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6,780,165 SHARES
FLORIDA PANTHERS HOLDINGS, INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
August __, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXX & COMPANY INCORPORATED
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 to the several underwriters named in Schedule I
hereto (the "UNDERWRITERS"), and certain stockholders of the Company named in
Schedule II hereto (the "SELLING STOCKHOLDERS") severally propose to sell to the
several Underwriters, an aggregate of 6,780,165 shares of Class A Common Stock,
par value $.01 per share (the "FIRM SHARES"), of which 6,000,000 shares are to
be issued and sold by the Company and 780,165 are to be sold by the Selling
Stockholders, each Selling Stockholder selling the amount set forth opposite
such Selling Stockholder's name in Schedule II hereto. The Company also proposes
to issue and sell to the several Underwriters not more than 900,000 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 "OFFERING." The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"SHARES." The Company and the Selling Stockholders are hereinafter sometimes
referred to as the "SELLERS."
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
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Commission thereunder (collectively, the "ACT"), a registration statement on
Form S-1 including a prospectus relating to the Shares. The registration
statement as amended at the time it became effective, including the information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is hereinafter referred to as
the "REGISTRATION STATEMENT"; and the prospectus in the form first used to
confirm sales of the Shares is hereinafter referred as the "PROSPECTUS." If the
Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Act registering
additional shares of Common Stock (a "Rule 462(b) Registration Statement"),
then, unless otherwise specified, any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462(b) Registration Statement.
2. AGREEMENTS TO SELL AND PURCHASE AND LOCK-UP AGREEMENTS. On the basis
of the representations and warranties contained in this Agreement, and subject
to its terms and conditions, (i) the Company agrees to issue and sell 6,000,000
Firm Shares, (ii) each Selling Stockholder agrees, severally and not jointly, to
sell the number of Firm Shares set forth opposite such Selling Stockholder's
name in Schedule II hereto, and (iii) each Underwriter agrees, severally and not
jointly, to purchase from each Seller at a price per Share of $___ (the
"PURCHASE PRICE") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Firm Shares to be sold by such Seller as set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total
number of Firm Shares.
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 900,000 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, which date shall be
a business day (i) no earlier than two business days after such notice has been
given (and, in any event, no earlier than the Closing Date (as hereinafter
defined)), and (ii) no later than ten 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.
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The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, 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 (ii) enter into any swap or other
arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any shares of the Common Stock (regardless of
whether any of the transactions described in clause (i) or (ii) is to be settled
by the delivery of Common Stock or such other securities, in cash or otherwise),
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 issue shares of Common Stock in connection with
acquisitions; (ii) the Company may grant stock options pursuant to Company stock
option plans; (iii) 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 (iv) shares of the Common Stock may be pledged as security
for obligations of the holders thereof. Except with respect to shares of Common
Stock which may be issued in acquisitions and registered under the Act in
connection therewith and shares of Common Stock underlying currently outstanding
stock options, the Company also agrees not to file any registration statement
with respect to any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock for a period of 180 days after the
date of the Prospectus without the prior written consent of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation. The Company shall, prior to or concurrently
with the execution of this Agreement, deliver an agreement executed by (i) each
of the directors and officers of the Company and (ii) each stockholder listed on
Annex I hereto to the effect that such person will not, during the period
commencing on the date such person signs such agreement and ending 90 days after
the date of the Prospectus, without the prior written consent of Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, (A) engage in any of the transactions
described in the first sentence of this paragraph or (B) make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock.
3. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as soon after the execution and delivery of this Agreement as in
your judgment is advisable and (ii) initially to offer the 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 9:00 A.M., New York City time, on
____________, 1997 (the "CLOSING DATE"), at such place as you shall designate.
The Closing Date and the location of delivery of and payment for the Firm Shares
may be varied by agreement between you and the Company.
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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 9:00 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"). The Option Closing Date and the location of delivery of and
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 prior to 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 respective Sellers, for the respective accounts of the
several Underwriters, against payment to the Sellers of the Purchase Price
therefor, by wire transfer of Federal or other funds immediately available in
New York City.
