<PAGE> 1
As filed with the Securities and Exchange Commission on September 11, 1998
Registration No. 333-
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)
Delaware 59-3496957
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
18167 U.S. 19 North, Suite 499
Clearwater, Florida 33764
(Address of Principal Executive Offices)(Zip Code)
MARINEMAX, INC.
1998 Incentive Stock Plan
1998 Employee Stock Purchase Plan
(Full Title of the Plans)
William H. McGill, Jr.
Chairman of the Board, President,
and Chief Executive Officer
MARINEMAX, INC.
18167 U. S. 19 North, Suite 499, Clearwater, Florida 33764
(813) 531-1700
(Name, Address, and Telephone Number, Including Area Code,
of Agent for Service)
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.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
REGISTERED REGISTERED(1) SHARE PRICE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 70,000 Shares $10.00 $ 700,000 $ 206.50
Common Stock 87,446 Shares $12.25 1,071,214 316.01
Common Stock 1,320,917 Shares $12.50 16,511,462 4,870.88
Common Stock 80,000 Shares $13.75 1,100,000 324.50
Common Stock 921,637 Shares $ 8.63 (2) 7,953,727 2,346.35
------------------ ------------ -----------
Total 2,480,000 Shares $ 27,336,403 $ 8,064.24
====================================================================================================================================
</TABLE>
(1) Represents 1,980,000 shares issuable under the 1998 Incentive Stock Plan
and 500,000 shares issuable under the 1998 Employee Stock Purchase Plan.
This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Incentive Stock Plan and
the 1998 Employee Stock Purchase 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.
(2) Calculated for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, using the average of the high and low
sales prices for the Common Stock of MarineMax, Inc. on September 8, 1998,
as reported on the New York Stock Exchange.
<PAGE> 2
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"):
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "1934 Act") or the latest prospectus filed
pursuant to the Securities Act of 1933, as amended (the
"Securities Act") that contains audited financial statements
for the Registrant's latest fiscal year for which such
statements have been filed; and
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the 1934 Act since the end of the fiscal year covered by the
documents referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A (File No.
001-14173) filed with the Commission on May 28, 1998 and
declared effective on June 1, 1998.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby 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 firm of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association, Phoenix, Arizona, has acted as counsel for
the Registrant in the preparation of this Registration Statement. As of
September 9, 1998, certain members of such firm beneficially owned a total of
12,466 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
The Restated Certificate of Incorporation and 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").
II.1
<PAGE> 3
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 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 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
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------ -------
<S> <C>
5 Opinion and consent of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association
10.4A 1998 Incentive Stock Plan, as amended and restated on May 30, 1998
10.5A 1998 Employee Stock Purchase Plan, as amended on August 6, 1998
23.1 Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears,
P.A. is contained in Exhibit 5
23.2 Consent of Independent Certified Public Accountants - Arthur
Andersen LLP
24 Power of Attorney (included on page II.4 of this Registration
Statement)
</TABLE>
II.2
<PAGE> 4
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 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
into the registration statement 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.
C. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers or
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 Securities 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
Securities Act and will be governed by the final adjudication of such issue.
II.3
<PAGE> 5
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 9th day of
September, 1998.
MARINEMAX, INC.
By: /s/ William H. McGill, Jr.
-----------------------------------
William H. McGill, Jr., Chairman of
the Board, President, and
Chief Executive Officer
(Principal Executive Officer)
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:
<TABLE>
<CAPTION>
SIGNATURE POSITION DATE
--------- -------- ----
<S> <C> <C>
/s/ William H. McGill, Jr. Chairman of the Board, President, September 9, 1998
- ------------------------------------- and Chief Executive Officer
William H. McGill, Jr. (Principal Executive Officer)
/s/ Michael H. McLamb Vice President; Chief Financial September 9, 1998
- ------------------------------------- Officer; Secretary; and Treasurer
Michael H. McLamb (Principal Financial and Accounting Officer)
Senior Vice President and Director September --, 1998
- -------------------------------------
Richard R. Bassett
/s/ Louis R. DelHomme, Jr. Senior Vice President and Director September 9, 1998
- -------------------------------------
Louis R. DelHomme, Jr.
/s/ Richard C. LaManna, Jr. Senior Vice President and Director September 9, 1998
- -------------------------------------
Richard C. LaManna, Jr.
/s/ Paul Graham Stovall Senior Vice President and Director September 9, 1998
- -------------------------------------
Paul Graham Stovall
/s/ R. David Thomas Director September 9, 1998
- -------------------------------------
R. David Thomas
/s/ Stewart Turley Director September 9, 1998
- -------------------------------------
Stewart Turley
/s/ Robert S. Kant Director September 10, 1998
- -------------------------------------
Robert S. Kant
</TABLE>
II.4
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------ -------
<S> <C>
5 Opinion and consent of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association
10.4A 1998 Incentive Stock Plan, as amended and restated on May 30, 1998
10.5A 1998 Employee Stock Purchase Plan, as amended on August 6, 1998
23.1 Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears,
P.A. is contained in Exhibit 5
23.2 Consent of Independent Certified Public Accountants - Arthur
Andersen LLP
24 Power of Attorney (included on page II.4 of this Registration
Statement)
</TABLE>
<PAGE> 1
EXHIBIT 5
The Law Offices of
O'CONNOR, CAVANAGH, ANDERSON, KILLINGSWORTH & BESHEARS
One East Camelback Road, Suite
1100
Phoenix, Arizona 85012
Telephone: (602) 263-2400
Fax: (602) 263-2900
September 10, 1998
MarineMax, Inc.
18167 U.S. 19 North, Suite 499
Clearwater, Florida 33764
RE: REGISTRATION STATEMENT ON FORM S-8
MARINEMAX, INC.
Gentlemen:
As legal counsel to MarineMax, Inc., a Delaware corporation
(the "Company"), we have assisted in the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about September 11, 1998 in
connection with the registration under the Securities Act of 1933, as amended,
of 1,980,000 shares of the Company's common stock, par value $0.001 per share,
(the "Common Stock") issuable pursuant to the Company's 1998 Incentive Stock
Plan (the "Incentive Plan") and 500,000 shares of Common Stock issuable pursuant
to the Company's 1998 Employee Stock Purchase Plan (the "Employee Plan"). The
shares of Common Stock issuable pursuant to the Incentive Plan and the Employee
Plan 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 filed with the Secretary of State of the State of Delaware, as amended
through the date hereof;
B. The Bylaws of the Company, as amended through the date
hereof;
C. Resolutions of the Board of Directors of the Company dated
April 5, 1998, reserving a maximum of the lesser of 4,000,000 shares or 15% of
the then-outstanding shares of the Common Stock of the Company for issuance
pursuant to the Incentive Plan;
D. Resolutions of the Board of Directors of the Company dated
April 30, 1998, reserving 500,000 shares of Common Stock of the Company for
issuance pursuant to the Employee Plan; and
E. The Registration Statement.
<PAGE> 2
MarineMax, Inc.
