1
EXHIBIT 1
2,700,000 Shares
FLORIDA PANTHERS HOLDINGS, INC.
Common Stock
UNDERWRITING AGREEMENT
______________, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
As representatives of the
several underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Florida Panthers Holdings, Inc., a Florida corporation (the "COMPANY")
proposes to issue and sell 2,700,000 shares (the "FIRM SHARES") of its Class A
Common Stock, par value $.01 per share (the "CLASS A COMMON STOCK") to the
several underwriters named in Schedule I hereto (the "UNDERWRITERS"). The
Company also proposes to issue and sell to the several Underwriters not more
than 405,000 additional shares of the Class A Common Stock, par value $.01 per
share (the "ADDITIONAL SHARES") if requested by the Underwriters as provided in
Section 2 hereof. The issuance by the Company and the sale to the Underwriters
of the Firm Shares and the Additional Shares is hereinafter referred to as the
"UNDERWRITTEN OFFERING." The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the Underwritten Shares.
The Company is a newly-formed corporation, which was established for
the purpose of effecting the Reorganization (as defined below). The operations
of the business described in the Prospectus (as defined below) are currently
conducted by the Company, through its ownership of Florida Panthers Hockey
Club, Ltd. (the "PARTNERSHIP"), Arena Development Company, Ltd. ("ARENA
DEVELOPMENT"), Arena Operating Company, Ltd. ("ARENA OPERATOR"), Decoma
Investment, Inc. I ("DECOMA I") and Decoma Investment, Inc. II ("DECOMA II").
On __________, 1996, the following events (collectively, the "REORGANIZATION")
occurred: (i) Xx. Xxxxxxxx contributed (A) a note (the "PARTNERSHIP NOTE"),
representing the outstanding
2
amount which the Partnership borrowed from Xx. Xxxxxxxx plus interest accrued
on the Partnership Note ($_______ as of _________, 1996), and (B) all the
outstanding capital stock of each of Decoma I and Decoma II, which entities
together own approximately a 78% limited partnership interest in Decoma Miami
Associates, Ltd., to the capital of the Partnership in exchange for a ___%
limited partnership interest in the Partnership; (ii) Xx. Xxxxxxxx, as the sole
limited partner and the sole general partner (through his ownership of Florida
Panthers Hockey Club, Inc.) of the Partnership, contributed his limited
partnership interest in the Partnership as well as the outstanding capital
stock of Florida Panthers Hockey Club, Inc. to the Company; and (iii) Xx.
Xxxxxxxx, as the sole general partner (through his ownership of Arena
Development Company, Inc. and Arena Operating Company, Inc., respectively) of
each of Arena Development and Arena Operator, contributed the outstanding
capital stock of each of Arena Development Company, Inc. and Arena Operating
Company, Inc. to the Company in exchange for 5,020,678 shares of the Company's
Class A Common Stock and 255,000 shares of the Company's Class B Common Stock.
