MASTER REORGANIZATION AGREEMENT by and among One Water Marine Holdings, LLC, One Water Assets & Operations, LLC, OneWater Marine Inc. and the other parties hereto
Exhibit 2.1
Execution Version
by and among
One Water Marine Holdings, LLC,
One Water Assets & Operations, LLC,
and the other parties hereto
February 11, 2020
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND CONSTRUCTION
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Section 1.1.
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Definitions
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1
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Section 1.2.
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Effective Time; Closing Time
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4
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Section 1.3.
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Heading; References; Interpretation
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4
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ARTICLE II
RESTRUCTURING ACTIONS AND RELATED MATTERS
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Section 2.1.
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LMI Priority Distribution of OWMH and Tax Distribution
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4
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Section 2.2.
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Fourth Amended and Restated LLC Agreement of OWMH
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5
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Section 2.3.
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Amended and Restated Certificate of Incorporation and PubCo Bylaws
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5
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Section 2.4.
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Exchange of Warrants
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5
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Section 2.5.
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Distribution to Blocker Corporations
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5
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Section 2.6.
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Common Blocker Mergers
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5
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Section 2.7.
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Contribution Transactions
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6
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ARTICLE III
INITIAL PUBLIC OFFERING AND RELATED MATTERS
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Section 3.1.
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Underwriting Agreement
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6
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Section 3.2.
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Registration Rights Agreement
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6
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Section 3.3.
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Use of IPO Proceeds; Preferred Redemption
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6
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Section 3.4.
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Final OWMH Capitalization
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7
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Section 3.5.
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Tax Receivable Agreement
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7
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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Section 4.1.
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Organization
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7
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Section 4.2.
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Authorization of Transactions
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8
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Section 4.3.
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Consents and Approvals; No Violations
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8
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Section 4.4.
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Ownership of Interests
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8
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Section 4.5.
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Bankruptcy
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8
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Section 4.6.
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Litigation
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8
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Section 4.7.
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Independent Investigation
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9
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Section 4.8.
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No Tax Representations
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9
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ARTICLE V
MISCELLANEOUS
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Section 5.1.
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Consents; Waivers; Deemed Amendments
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9
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Section 5.2.
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No Registration Rights
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10
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Section 5.3.
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Deed; ▇▇▇▇ of Sale; Assignment
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10
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Section 5.4.
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FIRPTA Certificate and Form W-9
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10
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Section 5.5.
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Further Assurances
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10
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i
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Section 5.6.
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Termination
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10
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Section 5.7.
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Notices
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10
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Section 5.8.
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Successors and Assigns; No Third Party Rights
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11
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Section 5.9.
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Severability
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11
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Section 5.10.
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Waivers and Amendments
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11
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Section 5.11.
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Entire Agreement; Survival
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11
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Section 5.12.
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Governing Law
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11
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Section 5.13.
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Counterparts
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11
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Section 5.14.
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OWMH Member Signatory Capacities
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11
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Exhibits
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Exhibit A
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-
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Form of Fourth A&R LLC Agreement of OWMH
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Exhibit B
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-
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Form of A&R Certificate of Incorporation of PubCo
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Exhibit C
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Form of A&R PubCo Bylaws
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Exhibit D
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Form of Agreement and Plan of Merger
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Exhibit E
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Form of Agreement and Plan of Merger
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Exhibit F
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Form of Registration Rights Agreement
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Exhibit G
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Form of Second A&R LLC Agreement of OWAO
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Exhibit H
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Form of Tax Receivable Agreement
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Schedules
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Schedule 2.1(a)
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LMI Priority Distribution
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Schedule 2.2(b)
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OWMH Unit Exchange
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Schedule 2.4
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Warrant Exchange
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Schedule 2.5
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Blocker Distribution
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Schedule 2.7(a)
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▇▇▇▇ and Bosun’s Marine Contributions
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Schedule 2.7(b)
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OWMH Contribution
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Schedule 2.7(c)
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Exchanging Owners Contribution
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Schedule 3.3(a)
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PubCo Contribution
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Schedule 3.3(b)
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OWMH Cash Contribution
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Schedule 3.3(c)
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OWAO Preferred Redemption
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Schedule 3.3(d)
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PubCo Class B Contribution
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Schedule 3.3(e)
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OWMH Class B Distribution
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Schedule 3.4
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Final OWMH Capitalization
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ii
This Master Reorganization Agreement (this “Agreement”), dated as of February 11, 2020, is entered into by and among One Water Marine Holdings, LLC, a Delaware limited liability company (“OWMH”),
One Water Assets & Operations, LLC, a Delaware limited liability company (“OWAO”), OneWater Marine Inc., a Delaware corporation (“PubCo”), and the Persons set forth on the signature pages hereto (each signatory to this Agreement, a “Party”
and collectively, the “Parties”).
RECITALS
WHEREAS, the Parties wish to facilitate an initial public offering (the “IPO”) of PubCo, which will be effected utilizing an “Up-C” structure that
entails, among other things, offering shares of Class A common stock, par value $0.01 per share, of PubCo (the “PubCo Class A Common Stock”) to the public, pursuant to, and as more fully described in, a registration statement filed with the U.S.
Securities and Exchange Commission, Registration No. 333-232639; and
WHEREAS, in connection with the IPO, the Parties desire to effect the restructurings and other transactions set forth in this Agreement, which will occur in the
sequence and on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, the Parties hereby agree as follows, and further agree that the actions set forth in Article II will be deemed to take place in the sequence in which they appear in Article II except as otherwise expressly
set forth herein.
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.1. Definitions. In addition to terms defined
in the body of this Agreement, the following capitalized terms have the following meanings:
“▇▇▇▇▇▇▇” means OWM BIP Investor, LLC, a Delaware limited liability company.
“▇▇▇▇▇▇▇ LLC Agreement” means the Limited Liability Company Agreement of ▇▇▇▇▇▇▇, dated as of October 13, 2016, as amended, restated,
amended and restated, modified or supplemented from time to time.
“Bosun’s” means Bosun’s Assets & Operations, LLC, a Delaware limited liability company.
“Bosun’s LLC Agreement” means the First Amended and Restated Limited Liability Company Agreement of Bosun’s, dated as of June 1, 2018, as amended, restated, amended and
restated, modified or supplemented from time to time.
“Bosun’s Marine” means Bosun’s Marine, Inc., a Massachusetts corporation.
“Bosun’s Marine Bylaws” means the Bylaws of Bosun’s Marine, as currently in effect as of the date hereof, as amended, restated, amended and restated, modified or supplemented
from time to time.
“Certificate of Incorporation of PubCo” means the Certificate of Incorporation of PubCo filed with the Secretary of State of the State of Delaware on April 3, 2019, as
amended, restated, amended and restated, modified or supplemented from time to time.
“Common Blocker” means OWM TBG Corporation, a Delaware corporation.
“Common Blocker Bylaws” means the Bylaws of Common Blocker, dated as of October 13, 2016, as amended, restated, amended and restated, modified or supplemented from time to
time.
“Equity Securities” means all equity securities or other equity interests authorized from time to time, and any other securities, options, interests, participations or other
equivalents (however designated) of or in an entity, whether voting or nonvoting, including options, warrants, phantom equity, equity appreciation rights, convertible notes or debentures, equity purchase rights and all agreements, instruments,
documents and securities convertible, exercisable or exchangeable, in whole or in part, into any one or more of the foregoing.
“Exchanging Owners” means any holders of New OWMH Common Units who elect to exchange such New OWMH Common Units for PubCo Class A Common Stock.
“Goldman” means Special Situations Investing Group II, LLC, a Delaware limited liability company.
“Goldman LLC Agreement” means the Limited Liability Company of Goldman, as currently in effect as of the date hereof, as amended, restated, amended and restated, modified or
supplemented from time to time.
“Governmental Authority” means the United States of America and any foreign country, any state, commonwealth, territory or possession thereof and any political subdivision or
quasi-governmental authority of any of the same, including any court, tribunal, department, commission, board, bureau, agency, county, municipality, province, parish or other instrumentality of any of the foregoing.
“Law” means any applicable federal, state, provincial, municipal, local or foreign statute, law, treaty, ordinance, regulation, rule, code, order or rule of common law.
“LMI Members” means ▇▇▇▇▇▇ ▇. ▇▇▇ 2015 Trust; ▇▇▇▇ ▇▇▇▇▇▇▇, an individual; ▇▇▇▇▇ ▇. ▇▇▇, III, an individual; ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an
individual; J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, an individual; and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual.
“▇▇▇▇” means ▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual.
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“Other One Water Owners” means any holders of New OWMH Common Units who do not elect to exchange such New OWMH Common Units for PubCo Class A Common Stock.
“OWAO Common Units” means the limited liability company interests in OWAO designated as “Common Units”.
“OWAO LLC Agreement” means the First Amended and Restated Limited Liability Company Agreement of OWAO, dated as of October 28, 2016, as amended, restated, amended and
restated, modified or supplemented from time to time.
“OWAO Preferred Units” means the limited liability company interests in OWAO designated as “Preferred Units”.
