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EXHIBIT 10.13
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
January 18, 1997 by and between FLORIDA PANTHERS ICE VENTURES, INC., a Florida
corporation (the "Purchaser"), and XXXXX XXXXXXX, a Canadian citizen and
resident of Toronto, Ontario (the "Seller"). Certain other capitalized terms
used herein are defined in Article X and throughout this Agreement.
RECITALS
The Seller is the owner of (i) certain concepts for application of
technology to videography in sports (the "Concepts"); (ii) certain registrations
for patents and copyrights (the "Patents"); (iii) certain predevelopment rights
(the "Predevelopment Rights"); and (iv) trademarks (the "Trademarks"). The
Concepts, Patents, Predevelopment Rights and Trademarks are collectively
referred to as the "Assets," and are more fully listed and described on Exhibit
A attached hereto. The Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, the Assets in accordance with the
terms and conditions of this Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Subject to the terms and conditions of this Agreement, the Seller
shall, in reliance upon the representations, warranties and covenants of the
Purchaser set forth in this Agreement, agree to sell, convey, grant, assign,
transfer and deliver to Purchaser and Purchaser shall, in reliance upon
representations, warranties and covenants of the Purchaser set forth in the
Agreement, agree to purchase and acquire, free and clear of any and all Liens,
all of Seller's right, title and interest in and to the Assets.
1.2 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, the Purchaser shall, in full consideration of the sale, conveyance,
grant, assignment, transfer and delivery up to by the Seller to the Purchaser of
the Assets, pay to the Seller (allocated as provided in Schedule 1.2) 212,766
shares of common stock, par value $.01 per share (the "FPHI Common Stock"),
subject to adjustment as provided below, of the Florida Panthers Holdings, Inc.
("FPHI") representing the number of shares derived by dividing (a) $5,000,000
(the "Purchase Price"); by (b)
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the average closing sale price of a share of FPHI Common Stock on The Nasdaq
Stock Market for the three consecutive trading days which precede the date of
this Agreement, as reported (absent manifest error in the printing thereof) by
the Wall Street Journal (Eastern Edition) (the "Average Closing Sale Price");
provided, however, that the Purchase Price shall be adjusted by the amount that
Purchaser is required to withhold, deduct or hold back for income taxes in
connection with the sale and assignment of trademarks listed on Exhibit A. The
parties hereto shall mutually agree upon the valuation of such trademarks prior
to Closing.
1.3 TIME AND PLACE. Subject to the terms and conditions of this
Agreement, the closing of the purchase and sale of the Assets (the "Closing")
shall commence at 9:00 a.m. on January 31, 1997, or on a date selected by the
parties as seen thereafter as the conditions to Closing shall be satisfied or
waived as provided for herein, at the offices of Akerman, Senterfitt & Xxxxxx,
P.A., One Southeast Third Avenue, 28th Floor, Miami, Florida, or such other time
and place as the parties may otherwise agree. The time and date of the Closing
are referred to herein as the "Closing Date."
1.4 DELIVERY OF ASSETS. At Closing, the Seller shall duly execute and
deliver to the Purchaser any and all instruments of transfer of title as are
necessary to transfer to the Purchaser good, insurable and marketable title to
the Assets and shall deliver to the Purchaser immediate possession of the
Assets. The Seller agrees to execute and deliver to the Purchaser from time to
time such further and particular assignments, consents or other instruments as
the Purchaser may request as appropriate or desirable to confirm its title in
and to any and all of the Assets sold, conveyed and assigned to the Purchaser.
1.5 DELIVERY OF SHARES. At the Closing, the Purchaser shall deliver to
the Seller one or more certificates representing 153,192 shares of FPHI Common
Stock. The Purchaser shall set aside and hold 59,574 shares of FPHI Common Stock
(the "Held Back Shares") in accordance with Section 7.3. The shares of FPHI
Common Stock (including the Held Back Shares) issuable by the Purchaser are
sometimes referred to herein as the "FPHI Shares."
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As a material inducement to the Seller to enter into this Agreement and
to consummate the transactions contemplated hereby, the Purchaser makes the
following representations and warranties:
2.1 CORPORATE STATUS. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
2.2 CORPORATE POWER AND AUTHORITY. The Purchaser has the corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The Purchaser has taken all actions necessary to
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authorize the execution and delivery of this Agreement, the performance of its
obligations hereunder and the consummation of the transactions contemplated
hereby.