The Company has also entered into an agreement (the "PLACEMENT AGENCY
AGREEMENT"), providing for the sale by the Company (the "CONCURRENT OFFERING")
of up to a total of 4,600,000 shares of the Class A Common Stock (the
"CONCURRENT SHARES" and, collectively with the Underwritten Shares, the
"SHARES") through arrangements with Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and Xxxxxxx Xxxxx & Associates, Inc. as placement agents (the
"PLACEMENT AGENTS"). In connection with the Concurrent Offering, the Company
will also enter into a subscription agreement (the "SUBSCRIPTION AGREEMENT")
with each purchaser of Concurrent Shares (collectively, the "PURCHASERS"). The
Company acknowledges and agrees with the Underwriters that as between the
Company on the one hand and the Underwriters (other than the Placement Agents,
in their capacity as Placement Agents) on the other, the Company is the sole
beneficiary of the Concurrent Offering and that none of the Underwriters (other
than the Placement Agents, in their capacity as Placement Agents) has provided
any services to the Company as to the structure or implementation of the
Concurrent Offering. The shares of Class A Common Stock of the Company to be
outstanding after giving effect to the sales contemplated hereby and pursuant
to the Concurrent Offering are hereinafter referred to as the "CLASS A COMMON
STOCK." The Underwritten Offering and the Concurrent Offering are hereinafter
collectively referred to as the "OFFERINGS."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"ACT"), a registration statement on Form S-1 including a prospectus relating to
the Shares, which may be amended. The registration statement as amended at the
time when it becomes effective, including a registration statement (if any)
filed pursuant to Rule 462(b) under the Act increasing the size of the Offerings
registered under the Act and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A or
Rule 434 under the Act, is hereinafter referred to as the Registration
Statement; and the prospectus including any prospectus subject to completion
taken
-2-
3
together with any term sheet meeting the requirements of Rule 434(b) or Rule
434(c) under the Act in the form first used to confirm sales of the Shares is
hereinafter referred as the Prospectus.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company at a price per
share of $______ (the "PURCHASE PRICE") the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to 405,000 Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. The Underwriters may exercise their right to purchase
Additional Shares in whole or in part on one occasion only, by giving written
notice thereof to the Company within 30 days after the date of this Agreement.
You shall give any such notice on behalf of the Underwriters and such notice
shall specify the aggregate number of Additional Shares to be purchased
pursuant to such exercise and the date for payment and delivery thereof. The
date specified in any such notice shall be a business day (i) no earlier than
the Closing Date (as hereinafter defined), (ii) no later than ten business days
after such notice has been given and (iii) no earlier than two business days
after such notice has been given. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Company the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
The Company hereby agrees and the Company shall, concurrently with the
execution of this Agreement, deliver an agreement executed by (i) each of the
directors and officers of the Company; (ii) each stockholder listed on Annex I
hereto, pursuant to which each such person agrees, not to offer, sell, contract
to sell, grant any option to purchase, or otherwise dispose of any shares of
Class A Common Stock or any shares of the Company's Class B Common Stock (the
Class A Common Stock and the Class B Common Stock shall hereinafter be
collectively referred to as the "COMMON STOCK") or any securities convertible
into or exercisable or exchangeable for shares of the Common Stock or in any
other manner transfer all or a portion of the economic consequences associated
with the ownership of any shares of the Common Stock, except to the
Underwriters pursuant to this Agreement, for a period of 180 days after the
date of the Prospectus without the prior written consent of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation. Notwithstanding the foregoing, during such
period (i) the Company may grant stock options pursuant to the Company's
existing stock option plan; (ii) the Company may issue shares of its Common
Stock upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof; and (iii) shares of the Common Stock may be
pledged as
-3-
4
security for obligations of the holders thereof; provided, that the pledgees
also agree to be bound by the terms and conditions of the preceding sentence.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Underwritten Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Underwritten Shares upon the terms set forth in the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to the Underwriters of and payment
for the Firm Shares shall be made at 10:00 A.M., New York City time, on the
third or fourth business day unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") following the date of the initial public offering (the "CLOSING
DATE"), at such place as you shall designate. The Closing Date and the location
of delivery of and the form of payment for the Firm Shares may be varied by
agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (the "OPTION
CLOSING DATE"). Such Option Closing Date and the location of delivery of and
the form of payment for such Additional Shares may be varied by agreement
between you and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or the Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day next
preceding the Closing Date or the Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the Company, for the respective accounts of
the several Underwriters, against payment of the Purchase Price therefor, at
the election of the Company, by wire transfer or certified or official bank
checks payable in New York Clearing House/Federal funds to the order of the
Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
(a) To use its best efforts to cause the Registration
Statement to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement
has become effective and when any post-effective amendment to it
becomes effective, (ii) of any request by the Commission for
amendments to the Registration Statement or amendments or
-4-
5
supplements to the Prospectus or for additional information, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction,
or the initiation of any proceeding for such purposes, and (iv) of the
