further acknowledge, understand and agree 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 CONDITIONS OF THAT CERTAIN LETTER AGREEMENT DATED
, 1998 BY THE BENEFICIAL HOLDER OF THIS
CERTIFICATE, WHICH RESTRICTS THE SALE, TRANSFER OR DISPOSITION OF
THE
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SHARES. A COPY OF THE LETTER AGREEMENT IS ON FILE AND MAY BE
INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICES OF THIS CORPORATION.
(l) All of the information set forth in this Agreement
concerning Transferors is true and correct.
7. INDEMNIFICATION. Transferors make the following covenants that
are applicable to them:
(a) GENERAL INDEMNIFICATION BY THE TRANSFERORS. Transferors
each covenant and agree that they will indemnify, defend, protect and hold
harmless MarineMax and the Company 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 Transferors set
forth in Section 6 hereof; and (ii) any breach of any agreement on the part of
the Transferors under this Agreement.
(b) LIMITATIONS ON INDEMNIFICATION. The indemnification
obligations of Transferors set forth in this Agreement 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 Transferors
until such time as, and solely to the extent that, the aggregate of all claims
against the Transferors shall exceed the sum of $25,000 (the "Indemnification
Deductible"); and after such Indemnification Deductible amount has been
attained, only claims in excess of such amount shall be indemnified hereunder.
MarineMax and the Company 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 Transferors 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.
For purposes of calculating the value of the MarineMax Stock
received by Transferors, MarineMax Stock shall be valued at $13.00 per share.
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No provision of this Agreement or in this Section 7 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. Transferors and Transferee hereby agree to
execute and deliver, or cause Transferors' 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 Membership
Interests from Transferors to Transferee. The provisions of this Paragraph 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 Transferors, 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. REPRESENTATIONS AND WARRANTIES AT CLOSING. All of Transferors'
representations and warranties contained in Section 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.
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.
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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 Transferors
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 Transferors and
Transferee except as specifically provided herein. No term or provision of this
Agreement is intended to benefit any person, partnership, corporation or 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.
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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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first set forth above.
TRANSFERORS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., as Co-Trustee of
The ▇▇▇▇▇▇▇ Family Trust, Member
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Co-Trustee of the
▇▇▇▇▇▇▇ Family Trust, Member
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Member
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of
the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Separate
Property Trust, Member
TRANSFEREE:
MARINEMAX, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:
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ATTACHMENT 1
TRANSFERORS
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Co-Trustees of the
▇▇▇▇▇▇▇ Family Trust, Members of ▇▇▇▇▇▇▇▇'▇ Realty, L.L.C., a
Delaware limited liability company
Address: _____________________________________
_____________________________________
_____________________________________
_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III., Member of ▇▇▇▇▇▇▇▇'▇ Realty, L.L.C., a
Delaware limited liability company
Address: _____________________________________
_____________________________________
_____________________________________
_____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Separate Property Trust, Member of ▇▇▇▇▇▇▇▇'▇ Realty,
L.L.C., a Delaware limited liability company
Address: _____________________________________
_____________________________________
_____________________________________
_____________________________________
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EXHIBIT "A"
NUMBER OF SHARES OF TRANSFEREE STOCK
TO BE RECEIVED BY TRANSFERORS
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 34,937 (3,493 of which
as Co-Trustees of the ▇▇▇▇▇▇▇ Family Trust shall be placed into Escrow)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III 34,937 (3,493 of which
shall be placed into Escrow)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee 34,937 (3,493 of which
of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Separate shall be placed into Escrow)
Property Trust