Exhibit 1.1
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
MARINEMAX, INC.
2,861,200 Shares of Common Stock, Par Value $0.001
Underwriting Agreement
February 16, 2005
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx & Associates, Inc.
As
Representatives of the
several
Underwriters listed
in
Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
MarineMax, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several Underwriters listed in Schedule I hereto (the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate of 1,000,000 shares and, at the option of the
Underwriters, up to an additional 429,000 shares, of common stock, par value $0.001 per share (the
“Stock”), of the Company and BCMM Holdings, Inc., a Delaware corporation (the “Selling
Stockholder”), proposes to sell to the Underwriters an aggregate of 1,861,200 shares of the Stock.
The aggregate of 2,861,200 shares of the Stock to be sold by the Company and the Selling
Stockholder is herein called the “Underwritten Shares” and the up to 429,000 additional shares of
the Stock to be sold by the Company at the Underwriters’ option are herein called the “Option
Shares”. The Underwritten Shares and the Option Shares are herein referred to as the “Shares”. The
Stock, including the Shares, will have attached thereto rights (the “Rights”) to purchase, at an
exercise price of $50 per share, one one-thousandth of a share of Series A Junior Participating
Preferred Stock of the Company, pursuant to a Rights Agreement (the “Rights Agreement”) dated as of
August 28, 2001 between the Company and American Stock Transfer & Trust Company.
The Company and the Selling Stockholder hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
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1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement on Form S-3 (File No. 333-122091), including Amendment No. 1 thereto, including a
prospectus (the “Basic Prospectus”) relating to the sale, in one or more offerings, by the Company
and the Selling Stockholder of up to 1,500,000 shares and 1,861,200 shares, respectively, of the
Stock, and has filed or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement specifically relating to the sale of
the Shares pursuant to Rule 424 under the Securities Act. The registration statement, including
the information, if any, deemed pursuant to Rule 430A under the Securities Act to be part of the
registration statement at the time of its effectiveness (“Rule 430A Information”), and in effect on
the date hereof is referred to herein as the “Registration Statement”; and as used herein, the term
“Prospectus” means the Basic Prospectus as amended or supplemented and as supplemented by the
prospectus supplement specifically relating to the Shares in the form first used to confirm sales
of the Shares and the term “Preliminary Prospectus” means each prospectus included in the
Registration Statement (and any amendments thereto) before it becomes effective, any prospectus
filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that omits Rule 430A
Information. If the Company has filed an abbreviated registration statement pursuant to Rule
462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein
to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Registration Statement and the Prospectus. References herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein. The terms “supplement”,
“amendment” and “amend” as used herein with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include documents filed by the Company
under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (the “Exchange Act”) subsequent to the date of this Agreement which are
deemed to be incorporated by reference therein. For purposes of this Agreement, the term
“Effective Date” means the date and time the Registration Statement became effective, and, if
later, the date of filing of the Company’s most recent Annual Report on Form 10-K.
2. Purchase of the Shares by the Underwriters. (a) The Company and the Selling
Stockholder (collectively, the “Sellers”, and each a “Seller”) agree, severally and not jointly, to
sell 1,000,000 and 1,861,200 shares, respectively, of the Stock to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, agrees, severally
and not jointly, to purchase from such Seller at a purchase price per share of $31.1125 (the
“Purchase Price”) the number of Underwritten Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the number of Underwritten Shares to be sold by such
Seller by a fraction, the numerator of which is the aggregate number of Underwritten Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the aggregate number of Underwritten Shares
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to be purchased by all the Underwriters from the Company and the Selling Stockholder hereunder.
In addition, the Company agrees to sell the Option Shares to the several Underwriters and the
Underwriters shall have the option to purchase at their election up to 429,000 Option Shares at the
Purchase Price. Each Underwriter, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, shall have the option to purchase,
severally and not jointly, from the Company at the Purchase Price that portion of the number of
Option Shares as to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction
the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to
purchase and the denominator of which is the maximum number of Option Shares which all of the
Underwriters are entitled to purchase hereunder.
The Underwriters may exercise the option to purchase the Option Shares at any time and from
time to time on or before the thirtieth day following the date of this Agreement, by written notice
from the Representatives to the Company. Such notice shall set forth the aggregate number of
Option Shares as to which the option is being exercised and the date and time when the Option
Shares are to be delivered and paid for, which may be the same date and time as the Closing Date
(as hereinafter defined) but shall not be earlier than the Closing Date nor later than the tenth
full business day (as hereinafter defined) after the date of such notice (unless such time and date
are postponed in accordance with the provisions of Section 11 hereof). Any such notice shall be
given at least two Business Days prior to the date and time of delivery specified therein.
(b) The Company and the Selling Stockholder understand that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the Shares on the terms set forth in
the Prospectus. The Company and the Selling Stockholder acknowledge and agree that the
Underwriters may offer and sell Shares to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell Shares purchased by it to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the accounts specified by the Company and the Selling Stockholder, respectively, to the
Representatives, in the case of the Underwritten Shares, at the offices of Xxxxx Xxxx & Xxxxxxxx at
10:00 A.M. New York City time on February 23, 2005, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter, as the Representatives and the
Company and the Selling Stockholder may agree upon in writing or, in the case of the Option Shares,
on the date and at the time and place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The time and date of such payment for the
Underwritten Shares are referred to herein as the “Closing Date” and the time and date for such
payment for the Option Shares, if other than the Closing Date, are herein referred to as the
“Additional Closing Date”.
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Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in definitive form
registered in such names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of the Shares duly
paid by the Company or the Selling Stockholder, as the case may be. The certificates for the
Shares will be made available for inspection and packaging by the Representatives at the office of
X.X. Xxxxxx Securities Inc. set forth above not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date or the Additional Closing Date, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter and the Selling Stockholder that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary Prospectus.
(b) Registration Statement and Prospectus. The Company satisfies all of the requirements of
the Securities Act for the use of Form S-3 for the offering of the Shares; the Registration
Statement has become effective; no order suspending the effectiveness of the Registration Statement
has been issued by the Commission and no proceeding for that purpose has been initiated or
threatened by the Commission; as of the Effective Date and the date hereof and any amendment
thereto, the Registration Statement complied and will comply in all material respects with the
Securities Act, and did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the applicable filing date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date and as of the Additional Closing Date, as the case
may be, the Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus and any amendment or supplement thereto.
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(c) Incorporated Documents. The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and
none of such documents contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) Financial Statements. The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and its subsidiaries as of the
dates indicated and the results of their operations and the changes in their cash flows for the
periods specified; such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the periods covered
thereby, and the supporting schedules included or incorporated by reference in the Registration
Statement present fairly, in all material respects, the information required to be stated therein;
the other financial information included or incorporated by reference in the Registration Statement
and the Prospectus has been derived from the accounting records of the Company and its subsidiaries
and presents fairly, in all material respects, the information shown thereby; and the pro
forma financial information included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, and the assumptions underlying such
pro forma financial information are reasonable and are set forth in the
Registration Statement and the Prospectus.
(e) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement and the Prospectus, (i)
except as otherwise disclosed in the Prospectus, there has not been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or
any material adverse change, or any development involving a prospective material adverse change, in
or affecting the business, properties, management, financial position, stockholders’ equity,
results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii)
except as otherwise disclosed in the Prospectus, neither the Company nor any of its subsidiaries
has entered into any transaction or agreement that is material to the Company and its subsidiaries
taken as a whole or incurred any liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its business from fire,
explosion, flood or other calamity,
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whether or not covered by insurance, or from any labor disturbance or dispute or any action, order
or decree of any court or arbitrator or governmental or regulatory authority, except in each case
as otherwise disclosed in the Registration Statement and the Prospectus.
(f) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or have such power or authority would not, individually
or in the aggregate, have a material adverse effect on the business, properties, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole (a “Material Adverse Effect”). The Company does not own or control,
directly or indirectly, any corporation, association or other entity other than the subsidiaries
listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the year ended September 30,
2004.
(g) Capitalization. The Company has an authorized capitalization as set forth in the
Prospectus under the heading “Capitalization”; all the outstanding shares of capital stock of the
Company (including the Shares to be sold by the Selling Stockholder) have been duly and validly
authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive
or similar rights; except as described in or expressly contemplated by the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or exchangeable securities or any such rights,
warrants or options; the capital stock of the Company conforms in all material respects to the
description thereof contained in the Registration Statement and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of any third party.
(h) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and validly taken.
(i) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(j) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid for as provided herein,
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will be duly and validly issued and will be fully paid and non-assessable and will conform to
the descriptions thereof in the Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights; the Rights Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by
equitable principles relating to enforceability; and the Rights have been duly authorized by the
Company and, when issued upon issuance of the Shares, will be validly issued, and the Series A
Junior Participating Preferred Stock has been duly authorized by the Company and validly reserved
for issuance and upon exercise of the Rights in accordance with the terms of the Rights Agreement,
will be validly issued, fully paid and non-assessable.
(k) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(l) No Conflicts. The execution, delivery and performance by the Company of this Agreement
and the issuance and sale of the Shares will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of the Company or any of
its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority, except in
the case of clauses (i) and (iii) above for such conflicts or violations that would not, singly or
in the aggregate, have a Material Adverse Effect.
(m) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement or the
issuance and sale of the Shares, except for the registration of the Shares under the Securities Act
and such consents, approvals, authorizations, orders and registrations or qualifications as may be
required by the Exchange or under applicable state securities laws in connection with the purchase
and
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distribution of the Shares by the Underwriters and such consents with respect to which the failure
to obtain would not have a Material Adverse Effect.
(n) Legal Proceedings. Except as described in the Prospectus, there are no legal,
governmental or regulatory investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which any property of the Company or
any of its subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; no such investigations, actions, suits or proceedings
are threatened or, to the best knowledge of the Company, contemplated by any governmental or
regulatory authority or threatened by others; and (i) there are no current or pending legal,
governmental or regulatory actions, suits or proceedings that are required under the Securities Act
to be described in the Prospectus that are not so described and (ii) there are no statutes,
regulations or contracts or other documents that are required under the Securities Act to be filed
as exhibits to the Registration Statement or described in the Registration Statement or the
Prospectus that are not so filed or described.
(o) Independent Accountants. Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public accountants with respect to
the Company and its subsidiaries as required by the Securities Act.
(p) Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries or (ii) could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(q) Title to Intellectual Property. The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses; and the conduct of
their respective businesses as presently conducted will not conflict in any material respect with
any such rights of others, and the Company and its subsidiaries have not received any notice of any
claim of infringement or conflict with any such rights of others.
(r) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement and the Prospectus
and that is not so described.
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(s) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will
not be required to register as an “investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(t) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof; and except as
otherwise disclosed in the Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of
their respective properties or assets.
(u) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement and the
Prospectus, except where the failure to possess or make the same would not, individually or in the
aggregate, have a Material Adverse Effect; and except as described in the Prospectus, neither the
Company nor any of its subsidiaries has received notice of any revocation or modification of any
such license, certificate, permit or authorization or has any reason to believe that any such
license, certificate, permit or authorization will not be renewed in the ordinary course.
(v) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the Company, is contemplated or
threatened.
(w) Compliance With Environmental Laws. The Company and its subsidiaries (i) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
decisions and orders relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) have not received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except in any such case for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not, individually or in the
aggregate, have a Material Adverse Effect.
(x) Compliance With ERISA. Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained,
administered or contributed to by the Company or any of its affiliates for employees or former
employees of the Company and its affiliates has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and
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regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the “Code”); no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975
of the Code, has occurred with respect to any such plan excluding transactions effected pursuant to
a statutory or administrative exemption; and for each such plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market
value of the assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(y) Accounting Controls. The Company and its subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(z) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as are adequate to protect the
Company and its subsidiaries and their respective businesses; and neither the Company nor any of
its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order to continue such
insurance or (ii) any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
(aa) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(bb) No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company
or any other subsidiary of the Company.
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(cc) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
(dd) No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission or the issuance and sale of the Shares to be sold
by the Company hereunder or, to the best knowledge of the Company, the sale of the Shares to be
sold by the Selling Stockholder hereunder.
(ee) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(ff) Business With Cuba. The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
(gg) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
Statement and the Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(hh) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement and the Prospectus is not based on or derived from sources that are reliable
and accurate in all material respects.
(ii) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities as such, to comply with Section 402,
related to loans, and Sections 302 and 906, related to certifications, of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”).
(jj) No NASD Affiliation. No officer, director or nominee for director or stockholder of the
Company has a direct or indirect affiliation or association with any member of the National
Association of Securities Dealers, Inc.