happening of any event during the period referred to in paragraph (e)
below which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish to you, without charge, three signed copies of
the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits, and to furnish to you
and each Underwriter designated by you such number of conformed copies
of the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus (including the issuance or filings of any term sheet within
the meaning of Rule 434) of which you shall not previously have been
advised or to which you shall reasonably object; and to prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the
Prospectus (including the issuance or filings of any term sheet within
the meaning of Rule 434) which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its
best efforts to cause the same to become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
reasonable opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an
Underwriter or a dealer, to furnish to each Underwriter and dealer as
many copies of the Prospectus (and of any amendment or supplement to
the Prospectus) as such Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the reasonable opinion of counsel
for the Underwriters it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or
-5-
6
supplement the Prospectus to comply with any law, forthwith to
prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not in the light of
the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with law, and to furnish to each
Underwriter and to such dealers as you shall specify, such number of
copies thereof as such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters and the Placement Agents in
connection with the registration or qualification of the Shares for
offer and sale by the several Underwriters and by dealers under the
state securities or Blue Sky laws of such jurisdictions as you may
request, to continue such qualification in effect so long as required
for the original distribution of the Shares and to file such consents
to service of process or other documents as may be necessary in order
to effect such registration or qualification.
(h) To mail and make generally available to its shareholders
as soon as reasonably practicable an earnings statement covering a
period of at least twelve months after the effective date of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a)
of the Act, and to advise you in writing when such statement has been
so made available.
(i) During the period of five years after the date of this
Agreement, to mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of its Common Stock a financial
report of the Company and its subsidiaries on a consolidated basis
(and a similar financial report of all unconsolidated subsidiaries, if
any), all such financial reports to include a consolidated balance
sheet, a consolidated statement of operations, a consolidated
statement of cash flows and a consolidated statement of shareholders'
equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year,
certified by independent certified public accountants.
(j) During the period referred to in paragraph (i), to
furnish to you as soon as available a copy of each report or other
publicly available information of the Company mailed to the holders of
Common Stock or filed with the Commission and such other publicly
available information concerning the Company and its Subsidiaries (as
hereinafter defined) as you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to
(i) the preparation, printing, filing and distribution under the Act
of the Registration
-6-
7
Statement (including financial statements and exhibits), of each
preliminary prospectus and all amendments and supplements to any of
them prior to or during the period specified in paragraph (e) to the
Underwriters, Placement Agents, dealers and the Purchasers (including
potential purchasers), (ii) the printing and delivery of the
Prospectus and all amendments or supplements to it during the period
specified in paragraph (e) to the Underwriters, Placement Agents,
dealers and the Purchasers (including potential purchasers), (iii) the
printing and delivery of this Agreement, the Placement Agency
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents
printed and delivered in connection with the offering of the Shares
(including in each case any disbursements of counsel for the
Underwriters and Placement Agents relating to such printing and
delivery), (iv) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the several
states (including in each case the fees and disbursements of counsel
for the Underwriters and Placement Agents relating to such
registration or qualification and memoranda relating thereto), (v)
filings and clearance with the National Association of Securities
Dealers, Inc. in connection with the Offerings, (vi) the listing of
the Shares on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") National Market System, (vii) furnishing such
copies of the Registration Statement, the Prospectus and all
amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold, and (viii) all other costs
and expenses incident to the performance of its obligations hereunder
and under the Placement Agency Agreement and the Subscription
Agreements which are not otherwise specifically provided for in this
Section.
(l) To use its best efforts to maintain the inclusion of the
Common Stock in the Nasdaq National Market System (or on a national
securities exchange) for a period of five years after the effective
date of the Registration Statement.
(m) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date or any Option Closing Date, as
the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
(n) To not terminate the Concurrent Offering without the
prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
-7-
8
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the best of Company's knowledge, threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each
Registration Statement filed pursuant to Rule 462(b) under the Act, if
any, complied when so filed in all material respects with the Act; and
did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The Company and each of its subsidiaries, including those
subsidiaries organized as limited partnerships, (collectively, the
"SUBSIDIARIES") has been duly incorporated or organized, is validly
existing as a corporation or limited partnership, as the case may be,
in good standing under the laws of its jurisdiction of incorporation
or organization and has the corporate or partnership power and
authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation or
partnership authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company and
the Subsidiaries, taken as a whole.
