AGREEMENT RELATING
TO ACQUISITIONS
This
AGREEMENT RELATING TO ACQUISITIONS (“Agreement”) is
entered into this 7th day of December, 2005 by and between
MarineMax, Inc., a Delaware corporation (“MarineMax”);
and the Sea Ray Division of Brunswick Corporation, a Delaware
corporation (“Sea Ray”).
RECITALS
WHEREAS, MarineMax sells and services various
boats manufactured by Sea Ray;
WHEREAS, Sea Ray and MarineMax have entered into
a Sales and Service Agreement dated December 7, 2005 (“Dealer
Agreement”);
WHEREAS, MarineMax desires to grow both
internally and through acquisitions of other Sea Ray dealers
(“Acquisitions”);
WHEREAS, Brunswick Corporation
(“Brunswick”) and MarineMax entered into an Agreement
Relating to Acquisitions dated April 28, 1998
(“Acquisition Agreement”);
WHEREAS, it is the intent of the parties to
provide a process for the continued growth of MarineMax;
WHEREAS, the parties desire to terminate the
Acquisition Agreement and replace it with this Agreement based upon
the terms and conditions herein.
NOW,
THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements herein contained, the parties
hereto agree as follows:
1. The parties agree to terminate the
Acquisition Agreement dated April 28, 1998 upon the execution
of this Agreement.
2. Subject to the procedures set forth
below, Acquisitions of Sea Ray dealers shall be mutually agreed
upon by Sea Ray and MarineMax. In considering Acquisitions,
reasonable efforts will be made to include a balance of dealers
that are successful and those that are not. In presenting possible
Acquisitions to Sea Ray, MarineMax shall follow the procedures
outlined herein. All approvals for Acquisitions shall require the
prior written consent of Sea Ray. Sea Ray will not unreasonably
withhold consent to a proposed Acquisition of a Sea Ray dealer by
MarineMax subject to the conditions set forth herein.
3. Sea Ray will not be asked to review a
Sea Ray dealer candidate for Acquisition (a
“Candidate”) unless and until such Candidate has agreed
to Sea Ray being informed of such possible Acquisition.
4. The Candidate, MarineMax or a
wholly-owned subsidiary of MarineMax, as applicable, will agree to
enter into the MarineMax Dealer Agreement.
5. In reviewing possible Candidates for
acquisitions, Sea Ray will consider certain factors, including but
not limited to the following.
a. MarineMax shall submit a business plan
for the Candidate which shall include the following
information:
(i) Candidate financial
statements
(ii) 5 year pro-forma
(iii) Marketing and advertising
plans
(iv) Service capabilities
(v) Management/staff.
(vi) Overall information on
MarineMax’s plans as to the sale and distribution of other
brands.
b. The ability of the Candidate location to
achieve Master Dealer or other applicable certification status
within two (2) years of the acquisition.
c. The ability of the Candidate location to
achieve within a reasonable period of time the defined performance
metrics as designated by Sea Ray’s dealer programs or as part
of the certification program which are applicable to all Sea Ray
dealers located in the United States.
d. A comparison of the previous Sea Ray
dealer acquisitions by MarineMax indicating MarineMax’s
success with the previous acquisitions in meeting the parameters
outlined in Paragraphs 5(a)-(c) of this Agreement for considering
new Acquisitions.
e. A determination by Sea Ray in good faith
as to whether the proposed Acquisition is in the best interest of
Sea Ray based upon the dedication and focus of MarineMax’s
resources for the Sea Ray brand. In addition, Sea Ray may make a
determination based on other factors related to Sea Ray’s
strategic and operational goals or market conditions to meet the
objectives of this Agreement.
f. Any adverse effects the approval of the
proposed Acquisition would have on the resulting territory
configuration and adjacent or other dealer sales.
6. Sea Ray will not unreasonably withhold
its consent to a proposed Acquisition of a Candidate; provided that
in making its decision, a material concern with respect to any of
the factors set forth above shall be deemed reasonable grounds to
withhold consent. Sea Ray agrees that in making its determination,
if it has a material concern which is likely to result in Sea Ray
withholding consent, Sea Ray will immediately provide a written
notice of such to MarineMax. Thereafter, the parties agree to
discuss the material concerns raised by Sea Ray in an effort to
determine in good faith if such mater