2.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by the Purchaser and constitutes a legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
2.4 NO COMMISSIONS. The Purchaser has not incurred any obligation for
any finder's or broker's or agent's fees or commissions or similar compensation
in connection with the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As a material inducement to the Purchaser to enter into this Agreement
and to consummate the transactions contemplated hereby, the Seller makes the
following representations and warranties to the Purchaser:
3.1 POWER AND AUTHORITY. The Seller is an individual with the requisite
competence and authority to execute and deliver this Agreement, to perform his
obligations hereunder and to consummate the transactions contemplated hereby.
3.2 ENFORCEABILITY. This Agreement has been duly executed and delivered
by the Seller and constitutes the legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in equity.
3.3 NO VIOLATION. The execution and delivery of this Agreement by the
Seller, the performance by the Seller of its respective obligations hereunder
and the consummation by the Seller of the transactions contemplated by this
Agreement will not (i) violate or conflict with any law, statute, ordinance,
rule, regulation, decree, writ, injunction, judgment or order of any
Governmental Authority or of any arbitration award which is either applicable
to, binding upon or enforceable against the Seller or the Assets; (ii) conflict
with, result in any breach of, or constitute a default (or an event which would,
with the passage of time or the giving of notice or both, constitute a default)
under, or give rise to a right to terminate, amend, modify, abandon or
accelerate any Contract which is applicable to, binding upon or enforceable
against the Seller or the Assets; (iii) result in or require the creation or
imposition of any Lien upon or with respect to any of the Assets; or (iv)
require the
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consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Authority, any court or tribunal or any other Person,
except any filings required to be made by the Purchaser.
3.4 NO COMMISSIONS. The Seller has not incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar compensation in
connection with the transactions contemplated hereby.
3.5 LIABILITIES OF THE SELLER. The Seller does not have any liabilities
or obligations, whether accrued, absolute, contingent or otherwise which would
preclude or otherwise prevent the Seller from selling, conveying, granting,
assigning, transferring and delivering to the Purchaser, free and clear of any
and all Liens, the Assets.
3.6 LITIGATION. There is no action, suit or other legal or
administrative proceeding or governmental investigation pending, threatened,
anticipated or contemplated against, by or affecting the Seller or the Assets,
or which question the validity or enforceability of this Agreement or the
transactions contemplated hereby, and there is no basis for any of the
foregoing. There are no outstanding orders, decrees, stipulations or agreements
issued by any Governmental Authority in any proceeding to which the Seller is or
was a party which have not been complied with in full or which continue to
impose any material obligations on the Seller.
3.7 GOOD TITLE, ADEQUACY AND CONDITION. Seller has, and at Closing will
have, good and marketable title to the Assets with full power to sell, convey,
grant, assign, transfer and deliver the same, free and clear of any Lien The
Seller covenants and agrees that it will warrant and defend the title to the
Assets hereby sold to the Purchaser, its successors and assigns, against the
claims, demands and charges of all persons whomsoever.
3.8 COMPLIANCE WITH LAWS. The Seller is and has been in compliance in
all material respects with all laws, regulations and orders applicable to it and
the Assets.
3.9 INTELLECTUAL PROPERTIES. The Seller has full legal right, title and
interest to the copyrights, trademarks and patents listed on Exhibit A (the
"Intellectual Properties"), and the use by the Seller of the Intellectual
Properties does not infringe or misappropriate, and the Seller has no knowledge
of or received any communications asserting that such use infringes or
misappropriates, any rights of any third party. None of the Intellectual
Properties has been declared invalid or unenforceable, or is the subject of any
pending or threatened action for opposition, cancellation, declaration,
infringement or invalidity, unenforceability or misappropriation of the claim,
action or proceeding, and no person is infringing on any of the Intellectual
Properties.
3.10 SECURITIES LAW MATTERS. The Seller is acquiring the FPHI Shares
hereunder for its own account for investment and not with a view to, or for the
sale in connection with, any distribution of any of the FPHI Shares, except in
compliance with applicable state and federal securities laws. The Seller
acknowledges receiving a prospectus of FPHI in accordance with the requirements
of the
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Securities Act. The Seller has had the opportunity to discuss the transactions
contemplated hereby with FPHI and has had the opportunity to obtain such
information pertaining to FPHI as has been requested, including but not limited
to filings made by FPHI with the Commission under the Exchange Act. The Seller
is an "accredited investor" within the meaning of Regulation D promulgated under
the Securities Act, and has such knowledge and experience in business or
financial matters that it is capable of evaluating the merits and risks of an
investment in the FPHI Shares.
3.11 ACCURACY OF INFORMATION FURNISHED BY THE SELLER TO THE PURCHASER.
No representation, statement or information made or furnished by the Seller to
the Purchaser or any of the Purchaser's representatives, including those
contained in this Agreement and other information and statements referred to
herein and previously furnished by the Seller, contains or shall contain any
untrue statement of a material fact which would make such information or
statements misleading.
