2,600,000 Shares* MARINEMAX, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
2,600,000 Shares*
MARINEMAX, INC.
Common Stock
St. Petersburg, Florida
September 11, 2009
September 11, 2009
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
MarineMax, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to Xxxxxxx Xxxxx & Associates, Inc. (the
“Underwriter”), an aggregate of 2,600,000 shares of its common stock, par value $0.001 per share
(the “Common Stock”). The aggregate of 2,600,000 shares to be purchased from the Company are
called the “Firm Shares.” In addition, the Company has agreed to sell to the Underwriter, upon the
terms and conditions stated herein, up to an additional 390,000 shares of Common Stock (the
“Additional Shares”) to cover over-allotments by the Underwriter, if any. The Firm Shares and the
Additional Shares are collectively referred to in this Agreement as the “Shares.”
The Company wishes to confirm as follows its agreement with the Underwriter in connection with
the purchase of the Shares from the Company.
1. Registration Statement and Prospectus. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Act”), a registration statement on Form S-3 (File No. 333-153006), which
contains a base prospectus (the “Base Prospectus”) relating to the Shares. Such registration
statement, as amended, including the financial statements, exhibits and schedules thereto, at each
time of effectiveness under the Act, including any required information deemed to be part thereof
at the time of effectiveness pursuant to Rule 430B under the Act or the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
| * | Plus an additional 390,000 shares subject to Underwriter’s over-allotment option. |
thereunder (collectively, the “Exchange Act”) is called the “Registration Statement.” Any
preliminary prospectus supplement to the Base Prospectus that describes the Shares and the offering
thereof and is used prior to filing of the Prospectus is called, together with the Base Prospectus,
a “Preliminary Prospectus.” The term “Prospectus” shall mean the prospectus supplement relating to
the Shares, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after
the date and time that this Agreement is executed and delivered by the parties hereto. If the
Company files another registration statement with the Commission to register a portion of the
Shares pursuant to Rule 462(b) under the Act (the “Rule 462 Registration Statement”), then any
reference to “Registration Statement” herein shall be deemed to include the registration statement
on Form S-3 (File No. 333-153006) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the Act. For purposes of this Agreement, “free
writing prospectus” has the meaning ascribed to it in Rule 405 under the Act, and “Issuer Free
Writing Prospectus” shall mean each free writing prospectus prepared by or on behalf of the Company
or used or referred to by the Company in connection with the offering of the Shares. “Time of Sale
Information” shall mean the Preliminary Prospectus together with the free writing prospectuses, if
any, identified in Schedule I hereto and the pricing-related information set forth in Schedule II
hereto. All references in this Agreement to the Registration Statement, the Rule 462 Registration
Statement, a Preliminary Prospectus, the Prospectus or the Time of Sale Information, or any
amendments or supplements to any of the foregoing, shall be deemed to refer to and include any
documents incorporated by reference therein, and shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”). Any
reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the Registration Statement, such
Preliminary Prospectus or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the Exchange Act that,
upon filing, are incorporated by reference therein, as required by paragraph (b) of Item 12 of Form
S-3. As used herein, the term “Incorporated Documents” means the documents that at the time of
filing are incorporated by reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby agrees to issue and sell the
Firm Shares to the Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and conditions set forth
herein, the Underwriter agrees to purchase from the Company at a purchase price of $6.58 per Share
(the “purchase price per Share”) the Firm Shares.
The Company hereby also agrees to sell to the Underwriter, and, upon the basis of the
representations, warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, the Underwriter shall have the right for 30 days from the
date of the Prospectus to purchase from the Company up to 390,000 Additional Shares at the purchase
price per Share for the Firm Shares. The Additional Shares may be purchased solely for the purpose
of covering over-allotments, if any, made in connection with the offering of the Firm
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Shares. The option to purchase Additional Shares may be exercised at any time within 30 days after
the date of the Prospectus, but no more than once.
3. Terms of Public Offering. The Company has been advised by the Underwriter that the
Underwriter proposes to make a public offering of the Shares as soon after the Registration
Statement and this Agreement have become effective as in the Underwriter’s judgment is advisable
and initially to offer the Shares upon the terms set forth in the Prospectus.
Not later than 12:00 p.m. on the second business day following the date the Shares are
released by the Underwriter for sale to the public, the Company shall deliver or cause to be
delivered copies of the Prospectus in such quantities and at such places as the Underwriter shall
request.
4. Delivery of the Shares and Payment Therefor. Delivery to the Underwriter of the
Firm Shares and payment therefor shall be made at the offices of Xxxxxxx Xxxxx & Associates, Inc.,
000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx at 10:00 a.m., St. Petersburg, Florida time, on
September 16, 2009, or such other place, time and date not later than 1:30 p.m., St. Petersburg,
Florida time, on September 23, 2009 as the Underwriter shall designate by notice to the Company
(the time and date of such closing are called the “Closing Date”). The place of closing for the
Firm Shares and the Closing Date may be varied by agreement between the Underwriter and the
Company. The Company hereby acknowledges that circumstances under which Underwriter may provide
notice to postpone the Closing Date as originally scheduled include any determination by the
Company or the Underwriter to recirculate to the public copies of an amended or supplemented
Prospectus or a delay as contemplated by the provisions of Section 11 hereof.
Delivery to the Underwriter of and payment for any Additional Shares to be purchased by the
Underwriter shall be made at the offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., St. Petersburg, Florida time, on such date or dates (the
“Additional Closing Date”) (which may be the same as the Closing Date, but shall in no event be
earlier than the Closing Date nor earlier than three nor later than ten business days after the
giving of the notice hereinafter referred to) as shall be specified in a written notice, from the
Underwriter, of the Underwriter’s determination to purchase a number, specified in such notice, of
Additional Shares. Such notice may be given at any time within 30 days after the date of the
Prospectus and must set forth (i) the aggregate number of Additional Shares as to which the
Underwriter is exercising the option and (ii) the names and denominations in which the certificates
for which the Additional Shares are to be registered. The place of closing for the Additional
Shares and the Additional Closing Date may be varied by agreement between the Underwriter and the
Company.
The certificates evidencing the Firm Shares and any Additional Shares to be purchased
hereunder shall be delivered to the Underwriter on the Closing Date or the Additional Closing Date,
as the case may be, against payment of the purchase price therefore by wire transfer of immediately
available funds to an account specified in writing, not later than the close of business on the
business day next preceding the Closing Date or the Additional Closing Date, as
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the case may be, by the Company. Payment for the Shares sold by the Company hereunder shall be
delivered by the Underwriter to the Company. Delivery of the Shares shall be made through the
facilities of The Depositary Trust Company unless the Underwriter shall otherwise instruct.
It is understood that the Underwriter has been authorized, for its own account, to accept
delivery of and receipt for, and make payment of the purchase price per Share for the Firm Shares
and the Additional Shares, if any, that the Underwriter has agreed to purchase.
5. Covenants and Agreements of the Company. The Company covenants and agrees with the
Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any
amendments thereto to become effective, if it has not already become effective, and will advise the
Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing (i)
when the Registration Statement has become effective and the time and date of any filing of any
post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus
or the Prospectus and the time and date that any post-effective amendment to the Registration
Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has
been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of
the Commission, or any request by the Commission for amendments or supplements to the Registration
Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for offering or sale in any
jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of
time referred to in Section 5(h) below, of any change in the Company’s business, properties,
management, condition (financial or other), stockholders’ equity, results of operations or
prospects, or of any event that comes to the attention of the Company that makes any statement made
in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any
material respect or that requires the making of any additions thereto or changes therein in order
to make the statements therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other
law. If at any time the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time. The Company will provide the Underwriter with
copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and
file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close
of business on the first business day immediately following the date hereof.
(b) The Company will furnish to the Underwriter, without charge, two signed duplicate
originals of the Registration Statement as originally filed with the Commission and of each
amendment thereto, including financial statements and all exhibits thereto, and will also furnish
to the Underwriter, without charge, such number of conformed copies of the Registration
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Statement as originally filed and of each amendment thereto as the Underwriter may reasonably
request.
(c) The Company will give the Underwriter notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either any Preliminary Prospectus (including the Base Prospectus included
in the Registration Statement at the time it became effective) or to the Prospectus, whether
pursuant to the Act, the Exchange Act or otherwise, will furnish the Underwriter with copies of any
such documents a reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Underwriter or counsel for the
Underwriter shall reasonably object.
(d) The Company will not make any offer relating to the Common Stock that would constitute an
Issuer Free Writing Prospectus without the Underwriter’s prior consent.
(e) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses
not required to be filed pursuant to the Act; and if at any time after the date hereof any events
shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or, if for any other reason it shall
be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter
and, upon the Underwriter’s request, to file such document and to prepare and furnish without
charge to the Underwriter as many copies as it may from time to time reasonably request of an
amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement
or omission; provided, however, that the Company’s obligations under this Section 5(e) shall not
apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance on and
in conformity with written information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein.
(f) Prior to the execution and delivery of this Agreement, the Company has delivered or will
deliver to the Underwriter, without charge, in such quantities as the Underwriter has requested or
may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent
with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the Underwriter and by dealers, prior to the date of the Prospectus, of each
Preliminary Prospectus so furnished by the Company.
(g) During the Prospectus Delivery Period (as hereinafter defined), the Company will file all
documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the
Exchange Act in the manner and within the time periods required by the Exchange Act.
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(h) As soon after the execution and delivery of this Agreement as is practicable and
thereafter from time to time for such period as in the reasonable opinion of counsel for the
Underwriter a prospectus is required by the Act to be delivered in connection with sales by the
Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as the
Underwriter may request for the distribution of the Shares, the Company will deliver to the
Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale
Information (and of any amendment or supplement thereto) as they may reasonably request. The
Company consents to the use of the Prospectus and the Time of Sale Information (and of any
amendment or supplement thereto) in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter
and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by the Underwriter or any dealer. If at any time prior to the
later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated
by the Registration Statement or (ii) the expiration of prospectus delivery requirements with
respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur
that in the judgment of the Company or in the opinion of counsel for the Underwriter is required to
be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act
or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with
the Commission and use its best efforts to cause to become effective as promptly as possible an
appropriate supplement or amendment thereto, and will furnish to the Underwriter, if it has
previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with the Underwriter and counsel for the Underwriter in
connection with the registration or qualification of the Shares for offering and sale by the
Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the
Underwriter may reasonably designate and will file such consents to service of process or other
documents as may be reasonably necessary in order to effect and maintain such registration or
qualification for so long as required to complete the distribution of the Shares; provided that in
no event shall the Company be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to general service of process in
suits in any jurisdiction where it is not now so subject. In the event that the qualification of
the Shares in any jurisdiction is suspended, the Company shall so advise the Underwriter promptly
in writing.
(j) The Company will make generally available to its security holders a consolidated earnings
statement (in form complying with the provisions of Rule 158), which need not be audited, covering
a twelve-month period commencing after the effective date of the Registration Statement and the
Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act.
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(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any
provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement
shall be terminated by the Underwriter because of any inability, failure or refusal on the part of
the Company to perform in all material respects any agreement herein or to comply in all material
respects with any of the terms or provisions hereof or to fulfill in all material respects any of
the conditions of this Agreement, the Company agrees to reimburse the Underwriter for all
out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for
the Underwriter, but excluding wages and salaries paid by the Underwriter) reasonably incurred by
the Underwriter in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Shares to be sold by it
hereunder in accordance in all material respects with the statements under the caption “Use of
Proceeds” in the Prospectus.
(m) For a period commencing on the date hereof and ending on the 90th day after the
date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to,
or reasonably could be expected to, result in the disposition by any person within the Lock-Up
Period) any shares of Common Stock or securities convertible into or exchangeable for Common Stock
or sell or grant options, rights or warrants with respect to any shares of Common Stock or
securities convertible into or exchangeable for Common Stock, (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including
any amendments, with respect to the registration of any shares of Common Stock or securities
convertible, exercisable or exchangeable into Common Stock or any other securities of the Company
or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior
written consent of the Underwriter. The restrictions contained in the preceding sentence shall not
apply to (A) the Shares to be sold hereunder, (B) the issuance of shares of Common Stock or options
to purchase Common Stock pursuant to employee benefit plans in effect on the date of this
Agreement, (C) the conversion or exchange of convertible or exchangeable securities outstanding as
of the date of this Agreement, or (D) the establishment of a trading plan pursuant to Rule 10b5-1
under the Exchange Act, for the transfer of shares of Common Stock, provided that such plan does
not provide for the transfer of Common Stock during the Lock-Up Period. Notwithstanding the
foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings
release or announces material news or a material event relating to the Company occurs or (2) prior
to the expiration of the Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the Lock-Up Period, then the
restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the
18-day period beginning on the date of issuance of the earnings release or the announcement of the
material news or the occurrence of the material event, unless the Underwriter waives such extension
in writing. The Company will cause each officer, director and stockholder of the Company set forth
on Schedule III hereto to furnish to the Underwriter, prior to the Closing Date, a letter or
letters, substantially in the form
of Exhibit A hereto (the “Lock-Up Agreements”).
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(n) Prior to the Closing Date or the Additional Closing Date, as the case may be, if not
otherwise available to the Underwriter via XXXXX, the Company will furnish to the Underwriter, as
promptly as possible, copies of any unaudited interim quarterly consolidated financial statements
of the Company and its subsidiaries for any period subsequent to the periods covered by the
financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the
Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or
which might reasonably be expected to cause or result in, or which will constitute, stabilization
or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any
of the Shares.
(q) The Company will use its reasonable best efforts to list for quotation the Shares on the
New York Stock Exchange (“NYSE”).
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary
under the jurisdiction of its incorporation or the rules of any national securities exchange on
which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may
be the same entity as the transfer agent) for the Common Stock.
6. Representations and Warranties of the Company. The Company hereby represents and
warrants to the Underwriter on the date hereof, and shall be deemed to represent and warrant to the
Underwriter on the Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Company satisfies all of the requirements of the Act for use of Form S-3 for the
offering of Shares contemplated hereby. The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Act) of the Common
Stock and is not on the date hereof an “ineligible issuer” (as defined in Rule 405).
(b) The Registration Statement conformed, and any amendment to the Registration Statement
filed after the date hereof will conform in all material respects when filed, to the requirements
of the Act. The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in
all material respects when filed with the Commission pursuant to Rule 424(b).
(c) The Registration Statement does not contain an 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
not misleading; provided, that no representation or warranty is made as to
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information contained in or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein.
(d) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment
with respect to any such document was filed, when such amendment was filed), conformed in all
material respects with the requirements of the Exchange Act and the rules and regulations
thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in
all material respects with the requirements of the Exchange Act and the rules and regulations
thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and no such further Incorporated Document,
when it is filed, will contain an untrue statement of a material fact or will omit to state a
material fact required to be stated therein or necessary in order to make the statements therein
not misleading.
(e) The Prospectus, at the time it was issued and at the Closing Date (and if any Additional
Shares are purchased, at the Additional Closing Date) did not contain, 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; provided that no representation or warranty is made as to information
contained in or omitted from the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter specifically for inclusion
therein.
(f) As of the Applicable Time, the Time of Sale Information did not contain an 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; provided that no representation or warranty is made as to information
contained in or omitted from the Time of Sale Information in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Underwriter specifically for
inclusion therein. For purposes of this Agreement, the “Applicable Time” is 8:00 a.m. (New York
City time) on the date of this Agreement.
(g) As of the Applicable Time, each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433), as supplemented and
taken together with the Time of Sale Information, did not contain an 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;
provided, however, that no representation or warranty is made as to information contained in or
omitted in any Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter specifically for inclusion
therein.
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(h) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to
the requirements of the Act on the date of first use, and the Company has complied with all
prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Act. The Company has not made any offer relating to the Stock that would
constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter.
The Company has retained in accordance with the Act all Issuer Free Writing Prospectuses that were
not required to be filed pursuant to the Act. The Company has taken all actions necessary so that
any “road show” (as defined in Rule 433) in connection with the offering of the Stock will not be
required to be filed pursuant to the Act.
(i) Since the date of the most recent financial statements of the Company included or
incorporated by reference in the Registration Statement, the Time of Sale Information 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, position (financial
or other), stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole; (ii) except as otherwise disclosed in the Registration Statement,
the Time of Sale Information and 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, 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, the
Time of Sale Information and the Prospectus.
(j) 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, condition (financial or other),
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, 2008.
(k) 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
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Company 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 Time of Sale Information and 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, the Time of Sale Information 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.
(l) 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.
(m) This 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 to the extent enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable
principles relating to enforceability.
(n) 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, will be duly and validly
issued and will be fully paid and non-assessable and will conform to the descriptions thereof in
the Registration Statement, the Time of Sale Information and the Prospectus (or any amendment or
supplement thereto); and the issuance of the Shares is not subject to any preemptive or similar
rights.
(o) 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.
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(p) 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.
(q) 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 Act and such consents, approvals, authorizations, orders
and registrations or qualifications as may be required by the NYSE or under applicable state
securities laws in connection with the purchase and distribution of the Shares by the Underwriter
and such consents with respect to which the failure to obtain would not have a Material Adverse
Effect.
(r) Except as described in the Time of Sale Information and 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 Act to be
described in the Registration Statement or the Prospectus that are not so described and (ii) there
are no statutes, regulations or contracts or other documents that are required under the 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.
(s) 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 Act.
(t) 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
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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.
(u) 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.
(v) 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 Act to be described
in the Registration Statement and the Prospectus and that is not so described. Except as set forth
in the Time of Sale Information and the Prospectus (or any amendment or supplement thereto), there
are no transactions with “affiliates” (as defined in Rule 405 promulgated under the Act) or any
officer, director or security holder of the Company (whether or not an affiliate) that are required
by the Act to be disclosed in the Registration Statement or the Prospectus.
(w) 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 Time of Sale Information and 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”).
(x) 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 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.
(y) 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, the Time of Sale Information 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 Registration Statement, the Time of Sale Information
and the Prospectus, neither the Company nor any of its
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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.
(z) 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.
(aa) (i) The Company and its subsidiaries (a) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, requirements, decisions, judgments,
decrees, orders and the common law relating to pollution or the protection of the environment,
natural resources or human health or safety, including those relating to the generation, storage,
treatment, use, handling, transportation, Release (as defined herein) or threat of Release of
Hazardous Materials (as defined herein) (collectively, “Environmental Laws”), (b) have received and
are in compliance with all permits, licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct their respective businesses, (c)
have not received notice of any actual or potential liability under or relating to, or actual or
potential violation of, any Environmental Laws, including for the investigation or remediation of
any Release or threat of Release of Hazardous Materials, and have no knowledge of any event or
condition that would reasonably be expected to result in any such notice, (d) are not conducting or
paying for, in whole or in part, any investigation, remediation or other corrective action pursuant
to any Environmental Law at any location, and (e) are not a party to any order, decree or agreement
that imposes any obligation or liability under any Environmental Law, and (ii) there are no costs
or liabilities associated with Environmental Laws of or relating to the Company or its
subsidiaries, except in the case of each of (i) and (ii) above, for any such matter, as would not,
individually or in the aggregate, have a Material Adverse Effect; and (iii) except as described in
the Registration Statement, the Time of Sale Information and the Prospectus, (a) there are no
proceedings that are pending, or that are known to be contemplated, against the Company or any of
its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other
than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000
or more will be imposed, (b) the Company and its subsidiaries are not aware of any facts or issues
regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws, including the Release or threat of Release of Hazardous Materials, that could
reasonably be expected to have a material effect on the capital expenditures, earnings or
competitive position of the Company and its subsidiaries, and (c) none of the Company and its
subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(bb) There has been no storage, generation, transportation, use, handling, treatment, Release
or threat of Release of Hazardous Materials by, relating to or caused by the Company or any of its
subsidiaries (or, to the knowledge of the Company and its subsidiaries, any other entity (including
any predecessor) for whose acts or omissions the Company or any of its subsidiaries is or could
reasonably be expected to be liable) at, on, under or from any property or facility now or
previously owned, operated or leased by the Company or any of its subsidiaries, or at, on, under or
from any other property or facility, in violation of any
-14-
Environmental Laws or in a manner or amount or to a location that could reasonably be expected
to result in any liability under any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, have a Material Adverse Effect. “Hazardous Materials”
means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or
constituent thereof, in any form or amount, including petroleum (including crude oil or any
fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing
materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which
can give rise to liability under any Environmental Law. “Release” means any spilling, leaking,
seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, or migrating in, into or through the environment, or in, into
from or through any building or structure.
(cc) The Company and its subsidiaries and any “employee benefit plan” (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, its
subsidiaries or their “ERISA Affiliates” (as defined herein) are in compliance in all material
respects with ERISA and all other applicable state and federal laws. “ERISA Affiliate” means, with
respect to the Company or a subsidiary, any member of any group or organization described in
Sections 414(b), (c), (m) or (o) of the Code of which the Company or such subsidiary is a member.
No “reportable event” (as defined in ERISA) has occurred or is reasonably expected to occur with
respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries
or any of their ERISA Affiliates. No “employee benefit plan” established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were
terminated, would have any “amount of unfunded benefit liabilities” (as defined in ERISA). Neither
the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects
to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal
from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
“employee benefit plan” established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, that would cause the loss of such
qualification.
(dd) 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.
(ee) 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
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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.
(ff) 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.
(gg) The operations of the Company and its subsidiaries are and have been conducted at all
times in all material respects and in accordance with the policies and procedures that are
reasonably designed to ensure compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions in which the Company conducts operations, and any similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(hh) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”); and the Company will not, directly or indirectly,
knowingly use the proceeds of the offering of the Shares hereunder, or knowingly lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(ii) 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.
(jj) 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
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a valid claim against the Company or any of its subsidiaries or the Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
(kk) No person has the right to require the Company or any of its subsidiaries to register any
securities for sale under the 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.
(ll) 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.
(mm) The Company is in compliance with the requirements of the NYSE for continued listing of
the Common Stock thereon. The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange Act or the listing
of the Common Stock on the NYSE, nor has the Company received any notification that the Commission
or the NYSE is contemplating terminating such registration or listing. The transactions
contemplated by this Agreement will not contravene the rules and regulations of the NYSE. The
Company will comply in all material respects with all requirements of the NYSE with respect to the
issuance of the Shares.
(nn) Except as described in the Time of Sale Information and the Prospectus, and except for
options to purchase capital stock issued pursuant to the Company’s stock option or stock incentive
plans in place prior to the date of this Agreement, neither the Company nor any of its subsidiaries
has outstanding and at the Closing Date and the Additional Closing Date, as the case may be, will
have outstanding any options to purchase, or any warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or sell, any shares of
Common Stock or any such warrants or convertible securities or obligations. No holder of securities
of the Company has rights to the registration of any securities of the Company as a result of or in
connection with the filing of the Registration Statement or the consummation of the transactions
contemplated hereby that have not been satisfied or heretofore waived in writing.
(oo) No forward-looking statement (within the meaning of Section 27A of the 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.
(pp) 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, the Time of
Sale Information and the Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(qq) 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
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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”).
(rr) To the knowledge of the Company, no officer or director of the Company has a direct or
indirect affiliation or association with any member of the Financial Industry Regulatory Authority,
Inc. (“FINRA”).
7. Expenses. Whether or not the transactions contemplated hereby are consummated or
this Agreement becomes effective or is terminated, the Company agrees to pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies thereof and of any
Preliminary Prospectus to the Underwriter and dealers; (ii) the printing and delivery (including
postage, air freight charges and charges for counting and packaging) of such copies of the
Registration Statement, the Prospectus, each Preliminary Prospectus, the Time of Sale Information,
the Blue Sky memoranda, this Agreement, the Selected Dealers Agreement and all amendments or
supplements to any of them as may be reasonably requested for use in connection with the offering
and sale of the Shares; (iii) consistent with the provisions of Section 5.1(i), all expenses in
connection with the qualification of the Shares for offering and sale under state securities laws
or Blue Sky laws, including reasonable attorneys’ fees of the counsel for the Underwriter in
connection therewith; (iv) the filing fees incident to securing any required review by FINRA of the
fairness of the terms of the sale of the Shares and the reasonable fees and disbursements of the
Underwriter’s counsel relating thereto, with such reasonable fees and disbursements limited to
$5,000 in the aggregate; (v) the fees and expenses associated with listing the Shares on the NYSE;
(vi) the cost of preparing stock certificates; (vii) the costs and charges of any transfer agent or
registrar; (viii) the cost of the tax stamps, if any, in connection with the issuance and delivery
of the Shares to the Underwriter; (ix) all other fees, costs and expenses referred to in Item 13 of
the Registration Statement; and (x) the transportation, lodging, graphics and other expenses
incidental to the Company’s preparation for and participation in the “roadshow” for the offering
contemplated hereby. Except as provided in this Section 7 and in Section 8 hereof, the Underwriter
shall pay its own expenses, including the fees and disbursements of its counsel. In addition, in
the event that the proposed offering is terminated for the reasons set forth in Section 5.1(k)
hereof, the Company agrees to reimburse the Underwriter as provided in Section 5.1(k).
8. Indemnification and Contribution. Subject to the limitations in this paragraph
below, the Company agrees to indemnify and hold harmless the Underwriter, the directors, officers,
employees, agents and partners of the Underwriter, and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses, including reasonable costs
of investigation and attorneys’ fees and expenses (collectively, “Damages”) arising out of or based
upon (i) any untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, in the Registration Statement, the Time of Sale Information, any Issuer
Free Writing Prospectus or the Prospectus or in any amendment
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or supplement thereto, or 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 case of the
Prospectus, in light of the circumstances under which they were made) not misleading, except to the
extent that any such Damages arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission that has been made therein or omitted therefrom in reliance
upon and in conformity with the information furnished in writing to the Company by or on behalf of
the Underwriter, expressly for use in connection therewith or (ii) any inaccuracy in or breach of
the representations and warranties of the Company contained herein or any failure of the Company to
perform its obligations hereunder or under law. This indemnification shall be in addition to any
liability that the Company may otherwise have.
