<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 24, 1999
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MARINEMAX, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 5551 59-3496957
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
18167 U.S. 19 North, Suite 499
Clearwater, Florida 33764
(727) 531-1700
(Address, including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
-----------------------
WILLIAM H. MCGILL JR.,
CHAIRMAN OF THE BOARD
18167 U.S. 19 NORTH, SUITE 499
CLEARWATER, FLORIDA 33764
(727) 531-1700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-----------------------
Copies to:
ROBERT S. KANT, ESQ.
JEAN E. HARRIS, ESQ.
SCOTT K. WEISS, ESQ.
ONE EAST CAMELBACK
PHOENIX, ARIZONA 85012-1656
(602) 263-2400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practical after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE AGGREGATE OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE (1) REGISTRATION FEE(1)
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value......... 400,000 shares $10.625 $4,250,000 $1,181.50
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of
registration fee pursuant to Rule 457(o).
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
PROSPECTUS
SUBJECT TO COMPLETION DATED AUGUST 24, 1999
400,000 SHARES
MARINEMAX, INC.
COMMON STOCK
We are offering customers the opportunity to acquire shares of our
common stock under our stock incentive program. Under this program, each
customer that purchases a boat from one of our dealers may be eligible to
receive a coupon entitling the customer to receive shares of our common stock.
Our representatives will determine the terms of each coupon issued including the
products covered under the stock incentive program and the value of common stock
to be received upon redemption of each coupon. The terms of each coupon issued
will appear on the face of the coupon. Customers may redeem the coupons through
a designated stock brokerage firm who will act as our agent in purchasing shares
pursuant to the stock incentive program. The stock brokerage firm will purchase
our common stock in the open market and place the shares in the customers'
accounts. We will fund the open market purchases by the stock brokerage firm.
Our board of directors has authorized the purchase of $5.0 million of our common
stock on the open market under the stock incentive program. We will not receive
any of the proceeds from the stock incentive program.
Our common stock is traded on the New York Stock Exchange under the
symbol "HZO." On August 23, 1999, the last sale price of our common stock as
reported on the New York Stock Exchange was $10.56 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 8.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ____________, 1999.
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE CANNOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 3
PROSPECTUS SUMMARY
The following summary does not contain all information that may be
important to prospective investors. Prospective investors should review this
entire prospectus before deciding to acquire shares of our common stock. Unless
the context otherwise requires, all references to "MarineMax" mean MarineMax,
Inc. prior to its acquisition of five previously independent recreational boat
dealers, including their related real estate companies, and all references to
the "Company," "we," "us," and "our," mean, as a combined company, MarineMax,
Inc. and the 14 recreational boat dealers and two boat brokerage operations we
have acquired to date. Each of these acquired dealers operates as a wholly owned
operating subsidiary of MarineMax, Inc.
THE COMPANY
We are the largest recreational boat dealer in the United States.
Through 47 retail locations in Arizona, California, Florida, Delaware, Georgia,
Minnesota, Nevada, New Jersey, North Carolina, Ohio, Pennsylvania, South
Carolina, and Texas, we sell new and used recreational boats, including pleasure
boats, such as sport boats, sport cruisers, sport yachts, and yachts, and
fishing boats with a focus on premium brands in each segment. We also sell
related marine products, including engines, trailers, parts, and accessories. In
addition, we arrange related boat financing, insurance, and extended service
contracts; provide repair and maintenance services; and offer boat brokerage
services.
We are the nation's largest retailer of Sea Ray, Boston Whaler, and
other boats manufactured by Brunswick Corporation, which is the world's largest
manufacturer of recreational boats. Sales of new Brunswick boats accounted for
88% of our new boat sales in fiscal 1998, which we believe represented
approximately 25% of all new Sea Ray boat sales and approximately 6% of all
Brunswick marine product sales during that period. Each of our operating
subsidiaries is a party to a 10-year dealer agreement with Brunswick covering
Sea Ray products and is the exclusive dealer of Sea Ray boats in its geographic
market.
We commenced operations as a combined company as a result of the March
1, 1998 acquisition of five previously independent recreational boat dealers and
have acquired nine additional previously independent recreational boat dealers
and two boat brokerage operations since that time. We are capitalizing on the
experience and success of each of the acquired dealers in order to establish a
new national standard of customer service and responsiveness in the highly
fragmented retail boating industry. While the average new boat retailer
generates less than $3.0 million in annual sales, our retail locations, which
operated at least 12 months, averaged $11.2 million in annual sales in fiscal
1998. As a result of our emphasis on premium brand boats, our average selling
price for a new boat in fiscal 1998 was approximately $39,500 compared to the
estimated industry average selling price of approximately $14,000. For the
fiscal year ended September 30, 1998, we had revenue of approximately $291.2
million, pro forma operating income of approximately $23.1 million, before
deducting the $15.0 million non-recurring Brunswick settlement, and pro forma
net income, before the Brunswick settlement, of approximately $12.6 million. Our
same-store sales increased by approximately 18% in fiscal 1998 and has averaged
17% for the last five years.
We are adopting the best practices of our acquired dealers as
appropriate to enhance our ability to attract more customers, foster an overall
enjoyable boating experience, and offer boat manufacturers stable and
professional retail distribution. We believe that our full range of services,
two years of free maintenance, which we call "MarineMax Care," MarineMax
Value-Price sales approach, prime retail locations, extensive facilities, and
emphasis on customer service and satisfaction before and after a boat sale are
competitive advantages that enable us to be more responsive to the needs of
existing and prospective customers.
The recreational boating industry generated approximately $19.1 billion
in retail sales in 1998, including sales of new and used boats; marine products,
such as engines, trailers, equipment, and accessories; and related expenditures,
such as fuel, insurance, docking, storage, and repairs. Retail sales of new
boats, engines, and trailers accounted for approximately $10.0 billion of these
sales in 1998. We estimate that the boat retailing industry includes more than
4,000 boat retailers, most of which are small retailers that operate in a single
market and provide varying degrees of merchandising, professional management,
and customer service. We believe that many dealers are finding it increasingly
difficult to make the managerial and capital commitments necessary to
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achieve higher customer service levels and upgrade systems and facilities as
required by boat manufacturers, particularly during a period of stagnant
industry growth. We also believe that many dealers lack an exit strategy for
their owners.
We maintain our executive offices at 18167 U.S. 19 North, Suite 499,
Clearwater, Florida 33764, and our telephone number is (727) 531-1700. We were
incorporated in the state of Delaware in January 1998.
STRATEGY
Our goal is to enhance our position as the nation's leading retailer of
recreational boats. Key elements of our operating and growth strategies include
the following:
- emphasizing customer satisfaction and loyalty by creating an
overall enjoyable boating experience beginning with the
negotiation-free purchase process, two years of free
maintenance, and premier facilities,
- implementing the "best practices" of each of our acquired
dealers as appropriate throughout our dealerships,
- achieving operating efficiencies and synergies among our
dealerships to enhance internal growth and profitability,
- operating with a decentralized approach to the operational
management of our dealerships,
- utilizing technology throughout operations,
- opening additional retail facilities in our existing and new
territories,
- offering additional product lines and services throughout our
dealerships, and
- pursuing strategic acquisitions to capitalize upon the
significant consolidation opportunities in the highly
fragmented recreational boat dealer industry by acquiring
additional dealers and improving their performance and
profitability through the implementation of our operating
strategies.
DEVELOPMENT OF THE COMPANY; ACQUISITIONS
MarineMax was founded in January 1998. MarineMax itself, however,
conducted no operations until its acquisition of five independent recreational
boat dealers on March 1, 1998. We acquired a sixth recreational boat dealer on
April 30, 1998. Since our initial public offering in June 1998, we have acquired
eight additional recreational boat dealers and two boat brokerage operations.
Each of our acquired dealers is continuing its operations as a wholly
owned operating subsidiary of our company. The following table sets forth
information regarding the acquired dealers and the retail locations, or
dealerships, they operate.