September 10, 1998
Page 2
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 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 terms of the Incentive Plan and the Employee Plan, will be validly
issued, fully paid and nonassessable.
Please be advised that we are members of the State Bar of
Arizona, and our opinion is limited to the legality of matters under the laws of
the State of Arizona and the General Corporation Laws of the State of Delaware.
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.
Very truly yours,
/s/ O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears, P.A.
<PAGE> 1
EXHIBIT 10.4A
MARINEMAX, INC. 1998 INCENTIVE STOCK PLAN
ADOPTED BY THE BOARD OF DIRECTORS AS OF APRIL 5, 1998
APPROVED BY THE STOCKHOLDERS AS OF APRIL 30, 1998
AMENDED AND RESTATED BY THE BOARD OF DIRECTORS AS OF MAY 30, 1998
1. PURPOSE. The purpose of this 1998 Incentive Stock Plan (the "Plan")
is to attract, retain and motivate employees, directors and independent
contractors by providing them with the opportunity to acquire a proprietary
interest in MARINEMAX, INC., a Delaware corporation (the "Company") and to link
their interests and efforts to the long-term interests of the Company's
stockholders.
2. PLAN ADMINISTRATION
2.1 IN GENERAL. The Plan shall be administered by the
Company's Board of Directors (the "Board"). Except for the power to amend the
Plan as provided in Section 12, the Board, in its sole discretion, may delegate
all or any portion of its authority and duties under the Plan to a committee
appointed by the Board, under such conditions and limitations as the Board may
from time to time establish. The Board and/or any committee that has been
delegated the authority to administer the Plan shall be referred to as the "Plan
Administrator". Except as otherwise explicitly set forth in the Plan, the Plan
Administrator shall have the authority, in its discretion, to determine all
matters relating to awards under the Plan, including the selection of the
individuals to be granted awards, the type of awards, the number of shares of
the Company's common stock ("Common Stock") subject to an award, vesting
conditions, and any and all other terms, conditions, restrictions and
limitations, if any, of an award. All decisions made by the Plan Administrator
pursuant to the Plan and related orders and resolutions shall be final and
conclusive. The Plan Administrator may, in its sole discretion, delegate all or
any portion of its authority and duties under the Plan, with respect to awards
to persons who are not executive officers or directors of the Company and who do
not own more than 10% of the Company's issued and outstanding Common Stock, to
one or more committees (each, an "Award Committee") appointed by the Plan
Administrator, each consisting of at least one member of the Board who may or
may not be employed by the Company. Except as otherwise explicitly set forth in
the Plan, an Award Committee shall have the authority, under such conditions and
limitations as the Plan Administrator may from time to time establish, to
determine all matters relating to awards under the Plan to employees, proposed
employees and independent contractors of the Company or one or more subsidiaries
of the Company, including the selection of individuals to be granted awards, the
type of awards, the number of shares of Common Stock subject to an award,
vesting conditions, and any and all other terms, conditions, restrictions and
limitations, if any, of an award.
2.2 RULE 16b-3 AND CODE SECTION 162(m). Notwithstanding any
provision of this Plan to the contrary, only the Board or a committee composed
of two or more "Non-Employee Directors" may make determinations regarding grants
of awards to officers, directors and 10% stockholders of the Company. (The term
"Non-Employee Directors" shall have the meaning set forth in Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended (the "1934
Act")). The Plan Administrator shall have the authority and discretion to
determine the extent to which awards will conform to the requirements of Section
162(m) Internal Revenue Code of 1986, as amended (the "Code"), and to take such
action, establish such procedures, and impose such restrictions as the Plan
Administrator determines to be necessary or appropriate to conform to such
requirements.
2.3 OTHER PLANS. The Plan Administrator shall also have
authority to grant awards as an alternative to or as the form of payment for
grants or rights earned or due under other compensation plans or arrangements of
the Company, including the plan of any entity acquired by the Company.
3. ELIGIBILITY. Any employee of the Company shall be eligible to
receive any award under the Plan. Directors who are not employees, proposed
directors, proposed employees and independent contractors shall be eligible to
receive awards other than Incentive Stock Options (as defined in Section 5.2).
For purposes of this
<PAGE> 2
Section 3, the "Company," with respect to all awards under the Plan other than
Incentive Stock Options, includes any entity that is directly or indirectly
controlled by the Company or any entity in which the Company has a significant
equity interest, as determined by the Plan Administrator. With respect to
Incentive Stock Options, the "Company" includes any parent or subsidiary of the
Company as defined in Section 424 of the Code.
4. SHARES SUBJECT TO THE PLAN
4.1 NUMBER AND SOURCE. The shares offered under the Plan shall
be shares of Common Stock and may be unissued shares or shares now held or
subsequently acquired by the Company as treasury shares, as the Plan
Administrator may from time to time determine. Subject to adjustment as provided
in Section 4.3, the aggregate number of shares that may be issued under the Plan
shall not exceed 4,000,000 shares; provided, however that awards shall not be
granted under the Plan if, at the time of such grant, the aggregate number of
shares of Stock that have been or may be issued under previously granted awards
or options under the Plan equal or exceed 15% of the total number of outstanding
shares at such time. The aggregate number of shares that may be covered by
awards granted to any one individual in any year shall not exceed 50% of the
total number of shares that may be issued under the Plan.
4.2 SHARES AVAILABLE. Any shares subject to an award granted
under the Plan that is forfeited, terminated or canceled, or any shares that do
not vest, shall again be available for the granting of awards under the Plan. If
a stock appreciation right is settled in cash, the shares covered by such award
shall remain available for the granting of other awards. The payment of cash
dividends and dividend equivalents paid in cash in conjunction with outstanding
awards shall not be counted against the shares available for issuance.
4.3 ADJUSTMENT OF SHARES AVAILABLE. The aggregate number and
type of shares available for awards under the Plan, the maximum number and type
of shares that may be subject to awards to any individual under the Plan, the
number and type of shares covered by each outstanding award, and the exercise
price per share (but not the total price) for stock options, stock appreciation
rights or similar awards outstanding under the Plan shall all be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from any split-up, combination or exchange of shares,
consolidation, spin-off or recapitalization of shares or any like capital
adjustment or the payment of any stock dividend.
