As filed with the Securities and Exchange Commission on March 29, 2007
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
MARINEMAX, INC.
(Exact name of Registrant as specified in its charter)
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Delaware
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59-3496957
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification Number)
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18167 U.S. Highway 19 North
Suite 300
Clearwater, Florida 33764
(Address of Principal Executive Offices)(Zip Code)
2007 Incentive Compensation Plan
Director Fee Share Purchase Program
(Full Title of the Plan)
William H. McGill Jr.
Chairman of the Board and Chief Executive Officer
18167 U.S. Highway 19 North, Suite 300
Clearwater, Florida 33764
(727) 531-1700
(Name, Address, and Telephone number, Including Area Code, of Agent for Service)
Copies to:
Robert S. Kant, Esq.
Scott K. Weiss, Esq.
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 700
Phoenix, Arizona 85016
(602) 445-8000
This Registration Statement shall become effective immediately upon filing with the Securities
and Exchange Commission, and sales of the registered securities will begin as soon as reasonably
practicable after such effective date.
CALCULATION OF REGISTRATION FEE
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Title of Securities To Be
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Amount To Be
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Proposed Maximum Offering
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Proposed Maximum
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Amount of
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Registered
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Registered (1)
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Price Per Share (2)
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Aggregate Offering Price (2)
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Registration Fee
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Common Stock, par value $0.001
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3,798,429
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(3)
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$
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22.96
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$
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87,211,930
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$
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2,677.41
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(1)
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This Registration Statement shall also cover any additional shares of Common Stock which
become issuable under the 2007 Incentive Compensation Plan by reason of any stock dividend,
stock split, recapitalization, or any other similar transaction without receipt of
consideration which results in an increase in the number of outstanding shares of Common Stock
of MarineMax, Inc.
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(2)
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Calculated solely for purposes of this offering under Rules 457(c) and 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high and low sales
prices for shares of Common Stock of MarineMax, Inc. as quoted on the New York Stock Exchange
on March 28, 2007.
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(3)
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Includes (a) 1,000,000 shares of common stock authorized for issuance under the 2007
Incentive Compensation Plan; (b) 2,738,429 shares of common stock that may be issued under the
terms of the 2007 Incentive Compensation Plan upon cancellation or forfeiture of outstanding
awards (or shares remaining available for issuance) under the 1998 Incentive Stock Plan; and
(c) 60,000 shares of common stock that may be issued under the Director Fee Share Purchase
Program.
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TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
MarineMax, Inc. (the Registrant) hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities and Exchange Commission (the
Commission):
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(a)
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The Registrants latest annual report filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the Exchange Act), or the latest
prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the Securities Act), that contains audited financial statements for the Registrants
latest fiscal year for which such statements have been filed;
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(b)
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All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the document referred to in (a) above; and
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(c)
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The description of the Registrants common stock contained in the Registrants
Registration Statement on Form 8-A (No. 001-14173), filed with the Commission on May
28, 1998 and declared effective on June 1, 1998.
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In addition, reports and definitive proxy or information statements filed with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of common stock offered hereby will be passed upon for us by
Greenberg Traurig, LLP, Phoenix, Arizona. Robert S. Kant, a principal shareholder of Greenberg
Traurig, P.A., has served as a director of our company since August 1998 and owns 36,583 shares of
our common stock and holds options to purchase 25,000 shares of our common stock at various prices.
Item 6. Indemnification of Directors and Officers.
The Restated Certificate Incorporation and Amended and Restated Bylaws of the Registrant
provide that the Registrant will indemnify and advance expenses, to the fullest extent permitted by
the Delaware General Corporation Law, to each person who is or was a director or officer of the
Registrant, or who serves or served any other enterprise or organization at the request of the
Registrant (an Indemnitee).
Under Delaware law, to the extent that an Indemnitee is successful on the merits in defense of
a suit or proceeding brought against him or her by reason of the fact that he or she is or was a
director, officer, or agent of the Registrant, or serves or served any other enterprise or
organization at the request of the Registrant, the Registrant shall indemnify him or her against
expenses (including attorneys fees) actually and reasonably incurred in connection with such
action.
If unsuccessful in defense of a third-party civil suit or a criminal suit, or if such a suit
is settled, an Indemnitee may be indemnified under Delaware law against both (i) expenses,
including attorneys fees, and (ii) judgments, fines, and amounts paid in settlement if he or she
acted in good faith and in a manner he or she
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reasonably believed to be in, or not opposed to, the best interests of the Registrant, and,
with respect to any criminal action, had no reasonable cause to believe his or her conduct was
unlawful.