4. Representations and Warranties of the Selling Stockholder and Brunswick
Corporation. Each of the Selling Stockholder and, with respect to Section 4(b) below,
Brunswick Corporation represents and warrants to each Underwriter and the Company that:
12
(a) Required Consents; Authority. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental or regulatory body or agency is required for the
execution and delivery by the Selling Stockholder of this Agreement, and for the sale and delivery
of the Shares to be sold by the Selling Stockholder hereunder, except such consents, approvals,
authorizations, orders, registrations or qualifications as have been obtained under the Securities
Act or as may be required by the Exchange or under applicable state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares by the Underwriters; the Selling
Stockholder has full right, power and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Shares to be sold by the Selling Stockholder hereunder; and this Agreement
has been duly authorized, executed and delivered by the Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by the Selling Stockholder and
Brunswick Corporation of this Agreement, the sale of the Shares to be sold by the Selling
Stockholder and the consummation by the Selling Stockholder of the transactions herein contemplated
will not (i) conflict with or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder or Brunswick Corporation is a party or by
which the Selling Stockholder or Brunswick Corporation is bound or to which any of the property or
assets of the Selling Stockholder or Brunswick Corporation are subject, (ii) result in any
violation of the provisions of the certificate of incorporation or by-laws of the Selling
Stockholder or Brunswick Corporation or (iii) result in the violation of any law or statute
applicable to the Selling Stockholder or Brunswick Corporation or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory agency having jurisdiction over the Selling Stockholder or
Brunswick Corporation.
(c) Title to Shares. The Selling Stockholder has good and valid title to the Shares to be
sold at the Closing Date by the Selling Stockholder hereunder, free and clear of all liens,
encumbrances, security interests or adverse claims; the Selling Stockholder will have, immediately
prior to the Closing Date, good and valid title to the Shares to be sold at the Closing Date by the
Selling Stockholder, free and clear of all liens, encumbrances, security interests or adverse
claims; and, upon delivery of the certificates representing such Shares and payment therefor
pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances,
security interests or adverse claims, will pass to the several Underwriters.
(d) No Stabilization. The Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Shares.
(e) Material Information. As of the date hereof and as of the Closing Date, as the case may
be, the sale of the Shares by the Selling Stockholder is not and will not be prompted by any
material information concerning the Company which is not set forth in the Registration Statement or
the Prospectus.
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(f) Registration Statement and Prospectus. As of the Effective Date and the date hereof and
any amendment thereto, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the applicable filing date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will
not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the representations
and warranties set forth in this paragraph 4(f) are limited to statements or omissions made in
reliance upon and in conformity with information relating to the Selling Stockholder or Brunswick
Corporation furnished to the Company in writing by the Selling Stockholder expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement thereto as identified in
Section 8(b) hereof.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Effectiveness of the Registration Statement. The Company will file the final Prospectus
with the Commission within the time periods specified by Rule 424(b) and Rule 430A under the
Securities Act and will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale of the Shares; and
the Company will furnish copies of the Prospectus to the Underwriters in New York City prior to
10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
three signed copies of the Registration Statement as originally filed and each amendment thereto,
in each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter upon request (A) a conformed copy of the
Registration Statement as originally filed and each amendment thereto (without exhibits) and (B)
during the Prospectus Delivery Period, as many copies of the Prospectus (including all amendments
and supplements thereto and documents incorporated by reference therein) as the Representatives may
reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of
time after the first date of the public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be delivered in connection
with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Company will furnish to the Representatives and counsel for the
Underwriters a copy of the proposed amendment or supplement for review and will not file any such
proposed amendment or supplement to which the Representatives reasonably objects.
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(d) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request by the Commission for any
additional information; (iv) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose;
(v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not misleading; and
(vi) of the receipt by the Company of any notice with respect to any suspension of the
qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and the Company will use commercially reasonable efforts to
prevent the issuance of any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any
such qualification of the Shares and, if any such order is issued, will use commercially reasonable
efforts to obtain as soon as practicable the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii)
it is necessary to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c)
above, file with the Commission and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
15
(g) Earnings Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earnings statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration
Statement.
(h) Clear Market. For a period of 90 days after the date of this Agreement, the Company will
not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Stock or any
securities convertible into or exercisable or exchangeable for Stock or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic consequences of ownership
of the Stock, whether any such transaction described in clause (i) or (ii) above is to be settled
by delivery of Stock or such other securities, in cash or otherwise, without the prior written
consent of the Representatives, other than (a) the Shares to be sold hereunder, (b) any shares of
Stock of the Company issued upon the exercise of options granted under existing employee stock
option plans, (c) grants by the Company of employee stock options or restricted stock pursuant to
the terms of a plan in effect on the date hereof, (d) the filing by the Company of any registration
statement with the Commission on Form S-8 relating to the offering of securities pursuant to the
terms of a plan in effect on the date hereof, and (e) shares of Stock (or options, warrants or
convertible securities in respect thereof) in connection with a bona fide merger or acquisition
transaction provided that the Stock (or options, warrants or convertible securities in respect
thereof) so issued is subject to the terms of a duplicate form of the lock-up agreement set forth
in Exhibit A hereto. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day
restricted period the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period beginning on the
last day of the 90-day period, the restrictions imposed by this Agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as
described in the Prospectus under the heading “Use of Proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(k) Exchange Listing. The Company will use commercially reasonable efforts to list, subject
to notice of issuance, the Shares on the New York Stock Exchange (the “Exchange”).
(l) Reports. To the extent not available through the Commission’s XXXXX system, for a period
of two years from the date hereof, the Company will furnish to the Representatives, as soon as they
are available, copies of all reports or other communications (financial or other)
16
furnished to holders of the Shares, and copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange or automatic quotation system.
6. Further Agreements of the Selling Stockholder. The Selling Stockholder covenants
and agrees with each Underwriter that:
(a) Clear Market. For a period of 90 days after the date of this Agreement, the Selling
Stockholder will not (i) offer, pledge, announce the intention to sell, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any
shares of the Stock or any securities convertible into or exercisable or exchangeable for the Stock
or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Stock, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of the Stock or such other securities, in cash or
otherwise or (iii) make any demand for or exercise any right with respect to the registration of
any shares of the Stock or any security convertible into or exercisable or exchangeable for the
Stock without the prior written consent of the Representatives, in each case other than the Shares
to be sold by the Selling Stockholder hereunder. Notwithstanding the foregoing, if (1) during the
last 17 days of the 90-day restricted period the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (2) prior to the expiration of the
90-day restricted period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 90-day period, the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or material event.