4.4 TRANSFER OF CONTROL. In the event of a Transfer of Control
(as defined below), the surviving, continuing, successor or purchasing
corporation or parent corporation thereof, as the case may be (the "Acquiring
Corporation") shall either assume the Company's rights and obligations under
outstanding awards or substitute for outstanding awards substantially equivalent
awards for the Acquiring Corporation's stock. In the event the Acquiring
Corporation elects not to assume or substitute for such outstanding awards in
connection with the Transfer of Control, the Board may, in its discretion,
provide that any unexercisable and/or unvested portion of the outstanding awards
shall be immediately exercisable and vested in full on or before the date of the
Transfer of Control. The exercise and/or vesting of any award that is
permissible solely by reason of this Section 4.4 shall be conditioned upon the
consummation of the Transfer of Control. Any awards that are neither assumed or
substituted for by the Acquiring Corporation in connection with the Transfer of
Control nor exercised on or before the date of the Transfer of Control shall
terminate and cease to be outstanding effective as of the date of the Transfer
of Control. Unless otherwise determined by the Board, a "Transfer of Control"
shall be deemed to have occurred in the event of any of the following: (a) the
direct or indirect sale or exchange by the stockholders of the Company of all or
substantially all of the stock of the Company if the stockholders of the Company
before such sale or exchange do not retain, directly or indirectly, at least a
majority of the beneficial interest in the voting stock of the Company after
such sale or exchange; (b) a merger or consolidation if the stockholders of the
Company before such merger or consolidation do not retain, directly or
indirectly, at least a majority of the beneficial interest in the voting stock
of the Company after such merger or consolidation (regardless of whether the
Company is the surviving corporation); (c) the sale, exchange or transfer of all
or substantially all of the assets of the Company; or (d) a liquidation or
dissolution of the Company.
2
<PAGE> 3
5. AWARDS
5.1 TYPES OF AWARDS. Subject to the Plan, the Plan
Administrator shall have the authority, in its sole discretion, to determine the
type or types of awards to be granted to employees, directors and independent
contractors under the Plan. Such awards may include, but are not limited to,
Incentive Stock Options, Nonqualified Stock Options (as defined in Section 5.2),
stock appreciation rights or restricted stock awards. Such awards may be granted
either alone, in addition to or in tandem with any other type of award granted
under the Plan.
5.2 STOCK OPTIONS. The Plan Administrator may grant stock
options, designated as "Incentive Stock Options," which comply with the
provisions of Section 422 of the Code or any successor statutory provision, or
"Nonqualified Stock Options." The price for which shares may be purchased upon
exercise of a particular option shall be determined by the Plan Administrator;
however, the exercise price of an Incentive Stock Option shall not be less than
100% of the Fair Market Value of such shares on the date such option is granted
(110% if options are intended to be Incentive Stock Options and are granted to a
stockholder who at the time the option is granted owns or is deemed to own stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or of any parent or subsidiary of the Company). For
purposes of the Plan, "Fair Market Value" as to a particular day equals shall be
(a) as determined by the Board for grants prior to the date (the "IPO Date")
that shares of Common Stock first become registered under Section 12 of the 1934
Act, (b) the initial public offering price per share for grants on the IPO Date,
and (c) the per share closing price for the Common Stock as reported for the
prior trading day in the Wall Street Journal or in such other source as the Plan
Administrator deems reliable for grants after the IPO Date. The Plan
Administrator shall set the term of each stock option, but no Incentive Stock
Option shall be exercisable more than 10 years after the date such option is
granted and, to the extent the aggregate Fair Market Value (determined as of the
date the option is granted) of Common Stock with respect to which Incentive
Stock Options granted to a particular individual become exercisable for the
first time during any calendar year (under the Plan and all other stock option
plans of the Company) exceeds $100,000 (or such corresponding amount as may be
set by the Code) such options shall be treated as Nonqualified Stock Options. An
optionholder and the Plan Administrator can agree at any time to convert an
Incentive Stock Option to a Nonqualified Stock Option.
5.3 STOCK APPRECIATION RIGHTS. The Plan Administrator may
grant stock appreciation rights, either in tandem with a stock option granted
under the Plan or with respect to a number of shares for which an option is not
granted. A stock appreciation right shall entitle the holder to receive, with
respect to each share of stock as to which the right is exercised, payment in an
amount equal to the excess of the share's Fair Market Value on the date the
right is exercised over its Fair Market Value on the date the right was granted.
Such payment may be made in cash or in shares of Common Stock valued at Fair
Market Value as of the date of the surrender, or partly in cash and partly in
shares of Common Stock, as determined by the Plan Administrator in its sole
discretion. The Plan Administrator may establish a maximum appreciation value
payable for stock appreciation rights.
5.4 RESTRICTED STOCK AWARDS. The Plan Administrator may grant
restricted stock awards under the Plan in Common Stock or denominated in units
of Common Stock. The Plan Administrator, in its discretion, may make such awards
subject to conditions and restrictions, as set forth in the instrument
evidencing the award, which may be based on continuous service with the Company
or the attainment of certain performance goals related to profits, profit
growth, profit-related return ratios, cash flow or shareholder returns, where
such goals may be stated in absolute terms or relative to comparison companies
or indices to be achieved during a period of time. The Plan Administrator may
choose, at the time of granting an award or at any time thereafter up to the
time of payment of the award, to include as part of such award an entitlement to
receive dividends or dividend equivalents, subject to such terms as the Plan
Administrator may establish. All dividends or dividend equivalents that are not
paid currently may, in the Plan Administrator's sole discretion, accrue interest
and be paid to the participant if, when and to the extent such award is paid.
5.5 PAYMENT; DEFERRAL. Awards granted under the Plan may be
settled through cash payments, the delivery of Common Stock (valued at Fair
Market Value) or the granting of awards or combinations thereof as the Plan
Administrator shall determine. Any award settlement, including payment
deferrals, may be subject to such conditions, restrictions and contingencies as
the Plan Administrator shall determine. The Plan Administrator may permit or
require the deferral of any award payment, subject to such rules and procedures
as it
3
<PAGE> 4
may establish, which may include provisions for the payment or crediting of
interest, or dividend equivalents, including converting such credits to deferred
stock unit equivalents.
5.6 INDIVIDUAL AWARD AGREEMENTS. Stock Options shall and other
awards may be evidenced by agreements between the Company and the recipient in
such form and content as the Plan Administrator from time to time approves,
which agreements shall substantially comply with and be subject to the terms of
the Plan. Such individual agreements may contain such provisions or conditions
as the Plan Administrator deems necessary or appropriate to effectuate the sense
and purpose of the Plan and may be amended from time to time in accordance with
the terms thereof.