ARTICLE IV
CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES
4.1 FURTHER ASSURANCES. Each party to this Agreement shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby and to satisfy the conditions set forth in Articles V and VI. Each of the
parties agrees to cooperate with the others in the preparation and filing of all
forms, notifications, reports and information, if any, required or reasonably
deemed advisable pursuant to any applicable law in connection with the
transactions contemplated by this Agreement, and to use its best efforts to
agree on a method to overcome any objections by any Governmental Authority to
any such transactions. Each of the parties also agrees to use best efforts to
defend all lawsuits or other legal proceedings challenging this Agreement or the
consummation of the transactions contemplated hereby and to lift or rescind any
injunction or restraining order or other order adversely affecting the ability
of the parties to consummate the transactions contemplated hereby.
4.2 ACCESS TO INFORMATION. From the date hereof to the Closing Date,
the Seller shall (and shall cause its auditors, counsel and agents) afford the
Purchaser and the Purchaser's officers, employees, auditors, counsel and agents
reasonable access at all reasonable times to all books and records, and shall
furnish such persons with all financial, operating and other data and
information as may be requested. No information provided to or obtained by the
Purchaser shall affect any representation or warranty in this Agreement.
4.3 NOTIFICATION OF CERTAIN MATTERS. The Seller shall give prompt
notice to the Purchaser of the occurrence or non-occurrence of any event which
would likely cause any representation or warranty contained herein to be untrue
or inaccurate, or any covenant, condition or agreement contained herein not to
be complied with or satisfied.
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4.4 CONFIDENTIALITY; PUBLICITY. Except as may be required by law or as
otherwise permitted or expressly contemplated herein, no party hereto or its
respective Affiliates, employees, agents and representatives shall disclose to
any third party this Agreement or the subject matter or terms hereof without the
prior consent of the other parties hereto. No press release or other public
announcement related to this Agreement or the transactions contemplated hereby
shall be issued by any party hereto without the prior approval of the other
parties, except that the Purchaser may make such public disclosure which it
believes in good faith to be required by law or by the terms of any listing
agreement with a securities exchange (in which case the Purchaser will consult
with the Seller prior to making such disclosure).
4.5 NO OTHER DISCUSSIONS. The Seller and its agents and representatives
will not (i) initiate, encourage the initiation by others of discussions or
negotiations with third parties or respond to solicitations by third persons
relating to sale or other disposition of the Assets or (ii) enter into any
agreement or commitment (whether or not binding) with respect to the foregoing
transaction. The Seller will immediately notify the Purchaser if any third party
attempts to initiate any solicitation, discussion or negotiation with respect to
the foregoing transaction.
4.6 TRADING IN FPHI COMMON STOCK. Except as otherwise expressly
consented to by the Purchaser, from the date of this Agreement until the Closing
Date, the Seller (and any of his Affiliates) will not directly or indirectly
purchase or sell (including short sales) any shares of FPHI Common Stock in any
transactions effected on the Nasdaq Stock Market or otherwise.
4.7 COVENANT NOT TO COMPETE. The Seller agrees that, for the period of
three (3) years immediately following the Closing Date, the Seller shall not,
directly or indirectly:
(a) alone or as a partner, joint venturer, officer,
director, employee, consultant, agent, independent contractor, or security
holder of any Person, engage in any business activity at any location in the
United States of America, which is engaged in developing, owning, or operating
ice rinks and their related facilities or the operation of the twin pad ice rink
which is directly or indirectly in competition with the business of the
Purchaser or its subsidiary; provided, however, that the beneficial ownership of
less than five percent (5%) of any class of securities of any entity having a
class of equity securities actively traded on a national securities exchange or
the Nasdaq Stock Market shall not be deemed, in and of itself, to violate the
prohibitions of this Section; provided, further, that the providing of
architectural services and designs by the Seller for professional arenas with
seating capacity of at least 3,000 spectators or stadiums in the United States
shall not be deemed to violate covenants contained herein. The provision of
architectural services and/or designs by the Seller or by Xxxxxxx Xxxxx Xxxxxx,
Architects (i) to any person or entity for any ice skating rinks used primarily
for commercial public skating anywhere in the State of Florida, or (ii) to any
person or entity that is in the business, directly or indirectly (by one or more
affiliates), of developing commercial ice skating rinks anywhere in the United
States, shall be deemed to violate covenants contained herein, excepting rinks
containing more than 3,000 spectator seats;
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(b) (i) induce, solicit or accept for or on behalf of any
Person any contact, agreement, relationship or business activity which may in
any manner affect or diminish in any way, the Predevelopment Rights; (ii) induce
any customer acquired hereunder or any other customer of the Purchaser or any of
its subsidiaries to patronize any business which is directly or indirectly in
competition with the Purchaser and its subsidiaries; (iii) canvass, solicit or
accept for or on behalf of any such competitive business any customer of the
Purchaser or any of its subsidiaries; or (iv) request or advise any customer of
the Purchaser or any of its subsidiaries to withdraw, curtail or cancel any such
customer's business with the Purchaser or any of its subsidiaries or their
successors;
(c) employ any person who was employed by the Purchaser or
any subsidiary of the Purchaser, within six months prior to the date being
employed by the Seller, or in any manner seek to induce any employee of the
Purchaser or any of its subsidiaries to leave his or her employment; and
(d) in any way utilize, disclose, copy, reproduce or retain
in his possession any of the proprietary rights, or records acquired by
Purchaser hereunder.
