Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
MARINEMAX, INC.
1. The name of the corporation (which is hereinafter referred
to as the "Corporation") is MarineMax, Inc.
2. The original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on January 23, 1998, under the
name MarineMax, Inc.
3. This Restated Certificate of Incorporation has been duly
proposed by resolutions adopted and declared advisable by the Board of Directors
of the Corporation, by written consent action given to the stockholders of the
Corporation, and duly adopted, executed and acknowledged by an officer of the
Corporation in accordance with the provisions of Sections 103, 228(d), 242 and
245 of the General Corporation Law of the State of Delaware and, restates,
integrates and amends the provisions of the Certificate of Incorporation of the
Corporation and, upon filing with the Secretary of State in accordance with
Section 103, shall thenceforth supersede the original Certificate of
Incorporation and shall, as it may thereafter be amended in accordance with its
terms and applicable law, be the Certificate of Incorporation of the
Corporation.
4. The text of the original Certificate of Incorporation of
the Corporation is hereby amended and restated to read in its entirety as
follows:
ARTICLE I
NAME
The name of the Corporation is: MarineMax, Inc.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the
State of Delaware is The Corporation Trust Center, 1209 Orange Street,
Wilmington, County of New Castle, Delaware 19801, and the name of the
Corporation's registered agent at that address is The Corporation Trust Company.
ARTICLE III
BUSINESS
The purposes of the Corporation shall be to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended (the "GCL").
ARTICLE IV.
AUTHORIZED CAPITAL STOCK
The total number of shares of stock that the Corporation shall
have the authority to issue is Forty-five Million (45,000,000), consisting of
Forty Million (40,000,000) shares of Common Stock, par value $.001 per share
("Common Stock") and Five Million (5,000,000) shares of Preferred Stock, par
value $.001 per share ("Preferred Stock").
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors of the Corporation (the "Board") is hereby
authorized to provide for the issuance of shares of Preferred Stock in one or
more series and, by filing a certificate pursuant to the GCL (hereinafter
referred to as "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, preferences and the relative, participating, optional or
other rights of the shares of each such series and the qualifications,
limitations and restrictions thereof. The authority of the Board with respect to
each series shall include, but not be limited to, determination of the
following:
A. the designation of the series, which may be by
distinguishing number, letter or title;
B. the number of shares of the series, which number the Board
may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding);
C. whether dividends, if any, shall be cumulative or
noncumulative and the rights with respect to dividends of the series;
D. the redemption rights and price or prices, if any, for
shares of the series;
E. the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
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F. the amounts payable on, and the preferences, if any, of
shares of the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
G. whether the shares of the series shall be convertible into
shares of any other class or series, or any other security, of the Corporation
or any other corporation, and, if so, the specification of such other class or
series of such other security, the conversion price or prices or rate or rates,
any adjustments thereof, the date or dates at which such shares shall be
convertible and all other terms and conditions upon which such conversion may be
made;
H. restrictions on the issuance of shares of the same series
or of any other class or series; and
I. the voting rights, if any, of the holders of shares of the
series.
The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. The holders of shares of Common Stock
shall be entitled to one (1) vote for each such share upon all questions
presented generally to the stockholders.
The number of authorized shares of Common Stock or Preferred
Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority in voting
power of the stock of the Corporation entitled to vote thereon irrespective of
the provisions of Section 242(b)(2) of the GCL, and no vote of the holders of
either the Common Stock or the Preferred Stock voting separately as a class
shall be required therefor.
ARTICLE V
ELECTION OF DIRECTORS
A. The business and affairs of the Corporation shall be
conducted and managed by, or under the direction of, the Board. Subject to any
rights to elect directors set forth in any Preferred Stock Designation, the
total number of directors constituting the entire Board shall be not less than
one (1) nor more than fifteen (15), with the then-designated number of directors
being fixed from time to time by or pursuant to a resolution passed by the
Board. Members of the Board shall hold office until their successors are elected
and qualified or until their earlier death, resignation, disqualification or
removal.
B. Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
C. Except as otherwise provided for or fixed pursuant to the
provisions of Article IV of this Restated Certificate of Incorporation relating
to the rights of the holders of any
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series of Preferred Stock to elect additional directors, and subject to the
provisions hereof, newly created directorships resulting from any increase in
the authorized number of directors, and any vacancies on the Board resulting
from death, resignation, disqualification, removal, or other cause, may be
filled only by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board. No decrease in the
number of directors constituting the Board shall shorten the term of any
incumbent director.
D. During any period when the holders of any series of
Preferred Stock have the right to elect additional directors as provided for or
fixed pursuant to the provisions of Article IV of this Restated Certificate of
Incorporation, then upon commencement and for the duration of the period during
which such right continues (1) the then otherwise total designated number of
directors of the Corporation shall automatically be increased by such specified
number of directors, and the holders of such series of Preferred Stock shall be
entitled to elect the additional directors so provided for or fixed pursuant to
said provisions, and (2) each such additional director shall serve until such
director's successor shall have been duly elected and qualified, or until such
director's right to hold such office terminates pursuant to said provisions,
whichever occurs earlier, subject to the provisions of any Preferred Stock
Designation and to his or her earlier death, disqualification, resignation or
removal. Except as otherwise provided by the Board in the resolution or
resolutions establishing such series, whenever the holders of any series of
Preferred Stock having such right to elect additional directors are divested of
such right pursuant to the provisions of such stock, the terms of office of all
such additional directors elected by the holders of such stock, or elected to
fill any vacancies resulting from the death, resignation, disqualification or
removal of such additional directors, shall forthwith terminate and the total
designated number of directors of the Corporation shall be reduced accordingly.
E. Except for such additional directors, if any, as are
elected by the holders of any series of Preferred Stock as provided for or fixed
pursuant to the provisions of Article IV of this Restated Certificate of
Incorporation, any director may be removed from office only with cause and only
by the affirmative vote of sixty six and two-thirds percent (66 2/3%) or more of
the combined voting power of the then issued and outstanding shares of capital
stock of the Corporation entitled to vote in the election of directors, voting
together as a single class.
ARTICLE VI
MEETINGS OF STOCKHOLDERS
A. Meetings of stockholders of the Corporation may be held
within or without the State of Delaware, as the Bylaws of the Corporation may
provide. Except as otherwise provided for or fixed pursuant to the provisions of
Article IV of this Restated Certificate of Incorporation relating to the rights
of the holders of any series of Preferred Stock, special meetings of
stockholders of the Corporation may be called only by the Chairman of the Board,
or by the Board pursuant to a resolution adopted by the Board. Special meetings
of stockholders may not be called by any other person or persons or in any other
manner.
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B. In addition to the powers conferred on the Board by this
Restated Certificate of Incorporation and by the GCL, and without limiting the
generality thereof, the Board is specifically authorized from time to time, by
resolution of the Board without additional authorization by the stockholders of
the Corporation, to adopt, amend or repeal the Bylaws of the Corporation, in
such form and with such terms as the Board may determine, including, without
limiting the generality of the foregoing, Bylaws relating to: (1) regulation of
the procedure for submission by stockholders of nominations of persons to be
elected to the Board; (2) regulation of the attendance at annual or special
meetings of the stockholders of persons other than holders of record or their
proxies; and (3) regulation of the business that may properly be brought by a
stockholder of the Corporation before an annual or special meeting of
stockholders of the Corporation.
ARTICLE VII
STOCKHOLDER CONSENT
Except as otherwise provided for or fixed pursuant to the
provisions of Article IV relating to the rights of holders of any series of
Preferred Stock, no action that is required or permitted to be taken by the
stockholders of the Corporation at any annual or special meeting of stockholders
may be effected by written consent of stockholders in lieu of a meeting of
stockholders, unless the action to be effected by written consent of
stockholders and the taking of such action by such written consent have
expressly been approved in advance by the Board.
ARTICLE VIII
LIMITATION OF LIABILITY
A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the GCL.
Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
repeal or modification.