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ACQUIRED DEALERS ACQUISITION DATE BUSINESS
- ---------------- ---------------- --------
<S> <C> <C>
Bassett Boat Company of Florida
("Bassett") March 1998 Operates five retail locations in Miami, Palm
Beach, Pompano Beach, and Stuart, Florida
Louis DelHomme Marine ("DelHomme") March 1998 Operates six retail locations in Lewisville
(Dallas), League City, Montgomery, and Houston,
Texas
Gulfwind USA, Inc. ("Gulfwind USA") March 1998 Operates two retail locations in Tampa and
Clearwater, Florida
Gulfwind South, Inc. ("Gulfwind South") March 1998 Operates two retail locations in Fort Myers and
Naples, Florida
</TABLE>
4
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<TABLE>
<CAPTION>
ACQUIRED DEALERS ACQUISITION DATE BUSINESS
- ---------------- ---------------- --------
<S> <C> <C>
Harrison's Boat Center, Inc. and Harrison's March 1998 Operates six retail locations in Oakland, Redding,
Marine Centers of Arizona, Inc. Santa Rosa, and Sacramento, California, and Tempe,
(together, "Harrison's") Arizona
Stovall Marine, Inc. ("Stovall") April 1998 Operates four retail locations in Kennesaw
(Atlanta), August, Forest Park (Atlanta), and Lake
Lanier, Georgia
Cochran's Marine, Inc. and C & N Marine July 1998 Operates five retail locations in Rogers, Walker,
Corporation (together "Cochran's") Oakdale, and Woodbury, Minnesota
Sea Ray of Wilmington, Inc. July 1998 Operates two retail locations in Wrightsville
Beach, North Carolina and Myrtle Beach, South
Carolina
Brevard Boat Company ("Brevard") September 1998 Operates one retail location in Cocoa, Florida
Sea Ray of Las Vegas September 1998 Operates one retail location in Las Vegas, Nevada
Treasure Cove Marina, Inc. September 1998 Operates four retail locations in Cleveland, Port
Clinton, and Toledo, Ohio
Woods & Oviatt, Inc. October 1998 Operates one boat brokerage operation
headquartered in Ft. Lauderdale, Florida
Boating World February 1999 Operates one retail location in Arlington, Texas
Merit Marine, Inc. March 1999 Operates three retail locations in Somers Point,
Ship Bottom, and Brant Beach, New Jersey
Suburban Boatworks, Inc. April 1999 Operates three retail locations in Brick, New
Jersey, Bear, Delaware, and Warrington,
Pennsylvania
Hansen Marine, Inc. August 1999 Operates one boat brokerage operation
headquartered in Jacksonville, Florida
</TABLE>
In October 1998, we received the Hatteras Yachts dealership for the
state of Florida, excluding certain portions of the Florida Panhandle, and
became the U.S. distributor for Hatteras products over 74 feet.
STOCK INCENTIVE PROGRAM
We are offering customers the opportunity to acquire shares of our
common stock under our stock incentive program. The purpose of the program is to
stimulate product sales by providing customers with additional value by
acquiring a proprietary interest in our company.
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Shares issuable under the program....................... Shares of common stock
Basic structure of program.............................. Under the stock incentive program, customers that
purchase a boat from one of our dealerships may be
eligible to receive a coupon entitling the customer to
acquire shares of our common stock in a designated
dollar amount. The coupon will be redeemable through a
stock brokerage firm selected by the program
administrator. The stock brokerage firm will act as
our
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independent agent in purchasing shares pursuant to
the stock incentive program. Upon presentation of a
coupon by a customer, the stock brokerage firm will
purchase shares of our common stock in the open market
as soon as practicable and place the shares in the customer's
account. The number of shares purchased will be based upon
the designated amount of the coupon, net of applicable
commissions, and is subject to rounding. We will fund the
open market purchases by the stock brokerage firm.
Program administration.................................. Our board of directors will administer the stock
incentive program. The program administrator will have
complete discretion to determine the designated dollar
amount of our common stock that customers will receive
in connection with a boat purchase, as well as all
other terms, conditions, restrictions, and limitations
of the coupons.
Program eligibility..................................... The program administrator will have the exclusive
authority to determine the customers that are eligible
to participate in the program and the time periods that
the program will operate.
Program amendments and termination...................... The program administrator will have the exclusive
authority to amend, suspend, or terminate the stock
incentive program at any time and in any respect. Once
the program is terminated, no future coupons may be
issued to customers, but coupons previously issued may
be redeemed by the holders in accordance with their
terms and the terms and conditions of the program.
Use of proceeds......................................... The stock incentive program provides that the shares
purchased under the program will be purchased in the
open market, rather than us issuing new shares.
Therefore, we will not receive any consideration for
any shares of common stock purchased or distributed
under the stock incentive program.
</TABLE>
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SUMMARY CONSOLIDATED FINANCIAL DATA
(Dollars in thousands, except earnings per share data)
<TABLE>
<CAPTION>
TWELVE
MONTHS
ENDED
NINE MONTHS ENDED SEPTEMBER 30,
YEAR ENDED DECEMBER 31, SEPTEMBER 30, 1997
-------------------------------------- ---------------------- -------------
1994 1995 1996 1996 1997
---------- --------- --------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue....................... $ 141,800 $ 168,111 $ 197,609 $156,611 $ 200,414 $ 239,551
Cost of sales................. 109,543 128,823 149,948 117,514 150,479 180,998
---------- --------- --------- -------- --------- --------
Gross Profit.................. 32,257 39,288 47,661 39,097 49,935 58,552
Selling, general, and
administrative expenses.... 24,895 31,071 38,650 25,378 30,388 44,424
Non-recurring settlement(1)... --- --- --- --- --- ---
---------- --------- --------- -------- --------- --------
Income from operations........ 7,362 8,217 9,011 13,719 19,547 14,128
Interest expense, net......... 1,058 1,414 1,823 1,453 1,806 1,951
---------- --------- --------- -------- --------- --------
Income before tax provision... 6,305 6,803 7,188 12,266 17,741 12,177
Tax provision (benefit)....... 31 (20) 42 661 596 (73)
---------- --------- --------- -------- --------- ---------
Net income (loss)............. $ 6,273 $ 6,823 $ 7,146 $ 11,605 $ 17,146 $ 12,251
========== ========= ========= ======== ========= =========
OTHER DATA:
Number of stores(3)....... 19 22 23 23 24 26
Sales per store (4)....... $ 6,449 $ 6,572 $ 7,124 $ 7,027 $ 8,722 $ 10,536
Same-store sales growth
(5).................... 12% 14% 14% 8% 28% 26%
</TABLE>
<TABLE>
<CAPTION>
PRO FORMA
FISCAL NINE
FISCAL YEAR YEAR MONTHS
ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, JUNE 30,
1998 1998(6) 1999
------------- ------------- ----------
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue....................... $ 291,182 $ 291,182 $ 324,376
Cost of sales................. 220,364 220,364 247,311
---------- ----------- ----------
Gross Profit.................. 70,818 70,818 77,065
Selling, general, and
administrative expenses.... 52,479 47,679 56,993
Non-recurring settlement(1)... 15,000 15,000 ---
---------- ----------- ----------
Income from operations........ 3,339 8,139 20,072
Interest expense, net......... 2,212 2,212 1,364
---------- ----------- ----------
Income before tax provision... 1,127 5,927 18,708
Tax provision (benefit)....... 1,705 2,371 7,465
---------- ----------- ----------
Net income (loss)............. $ (577) $ 3,556 $ 11,243
========== =========== ==========
Net income (loss) per share:
Diluted (2)................. $ (0.05) $ 0.32 $ 0.76
========== =========== ==========
Weighted average number of shares:
Diluted (2)................. 11,027,949 11,027,949 14,873,280
========== =========== ==========
OTHER DATA:
Number of stores(3)....... 41 47
Sales per store (4)....... $ 11,269 $ 9,412
Same-store sales growth
(5).................... 18% 16%
</TABLE>
<TABLE>
<CAPTION>
JUNE 30,
1999
-------------
BALANCE SHEET DATA:
<S> <C>
Working capital........................................................................... $ 21,162
Total assets.............................................................................. 245,913
Long-term debt (including current portion)................................................ 3,958
Total stockholders' equity................................................................ 84,305
</TABLE>
- ---------------
(1) Consists of Brunswick settlement obligation. Brunswick's dealer
agreement with each of the five original acquired dealers by its terms
required the dealer to obtain Brunswick's consent to any change in the
ownership of the dealer. We and Brunswick disputed the applicability of
the change in control provisions to our acquisition of the five
original acquired dealers. In order to avoid a long, costly, and
disruptive dispute, we and Brunswick entered into a settlement
agreement on March 12, 1998 under which Brunswick agreed not to
challenge the change in control provisions of the dealership
agreements, and we agreed to pay Brunswick $15.0 million, together with
accrued interest, no later than December 31, 1998. In the absence of
the settlement agreement, Brunswick could have terminated the dealer
agreements.
(2) Per share data is presented for the latest fiscal and interim periods
only, as the per share data for the other periods are not meaningful
due to changes in the historical equity structure and in the
compensation paid to stockholder employees.
(3) Includes only those stores open at period end.
(4) Includes only those stores open for the entire preceding 12- or
nine-month period, respectively.
(5) New stores are included in the comparable base at the beginning of the
store's thirteenth month of operations.
(6) Pro forma amounts reflect a $4.8 million ($0.26 per diluted share)
reduction in selling, general, and administrative expense for
contractually lowered compensation and pro forma income taxes as if all
of our operating subsidiaries always operated as C corporations for
income tax purposes.