6. AWARD EXERCISE
6.1 PRECONDITION TO STOCK ISSUANCE. No shares shall be
delivered pursuant to the exercise of any stock option or stock appreciation
right, in whole or in part, until qualified for delivery under such securities
laws and regulations as may be deemed by the Plan Administrator to be applicable
thereto and until, in the case of the exercise of an option, payment in full of
the option price thereof (in cash or stock as provided in Section 6.3) is
received by the Company. No holder of an option or stock appreciation right, or
any legal representative, legatee or distributee shall be or be deemed to be a
holder of any shares subject to such option or right unless and until such
shares are issued.
6.2 NO FRACTIONAL SHARES. No stock option may at any time be
exercised with respect to a fractional share. No fractional share shall be
issued with respect to a stock appreciation right; however, a fractional stock
appreciation right may be exercised for cash.
6.3 FORM OF PAYMENT. An optionee may exercise a stock option
using as the form of payment (a) cash or cash equivalent, (b) stock-for-stock
payment (as described below), (c) any combination of the above, or (d) such
other means as the Plan Administrator may approve. Any optionee who owns Common
Stock may use such shares as a form of payment to exercise stock options granted
under the Plan. The Plan Administrator, in its discretion, may restrict or
rescind this right by notice to optionees. A stock option may be exercised in
such manner only by tendering (actually or by attestation) to the Company whole
shares of Common Stock having a Fair Market Value equal to or less than the
exercise price. If an option is exercised by surrender of shares having a Fair
Market Value less than the exercise price, the optionholder must pay the
difference in cash.
7. AUTOMATIC GRANT PROGRAM
7.1 AMOUNT AND DATE OF GRANT. During the term of the Plan, the
Company shall make automatic grants of options ("Automatic Options") in the form
of Nonqualified Stock Options to each Board member ("Eligible Director") (or
proposed Board member pursuant to Section 7.1.3) who is not employed by the
Company, whether or not such person is a Non-Employee Director as referred to in
Section 2.2 as follows:
7.1.1 ANNUAL GRANTS. Each year on the Annual Grant
Date, an Automatic Option to acquire 2,500 shares of Common Stock shall be
granted to each Eligible Director for so long as shares of Common Stock are
available under Section 4.1 hereof. The "Annual Grant Date" shall be the date of
the Company's annual stockholders meeting commencing as of the first annual
meeting occurring after the date (the "Effective Date") the Plan is approved by
the stockholders of the Company. Any Eligible Director that was granted an
Automatic Option under Section 7.1.2 or Section 7.1.3 within 90 days of an
Annual Grant Date shall be ineligible to receive an Automatic Option pursuant to
this Section 7.1.1 on such Annual Grant Date.
7.1.2 INITIAL NEW DIRECTOR GRANTS. On the Initial
Grant Date, every new member of the Board, who is an Eligible Director and has
not previously received an Automatic Option under this Section 7.1.2 shall be
granted an Automatic Option to acquire 5,000 shares of Common Stock for so long
as shares of Common Stock are available under Section 4.1 hereof. The "Initial
Grant Date" shall be the date that an Eligible Director is first appointed or
elected to the Board. Any Eligible Director who previously received an Automatic
Option pursuant to Section 7.1.3 shall be ineligible to receive an Automatic
Option pursuant to this Section 7.1.2.
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7.1.3 INITIAL PROPOSED DIRECTOR GRANTS. On the date
that shares of Common Stock first become registered under Section 12 of the 1934
Act, the Company shall grant an Automatic Option to acquire 10,000 shares of
Common Stock to each non-employee whose election to the Board is proposed as of
such date .
7.2 EXERCISE PRICE. The exercise price per share of Common
Stock subject to each Automatic Option granted under Section 7.1.1 or Section
7.1.2 shall be equal to 100 percent of the Fair Market Value per share of the
Common Stock on the date such Automatic Option was granted as determined in
accordance with the valuation provisions of Section 5.2. The exercise price per
share of Common Stock subject to each Automatic Option granted under Section
7.1.3 shall be equal to the initial public offering price per share of Common
Stock.
7.3 VESTING. Each Automatic Option granted pursuant to Section
7.1.1 shall vest and become exercisable 12 months after the date of grant. Each
Automatic Option granted pursuant to Section 7.1.2 shall vest and become
exercisable in a series of three equal and successive installments with the
first installment vested on the date of grant and the next two installments 12
months and 24 months after the date of grant. Each Automatic Option granted
pursuant to Section 7.1.3 shall vest and become exercisable in a series of three
equal and successive installments with the first installment vested on the date
of the recipient's election to the Board and the next two installments 12 months
and 24 months after the date of grant. Each Automatic Option shall vest and
become exercisable only if the optionholder has not ceased serving as a Board
member as of such vesting date.
7.4 TERM OF AUTOMATIC OPTIONS. Each Automatic Option shall
expire on the tenth anniversary (the "Expiration Date") of the date on which
such Automatic Option was granted. Except as determined by the Plan
Administrator, should an Eligible Director's service as a Board member cease
prior to the Expiration Date for any reason while an Automatic Option remains
outstanding and unexercised, the Automatic Option term shall immediately be
modified and the Automatic Option shall terminate and cease to be outstanding in
accordance with the following provisions:
7.4.1 The Automatic Option shall immediately
terminate and cease to be outstanding with respect to any shares that were not
vested at the time of the optionholder's cessation of Board service; provided,
however, that a proposed director who receives a grant pursuant to Section 7.1.3
shall not be treated as ceasing to serve as a Board member for purposes of this
Section 7 prior to such individual's election to the Board.
7.4.2 Should an optionholder cease, for any reason
other than death, to serve as a member of the Board, then the optionholder shall
have 90 days measured from the date of such cessation of Board service in which
to exercise his or her Automatic Options that vested prior to the time of such
cessation of Board service. In no event, however, may any Automatic Option be
exercised after the Expiration Date of such Automatic Option.
7.4.3 Should an optionholder die while serving as a
Board member or within 90 days after cessation of Board service, then the
personal representative of the optionholder's estate (or the person or persons
to whom the Automatic Option is transferred pursuant to the optionholder's will
or in accordance with the laws of the descent and distribution) shall have a
90-day period measured from the date of the optionholder's cessation of Board
service in which to exercise the Automatic Options that vested prior to the time
of such cessation of Board service. In no event, however, may any Automatic
Option be exercised after the Expiration Date of such Automatic Option.
7.5 OTHER TERMS. Except as expressly provided otherwise in
this Section 7, an Automatic Option shall be subject to all of the terms and
conditions of the Plan. Eligible Directors shall be entitled to receive other
awards under the Plan or other plans of the Company in accordance with the terms
and conditions thereof.