If unsuccessful in defense of a suit brought by or in the right of the Registrant, where the
suit is settled, an Indemnitee may be indemnified under Delaware law only against expenses
(including attorneys fees) actually and reasonably incurred in the defense or settlement of the
suit if he or she acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the Registrant except that if the Indemnitee is adjudged to
be liable for negligence or misconduct in the performance of his or her duty to the Registrant, he
or she cannot be made whole even for expenses unless a court determines that he or she is fully and
reasonably entitled to indemnification for such expenses.
Also under Delaware law, expenses incurred by an officer or director in defending a civil or
criminal action, suit, or proceeding may be paid by the Registrant in advance of the final
disposition of the suit, action, or proceeding upon receipt of an undertaking by or on behalf of
the officer or director to repay such amount if it is ultimately determined that he or she is not
entitled to be indemnified by the Registrant. The Registrant may also advance expenses incurred by
other employees and agents of the Registrant upon such terms and conditions, if any, that the Board
of Directors of the Registrant deems appropriate.
Item 7.
Exemption From Registration Claimed.
Not Applicable.
Item 8.
Exhibits.
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Exhibit
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Number
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Exhibit
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5
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Opinion of Greenberg Traurig, LLP
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10.22
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MarineMax, Inc. 2007 Incentive Compensation Plan (1)
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10.23
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Form Stock Option Agreement for 2007 Incentive Compensation Plan (1)
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10.24
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Form Restricted Stock Unit Award Agreement for 2007 Incentive Compensation Plan (1)
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10.25
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Director Fee Share Purchase Program
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23.1
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Consent of Greenberg Traurig, LLP (included in Exhibit 5)
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23.2
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Consent of Ernst & Young LLP
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24
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Power of Attorney (included on signature page of this Registration Statement)
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(1)
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Incorporated by reference to the Registrants Current Report on Form 8-K dated February 28,
2007, as filed with the Commission on March 6, 2007.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
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registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee table in the effective
registration statement;
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(iii)
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To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
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Provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is on Form S-8 and the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the
Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15
U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial
bona fide
offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers, and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Clearwater, state of Florida, on this 29
th
day
of March, 2007.
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MARINEMAX, INC.
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By:
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/s/ William H. McGill Jr.
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William H. McGill Jr., Chairman of the Board,
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Chief Executive Officer, and Director
(Principal Executive Officer)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that each person whose signature appears below constitutes
and appoints jointly and severally, William H. McGill Jr. and Michael H. McLamb and each of them,
as his true and lawful attorney-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated:
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Signature
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Position
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Date
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/s/ William H. McGill Jr.
William H. McGill, Jr.
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Chairman of the Board,
President, and Chief
Executive Officer,
(Principal Executive
Officer)
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March 29, 2007
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/s/ Michael H. McLamb
Michael H. McLamb
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Executive Vice President,
Chief Financial Officer,
Secretary, and Director
(Principal Financial and
Accounting Officer)
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March 29, 2007
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/s/ Hilliard M. Eure III
Hilliard M. Eure III
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Director
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March 29, 2007
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/s/ John B. Furman
John B. Furman
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Director
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March 29, 2007
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/s/ Robert S. Kant
Robert S. Kant
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Director
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March 29, 2007
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/s/ Joseph A. Watters
Joseph A. Watters
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Director
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March 29, 2007
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/s/ Dean S. Woodman
Dean S. Woodman
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Director
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March 29, 2007
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II-4
EXHIBIT INDEX
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Exhibit
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Number
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Exhibit
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5
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Opinion and consent of Greenberg Traurig, LLP
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10.22
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MarineMax, Inc. 2007 Incentive Compensation Plan(1)
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10.23
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Form Stock Option Agreement for 2007 Incentive Compensation Plan (1)
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10.24
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Form Restricted Stock Unit Award Agreement for 2007 Incentive Compensation Plan (1)
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10.25
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Director Fee Share Purchase Program
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23.1
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Consent of Greenberg Traurig, LLP (included in Exhibit 5)
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23.2
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Consent of Ernst & Young LLP
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24
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Power of Attorney (included on signature page of this Registration Statement)
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(1)
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Incorporated by reference to the Registrants Current Report on Form 8-K dated February 28,
2007, as filed with the Commission on March 6, 2007.
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II-5
Exhibit 5
[GREENBERG TRAURIG LETTERHEAD]
March 27, 2007
MarineMax, Inc.
18167 U.S. Highway 19 North
Suite 300
Clearwater, Florida 33764
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Re: Registration Statement on Form S-8
MarineMax, Inc.