The Seller agrees and acknowledges that the restrictions contained in this
Section are reasonable in scope and duration, and are necessary to protect the
Purchaser. If any provision of this Section is adjudged by a court of competent
jurisdiction to be invalid or unenforceable, the same will in no way affect the
validity or enforceability of the remainder of this Agreement. If any such
provision, or any part thereof, is held to be unenforceable because of the
duration of such provision, the area covered thereby or otherwise, then the
parties agree that the court making such determination shall have the power to
reduce the duration, area or scope of such provision, and/or to delete specific
words or phrases, and in its reduced or modified form, such provision shall then
be enforceable and shall be enforced. The Seller further agrees and acknowledges
that any breach of this Section will cause irreparable injury to the Purchaser
and, upon any breach or threatened breach of any provision of this Section, the
Purchaser shall be entitled to injunctive relief, specific performance or other
equitable relief, without the necessity of posting bond; provided, however, that
this shall in no way limit any other remedies which the Purchaser may have as a
result of such breach, including the right to seek monetary damages.
4.8 DUE DILIGENCE INVESTIGATION. The Purchaser shall be entitled to
conduct, prior to Closing, a due diligence investigation of the Seller and the
Assets. The Seller shall provide the Purchaser and its designated agents and
consultants with access to the Assets and all books, records, documents,
correspondence and other materials related thereto which the Purchaser, its
agents and consultants require to conduct such due diligence review. If the
results of the Purchaser's due diligence review are not satisfactory to the
Purchaser in its sole discretion, then the Purchaser may elect not to close the
transactions contemplated by this Agreement.
4.9 FILINGS. The Purchaser and the Seller shall make, on a prompt and
timely basis, all governmental or regulatory notifications and filings required
to be made by them for the consummation of the transactions contemplated hereby
and each agree to cooperate with the other in the preparation and filing of all
forms, notifications, reports and information, if any, required or
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reasonably deemed advisable pursuant to any requirement of applicable law or the
requirements of the SEC and/or the Nasdaq National Market in connection with the
transactions contemplated by this Agreement.
4.10 PUBLIC ANNOUNCEMENTS. The form and content of all press releases
or other public communications of any sort relating to the subject matter of
this Agreement, and the method of their release, or publication thereof, shall
be subject to the prior approval of the parties hereto, which approval shall not
be unreasonably withheld or delayed.
4.11 CONSENT TO JURISDICTION. Each party hereto irrevocably submits to
the jurisdiction of the Circuit Court of the State of Florida, Broward County,
in any action or proceeding arising out of or relating to this Agreement, and
each party hereby irrevocably agrees that all claims in respect of any such
action or proceeding must be brought and/or defended in such court; provided
however, that matters which are under the exclusive jurisdiction of the federal
courts shall be brought in the Federal District Court for the Southern District
of Florida. Notwithstanding the foregoing, the Seller or the Purchaser may
remove to a federal court any action in which either is a defendant. Each party
hereto consents to service of process by any means authorized by the applicable
law of the forum in any action brought under or arising out of this Agreement,
and each party irrevocable waives, to the fullest extent each may effectively do
so, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser to effect the transactions
contemplated hereby shall be subject to the fulfillment at or prior to the
Closing Date of the following conditions, any or all of which may be waived in
whole or in part by the Purchaser:
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of the Seller contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing Date with the same force and effect as though made at and as of that
time except that those representations and warranties which address matters only
as of a particular date shall remain true and correct as of such date. The
Seller shall have performed and complied with all of its obligations required by
this Agreement to be performed or complied with at or prior to the Closing Date.
