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EXHIBIT 1.1
FORM OF
FLORIDA PANTHERS HOLDINGS, INC.
FINANCIAL ADVISORY AGREEMENT
February ___, 1999
Xxxxx & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Florida Panthers Holdings, Inc., a Delaware corporation (the
"Company") hereby confirms its agreement with you as follows:
1. THE OFFERING. The Company is offering to its existing
stockholders pursuant to a registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Act"), rights (the "Rights") to
purchase up to 3,900,000 shares of the Company's Class A Common Stock (the
"Shares") at a price of approximately $10.25 per share. The foregoing offer and
sale of the Shares is hereinafter referred to as the "Offering."
2. APPOINTMENT OF ADVISOR. You are hereby appointed the
exclusive financial advisor of the Company (the "Advisor") during the Offering
Period (as defined herein) for the purpose of assisting the Company with the
Offering. The "Offering Period" shall commence on the date the Offering
Materials (as defined herein) are first made available to stockholders by the
Company for delivery in connection with the Offering and shall terminate on or
before the close of business on the earliest to occur of the closing of the sale
of all of the Shares issuable pursuant to the Rights, the expiration of the
Rights or the termination of this Agreement. You hereby accept such agency and
agree to assist the Company on a "best efforts" basis. Your agency hereunder may
not be terminated by the Company, except upon termination of the Offering, upon
the Advisor's failure to perform its obligations hereunder in all material
respects, upon the Advisor's material breach of any of its representations and
warranties contained in Section 7 hereof or upon gross negligence or willful
misconduct on the part of the Advisor. It is understood that the offering and
sale of the Rights will be registered under the Act. The size of the Offering or
the Offering price may be increased or amended as agreed by the Company and the
Advisor.
3. OFFERING MATERIALS. The Company will prepare and deliver to
its stockholders a reasonable number of copies of a Prospectus in connection
with the Offering (as amended from time to time, the "Offering Materials").
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4. CLOSING; DELIVERY; PLACEMENT FEES.
(a) It is anticipated that the closing of the
purchase and sale of the Rights may be effected at a closing (the "Closing"), at
such time, date or place as shall be agreed upon by you and the Company (the
"Closing Date"). Upon the Closing, the Company will deliver, or cause to be
delivered, to the participating stockholders certificates representing the
Rights purchased by them.
(d) Simultaneous with the Closing, as provided in
paragraph (b) above, the Company shall pay or cause to be paid to the Advisor an
advisory fee not to exceed $600,000 and shall reimburse the Advisor for its
out-of-pocket expenses as provided in Section 6(c) hereof, against the
presentation of bills therefor. If such bills are not available for presentation
at the time of the Closing, then the Company shall reimburse the amount of the
Advisor's reasonable estimate of such out-of-pocket expenses; in such event, the
Advisor shall promptly provide the Company with an accounting of actual expenses
when known, and the parties shall reconcile any amounts still owing among them.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered on behalf of the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
and to general principles of equity and except as rights to indemnity or
contribution hereunder may be limited by Federal or state securities laws.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Advisor that:
(a) During the Offering Period, the Company will
notify the Advisor of any event of which it is aware as a result of which any of
the Offering Materials would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading; and it
will provide you with any amendment or supplement to the Offering Materials
during the Offering Period. The Company will conduct the Offering in compliance
with the Act and the rules and regulations promulgated thereunder and all
applicable state securities laws and regulations.
(b) If required by law, the Company will use its best
efforts to qualify the Rights and/or the Shares for offer and sale under the
Blue Sky or securities laws of applicable jurisdictions and to continue such
qualifications in effect for so long as may be required for purposes of the
Offering, except that the Company shall not be required in connection therewith
or as a condition thereof to qualify as a foreign corporation or to execute a
general consent to service of process in any state or to subject itself to
taxation in any jurisdiction where it is not already subject to such taxation.
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(c) The Company covenants and agrees with you that it
will pay the reasonable and documented expenses and fees (including the fees and
expenses of Xxxxxx & Carnelutti, special counsel to the Advisor) incurred by you
in connection with (i) the preparation and delivery of the Offering Materials,
(ii) the furnishing of closing documents and (iii) the qualification of the
Rights or the Shares for offer or sale under the securities laws of applicable
jurisdictions.