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Ladies and Gentlemen:
As legal counsel to MarineMax, Inc., a Delaware corporation (the Company), we have assisted
in the preparation of the Companys Registration Statement on Form S-8 (the Registration
Statement) to be filed with the Securities and Exchange Commission on or about March 28, 2007 in
connection with the registration under the Securities Act of 1933, as amended, of (a) 3,738,429
shares of the Companys common stock, par value $0.001 per share, (the 2007 Plan Shares) issuable
pursuant to the Companys 2007 Incentive Compensation Plan (the 2007 Plan) and (b) 60,000 shares
of the Companys common stock, par value $0.001 per share, (the Fee Plan Shares) issuable
pursuant to the Companys Director Fee Share Purchase Program (the Fee Plan). The 2007 Plan
Shares and the Fee Plan Shares are collectively referred to as the Shares. The facts, as we
understand them, are set forth in the Registration Statement.
With respect to the opinion set forth below, we have examined originals, certified copies, or
copies otherwise identified to our satisfaction as being true copies, only of the following:
A. The Restated Certificate of Incorporation of the Company, as amended and as filed with the
Secretary of State of Delaware;
B. The Amended and Restated Bylaws of the Company;
C. Resolutions of the Board of Directors of the Company, adopted at a meeting on December 8,
2006, authorizing the issuance of the Shares and adopting the 2007
Plan and the Fee Plan;
D. The 2007 Plan;
E. Form Stock Option Agreement for the 2007 Plan;
F. Form Restricted Stock Unit Award Agreement for the 2007 Plan;
G. Minutes of the February 28, 2007 Annual Meeting of Stockholders of the Company, at which
the stockholders approved the 2007 Plan as adopted by the Board of Directors;
MarineMax, Inc.
March 27, 2007
Page 2
H. The Fee Plan; and
I. The Registration Statement.
Subject to the assumptions that (i) the documents and signatures examined by us are genuine
and authentic, and (ii) the persons executing the documents examined by us have the legal capacity
to execute such documents, and based solely upon our review of items
A through I above, and subject
to the further limitations and qualifications set forth below, it is our opinion that the Shares,
when issued and sold in accordance with the 2007 Plan and the Fee Plan, will be validly issued,
fully paid, and nonassessable.
We express no opinion as the applicability or effect of any laws, orders, or judgments of any
state or other jurisdiction other than federal securities laws and the substantive laws of the
state of Delaware, including judicial interpretations of such laws. Further, our opinion is based
solely upon existing laws, rules, and regulations, and we undertake no obligation to advise you of
any changes that may be brought to our attention after the date hereof.
We hereby expressly consent to any reference to our firm in the Registration Statement,
inclusion of this Opinion as an exhibit to the Registration Statement, and to the filing of this
Opinion with any other appropriate governmental agency.
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Very truly yours,
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/s/ Greenberg Traurig, LLP
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Exhibit 10.25
MarineMax, Inc.
Director Fee Share Purchase Program
I.
Effectiveness
. This Director Fee Share Purchase Program (the Program) shall be
effective immediately upon its adoption by the Board of Directors (the Board) of MarineMax, Inc.
(the Company). The Program was adopted by the Board effective December 8, 2006.
II.
Purpose
. The purpose of this Program is to allow members of our Board (each a
Director) to use the cash fees they receive as Directors (the Directors Fees) to purchase
shares of the Companys common stock (the Shares) from the Company without payment of a brokers
fee and as an exempt purchase under Section 16 of the Securities and Exchange Act of 1934, as
amended (Section 16). It is the Companys understanding that these purchases will also be exempt
from the stockholder approval requirements of Rule 303A.08 of the Corporate Governance Standards of
the New York Stock Exchange.
III
Eligibility
. All Directors who are paid Directors Fees are eligible to participate in
this Program.
IV
Procedure for Purchasing Shares
. For a Director to purchase Shares under the Program,
the following procedures shall be followed:
A. At least ten (10) days prior to the end of the Companys fiscal quarter, a Director may
notify the Company of the portion of his or her Directors Fees with respect to such quarter (in
whole percentages up to one hundred percent (100%)) that the Director would like to use to purchase
Shares. A Director may make either a one-time election for a quarter or an election effective for
all future Directors Fees until revoked by the Director in a written notice to the Company.
B. At the end of each of the Companys fiscal quarters (each a Payment Date), the Company
shall calculate the number of whole Shares purchasable (rounding down to the nearest whole Share)
using the closing sales price of the Shares on the primary stock exchange on which the Shares are
traded on the Payment Date.
C. Any cash amounts remaining after the purchase (i.e., the amount that would not equal a
whole Share) shall be paid out in cash as part of the Directors Fees.
D. The Shares purchased by the Director shall, at the election of the Director, either be (i)
issued to the Director in certificate form or (ii) issued in street name to the broker designated
by the Director.
IV
Administration
. The Board shall administer this Program. As the Administrator, the
Board may make all determinations and decisions regarding the operation and interpretation of this
Program. The Board may amend or terminate this Program at any time, provided no amendment or
termination shall effect the issuance of shares after the end of the fiscal quarter of the Company
in which the related Directors Fees were earned.
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