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RISK FACTORS
An investment in shares of common stock offered hereby involves a high
degree of risk. Prospective investors should consider carefully the following
risk factors, in addition to the other information contained in or incorporated
into this prospectus, in evaluating an investment in shares offered hereby. This
prospectus contains forward-looking statements that involve risks and
uncertainties and address, among other things, our acquisition and expansion
strategy, integration of acquired companies, capital expenditures, liquidity,
third-party contractual arrangements, cost-reduction efforts, and product
demand. Actual results may differ materially from those discussed in
forward-looking statements as a result of various factors, including those set
forth below.
WE MUST INTEGRATE THE OPERATIONS OF THE DEALERS WE RECENTLY ACQUIRED.
MarineMax was founded in January 1998. On March 1, 1998, MarineMax
acquired five independent recreational boat dealers that operated under their
principal owners for an average of more than 21 years. MarineMax itself,
however, conducted no operations and generated no sales or revenue until its
acquisition of the five dealers on March 1, 1998. Since March 1, 1998, we have
acquired nine additional recreational boat dealers and two boat brokerage
operations. The acquired dealers operated independently prior to their
acquisition by us. The consolidated financial results of MarineMax cover periods
when MarineMax and the acquired dealers were not under common management or
control and are not necessarily indicative of the results that would have been
achieved if MarineMax and the acquired dealers had been operated on an
integrated basis or the results that may be realized on a consolidated basis in
the future.
Our success depends, in part, on our ability to integrate the
operations of the acquired dealers and other dealers we acquire in the future,
including centralizing certain functions to achieve cost savings and pursuing
programs and processes that promote cooperation and the sharing of opportunities
and resources among our dealerships. Our senior executives operated
independently in the recreational boat industry prior to our formation and have
been assembled only recently as a management team. Management may not be able to
oversee the combined entity efficiently or to implement effectively our growth
and operating strategies. To the extent that we successfully implement our
acquisition strategy, our resulting growth will place significant additional
demands on our management and infrastructure. Our failure to implement
successfully our strategies or operate effectively the combined entity could
have a material adverse effect on our business, financial condition, and results
of operations. These effects could include lower revenue, higher cost of sales,
increased selling, general, and administrative expenses, and reduced margins on
a consolidated basis.
WE RELY ON BRUNSWICK AND OTHER KEY MANUFACTURERS.
Our success depends to a significant extent on the continued popularity
and reputation for quality of the boating products of our manufacturers,
particularly Brunswick's Sea Ray boat lines. Approximately 88% of our new boat
revenue in fiscal 1998 resulted from sales of products manufactured by
Brunswick, including 84% from Brunswick's Sea Ray division. The remainder of our
fiscal 1998 revenue from new boat sales resulted from sales of products from a
limited number of other manufacturers, none of which accounted for more than 10%
of our revenue. Any adverse change in the financial condition, production
efficiency, product development, and management and marketing capabilities of
our manufacturers, particularly Brunswick's Sea Ray division given our reliance
on Sea Ray, would have a substantial impact on our business.
To ensure adequate inventory levels to support our expansion, it may be
necessary for Brunswick and other manufacturers to increase production levels or
allocate a greater percentage of their production to us. The interruption or
discontinuance of the operations of Brunswick or other manufacturers could cause
us to experience shortfalls, disruptions, or delays with respect to needed
inventory. Although we believe that adequate alternate sources would be
available that could replace any manufacturer other than Brunswick as a product
source, there can be no assurance that such alternate sources will be available
at the time of any such interruption or that alternative products will be
available at comparable quality and prices.
Through our operating subsidiaries, we maintain dealer agreements with
Brunswick covering Sea Ray products. The dealer agreement with each operating
subsidiary has a 10-year term and provides for the lowest
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product prices charged by the Sea Ray division of Brunswick from time to time to
other domestic Sea Ray dealers. These terms are subject to
- the dealer meeting all the requirements and conditions of Sea
Ray's applicable programs, and
- the right of Brunswick in good faith to charge lesser prices
-- to other dealers to meet existing competitive
circumstances,
-- for unusual and non-ordinary business circumstances, or
-- for limited duration promotional programs.
The agreements do not give us the exclusive right to sell Sea Ray product lines
within any particular territory or restrict us from selling competing products.
As is typical in the industry, we deal with our manufacturers, other
than the Sea Ray division of Brunswick, under renewable dealer agreements. These
agreements do not contain any contractual provisions concerning product pricing
or required purchasing levels. Pricing is generally established on a model year
basis, but is subject to change at the manufacturer's sole discretion. Any
change or termination of these arrangements for any reason, including changes in
competitive, regulatory, or marketing practices, could adversely affect our
business, financial condition, and results of operations. In addition, the
timing, structure, and amount of manufacturer sales incentives and rebates could
impact the timing and profitability of our sales.
GENERAL ECONOMIC CONDITIONS, DISCRETIONARY CONSUMER SPENDING, AND CHANGES IN TAX
LAWS AFFECT OUR BUSINESS.
Our operations depend upon a number of factors relating to or affecting
consumer spending for luxury goods, such as recreational boats. Unfavorable
local, regional, or national economic developments or uncertainties regarding
future economic prospects could reduce consumer spending in the markets we serve
and adversely affect our business. Consumer spending on luxury goods also may
decline as a result of lower consumer confidence levels, even if prevailing
economic conditions are favorable. In an economic downturn, consumer
discretionary spending levels generally decline, often resulting in
disproportionately large reductions in the sale of luxury goods. Similarly,
rising interest rates could have a negative impact on the ability or willingness
of consumers to finance boat purchases, which could also adversely affect our
ability to sell our products. Local influences, such as corporate downsizing and
military base closings, also could adversely affect our operations in certain
markets. We may be unable to maintain our profitability during any period of
adverse economic conditions or low consumer confidence. Changes in federal and
state tax laws, such as an imposition of luxury taxes on new boat purchases,
also could influence consumers' decisions to purchase products we offer and
could have a negative effect on our sales. For example, during 1991 and 1992 the
federal government imposed a luxury tax on new recreational boats with sales
prices in excess of $100,000, which coincided with a sharp decline in boating
industry sales from a high of more than $17.9 billion in the late 1980s to a low
of $10.3 billion in 1992.
THE BOATING INDUSTRY HAS BEEN STAGNANT DURING RECENT YEARS.
The recreational boating industry is cyclical and has experienced
stagnant overall revenue growth over the last 10-year period. General economic
conditions, consumer spending patterns, federal tax policies, and the cost and
availability of fuel can impact overall boat purchases. We believe that the lack
of increase in overall boat purchases has resulted from increased competition
from other recreational activities, perceived hassles of boat ownership, and
relatively poor customer service and education throughout the retail boat
industry. Although our strategy addresses many of these industry factors and we
have achieved significant growth during the period of stagnant industry growth,
the cyclical nature of the recreational boating industry or the lack of industry
growth could adversely affect our business, financial condition, or results of
operations in the future.
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OUR ACQUISITION STRATEGY INVOLVES SIGNIFICANT RISKS.
Our growth strategy of acquiring additional recreational boat dealers
involves significant risks. This strategy will entail reviewing and potentially
reorganizing acquired business operations, corporate infrastructure and systems,
and financial controls. Unforeseen expenses, difficulties, and delays frequently
encountered in connection with rapid expansion through acquisitions could
inhibit our growth and negatively impact our profitability. We may be unable to
identify suitable acquisition candidates or to complete the acquisitions of
candidates that we identify. Increased competition for acquisition candidates
may increase purchase prices for acquisitions to levels beyond our financial
capability or to levels that would not result in the returns required by our
acquisition criteria. In addition, we may encounter difficulties in integrating
the operations of acquired dealers with our own operations or managing acquired
dealers profitably without substantial costs, delays, or other operational or
financial problems.
We may issue common or preferred stock or incur substantial
indebtedness in making future acquisitions. The size, timing, and integration of
any future acquisitions may cause substantial fluctuations in operating results
from quarter to quarter. Consequently, operating results for any quarter may not
be indicative of the results that may be achieved for any subsequent quarter or
for a full fiscal year. These fluctuations could adversely affect the market
price of our common stock.
Our ability to continue to grow through the acquisition of additional
dealers will depend upon various factors, including the following:
- the availability of suitable acquisition candidates at
attractive purchase prices,
- the ability to compete effectively for available acquisition
opportunities,
- the availability of funds or common stock with a sufficient
market price to complete the acquisitions,
- the ability to obtain any requisite manufacturer approvals,
and
- the absence of one or more manufacturers attempting to impose
unsatisfactory restrictions on us in connection with their
approval of acquisitions.