“OWMH LLC Agreement” means the Third Amended and Restated Limited Liability Company Agreement of OWMH, dated as of March 1, 2017, as amended, restated, amended and restated,
modified or supplemented from time to time.
“OWMH Membership Interests” means the limited liability company interests in OWMH.
“OWMH Warrants” means warrants to purchase New OWMH Common Units, represented by (i) that certain Warrant Agreement, dated as of October 28, 2016, by and between OWMH and
Goldman, as may be amended, restated or otherwise modified from time to time in accordance with the terms thereof and (ii) that certain Warrant Agreement, dated as of October 28, 2016, by and between OWMH and ▇▇▇▇▇▇▇, as may be amended, restated, or
otherwise modified from time to time in accordance with the terms thereof.
“Person” means any natural person, limited liability company, corporation, limited partnership, general partnership, joint stock company, joint venture, association, company,
trust, bank trust company, land trust, business trust or other organization, whether or not a legal entity, and any government or agency or political subdivision thereof.
“PubCo Bylaws” means the Bylaws of PubCo, dated as of April 3, 2019, as amended, restated, amended and restated, modified or supplemented from time to time.
“PubCo Class B Common Stock” means Class B common stock, par value $0.01 per share, of PubCo.
“PubCo Merger Sub” means OneWater Merger Sub Inc., a Delaware corporation.
“PubCo Merger Sub Bylaws” means the Bylaws of PubCo Merger Sub, dated as of February 10, 2020, as amended, restated, amended and
restated, modified or supplemented from time to time.
“South Shore” means South Shore Lake Erie Assets & Operations, LLC, a Delaware limited liability company.
3
“South Shore LLC Agreement” means the First Amended and Restated Limited Liability Company Agreement of South Shore, dated as of August 1, 2017, as amended, restated, amended
and restated, modified or supplemented from time to time.
“TRA Party” and collectively the “TRA Parties” means the Other One Water Owners, Goldman and ▇▇▇▇▇▇▇.
Section 1.2. Effective Time; Closing Time. This Agreement
is effective at 12:01 a.m. Eastern Time as of the date hereof. References to the “Closing Time” in this Agreement refer to 12:01 a.m. Eastern Time on the date of the initial closing of the IPO (the “Initial
Closing”, and such date, the “Initial Closing Date”).
Section 1.3. Heading; References; Interpretation. Unless
otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular
section, subsection paragraph, subparagraph or clause contained in this Agreement; (b) words importing the singular shall also include the plural, and vice versa; (c) the words “include,” “includes” or “including” shall be deemed to be followed by the
words “without limitation”; (d) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (e) the word “or” is disjunctive but not necessarily exclusive; (f) references to any
Person include the successors and permitted assigns of that Person; (g) references from or through any date mean, unless otherwise specified, from and including or through and including, respectively; and (h) the words “dollar” or “$” shall mean U.S.
dollars.
ARTICLE II
RESTRUCTURING ACTIONS AND RELATED MATTERS
Section 2.1. LMI Priority Distribution of OWMH and Tax Distribution.
Effective as of the Closing Time:
(a) OWMH shall pay by wire transfer of immediately available funds to the accounts designated in writing by the LMI Members
the amounts set forth on Schedule 2.1(a) in complete satisfaction of the LMI Priority Distribution (as such term is defined in the OWMH LLC Agreement).
(b) OWMH shall distribute to each unitholder of OWMH at such time the right to receive the tax distribution to which such
unitholder would have been entitled, if any, if the board of managers of OWMH had caused OWMH to make such distributions at such time pursuant to Section 6.2 of the OWMH LLC Agreement (the “Pre-IPO Related Tax Distributions”). Notwithstanding
anything set forth in Section 6.2 of the OWMH LLC Agreement, OWMH shall, to the extent permissible under Section 706 of the Internal Revenue Code of 1986, as amended (the “Code”), use an interim closing of the books as of the date of the IPO
to determine the unitholders’ items of income, gain, loss, deduction and credit for purposes of determining the Pre-IPO Related Tax Distributions, and OWMH may use such assumptions, estimated amounts and other information to determine the amount of
the Pre-IPO Related Tax Distributions as OWMH deems necessary in its sole discretion. This Section 2.1(b) shall survive the closing of the IPO and the amendment and restatement of the OWMH LLC Agreement as set forth in Section 2.2.
4
Section 2.2. Fourth Amended and Restated LLC Agreement of OWMH.