If any action or claim shall be brought against the Underwriter or any person controlling the
Underwriter in respect of which indemnity may be sought against the Company, the Underwriter or
such controlling person shall promptly notify in writing the party(s) against whom indemnification
is being sought (the “indemnifying party” or “indemnifying parties”), and such indemnifying
party(s) shall assume the defense thereof, including the employment of counsel reasonably
acceptable to the Underwriter or such controlling person and the payment of all reasonable fees of
and expenses incurred by such counsel. The Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Underwriter or such
controlling person, unless (i) the indemnifying party(s) has (have) agreed in writing to pay such
fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense and
employ counsel reasonably acceptable to the Underwriter or such controlling person or (iii) the
named parties to any such action (including any impleaded parties) include both the Underwriter or
such controlling person and the indemnifying party(s), and the Underwriter or such controlling
person shall have been advised by its counsel that one or more legal defenses may be available to
the Underwriter that may not be available to the Company, or that representation of such
indemnified party and any indemnifying party(s) by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential differing interests between them (in which
case the indemnifying party(s) shall not have the right to assume the defense of such action on
behalf of the Underwriter or such controlling person (but the Company shall not be liable for the
fees and expenses of more than one counsel for the Underwriter and such controlling persons)). The
indemnifying party(s) shall not be liable for any settlement of any such action effected without
its (their several) written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, the indemnifying party(s) agree(s) to
indemnify and hold harmless the Underwriter and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or judgment, but in the case
of a judgment only to the extent stated in the first and second paragraph of this Section 8.
The Underwriter agrees to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing
several indemnity from the Company to the Underwriter, but only with respect to
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information furnished in writing by or on behalf of the Underwriter expressly for use in the
Registration Statement, the Prospectus, the Time of Sale Information, any Issuer Free Writing
Prospectus or any Preliminary Prospectus, or any amendment or supplement thereto. If any action or
claim shall be brought or asserted against the Company, any of its directors, any of its officers
or any such controlling person based on the Registration Statement, the Prospectus, the Time of
Sale Information or any Preliminary Prospectus, or any amendment or supplement thereto, and in
respect of which indemnity may be sought against the Underwriter pursuant to this paragraph, the
Underwriter shall have the rights and duties given to the Company by the immediately preceding
paragraph (except that if the Company shall have assumed the defense thereof the Underwriter shall
not be required to do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the Underwriter’s expense), and the
Company, its directors, any such officers and any such controlling persons, shall have the rights
and duties given to the Underwriter by the immediately preceding paragraph.
In any event, the Company will not, without the prior written consent of the Underwriter,
settle or compromise or consent to the entry of any judgment in any proceeding or threatened claim,
action, suit or proceeding in respect of which the indemnification may be sought hereunder (whether
or not the Underwriter or any person who controls the Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act is a party to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional release of the Underwriter
and such controlling person from all liability arising out of such claim, action, suit or
proceeding.
If the indemnification provided for in this Section 8 is unavailable or insufficient for any
reason whatsoever to an indemnified party in respect of any Damages referred to herein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Damages (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand, and the
Underwriter on the other hand, from the offering and sale of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative and several fault of the Company on the one hand, and the Underwriter on the other hand,
in connection with the statements or omissions that resulted in such Damages as well as any other
relevant equitable considerations. The relative and several benefits received by the Company on the
one hand, and the Underwriter on the other hand, shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriter, in each case as
set forth in the table on the cover page of the Prospectus; provided that, in the event that the
Underwriter shall have purchased any Additional Shares hereunder, any determination of the relative
benefits received by the Company or the Underwriter from the offering of the Shares shall include
the net proceeds (before deducting expenses) received by the Company and the underwriting discounts
and commissions received by the Underwriter, from the sale of such Additional Shares, in each case
computed on the basis of the respective amounts set forth in the notes to the table on the cover
page of the Prospectus. The relative fault of the
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Company on the one hand, and the Underwriter on the other hand, 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 on the one hand, or by the Underwriter on the other hand and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 8 was determined by a pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of
the Damages referred to in the immediately preceding paragraph shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, the Underwriter shall not be required to
contribute any amount in excess of the amount of the underwriting commissions received by it in
connection with the Shares underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and reimbursement agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation made by or on behalf of the
Underwriter or any person controlling the Underwriter, the Company, its directors or officers or
any person controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder
and (iii) any termination of this Agreement. A successor to the Underwriter or any person
controlling the Underwriter, or to the Company, its directors or officers or any person controlling
the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Conditions of Underwriter’s Obligations. The several obligations of the
Underwriter to purchase the Firm Shares hereunder are subject to the following conditions:
(a) The Registration Statement shall remain effective as of the date hereof and through the
Closing Date, and all filings required by Rules 424(b), 430A and 462 under the Act shall have been
timely made.
(b) The Underwriter shall be reasonably satisfied that since the respective dates as of which
information is given in the Registration Statement, the Time of Sale Information and Prospectus,
(i) except as set forth in or contemplated by the Registration Statement, the Time of Sale
Information or the Prospectus, there shall not have been any change in the capital stock of the
Company or any material change in the indebtedness (other than in the ordinary course of business)
of the Company, (ii) except as set forth or contemplated by the Registration Statement, the Time of
Sale Information or the Prospectus, no material oral or written agreement or other transaction
shall have been entered into by the Company that is not in
-21-
the ordinary course of business or that could reasonably be expected to result in a material
reduction in the future earnings of the Company, (iii) no loss or damage (whether or not insured)
to the property of the Company shall have been sustained that had or could reasonably be expected
to have a Material Adverse Effect, (iv) except as described in the Registration Statement, the Time
of Sale Information and Prospectus, there is no action, suit, inquiry, proceeding or investigation
by or before any court or governmental or other regulatory or administrative agency or commission
pending or, to the best knowledge of the Company, threatened, against or involving the Company or
its subsidiaries, which might individually or in the aggregate prevent or adversely affect the
transactions contemplated by this Agreement or result in a Material Adverse Effect, nor to the
Company’s knowledge, is there any basis for any such action, suit, inquiry, proceeding or
investigation, and (v) there shall not have been any material change in the business, properties,
management, condition (financial or other), stockholders’ equity, results of operations or
prospects of the Company or its subsidiaries that makes it impractical or inadvisable in the
Underwriter’s judgment to proceed with the public offering or purchase of the Shares as
contemplated hereby.
(c) The Underwriter shall have received on the Closing Date (and the Additional Closing Date,
if any) an opinion of Xxxxxxxxx Xxxxxxx, LLP, counsel to the Company, substantially to the effect
that:
(i) The Registration Statement was declared effective under the 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 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.
(ii) The Registration Statement, including any Rule 462 Registration Statement, the Prospectus
and each amendment or supplement to the Registration Statement and the Prospectus as of their
respective effective or issue dates (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 Act.
(iii) 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.
-22-
(iv) 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 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 or documents
incorporated by reference therein; 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 by the Company or one of its wholly owned
subsidiaries.
(v) The Company has the corporate power and authority to execute and deliver this 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 this Agreement and the consummation by the
Company of the transactions contemplated thereby have been duly and validly taken.