The Seller shall have delivered to the Purchaser a certificate, dated as of the
Closing Date, certifying that such representations and warranties are true and
correct and that all such obligations have been performed and complied with.
5.2 NO DESTRUCTION OF PROPERTY. Between the date hereof and the Closing
Date, there shall have been no adverse federal, state or local legislative or
regulatory change affecting in any material respect the services, products or
business of the Seller or the Assets, and there shall have
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been delivered to the Purchaser a certificate to that effect, dated the Closing
Date, duly signed by the President of the Seller.
5.3 DELIVERY OF ASSETS. At Closing, the Seller shall duly execute and
deliver to the Purchaser any and all instruments of transfer of title as are
necessary at the sole discretion of Purchaser to transfer to the Purchaser good,
insurable and marketable title to the Assets and shall deliver to the Purchaser
immediate possession of the Assets.
5.4 CONSENTS. The Seller shall have received consents to the
transactions contemplated hereby and waivers of rights to terminate or modify
any material rights or obligations of the Seller from any person from whom such
consent or waiver is required under any Contract to which the Seller or the
Assets are bound as of a date not more than ten days prior to the Closing Date,
or who, as a result of the transactions contemplated hereby, would have such
rights to terminate or modify such Contract, either by the terms thereof or as a
matter of law.
5.5 STOCK POWERS. At the Closing, the Seller shall have delivered to
the Purchaser, for use in connection with the Held Back Shares, ten stock powers
executed in blank, with its signature guaranteed.
5.6 OPINION OF COUNSEL. The Purchaser shall have received an opinion of
counsel, satisfactory to the Purchaser, pertaining to the validity of (i) the
rights comprising the Intellectual Properties and (ii) the sale and transfer of
the Intellectual Properties.
5.7 NO ADVERSE LITIGATION. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the transactions contemplated hereby, and which, in the judgment of the
Purchaser, makes it inadvisable to proceed with the transactions contemplated
hereby.
5.8 DUE DILIGENCE REVIEW. The Purchaser shall have had adequate
opportunity to complete its due diligence review of the Seller and the Assets
pursuant to Sections 4.8, and shall be satisfied with the results of such review
and assessment.
5.9 CROSS CONTINGENCY. Closing of the transactions contemplated by this
Agreement shall be contingent upon the closing of the transactions contemplated
by the Asset Purchase Agreement, dated as of January 18, 1997 (the "Rink
Agreement"), by and among the Purchaser, Seller, Iceland (Coral Springs), Inc.
and Iceland Holdings, Inc. and the Asset Purchase Agreement, dated as of January
18, 1997 (the "Xxxxxxx Agreement"), by and among Purchaser, the Seller and
Xxxxxxx Xxxxx Xxxxxx, Architects.
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ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF
THE SELLER AND SHAREHOLDERS
The obligations of the Seller to effect the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing Date of
the following conditions, any or all of which may be waived in whole or in part
by the Seller:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE WITH
OBLIGATIONS. The representations and warranties of the Purchaser contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing Date with the same force and effect as though made at and as of that
time except that those representations and warranties which address matters only
as of a particular date shall remain true and correct as of such date. The
Purchaser shall have performed and complied in all material respects with all of
its obligations required by this Agreement to be performed or complied with at
or prior to the Closing Date. The Purchaser shall have delivered to the Seller a
certificate, dated as of the Closing Date, and signed by an executive officer
thereof, certifying that such representations and warranties are true and
correct, and that all such obligations have been performed and complied with, in
all material respects.
6.2 FPHI SHARES. At Closing, the Purchaser shall have issued all of the
FPHI Shares and shall have delivered to the Seller (i) certificates representing
the FPHI Shares required to be issued to them hereunder, other than the Held
Back Shares, and (ii) copies of stock certificates representing the Held Back
Shares.
6.3 CROSS CONTINGENCY. Closing of the transactions contemplated by this
Agreement shall be contingent upon the closing of the transactions contemplated
by the Rink Agreement and the Xxxxxxx Agreement.
ARTICLE VII
INDEMNIFICATION
7.1 AGREEMENT BY SELLER TO INDEMNIFY. The Seller agrees to indemnify
and hold the Purchaser harmless from and against the aggregate of all expenses,
losses, costs, deficiencies, liabilities and damages (including, without
limitation, related counsel and paralegal fees and expenses) incurred or
suffered by the Purchaser (collectively, "Indemnifiable Damages") resulting from
or arising out of (i) any breach of a representation or warranty made by the
Seller in or pursuant to this Agreement; (ii) any breach of the covenants or
agreements made by the Seller in this Agreement; (iii) any inaccuracy in any
certificate delivered by the Seller pursuant to this Agreement; and (iv) the
Seller's ownership or operation of the Assets prior to Closing. Without limiting
the generality of the foregoing with respect to the measurement of Indemnifiable
Damages, the Purchaser shall have the
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right to be put in the same pre-tax consolidated financial position as it would
have been in had each of the representations and warranties of the Seller
hereunder been true and correct.
