St. Petersburg, Florida
September 11, 2009
Raymond James
& Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
MarineMax, Inc., a
Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to
Raymond James & 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
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Plus an
additional 390,000 shares subject to Underwriter’s
over-allotment option.
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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 (“EDGAR”). 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 Raymond James & Associates, Inc., 880
Carillon Parkway, St. Petersburg, Florida 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
Raymond James & Associates, Inc., 880 Carillon Parkway, St.
Petersburg, Florida, 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 90
th 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 EDGAR, 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 mark
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 au
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