-8-
9
(e) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature.
(f) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights; and the Shares have been duly authorized and, when issued and
delivered to the Underwriters or the Purchasers, as the case may be,
against payment therefor as provided by this Agreement or the
Subscription Agreements, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(g) The authorized capital stock of the Company, including
the Common Stock, conforms as to legal matters to the description
thereof contained in the Prospectus.
(h) Neither the Company nor the Subsidiaries is in violation
of its respective charter, by-laws or partnership agreement or in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of the Company and the
Subsidiaries, taken as a whole, to which the Company or any of the
Subsidiaries is a party or by which it or any of the Subsidiaries or
their respective property is bound, including, but not limited to, the
NHL Lex Scripta.
(i) Except with respect to the consent which has been
obtained by the Company from the National Hockey League (the "NHL")
with respect to the Offerings, the execution, delivery and performance
of this Agreement and the Placement Agency Agreement and the
Subscription Agreements, compliance by the Company with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may
be required under the securities or Blue Sky laws of the various
states) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter, by-laws
or partnership agreement of the Company or any of the Subsidiaries,
the NHL Lex Scripta or any agreement, indenture or other instrument to
which the Company or any of the Subsidiaries is a party or by which it
or any of the Subsidiaries or their respective property is bound, or
violate or
-9-
10
conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Company, any of the Subsidiaries or their
respective property.
(j) Except as otherwise set forth in the Prospectus, there
are no material legal or governmental proceedings pending to which the
Company or any of the Subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated. No
contract or document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement is not so described or filed as
required.
(k) Neither the Company nor any of the Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in
any material adverse change in the business, prospects, financial
condition or results of operations of the Company and the
Subsidiaries, taken as a whole.
(l) The Company and each of the Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("PERMITS"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business; the Company and each of the Subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits
and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the holder of any such
permit; and, except as described in the Prospectus, such permits
contain no restrictions that are materially burdensome to the Company
or any of the Subsidiaries.
(m) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and the
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly
-10-
11
or in the aggregate, have a material adverse effect on the Company and
the Subsidiaries, taken as a whole.
(n) Except as otherwise set forth in the Prospectus or such
as are not material to the business, prospects, financial condition or
results of operations of the Company and the Subsidiaries, taken as a
whole, the Company and each of the Subsidiaries has good and
marketable title, free and clear of all liens, claims, encumbrances
and restrictions except liens for taxes not yet due and payable, to
all property and assets described in the Registration Statement as
being owned by it. Except as otherwise set forth in the Prospectus,
all leases to which the Company or any of the Subsidiaries is a party
are valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operations of
the Company and the Subsidiaries taken as a whole, and the Company and
the Subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the
Company or such Subsidiary.
(o) The Company and each of the Subsidiaries maintains
reasonably adequate insurance.
(p) Xxxxxx Xxxxxxxx LLP are independent public accountants
with respect to the Company as required by the Act.
(q) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes
in financial position of the Company and the Subsidiaries on the basis
stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(r) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
-11-
12
(s) Except as otherwise set forth in the Prospectus, no holder
of any security of the Company has any right to require registration
of shares of Common Stock or any other security of the Company.
(t) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(u) The Company has filed a registration statement pursuant
to Section 12(g) of the Exchange Act, to register the Class A Common
Stock, has filed an application to list the Shares on the Nasdaq
National Market, and has received notification that the listing has
been approved, subject to notice of issuance of the Shares.
(v) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in,
the Company or any of the Subsidiaries except as otherwise disclosed
in the Registration Statement.