7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Seller in this Agreement or pursuant
hereto shall survive the Closing of the transactions contemplated hereby.
Notwithstanding any knowledge of facts determined or determinable by any party
by investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other parties
contained in this Agreement or in any other documents or papers delivered in
connection herewith. Each representation, warranty, covenant and agreement of
the parties contained in this Agreement is independent of each other
representation, warranty, covenant and agreement.
7.3 SECURITY FOR SELLER'S AND OTHER PARTIES' INDEMNIFICATION
OBLIGATIONS. As security for the agreement by the Seller to indemnify and hold
the Purchaser harmless under this Agreement and as security for the agreement by
the Seller and Iceland (Coral Springs), Inc. and Iceland Holdings, Inc., each a
Delaware corporation, to indemnify and hold the Purchaser harmless under the
Rink Agreement and as security for the agreement by the Seller and Xxxxxxx Xxxxx
Xxxxxx, Architects to indemnify and hold Purchaser harmless under the Xxxxxxx
Agreement (collectively, all the Indemnifiable Damages under these Asset
Purchase Agreements, the "Aggregate Indemnifiable Damages"), at Closing, the
Purchaser shall set aside and hold certificates representing the Held Back
Shares issued pursuant to this Agreement. The Seller hereby grants to the
Purchaser a first priority security interest in the Held Back Shares and any and
all proceeds thereof. The Purchaser may set off against the Held Back Shares any
of the Aggregate Indemnifiable Damages for which the Seller or any of the other
parties to these Asset Purchase Agreements may be responsible pursuant to this
Agreement or the other Asset Purchase Agreements, subject, however, to the
following terms and conditions:
(a) The Purchaser shall give written notice to the Seller of
any claim for Aggregate Indemnifiable Damages or any other damages
hereunder, which notice shall set forth (i) the amount of Indemnifiable
Damages or other loss, damage, cost or expense which the Purchaser
claims to have sustained by reason thereof, and (ii) the basis of the
claim therefor;
(b) Such set off shall be effected on the later to occur on
the expiration of 10 days from the date of such notice (the "Notice of
Contest Period") or, if such claim is contested, the date the dispute
is resolved, and such set off shall be charged proportionally against
the shares set aside;
(c) If, prior to the expiration of the Notice of Contest
Period, the Seller shall notify the Purchaser in writing of an
intention to dispute the claim and if such dispute is not resolved
within 30 days after expiration of such period (the "Resolution
Period"), then the Purchaser may elect that such dispute shall be
resolved by a committee of three arbitrators (one appointed by the
Seller, one appointed by the Purchaser and one appointed by the two
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arbitrators so appointed), which shall be appointed within 60 days
after the expiration of the Resolution Period. The costs of such
arbitration shall be borne equally by each of the parties. The
arbitrators shall abide by the rules of the American Arbitration
Association and their decision shall be made within 45 days of being
appointed and shall be final and binding on all parties; and
(d) For purposes of any set off described under this
Section, the Held Back Shares shall be valued at the Average Closing
Sale Price. Not more than once prior to the one year anniversary of the
Closing Date, the Seller may instruct the Purchaser to sell some or all
of the Held Back Shares and the net proceeds thereof shall be
substituted for such Held Back Shares in any set off to be made by the
Purchaser pursuant to any claim hereunder. The Purchaser shall not be
liable for any loss or damage incurred by the Seller arising from any
delay in the sale of such Held Back Shares following the Seller's
instruction to sell the Held Back Shares.
7.4 VOTING OF AND DIVIDENDS ON HELD BACK SHARES. Except with respect to
shares transferred pursuant to the foregoing right of set off (and in the case
of such shares, until the same are transferred), all Held Back Shares shall be
deemed to be owned by the Seller, and the Seller shall be entitled to vote the
same; provided, however, that, there shall also be deposited with the Purchaser
subject to the terms of this Article VII, all shares of FPHI Common Stock issued
to the Seller as a result of any stock dividend or stock split and all cash
issuable to the Seller as a result of any cash dividend, with respect to the
Held Back Shares. All stock and cash issued or paid upon Held Back Shares shall
be distributed to the Seller together with such Held Back Shares.