(d) The Company agrees to cooperate with the Advisor
and its special counsel with respect to their due diligence investigation.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADVISOR.
The Advisor represents, warrants and covenants as follows:
(a) This Agreement has been duly authorized, executed
and delivered by the Advisor and constitutes a valid and binding obligation of
the Advisor, enforceable against it in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to general principles of
equity and except as rights to indemnity or contribution hereunder may be
limited by Federal or state securities laws.
(b) The Advisor will participate in the Offering in
accordance with all federal and state securities laws applicable to the
Offering.
8. CONDITIONS OF THE COMPANY'S PERFORMANCE. The issuance by
the Company of the Rights and the obligations of the Company as provided herein
shall be subject to the following conditions:
(a) The Company shall not have terminated the
Offering, which shall be the decision of the Company in its sole discretion;
(b) The representations and warranties of the Advisor
contained in Section 7 hereof are true and correct in all material respects as
of the date hereof and as of the Closing Date (as if made on and as of such
Closing Date); and
(c) The Advisor shall have performed its obligations
hereunder in all material respects.
9. CONDITIONS OF ADVISOR'S PERFORMANCE. The purchase and sale
of the Shares and the obligations of the Advisor as provided herein shall be
subject to the accuracy in all material respects, as of the date hereof and each
Closing Date (as if made on and as of such Closing Date), of the representations
and warranties of the Company herein, to the performance in all material
respects by the Company of its obligations hereunder, and to the following
additional conditions:
(a) You shall have received the opinion of Akerman,
Senterfitt & Xxxxxx, P.A., counsel to the Company, in form and substance
acceptable to your counsel.
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(b) You shall have received a certificate, dated as
of the Closing Date, of an authorized executive officer of the Company to the
effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made on
and as of such Closing Date; and the Company has complied with all the
agreements and satisfied all the conditions in all material respects on
its part required by this Agreement to be performed or satisfied at or
prior to such Closing Date; and
(ii) Except as set forth in the Offering Materials and
subsequent to the date of the most recent financial statements included
with the Offering Materials, there has not been any material adverse
change in the condition (financial or otherwise), business or results
of operations of the Company and its subsidiaries taken as a whole.
(c) The Company shall have furnished to you such
certificates, in addition to those specifically mentioned herein, as you or your
counsel may have reasonably requested, as to the accuracy and completeness at
such Closing Date of any statement in the Offering Materials (other than
statements provided by the Advisor for the Offering Materials) and as to such
other matters as you or your counsel may reasonably request.
10. INDEMNIFICATION. (a) The Company will indemnify and hold
harmless the Advisor, the directors and officers of the Advisor and each person,
if any, who controls the Advisor within the meaning of the Act against any
losses, claims, damages or liabilities, joint or several, to which the Advisor
or any such directors, officers or controlling persons may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Materials, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) the Company's
engagement of Xxxxx & Company Incorporated as Advisor or any service the Advisor
performs for the Company or on its behalf pursuant to this Agreement, except to
the extent that any such loss, claim, damage or liability is found by a court of
competent jurisdiction in a judgment that has become final (in that it is no
longer subject to appeal or review) to have resulted directly and primarily from
such Indemnified Person's gross negligence or willful misconduct. Subject to
subsection (c) below, the Company will reimburse the Advisor or any such
directors, officers or controlling persons for any legal or other expenses
reasonably incurred by the Advisor or any such directors, officers or
controlling persons in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any case to the extent that any such loss, claim, damage, liability
or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Offering Materials in
reliance upon and in conformity with written information furnished by and with
respect to the Advisor specifically for use in the preparation thereof. The
Company shall not be required to indemnify the Advisor or any such directors,
officers or controlling persons for any payment made to any claimant in
settlement of any suit or claim unless such payment is approved by the Company,
which approval shall not be unreasonably
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withheld or delayed. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, but in no event shall an
indemnified party receive more than the amount of its claim.
(b) The Advisor will indemnify and hold harmless the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which the Company, or any such directors,
officers or controlling persons may be or become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Materials or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Offering Materials in reliance upon and in
conformity with written information furnished by and with respect to the Advisor
specifically for use in the preparation thereof; and (subject to subsection (c)
below) will reimburse the Company or any such directors, officers or controlling
persons for any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or actions.