As a part of our acquisition strategy, we frequently engage in
discussions with various recreational boat dealers regarding their potential
acquisition by us. In connection with these discussions, we and each potential
acquisition candidate exchange confidential operational and financial
information, conduct due diligence inquiries, and consider the structure, terms,
and conditions of the potential acquisition. In certain cases, the prospective
acquisition candidate agrees not to discuss a potential acquisition with any
other party for a specific period of time, grants us an option to purchase the
prospective dealer for a designated price during a specific time, and agrees to
take other actions designed to enhance the possibility of the acquisition, such
as preparing audited financial information and converting its accounting system
to the system specified by us. Potential acquisition discussions frequently take
place over a long period of time and involve difficult business integration and
other issues, including in some cases, management succession and related
matters. As a result of these and other factors, a number of potential
acquisitions that from time to time appear likely to occur do not result in
binding legal agreements and are not consummated.
WE MAY NEED MANUFACTURERS' CONSENT TO DEALER ACQUISITIONS AND MARKET EXPANSIONS.
We may be required to obtain the consent of Brunswick and various other
manufacturers prior to the acquisition of other dealers. In determining whether
to approve acquisitions, manufacturers may consider many factors, including our
financial condition and ownership structure. Manufacturers also may impose
conditions on granting their approvals for acquisitions, including a limitation
on the number of their dealers that we may acquire. Our ability to meet
manufacturers' requirements for approving future acquisitions will have a direct
bearing on our ability to complete acquisitions and effect our growth strategy.
There can be no assurance that a manufacturer will not terminate its dealer
agreement, refuse to renew its dealer agreement, refuse to approve future
acquisitions, or take other action that could have a material adverse effect on
our acquisition program.
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On April 28, 1998, we and Brunswick entered into an agreement providing
for Brunswick to cooperate in good faith and not to unreasonably withhold its
consent to the acquisitions each year by us of Sea Ray boat dealers with
aggregate total revenue not exceeding 20% of our revenue in our prior fiscal
year. Any acquisitions in excess of the 20% benchmark will be at Brunswick's
discretion. In the event that our sales of Sea Ray boats exceed 49% of the sales
of Sea Ray boats by all Sea Ray boat dealers, including us, in any fiscal year
of Brunswick, the agreement provides that we and Brunswick will negotiate in
good faith the standards for acquisitions of Sea Ray boat dealers by us during
Brunswick's next succeeding fiscal year, but that Brunswick may grant or
withhold its consent to any such acquisition in its sole discretion for as long
as our Sea Ray boat sales exceed the 49% benchmark.
Our growth strategy also entails expanding our product lines and
geographic scope by obtaining additional distribution rights from our existing
and new manufacturers. We may not be able to secure additional distribution
rights or obtain suitable alternative sources of supply if we are unable to
obtain such distribution rights. The inability to expand our product lines and
geographic scope by obtaining additional distribution rights could have a
material adverse effect on our business, financial condition, and results of
operations.
BOAT MANUFACTURERS EXERCISE SUBSTANTIAL CONTROL OVER OUR BUSINESS.
We depend on our dealer agreements. Through dealer agreements, boat
manufacturers, including Brunswick, exercise significant control over their
dealers, restrict them to specified locations, and retain approval rights over
changes in management and ownership. The continuation of our dealer agreements
with most manufacturers, including Brunswick, depends upon, among other things,
our achieving stated goals for customer satisfaction ratings and market share
penetration in the market served by the applicable dealership. Failure to meet
the customer satisfaction, market share goals, and other conditions set forth in
any dealer agreement could have various consequences including the following:
- the termination of the dealer agreement,
- the imposition of additional conditions in subsequent dealer
agreements,
- limitations on boat inventory allocations,
- reductions in reimbursement rates for warranty work performed
by the dealer, or
- denial of approval of future acquisitions.
Our dealer agreements with manufacturers, including Brunswick,
generally do not give us the exclusive right to sell those manufacturers'
products within a given geographical area. Accordingly, a manufacturer,
including Brunswick, could authorize another dealer to start a new dealership in
proximity to one or more of our locations, or an existing dealer could move a
dealership to a location that would be directly competitive with us. These
events could have a material adverse effect on us and our operations.
WE MAY HAVE SIGNIFICANT CAPITAL NEEDS.
Our growth strategy may require us to secure significant additional
capital. Our future capital requirements will depend upon the size, timing, and
structure of future acquisitions and our working capital and general corporate
needs. If we finance future acquisitions in whole or in part through the
issuance of common stock or securities convertible into or exercisable for
common stock, existing stockholders will experience a dilution in the voting
power of their common stock and earnings per share could be negatively impacted.
The extent to which we will be able or willing to use our common stock for
acquisitions will depend on the market value of our common stock from time to
time and the willingness of potential sellers to accept our common stock as full
or partial consideration. Our inability to use our common stock as
consideration, to generate cash from operations, or to obtain additional funding
through debt or equity financings in order to pursue our acquisition program
could materially limit our growth.
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Any borrowings made to finance future acquisitions or for operations
could make us more vulnerable to a downturn in our operating results, a downturn
in economic conditions, or increases in interest rates on borrowings that are
subject to interest rate fluctuations. If our cash flow from operations is
insufficient to meet our debt service requirements, we could be required to sell
additional equity securities, refinance our obligations, or dispose of assets in
order to meet our debt service requirements. In addition, our credit
arrangements generally will contain financial and operational covenants and
other restrictions with which we must comply, including limitations on capital
expenditures and the incurrence of additional indebtedness. Adequate financing
may not be available if and when we need it or may not be available on terms
acceptable to us. The failure to obtain sufficient financing on favorable terms
and conditions could have a material adverse effect on our growth prospects and
our business, financial condition, and results of operations.
Our current credit facilities provide for borrowings of up to
approximately $185 million. We are currently in the process of increasing our
credit facilities to approximately $230 million We believe these credit
facilities will be sufficient for our currently anticipated needs and reflect
competitive terms and conditions. We have pledged certain of our assets,
principally boat inventories, to secure our credit facilities. While we believe
we will continue to obtain adequate financing from lenders, such financing may
not be available to us.
OUR INTERNAL GROWTH AND OPERATING STRATEGIES INVOLVE RISK.
In addition to pursuing growth by acquiring boat dealers, we intend to
continue to pursue a strategy of growth through opening new retail locations and
offering new products in its existing and new territories. Accomplishing these
goals for expansion will depend upon a number of factors, including the
following:
- our ability to identify new markets in which we can obtain
distribution rights to sell our existing or additional product
lines;
- our ability to lease or construct suitable facilities at a
reasonable cost in existing or new markets;
- our ability to hire, train, and retain qualified personnel;
- the timely integration of new retail locations into existing
operations;
- our ability to achieve adequate market penetration at
favorable operating margins without the acquisition of an
existing dealer; and
- our financial resources.
Our dealer agreements with Brunswick require Brunswick's consent to
open, close, or change retail locations that sell Sea Ray products, and other
dealer agreements generally contain similar provisions. We may not be able to
open and operate new retail locations or introduce new product lines on a timely
or profitable basis. Moreover, the costs associated with opening new retail
locations or introducing new product lines may adversely affect our
profitability.
As a result of these growth strategies, we expect that management will
expend significant time and effort in opening and acquiring new retail locations
and introducing new products. Our systems, procedures, controls, or financial
resources may not be adequate to support our expanding operations. The inability
to manage our growth effectively could have a material adverse effect on our
business, financial condition, and results of operations.
Our planned growth also will impose significant added responsibilities
on members of senior management and require us to identify, recruit, and
integrate additional senior level managers. We may not be able to identify,
hire, or train suitable additions to management.
SEASONALITY AND WEATHER CONDITIONS IMPACT OUR OPERATIONS.
Our business, as well as the entire recreational boating industry, is
highly seasonal, with seasonality varying in different geographic markets.
During the two-year period ended September 30, 1998, the average net sales for
the quarterly periods ended December 31, March 31, June 30, and September 30
represented 16%, 22%,
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35%, and 27%, respectively, of our average annual net sales. With the exception
of Florida, we generally realize significantly lower sales in the quarterly
period ending December 31 with boat sales generally improving in January with
the onset of the public boat and recreation shows. Our business could become
substantially more seasonal as we acquire dealers that operate in colder regions
of the United States.
Weather conditions may adversely impact our operating results. For
example, drought conditions, reduced rainfall levels, and excessive rain may
force boating areas to close or render boating dangerous or inconvenient,
thereby curtailing customer demand for our products. In addition, unseasonably
cool weather and prolonged winter conditions may lead to shorter selling seasons
in certain locations. Hurricanes and other storms could result in the disruption
of our operations or damage to our boat inventories and facilities. Many of our
dealerships sell boats to customers for use on reservoirs, thereby subjecting
our business to the continued viability of these reservoirs for boating use.