(a) Immediately following the transactions described in Section 2.1, the OWMH LLC Agreement shall be, and hereby is,
amended and restated substantially in the form attached hereto as Exhibit A (the “A&R OWMH LLC Agreement”) in order to (a) recapitalize the OWMH Membership Interests to consist solely of a single class of common units, (b) provide
for future redemptions of such common units (along with the cancellation of PubCo Class B Common Stock) by OWMH for PubCo Class A Common Stock (collectively, the “OWMH Recapitalization”) and (c) effect the other provisions set forth therein.
The aggregate number of common units of OWMH outstanding immediately after the OWMH Recapitalization and the ownership of such common units shall be as set forth on Exhibit A to Exhibit A.
(b) Immediately following the OWMH Recapitalization, each holder of common units of OWMH shall, and hereby does, exchange such
common units held by such holder for the number of common units of OWMH set forth on Schedule 2.2(b) (the “OWMH Unit Exchange,” and such exchanged common units, the “New OWMH Common Units”), which exchange shall be made
proportionally among the holders of common units of OWMH based on the common units held by them immediately prior to the OWMH Unit Exchange.
Section 2.3. Amended and Restated Certificate of Incorporation and
PubCo Bylaws. Immediately following the OWMH Unit Exchange, the Certificate of Incorporation of PubCo shall be, and hereby is, amended and restated substantially in the form attached hereto as Exhibit B, which shall be filed
with the Delaware Secretary of State and become effective at 12:02 a.m. Eastern time on the Initial Closing Date, and the PubCo Bylaws shall be, and hereby are, amended and restated substantially in the form
attached hereto as Exhibit C (the “A&R PubCo Bylaws”).
Section 2.4. Exchange of Warrants. Immediately following
the amendment and restatement of the Certificate of Incorporation and PubCo Bylaws, each holder of OWMH Warrants shall, and hereby does, exchange the OWMH Warrant held by such holder for the number of New OWMH Common Units set forth on Schedule 2.4
(the “Warrant Exchange”).
Section 2.5. Distribution to Blocker Corporations.
Immediately following the Warrant Exchange, ▇▇▇▇▇▇▇ shall, and hereby does, cause to be distributed New OWMH Common Units to Common Blocker in the amount set forth on Schedule 2.5 (the “Blocker Distribution”).
Section 2.6. Common Blocker Mergers.
(a) Pursuant to, and in accordance with the terms and conditions of, the Agreement and Plan of Merger, substantially in the
form attached hereto as Exhibit D, and the Certificate of Merger attached thereto as Exhibit A, which will be filed with the Delaware Secretary of State and become effective at 12:03 a.m. Eastern Time on the Initial Closing Date, PubCo Merger
Sub shall, and hereby does, merge with and into Common Blocker, with Common Blocker surviving the merger (the “First Merger”).
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(b) Pursuant to, and in accordance with the terms and conditions of, the Agreement and Plan of Merger, substantially in the
form attached hereto as Exhibit E, and the Certificate of Merger attached thereto as Exhibit A, which will be filed with the Delaware Secretary of State and become effective at 12:04 a.m. Eastern Time on the Initial Closing Date, Common
Blocker shall, and hereby does, merge with and into PubCo, with PubCo surviving the merger (the “Second Merger”). Upon the consummation of the Second Merger, all shares of common stock in PubCo held by OWMH shall be, and hereby are,
cancelled.
Section 2.7. Contribution Transactions.
(a) Immediately following the effective time of the Second Merger, (i) pursuant to Section 3.4(e) of the South Shore LLC
Agreement, ▇▇▇▇ shall, and hereby does, contribute all of his limited liability company interests in South Shore to OWMH and, in consideration therefor, OWMH shall, and hereby does, issue New OWMH Common Units to ▇▇▇▇, in the amounts set forth on Schedule
2.7(a), and (ii) pursuant to Section 3.4(d) of the Bosun’s LLC Agreement, Bosun’s Marine shall, and hereby does, contribute all of its limited liability company interests in Bosun’s to OWMH and, in
consideration therefor, OWMH shall, and hereby does, issue New OWMH Common Units to Bosun’s Marine, in the amounts set forth on Schedule 2.7(a) (collectively, the “▇▇▇▇ and Bosun’s Marine Contributions”).
(b) Immediately following the ▇▇▇▇ and Bosun’s Marine Contributions, OWMH shall, and hereby does, contribute all of the limited liability company interests received by OWMH pursuant to the ▇▇▇▇ and Bosun’s Marine Contributions to OWAO and, in consideration therefor, OWAO shall, and hereby does, issue OWAO Common Units to OWMH, in
the amounts set forth on Schedule 2.7(b) (the “OWMH Contribution”).