The Advisor shall not be required to indemnify the Company or any such
directors, officers or controlling persons for any payment made to any claimant
in settlement of any suit or claim unless payment is approved by the Advisor,
which approval shall not be unreasonably withheld or delayed. This indemnity
agreement will be in addition to any liability the Advisor may otherwise have,
but in no event shall an indemnified party receive more than the amount of its
claim.
(c) Promptly after receipt by an indemnified party under
subparagraphs 10(a) or (b) of notice of the commencement of any action or other
proceeding (including governmental investigations) in respect of which indemnity
may be sought, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under such subparagraphs, promptly notify
the indemnifying party in writing of the commencement thereof; but the omission
to so notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under such subparagraph. In
case any such action shall be brought against any indemnified party, and it
shall promptly notify the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, assume and control the defense thereof with counsel chosen by it
and after notice from the indemnifying party to such indemnified party of its
election so to assume and control such defense with counsel chosen by it, it
shall bear all expenses of such defense. Any such indemnified party shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless:
(i) the indemnifying party has agreed to pay such
fees and expenses; or
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(ii) the indemnifying party shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably
satisfactory to such indemnified party in any such action or
proceeding; or
(iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such indemnified party
and the indemnifying party, and such indemnified party shall have been
advised by counsel that there may be one or more legal defenses
available to such party which are different from or additional to those
available to the indemnifying party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of such indemnified party).
The indemnifying party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the indemnified party, which firm
shall be designated in writing by the indemnified party.
11. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 10(a) or
10(b) hereof is for any reason held to be unavailable to any party entitled to
such indemnification, each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of losses, claims, damages
and liabilities of the nature contemplated by such indemnification provisions
(including any investigation, legal and other expenses incurred in connection
with, and amounts paid in settlement of, any action, suit or proceeding or any
claims asserted) to which the Company and the Advisor may be subject, in such
proportions so that the Advisor is responsible for that portion in each case
represented by the percentage that the respective placement fee appearing in
Section 4(c) of this Agreement bears to the offering price of the Shares, and
the Company is responsible for the remaining portion; provided, however, that no
person guilty of fraudulent misrepresentation shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purpose of this Section 11, each person, if any, who controls the Advisor within
the meaning of Section 15 of the Act shall have the same rights to contribution
as the Advisor, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act, each officer of the Company and each director
of the Company shall have the same right to contribution as the Company, subject
in each case to the prior sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which claim for contribution may be
sought, promptly notify the other party or parties in writing of the
commencement thereof, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
Section 11. No party shall be liable for contribution with respect to any action
or claim settled without its consent.
12. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties or agreements of the Company or of the Advisor
herein or in certificates delivered
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pursuant hereto shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Advisor or any controlling
person, the Company, or any of its officers, directors or controlling persons,
and shall survive delivery of the Rights and the Shares.
13. TERMINATION. Each of the Company's and the Advisor's
obligation to proceed hereunder is conditioned upon its continuing judgment that
market conditions in general, and as they relate to the Company's securities in
particular, are such as to continue to make appropriate the offering and sale of
the Rights in the manner provided for herein. Notwithstanding the foregoing,
this Agreement shall terminate if the Offering is not completed on or before
April 15, 1999, unless extended by the Company and the Advisor. Upon any
termination of this Agreement whether by the Company or the Advisor, the
obligations of the parties set forth in Sections 6(c), 10 and 11 shall survive
termination of this Agreement.
14. NOTICES. All notices or communications hereunder, except
as herein otherwise specifically provided, shall be in writing and if sent to
you shall be mailed, delivered or telegraphed and confirmed to you c/o Allen &
Company Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx
Xxxxx, with a copy to Xxxxxx & Carnelutti, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attn: Xxx X. Xxxxxxxx, Esq., or, if sent to the Company, at 000 Xxxx Xxx Xxxx
Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxx, Esq., with
a copy to Akerman, Senterfitt & Xxxxxx, P.A., Xxx Xxxxxxxxx Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxx, Xxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxx, Esq.
15. BENEFITS OF THE AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Company and the Advisor and their
respective successors and permitted assigns. This Agreement may not be assigned
by any party without the consent of the other party.
16. APPLICABLE LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York.
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17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
Very truly yours,
FLORIDA PANTHERS HOLDINGS, INC.
By:
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Name:
Title:
XXXXX & COMPANY INCORPORATED
By:
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Name:
Title:
