SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) March 4, 1997
SIXTY SIX ASSOCIATES A LIMITED PARTNERSHIP
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-17678 04-2973618
(Commission File Number) (I.R.S. Employer Identification No.)
One International Place, Boston, Massachusetts 02110
(Address of Principal Executive Offices) (Zip Code)
(617) 330-8600
(Registrant's Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Item 5. Material Event
On March 4, 1997, First Winthrop Corporation (First
Winthrop) and Sixty-Six, Inc. (Sixty-Six), a wholly-owned
subsidiary of Sixty Six Associates Limited Partnership (the
Registrant), entered into an agreement with Florida Panthers
Holdings, Inc. (Panthers) pursuant to which Sixty-Six and First
Winthrop exchanged their interest as limited partners in 2301 SE
17th St., Ltd. ("2301 Ltd.") for shares of Class A Common Stock of
Panthers. The partnership interest in 2301 Ltd. was Sixty-Six's
only asset.
Also on March 4, 1997, pursuant to a separate agreement which
had been entered into in December 1996, the other partners of 2301
Ltd. transferred their respective interests in 2301 Ltd. to
Panthers in exchange for shares of Class A Common Stock of
Panthers. Panthers is a public corporation the stock of which is
quoted on the NASDAQ National Market under the Symbol "PUCK".
In exchange for its partnership interest in 2301 Ltd., Sixty-
Six was issued 486,383 unregistered shares of the Class A Common
Stock of Panthers, par value $.01 per share (the Shares). In
addition, Sixty-Six received a cash distribution from the
liquidation of 2301 Ltd. in the amount of $784,619. The partners
of 2301 Ltd. (including Sixty-Six) agreed, however, to indemnify
Panthers for any damages caused as result of a breach of any
representation and warranty given by the partners of 2301 Ltd. As
a result, 48,638 of the Shares are being held in escrow by Panthers
for a period of up to one-year as security for such indemnification
rights. Promptly after the consummation of this transaction, the
Registrant caused Sixty-Six to be dissolved and all of the assets
of Sixty-Six, including the Shares, were distributed to the
Registrant. In addition, the Registrant acquired all of the rights
and obligations of Sixty-Six with respect to the Shares.
The Shares were issued pursuant to a registration exemption
from the Securities Act of 1933. Accordingly, unless the Shares
are subsequently registered, Sixty-Six is prohibited from
transferring the Shares until such time as it has an exemption from
registration. It is anticipated that the Shares will be registered
by Panthers during the first half of 1997. Accordingly, during the
first half of 1997 the general partner of the Registrant intends to
(i) terminate the Registrant, (ii) liquidate the Shares and (iii)
cause all net proceeds from the sale of the Shares, as well as cash
reserves, to be used to pay off all Registrant obligations
(including, without limitation, loans made to the Registrant by the
general partner or its affiliates, together with interest there on,
and accrued asset management fees payable to the general partner or
its affiliates for periods of time prior to the 1993 bankruptcy as
required by the terms of the Registrant's partnership agreement),
with the balance to be distributed pursuant to the terms of the
Registrant's partnership agreement.
As a condition to the transaction, each of the partners of
2301 Ltd. exchanged mutual releases with respect to any claims they
may have against each other with respect to 2301 Ltd., except for
claims arising out of the transfer of their interests to Panthers.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits
10 Class B Exchange Agreement, dated as of March 4,
1997, by and between Florida Panthers Holdings,
Inc., First Winthrop Corporation and Sixty-Six
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized this 3rd day
of October, 1996.
SIXTY-SIX ASSOCIATES LIMITED PARTNERSHIP
By: THREE WINTHROP PROPERTIES, INC.,
Its General Partner
By: /s/ Michael L. Ashner
Michael L. Ashner
Chief Executive Officer
EXHIBIT INDEX
Exhibit Page
10 Class B Exchange Agreement, dated as of March 6
4, 1997, by and between Florida Panthers Holdings,
Inc., First Winthrop Corporation and Sixty-Six
CLASS B EXCHANGE AGREEMENT
This Class B Exchange Agreement (this "Class B Exchange
Agreement") is entered into as of March ___, 1997 by and between
Florida Panthers Holdings, Inc., a Florida corporation
(Panthers), First Winthrop Corporation, a Delaware corporation
(as successor in interest to BTB Leasing Co., Inc., a Delaware
corporation) ("Winthrop") and Sixty-Six, Inc., a Delaware
corporation ("Sixty-Six"). Winthrop and Sixty-Six are sometimes
hereinafter referred to collectively as the "Class B Limited
Partners" and individually as a "Class B Limited Partner".