8. TRANSFERABILITY. Any Incentive Stock Option granted under the Plan
shall, during the recipient's lifetime, be exercisable only by such recipient,
and shall not be assignable or transferable by such recipient other than by will
or the laws of descent and distribution. Except as specifically allowed by the
Plan Administrator, any other award under the Plan and any of the rights and
privileges conferred thereby shall not be assignable or transferable by the
recipient other than by will or the laws of descent and distribution and such
award shall be exercisable during the recipient's lifetime only by the
recipient.
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9. WITHHOLDING TAXES; OTHER DEDUCTIONS. The Company shall have the
right to deduct from any settlement of an award granted under the Plan,
including the delivery or vesting of shares, (a) an amount sufficient to cover
withholding as required by law for any federal, state or local taxes, and (b)
any amounts due from the recipient of such award to the Company or to any parent
or subsidiary of the Company or to take such other action as may be necessary to
satisfy any such withholding or other obligations, including withholding from
any other cash amounts due or to become due from the Company to such recipient
an amount equal to such taxes or obligations.
10. TERMINATION OF SERVICES. The terms and conditions under which an
award may be exercised following termination of a recipient's employment,
directorship or independent contractor relationship with the Company shall be
determined by the Plan Administrator; provided, however, that Incentive Stock
Options shall not be exercisable at any time after the earliest of the date that
is (a) three months after termination of employment, unless due to death or
Disability (as defined in Section 22(e)(3) of the Code); (b) one year after
termination of employment due to Disability; or (c) ten years after the date of
grant (five years if granted to a stockholder who at the time the option is
granted owns or is deemed to own stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or of any parent or
subsidiary of the Company).
11. TERM OF THE PLAN. The Plan shall become effective as of the date of
adoption by the Board, and shall remain in full force and effect through the
date that is ten years thereafter, unless sooner terminated by the Board. After
the Plan is terminated, no future awards may be granted, but awards previously
granted shall remain outstanding in accordance with their applicable terms and
conditions and the Plan's terms and conditions.
12. PLAN AMENDMENT. The Board may amend, suspend or terminate the Plan
at any time; provided that no such amendment shall be made without the approval
of the Company's stockholders (a) that would increase the number of shares
available for issuance under the Plan (other than in accordance with Section
4.3), or (b) if such approval is required (i) to comply with Section 422 of the
Code with respect to Incentive Stock Options, or (ii) for purposes of Section
162(m) of the Code.
13. PLAN NOT EXCLUSIVE. This Plan is not intended to be the exclusive
means by which the Company may issue awards to acquire its Common Stock.
14. BIFURCATION OF THE PLAN. Notwithstanding any provision of this Plan
to the contrary, the Board, in its sole discretion, may bifurcate the Plan so as
to restrict, limit or condition the use of any provision of the Plan to
participants who are officers or directors subject to Section 16 of the 1934 Act
without so restricting, limiting or conditioning the Plan with respect to other
participants.
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EXHIBIT 10.5A
MARINEMAX, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
ADOPTED BY THE BOARD OF DIRECTORS AS OF APRIL 5, 1998
APPROVED BY THE SHAREHOLDERS AS OF APRIL 30, 1998
AMENDED AND RESTATED BY THE BOARD OF DIRECTORS AS OF AUGUST 6, 1998
ARTICLE 1
PURPOSE
1.1 NAME. This Stock Purchase Plan shall be known as the MarineMax 1998
Employee Stock Purchase Plan (the "Plan").
1.2 PURPOSE. The Plan is intended to provide a method whereby employees
of MarineMax, Inc., a Delaware corporation (the "Company"), and one or more of
its Subsidiary Corporations will have an opportunity to acquire a proprietary
interest in the Company through the purchase of shares of the Common Stock of
the Company.
1.3 QUALIFICATION. It is the intention of the Company to have the Plan
qualify as an "employee stock purchase plan" under Section 423 of the Code. The
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
ARTICLE 2
DEFINITIONS
2.1 BASE PAY. "Base Pay" shall mean the estimated annual compensation
of an Employee and (a) with respect to a salaried Employee, shall be based on
such Employee's current annual salary and (b) with respect to a hourly Employee,
shall be based on such Employee's RHE times such Employee's regular
straight-time hourly rate. Shift premium, bonuses, "skill-based" pay, and other
special payments, commissions (unless such commissions represent the primary
source of compensation, as determined by the Committee) and other marketing
incentive payments shall not be included in Base Pay. For purpose of the
foregoing, "RHE" for a full-time Employee shall mean the sum of (a) 2080 and (b)
1.5 times the estimated number of overtime hours to be worked annually and "RHE"
for a part-time Employee shall mean 1040. If any Offering is a six-month
Offering, the Base Pay shall be divided by one-half.
2.2 CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
2.3 CLOSING PRICE. "Closing Price" shall have the meaning set forth in
Section 6.2.
2.4 COMMITTEE. "Committee" shall have the meaning set forth in Section
11.1.
2.5 EMPLOYEE. "Employee" shall mean any person who is customarily
employed on a full-time or part-time basis by the Company and is regularly
scheduled to work more than 20 hours per week.
2.6 OFFERING. "Offering" shall have the meaning set forth in Section
4.1.
2.7 OFFERING COMMENCEMENT DATE. "Offering Commencement Date" shall have
the meaning set forth in Section 4.1.
2.8 OFFERING TERMINATION DATE. "Offering Termination Date" shall have
the meaning set forth in Section 4.1.
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2.9 OPTION. "Option" shall have the meaning set forth in Section 6.1.
2.10 OPTION PRICE. "Option Price" shall have the meaning set forth in
Section 6.2.
2.11 PARTICIPATING COMPANY. "Participating Company" shall mean the
Company and such Subsidiary Corporations as may be designated from time to time
by the Board of Directors of the Company.
2.12 PARTICIPANT. "Participant" shall have the meaning set forth in
Section 3.4.
2.13 PARTICIPATION AMOUNT. "Participation Amount" shall have the
meaning set forth in Section 5.1.
2.14 STOCK. "Stock" shall mean the Common Stock of the Company, par
value one-tenth of one cent ($.001 per share).
2.15 SUBSIDIARY CORPORATION. "Subsidiary Corporation" shall mean any
present or future corporation which would be a "subsidiary corporation" of the
Company, as that term is defined in Code Section 424.
ARTICLE 3
ELIGIBILITY AND PARTICIPATION
3.1 INITIAL ELIGIBILITY. Any Employee who shall have completed one year
of continuous employment with a Participating Company and is employed by a
Participating Company on the date such Employee's participation in the Plan is
to become effective shall be eligible to participate in Offerings under the Plan
that commence on or after such one-year employment period has concluded.