(w) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(x) There is (i) no significant unfair labor practice
complaint pending against the Company or any of the Subsidiaries or,
to the best knowledge of the Company, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or more significant
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of the
Subsidiaries or, to the best knowledge of the Company, threatened
against any of them, and (ii) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of the
Subsidiaries or, to the best knowledge of the Company, threatened
against it or any of the Subsidiaries except for such actions
specified in clause (i) or (ii) above, which, singly or in the
aggregate could not reasonably be expected to have a material adverse
effect on the Company and the Subsidiaries, taken as a whole.
(y) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in
-12-
13
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(z) All material tax returns required to be filed by the
Company and each of the Subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of the
Subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(aa) The Concurrent Offering conforms, and will conform in
all material respects to the requirements of the Act and the Exchange
Act, and the rules and regulations of the Commission thereunder.
(ab) Each of the Subscription Agreements has been duly
authorized, executed and delivered by the Company and, when accepted
by the Company is a valid and binding agreement of the Company,
enforceable in accordance with its terms.
7. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments
caused by (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any claim, action,
suit or proceeding relating to or arising out of the Concurrent Offering, and
(iii) any claim, action, suit or proceeding relating to or arising out of any
allegation that any sale of Shares to any persons designated by the Company
violates any applicable law, rule, regulation or order; provided, however, that
the Company shall not be liable in the case of clause (i) insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriters furnished in writing to the Company by
or on behalf of any Underwriter through you specifically for use therein; and
provided further, that the foregoing indemnity agreement in clause (i) with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages,
liabilities and judgments purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of
-13-
14
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended and supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or judgment.
(b) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, and with respect to which indemnity
may be sought against the Company, such Underwriter shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such indemnified party and
payment of all reasonable fees and expenses. Any Underwriter or any such
controlling person shall have the right to employ separate counsel reasonably
satisfactory to the Company in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (i) the employment of such
counsel shall have been specifically authorized in writing by the Company, (ii)
the Company shall have failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties) include
both such Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised by such counsel
that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company (in which case
the Company shall not have the right to assume the defense of such action on
behalf of such Underwriter or such controlling person, it being understood,
however, that the Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all such Underwriters and controlling persons, which
firm shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and that all such fees and expenses shall be reimbursed as they are
incurred). The Company shall not be liable for any settlement of any such
action effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement. Notwithstanding the immediately
preceding sentence, if in any case where the fees and expenses of counsel are
at the expense of the indemnifying party and an indemnified party shall have
requested the indemnifying party to reimburse the indemnified party for such
fees and expenses of counsel as incurred, such indemnifying party agrees that
it shall be liable for any settlement of any action effected without its
written consent if (i) such settlement is entered into more than ten business
days after the receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall have failed to reimburse the indemnified
party in accordance with such request for reimbursement prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
-14-
15
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter but only
with reference to information relating to such Underwriter furnished in writing
by or on behalf of such Underwriter through you specifically for use in the
Registration Statement, the Prospectus or any preliminary prospectus. In case
any action shall be brought against the Company, any of its directors, any such
officer or any person controlling the Company based on the Registration
Statement, the Prospectus or any preliminary prospectus and in respect of which
indemnity may be sought against any Underwriter, the Underwriter shall have the
rights and duties given to the Company (except that if the Company shall have
assumed the defense thereof, such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officers and any person
controlling the Company shall have the rights and duties given to the
Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in the case of subsections (a)(i) or (c)
of this Section 7, (A) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Underwritten Shares or (B) if the
allocation provided by clause (A) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (A) above but also the relative fault of the Company and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations and (ii) in the case of subsections (a)(ii)
and (a)(iii) of this Section 7 the Company shall contribute the entire amount
by which such indemnification is unavailable, or insufficient, it being
understood that as between the Company and the Underwriters, the Company is the
sole beneficiary of the Concurrent Offering. The relative benefits received by
the Company and the Underwriters shall be deemed to be in the same proportion
as the total net proceeds from the Underwritten Offering (before deducting
expenses) received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Underwritten Shares, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
-15-
16
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective number of Underwritten Shares purchased by each of the Underwriters
hereunder and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have, including under
the Placement Agency Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Registration Statement shall have become effective
not later than 5:00 P.M. (and in the case of a Registration Statement
filed under Rule 462 (b) of the Act, not later than 10:00 p.m.), New
York City time, on the date of this Agreement or at such later date
and time as you may approve in writing, and at the Closing Date no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or, to the knowledge of the
Company or the Underwriters, be contemplated by the Commission.
