EXCHANGE AGREEMENT, dated as of the 1st day of September, 1998 by and among
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (individually, a "Shareholder" and
collectively, the "Shareholders") and American Marine Recreation, Inc., a
Delaware corporation (the "Company").
W I T N E S S E T H
WHEREAS, each of the Shareholders owns the number of shares of
common stock of Marine America, Inc., a Florida corporation ("MAI"), set forth
on Exhibit A opposite the name of such Shareholder; and
WHEREAS, each of the Shareholders desires to exchange the
number of shares of the Common Stock of MAI set forth on Exhibit A opposite the
name of such Shareholder in exchange for the number of shares of common stock,
par value $.01 per share of the Company (the "Company's Common Stock"), set
forth on Exhibit B opposite the name of such Shareholder, upon the terms and
conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the above premises and the
agreements set forth below, the parties hereto hereby agree as follows:
ARTICLE I
EXCHANGE OF SECURITIES
Section 1.1 (a) In reliance on the representations and warranties
contained herein, and subject to the terms and conditions hereinafter set forth,
each of the Shareholders hereby agrees to deliver and the Company hereby agrees
to accept delivery of, all of the common stock of MAI owned by each Shareholder
for and against delivery of the number of shares of the Company's Common Stock
set forth opposite each Shareholder's name on Exhibit B annexed hereto.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Shareholders as
follows:
Section 2.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
Section 2.2 Authorization. (a) The issuance of the Company's Common
Stock is in accordance with the provisions of this Agreement and has been duly
authorized by all necessary corporate action of the Company. The Company's
Common Stock, if and when issued to the Shareholders in accordance with the
provisions hereof, will be duly authorized and validly issued, fully paid and
nonassessable.
(b) The Company has full corporate power and authority to enter into
this Agreement and to perform all of its obligations hereunder. The execution,
delivery and performance of this Agreement by the Company has been duly
authorized by all necessary corporate action, and this Agreement constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effect of equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application relating to or affecting the enforcement of
creditors' rights.
Section 2.3 Capitalization. The authorized capital stock of the Company
consists of 20,000,000 shares of the Company's Common Stock, $.01 par value, of
which 1 share is issued and outstanding and 1,500,000 shares of preferred stock,
none of which are outstanding. All of the outstanding
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shares of the Company's Common Stock are duly authorized, have been validly
issued and are fully paid and nonassessable.
Section 2.4 Securities Law. The Company's Common Stock is not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
other securities laws but are being sold in reliance upon certain exemptions
from the registration requirements of the Act and such laws. The Company's
reliance upon such exemptions is predicated in large part upon the
representations of the Shareholders to the Company contained in Article III
hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each of the Shareholders, jointly and severally, represents and
warrants to the Company as follows:
Section 3.1 Ownership and Conveyance. Each Shareholder is the sole
beneficial and record owner of the number of shares of the Common Stock set
forth on Exhibit A annexed hereto and has the full right, and is duly
authorized, to exchange such shares which, upon conveyance, will be transferred
to the Company free and clear of any and all liens, claims, pledges, security
interests or other encumbrance of any kind.
Section 3.2 Capitalization. Except as otherwise indicated on Exhibit A,
the number of shares of MAI Common Stock set forth on Exhibit A constitutes all
of the issued and outstanding shares of Common Stock of MAI owned by each
Shareholder and the total constitutes all of the issued and outstanding shares
of MAI Common Stock. All of the outstanding shares of Common Stock of MAI are
duly authorized, have been validly issued and are fully paid and nonassessable.
Except as described in Exhibit A, there are no outstanding options, warrants,
rights (including preemptive rights and rights to
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demand registration under the Act), calls, commitments, conversion rights, plans
or other agreements of any character providing for the purchase or issuance of
any shares of the capital stock of MAI or any agreements or understanding to
issue any of the foregoing.
Section 3.3 Purchase for Own Account. The Company's Common Stock is
being acquired by each of the Shareholders for such Shareholder's own account,
for investment and without any view to the distribution, assignment or resale to
others or fractionalization in whole or in part. Each Shareholder agrees not to
assign or in any way transfer such Shareholder's rights to the Company's Common
Stock or any interest therein and acknowledges that the Company will not
recognize any purported assignment or transfer. No other person has or will have
a direct or indirect beneficial interest in the Company's Common Stock. Each
Shareholder agrees not to sell, hypothecate or otherwise transfer the Company's
Common Stock unless the Company's Common Stock is registered under Federal and
applicable state securities laws or unless, in the opinion of counsel
satisfactory to the Company, an exemption from such laws is available.
Section 3.4 Accredited Investor. Each Shareholder is an
"Accredited Investor" as that term is defined in Regulation D ("Regulation D")
promulgated under the Act.
Section 3.5 Knowledge; Access to Information. Each Shareholder has
knowledge of the Company's activities, financial condition, plans and prospects,
and has carefully reviewed the risks of, and other considerations relating to,
the transactions contemplated herein. Each Shareholder has been given an
opportunity to ask questions of and to receive answers from representatives of
the Company concerning the terms and conditions of the offering and sale of the
Company's Common Stock and has received all information that such Shareholder
has requested from the Company. Notwithstanding the foregoing, the only
information upon which each such Shareholder has relied is such Shareholder's
independent
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investigation and that no representations or warranties of any kind have been
made by the Company or its representatives or agents relating to such decisions
except as expressly set forth herein.
Section 3.6 Risk of Shareholder. Each Shareholder, either individually
or together with the representative on which such Shareholder has relied, has
such knowledge and experience in financial and business matters that each
Shareholder is capable of evaluating the merits and risks of an investment in
the Company's Common Stock.
Section 3.7 Securities Law. The Company's Common Stock is not being
registered under the Act, or any other securities laws but are being sold in
reliance upon certain exemptions from the registration requirements of the Act
and such laws. The Company's reliance upon such exemptions is predicated in
large part upon the representations of the Shareholders to the Company contained
in Article III hereof.
Section 3.8 Restriction on Transfer. Each Shareholder understands that
the Company's Common Stock has not been registered under the Act nor under any
other applicable securities laws in reliance on the representations and
warranties made by the Shareholders herein and that no securities administrator
of any state or jurisdiction or of the Federal government has made any finding
or determination relating to the Company's Common Stock. Each Shareholder
further understands that, upon issuance hereunder, the Company's Common Stock
will constitute "restricted securities" within the meaning of Rule 144 under the
Act. Each Shareholder understands that the Company's Common Stock may not be
sold or otherwise transferred unless subsequently registered under the Act or,
in the opinion of counsel for the Company, an exemption from registration is
available; that, except pursuant to subsection (k) of Rule 144, any routine
sales of the Company's Common Stock made in reliance on Rule 144 can only be
made if current information about the Company is publicly available and then
only in
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limited amounts in accordance with that Rule; and that there is presently
neither any public market for the Company's Common Stock nor current information
publicly available with respect to the Company.
Section 3.9 Restrictive Legends. Until such time as the Company's
Common Stock has been registered under the Act or until such time as the Company
is provided by such Shareholder with an opinion of counsel satisfactory to the
Company to the effect that the transfer of the Company's Common Stock may be
made without registration, the certificates representing the Company's Common
Stock shall be imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE
OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
OTHER APPLICABLE LAWS OR PURSUANT TO AN EXEMPTION FROM SUCH ACT OR
OTHER LAWS THAT, IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY,
IS AVAILABLE UNDER THE CIRCUMSTANCES OF SUCH OFFER, SALE, PLEDGE,
TRANSFER OR OTHER DISPOSITION.
Section 3.10 Authorization. Each Shareholder has full power and
authority to enter into this Agreement and to fully perform the terms of this
Agreement. The execution, delivery and performance of this Agreement by each
Shareholder has been duly authorized by all necessary action of such
Shareholder, and this Agreement constitutes the legal, valid and binding
obligation of such Shareholder, enforceable in accordance with its terms, and
the execution and delivery of this Agreement and the purchase of the Company's
Common Stock contemplated hereby by such Shareholder will not violate any
applicable law, regulation or rule or any agreement or other document to which
such Shareholder is bound.