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 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, (iv) if the Company is required to file a
Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become
effective, and (iv) of the happening of any event during the period
referred to in Section 5(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.
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(c) To furnish to you, without charge, four 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) To prepare the Prospectus in a form approved by you and to
file the Prospectus in such form with the Commission within the
applicable period specified in Rule 424(b) under the Act; not to file
any further amendment to the Registration Statement and not to make any
amendment or supplement to the Prospectus of which you shall not
previously have been advised or to which you shall reasonably object
after being so advised; and to prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the
Registration Statement or amendment or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution
of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(e) Prior to 10:00 A.M., New York City time, on the first
business day after the date of this Agreement, 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 in New
York City to each Underwriter and any 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 Section 5(e) any event
shall occur or a condition shall exist 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, in the reasonable
opinion of counsel for the Underwriters, it is necessary to amend or
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 any dealers as many
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 in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and
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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;
PROVIDED, HOWEVER, that the Company shall not be required in connection
therewith to register or qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action
that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the
Prospectus, the Registration Statement, any preliminary prospectus or
the offering or sale of the Shares, in any jurisdiction in which it is
not now so subject.
(h) To mail and make generally available to its stockholders
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 stockholders' 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
communications 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) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay all
costs, expenses, fees and taxes incident to the performance of Sellers'
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel, the Company's
accountants and any Selling Stockholder's counsel (in addition to the
Company's counsel) in connection with the registration and delivery of
the Shares under the Act and all other fees or
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expenses in connection with the preparation, printing, filing and
distribution under the Act of the Registration Statement (including
financial statements and exhibits), of each preliminary prospectus (the
"PROSPECTUS") and all amendments and supplements to any of the
foregoing prior to or during the period specified in Section 5(e) to
the Underwriters and dealers, including the mailing and delivering of
copies thereof to the Underwriters and dealers in the quantities
specified herein, all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (ii) all costs and expenses related the
printing and delivery of the Prospectus and all amendments or
supplements to it during the period specified in Section 5(e) to the
Underwriters and dealers, (iii) the printing and delivery of this
Agreement, 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 relating to such printing and delivery), (iv) all expenses
in connection with the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the several
states and all costs of printing or producing any Preliminary and
Supplemental Blue Sky Memoranda in connection therewith, if any,
(including in each case the filing fees and the fees and disbursements
of counsel for the Underwriters relating to such registration or
qualification and memoranda relating thereto), if required, (v) the
filing fees and disbursement of counsel in connection with the review
and clearance with the National Association of Securities Dealers, Inc.
in connection with the Offering, (vi) the listing of the Shares on the
New York Stock Exchange, Inc. ("NYSE"), (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, (vii) the cost of printing certificates
representing the Shares, (viii) the costs and charges of any transfer
agent, registrar and/or depositary, and (ix) all other costs and
expenses incident to the performance of the obligations of the Company
and the Selling Stockholders hereunder which are not otherwise
specifically provided for in this Section.
(l) To use its best efforts to list, subject to notice of
issuance, the Shares on the NYSE and to maintain the inclusion of the
Class A Common Stock on the NYSE for a period of five years after the
effective date of the Registration Statement.
(m) If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Shares, to
file a Rule 462(b) Registration Statement with the Commission
registering the Shares not so covered in compliance with Rule 462(b) by
10:00 P.M., New York City time, on the date of this Agreement and to
pay to the Commission the filing fee for such Rule
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462(b) Registration Statement at the time of the filing thereof or to
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act.
(n) 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.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; (other
than any Rule 462(b) Registration Statement to be filed by the Company
after the effectiveness of this Agreement); any Rule 462(b)
Registration Statement filed after the effectiveness of this Agreement
will become effective no later than 10:00 P.M., New York City time, on
the date of this Agreement; and 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 the
Company's knowledge, threatened by the Commission.