(c)(i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have
been any material adverse change, or any development involving a
prospective material adverse change, in
-16-
17
the condition, financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary course of
business, of the Company, (ii) since the date of the latest balance
sheet included in the Registration Statement and the Prospectus there
shall not have been any change, or any development involving a
prospective material adverse change, in the capital stock or in the
long-term debt of the Company from that set forth in the Registration
Statement and Prospectus, (iii) the Company and the Subsidiaries
shall have no liability or obligation, direct or contingent, which is
material to the Company and the Subsidiaries, taken as a whole, other
than those reflected in the Registration Statement and the Prospectus
and (iv) on the Closing Date you shall have received a certificate
dated the Closing Date, signed by the principal executive officer and
the principal financial officer of the Company, confirming the
matters set forth in paragraphs (a), (b), and (c) of this Section 8.
(d) You shall have received on the Closing Date an opinion
(reasonably satisfactory to you and counsel for the Underwriters),
dated the Closing Date, of Akerman, Senterfitt & Xxxxxx, P.A., counsel
for the Company, to the effect that:
(i) the Company and each of the Subsidiaries has
been duly incorporated or organized, is validly existing as a
corporation or limited partnership, as the case may be, in
good standing under the laws of its jurisdiction of
incorporation or organization and has the corporate or
partnership power and authority required to carry on its
business as it is currently being conducted and to own, lease
and operate its properties;
(ii) the Company and each of the Subsidiaries is
duly qualified and is in good standing as a foreign
corporation or partnership authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the Company and the Subsidiaries,
taken as a whole;
(iii) all of the outstanding shares of capital stock
of, or other ownership interests in, each of the Subsidiaries
have been duly and validly authorized and issued and are fully
paid and non-assessable, and are owned by the Company, free
and clear of any security interest or, to the best of such
counsel's knowledge, after due inquiry, any other, claim,
lien, encumbrance or adverse interest of any nature;
-17-
18
(iv) all the outstanding shares of the Common Stock
have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or
similar rights;
(v) the Shares have been duly authorized, and when
issued and delivered to the Underwriters or the Purchasers, as
the case may be, against payment therefor as provided by this
Agreement or the Subscription Agreements, will have been
validly issued and will be fully paid and non-assessable, and
the issuance of such Shares is not subject to any preemptive
or similar rights;
(vi) Each of this Agreement, the Placement Agency
Agreement and the Subscription Agreements has been duly
authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company enforceable in
accordance with its terms subject to applicable bankruptcy,
insolvency, and similar laws affecting creditors rights
generally and subject to general principals of equity;
(vii) the authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters to
the description thereof contained in the Prospectus;
(viii) the Registration Statement has become
effective under the Act, no stop order suspending its
effectiveness has been issued and no proceedings for that
purpose are, to the knowledge of such counsel, pending before
or contemplated by the Commission;
(ix) the statements under the captions "The
Prospectus Summary", "Risk Factors-Hockey Operations" and
"-Real Estate Development and Arena Operations", "The National
Hockey League", "Hockey Operations", "Real Estate Development
and Arena Operations", "Management-Stock Option Plans,"
"-Employment Agreements" and "-other Employment Agreements",
"Certain Transactions", "Description of Capital Stock" and
"Underwriting" in the Prospectus and Items 14 and 15 of Part
II of the Registration Statement insofar as such statements
constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings;
(x) neither the Company nor any of the Subsidiaries
is in violation of its respective charter, by-laws or
partnership
-18-
19
agreements and, to the best of such counsel's knowledge after
due inquiry, neither the Company nor any of the Subsidiaries
is in default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any other agreement,
indenture or instrument material to the conduct of the
business of the Company and the Subsidiaries, taken as a
whole, to which the Company or any of the Subsidiaries is a
party or by which it or any of the Subsidiaries or their
respective property is bound, including, but not limited to,
the NHL Lex Scripta;
(xi) except with respect to the consent which has
been obtained by the Company from the NHL with respect to the
Offerings, the execution, delivery and performance of this
Agreement, the Placement Agency Agreement and the Subscription