RECITALS
A. Winthrop and Sixty-Six are the record and beneficial
holders of Class B limited partnership interests in 2301 SE 17th
St., Ltd., a Florida limited partnership, (2301 Ltd.) pursuant to
the terms of a certain Partnership Agreement dated June 29, 1993
(the Partnership Agreement);
B. Panthers has entered into an Exchange Agreement dated
December 22, 1996 with certain persons and entities pursuant to
which Panthers agreed to acquire from such parties, directly or
indirectly, all of the general and limited partnership interests in
2301 Ltd. (the Exchange Agreement) in exchange for shares of
Panthers Class A Common Stock, par value $.01 per share (Panthers
Common Stock);
C. Panthers wishes to acquire from the Class B Limited
Partners, and the Class B Limited Partners wish to convey to
Panthers, all of the Class B Limited Partners' respective Class B
limited partnership interests in 2301 Ltd., subject to and in
accordance with the terms set forth herein below.
In consideration of the foregoing Recitals, and the mutual
covenants and agreements contained herein, the parties hereby agree
as follows:
1. Exchange of Class B Limited Partnership Interests.
Winthrop and Sixty-Six each hereby agree that, subject to the
terms and conditions contained in this Class B Exchange Agreement,
on the first business day (the Closing Date) following the
Effective Time (as defined in the Exchange Agreement), Panthers
shall acquire all of Winthrop's and Sixty-Six's respective Class B
limited partnership interests in 2301 Ltd. (collectively, the
"Class B Limited Partnership Interests"). In consideration for the
acquisition of the Class B Limited Partnership Interests, and
subject to the terms and conditions contained in this Class B
Exchange Agreement, Panthers shall issue Five Hundred Forty-Six
Thousand Four Hundred Ninety-Eight (546,498) shares (the "Panthers
Shares") of the Panthers Common Stock to the Class B Limited
Partners. At Closing Panthers shall issue Four Hundred Ninety-One
Thousand Eight Hundred Forty-Eight (491,848) shares of the Panthers
Shares to the Class B Limited Partners. On the first annual
anniversary of the Closing Date, the Panthers shall issue Fifty-
four Thousand Six Hundred Fifty (54,650) shares of the Panthers
Shares (the Holdback Shares) to the Class B Limited Partners
which number of shares is subject to adjustment upon any claim for
purchase price adjustment or any claim for indemnity by Panthers
pursuant to the terms of the Exchange Agreement. Unless Panthers
are otherwise instructed in writing by both of the Class B Limited
Partners not less than three business days prior to the Closing
Date, the Panthers Shares so issued shall be allocated 11% to
Winthrop and 89% to Sixty-Six. On the Closing Date, the Class B
Limited Partners shall execute and deliver to Panthers such
assignments of their respective Class B Limited Partnership
Interests and such other documents reasonably requested by Panthers
to evidence the transfer of such Class B Limited Partnership
Interests from the Class B Limited Partners to Panthers. Each of
the Class B Limited Partners acknowledges and agrees that it is not
entitled to, and hereby waives, any further distributions (whether
capital, income or otherwise) from 2301 Ltd. or from Panthers,
except with respect to the Panthers Shares. If for any reason, the
transactions contemplated by the Exchange Agreement do not close
then this Class B Exchange Agreement shall terminate and be of no
force or effect and the parties shall have no liabilities to each
other hereunder.
2. Representations and Warranties of the Class B Limited
Partners.
Each Class B Limited Partner hereby represents and warrants to
Panthers that:
1. The Class B Limited Partners are each corporations
duly organized, validly existing and in good standing under the
laws of the state of Delaware and each has the requisite power and
authority to own or lease properties and to carry on its business
as now being conducted. There is no pending or threatened
proceeding for the dissolution, liquidation, insolvency or
rehabilitation of either of the Class B Limited Partners.
2. Each of the Class B Limited Partners has the power
and authority to execute and deliver this Class B Exchange
Agreement, to perform its respective obligations hereunder, and to
consummate the transactions contemplated hereunder. Each of the
Class B Limited Partners has taken all action necessary to
authorize the execution and delivery of this Class B Exchange
Agreement, the performance of its respective obligations hereunder,
and the consummation of the transactions contemplated hereunder,
subject to obtaining the consent of 2301 Ltd. to this transaction.
.
3. This Class B Exchange Agreement has been duly
executed and delivered by each of the Class B Limited Partners and
constitutes the legal, valid and binding obligation of each of
them, enforceable against each of them in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and general
equitable principles, regardless of whether such enforceability is
considered in a proceeding at law or in equity.
4. Winthrop is the record and beneficial owner of a
Class B Limited Partnership Interest, and Sixty-Six is the record
and beneficial owner of a Class B Limited Partnership Interest.