(vi) This Agreement has been duly authorized, executed, and delivered by the Company.
(vii) The Shares to be issued and sold by the Company under this Agreement have been duly
authorized, and when delivered to and paid for by the Underwriter in accordance with the terms of
this 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.
(viii) 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.
(ix) The execution, delivery, and performance by the Company of this 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, this 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
-23-
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.
(x) 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, 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 this Agreement, except for the registration of the Shares under the 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 Underwriter.
(xi) 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.
(xii) 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 heading “Use of Proceeds,” the description of the Common Stock 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, including any amendments or
reports filed for the purpose of updating such description, and the statements 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 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 Act to be filed as
exhibits to the Registration Statement or described in the Prospectus and that have not been so
filed or described.
(xiii) 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.
-24-
(xiv) 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 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 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 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.
(xv) 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.
(xvi) 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, any governmental or
regulatory 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 the
best 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 and the Closing Date or the
Additional Closing Date, as the case may be, except where the failure to comply with such laws and
regulations would not, individually or in the aggregate, have a Material Adverse Effect.
In rendering such opinion, counsel may rely, to the extent they deem such reliance proper, as
to matters of fact upon certificates of officers of the Company and of government officials.
Copies of all such certificates shall be furnished to the Underwriter and its counsel on the
Closing Date and the Additional Closing Date, as the case may be.
-25-
In addition to the opinion set forth above, such counsel shall also have furnished to the
Underwriter a written statement, addressed to the Underwriter and dated the Closing Date, to the
effect that (x) such counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statement, the Time of Sale Information and the Prospectus and has participated
in conferences with representatives of the Company and with representatives of its independent
accountants and with the Underwriter and Underwriter’s counsel at which conferences the contents of
the Registration Statement, the Time of Sale Information and the Prospectus and any amendment and
supplement thereto and related matters were discussed, and (y) although such counsel has not
independently verified and is not passing upon and does not assume responsibility for the accuracy,
completeness, or fairness of the statements contained in the Registration Statement, the Time of
Sale Information, the Prospectus and any amendment or supplement thereto (except as expressly
provided above), based on the foregoing, nothing has come to the attention of such counsel to cause
such counsel to believe that (A) the Registration Statement (except for financial statements and
schedules and other financial data included or incorporated by reference or omitted therefrom as to
which no statement need be made), as of the Effective Date, 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, (B) the Time of Sale Information (except for financial
statements and schedules and other financial data included or incorporated by reference or omitted
therefrom as to which no statement need be made), as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading (except for financial statements and schedules and other financial data
included or incorporated by reference or omitted therefrom as to which no statement need be made),
or (C) the Prospectus, as of its date and as of the Closing Date or the Additional Closing Date, as
the case may be, contained or contains any untrue statement of a material fact or omitted 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 (except for financial statements and
schedules and other financial data included or incorporated by reference or omitted therefrom as to
which no statement need be made).
(d) The Underwriter shall have received on the Closing Date or Additional Closing Date, as the
case may be, an opinion of Xxxxxxxx & Xxxxxxxx LLP, as counsel for the Underwriter, dated the
Closing Date or Additional Closing Date, as the case may be, with respect to the issuance and sale
of the Shares, the Registration Statement and other related matters as the Underwriter may
reasonably request, and the Company and its counsel shall have furnished to the Underwriter’s
counsel such documents as they may reasonably request for the purpose of enabling them to pass upon
such matters.
(e) The Underwriter shall have received letters addressed to it and dated the date hereof and
the Closing Date or the Additional Closing Date, as the case may be, from (i) the firm of Ernst &
Young LLP, independent certified public accountants and (ii) the Chief Financial Officer of the
Company, substantially in the forms heretofore approved by the Underwriter.
-26-
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued by the Commission and no proceedings for that purpose shall
be pending or, to the knowledge of the Company, shall be threatened or contemplated by the
Commission at or prior to the Closing Date or Additional Closing Date, as the case may be; (ii) no
order suspending the effectiveness of the Registration Statement or the qualification or
registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in
effect and no proceeding for such purpose shall be pending or, to the knowledge of the Company,
threatened or contemplated by the authorities of any jurisdiction; (iii) any request for additional
information on the part of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such authorities; (iv) after
the date hereof, no amendment or supplement to the Registration Statement or the Prospectus shall
have been filed unless a copy thereof was first submitted to the Underwriter and the Underwriter
did not object thereto in good faith; and (v) all of the representations and warranties of the
Company contained in this Agreement shall be true and correct in all material respects (except for
such representations and warranties qualified by materiality, which representations and warranties
shall be true and correct in all respects) on and as of the date hereof and on and as of the
Closing Date or Additional Closing Date, as the case may be, as if made on and as of the Closing
Date or Additional Closing Date, as the case may be, and the Underwriter shall have received a
certificate, dated the Closing Date and signed by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable to the Underwriter) to
the effect set forth in this Section 9(f) and in Sections 9(b) and 9(g) hereof.
(g) The Company shall not have failed in any material respect at or prior to the Closing Date
or the Additional Closing Date, as the case may be, to have performed or complied with any of its
agreements herein contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date or Additional Closing Date, as the case may be.
(h) The Company shall have furnished or caused to have been furnished to the Underwriter such
further certificates and documents as the Underwriter shall have reasonably requested.
(i) At or prior to the Closing Date, the Underwriter shall have received the written
commitment Lock-Up Agreements substantially in the form of Exhibit A hereto signed by the persons
listed on Schedule III hereto.
(j) The Shares to be delivered on the Closing Date or the Additional Closing Date, as the case
may be, shall have been approved for listing on the NYSE, subject to official notice of issuance.
All such opinions, certificates, letters and other documents will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance to the Underwriter
and its counsel.
-27-
The obligation of the Underwriter to purchase Additional Shares hereunder is subject to
the satisfaction on and as of the Additional Closing Date of the conditions set forth in this
Section 9, except that, if the Additional Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in this Section 9 shall be dated as of the
Additional Closing Date and the opinions called for by paragraphs (c) and (d) shall be revised to
reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9 shall not have been
satisfied when and as required by this Agreement, this Agreement may be terminated by the
Underwriter by notifying the Company of such termination in writing or by telegram at or prior to
such Closing Date, but the Underwriter shall be entitled to waive any of such conditions.
10. Underwriter Free Writing Prospectuses. The Underwriter hereby represents and
agrees that it has not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning for use of, any
“free writing prospectus,” as defined in Rule 405 under the Act (which term includes use of any
written information furnished to the Commission by the Company and not incorporated by reference
into the Registration Statement and any press release issued by the Company) other than (i) a free
writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the
Act) that was not included (including through incorporation by reference) in any Preliminary
Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Schedule I (including any electronic road show), or (iii) any free writing
prospectus prepared by the Underwriter and approved by the Company in advance in writing (each such
free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing
Prospectus”).