(b) (i) Each document filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") complied when so filed in all material respects with
the Exchange Act, (ii) the Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement), when it became effective, did not
contain and, as amended, 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, (iii) the Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act, (iv) if the Company is required to file a Rule
462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments
thereto, when they become effective (A) 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, and (B) will comply in all material respects with the Act,
and (v) 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
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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.
(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 with the exception of certain shares and ownership
interests which have been pledged to the Chase Manhattan Bank and
certain ownership interests which are subject to rights of the NHL to
the proceeds from any sale of Florida Panthers Hockey Club Ltd. under
the NHL Constitution and Bylaws, 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
(including the Shares to be sold by the Selling Stockholders) 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, against payment therefor as provided by this Agreement,
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.
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(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) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require
any consent, approval, authorization or other order of the National
Hockey League (the "NHL") or 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 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
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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 and such
permits are valid and in full force and effect; 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 connection with the acquisitions of the Boca Resort,
Pier 66, Bahia Mar, Incredible Ice and Gold Coast and the development
of the Broward County Civic Arena, the Company has conducted a 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 identified and evaluated 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
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
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exceptions as do not materially interfere with the use made by the
Company or such Subsidiary.
(o) This Agreement has been duly authorized, executed and
delivered by the Company.
(p) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor any
of its Subsidiaries (i) has received notice from any insurer or agent
of such insurer that substantial capital improvements or other material
expenditures will have to be made in order to continue such insurance
or (ii) has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers at a cost that would not
have a material adverse effect on the business, prospects, financial
conditions or results of operations of the Company and its
Subsidiaries, taken as a whole.
(q) Xxxxxx Xxxxxxxx LLP are independent public accountants
with respect to the Company as required by the Act.
(r) The financial statements, together with related schedules
and notes forming part of the Re istration 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)
are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company.
(s) The PRO FORMA financial statements of the Company and its
Subsidiaries and the related notes thereto set forth in the
Registration Statement and the Prospectus (and any supplement or
amendment thereto) have been prepared on a basis consistent with the
historical financial statements of the Company and its Subsidiaries,
give effect to the assumptions used in the preparation thereof on a
reasonable basis and in good faith and present fairly the historical
and proposed transactions contemplated by the Registration Statement
and the Prospectus. Such PRO FORMA financial statements have been
prepared in accordance with the applicable requirements of Rule 11-02
of
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Regulation S-X promulgated by the Commission. The other PRO FORMA
financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any supplement or
amendment thereto) are, in all material respects, accurately presented
and prepared on a basis consistent with the PRO FORMA financial
statements.
(t) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be, an "INVESTMENT
COMPANY" as such term is defined in the Investment Company Act of 1940,
as amended.
(u) 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 under the
Act, which registration has not been effected.
(v) The Company has registered the Class A Common Stock
pursuant to Section 12(b) of the Exchange Act and has filed an
application to list the Shares on the NYSE, and has received
notification that the listing has been approved, subject to notice of
issuance of the Shares.
(w) 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.
(x) 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.
(y) 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.
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(z) 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 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.
(aa) 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.
(ab) The Company and its Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the
business of the Company and its Subsidiaries, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by
the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its Subsidiaries, in
each case except as described in the Prospectus.
(ac) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material
adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
Subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the
Company or any of its Subsidiaries and (iii) neither the Company nor
any of its Subsidiaries has incurred any material liability or
obligation, direct or contingent.
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7. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder represents and warrants, severally and not jointly, to each
Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares
to be sold by such Selling Stockholder pursuant to this Agreement and
has, and on the Closing Date will have, good and clear title to such
Shares, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have
been duly authorized and are validly issued, fully paid and
non-assessable.
(c) Such Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority, and all authorization and
approval required by law, to enter into this Agreement, the Custody
Agreement, as appropriate, signed by such Selling Stockholder and The
First National Bank of Boston, as Custodian, relating to the deposit of
the Shares to be sold by such Selling Stockholder (the "CUSTODY
AGREEMENT") and the Power of Attorney of such Selling Stockholder
appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein,
relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement, as appropriate (the
"POWER OF ATTORNEY") and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder in the manner provided
herein and therein.