(c) Immediately following the OWMH Contribution, the Exchanging Owners shall, and hereby do, contribute all of the New OWMH
Common Units held by such Exchanging Owners to PubCo and, in consideration therefor, PubCo shall, and hereby does, issue a pro rata portion of shares of PubCo Class A Common Stock to each of the Exchanging Owners, in the amounts set forth on Schedule
2.7(c).
ARTICLE III
INITIAL PUBLIC OFFERING AND RELATED MATTERS
Section 3.1. Underwriting Agreement. Prior to the Closing
Time, each of PubCo, OWMH and OWAO shall have entered into an underwriting agreement relating to the IPO (the “Underwriting Agreement”), with Goldman and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. as representatives of the several underwriters named
therein, subject to the right of each party to elect to not enter into an Underwriting Agreement at it sole discretion.
Section 3.2. Registration Rights Agreement. Effective
immediately following the transactions described in Article II, PubCo, ▇▇▇▇▇▇▇ and Goldman shall, and hereby do, enter into a Registration Rights Agreement substantially in the form attached hereto as Exhibit F (the “Registration
Rights Agreement”).
Section 3.3. Use of IPO Proceeds; Preferred Redemption.
(a) Immediately following the Initial Closing, PubCo shall, and hereby does, contribute cash in the amount set forth on Schedule
3.3(a) (the “IPO Cash Proceeds”) to OWMH and, in consideration therefor, OWMH shall, and hereby does, issue the number of New OWMH Common Units set forth on Schedule 3.3(a) to PubCo (the “PubCo
Contribution”).
6
(b) Immediately following the PubCo Contribution, OWMH shall, and hereby does, contribute the IPO Cash Proceeds to OWAO and,
in consideration therefor, OWAO shall, and hereby does, issue the number of OWAO Common Units set forth on Schedule 3.3(b) to OWMH (the “OWMH Cash Contribution”).
(c) Immediately following the OWMH Cash Contribution, OWAO shall, and hereby does, redeem all of the OWAO Preferred Units
held by Goldman and ▇▇▇▇▇▇▇ in exchange for (i) first, the IPO Cash Proceeds and (ii) second, the cash received from the lender set forth on Schedule 3.3(c), in the amount set forth on Schedule 3.3(c) (the “OWAO Preferred
Redemption”). Immediately following the OWAO Preferred Redemption, the OWAO LLC Agreement shall be, and hereby is, amended and restated substantially in the form attached hereto as Exhibit G (the “A&R OWAO LLC Agreement” and
such amendment and restatement the “OWAO Amendment and Restatement”).
(d) Immediately following the OWAO Amendment and Restatement, PubCo shall, and hereby does, issue and contribute the number of shares of PubCo Class B Common Stock set forth on Schedule 3.3(d) to OWMH (the “PubCo Class B Contribution”).
(e) Immediately following the PubCo Class B Contribution, OWMH shall, and hereby does, distribute the number of shares of
PubCo Class B Common Stock set forth on Schedule 3.3(e) to the unitholders of OWMH (the “OWMH Class B Distribution”).
Section 3.4. Final OWMH Capitalization. The aggregate
number of New OWMH Common Units outstanding immediately after the OWMH Class B Distribution and the ownership of the New OWMH Common Units shall be as set forth on Schedule 3.4.
Section 3.5. Tax Receivable Agreement. Immediately
following the OWMH Class B Distribution, PubCo and each TRA Party shall, and hereby do, enter into a Tax Receivable Agreement substantially in the form attached hereto as Exhibit H.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants, solely with respect to itself, to the other Parties as follows:
Section 4.1. Organization. Such Party, if an entity, is
a corporation, limited partnership or limited liability company, as applicable, duly organized, validly existing and in good standing (where such concept exists) under the Laws of the jurisdiction of its organization, and has all requisite corporate,
partnership or limited liability company, as applicable, power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as now being conducted, except where the failure to have such
power, authority and governmental approvals would not have, individually or in the aggregate, a material adverse effect on such Party or on the consummation of the transactions contemplated hereby.
7
Section 4.2. Authorization of Transactions. If an
entity, the execution, delivery and performance of this Agreement and the ancillary agreement contemplated hereby (the “Ancillary Agreements”) to which such Party will be a party and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate or equivalent action on behalf of such Party. No other proceeding or action on the part of such Party is necessary to approve and authorize such Party’s execution and delivery of this
Agreement or any other Ancillary Agreement to which such Party is or will be a party or the performance of such Party’s obligations hereunder or thereunder, including the consummation of the transactions contemplated hereby and thereby. Such Party has
duly and validly executed and delivered this Agreement and each of the other Ancillary Agreements to which such Party is or will be a party. Assuming the due authorization, execution and delivery by each of the other parties to this Agreement and the
other Ancillary Agreements, this Agreement constitutes, and each of the other Ancillary Agreements to which such Party will be a party will when executed constitute, a legal, valid and binding obligation of such Party, enforceable against such Party in
accordance with their respective terms and conditions, except as enforceability hereof or thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other Laws affecting creditor’s rights generally
or under general principles of equity and limitations on availability of equitable remedies.