Although our geographic diversity and our future geographic expansion will
reduce the overall impact on us of adverse weather conditions in any one market
area, weather conditions will continue to represent potential material adverse
risks to us and our future operating performance. As a result of the foregoing
and other factors, our operating results in some future quarters could be below
the expectations of stock market analysts and investors.
WE FACE INTENSE COMPETITION.
We operate in a highly competitive environment. In addition to facing
competition generally from non-boating recreation businesses seeking to attract
discretionary spending dollars, the recreational boat industry itself is highly
fragmented, resulting in intense competition for customers, product distribution
rights, and suitable retail locations, particularly on or near waterways.
Competition increases during periods of stagnant industry growth, such as
currently exists.
We compete primarily with single-location boat dealers and, with
respect to sales of marine parts, accessories, and equipment, with national
specialty marine parts and accessories stores, catalog retailers, sporting goods
stores, and mass merchants. Competition among boat dealers is based on the
quality of available products, the price and value of the products, and
attention to customer service. There is significant competition both within
markets we currently serve and in new markets that we may enter. We compete in
each of our markets with retailers of brands of boats and engines we do not sell
in that market. In addition, several of our competitors, especially those
selling marine equipment and accessories, are large national or regional chains
that have substantial financial, marketing, and other resources. Private sales
of used boats represent an additional source of competition.
WE DEPEND ON INCOME FROM FINANCING, INSURANCE, AND EXTENDED SERVICE CONTRACTS.
A portion of our income results from referral fees derived from the
placement of various F&I products, consisting of customer financing, insurance
products, and extended service contracts, the most significant component of
which is the participation and other fees resulting from our sale of customer
financing contracts. During fiscal 1998, F&I products accounted for
approximately 2.3% of our revenue.
The availability of financing for our boat purchasers and the level of
participation and other fees we receive in connection with such financing depend
on the particular agreement between us and the lender. Lenders may impose terms
in their boat financing arrangements with us that may be unfavorable to us or
our customers, resulting in reduced demand for our customer financing programs
and lower participation and other fees.
The reduction of profit margins on sales of F&I products or the lack of
demand for or the unavailability of these products could have a material adverse
effect on our business, financial condition, and results of operations.
WE DEPEND ON KEY PERSONNEL.
Our success depends, in large part, upon the continuing efforts and
abilities of our executive officers. Although we have a five-year employment
agreement with each of our executive officers, we cannot assure that
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these individuals will remain with us throughout the term of the agreements, or
thereafter. As a result of our decentralized operating strategy, we also rely on
the management teams of our operating subsidiaries. In addition, we likely will
depend on the senior management of any significant dealers we acquire in the
future. The loss of the services of one or more of these key employees before we
are able to attract and retain qualified replacement personnel could adversely
affect our business.
WE FACE PRODUCT AND SERVICE LIABILITY RISKS.
The products we sell or service may expose us to potential liability
for personal injury or property damage claims relating to the use of those
products. Manufacturers of the products sold by us generally maintain product
liability insurance. We also maintain third-party product liability insurance
that we believe to be adequate. We may experience claims that are not covered by
or that are in excess of our insurance coverage. The institution of any
significant claims against us could adversely affect our business, financial
condition, and results of operations as well as our business reputation with
potential customers.
ENVIRONMENTAL AND OTHER REGULATORY ISSUES MAY IMPACT OUR OPERATIONS.
Our operations are subject to extensive regulation, supervision, and
licensing under various federal, state, and local statutes, ordinances, and
regulations. The failure to satisfy those and other regulatory requirements
could have a material adverse effect on our business, financial condition, and
results of operations.
Various federal, state, and local regulatory agencies, including the
Occupational Safety and Health Administration, or OSHA, the United States
Environmental Protection Agency, or the EPA, and similar federal and local
agencies, have jurisdiction over the operation of our dealerships, repair
facilities, and other operations, with respect to matters such as consumer
protection, workers' safety, and laws regarding protection of the environment,
including air, water, and soil. The EPA recently promulgated emissions
regulations for outboard marine engines that impose stricter emissions standards
for two-cycle, gasoline outboard marine engines. Emissions from such engines
must be reduced by approximately 75% over a nine-year period beginning with the
1998 model year. Costs of comparable new engines, if materially more expensive
than previous engines, or the inability of our manufacturers to comply with EPA
requirements, could have a material adverse effect on our business, financial
condition, and results of operations.
Certain of our facilities own and operate underground storage tanks, or
USTs, for the storage of various petroleum products. USTs are generally subject
to federal, state, and local laws and regulations that require testing and
upgrading of USTs and remediation of contaminated soils and groundwater
resulting from leaking USTs. In addition, we may be subject to civil liability
to third parties for remediation costs or other damages if leakage from our
owned or operated USTs migrates onto the property of others.
Our business involves the use, handling, storage, and contracting for
recycling or disposal of hazardous or toxic substances or wastes, including
environmentally sensitive materials, such as motor oil, waste motor oil and
filters, transmission fluid, antifreeze, freon, waste paint and lacquer thinner,
batteries, solvents, lubricants, degreasing agents, gasoline, and diesel fuels.
Accordingly, we are subject to regulation by federal, state, and local
authorities establishing investigation and health and environmental quality
standards, and liability related thereto, and providing penalties for violations
of those standards.
We also are subject to laws, ordinances, and regulations governing
investigation and remediation of contamination at facilities we operate or to
which we send hazardous or toxic substances or wastes for treatment, recycling,
or disposal. In particular, the Comprehensive Environmental Response,
Compensation and Liability Act, or CERCLA or Superfund, imposes joint, strict,
and several liability on (i) owners or operators of facilities at, from, or to
which a release of hazardous substances has occurred; (ii) parties who generated
hazardous substances that were released at such facilities; and (iii) parties
who transported or arranged for the transportation of hazardous substances to
such facilities. A majority of states have adopted Superfund statutes comparable
to and, in some cases, more stringent than CERCLA. If we were to be found to be
a responsible party under CERCLA or a similar state statute, we could be held
liable for all investigative and remedial costs associated with addressing such
contamination. In addition, claims alleging personal injury or property damage
may be brought
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against us as a result of alleged exposure to hazardous substances resulting
from our operations. In addition, certain of our retail locations are located on
waterways that are subject to federal or state laws regulating navigable waters
(including oil pollution prevention), fish and wildlife, and other matters.
Soil and groundwater contamination has been known to exist at certain
properties owned or leased by us. We have also been required and may in the
future be required to remove aboveground and underground storage tanks
containing hazardous substances or wastes. As to certain of our properties,
specific releases of petroleum have been or are in the process of being
remediated in accordance with state and federal guidelines. We are monitoring
the soil and groundwater as required by applicable state and federal guidelines.
We also may have additional storage tank liability insurance and "Superfund"
coverage where applicable. Environmental laws and regulations are complex and
subject to frequent change. Compliance with amended, new or more stringent laws
or regulations, stricter interpretations of existing laws, or the future
discovery of environmental conditions may require additional expenditures by us,
and such expenditures may be material.
One of the properties we own was historically used as a gasoline
service station. Remedial action with respect to prior historical site
activities on this property has been completed in accordance with federal and
state law. Also, one of our properties is within the boundaries of a Superfund
site, although our property has not been identified as a contributor to the
contamination in the area.
Additionally, certain states have required or are considering requiring
a license in order to operate a recreational boat. These regulations could
discourage potential buyers, thereby limiting future sales and adversely
affecting our business, financial condition, and results of operations.
FUEL PRICES AND SUPPLY MAY AFFECT OUR BUSINESS.
All of the recreational boats we sell are powered by diesel or gasoline
engines. Consequently, an interruption in the supply, or a significant increase
in the price or tax on the sale, of fuel on a regional or national basis could
have a material adverse effect on our sales and operating results. At various
times in the past, diesel or gasoline fuel has been difficult to obtain. The
supply of fuels may be interrupted, rationing may be imposed, or the price of or
tax on fuels may significantly increase in the future.
WE MUST AMORTIZE INTANGIBLE ASSETS.
We are required to amortize the goodwill from acquisitions accounted
for as purchases over a period of time, with the amount amortized in a
particular period constituting an expense that reduces our net income for that
period. Goodwill is an intangible asset that represents the difference between
the aggregate purchase price for the net assets acquired and the amount of such
purchase price allocated to such net assets for purposes of our balance sheet. A
reduction in net income resulting from the amortization of goodwill may have an
adverse impact upon the market price of our common stock. As of June 30, 1999,
our acquisitions that have been accounted for as purchases have resulted in
goodwill of approximately $35.4 million, which we are amortizing over a period
of 40 years.