Notwithstanding the foregoing, however, any Employee who is employed by a
Participating Company as of September 1, 1998, shall be eligible to participate
in the Offering commencing on October 1, 1998, regardless of the length of such
Employee's employment with a Participating Company prior to such date. Any
corporation that becomes a Subsidiary Corporation after the initial Offering
Commencement Date shall become a Participating Company only upon the decision of
the Board of Directors of the Company to designate such Subsidiary Corporation
as a Participating Company and to extend the benefits of the Plan to its
eligible Employees.
3.2 LEAVE OF ABSENCE. For purposes of participation in the Plan, a
person on leave of absence shall be deemed to be an Employee for the first 90
days of such leave of absence and such Employee's employment shall be deemed to
have terminated at the close of business on the 90th day of such leave of
absence unless such Employee shall have returned to regular full-time or
part-time employment (as the case may be) prior to the close of business on such
90th day. Termination by a Participating Company of any Employee's leave of
absence, other than termination of such leave of absence on return to full time
or part time employment, shall terminate an Employee's employment for all
purposes of the Plan and shall terminate such Employee's participation in the
Plan and right to exercise any Option.
3.3 RESTRICTIONS ON PARTICIPATION. Notwithstanding any provision of the
Plan to the contrary, no Employee shall be granted an Option to participate in
the Plan:
(a) if, immediately after the grant, such Employee would own
Stock, and/or hold outstanding Options to purchase Stock, possessing five
percent or more of the total combined voting power or value of all classes of
Stock of the Company (for purposes of this paragraph, the rules of Section
424(d) of the Code shall apply in determining Stock ownership of any Employee);
or
(b) which permits such Employee's rights to purchase Stock
under all employee stock purchase plans of the Company and all Participating
Companies to accrue at a rate that exceeds $25,000 in fair market value of the
Stock (determined at the time such Option is granted) for each calendar year in
which such Option is outstanding.
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3.4 COMMENCEMENT OF PARTICIPATION. An eligible Employee may become a
participant ("Participant") by completing the enrollment forms prescribed by the
Committee (including a purchase agreement and a payroll deduction authorization)
and filing such forms with the designated office of the Company prior to the
Offering Commencement Date for the next scheduled Offering. Payroll deductions
for a Participant shall commence on the next scheduled Offering Commencement
Date when such Participant's authorization for a payroll deduction becomes
effective and shall continue in effect for the term of this Plan, except to the
extent such payroll deduction is changed in accordance with this Section 3.4 or
terminated in accordance with Article 8. Subject to Section 5.4, a Participant
may, at any time, increase or decrease the rate of, or cease, the Participant's
payroll deductions by filing the appropriate form with the designated office of
the Company and such change shall become effective as of the next applicable
Offering Commencement Date.
ARTICLE 4
OFFERINGS
4.1 ANNUAL OFFERINGS. The Plan will be implemented by up to ten annual
offerings ("Offerings") of the Company's Stock beginning on the 1st day of
October in each of the years 1998 through 2007, with each Offering terminating
on September 30 of the next year; provided, however, that each annual Offering
may, in the discretion of the Committee exercised prior to the commencement
thereof, be divided into two six-month Offerings commencing respectively, on
October 1 and April 1, and terminating six months thereafter. As used in the
Plan, "Offering Commencement Date" means the October 1 or April 1, as the case
may be, on which the particular Offering begins and "Offering Termination Date"
means the March 31 or September 30, as the case may be, on which the particular
Offering terminates. Any decision of the Committee to adjust the number of
shares of Stock in an Offering must be made prior to the Offering Commencement
Date of that Offering.
ARTICLE 5
PAYROLL DEDUCTIONS
5.1 PERCENTAGE OF PARTICIPATION. At the time an Employee files
authorization for payroll deductions and becomes a Participant in the Plan, the
Employee shall elect to have deductions made from the Employee's pay on each
payday during the time the Employee is a Participant in an Offering. Such
deductions shall be an amount equal to the Employee's Participation Amount
divided by the number of payroll periods occurring during the Offering. An
Employee's "Participation Amount" shall equal the rate of 1, 2, 3, 4, 5, 6, 7,
8, 9 or 10 percent (as elected by the Employee) times such Employee's Base Pay
in effect at the Offering Commencement Date of such Offering; provided, however,
that prior to any Offering Commencement Date, the Committee shall have the
discretion to limit deductions to less than 10 percent (but no less than 5
percent) for any Offering.
5.2 CALCULATION OF BASE PAY. An Employee's Base Pay as of an Offering
Commencement Date and whether an Employee is "part-time" shall be determined in
the discretion of the Committee based on the provisions of this Plan. In
calculating an Employee's normal weekly rate of pay under this Section 5.2,
retroactive adjustments occurring during an Offering that are retroactive to the
last day prior to the Offering Commencement Date of that particular Offering
shall be taken into account. In addition, if an Employee's Base Pay includes
commissions, the Committee may set such Employee's Base Pay based upon
commission averages and standards as determined in the discretion of the
Committee.
5.3 PARTICIPANT'S ACCOUNT. All payroll deductions made for a
Participant pursuant to this Article 5 shall be credited to such Participant's
account under the Plan. A Participant may not make any separate cash payment
into such account except when on leave of absence and then only as provided in
Section 5.5.
5.4 CHANGES IN PAYROLL DEDUCTIONS. A Participant may discontinue
participation in the Plan as provided in Article 8, but no other change can be
made during an Offering and, specifically, a Participant may not alter the
amount of such Participant's payroll deductions for that Offering.
5.5 LEAVE OF ABSENCE. If a Participant goes on a leave of absence, such
Participant shall have the right to elect: (a) to withdraw the balance in such
Participant's account pursuant to Section 8.1 hereof, or (b) to discontinue
contributions to the Plan but remain a Participant in the Plan, or remain a
Participant in the Plan during such leave of absence, authorizing deductions to
be made from payments by the Company to the Participant during
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<PAGE> 4
such leave of absence and undertaking to make cash payments to the Plan at the
end of each payroll period to the extent that amounts payable by the
Participating Company to such Participant are insufficient to meet such
Participant's authorized Plan deductions.
ARTICLE 6
GRANTING OF OPTION
6.1 NUMBER OF OPTION SHARES. On each Offering Commencement Date, a
Participant shall be deemed to have been granted an option ("Option") to
purchase a maximum number of shares of Stock equal to the Participation Amount
with respect to such Participant, divided by the Option Price, determined as
provided in Section 6.2 hereof.