Agreements by the Company, compliance by the Company with all
the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require
any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other
governmental body (except as such may be required under the
Act or other securities or Blue Sky laws) and will not
conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter, by-laws or
partnership agreement of the Company or any of the
Subsidiaries, the NHL Lex Scripta or any agreement, indenture
or other instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries or their respective properties are bound, or
violate or conflict with any laws, administrative regulations
or rulings or court decrees applicable to the Company or any
of the Subsidiaries or their respective properties;
(xii) after due inquiry, such counsel does not know
of any legal or governmental proceeding pending or threatened
to which the Company or any of the Subsidiaries is a party or
to which any of their respective property is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or
other document which is required to be described in the
Registration Statement or the Prospectus or is required to be
filed as an exhibit to the Registration Statement which is not
described or filed as required;
-19-
20
(xiii) to the best of such counsel's knowledge,
after due inquiry, neither the Company nor any of the
Subsidiaries has violated any Environmental Laws, nor any
federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or
state wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any
material adverse change in the business, prospects, financial
condition or results of operations of the Company and the
Subsidiaries, taken as a whole;
(xiv) to the best of such counsel's knowledge after
due inquiry, the Company and each of the Subsidiaries has such
permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("PERMITS"), including,
without limitation, under any applicable Environmental Laws,
as are necessary to own, lease and operate its respective
properties and to conduct its business in the manner described
in the Prospectus; to the best of such counsel's knowledge,
after due inquiry, the Company and each of the Subsidiaries
has fulfilled and performed all of its material obligations
with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit, subject in each case to such qualification as may be
set forth in the Prospectus; and, except as described in the
Prospectus, such permits contain no restrictions that are
materially burdensome to the Company and the Subsidiaries,
taken as a whole;
(xv) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(xvi) to the best of such counsel's knowledge, after
due inquiry, except as otherwise set forth in the Prospectus
no holder of any security of the Company has any right to
require registration of shares of Common Stock or any other
security of the Company;
(xvii) to the best of such counsel's knowledge,
after due inquiry, except as otherwise set forth in the
Prospectus all leases to which the Company or any of its
subsidiaries is a party are valid and binding and no default
has occurred or is continuing thereunder, which might result
in any material adverse change in
-20-
21
the business, prospects, financial condition or results of
operations of the Company and its subsidiaries taken as a
whole, and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such
subsidiary; and
(xviii) The Concurrent Offering conforms, in all
material respects, to the requirements of the Act and the
Exchange Act;
(xix) The reorganization of the Company as described
in the Prospectuses under "Reorganization" and "Certain
Transactions" will qualify under Section 351 of the Internal
Revenue Code of 1986, as amended, and no gain or loss will be
recognized by the Company on the transfer of (i) the
outstanding capital stock of Decoma I and Decoma II to the
Partnership (ii) the partnership interests of Florida Panthers
Hockey Club, Ltd. to the Company or (iii) the limited
partnership interests in Arena Development and Arena Operator
and the outstanding capital stock of Arena Development
Company, Inc. and Arena Operator Company Inc. to the Company
in exchange for partnership interests and shares of Common
Stock; and
(xx) (1) the Registration Statement (including any
Registration Statement filed under 462 (b) of the Act, if any)
and the Prospectus and any supplement or amendment thereto
(except for financial statements as to which no opinion need
be expressed) comply as to form in all material respects with
the Act, and (2) such counsel has no reason to believe that
(except for financial statements, as aforesaid) the
Registration Statement and the prospectus included therein at
the time the Registration Statement became effective contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the
Prospectus, as amended or supplemented, if applicable (except
for financial statements, as aforesaid) contained any untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
In giving such opinion, such counsel may rely, as to the matters of
fact, on certificates of officers of the Company and public officials.