CONFLICTS EXIST RELATING TO TRANSACTIONS WITH AFFILIATES.
We have various arrangements that may involve conflicts of interest. We
lease two retail locations from an irrevocable trust of which relatives of Louis
R. DelHomme Jr., a principal stockholder of our company, are the beneficiaries;
a retail location from David H. Pretasky, an executive officer and principal
stockholder of our company; and four retail locations from partnerships in which
Paul Graham Stovall, a director, executive officer, and principal stockholder of
our company, is an owner. These arrangements were not negotiated on an
arms'-length basis. The interests of directors or officers of our company or
holders of more than 5% of our common stock, in their individual capacities or
capacities with related third-party entities, may conflict with the interests of
these persons in their capacities with our company.
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DIRECTORS, OFFICERS, AND CERTAIN OTHER STOCKHOLDERS OWN A SIGNIFICANT PORTION OF
OUR STOCK.
Our directors and executive officers and persons associated with them
own beneficially a total of approximately 38% of the issued and outstanding
shares of our common stock, exclusive of options to acquire 337,672 additional
shares of our common stock. As a result of this ownership, these persons will
have the power effectively to control our company, including the election of
directors, the determination of matters requiring stockholder approval, and
other matters pertaining to corporate governance. This concentration of
ownership also may have the effect of delaying or preventing a change in control
of our company.
We, Brunswick, and various of our senior executive officers are parties
to a stockholders' agreement, and we and Brunswick are parties to a governance
agreement, each dated April 28, 1998. Subject to certain limitations, the
stockholders' agreement provides various rights of first refusal on the sale of
shares of common stock by the parties to the agreement, particularly in the
event that Brunswick does not own its targeted investment percentage of 19% of
our common stock at the time of the proposed sale or in the event the proposed
sale is to a competitor of Brunswick. The governance agreement provides for
various terms and conditions concerning Brunswick's participation in the
corporate governance of our company. Among other provisions and subject to
certain conditions, the governance agreement requires Brunswick and our senior
executives to vote their common stock for nominees of the board of directors in
the election of directors and to vote their common stock in favor of all
proposals and recommendations approved by our board of directors and submitted
to a vote of our stockholders.
As a result, the stockholders' agreement and the governance agreement
will have the effect of increasing the control of our directors, executive
officers, and persons associated with them and may have the effect of delaying
or preventing a change in control of our company.
OUR STOCK PRICE MAY BE VOLATILE.
The market price of our common stock could be subject to wide
fluctuations as a result of many factors. Factors that could affect the trading
price include the following:
- variations in operating results,
- the level and success of our acquisition program and new store
openings,
- variations in same-store sales,
- the success of dealership integration,
- relationships with manufacturers,
- changes in earnings estimates published by analysts,
- general economic, political, and market conditions,
- seasonality and weather conditions,
- governmental policies and regulations,
- the performance of the recreational boat industry in general,
and
- factors relating to suppliers and competitors.
In addition, the relatively few shares held by the public, market
demand for small- and mid-capitalization stocks, and price and volume
fluctuations in the stock market unrelated to our performance could result in
significant fluctuations in market price of our common stock. The performance of
our common stock could adversely affect our ability to raise equity in the
public markets and adversely affect our acquisition program.
STOCKHOLDERS MAY INCUR IMMEDIATE AND SUBSTANTIAL DILUTION.
The issuance of additional common stock in the future, including shares
that we may issue pursuant to option grants and future acquisitions, may result
in dilution in the net tangible book value per share of our
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common stock. Our board of directors has the legal power and authority to
determine the terms of an offering of shares of our capital stock, or securities
convertible into or exchangeable for these shares, to the extent of our shares
of authorized and unissued capital stock.
A SUBSTANTIAL NUMBER OF SHARES ARE ELIGIBLE FOR FUTURE SALE.
As of June 30, 1999, there were outstanding 15,237,525 shares of our
common stock. Of these shares, 4,818,062 were freely tradable without
restriction or further registration under the securities laws, unless held by an
"affiliate" of our company, as that term is defined in Rule 144 under the
securities laws. Shares held by affiliates of our company are subject to the
resale limitations of Rule 144 described below. All of the 10,419,463 remaining
outstanding shares of common stock were issued in connection with the
acquisition of the acquired dealers and will be available for resale beginning
one year after the respective dates of the acquisitions, subject to compliance
with the provisions of Rule 144 under the securities laws.
We have issued options to purchase approximately 1,583,213 shares of
common stock under our 1998 incentive stock plan and have reserved 500,000
shares of common stock for issuance under our 1998 employee stock purchase plan.
We have filed a registration statement under the securities laws to register the
common stock to be issued under these plans. As a result, shares issued under
these plans will be freely tradable without restriction unless acquired by
affiliates of our company, who will be subject to the volume and other
limitations of Rule 144.
We may issue additional shares of common stock or preferred stock under
the securities laws as part of any acquisition we may complete in the future.
Pursuant to Rule 145 under the securities laws, these shares generally will be
freely tradable after their issuance by persons not affiliated with us or the
acquired companies.
WE RELY ON OUR OPERATING SUBSIDIARIES.
We are a holding company, the principal assets of which are the shares
of the capital stock of our subsidiaries, including the operating subsidiaries.
As a holding company without independent means of generating operating revenue,
we depend on dividends and other payments from our subsidiaries to fund our
obligations and meet our cash needs. Financial covenants under future loan
agreements of our subsidiaries may limit our subsidiaries' ability to make
sufficient dividend or other payments to permit us to fund our obligations or
meet our cash needs, in whole or in part.
WE DO NOT PAY CASH DIVIDENDS.
We have never paid cash dividends on our common stock and do not
anticipate paying cash dividends in the foreseeable future. Moreover, financial
covenants under certain of our credit facilities restrict our ability to pay
dividends.
CHANGE IN CONTROL PROVISIONS MAY ADVERSELY AFFECT EXISTING STOCKHOLDERS.
Certain provisions of our restated certificate of incorporation and
bylaws and Delaware law may make a change in the control of our company more
difficult to complete, even if a change in control were in the stockholders'
interest or might result in a premium over the market price for the shares held
by the stockholders. Our restated certificate of incorporation and bylaws divide
the board of directors into three classes of directors elected for staggered
three-year terms. The restated certificate of incorporation also provides that
the board of directors may authorize the issuance of one or more series of
preferred stock from time to time and may determine the rights, preferences,
privileges, and restrictions and fix the number of shares of any such series of
preferred stock, without any vote or action by our stockholders. The board of
directors may authorize the issuance of preferred stock with voting or
conversion rights that could adversely affect the voting power or other rights
of the holders of common stock. The restated certificate of incorporation also
allows our board of directors to fix the number of directors and to fill
vacancies on the board of directors.
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We also are subject to the anti-takeover provisions of Section 203 of
the Delaware General Corporation Law, which prohibits us from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an
"interested stockholder," unless the business combination is approved in a
prescribed manner. The senior executives of the five original acquired dealers
and Stovall were exempted from the application of Section 203.
Certain of our dealer agreements could also make it difficult for a
third party to attempt to acquire a significant ownership position in our
company. In addition, the stockholders' agreement and governance agreement will
have the effect of increasing the control of our directors, executive officers,
and persons associated with them and may have the effect of delaying or
preventing a change in control of our company.
WE FACE RISKS ASSOCIATED WITH YEAR 2000 COMPLIANCE.
Many currently installed computer systems and software products are
coded to accept only two-digit entries to represent years in the date code
field. Computer systems and products that do not accept four-digit year entries
will need to be upgraded or replaced to accept four-digit entries to distinguish
years beginning with 2000 from prior years. We believe that our management
information system complies with the Year 2000 requirements, and we currently do
not anticipate that we will experience any material disruption to our operations
as a result of the failure of our management information system to be Year 2000
compliant. Computer systems operated by third parties, however, including
customers, vendors, credit card transaction processors, and financial
institutions, with which our management information system interface may not
continue to properly interface with our system and may not otherwise be
compliant on a timely basis with Year 2000 requirements.
We currently are developing a plan to evaluate the Year 2000 compliance
status of third parties with which our system interfaces. Any failure of our
management information system or the systems of third parties to timely achieve
Year 2000 compliance could have a material adverse effect on our business,
financial condition, and operating results.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements and information contained or incorporated in this
prospectus concerning our future, proposed, and anticipated activities; certain
trends with respect to our revenue, operating results, capital resources, and
liquidity or with respect to the markets in which we compete or the boating
industry in general; and other statements contained in this prospectus regarding
matters that are not historical facts are forward-looking statements, as such
term is defined in the securities laws. Forward-looking statements, by their
very nature, include risks and uncertainties, many of which are beyond our
control. Accordingly, actual results may differ, perhaps materially, from those
expressed in or implied by such forward-looking statements. Factors that could
cause actual results to differ materially include those discussed elsewhere
under "Risk Factors."