ARTICLE IX
BUSINESS COMBINATIONS; FAIR PRICE
A. In addition to any affirmative vote required by law or this Restated
Certificate of Incorporation, and except as otherwise expressly provided in
paragraph B of this Article IX:
1. any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter
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defined) with (a) any Interested Stockholder (as hereinafter
defined), or (b) any other corporation, partnership or other
entity (whether or not itself an Interested Stockholder) which
is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested
Stockholder, other than a merger enacted in accordance with
Section 253 of the GCL; or
2. any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series
of transactions) to or with any Interested Stockholder,
including all Affiliates of the Interested Stockholder, of any
assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of ten
million dollars ($10,000,000) or more; or
3. the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of
any securities of the Corporation or any Subsidiary to any
Interested Stockholder, including all Affiliates of the
Interested Stockholder, in exchange for cash, securities or
other property (or a combination thereof) having an aggregate
Fair Market Value of ten million dollars ($10,000,000) or more
(other than on a pro rata basis to all holders of Voting
Stock, as hereinafter defined, of the same class or series of
Voting Stock held by the Interested Stockholder pursuant to a
stock split, reclassification, stock dividend or distribution
of warrants or rights and other than in connection with the
exercise or conversion of securities exercisable for or
convertible into securities of the Corporation of any of its
Subsidiaries which securities have been distributed pro rata
to all holders of Voting Stock); or
4. the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of an Interested Stockholder or any Affiliates of an
Interested Stockholder; or
5. any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether or not an
Interested Stockholder is a party thereto) which has the
effect, directly or indirectly, of increasing the
proportionate share by more than one percent (1%) of the
issued and outstanding shares of any class or series of equity
or convertible securities of the Corporation or any Subsidiary
which are directly or indirectly owned by any Interested
Stockholder or one or more Affiliates of the Interested
Stockholder, other than a merger enacted in accordance with
Section 253 of the GLC;
shall require the affirmative vote of the holders of at least sixty six and
two-thirds percent (66 2/3%) of the voting power of the then issued and
outstanding Voting Stock, voting together as a single class, and, to the extent
not prohibited by the provisions of the GCL, the affirmative
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vote of the holders of at least sixty six and two-thirds percent (66 2/3%) of
the voting power of the then issued and outstanding Voting Stock not
Beneficially Owned (as hereinafter defined) directly or indirectly by an
Interested Stockholder or any Affiliate of any Interested Stockholder. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be permitted, by law or in any
agreement with any national securities exchange or otherwise.
B. The provisions of Section A of this Article IX shall not be
applicable to any particular Business Combination (as hereinafter defined), and
such Business Combination shall require only such affirmative vote as is
required by law or any other provision of this Restated Certificate of
Incorporation, if the conditions specified in either of the following paragraphs
1 or 2 are met:
1. the Business Combination shall have been approved
by a majority of the Continuing Directors (as hereinafter defined); or
2. all of the following price and procedural
conditions shall have been met:
(a) the aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash, to be
received per share by the holders of Common Stock in such
Business Combination, shall be at least equal to the highest
of the following:
(i) (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of Common
Stock acquired by it (A) within the three (3) year
period immediately prior to the first public
announcement of the proposal of such Business
Combination (the "Announcement Date"), or (B) in the
transaction in which it became an Interested
Stockholder, whichever is higher;
(ii) the Fair Market Value per share
of Common Stock on the Announcement Date or on the
date on which the Interested Stockholder became an
Interested Stockholder (the "Determination Date"),
whichever is higher; and
(iii) (if applicable) the price per
share equal to the Fair Market Value per share of
Common Stock determined pursuant to paragraph
2(a)(ii) above, multiplied by the ratio of (A) the
highest price per share (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any
shares
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of Common Stock acquired by it within the three (3)
year period immediately prior to the Announcement
Date to (B) the Fair Market Value per share of Common
Stock on the first day in such three (3) year period
upon which the Interested Stockholder acquired any
shares of Common Stock; and
(b) the aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of shares of any other class or
series, other than Common Stock or Excluded Preferred Stock
(as hereinafter defined), of issued and outstanding Voting