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ARTICLE IV
INDEMNITY
Section 4.1 Indemnity. Each Shareholder does hereby indemnify and hold
harmless the Company against and from any and all loss, liability, claim, damage
and expense (including, without limitation, attorneys' fees and disbursements)
incurred as a direct or indirect result of a misrepresentation, or breach of an
agreement or warranty, made by such Shareholders to the Company, whether made
orally or contained herein or in any other document furnished by such
Shareholders in connection with this transaction. The Shareholders acknowledge
that this obligation will survive the consummation of the transactions
contemplated hereunder.
ARTICLE V
TERMINATION OF SHAREHOLDERS AGREEMENT
Section 5.1 Termination of Shareholders Agreement. Effective upon the
closing of the transactions contemplated herein, that certain shareholders
agreement entered into by the Shareholders and MAI on January 30, 1998 (the
"Shareholders Agreement") is hereby terminated. The Shareholders Agreement shall
be declared null and void and without any effect whatsoever, and shall be
superseded by the provisions set forth in this Agreement and other subsequent
agreements thereafter.
ARTICLE VI
CLOSING
Section 5.1 Condition Prior to Closing. Prior to the closing of the
transactions contemplated herein, MAI shall redeem all of the shares of MAI
Common Stock owned by Lakewood Marine International, Ltd.
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Section 5.2 Closing. The closing of the transactions contemplated
herein shall occur immediately preceding or simultaneously with the consummation
of an initial public offering of the Company's Common Stock.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Shareholders with respect to the subject
matter hereof. There are no representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement supersedes all prior agreements
between the parties with respect to the shares of Common Stock being issued
hereunder and the subject matter hereof.
Section 7.2 Governing Law. This Agreement shall be construed
and enforced in accordance with and governed by the internal laws of the State
of New York.
Section 7.3 Notices. All notices, requests, demands and other
communications called for or contemplated hereunder shall be in writing and
shall be deemed duly given three (3) days from the date such notice is deposited
in the United States mail, postage-paid, or immediately if by hand delivery or
facsimile transmission if receipt thereof is duly acknowledged, and addressed to
the proper parties at the address set forth in the first paragraph of this
Agreement with respect to the Company and, if to a Shareholder, at its address
set forth on Exhibit C attached hereto, or at such other address as the parties
may designate by written notice on the manner aforesaid, with a copy in each
case to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Section 7.4 Survival of Representations and Warranties. All agreements,
representations and warranties contained herein shall survive the execution and
delivery of this Agreement.
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Section 7.5 Amendments and Waivers. At the option of the Company, this
Agreement may be deemed a separate bilateral agreement between the Company and
each Shareholder executing and delivering the same, notwithstanding that all of
the Shareholders do not become bound hereby or if all of the provisions hereof
are not identical for every investor. Neither this Agreement nor any provision
hereof may be modified, changed, discharged, waived or terminated except by an
instrument in writing signed by the party against whim the enforcement of any
such modification, change, discharge, waiver or termination is sought and the
same may be effected by each Shareholder separately if and when appropriate.
Section 7.6 Severability. If any provision of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to the other party or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by applicable
law.
Section 7.7 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Company, the Shareholders and their
respective legal successors, assigns, heirs, executors and administrators, but
may not be assigned by any Shareholder without the express written consent of
the Company. Nothing contained herein, expressed or implied, is intended to
confer upon any person or entity other than the parties hereto and their legal
successors, any rights or remedies under or by reason of this Agreement unless
so stated herein to the contrary.
Section 7.8 Further Actions. At any time and from time to time, each
party agrees at its expense, to take all actions and to execute and deliver all
documents as may be necessary to effectuate the purposes of this Agreement.
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Section 7.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument and may be executed by
facsimile signatures.
Section 6.10 Headings. The headings in the Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
AMERICAN MARINE RECREATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: President
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EXHIBIT A
OWNERSHIP OF MAI COMMON STOCK
MARINE AMERICA, INC.
Shareholders Number of Shares of Common Stock
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. 400
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 400
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EXHIBIT B
OWNERSHIP OF COMMON STOCK
Shareholder Number of Shares of Common Stock
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. 660
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 440
Total 1,100
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EXHIBIT C
SHAREHOLDER ADDRESSES
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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