6.2 OPTION PRICE. The "Option Price" of Stock for each Offering shall
be the lower of (a) 85% of the Closing Price of the Stock on the Offering
Commencement Date, or (b) 85% of the Closing Price of the Stock on the Offering
Termination Date. The "Closing Price" of the Stock as to a particular day shall
be the closing price of the Stock as reported for such day in the Wall Street
Journal or in such other source as the Committee deems reliable. If the Stock is
not traded on the New York Stock Exchange or other principal exchange or market
on which it is authorized or listed for trading on the Offering Commencement
Date and/or Offering Termination Date, as the case may be, the Closing Price for
the Stock as to either of such dates on which such trading did not occur shall
be the Closing Price on the nearest prior business day on which trading did
occur.
ARTICLE 7
EXERCISE OF OPTION
7.1 AUTOMATIC EXERCISE. Unless a Participant gives written notice to
the Company as hereinafter provided, such Participant's Option for the purchase
of Stock granted under Section 6.1 hereof will be deemed to have been exercised
automatically on the Offering Termination Date applicable to such Offering for
the purchase of the number of full shares of Stock that the accumulated payroll
deductions in such Participant's account at that time will purchase at the
applicable Option Price (but not in excess of the number of shares for which
Options have been granted to the Employee pursuant to Section 6.1 hereof).
7.2 FRACTIONAL SHARES. Fractional shares will not be issued under the
Plan and any accumulated payroll deductions that would have been used to
purchase fractional shares will be, at the option of the Committee, either (a)
returned (without interest) to the Participant promptly following the
termination of an Offering, or (b) added to the Participation Amount for such
Participant and held for the purchase of Stock in connection with the next
Offering; provided, however, that such amount (without interest) shall be
refunded to any Participant who provides the Company with a written request for
a refund prior to the use of such amount to purchase Stock at the end of the
next Offering.
7.3 TRANSFERABILITY OF OPTION. During a Participant's lifetime, Options
held by such Participant shall be exercisable only by such Participant.
7.4 DELIVERY OF STOCK. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each Participant,
as appropriate, the Stock purchased upon exercise of such Participant's Option.
All Stock delivered to each Participant will contain a restriction stating that
such Stock is restricted from being transferred for a period of one year from
the date of issuance unless the Committee otherwise consents. The Committee may
withhold its consent to any such transfer in its absolute and sole discretion.
Any transfer in violation of the legend placed on each such stock certificate
shall be void ab initio. In no event, however, shall Stock be forfeited for
violation of the transfer restriction.
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ARTICLE 8
WITHDRAWAL
8.1 IN GENERAL. At any time prior to the last five days of an Offering,
a Participant may withdraw payroll deductions credited to such Participant's
account under the Plan by giving written notice to the designated office of the
Company, which withdrawal notice shall be in form and substance as decided by
the Committee. All of the Participant's payroll deductions credited to the
Participant's account will be paid to the Participant promptly after receipt of
such Participant's notice of withdrawal, and no further payroll deductions will
be made from the Participant's pay during such Offering or during any subsequent
Offering unless the Participant re-enrolls as provided in Section 8.2 hereof.
The Company may, at its option, treat any attempt by a Participant to borrow on
the security of such Participant's accumulated payroll deductions as an election
to withdraw such deductions.
8.2 EFFECT ON SUBSEQUENT PARTICIPATION. An Employee's withdrawal from
any Offering will not have any effect upon such Employee's eligibility to
participate in any succeeding Offering or in any similar plan that may hereafter
be adopted by the Company. In order to be eligible for a subsequent Offering;
however, an Employee who has withdrawn from an Offering must satisfy the
requirements of Section 3.4 hereof prior to the Offering Commencement Date of
such subsequent Offering.
8.3 TERMINATION OF EMPLOYMENT. Upon termination of a Participant's
employment for any reason, including retirement (but excluding death or
permanent disablement while in the employ of a Participating Company or
continuation of a leave of absence for a period beyond 90 days), the payroll
deductions credited to such Participant's account will be returned to the
Participant, or, in the case of the Participant's death subsequent to the
termination of such Participant's employment, to the person or persons entitled
thereto under Section 12.1 hereof.
8.4 TERMINATION OF EMPLOYMENT DUE TO DEATH. Upon termination of a
Participant's employment because of death or permanent disablement, the
Participant or Participant's beneficiary (as defined in Section 12.1 hereof)
shall have the right to elect, by written notice given to the designated office
of the Company prior to the earlier of the Offering Termination Date or the
expiration of a period of 60 days commencing with the termination of the
Participant's employment, either:
(a) to withdraw all of the payroll deductions credited to the
Participant's account under the Plan; or
(b) to exercise the Participant's Option on the next Offering
Termination Date and purchase the number of full shares of Stock that the
accumulated payroll deductions in the Participant's account at the date of the
Participant's cessation of employment will purchase at the applicable Option
Price, and any excess in such account will be returned to said beneficiary,
without interest.
In the event that no such written notice of election shall be duly received by
the designated office of the Company, the beneficiary shall automatically be
deemed to have elected, pursuant to paragraph (b), to exercise the Participant's
Option.
8.5 LEAVE OF ABSENCE. A Participant on leave of absence shall, subject
to the election made by such Participant pursuant to Section 5.5 hereof,
continue to be a Participant in the Plan so long as such Participant is on
continuous leave of absence. A Participant who has been on leave of absence for
more than 90 days and who therefore is not an Employee for the purpose of the
Plan shall not be entitled to participate in any Offering commencing after the
90th day of such leave of absence. Notwithstanding any other provisions of the
Plan, unless a Participant on leave of absence returns to regular full time or
part time employment with the Company at the earlier of: (a) the termination of
such leave of absence, or (b) three months after the 90th day of such leave of
absence, such Participant's participation in the Plan shall terminate on
whichever of such dates first occurs.
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ARTICLE 9
INTEREST
9.1 PAYMENT OF INTEREST. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of any Participant,
including any interest paid on any and all money which is distributed to a
Participant or such Participant's beneficiary pursuant to the provisions of
Sections 7.2, 8.1, 8.3, 8.4 and 10.1 hereof.
ARTICLE 10
STOCK
10.1 MAXIMUM SHARES. The maximum number of shares of Stock that shall
be issued under the Plan, subject to adjustment upon changes in capitalization
of the Company as provided in Section 12.4 hereof, shall be 500,000 shares. If
the total number of shares for which Options are exercised on any Offering
Termination Date in accordance with Article 6 exceeds the maximum number of
shares for the applicable Offering, the Company shall make a pro rata allocation
of the shares available for delivery and distribution in as nearly a uniform
manner as shall be practicable and as the Committee shall determine to be
equitable, and the balance of payroll deductions credited to the account of each
Participant under the Plan shall be returned to such Participant as promptly as
possible.
10.2 PARTICIPANT'S INTEREST IN OPTION STOCK. A Participant will have no
interest in Stock covered by such Participant's Option until such Option has
been exercised.