Section 4.3. Consents and Approvals; No Violations. None
of the execution, delivery or performance of this Agreement by such Party, or compliance by it with any of the provisions hereof, do, nor will, (a) conflict with or result in any breach of any provision of the certificate of incorporation and bylaws,
partnership agreement, limited liability company agreement or similar organizational documents of such Party, as applicable, (b) require any filing with, or the obtaining of any permit, authorization, consent or approval of, any Governmental Authority
or (c) violate any Law applicable to such Party or any of its properties or assets, excluding from the foregoing clauses (b) and (c) such filings, permits, authorizations, consents, violations, breaches, defaults, rights, obligations or
encumbrances which would not, individually or in the aggregate, have a material adverse effect on such Party or on the consummation of the transactions contemplated hereby.
Section 4.4. Ownership of Interests. Each Party
contributing, issuing, delivering or exchanging Equity Securities hereby owns all such Equity Securities free and clear of all liens, encumbrances, security interest, equities, charges or claims. There are no preferential rights to purchase, rights of
first refusal or similar rights that are applicable to the contribution, issuance, delivery or exchange of such interests in connection with the transactions contemplated hereby which have not been waived by the Person holding such rights.
Section 4.5. Bankruptcy. There are no bankruptcy,
reorganization, receivership or other insolvency type proceedings pending, being contemplated by or, to such Party’s knowledge, threatened against such Party.
Section 4.6. Litigation. No suit, action or litigation by
any Person by or before any tribunal or Governmental Authority is pending or, to such Party’s knowledge, threatened against such Party or its affiliates that would, individually or in the aggregate, reasonably be expected to have a material adverse
effect upon the ability of such Party to perform its obligations hereunder or consummate the transactions contemplated hereby.
8
Section 4.7. Independent Investigation. Each Party has
reviewed with, or has had the opportunity to consult with, their own independent legal and tax advisors regarding the transactions contemplated hereby, including the U.S. federal, state, local, foreign and other tax consequences of the transactions
contemplated hereby and hereby acknowledges that neither PubCo nor its advisors (including ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.) has provided to such Party any such legal or tax advice regarding the transactions contemplated hereby.
Section 4.8. No Tax Representations. Each Party
acknowledges and agrees that OWMH and PubCo are making no representation or warranty as to the U.S. federal, state, local, foreign or other tax consequences to any Party as a result of the transactions contemplated by this Agreement. Each Party
understands that such Party (and not OWMH or PubCo) will be responsible for such Party’s own tax liability that may arise as a result of the transactions contemplated hereby.
ARTICLE V
MISCELLANEOUS
Section 5.1. Consents; Waivers; Deemed Amendments. To the
extent required under applicable Law or the governing documents of any of the Parties (including the OWMH LLC Agreement, the A&R OWMH LLC Agreement, the OWAO LLC Agreement, the A&R OWAO LLC Agreement, the PubCo Bylaws, the A&R PubCo Bylaws,
the ▇▇▇▇▇▇▇ LLC Agreement, the Goldman LLC Agreement, the Bosun’s LLC Agreement, the Bosun’s Marine Bylaws, the South Shore LLC Agreement, the PubCo Merger Sub Bylaws, the Common Blocker Bylaws, the governing documents, if any, of the Exchanging Owners
and the governing documents of the Other One Water Owners) or any documents to which they are party, each Party hereby acknowledges that this Agreement constitutes the written consent of such Party to each of the agreements and transactions described
herein, including in its capacity as a member, manager or stockholder of any other Party. Without limiting the foregoing:
(a) this Agreement shall constitute the written consent of the board of managers of OWMH under the OWMH LLC Agreement, PubCo
as the managing member of OWMH under the A&R OWMH LLC Agreement, OWMH as the managing member of OWAO under the OWAO LLC Agreement, OWMH as the sole member of OWAO under the A&R OWAO LLC Agreement, the Preferred Members of OWAO (as defined in
the OWAO LLC Agreement) under the OWAO LLC Agreement, OWMH as the sole stockholder of PubCo, the board of managers of ▇▇▇▇▇▇▇, the applicable governing body of Goldman, OWAO as the managing member of Bosun’s, the board of directors of Bosun’s Marine,
OWAO as the managing member of South Shore, PubCo as the sole stockholder of PubCo Merger Sub, the sole stockholder of Common Blocker, the board of directors of Common Blocker, the governing bodies, if any, of the Exchanging Owners, and the governing
bodies, if any, of the Other One Water Owners;
(b) each applicable Party hereby agrees that the transfers, both directly and indirectly through upstream transfers, of New
OWMH Common Units, OWAO Preferred Units, limited liability company interests of South Shore and limited liability company interests of Bosun’s referenced in Sections 2.5, 2.7(a), 2.7(b) and 2.7(c) are deemed to be
permitted transfers under the A&R OWMH LLC Agreement, the OWAO LLC Agreement, the South Shore LLC Agreement and the Bosun’s LLC Agreement, as applicable, and hereby waives any and all rights with respect thereto; and
9
(c) each applicable Party hereby agrees that, to the extent this Agreement is inconsistent with or covers applicable items not
otherwise provided under the OWMH LLC Agreement, the A&R OWMH LLC Agreement, the OWAO LLC Agreement, the A&R OWAO LLC Agreement, the Bosun’s LLC Agreement, the South Shore LLC Agreement and the PubCo Merger Sub Bylaws, this Agreement shall be
deemed to amend such agreements.