Stock shall be at least equal to the highest of the following
(it being intended that the requirements of this paragraph
2(b) shall be required to be met with respect to every such
class or series of issued and outstanding Voting Stock,
whether or not the Interested Stockholder has previously
acquired any shares of a particular class of Voting Stock):
(i) (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of such
class or series of Voting Stock acquired by it (A)
within the three (3) year period immediately prior to
the Announcement Date, or (B) in the transaction in
which it became an Interested Stockholder, whichever
is higher;
(ii) (if applicable) the highest
preferential amount per share to which the holders of
shares of such class or series of Voting Stock are
entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation;
(iii) the Fair Market Value per
share of such class or series of Voting Stock on the
Announcement Date or on the Determination Date,
whichever is higher; and
(iv) (if applicable) the price per
share equal to the Fair Market Value per share of
such class of Voting Stock determined pursuant to
paragraph 2(b)(iii) above, multiplied by the ratio of
(A) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for
any shares of such class or series of Voting Stock
acquired by it within the three (3) year period
immediately prior to the Announcement Date to (B) the
Fair Market Value per share of such class of Voting
Stock on the first day in such three (3) year period
upon which the Interested Stockholder acquired any
shares of such class of Voting Stock; and
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(c) the consideration to be received by
holders of a particular class or series of issued and
outstanding Voting Stock (including Common Stock and other
than Excluded Preferred Stock) shall be in cash or in the same
form as the Interested Stockholder has previously paid for
shares of such class or series of Voting Stock (if the
Interested Stockholder has paid for shares of any class of
Voting Stock with varying forms of consideration, the form of
consideration for such class or series of Voting Stock shall
be either cash or the form used to acquire the largest number
of shares of such class or series of Voting Stock previously
acquired by it); and
(d) after such Interested Stockholder has
become an Interested Stockholder and prior to the consummation
of such Business Combination: (i) there shall have been no
failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on any
issued and outstanding shares of Preferred Stock, except as
approved by a majority of the Continuing Directors; (ii) there
shall have been no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by a
majority of the Continuing Directors; (iii) there shall have
been an increase in the annual rate of dividends as necessary
fully to reflect any recapitalization (including any reverse
stock split), reorganization or any similar reorganization
which has the effect of reducing the number of issued and
outstanding shares of the Common Stock, unless the failure so
to increase such annual rate is approved by a majority of the
Continuing Directors; and (iv) such Interested Stockholder
shall not have become the Beneficial Owner of any additional
Voting Stock except as part of the transaction which results
in such Interested Stockholder becoming an Interested
Stockholder; and
(e) after such Interested Stockholder has
become an Interested Stockholder, such Interested Stockholder
shall not have received the benefit, directly or indirectly
(except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance or
any tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection with
such Business Combination or otherwise; and
(f) a proxy or information statement
describing the proposed Business Combination and complying
with the requirements of the Securities Exchange Act of 1934
and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be
mailed to stockholders of the Corporation at least thirty (30)
days prior to the consummation of such Business Combination
(whether or not such proxy or
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information statement is required to be made pursuant to such
Act or subsequent provisions).
C. For purposes of this Article IX the following terms shall
have the following meanings:
1. "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended from time
to time.
2. "Beneficial Owner" shall have the meaning ascribed
to such term in Rule 13d-3 of the General Rules and Regulations of the
Securities Exchange Act of 1934, as amended from time to time. In addition, a
Person shall be the "Beneficial Owner" of any Voting Stock which such Person or
any of its Affiliates or Associates has: (a) the right to acquire (whether such
right is exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; or (b) the right to
vote pursuant to any agreement, arrangement or understanding (but neither such
Person nor any such Affiliate or Associate shall be deemed to be the Beneficial
Owner of any shares of Voting Stock solely by reason of a revocable proxy
granted for a particular meeting of the stockholders, pursuant to a public
solicitation of proxies for such meeting, and with respect to which shares
neither such Person nor any such Affiliate of Associate is otherwise deemed the
Beneficial Owner).
3. "Business Combination" shall mean any transaction
described in any one or more of clauses (1) through (5) of Section A of this
Article IX.