(d) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement, as appropriate, of such Selling
Stockholder has been duly authorized, executed and delivered by such
Selling Stockholder and is a valid and binding agreement of such
Selling Stockholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding instrument of such Selling Stockholder,
enforceable in accordance with its terms, and, pursuant to such Power
of Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and deliver on
such Selling Stockholder's behalf this Agreement and any other document
that they, or any one of them, may deem necessary or desirable in
connection with transactions contemplated hereby and thereby and to
deliver the Shares to be sold by such Selling Stockholder pursuant to
this Agreement.
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(g) Upon delivery of and payment for the Shares to be sold by
such Selling Stockholder pursuant to this Agreement, good and clear
title to such Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement
and the Custody Agreement, as appropriate, and Power of Attorney of
such Selling Stockholder by or on behalf of such Selling Stockholder,
compliance by such Selling Stockholder 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, or qualification with, any court or
governmental body or agency (except such as 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 organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual, or any
indenture, loan agreement, mortgage, lease or other agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder or any property of such Selling Stockholder is
bound, or violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Stockholder or any
property of such Selling Stockholder.
(i) The information in the Registration Statement under the
caption "Selling Stockholders" which specifically relates to such
Selling Stockholder does not, and will not on the Closing Date, contain
any untrue statement of a material fact or omit to state any 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.
(j) At any time during the period described in Section 5(d),
if there is any change in the information referred to in Section 7(i),
such Selling Stockholder will immediately notify you of such change.
8. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors, its officers 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 (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be
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stated therein or necessary to make the statements therein not misleading, and
(ii) 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 Underwriter 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 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. The Selling Stockholders, severally and not
jointly, agree to indemnify and hold harmless each Underwriter, its directors,
its officers 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
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement 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; PROVIDED, HOWEVER, that the Selling
Stockholders shall not be liable 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
Underwriter furnished in writing to the Selling Stockholder by or on behalf of
any Underwriter through you specifically for use therein; and PROVIDED FURTHER,
that the foregoing indemnity agreement 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
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.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to this Section 8(a) shall be limited to an amount equal to
the total proceeds (before deducting expenses) received by such Selling
Stockholder from the Underwriters for the sale of the Shares sold by such
Selling Stockholder hereunder.
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(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each Selling Stockholder and each person, if any, who controls such Selling
Stockholder 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 Sellers to
such Underwriter but only with reference to information relating to such
Underwriter furnished in writing to the Company by or on behalf of such
Underwriter through you specifically for use in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Underwriter shall not be
required to assume the defense of such action pursuant to this Section 8(c), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of such Underwriter). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party 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
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
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 (i) the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all Underwriters, their officers and
directors and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, (ii)
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and all persons, if any, who control the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such fees and
expenses shall be
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reimbursed as they are incurred. In the case of any such separate firm for the
Underwriters, their officers and directors and such control persons of any
Underwriters, such firm shall be designated in writing by Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation. In the case of any such separate firm for the
Company and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Stockholders and such control persons of any
Selling Stockholders, such firm shall be designated in writing by the Attorneys.
The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written consent
or (ii) effected without its written consent if the settlement is entered into
more than twenty business days after the indemnifying party shall have received
a request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient 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 such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 8(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Sellers on the one hand and the Underwriters on the other
hand 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. The relative benefits received by the Sellers on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the Offering (before deducting
expenses) received by the Sellers, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Sellers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a
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material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand or the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Sellers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8(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 matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the 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 8(d) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) Each Selling Stockholder hereby designates the Company at
the address set forth in Section 12 hereof, as its authorized agent, upon which
process may be served in any action which may be instituted in any state or
federal court in the State of New York by any Underwriter, any director or
officer of any Underwriter or any person controlling any Underwriter asserting a
claim for indemnification or contribution under or pursuant to this Section 8,
and each Selling Stockholder will accept the jurisdiction of such court in such
action, and waives, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue. A copy of any such
process shall be sent or given to such Selling Stockholder, at the address for
notices specified in Section 12 hereof.