Section 5.2. No Registration Rights. Each Party further
acknowledges and agrees that except as set forth in the Registration Rights Agreement, following the consummation of the transactions contemplated by Sections 2.1 through 3.5, no Party shall have any registration rights, preemptive
rights or similar rights with respect to the Equity Securities of OWMH, PubCo, or any of their respective affiliates, except as may be entered into between such parties in the future.
Section 5.3. Deed; ▇▇▇▇ of Sale; Assignment. To the
extent required and permitted by applicable Law, this Agreement will also constitute a “deed,” “▇▇▇▇ of sale” “stock power” or “assignment” of the assets, shares and membership and other interests referenced herein, as well as an amendment of the
relevant agreements, without the need for any further assignment or transfer document.
Section 5.4. FIRPTA Certificate and Form W-9. Prior to the Initial Closing, (i) each Exchanging Owner shall deliver to PubCo, OWMH, South Shore and Bosun’s an affidavit executed by such Exchanging Owner that satisfies the requirements of Code Section
1445(b)(2) and Code Section 1446(f) evidencing its non-foreign status and (ii) each of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Common Blocker shall deliver to OWMH and OWAO a Form W-9 executed by such person that satisfies the requirements of Code Section 1446(f)
evidencing its non-foreign status.
Section 5.5. Further Assurances. Each Party hereby
agrees to execute, acknowledge and deliver all such additional assignments, stock powers, conveyances, instruments, notices and other documents, and to do all such other acts and things, all in accordance with applicable Law, as may be necessary or
appropriate (a) to more fully assure that the applicable Parties own all of the properties, rights, titles, interests, estates, remedies, powers and privileges granted by this Agreement, or which are intended to be so granted, (b) to more fully and
effectively vest in the applicable Parties and their respective successors and assigns beneficial and record title to the interests and shares contributed and assigned by this Agreement or intended to be so and (c) to more fully and effectively carry
out the purposes and intent of this Agreement.
Section 5.6. Termination.
This Agreement shall terminate and be of no further force or effect if the IPO has not been completed by 11:59 p.m. Eastern Time on February 29, 2020.
Section 5.7. Notices. All notices, requests, demands and
other communications under this Agreement shall be in writing and shall be personally delivered, sent by nationally recognized overnight courier, mailed by registered or certified mail or be sent by facsimile or electronic mail to such Party at the
address set forth on its signature page to this Agreement (or such other address as shall be specified by like notice).
10
Section 5.8. Successors and Assigns; No Third Party Rights.
This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and assigns. This Agreement is not intended to, and does not, create rights in any other Person, and no Person is or is intended to be a
third-party beneficiary of any of the provisions of this Agreement.
Section 5.9. Severability. If any of the provisions of
this Agreement are held by any court of competent jurisdiction to contravene, or to be invalid under, the Laws of any political body having jurisdiction over the subject matter hereof, such contravention or invalidity will not invalidate the entire
Agreement. Instead, this Agreement will be construed as if it did not contain the particular provision or provisions held to be invalid, and an equitable adjustment will be made and necessary provision added so as to give effect to the intention of
the Parties as expressed in this Agreement at the time of execution of this Agreement.