4. "Continuing Director" shall mean any member of the
Board who is unaffiliated with and is not the Interested Stockholder and was a
member of the Board prior to the time that the Interested Stockholder became an
Interested Stockholder, and any director who is thereafter chosen to fill any
vacancy on the Board or who is elected and who, in either event, is unaffiliated
with the Interested Stockholder and in connection with his or her initial
assumption of office is recommended for appointment or election by a majority of
Continuing Directors then on the Board.
5. "Excluded Preferred Stock" means any series of
Preferred Stock with respect to which a majority of the Continuing Directors
have approved a Preferred Stock Designation creating such series that expressly
provides that the provisions of this Article IX shall not apply.
6. "Fair Market Value" shall mean: (a) in the case of
stock, the highest closing sale price during the thirty (30) day period
immediately preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange listed
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stocks, or, if such stock is not quoted on the composite tape, on the New York
Stock Exchange, or, if such stock is not listed on such exchange, on the
principal United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation with respect to a
share of such stock during the thirty (30) day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use in its stead, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board in accordance with Section D of
this Article IX; and (b) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by the
Board in accordance with Section D of this Article IX.
7. "Interested Stockholder" shall mean any Person to
or which:
(a) itself, or along with its Affiliates, is
the Beneficial Owner, directly or indirectly, of more than
fifteen percent (15%) of the then issued and outstanding
Voting Stock; or
(b) is an Affiliate of the Corporation and
at any time within the three (3) year period immediately prior
to the date in question was itself, or along with its
Affiliates, the Beneficial Owner, directly or indirectly, of
fifteen percent (15%) or more of the then issued and
outstanding Voting Stock; or
(c) is an assignee of or has otherwise
succeeded to any Voting Stock which was at any time within the
three (3) year period immediately prior to the date in
question beneficially owned by an Interested Stockholder, if
such assignment or succession shall have occurred in the
course of a transaction or series of transactions not
involving a public offering within the meaning of the
Securities Act of 1933.
For the purpose of determining whether a Person is an
Interested Stockholder pursuant to paragraph 7 of this Section C, the number of
shares of Voting Stock deemed to be issued and outstanding shall include shares
deemed owned through application of paragraph 2 of this Section C but shall not
include any other shares of Voting Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options or otherwise.
Notwithstanding anything to the contrary contained in this
Restated Certificate of Incorporation, for purposes of this Restated Certificate
of Incorporation, the term "Interested Stockholder" shall not, for any purpose,
include, and the provisions of Article IX(A) hereof shall not apply to: (a) the
Corporation or any Subsidiary; or (b) any employee stock ownership plan of the
Corporation or any Subsidiary.
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8. In the event of any Business Combination in which the
Corporation survives, the phrase "other consideration to be received" as used in
paragraphs 2(a) and (b) and paragraph B of this Article IX shall include the
shares of Common Stock and/or the shares of any other class of issued and
outstanding Voting Stock retained by the holders of such shares.
9. "Person" shall mean any individual, firm, corporation,
partnership or other entity.
10. "Subsidiary" shall mean any corporation or other entity of
which the Corporation owns, directly or indirectly, securities that enable the
Corporation to elect a majority of the board of directors or other persons
performing similar functions of such corporation or entity or that otherwise
give to the Corporation the power to control such corporation or entity.
11. "Voting Stock" means all issued and outstanding shares of
capital stock of the Corporation that pursuant to or in accordance with this
Restated Certificate of Incorporation are entitled to vote generally in the
election of directors of the Corporation, and each reference herein, where
appropriate, to a percentage or portion of shares of Voting Stock shall refer to
such percentage or portion of the voting power of such shares entitled to vote.
The issued and outstanding shares of Voting Stock shall not include any shares
of Voting Stock that may be issuable pursuant to any agreement, or upon the
exercise or conversion of any rights, warrants or options or otherwise.