7.5 DELIVERY OF HELD BACK SHARES. The Purchaser agrees to deliver to
the Seller no later than ten (10) business days following the first anniversary
of the Closing Date any Held Back Shares then held by it (or proceeds from the
Held Back Shares) unless there then remains unresolved any claim for
Indemnifiable Damages or Aggregate Indemnifiable Damages or other damages
hereunder as to which notice has been given, in which event any Held Back Shares
remaining on deposit (or proceeds from the sale of Held Back Shares) after such
claim shall have been satisfied shall be returned to the Seller promptly after
the time of satisfaction.
7.6 NO BAR. If the Held Back Shares are insufficient to set off any
claim for any Indemnifiable Damages hereunder or for Aggregate Indemnifiable
Damages (or have been delivered to the Seller prior to the making or resolution
of such claim), then the Purchaser may take any action or exercise any remedy
available to it by appropriate legal proceedings to collect the Indemnifiable
Damages or Aggregate Indemnifiable Damages.
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ARTICLE VIII
SECURITIES LAW MATTERS
The parties agree as follows with respect to the sale or other
disposition after the Closing Date of the FPHI Shares:
8.1 DISPOSITION OF SHARES. The Sellers represent and warrant that the
shares of FPHI Common Stock being acquired by them hereunder are being acquired
for their own account and will not be sold or otherwise disposed of, except (i)
pursuant to an exemption from the registration requirements under the Securities
Act, (ii) in accordance with the requirements of Rule 145(d) under the
Securities Act or (iii) pursuant to an effective registration statement filed by
the Purchaser with the SEC under the Securities Act. To the extent the Sellers
comply with the provisions of Rule 145(d) promulgated under the Securities Act,
the Purchaser agrees to provide its transfer agent with appropriate instructions
and/or opinions of counsel in order for the Sellers to sell, transfer and/or
dispose of the FPHI Shares in accordance with Rule 145(d).
8.2 LEGEND. The certificates representing the FPHI Shares shall bear
the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF BY THE HOLDER EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE ACT AND IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO, (B) IN
ACCORDANCE WITH RULE 145(D) UNDER THE ACT, OR (C) IN ACCORDANCE WITH AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FPHI may, unless a registration statement is in effect covering such shares or
unless the Seller comply with Rule 145(d), place stop transfer orders with its
transfer agent with respect to such certificates in accordance with federal
securities laws. However, upon the determination of FPHI or its counsel that
such legend is incorrect, such other legend required by the Securities Act and
rules and regulations promulgated thereunder.
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ARTICLE IX
REGISTRATION RIGHTS
The Seller shall have the following registration rights with respect to
the FPHI Shares issued to it hereunder:
9.1 REGISTRATION RIGHTS FOR FPHI SHARES; FILING OF REGISTRATION
STATEMENT. The Purchaser will utilize reasonable efforts to cause, as soon as
practicable following the Closing Date, a registration statement to be filed
under the Securities Act or a pending registration statement to be amended for
the purpose of registering the Shares for resale by the Seller thereof (the
"Registration Statement"). The Purchaser will use reasonable efforts to have the
Registration Statement become effective and cause the FPHI Shares to be
registered under the Securities Act, and registered, qualified or exempted under
the state securities laws of such jurisdictions as the Seller reasonably
requests, as soon as is reasonably practicable. Notwithstanding the foregoing,
the Purchaser may delay filing the Registration Statement, and may withhold
efforts to cause the Registration Statement to become effective, if the
Purchaser is informed by Florida Panthers Holdings, Inc. ("FPHI") or determines
in good faith that such registration might (i) interfere with or affect the
negotiation or completion of any transaction that is being contemplated by FPHI
(whether or not a final decision has been made to undertake such transaction) at
the time the right to delay is exercised or (ii) involve initial or continuing
disclosure obligations that might not be in the best interests of FPHI's
shareholders. If, after the Registration becomes effective, the Purchaser
advises the Seller that FPHI considers it appropriate for the Registration to be
amended, the Seller shall suspend any further sales of their registered shares
until the Purchaser advises that the Registration has been amended.
9.2 EXPENSES OF REGISTRATION. The Purchaser shall pay all expenses
incurred by it in connection with the registration, qualification and/or
exemption of the FPHI Shares, including any SEC and state securities law
registration and filing fees, printing expenses, fees and disbursements of
FPHI's counsel and accountants, transfer agents' and registrars' fees, fees and
disbursements of experts used by FPHI in connection with such registration,
qualification and/or exemption, and expenses incidental to any amendment or
supplement to the Registration Statement or prospectuses contained therein. The
Purchaser shall not, however, be liable for any sales, broker's or underwriting
commissions upon sale by the Seller of any of the FPHI Shares.