Section 5.10. Waivers and Amendments. Any waiver of any
term or condition of this Agreement, or any amendment or supplement to this Agreement, will be effective only if in writing and signed by the Parties. A waiver of any breach or failure to enforce any of the terms or conditions of this Agreement will
not in any way affect, limit or waive a Party’s rights hereunder at any time to enforce strict compliance thereafter with every term or condition of this Agreement.
Section 5.11. Entire Agreement; Survival. This Agreement,
together with the agreements and other documents referenced herein, constitutes the entire agreement among the Parties pertaining to the transactions contemplated hereby and supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties pertaining thereto. The provisions of this Agreement (including the representations and warranties hereunder) shall survive the Initial Closing, and shall continue indefinitely.
Section 5.12. Governing Law. This Agreement will be
governed by, and construed in accordance with, the Laws of the State of Delaware.
Section 5.13. Counterparts. This Agreement may be executed
in any number of counterparts (including by facsimile or other electronic means) with the same effect as if all Parties had signed the same document.
Section 5.14. OWMH Member Signatory Capacities. Each
signatory hereto that is a member of OWMH is executing this Agreement with respect to all classes of Membership Interests (as defined in the OWMH LLC Agreement) held by such member in OWMH.
* * * * *
11
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the Parties as of the date first written above.
[Signature Pages Follow]
[Signature pages to Master Reorganization Agreement]
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ADC Investments, LLC
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By:
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/s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
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A. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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President
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Auburn OWMH, LLLP
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
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Member
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Bosun’s Assets & Operations, LLC
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Title:
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Chief Executive Officer
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
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[Signature pages to Master Reorganization Agreement]
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JBL Investment Holdings, LLLP
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇ ▇▇▇▇▇▇
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Title:
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Manager, Sea Oats Group
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
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L13, LLLP
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇ ▇▇▇▇▇▇
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Title:
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Manager, Sea Oats Management, LLC
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/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
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J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
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▇▇▇▇▇▇ Marine Holdings, LLC
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
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Manager
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[Signature pages to Master Reorganization Agreement]
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One Water Marine Holdings, LLC
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Title:
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Chief Executive Officer
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One Water Assets & Operations, LLC
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Title:
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Manager
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OWM BIP Investor, LLC
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By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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Manager
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OneWater Marine, Inc.
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Title:
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Chief Executive Officer
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OWM TBG Corporation
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By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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President
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OneWater Merger Sub, Inc.
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Title:
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Chief Executive Officer
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/s/ ▇▇▇▇▇ ▇. ▇▇▇, III
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▇▇▇▇▇ ▇. ▇▇▇, III
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Irrevocable Trust Dated December 24, 2015
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
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Trustee
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Irrevocable Trust Dated December 30, 2015
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
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Trustee
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South Shore Lake Erie Assets & Operations, LLC
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr.
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Title:
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Chief Executive Officer
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/s/ ▇▇▇▇▇ Style
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▇▇▇▇▇ Style
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[Signature pages to Master Reorganization Agreement]
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▇▇▇▇▇▇ ▇. ▇▇▇ 2015 Trust
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
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Trustee
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
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Bosun’s Marine, Inc.
|
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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President
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
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Special Situations Investing Group II, LLC
|
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇
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||
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Name:
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▇▇▇▇ ▇▇▇▇▇
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||
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Title:
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Authorized Signatory
|
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[Signature pages to Master Reorganization Agreement]
Exhibit A
Form of Fourth A&R LLC Agreement of OWMH
See attached.
Exhibit B
Form of A&R Certificate of Incorporation of PubCo
See attached.
Exhibit C
Form of A&R PubCo Bylaws
See attached.
Exhibit D
Form of Agreement and Plan of Merger
See attached.
Exhibit E
Form of Agreement and Plan of Merger
See attached.
Exhibit F
Form of Registration Rights Agreement
See attached.
Exhibit G
Form of Second A&R LLC Agreement of OWAO
See attached.
Exhibit H
Form of Tax Receivable Agreement
See attached.
Schedule 2.1(a)
LMI Priority Distribution
Schedule 2.2(b)
OWMH Unit Exchange
Schedule 2.4
Warrant Exchange
Schedule 2.5
Blocker Distribution
Schedule 2.7(a)
▇▇▇▇ and Bosun’s Marine Contributions
Schedule 2.7(b)
OWMH Contribution
Schedule 2.7(c)
Exchanging Owners Contribution
Schedule 3.3(a)
PubCo Contribution
Schedule 3.3(b)
OWMH Cash Contribution
Schedule 3.3(c)
OWAO Preferred Redemption
Schedule 3.3(d)
PubCo Class B Contribution
Schedule 3.3(e)
OWMH Class B Distribution
Schedule 3.4
Final OWMH Capitalization