USE OF PROCEEDS
The stock incentive program provides that the shares purchased under
the program will be purchased in the open market, rather than us issuing new
shares. Therefore, we will not receive any consideration for any shares of
common stock purchased or distributed under the stock incentive program.
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STOCK INCENTIVE PROGRAM
We are enabling customers to acquire shares of our common stock under
our stock incentive program. The purpose of the program is to stimulate product
sales by providing select customers with additional value by acquiring a
proprietary interest in our company. The following description of the stock
incentive program constitutes the program in its entirety.
ADOPTION
Our board of directors adopted the stock incentive program on August
11, 1999.
GENERAL PROVISIONS
Basic Structure of the Program
Under the stock incentive program, each customer that purchases a boat
from one of our dealerships may be eligible to receive a coupon entitling the
customer to acquire shares of our common stock in a designated dollar amount.
The coupon will be redeemable through a stock brokerage firm selected by the
program administrator. Upon presentation of a coupon by a customer, the stock
brokerage firm will purchase shares of our common stock in open market and place
the shares in the customer's account. The number of shares purchased will be
based upon the designated amount of the coupon, net of applicable commissions,
and is subject to rounding. We will reimburse the stock brokerage firm for the
amount of shares purchased in the open market.
Shares Issuable Under the Program
The program covers 400,000 shares of our common stock, subject to
adjustment for changes in our capital structure. Any shares subject to
redemption by coupons issued under the program that expire, are forfeited,
terminated, or cancelled, or any shares subject to coupons that are otherwise
not redeemed, will remain available under the program.
Eligibility
The program administrator will have the exclusive authority to
determine the customers that are eligible to participate in the program and the
time periods that coupons will be issued. Generally, customers that purchase a
boat from one of our dealerships may be eligible to participate in the program.
The program administrator may consult with any of our business managers to
determine the value of coupons to be issued.
Administration of the Program
The power to administer the program with respect to customers will be
vested exclusively with our board of directors as the program administrator. Our
board of directors, at any time, may appoint a committee of one or more persons
who are members of the board and delegate to that committee the power to
administer the program. Members of such committee will serve for such period of
time as the board may determine and may be removed by the board at any time. The
board, at any time, may terminate the functions of any such committee and
reassume all powers and authority previously delegated to that committee. The
program administrator will have the authority and discretion to select customers
eligible to participate in the program, to issue coupons under the program, to
establish such rules and regulations as may be deemed appropriate with respect
to the administration of the program, and to make such determinations under, and
issue such interpretations of, the program and any outstanding coupons as may be
deemed necessary or advisable. The program administrator will not, however,
revise the program more than once in any three-month period. Decisions of the
program administrator will be final and binding on all parties who have an
interest in the program or any coupons not redeemed.
19
<PAGE> 20
We or the plan administrator will not be liable for any act done in
good faith or for the good faith omission to act with respect to any loss or
fluctuation in the market value of our common stock after purchase of shares. We
or the plan administrator will have no responsibility beyond the exercise of
ordinary care for any action taken or omitted pursuant to the stock incentive
program, nor will we have any duties or responsibilities except such as are
expressly set forth in the prospectus.
Customers participating in the stock incentive program should recognize
that neither our company nor the stock brokerage firm acting as our purchasing
agent can assure any profit or protect against a loss on shares of common stock
purchased or sold by customers under the stock incentive program.
Stock Dividend or Other Change in Common Stock
The aggregate number of shares of common stock subject to the program,
and the number of shares covered by coupons not redeemed, will be
proportionately adjusted for any increase or decrease in the number of
outstanding shares of our common stock resulting from a subdivision or
consolidation of shares or any other capital adjustment or the payment of a
stock dividend or any other increase or decrease in the number of shares
effected without our receipt of consideration therefor in money, services, or
property.
Program Amendments and Termination
The program administrator will have the exclusive authority to amend,
suspend, or terminate the program at any time and in any respect. Once the
program is terminated, no future coupons may be issued, but coupons previously
issued may be redeemed in accordance with the applicable terms of the coupons
and the terms and conditions of the program. Coupons previously issued but not
redeemed will expire on September 30, 2000. The program administrator also will
have the authority to effect, at any time and from time to time, with the
consent of the affected coupon holders, the cancellation of any or all coupons
issued under the program by the program administrator and to issue in
substitution therefore new coupons under the program covering the same or
different value of shares of common stock.
No Privilege of Stock Ownership
A holder of a coupon will have none of the rights of a stockholder with
respect to the shares covered by the coupon until the holder redeems the coupon
and receives the shares underlying the coupon.
Certain Tax Considerations
Customers who redeem coupons for our common stock will not recognize
gain or loss for federal income tax purposes. The customer will have an adjusted
basis in the common stock of the stated amount on the coupon. The sale of the
common stock by a holder will result in the recognition of gain or loss in an
amount equal to the difference between the amount realized by the holder and the
holder's adjusted basis of the common stock. Any such gain or loss from the sale
of common stock will be a long-term or short-term capital gain or loss to the
holder depending on whether the common stock had been held for more than one
year.
Customers should consult with a professional tax advisor regarding
their personal tax considerations and implications as a result of participation
in the stock incentive program.
PLAN OF DISTRIBUTION
We are registering a total of 400,000 shares of currently outstanding
common stock under this prospectus, all of which may be distributed from time to
time by us to certain customers.
We will select a stock brokerage firm that will act as our independent
agent in purchasing shares pursuant to the stock incentive program. Upon
presentation of a coupon from one of our customers, the stock brokerage firm
will purchase our common stock in transactions as soon as practicable after
presentation, which may include block transactions, on the New York Stock
Exchange, in the over-the-counter market, in negotiated transactions,
20
<PAGE> 21
through a combination of such methods of purchase, or otherwise, at fixed prices
that may be changed, at market prices prevailing at the time of purchase, at
prices related to the prevailing market price, or at negotiated prices. We will
fund the open market purchases by the stock brokerage firm, who will place the
purchased shares, net of applicable commissions and subject to rounding, in the
customer's account held by the stock brokerage firm.
The stock brokerage firm is not an affiliate of our company, and we
will not exercise any direct or indirect control or influence over the times
when, or the prices at which, the stock brokerage firm will purchase the shares,
the amounts to be purchased, or the manner in which the shares are purchased
pursuant to the stock incentive program. Purchases by the stock brokerage firm
will be made on the open market in such manner, at such time or times, at such
price or prices, and on such other terms as the stock brokerage firm in its sole
discretion shall determine. Accordingly, purchases under the stock incentive
program will be effected by an agent that is "independent" of us, as that term
is defined under the securities laws.
The stock brokerage firm will receive a fixed commission for each share
of our common stock so purchased under the stock incentive program. We will pay
all administrative costs of the stock incentive program. Customers will pay all
brokerage commissions or fees in connection with purchases of our common stock.
Any stock brokerage firm or agents that participate in the distribution
of common stock offered under this prospectus may be deemed to be "underwriters"
within the meaning of the securities laws. Accordingly, we will be subject to
the prospectus delivery requirements of the securities laws. Any commissions
paid or any concessions allowed to any such persons may be deemed to be
underwriting commissions under the securities laws. Brokerage commissions, if
any, attributable to the purchase of the shares of common stock offered hereby
will be borne by the customers.
We will not receive any proceeds from the purchase of common stock by
us as a result of customers redeeming coupons, or the subsequent distribution of
any shares of common stock to our customers under the stock incentive program.
We will bear all expenses in connection with the registration and sale of the
common stock being offered by this prospectus.
To comply with the securities laws of certain jurisdictions, if
applicable, the purchase or distribution of shares of common stock under this
prospectus will be made only through registered or licensed brokers or dealers
in such jurisdictions.
Under applicable rules and regulations under the securities laws, any
person engaged in a distribution of the common stock offered under this
prospectus may be limited in his or her ability to engage in market activities
with respect to the common stock. Without limiting the foregoing, we will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M. Those rules and regulations may
limit the timing of purchases of our common stock that are required to satisfy
our obligations under the stock incentive program, which may affect the
marketability of the common stock offered hereby.
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for
us by Greenberg Traurig, P.A., Phoenix, Arizona. Robert S. Kant, who represents
us as our primary outside counsel, is a director of our company and beneficially
owns approximately 17,000 shares of our common stock.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the Securities
and Exchange Commission relating to the common stock offered hereby. This
prospectus does not contain all of the information and exhibits set forth in the
registration statement. Statements contained in this prospectus as to the
contents of any contract or other document referred to are not necessarily
complete and in each instance we refer you to the copy of the contract or other
document filed as an exhibit to the registration statement, each such statement
being qualified in all respects by such reference.
