Exhibit 99(d)(6)
TRACKER MARINE GROUP
0000 Xxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
phone: 000.000.0000 o fax: 000.000.0000
November 10, 2004
Xxxxxx Boats & Motors, Inc.
00000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Re: Voting Support Agreement
Dear Xxxxxxx:
In connection with the potential merger (the "Merger") of Xxxxxx Boats & Motors,
Inc. ("Xxxxxx") with and into TMRC, L.L.P. ("TMRC") pursuant to that certain
Agreement and Plan of Merger between Xxxxxx and TMRC (the "Merger Agreement"),
Xxxxxx and TMRC, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby agree to the terms and
conditions set forth in this Voting Support Agreement (the "Agreement"):
1. No Transfer. TMRC agrees that it shall not contract to sell, sell or
otherwise transfer or dispose of any of the shares of Xxxxxx 6% Series A
Cumulative Convertible Preferred Stock owned of record and beneficially by
TMRC (the "Shares") or any interest therein or any voting rights with
respect thereto, provided that the foregoing restrictions shall not apply
to any contract, sale, transfer or disposition made (i) to an affiliate of
TMRC (who shall be bound by the terms and conditions of this Agreement to
the same extent as TMRC), (ii) pursuant to the Merger or (iii) with the
prior written consent of Xxxxxx.
2. Voting. TMRC agrees that it shall vote all of the Shares in favor of
approving the Merger, the Merger Agreement and the transactions
contemplated thereby.
3. Termination. This Agreement and all rights and obligations hereunder shall
terminate as of the earlier of the effective time of the Merger or the
termination of the Merger Agreement by any party thereto for any reason.
4. Miscellaneous.
a. Assignment; Successors and Assigns; No Third Party Beneficiaries.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, in whole or in part, by
operation of law or otherwise by any of the parties hereto without
the prior written consent of the other parties. Subject to the
preceding sentence, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any
rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
b. Governing Law. This Agreement shall be governed by and construed
under Texas Law, without regard to the conflicts of law principles
of said State.
c. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts
have been signed by each of the parties hereto and delivered to the
other party hereto.
d. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party hereto, upon any breach or
default of any other party or parties under this Agreement shall
impair any such right, power or remedy of the non-breaching or
non-defaulting party, nor shall it be construed to be a waiver of
any such breach or default or an acquiescence thereto, or to any
similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of
any party hereto of any breach or default under this Agreement, or
any waiver on the part of any party hereto of any provisions or
conditions of this Agreement, must be made in writing and shall be
effective only to the extent specifically set forth in such writing.
e. Expenses. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party
may be entitled.
f. Amendments and Waivers. This Agreement may not be amended or
modified, and no waiver of any term or condition shall be valid,
except by an instrument in writing signed on behalf of each of the
parties hereto. The failure of any party to insist on strict
compliance with this Agreement or to assert any of its rights or
remedies hereunder or with respect hereto shall not constitute a
waiver of such rights or remedies.
g. Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be
excluded from this Agreement, and the balance of the Agreement shall
be interpreted as if such provisions were so excluded and shall be
enforceable in accordance with its terms.
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h. Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement between the parties with
respect to the subject matter hereof, and no party shall be liable
or bound to the other party in any manner by any warranties,
representations or covenants except as specifically set forth herein
or therein.
Please indicate your agreement to the foregoing terms and conditions by
countersigning this Agreement below.
Regards,
TMRC, L.L.P.
By:
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Name:
Title:
Accepted and agreed to this 10th day of November, 2004:
Xxxxxx Boats & Motors, Inc.
By:
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Name:
Title:
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