(b) Tax Form. It will deliver to the Representatives prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by the Treasury Department regulations in lieu thereof) in order to
facilitate the Underwriters’ documentation of their compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated.
7. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by, with respect to the
Closing Date or the Additional Closing Date, as the case may be, the Company and, with respect to
the Closing Date only, the Selling Stockholder of their respective covenants and other obligations
hereunder and to the following additional conditions (it being agreed and understood,
notwithstanding anything contained herein to the contrary, the following conditions relating to the
Selling Stockholder must only be complied with by the Selling Stockholder with respect to the
Closing Date):
(a) Registration Compliance; No Stop Order. The Registration Statement (or if a
post-effective amendment thereto is required to be filed under the Securities Act, such
post-effective amendment) shall have become effective, and the Representatives shall have received
17
notice thereof, not later than 5:00 P.M., New York City time, on the date hereof; no order
suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose shall be pending before or threatened by the Commission; the Prospectus shall have
been timely filed with the Commission under the Securities Act and in accordance with Section 5(a)
hereof; and all requests by the Commission for additional information shall have been complied
with.
(b) Representations and Warranties. The respective representations and warranties of the
Company and the Selling Stockholder contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers and of the Selling Stockholder made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date or the
Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded any securities or preferred stock of or
securities guaranteed by the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization”, as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, or has changed its outlook with respect to, its rating of
any securities or preferred stock of or securities guaranteed by the Company or any of its
subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement,
no event or condition of a type described in Section 3(e) hereof shall have occurred or shall
exist, which event or condition is not described in the Prospectus (excluding any amendment or
supplement thereto) and the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate (i) of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is reasonably satisfactory to the Representatives (A) confirming that such officers
have carefully reviewed the Registration Statement and the Prospectus and, to the best knowledge of
such officers, the representation of the Company set forth in Section 3(b) hereof is true and
correct, (B) confirming that the other representations and warranties of the Company in this
Agreement are true and correct and that the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date,
(C) to the effect set forth in paragraphs (a), (c) and (d) above, (D) certifying that the
financial, accounting and statistical data found under the headings “Executive Compensation”,
“Equity Compensation Plan Information” and “Proposal to Amend Our 1998 Employee Stock Purchase
Plan” in the Company’s proxy statement filed with the Commission on December 27, 2004 are accurate
and complete in all material respects and (E) certifying that the
18
financial accounting and statistical data found in the Prospectus relating to record and beneficial
ownership of the Stock, including under the heading “Principal and selling stockholders”, are
accurate and complete in all material respects and (ii) of the Selling Stockholder, in form and
substance reasonably satisfactory to the Representatives, confirming that the other representations
and warranties of the Selling Stockholder in this Agreement are true and correct and that the
Selling Stockholder has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, Ernst & Young LLP shall have furnished to the Representatives, at
the request of the Company, letters, dated the respective dates of delivery thereof and addressed
to the Underwriters, in form and substance reasonably satisfactory to the Representatives,
containing statements and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information
contained or incorporated by reference in the Registration Statement and the Prospectus; provided,
that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be
shall use a “cut-off” date no more than three business days prior to such Closing Date or such
Additional Closing Date, as the case may be.
(g) Opinion of Counsel for the Company. Xxxxxxxxx Xxxxxxx, LLP, counsel for the Company,
shall have furnished to the Representatives, at the request of the Company, its written opinion,
dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect
set forth in Annex A hereto.
(h) Opinion of Counsel for the Selling Stockholder. Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel
for the Selling Stockholder, shall have furnished to the Representatives, at the request of the
Selling Stockholder, its written opinion, dated the Closing Date and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, to the effect set forth in
Annex B hereto.
(i) Opinion of Counsel for the Underwriters. The Representatives shall have received on and
as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Xxxxx Xxxx
& Xxxxxxxx, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the Closing Date or
the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares.
19
(k) Good Standing. The Representatives shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its subsidiaries in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representatives may reasonably
request, in each case in writing or any standard form of telecommunication from the appropriate
Governmental Authorities of such jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing Date or Additional Closing
Date, as the case may be, shall have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between the Representatives and certain stockholders, officers and directors of the
Company, as set forth in Schedule II hereto, relating to sales and certain other dispositions of
shares of Stock or certain other securities, delivered to you on or before the date hereof, shall
be in full force and effect on the Closing Date or the Additional Closing Date, as the case may be.
(n) Additional Documents. On or prior to the Closing Date or, with respect to the Company,
the Additional Closing Date, as the case may be, the Company and, if applicable, the Selling
Stockholder shall have furnished to the Representatives such further certificates and documents as
the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other reasonable expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use therein, it
being understood and agreed that the only such information furnished by any Underwriter consists of
the information described as such in
20
subsection (c) below. The foregoing indemnity agreement with respect to any Preliminary Prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased any Shares, or any of its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, if a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required by law to have so
been delivered, at or prior to the written confirmation of the sale of the Shares to such person,
and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 5(b) hereof.
(b) Indemnification of the Underwriters by the Selling Stockholder and Brunswick Corporation.
Each of the Selling Stockholder and Brunswick Corporation, jointly and severally, agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other reasonable expenses
incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and
expenses are incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or
the Prospectus (or any amendment or supplement thereto) or any Preliminary Prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the indemnity agreement of the Selling Stockholder and
Brunswick Corporation set forth in this paragraph 8(b) shall be limited to such statements or
omissions that are made in reliance upon and in conformity with information relating to the Selling
Stockholder or Brunswick Corporation furnished to the Company in writing by the Selling Stockholder
expressly for use in the Registration Statement, the Prospectus or any Preliminary Prospectus, and
any amendment or supplement thereto, it being understood and agreed that the only such information
furnished by the Selling Stockholder consists of the following information in the Prospectus: the
first paragraph and the first, second, third and fourth sentences appearing in the third paragraph
of footnote (13) under the caption “Principal and selling stockholders”, and footnote (1) and the
first, second, third and fourth sentences appearing in the final paragraph under the caption
“Selling stockholder”. The foregoing indemnity agreement with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased any Shares, or any of its affiliates,
directors and officers and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, if a copy of the Prospectus (as
then amended or supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by
law to have so been delivered, at or prior to the written confirmation of the sale of the Shares to
such person, and if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such
21
losses, claims, damages or liabilities, unless such failure is the result of noncompliance by the
Company with Section 5(b) hereof.