21
<PAGE> 22
For further information with respect to MarineMax, Inc. and the common
stock offered by this prospectus, we refer you to the registration statement and
exhibits. Anyone may inspect a copy of the registration statement without charge
at the public reference facilities maintained by the Securities and Exchange
Commission in Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; the
Chicago Regional Office, Suite 1400, 500 West Madison Street, Citicorp Center,
Chicago, Illinois 60661; and the New York Regional Office, Suite 1300, 7 World
Trade Center, New York, New York 10048. Copies of all or any part of the
registration statement may be obtained from the Public Reference Section of the
Securities and Exchange Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, upon payment of the prescribed fees. The public may obtain information on
the operation of the Public Reference Room by calling the Securities and
Exchange Commission at 1-800-SEC-0330. The registration statement is also
available through the Securities and Exchange Commission's Web site at the
following address: http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to incorporate by
reference the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus and information we file later with the Securities and Exchange
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
by us with the Securities and Exchange Commission under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934 until the sale of all of the
shares of common stock that are part of this offering. The documents we are
incorporating by reference are as follows:
- our Annual Report on Form 10-K/A for the year ended September
30, 1998, filed on July 29, 1999;
- our Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998, filed on February 16, 1999;
- our Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed on May 12, 1999;
- our Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, filed on August 10, 1999;
- the description of our common stock contained in our
registration statement on Form 8-A (Registration No. 1-14173)
declared effective by the Securities and Exchange Commission
on June 1, 1998, including any amendments or reports filed for
the purpose of updating that description; and
- our Proxy Statement, filed on January 25, 1999.
Any statement contained in a document that is incorporated by reference
will be modified or superseded for all purposes to the extent that a statement
contained in this prospectus (or in any other document that is subsequently
filed with the Securities and Exchange Commission and incorporated by reference)
modifies or is contrary to that previous statement. Any statement so modified or
superseded will not be deemed a part of this prospectus except as so modified or
superseded.
You may request a copy of these filings at no cost by writing or
telephoning our investor relations department at the following address and
number:
MarineMax, Inc.
18167 U.S. 19 North
Suite 499
Clearwater, Florida 33764
(727) 531-1700
22
<PAGE> 23
================================================================================
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE HAVE
NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM THAT
CONTAINED IN THIS PROSPECTUS. WE ARE OFFERING TO SELL, AND SEEKING OFFERS TO
BUY, SHARES OF COMMON STOCK ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE
PERMITTED. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS ACCURATE ONLY AS OF
THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS
PROSPECTUS OR OF ANY PURCHASE OR SALE OF OUR COMMON STOCK.
----------------------
TABLE OF CONTENTS
PAGE
----
Prospectus Summary ............................................ 3
Summary Consolidated Financial Data ........................... 7
Risk Factors .................................................. 8
Cautionary Statement Regarding
Forward-Looking Statements .................................. 18
Use of Proceeds ............................................... 18
Stock Incentive Program ....................................... 19
Plan of Distribution .......................................... 20
Legal Matters ................................................. 21
Where You Can Find More Information ........................... 21
Incorporation of Certain Documents
by Reference ................................................ 22
400,000 SHARES
MARINEMAX, INC.
COMMON STOCK
----------
PROSPECTUS
----------
, 1999
================================================================================
<PAGE> 24
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the
offering described in the registration statement. All such expenses are
estimates except for the Securities and Exchange Commission registration fee
<TABLE>
<S> <C>
SEC registration fee...................................................... $ 1,182
Accountants' fees and expenses............................................ 5,000
Legal fees and expenses................................................... 25,000
Printing and engraving expenses........................................... 2,500
Miscellaneous fees........................................................ 2,318
--------
Total............................................................... $ 36,000
========
</TABLE>
ITEM 15. 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").
Under Delaware law, to the extent that an Indemnitee is successful on
the merits in defense of a suit or proceeding brought against him or her by
reason of the fact that he or she is or was a director, officer, or agent of the
Registrant, or serves or served any other enterprise or organization at the
request of the Registrant, the Registrant shall indemnify him or her against
expenses (including attorneys' fees) actually and reasonably incurred in
connection with such action.
If unsuccessful in defense of a third-party civil suit or a criminal
suit, or if such a suit is settled, an Indemnitee may be indemnified under
Delaware law against both (i) expenses, including attorney's 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.
II-1
<PAGE> 25
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -------
<S> <C>
4 Specimen of Stock Certificate(l)
5 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Greenberg Traurig, P.A.
(included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney of Directors and Executive Officers (included on the Signature Page of the
Registration Statement)
</TABLE>
- ----------
(1) Incorporated by reference to Registration Statement on the Registrant's
Form S-1 (Registration 333-47873)
ITEM 17. 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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Act ");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low and high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) 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 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in 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 Act may be
permitted to directors, officers, and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
II-2
<PAGE> 26
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 27
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-3 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 August 11, 1999.
MARINEMAX, INC.
By: /s/ WILLIAM H. MCGILL JR.
----------------------------
William H. McGill Jr.
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints jointly and severally, William H. McGill
Jr. and Michael H. McLamb, and each one of them, as his true and lawful
attorneys-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 pre-effective and
post-effective amendments) to this registration statement, and to sign any
registration statement and amendments thereto for the same offering pursuant to
Rule 462(b) under the Securities Act of 1933, 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 which 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 TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM H. MCGILL JR. Chairman of the Board, August 11, 1999
- ------------------------------------------------- President, Chief Executive
William H. McGill Jr. Officer, and Director
(Principal Executive Officer)
/s/ MICHAEL H. MCLAMB Vice President, Chief Financial August 11, 1999
- ------------------------------------------------- Officer, Secretary, and Treasurer
Michael H. McLamb (Principal Financial and Accounting
Officer)
/s/ RICHARD R. BASSETT Executive Vice President and August 11, 1999
- ------------------------------------------------- Director
Richard R. Bassett
/s/ PAUL GRAHAM STOVALL Senior Vice President and August 11, 1999
- ------------------------------------------------- Director
Paul Graham Stovall
/s/ ROBERT S. KANT Director August 11, 1999
- -------------------------------------------------
Robert S. Kant
Director August --, 1999
- -------------------------------------------------
R. David Thomas
/s/ STEWART TURLEY Director August 11, 1999
- -------------------------------------------------
Stewart Turley
</TABLE>
II-4
<PAGE> 28
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -------
<S> <C>
4 Specimen of Stock Certificate(l)
5 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Greenberg Traurig, P.A. (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney of Directors and Executive Officers (included on the Signature Page of the
Registration Statement)
</TABLE>
- ----------
(1) Incorporated by reference to Registration Statement on the Registrant's
Form S-1 (Registration 333-47873).
<PAGE> 1
EXHIBIT 5
GREENBERG TRAURIG
A Professional Association
One East Camelback Road, Suite 1100
Phoenix, Arizona 85012
Telephone (602) 263-2400
Fax (602) 263-2900
August 24, 1999
MarineMax, Inc.
18167 U.S. Highway 19 N.
Suite 499
Clearwater, Florida 33764
RE: REGISTRATION STATEMENT ON FORM S-3
MARINEMAX, INC.
Ladies and 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-3 (the "Registration Statement"), to be filed with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 400,000 shares of common stock of the
Company covered by the Registration Statement (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;
B. The Bylaws of the Company;
C. The Registration Statement; and
D. The Resolutions of the Board of Directors of the Company relating to the
approval of the filing of the Registration Statement and the
transactions in connection therewith.
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
<PAGE> 2
[GREENBERG TRAURIG LETTERHEAD]
MarineMax, Inc.
August 24, 1999
Page 2
set forth below, and based on our review of the documents above, it is our
opinion that, when (a) the Registration Statement as then amended shall have
been declared effective by the Commission, and (b) the Shares have been duly
issued, executed, authenticated, paid for, sold, and delivered by the Company as
described in the Registration Statement, the Shares will be validly issued,
fully paid, and nonassessable.
We have assumed the payment by the prior holders of the Shares of the full
and sufficient consideration due from them to the Company for the Shares.
Please be advised that we are members of the State Bar of Arizona, and our
opinion is limited to the legality of matters under federal securities laws 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 and in any registration statement filed pursuant to Rule
462(b) under the Securities Act of 1933 for this same offering, the inclusion
of this opinion as an exhibit to the Registration Statement and the
incorporation by reference into any such additional registration statement, and
to the filing of this opinion with any other appropriate governmental agency.
Very truly yours,
/s/ Greenberg Traurig, P.A.
RSK/bcv
<PAGE> 1
EXHIBIT 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use of our
report (and to all references to our firm) included in or made a part of this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
TAMPA, FLORIDA
AUGUST 23, 1999