10.3 REGISTRATION OF STOCK. Stock to be delivered to a Participant
under the Plan will be registered in the name of the Participant, or, if the
Participant so directs by written notice to the designated office of the Company
prior to the Offering Termination Date applicable thereto, in the names of the
Participant and the Participant's spouse, in the form and manner permitted by
applicable law.
10.4 RESTRICTIONS ON EXERCISE. The Board of Directors may, in its
discretion, require as conditions to the exercise of any Option that the shares
of Stock reserved for issuance upon the exercise of the Option shall have been
duly listed, upon official notice of issuance, upon the New York Stock Exchange
or other principal exchange or market on which the Common Stock is authorized or
listed for trading, and that either:
(a) a Registration Statement under the Securities Act of 1933,
as amended, with respect to said shares shall be effective; or
(b) the Participant shall have represented at the time of
purchase, in form and substance satisfactory to the Company, that it is such
Participant's intention to purchase the shares for investment and not for resale
or distribution.
ARTICLE 11
ADMINISTRATION
11.1 APPOINTMENT OF COMMITTEE. The Board of Directors shall appoint a
committee ("Committee") to administer the Plan, which shall consist of no fewer
than two (2) members of the Board of Directors. Members of the Committee who are
Employees shall be eligible to purchase Stock under the Plan.
11.2 AUTHORITY OF COMMITTEE. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to interpret
and construe any and all provisions of the Plan, to adopt rules and regulations
for administering the Plan, and to make all other determinations deemed
necessary or advisable for administering the Plan. The Committee's determination
regarding the foregoing matters shall be conclusive. The Committee may delegate
its authority as it deems necessary or appropriate.
11.3 RULES GOVERNING ADMINISTRATION OF THE COMMITTEE. The Board of
Directors may from time to time appoint members of the Committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the Committee. The Committee may select one of its members as
its Chairman and shall hold its meetings at such times and places as it shall
deem advisable and may hold telephonic meetings. A
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majority of its members shall constitute a quorum. All determinations of the
Committee shall be made by a majority of its members. The Committee may correct
any defect or omission or reconcile any inconsistency in the Plan, in the manner
and to the extent it shall deem desirable. Any decision or determination reduced
to writing and signed by a majority of the members of the Committee shall be as
fully effective as if it had been made by a majority vote at a meeting duly
called and held. The Committee may appoint a secretary and shall make such rules
and regulations for the conduct of its business as it shall deem advisable.
ARTICLE 12
MISCELLANEOUS
12.1 DESIGNATION OF BENEFICIARY. A Participant may file a written
designation of a beneficiary who is to receive any Stock and/or cash that such
Participant would be entitled to under the Plan. Such designation of beneficiary
may be changed by the Participant at any time by written notice to the
designated office of the Company. Upon the death of a Participant and upon
receipt by the Company of proof of identity and existence at the Participant's
death of a beneficiary validly designated by the Participant under the Plan, the
Company shall deliver such Stock and/or cash to such beneficiary. In the event
of the death of a Participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such Participant's death,
the Company shall deliver such Stock and/or cash to the executor or
administrator of the estate of the Participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such Stock and/or cash to the spouse or to any
one or more dependents of the Participant as the Company may designate. No
beneficiary shall, prior to the death of the Participant by whom he has been
designated, acquire any interest in the Stock or cash credited to the
Participant under the Plan.
12.2 TRANSFERABILITY. Neither payroll deductions credited to a
Participant's account nor any rights with regard to an Option granted under the
Plan may be assigned, transferred, pledged, or otherwise disposed of in any way
by the Participant, other than by will or the laws of descent and distribution.
Any such attempted assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw funds in accordance with Article 8.
12.3 USE OF FUNDS. All payroll deductions received or held by the
Company under this Plan may be used by the Company for any corporate purpose and
the Company shall not be obligated to segregate such payroll deductions.
12.4 ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
(a) If, while any Options are outstanding, the outstanding
shares of Stock of the Company have increased, decreased, changed into, or been
exchanged for a different number or type of shares or securities of the Company
through reorganization, merger, recapitalization, reclassification, stock split
(whether or not effected in the form of a stock dividend), reverse stock split
or similar transaction, appropriate and proportionate adjustments may be made by
the Committee in the number and/or type of shares of Stock that are subject to
purchase under outstanding Options and to the Option Price applicable to such
outstanding Options. In addition, in any such event, the number and/or type of
shares of Stock which may be offered in the Offerings described in Article 4
hereof shall also be proportionately adjusted.
(b) Upon the dissolution or liquidation of the Company, or
upon a reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the assets or stock of the Company to
another corporation, the holder of each Option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such Option for each share as to which such Option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of Stock was entitled to receive
upon and at the time of such transaction. The Board of Directors shall take such
steps in connection with such transactions as the Board shall deem necessary to
assure that the provisions of this Section 12.4 shall thereafter be applicable,
as nearly as reasonably may be determined, in relation to the said cash,
securities and/or property as to which such holder of such Option might
thereafter be entitled to receive.
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12.5 AMENDMENT AND TERMINATION. The Board of Directors shall have
complete power and authority to terminate or amend the Plan; provided; however,
that the Board of Directors shall not, without the approval of the stockholders
of the Company (a) increase the maximum number of shares that may be issued
under the Plan (except pursuant to Section 12.4 hereof); or (b) amend the
requirements as to the class of Employees eligible to purchase Stock under the
Plan. No termination, modification, or amendment of the Plan may, without the
consent of a Participant then holding an Option under the Plan to purchase
stock, adversely affect the rights of such Participant under such Option.
12.6 NO EMPLOYMENT RIGHTS. The Plan does not, directly or indirectly,
create in any Employee or class of Employees any right with respect to
continuation of employment by any Participating Company, and it shall not be
deemed to interfere in any way with any Participating Company's right to
terminate, or otherwise modify, an Employee's employment at any time.
12.7 EFFECT OF PLAN. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each Participant, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
12.8 GOVERNING LAW. The law of the State of Delaware will govern all
matters relating to this Plan except to the extent it is superseded by the laws
of the United States.
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EXHIBIT 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement dated September 11,
1998, of our report dated March 2, 1998 (except with respect to the matters
discussed in Note 13, as to which the date is April 30, 1998), included in the
Registration Statement file No. 333-47873, and to all references to our firm
included in this registration statement dated September 11, 1998. We also
consent to the incorporation by reference in this Registration Statement dated
September 11, 1998, of our report dated August 20, 1998, included in MarineMax,
Inc.'s Form 8-K dated September 2, 1998.
/s/ ARTHUR ANDERSEN LLP
Tampa, Florida
September 11, 1998