9. 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:
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(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) If the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such
Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., New York City time, on the date of this Agreement or such later
date as you may approve in writing; and 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 contemplated by the Commission.
(c) 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.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the President and the Chief Financial
Officer of the Company, confirming the matters set forth in Sections
8(a), 8(b), 8(c) and 8(e).
(e)(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 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 and (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.
(f) All the representations and warranties of the Selling
Stockholders 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 and you
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shall have received a certificate to such effect, dated the Closing
Date, from each Selling Stockholder.
(g) 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 and the Selling Stockholders, 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, with the exception of certain
shares and ownership interests which have been pledged to the
Chase Manhattan Bank and certain ownership interests which are
subject to rights of the NHL to the proceeds from any sale of
Florida Panthers Hockey Club, Ltd. under the NHL Constitution
and Bylaws, are owned by the Company, free and clear of any
security interest or, to the best of such counsel's knowledge,
any other claim, lien, encumbrance or adverse interest of any
nature;
(iv) all the outstanding shares of the Common Stock
(including the Shares to be sold by the Selling Stockholders)
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 against payment
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therefor as provided by this Agreement 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) this Agreement 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 principles of equity;
(vii) this Agreement has been duly authorized,
executed and delivered by each Selling Stockholder and is a
valid and binding agreement of each such Selling Stockholder
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;
(viii) the authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters to
the description thereof contained in the Prospectus;
(ix) 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;
(x) the statements under the captions "Business-
Litigation" and "Description of Capital Stock" 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;
(xi) neither the Company nor any of the Subsidiaries
is in violation of its respective charter, by-laws or
partnership 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
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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;
(xii) the execution, delivery and performance of this
Agreement 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 the NHL
or 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;
(xiii) 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;
(xiv) 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;
(xv) to the best of such counsel's knowledge, 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
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Common Stock or any other security of the Company under the
Act, which registration has not been effected;
(xvi) to the best of such counsel's knowledge, after
due inquiry, except as otherwise set forth in the Prospectus
all material leases to which the Company or any of its
Subsidiaries is a party and which are described in the
Prospectus or filed as exhibits to the Registration Statement
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 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;
(xvii) (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) nothing has come to the attention of such
counsel, which leads it 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; and
(xviii) each document filed by the Company with the
Commission pursuant to the Exchange Act (except for financial
statements and other financial data included therein as to
which no opinion need be expressed) complied when so filed as
to form with the Exchange Act.
(xix) each Selling Stockholder is the lawful owner
of the Shares to be sold by such Selling Stockholder
pursuant to this
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Agreement and has good and clear title to such Shares, free of
all restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever;
(xx) each Selling Stockholder has full legal right,
power and authority, and all authorization and approval
required by law, to enter into this Agreement and the Custody
Agreement, as appropriate, and the Power of Attorney of such
Selling Stockholder and to sell, assign, transfer and deliver
the Shares to be sold by such Selling Stockholder in the
manner provided herein and therein;
(xxi) the Custody Agreement, as appropriate, of each
Selling Stockholder has been duly authorized, executed and
delivered by such Selling Stockholder and is a valid and
binding agreement of such Selling Stockholder, enforceable in
accordance with its terms;
(xxii) the Power of Attorney of each Selling
Stockholder has been duly authorized, executed and delivered
by such Selling Stockholder and is a valid and binding
instrument of such Selling Stockholder, enforceable in
accordance with its terms, and, pursuant to such Power of
Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Stockholder's behalf this Agreement
and any other document they, or any one of them, may deem
necessary or desirable in connection with transactions
contemplated hereby and thereby and to deliver the Shares to
be sold by such Selling Stockholder pursuant to this
Agreement;
(xxiii) upon delivery of and payment for the Shares
to be sold by each Selling Stockholder pursuant to this
Agreement, good and clear title to such Shares will pass to
the Underwriters, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims
whatsoever; and
(xxiv) the execution, delivery and performance of
this Agreement and the Custody Agreement, as appropriate, and
Power of Attorney of each Selling Stockholder by such Selling
Stockholder and the compliance by such Selling Stockholder
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, or
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qualification with, any court or governmental body or agency
(except such as 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 organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual,
or any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which such Selling Stockholder is a
party or by which any property of such Selling Stockholder is
bound, or violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or
any governmental body or agency having jurisdiction over such
Selling Stockholder or any property of such Selling
Stockholder.