11. Effective Date of Agreement. This Agreement shall become effective upon the later
of (a) the execution and delivery hereof by the parties hereto and (b) release of notification of
the effectiveness of the Registration Statement by the Commission; provided, however, that the
provisions of Sections 7 and 8 shall at all times be effective.
12. Termination of Agreement. This Agreement shall be subject to termination in the
Underwriter’s absolute discretion, without liability on the part of the Underwriter to the Company
by notice to the Company, if prior to the Closing Date or the Additional Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the case may be, in the
Underwriter’s sole judgment, (i) trading in the Company’s Common Stock shall have been suspended by
the Commission or the NYSE, (ii) trading in securities generally on the NYSE or the Nasdaq Stock
Market shall have been suspended or materially limited, or minimum or maximum prices shall have
been generally established on such exchange, or additional material governmental restrictions, not
in force on the date of this Agreement, shall have been imposed upon trading in securities
generally by any such exchange or by order of the Commission or any court or other governmental
authority, (iii) a general moratorium on commercial banking activities shall have been declared by
either federal or New York State authorities; or (iv) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions
-28-
or other material event the effect of which on the financial markets of the United States is
such as to make it, in the Underwriter’s judgment, impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares. Notice of such cancellation shall be
promptly given to the Company and its counsel by telegraph, telecopy or telephone and shall be
subsequently confirmed by letter.
13. Information Furnished by the Underwriter. The Company acknowledges that the only
information furnished by or on behalf of the Underwriter as such information is referred to in
Sections 5(e), 6(c), 6(e), 6(f), 6(g) and 8 hereof consists of the following: (i) the name of the
Underwriter on the cover page of and under the caption “Underwriting” in the Prospectus, (ii) the
last paragraph on the cover page of the Prospectus regarding delivery of the Shares, and (iii)
under the caption “Underwriting” in the Prospectus: (A) the sentences related to concessions and
reallowances; (B) the paragraph disclosing the maximum dollar amount of the concessions that the
Underwriter will grant dealers in connection with offering the Shares to dealers, (C) the paragraph
regarding electronic delivery of the Prospectus; and (D) the paragraphs related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Prospectus, the Prospectus, and
any Issuer Free Writing Prospectus.
14. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriter
is acting solely as underwriter in connection with the purchase and sale of the Shares. The
Company further acknowledges that the Underwriter is acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arm’s length basis, and in no event do the
parties intend that the Underwriter act or be responsible as a fiduciary to the Company, its
respective management, stockholders or creditors or any other person in connection with any
activity that the Underwriter may undertake or have undertaken in furtherance of the purchase and
sale of the Shares, either before or after the date hereof. The Underwriter hereby expressly
disclaims any fiduciary or similar obligations to the Company, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions, and the
Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriter agree that they are each responsible for making their own independent judgments with
respect to any such transactions and that any opinions or views expressed by the Underwriter to the
Company regarding such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Shares, do not constitute advice or recommendations to the
Company. The Company hereby waives and releases, to the fullest extent permitted by law, any
claims that it may have against the Underwriter with respect to any breach or alleged breach of any
fiduciary or similar duty to the Company in connection with the transactions contemplated by this
Agreement or any matters leading up to such transactions. The Company hereby acknowledges that the
Underwriter is a full service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of its customers and
hold long or short positions in debt or equity securities of the companies that may be the subject
of the transactions contemplated by this Agreement.
15. Certain Defined Terms. For purposes of this Agreement, (a) the term “business
day” means any day other than a day on which banks are permitted or required to be closed in
-00-
Xxx Xxxx Xxxx; and (b) the term “subsidiary” has the meaning set forth in Rule 405 under the
Securities Act and may also include joint ventures that the Company is a party to.
16. Miscellaneous. Except as otherwise provided in Sections 5 and 13 hereof, notice
given pursuant to any of the provisions of this Agreement shall be in writing and shall be
delivered:
| (i) | to the Company: | ||
| MarineMax, Inc. 00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 Attn: Chief Financial Officer |
|||
| with a copy to: | |||
| Xxxxxx X. Xxxx, Esq. Xxxxxxxxx Xxxxxxx, LLP 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 |
|||
| (ii) | to the Underwriter: | ||
| Xxxxxxx Xxxxx & Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, Xxxxxxx 00000 Attention: Xxxxx Xxxx |
|||
| with a copy to: | |||
| Xxxx X. Xxxxxx Xxxxxxxx & Xxxxxxxx LLP 1290 Avenue of the Americas Xxx Xxxx, Xxx Xxxx 00000-0000 |
This Agreement has been and is made solely for the benefit of the Underwriter, the Company and
its directors and officers.
17. Applicable Law; Counterparts. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to choice of law principles
thereunder.
This Agreement may be signed in various counterparts, which together shall constitute one and
the same instrument.
-30-
This Agreement shall be effective when, but only when, at least one counterpart hereof shall
have been executed on behalf of each party hereto.
The Company and the Underwriter each hereby irrevocably waive any right they may have to a
trial by jury in respect to any claim based upon or arising out of this Agreement or the
transactions contemplated hereby.
[The remainder of this page is intentionally left blank.]
-31-
Please confirm that the foregoing correctly sets forth the agreement among the Company and the
Underwriter.
| Very truly yours, MARINEMAX, INC. |
||||
| By: | /s/ Xxxxxxx X. XxXxxx, Xx. | |||
| Name: | Xxxxxxx X. XxXxxx, Xx. | |||
| Title: | Chairman of the Board, President and Chief Executive Officer |
|||
| CONFIRMED as of the date first above mentioned. XXXXXXX XXXXX & ASSOCIATES, INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Authorized Representative | ||||
SCHEDULE I
Free Writing Prospectuses
None
SCHEDULE II
Pricing-Related Information
Total number of Firm Shares offered: 2,600,000 shares of Common Stock
Public offering price: $7.00 per Share
Total number of Additional Shares the Underwriter may purchase to cover over-allotments: 390,000
shares of Common Stock
Trade date: September 11, 2009
Settlement date: September 16, 2009
NYSE symbol: HZO
SCHEDULE III
Officers and Directors
Directors
Xxxxxxx X. XxXxxx, Xx.
Xxxxxxx X. XxXxxx
Xxxxxxxx X. Xxxx III
Xxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. XxXxxx
Xxxxxxxx X. Xxxx III
Xxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Executive Officers
Xxxxxxx X. XxXxxx, Xx.