D. The Continuing Directors of the Corporation shall have the
power and duty to determine for the purposes of this Article IX, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article IX, including, without limitation: (i)
whether a Person is an Interested Stockholder; (ii) the number of shares of
Voting Stock beneficially owned by any Person; (iii) whether a Person is an
Affiliate or Associate of another; (iv) whether the applicable conditions set
forth in paragraph 2 of paragraph B of this Article IX have been met with
respect to any Business Combination; (v) the Fair Market Value of stock or other
property in accordance with paragraph 6 of paragraph C of this Article IX; and
(vi) whether the assets which are the subject of any Business Combination have,
or the consideration to be received for the issuance or transfer of securities
by the Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of ten million dollars ($10,000,000) or more.
E. Nothing contained in this Article IX shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
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ARTICLE X.
AMENDMENT OF CORPORATE DOCUMENTS
A. In addition to any affirmative vote required by applicable
law and in addition to any vote of the holders of any series of Preferred Stock
provided for or fixed pursuant to the provisions of Article IV of this Restated
Certificate of Incorporation, any alteration, amendment, repeal or rescission (a
"Change") of any provision of this Restated Certificate of Incorporation must be
approved by at least a majority of the then serving directors and by the
affirmative vote of the holders of at least a majority of the combined voting
power of the issued and outstanding shares of Voting Stock, voting together as a
single class; provided, however, that if any such Change relates to Articles V,
VI, VII, VIII, IX, XI or XII hereof or to this Article X, such Change must also
be approved by the affirmative vote of the holders of at least sixty six and
two-thirds percent (66 2/3%) of the combined voting power of the issued and
outstanding shares of Voting Stock, voting together as a single class.
Subject to the provisions hereof, the Corporation reserves the
right at any time, and from time to time, to amend, alter, repeal or rescind any
provision contained in this Restated Certificate of Incorporation in the manner
now or hereafter prescribed by law, and other provisions authorized by the laws
of the State of Delaware at the time in force may be added or inserted, in the
manner now or hereinafter prescribed by law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this Article X.
B. In addition to any affirmative vote required by law, any
Change of the Bylaws of the Corporation may be adopted either: (i) by the Board;
or (ii) by the stockholders by the affirmative vote of the holders of at least
sixty six and two-thirds percent (66 2/3%) of the combined voting power of the
issued and outstanding shares of Voting Stock, voting together as a single
class.
ARTICLE XI.
BOARD CONSIDERATIONS UPON SIGNIFICANT EVENTS
The Board, when evaluating any (A) tender offer or invitation
for tenders, or proposal to make a tender offer or request or invitation for
tenders, by another party, for any equity security of the Corporation, or (B)
proposal or offer by another party to (1) merge or consolidate the Corporation
or any subsidiary with another corporation or other entity, (2) purchase or
otherwise acquire all or a substantial portion of the properties or assets of
the Corporation or any subsidiary, or sell or otherwise dispose of to the
Corporation or any subsidiary all or a substantial portion of the properties or
assets of such other party, or (3) liquidate, dissolve, reclassify the
securities of, declare an extraordinary dividend of, recapitalize
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or reorganize the Corporation, may take into account all factors that the Board
deems relevant, including, without limitation, to the extent so deemed relevant,
the potential impact on employees, customers, suppliers, partners, joint
venturers and other constituents of the Corporation and the communities in which
the Corporation operates.
ARTICLE XII
STRUCTURE OF BOARD OF DIRECTORS
A. The Board (other than those directors elected by the
holders of any series of Preferred Stock provided for or fixed pursuant to the
provisions of Article IV hereof ("Preferred Stock Directors")) shall be divided
into three classes, as nearly equal in number as possible, designated Class I,
Class II and Class III. Class I directors shall initially serve until the 1999
meeting of stockholders; Class II directors shall initially serve until the 2000
meeting of stockholders; and Class III directors shall initially serve until the
2001 meeting of stockholders. Commencing with the annual meeting of stockholders
in 1999, directors of each class, the term of which shall then expire, shall be
elected to hold office for a three-year term and until the election and
qualification of their respective successors in office. In case of any increase
or decrease, from time to time, in the number of directors (other than Preferred
Stock Directors), the number of directors in each class shall be apportioned as
nearly equal as possible.
B. Any director chosen to fill a vacancy or newly created
directorship shall hold office until the next election of the class for which
such director shall have been chosen and until his or her successor shall be
elected and qualified or until their earlier death, resignation,
disqualification or removal.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation
has been signed this 5th day of March, 1998.
MARINEMAX, INC.
By: /s/ William H. McGill
----------------------------------------
William (Bill) H. McGill, Jr., President
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MARINEMAX, INC.
MarineMax, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That the Board of Directors of the Corporation, by the
unanimous written consent of its members, adopted a resolution proposing and
declaring advisable a proposed amendment to the Restated Certificate of
Incorporation of the Corporation, amending Article IV thereof to read as
follows:
"ARTICLE IV
AUTHORIZED CAPITAL STOCK
The total number of shares of stock that the
Corporation shall have the authority to issue is Twenty-Five
Million (25,000,000), consisting of Twenty-Four Million
(24,000,000) shares of Common Stock, par value $.001 per share
("Common Stock") and One Million (1,000,000) shares of
Preferred Stock, par value $.001 per share ("Preferred
Stock").
The Board of Directors of the Corporation (the
"Board") is hereby authorized to increase the total number of
authorized shares to any amount consisting of any greater
number of Common Stock or Preferred Stock so long as such
amounts do no exceed Forty-Five Million (45,000,000),
consisting of Forty Million (40,000,000) shares of Common
Stock and Five Million (5,000,000) shares of Preferred Stock,
by filing a certificate of amendment pursuant to the General
Corporation Law of the State of Delaware (the "GCL").
The Preferred Stock may be issued from time to time
in one or more series. The Board is hereby authorized to
provide for the issuance of shares of Preferred Stock in one
or more series and, by filing a certificate pursuant to the
GCL (hereinafter referred to as "Preferred Stock
Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the
designation, powers, preferences, and the relative,
participating, optional, or other rights of the shares of each
such series and the
qualifications, limitations, and restrictions thereof. The
authority of the Board with respect to each series shall
include, but not be limited to, determination of the
following:
A. the designation of the series, which may be by
distinguishing number, letter or title;
B. the number of shares of the series, which number
the Board may thereafter (except where otherwise provided in
the Preferred Stock Designation) increase or decrease (but not
below the number of shares thereof then outstanding);
C. whether dividends, if any, shall be cumulative or
noncumulative and the rights with respect to dividends of the
series;
D. the redemption rights and price or prices, if any,
for shares of the series;
E. the terms and amount of any sinking fund provided
for the purchase or redemption of shares of the series;
F. the amounts payable on, and the preferences, if
any, of shares of the series in the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the
affairs of the Corporation;
G. whether the shares of the series shall be
convertible into shares of any other class or series, or any
other security, of the Corporation or any other corporation,
and, if so, the specification of such other class or series of
such other security, the conversion price or prices or rate or
rates, any adjustments thereof, the date or dates at which
such shares shall be convertible and all other terms and
conditions upon which such conversion may be made;
H. restrictions on the issuance of shares of the same
series or of any other class or series; and
I. the voting rights, if any, of the holders of
shares of the series.
The Common Stock shall be subject to the express
terms of the Preferred Stock and any series thereof. The
holders of shares of Common Stock shall be entitled to one (1)
vote for each such share upon all questions presented
generally to the stockholders.
The number of authorized shares of Common Stock or
Preferred Stock may be increased or decreased (but not below
the
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number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority in voting power of the stock
of the Corporation entitled to vote thereon irrespective of
the provisions of Section 242(b)(2) of the GCL of the State of
Delaware, and no vote of the holders of either the Common
Stock or the Preferred Stock voting separately as a class
shall be required therefor."
SECOND: That the aforesaid amendment to Article IV of the
Restated Certificate of Incorporation was duly adopted and approved by the
affirmative vote of the stockholders of the Corporation entitled to vote
thereon, in accordance with the provisions of the Restated Certificate of
Incorporation.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the applicable provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, MarineMax, Inc. has caused this
Certificate of Amendment to Restated Certificate of Incorporation to be signed
by William H. McGill, its Chief Executive Officer, as of the 28th day of
February, 2001.
MARINEMAX, INC.
By: /s/ William H. McGill
------------------------------------------
William H. McGill,
Chief Executive Officer
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