(c) Indemnification of the Company and the Selling Stockholder. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless (i) the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii)
the Selling Stockholder, its respective affiliates, directors and officers and each person, if any,
who controls the Selling Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus (or any amendment or supplement thereto) or any
Preliminary Prospectus, it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in the third paragraph
under the caption “Underwriting” and the information relating to stabilizing transactions and
passive market making contained in the thirteenth and fourteenth paragraphs under the caption
“Underwriting”.
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section
8, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 8 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 8. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 8 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
22
Indemnified Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by X.X. Xxxxxx Securities Inc., any such separate firm for the
Company, its directors, its officers who signed the Registration Statement and any control persons
of the Company shall be designated in writing by the Company and any such separate firm for the
Selling Stockholder, its respective affiliates, directors and officers and any control persons of
the Selling Stockholder shall be designated in writing by the Selling Stockholder. The
Indemnifying Person shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) and (c) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by such Indemnifying Person
on the one hand and such Indemnified Person on the other from the offering of the Shares or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of such Indemnifying Person on the one hand and such Indemnified Person on the other
in connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholder, on the one hand, and the Underwriters, on the
other, from the offering of the Shares shall be deemed to be in the same
23
respective proportions as the net proceeds (before deducting expenses) received by each of the
Company and the Selling Stockholder from the sale of the Shares and the total underwriting
discounts and commissions received by the Underwriters in connection therewith, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the
Shares. The relative fault of the Company and the Selling Stockholder on the one hand and the
Underwriters on the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling Stockholder or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) Limitation on Liability. The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (e) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in paragraph (e)
above shall be deemed to include, subject to the limitations set forth above, any reasonable legal
or other reasonable expenses incurred by such Indemnified Person in connection with any such action
or claim. Notwithstanding the provisions of this Section 8, in no event shall an Underwriter be
required to contribute any amount in excess of the amount by which the total underwriting discounts
and commissions received by such Underwriter with respect to the offering of the Shares exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. Furthermore, notwithstanding
the foregoing provisions of this Section 8, the Selling Stockholder shall not be required to
contribute an amount in excess of the net proceeds from the offering of the Shares (before
deducting expenses) received by it hereunder. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to this Section 8 are several in proportion to their respective purchase
obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
9. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
10. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company and the Selling Stockholder, if after the execution and
delivery of this Agreement and prior to the Closing Date or, in the case of the Option Shares,
prior to the Additional Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the
24
Chicago Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis, either within or
outside the United States, that, in the judgment of the Representatives, is material and adverse
and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Shares on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in
the manner contemplated by this Agreement and the Prospectus.
11. Defaulting Underwriter. (a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory to the Company and
the Selling Stockholder on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholder shall be entitled to a further period of
36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree to purchase the
Shares of a defaulting Underwriter, either the non-defaulting Underwriters or the Company and the
Selling Stockholder may postpone the Closing Date or the Additional Closing Date, as the case may
be, for up to five full business days in order to effect any changes that in the opinion of counsel
for the Company, counsel for the Selling Stockholder or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires,
any person not listed in Schedule I hereto that, pursuant to this Section 11, purchases Shares that
a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholder shall have the right to require each non-defaulting Underwriter to purchase
the number of Shares that such Underwriter agreed to purchase hereunder on such date plus such
Underwriter’s pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds one-
25
eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and the
Selling Stockholder shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on the Additional Closing Date, as the case may be, shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 11 shall be without liability on the part of the Company and the Selling
Stockholder, except that the Company and the Selling Stockholder, as the case may be, will continue
to be liable for the payment of expenses as set forth in Section 12 hereof and except that the
provisions of Section 8 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholder or any non-defaulting Underwriter for damages caused
by its default.
12. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company and the Selling Stockholder
will pay or cause to be paid, in accordance with the terms of that certain Registration Agreement
dated as of December 10, 2004 among the Company, Brunswick Corporation and the Selling Stockholder,
all costs and expenses incident to the performance of their obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Shares and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, any
Preliminary Prospectus and the Prospectus (including all exhibits, amendments and supplements
thereto) and the distribution thereof; (iii) the costs, if any, of reproducing and distributing
this Agreement; (iv) the fees and expenses of the Company’s counsel and independent accountants;
(v) the fees and expenses of the Selling Stockholder’s counsel; (vi) the fees and expenses incurred
in connection with the registration or qualification and determination of eligibility for
investment of the Shares under the laws of such jurisdictions as the Representatives may designate
and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees
and expenses of counsel for the Underwriters), not to exceed $7,500; (vii) the cost of preparing
stock certificates representing the Shares; (viii) the costs and charges of any transfer agent and
any registrar; (ix) all expenses and application fees incurred in connection with any filing with,
and clearance of the offering by, the National Association of Securities Dealers, Inc.; (x) all
expenses incurred by the Company and the Selling Stockholder in connection with any “road show”
presentation to potential investors; and (xi) all expenses and application fees related to the
listing of the Shares on the Exchange.
(b) If (i) this Agreement is terminated pursuant to Section 10, (ii) the Company or the
Selling Stockholder for any reason fails to tender the Shares for delivery to the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted under this Agreement
(other than a termination of this Agreement pursuant to Section 11 hereof), the Company and the
Selling Stockholder, jointly and severally, agree to reimburse the Underwriters for all reasonable
out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby; provided, however that in the case of a failure to tender shares by the
26
Selling Stockholder only or by the Company only (either, a “non-tendering party”) or the taking or
failure to take any action by the Selling Stockholder only or by the Company only (either, a
“breaching party”) permitting the Underwriters to decline to purchase the Shares, such
non-tendering party or breaching party, as the case may be, shall be solely responsible for
reimbursing the Underwriters under this paragraph 12(b). Except as provided in this Section 12 or
in Section 8, the Underwriters will pay all of their costs and expenses, including fees and
expenses of their counsel, stock transfer taxes payable on resale of any of the Shares by them and
any advertising expenses connected with any offers they may.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 8 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
14. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholder and the Underwriters contained in
this Agreement or made by or on behalf of the Company, the Selling Stockholder or the Underwriters
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery
of and payment for the Shares and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the Company, the Selling
Stockholder or the Underwriters.
15. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
16. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any
such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives at c/o X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000), Attention:
Syndicate Desk; with a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, (Fax: 000-000-0000), Attention: Xxxxxxxx Xxxxxxxx, Esq. Notices to the Company shall be
given to it at MarineMax, Inc., 00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
(Fax: 000-000-0000), Attention: Xxxxxxx X. XxXxxx; with a copy to Xxxxxxxxx Traurig, LLP, 0000 Xxxx
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, (Fax: 000-000-0000), Attention Xxxxxx X. Xxxx,
Esq. Notices to the Selling Stockholder
27
shall be given to it c/o Brunswick Corporation, and notices to Brunswick Corporation shall be
given to it, at 0 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000, (Fax: 000-000-0000), Attention:
General Counsel; with a copy to Sidley Xxxxxx Xxxxx & Xxxx LLP, Bank One Plaza, 00 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, (Fax: 000-000-0000), Attention Xxxxx X. Xxxxxx, Esq.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
28
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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Very truly yours,
MARINEMAX, INC. |
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By: |
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Name: |
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Title: |
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BCMM HOLDINGS, INC. |
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By: |
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Name: |
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Title: |
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BRUNSWICK CORPORATION |
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By: |
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Name: |
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Title: |
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Accepted: February , 2005
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
For itself and on behalf of the
several Underwriters listed
in Schedule I hereto.
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Schedule I
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Underwriter |
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Number of Shares |
X.X. Xxxxxx Securities Inc. |
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1,430,600 |
Xxxxxxx Xxxxx & Associates, Inc. |
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1,430,600 |
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Total |
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2,861,200 |
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Schedule II
Shareholders, officers and directors of the Company who will deliver executed “lock-up” agreements
to the Representatives pursuant to Section 7(m) hereof:
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxx, III
Xxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. XxXxxx Xx.
Xxxxxxx X. XxXxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
31
Annex A
FORM OF OPINION OF XXXXXXXXX TRAURIG, LLP
(a) The Registration Statement was declared effective under the Securities Act as of the date
and time specified in such opinion; the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date
specified therein; and no order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or, to the best knowledge of such counsel,
threatened by the Commission.
(b) The Registration Statement and the Prospectus (other than the financial statements and
related schedules and other financial and statistical data included therein, as to which such
counsel need express no opinion) comply as to form in all material respects with the requirements
of the Securities Act.
(c) The Company and each of its subsidiaries have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses requires such
qualification, and have all corporate or limited liability company, as the case may be, power and
authority necessary to own or hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have a Material Adverse Effect.
(d) The Company has an authorized capitalization on an “actual basis” as set forth in the
Prospectus under the heading “Capitalization”; all the outstanding shares of capital stock of the
Company (including the Shares to be sold by the Selling Stockholder) have been duly and validly
authorized and issued and are fully paid and non-assessable; the capital stock of the Company
conforms in all material respects to the description thereof contained in the Registration
Statement and the Prospectus; and all the outstanding shares of capital stock or other equity
interests of each subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable.
(e) The Company has the corporate power and authority to execute and deliver the Underwriting
Agreement and to perform its obligations thereunder; and all action required to be taken by the
Company for the due and proper authorization, execution, delivery of the Underwriting Agreement and
the consummation by the Company of the transactions contemplated thereby have been duly and validly
taken.
(f) The Underwriting Agreement has been duly authorized, executed, and delivered by the
Company.
32
(g) The Shares to be issued and sold by the Company under the Underwriting Agreement have been
duly authorized, and when delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will be validly issued, fully paid, and non-assessable and the
issuance of the Shares is not subject to any preemptive or similar rights.
(h) Neither the Company nor any of its subsidiaries is (i) in violation of its charter or
by-laws or similar organizational documents; (ii) to the knowledge of such counsel, in default, and
no event has occurred that, with notice or lapse of time or both, would constitute such a default,
in the due performance or observance by the Company of any term, covenant, or condition contained
in any indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or assets is subject;
or (iii) to the knowledge of such counsel, in violation of any law or statute or any judgment,
order, rule, or regulation of any court or arbitrator or governmental or regulatory authority,
except in the case of clauses (ii) and (iii) for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(i) The execution, delivery, and performance by the Company of the Underwriting Agreement, the
issuance and sale of the Shares to be sold by the Company and delivered on the Closing Date or the
Additional Closing Date, as the case may be, and compliance by the Company with the terms of, and
the consummation of the transactions by the Company contemplated by, the Underwriting Agreement
will not (i) conflict with or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of any lien, charge, or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries
are bound or to which any of the property or assets of the Company or any of its subsidiaries are
subject and which are set forth in any document filed as an exhibit to or incorporated by reference
in the Registration Statement, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii)
result in the violation of any law or statute or any judgment, order or regulation of any court or
arbitrator or governmental or regulatory authority except, in the case of clauses (i) and (iii)
above, for such conflict, breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(j) No consent, approval, authorization, order, registration, or qualification of or with any
court or arbitrator or governmental or regulatory authority is required for the execution, delivery
and performance by the Company of the Underwriting Agreement, the issuance and sale of the Shares
to be sold by the Company and delivered on the Closing Date or the Additional Closing Date, as the
case may be, and compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Underwriting Agreement, except for the registration of the Shares
under the Securities Act and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters.
33
(k) To the best knowledge of such counsel, except as described in the Prospectus, there are no
legal, governmental, or regulatory investigations, actions, suits, or proceedings pending to which
the Company or any of its subsidiaries is or may be a party or to which any property of the Company
or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect; and to the best knowledge of such counsel, no such investigations,
actions, suits, or proceedings are threatened or contemplated by any governmental or regulatory
authority or threatened by others.
(l) The descriptions in the Prospectus of statutes, legal, governmental and regulatory
proceedings and contracts and other documents are accurate in all material respects; the statements
in the Prospectus under the headings “Description of capital stock”, “Use of proceeds”,
“Business—Brunswick agreement relating to acquisitions”, “Business—Dealer agreements with
Brunswick” and “Business—Environmental and other regulatory issues”, in the Prospectus incorporated
by reference from the statements under the heading “Certain Transactions and Relationships” in the
Company’s proxy statement filed with the Commission on December 27, 2004, in the Prospectus
incorporated by reference from the Company’s registration statement on Form 8-A (Registration No.
1-14173) filed with the Commission on May 28, 1998, in the Prospectus incorporated by reference
from the Company’s registration statement on Form 8-A (Registration No. 1-14173) filed with the
Commission on September 5, 2001 and in the Registration Statement in Item 15, to the extent that
they constitute summaries of the terms of stock, matters of law or regulation, or legal
conclusions, fairly summarize the matters described therein in all material respects; and, to the
best knowledge of such counsel, (A) there are no current or pending legal, governmental, or
regulatory actions, suits, or proceedings that are required under the Securities Act to be
described in the Prospectus and that are not so described and (B) there are no statutes,
regulations, or contracts and other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement or described in the Prospectus and that have not
been so filed or described.
(m) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus, will not be required to
register as an “investment company” or an entity “controlled” by an “investment company” within the
meaning of the Investment Company Act.
(n) The documents incorporated by reference in the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Closing Date or the Additional Closing Date, as
the case may be, (other than the financial statements and related schedules and other financial and
statistical data included therein, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when such documents became effective or were so filed, as the
case may be contained, in the case of a registration statement that became effective under the
Securities Act, any untrue statement of material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
34
therein not misleading, or, in the case of other documents which were filed under the Exchange Act
with the Commission, any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statement therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading.
(o) The Rights Agreement has been duly authorized, executed, and delivered by the Company; the
Rights have been duly authorized by the Company, and, when issued upon issuance of the Shares, will
be validly issued; and the Series A Junior Participating Preferred Stock of the Company have been
duly authorized by the Company and validly reserved for issuance upon the exercise of the Rights
and, when issued upon such exercise in accordance with the terms of the Rights Agreement, will be
validly issued, fully paid, and non-assessable.
(p) There are no legal or governmental proceedings pending, or to the knowledge of such
counsel, threatened against or affecting the Company or any of its subsidiaries under any
Environmental Law that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(q) To the best knowledge of such counsel, each of the Company and its subsidiaries owns,
possesses or has obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all Governmental
Authorities (including foreign regulatory agencies), all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as of the date hereof, except
where the failure to own, possess or obtain such authorizations or make such declarations and
filings would not, individually or in the aggregate, have a Material Adverse Effect; and to best
the knowledge of such counsel, neither the Company nor any such subsidiary has received any actual
notice of any proceeding relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except as described in the
Registration Statement and the Prospectus; and to the best knowledge of such counsel, each of the
Company and its subsidiaries is in compliance with all laws and regulations relating to the conduct
of its business as conducted as of the date of the Prospectus, except where the failure to comply
with such laws and regulations would not, individually or in the aggregate, have a Material Adverse
Effect.
Such counsel shall also state that they have participated in conferences with representatives
of the Company and with representatives of its independent accountants and with the Underwriters
and Underwriters’ counsel at which conferences the contents of the Registration Statement and the
Prospectus and any amendment and supplement thereto and related matters were discussed and,
although such counsel assumes no responsibility for the accuracy, completeness, or fairness of the
Registration Statement, the Prospectus and any amendment or supplement thereto (except as expressly
provided above), nothing has come to the attention of such counsel to cause such counsel to believe
that the Registration Statement or any prospectus included therein, at the time the Registration
Statement became effective or on the date of the Underwriting Agreement, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the Prospectus or any
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amendment or supplement thereto as of its date or the Closing Date contains any untrue statement of
a material fact or omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (other than the financial
statements and related schedules and other financial and statistical data included therein, as to
which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of fact on certificates of
responsible officers of the Company and public officials that are furnished to the Underwriters.
The opinion of Xxxxxxxxx Xxxxxxx, LLP described above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
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Annex B
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX LLP
We have acted as special counsel to BCMM Holdings, Inc., a Delaware corporation (the “Selling
Stockholder”), in connection with its sale to the several Underwriters (the “Underwriters”) named
in Schedule I to the Underwriting Agreement dated February 16, 2005 (the “Underwriting Agreement”)
among you, as representatives for the Underwriters, MarineMax, Inc., a Delaware corporation
(“MarineMax”), Brunswick Corporation, a Delaware corporation, and the Selling Stockholder of
1,861,200 shares of MarineMax’s common stock, $.001 par value per share (the “Shares”).
This letter is being furnished to you at the request of the Selling Stockholder. Pursuant to
the requirements of Section 7(h) of the Underwriting Agreement, this letter will advise you that,
in the opinion of the undersigned:
1. The Underwriting Agreement has been duly authorized, executed and delivered by the
Selling Stockholder.
2. Immediately prior to the consummation of the sale of the Shares by the Selling
Stockholder pursuant to the Underwriting Agreement, the Selling Stockholder was the holder
of record of the Shares (based solely on a review of a photocopy of the stock certificate
evidencing the Shares and a certificate of an officer of the Selling Stockholder), to our
knowledge, free and clear of all liens, encumbrances, security interests or adverse claims.
3. Upon payment to the Selling Stockholder of the purchase price for the Shares as
provided in the Underwriting Agreement, delivery of the Shares, as directed by the
Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The
Depository Trust Company (“DTC”), registration of the Shares in the name of Cede or such
other nominee and the crediting of the Shares on the records of DTC to “securities accounts”
(as defined in Section 8-501(a) of the Uniform Commercial Code as in effect on the date
hereof in the State of New York (the “UCC”)) of the Underwriters, (i) DTC will be a
“protected purchaser” of the Shares within the meaning of Section 8-303 of the UCC, (ii) the
Underwriters will acquire a “security entitlement” (within the meaning of Section 8-501 of
the UCC) in respect of the Shares and (iii) no action based on any “adverse claim” (as
defined in Section 8-102 of the UCC) to the Shares may be asserted against the Underwriters
with respect to such security entitlement. For purposes of rendering the opinion set forth
in this paragraph, we have assumed that when such payment, delivery and crediting of the
Shares occur, (a) the Shares will have been registered in the name of Cede or another
nominee designated by DTC, in each case on MarineMax’s share registry in accordance with
MarineMax’s Certificate of Incorporation and By-Laws (in each case as amended) and
applicable law, (b) DTC will be registered as a “clearing corporation” within the meaning of
Section 8-102 of the UCC, (c) appropriate book entries to credit the Shares to the
securities accounts of the Underwriters on the records of DTC will have been made as
contemplated by the UCC, (d) the jurisdiction of DTC is the State of New York and (e) none
of DTC, Cede, any such other nominee or any
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Underwriter will have “notice of an adverse claim” to any of the Shares within the
meaning of Section 8-105 of the UCC.
4. The sale by the Selling Stockholder of the Shares and the execution and delivery by
the Selling Stockholder of, and the performance by the Selling Stockholder of its
obligations under, the Underwriting Agreement, and the consummation by the Selling
Stockholder of the transactions contemplated therein, (i) have been duly authorized on the
part of the Selling Stockholder, (ii) to our knowledge, will not result in a breach of any
of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, (iii) will not result in any
violation of the provisions of the Certificate of Incorporation or By-laws of the Selling
Stockholder, (iv) will not result in any violation of any applicable law or statute and (v)
to our knowledge, will not result in any violation of any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Selling Stockholder.
5. No consent, approval, authorization, order, registration or qualification of or with
any court or governmental agency or body having jurisdiction over the Selling Stockholder is
required for the sale by the Selling Stockholder of the Shares or the consummation by the
Selling Stockholder of the transactions contemplated by the Underwriting Agreement, except
such consents, approvals, authorizations, registrations or qualifications as have been
obtained under the Securities Act and as may be required by the New York Stock Exchange or
under applicable state securities or Blue Sky laws (as to which we express no opinion) in
connection with the purchase and distribution of the Shares by the Underwriters.
For the purpose of expressing the foregoing opinions, we have relied, as to various questions
of fact material thereto, upon the representations made in the Underwriting Agreement and upon
certificates of officers of the Selling Stockholder. We also have examined originals, or copies of
originals certified to our satisfaction, of such agreements, documents, certificates and other
statements of government officials and other instruments, have examined such questions of law and
have satisfied ourselves as to such matters of fact as we have considered relevant and necessary as
a basis for this letter. We have assumed the genuineness of all signatures, the legal capacity of
all natural persons, the authenticity of all documents submitted to us as originals and the
conformity with the original documents of all documents submitted to us as certified or photostatic
copies or by facsimile or other means of electronic transmission. With respect to any instrument
or agreement executed or to be executed by any party other than the Selling Stockholder, we have
assumed, to the extent relevant to the opinions set forth herein, that (i) such other party (if not
a natural person) has been duly organized and is validly existing and in good standing under the
laws of its jurisdiction of organization and (ii) such other party has full right, power and
authority to execute, deliver and perform its obligations under each instrument or agreement to
which it is a party and each such instrument or agreement has been duly authorized (if applicable),
executed and delivered by, and is a valid, binding and enforceable agreement or obligation, as the
case may be, of, such other party.
Any opinion or statement herein which is expressed to be “to our knowledge” or is otherwise
qualified by words of like import means that the lawyers currently practicing law with
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this Firm who have had an active involvement in the transactions contemplated by the Underwriting
Agreement have no current awareness of any facts or information contrary to such opinion or
statement.
This letter is limited to the General Corporation Law of the State of Delaware, the federal
laws of the United States of America and the laws of the State of New York. We assume no
obligation to update or supplement this letter to reflect any facts or circumstances which may
hereafter come to our attention with respect to the statements set forth in this letter, including
any changes in applicable law which may hereafter occur.
This letter is being delivered solely to and for the benefit of the persons to whom it is
addressed in connection with the matter described above; accordingly, it may not be quoted or
otherwise delivered to or relied upon by any other person (including, without limitation, any
person who acquires any of the Shares from any Underwriter) or utilized for any other purpose
without our prior written consent.
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Exhibit A
FORM OF LOCK-UP AGREEMENT
, 2005
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
270 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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Re: |
MarineMax, Inc. — Public Offering |
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with MarineMax, Inc., a
Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by
the several Underwriters named in Schedule I to the Underwriting Agreement (the “Underwriters”), of
common stock, par value $0.001 per share, of the Company (the “Securities”). Capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities Inc. and Xxxxxxx Xxxxx & Associates, Inc. on behalf of the Underwriters, the undersigned
will not, during the period ending 90 days after the date of the prospectus relating to the Public
Offering (the “Prospectus”), (1) offer, pledge, announce the intention to sell, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly,
any shares of common stock, par value $0.001 per share, of the Company (“Common Stock”) or any
securities convertible into or exercisable or exchangeable for Common Stock (including, without
limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange Commission and securities
which may be issued upon exercise of a stock option or warrant) or (2) enter into any swap or other
agreement that transfers, in whole or
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in part, any of the economic consequences of ownership of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the
prior written consent of X.X. Xxxxxx Securities Inc. and Xxxxxxx Xxxxx & Associates, Inc. on behalf
of the Underwriters, it will not, during the period ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The foregoing sentences shall not apply to (a) transactions relating to shares of Common
Stock or other securities acquired in open market transactions after the completion of the Public
Offering, (b) transfers of shares of Common Stock as a bona fide gift, provided that (i) the
recipient thereof agrees in writing with X.X. Xxxxxx Securities Inc. and Xxxxxxx Xxxxx &
Associates, Inc., as Representatives of the several Underwriters, to be bound by the terms of this
Letter Agreement and (ii) no party, including the undersigned, shall be required to, nor shall it
voluntarily, file a report under Section 16(a) of the Securities Exchange Act of 1934, as amended,
in connection with such transfer (other than a filing on Form 5 made after the expiration of the
90-day restricted period referred to above), (c) exercises of options or purchase shares of Common
Stock of the Company granted pursuant to Company or employee stock options pursuant to the terms of
a plan in effect on the date hereof, and (d) dispositions by any person (other than Xxxxxxx X.
XxXxxx, Xx.) set forth in Schedule II to the Underwriting Agreement of up to 50,000 shares of
Common Stock during the final 45 days of the 90 day restricted period referred to above, subject to
a maximum disposition of an aggregate of 150,000 shares of Common Stock by all such persons.
If:
(1) during the last 17 days of the 45- or 90-day restricted period the Company issues an
earnings release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 45- or 90-day restricted period the Company announces that
it will release earnings results during the 16-day period beginning on the last day of the 45- or
90-day period;
the restrictions imposed by this Letter Agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
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The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common Stock to be sold
thereunder, the undersigned shall be released form all obligations under this Letter Agreement.
The undersigned understands that the Underwriters are entering into the Underwriting Agreement
and proceeding with the Public Offering in reliance upon this Letter Agreement.
This lock-up agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
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Very truly yours,
[NAME OF STOCKHOLDER]
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Title: |
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