Xxxxxxx X. XxXxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Day
Xxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxxxx X. XxXxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Day
Xxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxx
EXHIBIT A
Lock-Up Agreement
September , 2009
MarineMax, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
| Re: | MarineMax, Inc. (the “Company”) — Restriction on Stock Sales |
Dear Sirs:
This letter is delivered to you pursuant to the Underwriting Agreement (the “Underwriting
Agreement”) to be entered into by the Company, as issuer, and Xxxxxxx Xxxxx & Associates, Inc., as
underwriter (the “Underwriter”). Upon the terms and subject to the conditions of the Underwriting
Agreement, the Underwriter intends to effect a public offering of Common Stock, par value $0.001
per share, of the Company (the “Shares”), as described in and contemplated by the registration
statement of the Company on Form S-3 (File No. 333-153006) (the “Registration Statement”), as filed
with the Securities and Exchange Commission on August 13, 2008 (the “Offering”).
The undersigned recognizes that it is in the best financial interests of the undersigned, as
an officer or director, or an owner of stock, options, warrants or other securities of the Company
(the “Company Securities”), that the Company complete the proposed Offering.
The undersigned further recognizes that the Company Securities held by the undersigned are, or
may be, subject to certain restrictions on transferability, including those imposed by United
States federal securities laws. Notwithstanding these restrictions, the undersigned has agreed to
enter into this letter agreement to further assure the Underwriter that the Company Securities of
the undersigned, now held or hereafter acquired, will not enter the public market at a time that
might impair the underwriting effort.
Therefore, as an inducement to the Underwriter to execute the Underwriting Agreement, the
undersigned hereby acknowledges and agrees that the undersigned will not (i) offer, sell, contract
to sell, pledge, grant any option to purchase or otherwise dispose of (collectively, a
“Disposition”) any Company Securities, or any securities convertible into or exercisable or
exchangeable for, or any rights to purchase or otherwise acquire, any Company Securities held by
the undersigned or acquired by the undersigned after the date hereof, or that may be deemed
to be beneficially owned by the undersigned (collectively, the “Lock-Up Shares”), pursuant to
the Rules and Regulations promulgated under the Securities Act of 1933, as amended (the “Act”), and
the Securities Exchange Act of 1934, as amended, for a period commencing on the date hereof and
ending 90 days after the date of the Company’s Prospectus first filed pursuant to Rule 424(b) under
the Act, inclusive (the “Lock-Up Period”), without the prior written consent of Xxxxxxx Xxxxx &
Associates, Inc. or (ii) exercise or seek to exercise or effectuate in any manner any rights of any
nature that the undersigned has or may have hereafter to require the Company to register under the
Act the undersigned’s sale, transfer or other disposition of any of the Lock-Up Shares or other
securities of the Company held by the undersigned, or to otherwise participate as a selling
securityholder in any manner in any registration effected by the Company under the Act, including
under the Registration Statement, during the Lock-Up Period, notwithstanding the foregoing, if (x)
during the last 17 days of the Lock-Up Period, the Company issues a release concerning earnings or
material news or a material event relating to the company occurs; or (y) prior to the expiration of
the Lock-Up Period, the Company announces it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period; the restrictions imposed in 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, unless the Underwriter
waives in writing such extension. The foregoing restrictions are expressly agreed to preclude the
undersigned from engaging in any hedging, collar (whether or not for any consideration) or other
transaction that is designed to or reasonably expected to lead or result in a Disposition of
Lock-Up Shares during the Lock-Up Period, even if such Lock-Up Shares would be disposed of by
someone other than such holder. Such prohibited hedging or other transactions would include any
short sale or any purchase, sale or grant of any right (including any put or call option or
reversal or cancellation thereof) with respect to any Lock-Up Shares or with respect to any
security (other than a broad-based market basket or index) that includes, relates to or derives any
significant part of its value from Lock-Up Shares.
Notwithstanding the agreement not to make any Disposition during the Lock-Up Period, the
Underwriter has agreed that the foregoing restrictions shall not apply to (A) transactions relating
to shares of Common Stock or other securities acquired in the open market after the completion of
the offering, (B) bona fide gifts, (C) dispositions to any trust for the direct or indirect benefit
of the undersigned and/or a member of the immediate family of the undersigned other than any
disposition for value, (D) the transfer or intestate succession to the legal representatives or a
member of the immediate family of the undersigned, (E) the sale pursuant to any existing contract,
instruction or plan that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) (a “Plan”),
(F) the establishment of any Plan provided that no sales of Common Stock or securities convertible
into, or exchangeable or exercisable for Common Stock, shall be made pursuant to a Plan prior to
the expiration of the Lock-Up Period if such Plan was established after the date hereof, (G)
dispositions from any grantor retained annuity trust established for the direct benefit of the
undersigned and/or a member of the immediate family of the undersigned pursuant to the terms of
such trust as in effect on the date hereof, (H) the distribution to any partnership, corporation or
limited liability company controlled by the undersigned or by a member of the immediate family of
the undersigned, (I) the disposition pursuant to a pledge in effect on the date hereof of Common
Stock or securities convertible into,
or exchangeable or exercisable for, Common Stock as security for a margin account pursuant to
the terms of such account, (J) the exercise pursuant to the Company’s stock option plans in effect
on the date hereof effected by means of net share settlement or by the delivery or sale of shares
of Common Stock held by the undersigned, and (K) dispositions by any person set forth in Schedule
III to the Underwriting Agreement of up to 50,000 shares of Common Stock during the final 45 days
of the Lock-Up Period, subject to a maximum disposition of an aggregate of 100,000 shares of Common
Stock by all such persons; provided that, in the case of any gift, disposition, transfer or
distribution pursuant to clause (B), (C), (D), (G) or (H), each donee, transferee or distributee
shall execute and deliver to the Underwriter a lock-up letter in the form of this paragraph; and
provided further, that, in the case of any gift, disposition, Plan or distribution pursuant to
clause (B), (E), (F), (G) or (H), no filing by any party under the Securities Exchange Act of 1934,
as amended, or other public announcement shall be required or shall be made voluntarily in
connection with such gift, disposition, Plan or distribution (other than a filing on a Form 5 made
after the expiration of the 90-day period referred to above). For purposes of this paragraph,
“immediate family” shall mean the undersigned and any relationship by blood, marriage or adoption,
not more remote than first cousin.
It is understood that, if the Underwriting Agreement (other than the provisions thereof that
survive termination) shall terminate or be terminated prior to payment for and delivery of the
Shares, the Underwriter will release the undersigned from the obligations under this letter
agreement.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby
authorized to decline to make any transfer of Lock-Up Shares if such transfer would constitute a
violation or breach of this letter. This letter shall be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of the undersigned. Capitalized
terms used but not defined herein have the respective meanings assigned to such terms in the
Underwriting Agreement.
| Very truly yours, |
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| By: | ||||
| Signature of Securityholder | ||||