9.3 FURNISHING OF DOCUMENTS. The Purchaser shall furnish to the Seller
such reasonable number of copies of the Registration Statement, such
prospectuses as are contained in the Registration Statement and such other
documents as the Seller may reasonably request in order to facilitate the resale
of the FPHI Shares.
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ARTICLE X
DEFINITIONS
10.1 DEFINED TERMS. As used herein, the following terms shall
have the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as
in effect on the date hereof.
"Contract" means any indenture, lease, sublease, license,
loan agreement, mortgage, note, indenture, restriction, will, trust,
commitment, obligation or other contract, agreement or instrument,
whether written or oral.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof, and any
entity or official exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, but not limited to,
any conditional sale or other title retention agreement, any lease in
the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code or comparable law
or any jurisdiction in connection with such mortgage, pledge, security
interest, encumbrance, lien or charge).
"Person" means an individual, partnership, corporation,
business trust, joint stock company, estate, trust, unincorporated
association, joint venture, Governmental Authority or other entity, of
whatever nature.
"SEC" or "Commission" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
10.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificates, reports or other documents made
or delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa.
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(c) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
ARTICLE XI
TERMINATION, AMENDMENT AND WAIVER
11.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual written consent of all of the parties hereto
at any time prior to the Closing; or
(b) by the Purchaser in the event of a material breach by
the Seller of any provision of this Agreement; or
(c) by the Purchaser or the Seller if the Closing shall not
have occurred by January 31, 1997.
11.2 EFFECT OF TERMINATION. Except as provided in Article XI, in the
event of termination of this Agreement pursuant to Section 11.1, this Agreement
shall forthwith become void; provided, however, that nothing herein shall
relieve any party from liability for the willful breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
ARTICLE XII
GENERAL PROVISIONS
12.1 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered (and deemed
received if delivered) by certified or registered mail (first class postage
pre-paid), guaranteed overnight delivery, or facsimile transmission if such
transmission is confirmed by delivery by certified or registered mail (first
class postage pre-paid) or guaranteed overnight delivery, to the following
addresses and telecopy numbers (or to such other addresses or telecopy numbers
which such party shall designate in writing to the other party):
(a) IF TO THE PURCHASER:
Florida Panthers Ice Ventures, Inc.
000 X.X. Xxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
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WITH A COPY TO:
Akerman, Senterfitt & Xxxxxx, P.A.
SunTrust International Center
Xxx X.X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) IF TO ANY OF THE SELLER OR SHAREHOLDERS:
Xxxxx Xxxxxxx
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Telecopy: (000) 000-0000
WITH A COPY TO:
Xxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
12.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits attached
hereto) and other documents delivered at the Closing pursuant hereto, contains
the entire understanding of the parties in respect of its subject matter and
supersedes all prior agreements and understandings (oral or written) between or
among the parties with respect to such subject matter. The Exhibits constitute a
part hereof as though set forth in full above.
12.3 EXPENSES. Except as otherwise provided herein, the parties shall
pay their own fees and expenses, including their own counsel fees, incurred in
connection with this Agreement or any transaction contemplated hereby. The
Seller hereby agrees to pay any and all sales and use taxes which may become due
and owing as a result of the completion of the transactions contemplated hereby.
12.4 AMENDMENT; WAIVER. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No
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extension of time for performance of any obligations or other acts hereunder or
under any other agreement shall be deemed to be an extension of the time for
performance of any other obligations or any other acts. The rights and remedies
of the parties under this Agreement are in addition to all other rights and
remedies, at law or equity, that they may have against each other.
12.5 BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned by the Seller without the prior written consent of
the Purchaser.
12.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
12.7 INTERPRETATION. When a reference is made in this Agreement to an
article, section, paragraph, clause, schedule or exhibit, such reference shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or the
schedules. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." Time shall be of the essence in this Agreement.
12.8 GOVERNING LAW; INTERPRETATION. This Agreement shall be construed
in accordance with and governed for all purposes by the laws of the State of
Florida applicable to contracts executed and to be wholly performed within such
State.
12.9 ARM'S LENGTH NEGOTIATIONS. Each party herein expressly represents
and warrants to all other parties hereto that (i) before executing this
Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (ii) said party has relied solely and
completely upon its own judgment in executing this Agreement; (iii) said party
has had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement; (iv) said party has acted voluntarily and of its own
free will in executing this Agreement; (v) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (vi) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
FLORIDA PANTHERS ICE VENTURES, INC., a
Florida corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx, individually
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