-21-
22
In giving such opinions with respect to the matters covered by clause
(xx) such counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification except as
specified.
The opinion of Akerman, Senterfitt & Xxxxxx, P.A. described in
paragraph (d) above shall be rendered to you at the request of the Company and
shall so state therein.
(e) You shall have received on the Closing Date an opinion,
dated the Closing Date, of XxXxxxxxx, Will & Xxxxx, counsel for the
Underwriters, as to the matters referred to in clauses (v), (vi),
(viii), (ix) (but only with respect to the statements under the
caption "Description of Capital Stock" and "Underwriting") and (xx) of
the foregoing paragraph (d). In giving such opinion with respect to
the matters covered by clause (xx) such counsel may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification
except as specified.
(f) You shall have received a letter on and as of the Closing
Date, in form and substance satisfactory to you, from Xxxxxx Xxxxxxxx
LLP, independent public accountants, with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus and substantially in the
form and substance of the letter delivered to you by Xxxxxx Xxxxxxxx
LLP on the date of this Agreement.
(g) The Company shall have delivered to you the agreements
specified in Section 2 hereof.
(h) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
(i) The Company shall have satisfied all of the conditions
with respect to the sale of the Concurrent Shares pursuant to the
Placement Agency Agreement and the Subscription Agreements and the
Company shall have complied with all obligations under the Placement
Agency Agreement and the Subscription Agreements.
(j) Prior to the Closing Date, the Recapitalization, as set
forth in the Prospectus, shall have been consummated to your
reasonable satisfaction.
-22-
23
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of
the Company, the due authorization and issuance of such Additional Shares and
other matters related to the issuance of such Additional Shares.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii) when
notification of the effectiveness of the Registration Statement has been
telephonically released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company and the Subsidiaries, taken as a whole,
or the earnings, affairs, or business prospects of the Company or any of the
Subsidiaries, taken as a whole, whether or not arising in the ordinary course
of business, which would, in your judgment, make it impracticable to market the
Underwritten Shares on the terms and in the manner contemplated in the
Prospectus, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and would, in your judgment, make it impracticable to
market the Underwritten Shares on the terms and in the manner contemplated in
the Prospectus, (iii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market System or limitation on prices for securities on any
such exchange or National Market System, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business or operations of the Company or any subsidiary, (v) the declaration of
a banking moratorium by either federal or New York State authorities or (vi)
the taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date or on the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Underwritten
Shares to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the number of
Firm Shares set forth opposite its name in Schedule I bears to the total number
of Firm Shares which all the non-defaulting Underwriters, as the case may be,
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm
-23-
24
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on the Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares, or Additional Shares, as the case may be, and the aggregate number
of Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of
Underwritten Shares to be purchased on such date by all Underwriters and
arrangements satisfactory to you and the Company for purchase of such
Underwritten Shares are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter and the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date or the Option Closing Date, as the case may be,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and the Prospectus or any other documents
or arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default
of any such Underwriter under this Agreement.
10. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Florida
Panthers Holdings, Inc., 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000; and (b) if to any Underwriter or to you, to you c/x
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors and
of the several Underwriters set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
by or on behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Underwritten Shares
and payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by them.
-24-
25
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
* * *
-25-
26
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
FLORIDA PANTHERS HOLDINGS, INC.
By:
----------------------------------
Title:
-------------------------------
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
----------------------------
Title:
-------------------------
-26-
27
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ -----------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxx Xxxxx & Associates, Inc.
---------
Total 2,700,000
=========