In giving such opinions, such counsel may rely, as to the matters of
fact, on certificates of officers of the Company and public officials.
In giving such opinions with respect to the matters covered by clause
(xvii)(2)) 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
the Selling Stockholders and shall so state therein.
(h) 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 (xvii) of the
foregoing paragraph (d). In giving such opinion with respect to the
matters covered by clause (xvii) 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.
(i) 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.
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(j) The Company shall have delivered to you the agreements
specified in Section 2 hereof.
(k) The Shares shall have been duly listed, subject to notice
of issuance, on the NYSE.
(l) The Company and the Selling Stockholders 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 or the Selling Stockholders at or prior to
the Closing Date.
(m) You shall have received on the Closing Date, a certificate
of each Selling Stockholder who is not a U.S. Person (as defined under
applicable U.S. federal tax legislation) to the effect that such
Selling Stockholder is not a U.S. Person, which certificate may be in
the form of a properly completed and executed United States Treasury
Department Form W-8 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
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.
10. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
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
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 Shares
on the terms and in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities or other instruments
on the NYSE, the American Stock Exchange, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or limitation on prices for securities or other instruments on
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any such exchange or the Nasdaq National Market, (iv) the suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market, (v) 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, prospects, financial
condition or results of operations of the Company and its Subsidiaries, taken as
a whole, (vi) the declaration of a banking moratorium by either federal or New
York State authorities or (vii) 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 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 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 10
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, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you,
the Company and the Selling Stockholders for purchase of such Firm Shares are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders. In any such case which does not result in termination
of this Agreement, either you or the Sellers shall have the right to postpone
the Closing Date 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. If, on the Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase on such date in the
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absence of such default. 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.
11. AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling Stockholder
agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable
in connection with the transfer of the Shares to be sold by such
Selling Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by
such Selling Stockholder under this Agreement prior to the Closing Date
and to satisfy all conditions precedent to the delivery of the Shares
to be sold by such Selling Stockholder pursuant to this Agreement.
12. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company or the Selling
Stockholders, to Florida Panthers Holdings, Inc., 000 Xxxxxxxxx Xxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000; and (ii) if to any Underwriter or
to you, to you c/x Xxxxxxxxx, Xxxxxx & 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, the Selling Stockholders and 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 any Underwriter, any person
controlling any Underwriter, the Company, any Selling Stockholder or any person
controlling such Selling Stockholder, the officers or directors of the Company
or any person controlling the Company, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(k) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including,
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without limitation, the fees disbursements of counsel) incurred by them in
connection with enforcing their rights hereunder (including, without limitation,
pursuant to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement 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.
* * *
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
FLORIDA PANTHERS HOLDINGS, INC.
By:
----------------------------------------------
Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Chief Financial
Officer
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE II HERETO, ACTING
SEVERALLY
By:
----------------------------------------------
Attorney-in-fact
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXX & COMPANY INCORPORATED
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:
---------------------------------
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SCHEDULE I
Number of Firm Shares
Underwriters To Be Purchased
------------ ---------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxx & Company Incorporated
Xxxxxxx Xxxxx & Associates, Inc. ---------
Total 6,780,135
=========
34
SCHEDULE II
SELLING STOCKHOLDERS
Number of Firm
Name Shares Being Sold
------ ----------------------
-------
Total 780,135
=======