The relative ownership percentages of Class B Limited Partnership
Interests in 2301 Ltd. by Winthrop and Sixty-Six, as between
themselves and assuming there are no other holders of Class B
Limited Partnership interests in 2301 Ltd., are 11% and 89%,
respectively. The Class B Limited Partnership Interests are free
and clear of all liens, encumbrances, restrictions, liabilities and
claims of any kind.
5. The execution and delivery of this Class B Exchange
Agreement by each of the Class B Limited Partners, the performance
by them of their respective obligations hereunder and the
consummation by them of the transactions contemplated by this Class
B Exchange Agreement will not (i) contravene any provision of the
Articles of Incorporation, Bylaws or other organizational documents
of either of the Class B Limited Partners, (ii) violate or conflict
with any law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment or order of any governmental authority of any
kind or of any arbitration award which is either applicable to,
binding upon or enforceable against either of the Class B Limited
Partners, (iii) conflict with, result in any breach of, or
constitute a default (or an event which would, with the passage of
time or the giving of notice, or both, constitute a default under,
or give rise to a right to terminate, amend, modify, abandon or
accelerate any contract or other obligation which is applicable to,
binding upon or enforceable against either of the Class B Limited
Partners), (iv) result in or require the creation or imposition of
any lien or other encumbrance upon or with respect to the Class B
Limited Partnership Interests, or (v) except for the consent of
2301, Ltd. and the filing of Form 8-K with the Securities and
Exchange Commission, require the consent, approval, authorization
or permission of, or filing with or notification to, any
governmental authority, any court or tribunal or any other person
or entity.
6. Each of the Class B Limited Partners is acquiring
the Panthers Shares hereunder for its own account and with no
present intention of distributing or selling such Panthers Shares
and further agrees not to transfer such Panthers Shares in
violation of the Securities Act of 1933, as amended (the
Securities Act), or any applicable state securities law. Each of
the Class B Limited Partners agrees that it will not sell or
otherwise dispose of any of the Panther Shares unless such sale or
other disposition has been registered under the Securities Act or,
in the opinion of counsel acceptable to Panthers, is exempt from
registration under the Securities Act and has been registered or
qualified or, in the opinion of such counsel acceptable to
Panthers, is exempt from registration or qualification under
applicable state securities laws. Each of the Class B Limited
Partners understands that the offer and sale by Panthers of the
Panthers Shares being acquired by such Class B Limited Partner
hereunder has not been registered under the Securities Act by
reason of their contemplated issuance in transactions exempt from
the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, and that the
reliance of Panthers on such exemption from registration is
predicated in part on these representations and warranties of each
of the Class B Limited Partners. Each of the Class B Limited
Partners acknowledges that pursuant to Section 8(b) of this Class B
Exchange Agreement a restrictive legend consistent with the
foregoing has been or will be placed on the certificates for the
Panthers Shares.
7. Winthrop is an accredited investor as such term is
defined in Rule 501(a) of Regulation D under the Securities Act (a
copy of which is attached hereto as Exhibit A).
8. Each of the Class B Limited Partners has such
knowledge and experience in financial and business matters that it
is capable of evaluating the merits and risks of the investment to
be made by it hereunder.
9. Each of the Class B Limited Partners has received
from Panthers, and has reviewed, such information which such Class
B Limited Partner considers necessary or appropriate to evaluate
the risks and merits of an investment in the Panthers Shares,
including without limitation, the documents listed on Exhibit B.
Each of the Class B Limited Partners acknowledges that each of the
documents listed on, including the sections under the heading "RISK
FACTORS" in the Final Prospectus dated November 13, 1996 relating
to Panthers' initial public offering, are specifically incorporated
herein by reference and form an integral part of this Agreement.
Each of the Class B Limited Partners also acknowledges that the
additional risk factors set forth on Exhibit B are specifically
incorporated herein by reference and form an integral part of this
Class B Exchange Agreement.
10. Each of the Class B Limited Partners has had the
opportunity to question, and has questioned, to the extent deemed
necessary or appropriate, representatives of Panthers so as to
receive answers and verify information obtained in such Class B
Limited Partner's examination of Panthers, including the
information that such Class B Limited Partner has received and
reviewed as referenced in Section 2(i) hereof in relation to its
investment in the Panthers Shares.
11. No oral or written representations have been made to
either of the Class B Limited Partners in connection with such
Class B Limited Partner's acquisition of the Panther Shares which
were in any way inconsistent with the information reviewed by such
Class B Limited Partner. Each of the Class B Limited Partners
acknowledges that no representations or warranties of any type or
description have been made to it by any person with regard to
Panthers, any of its subsidiaries, any of their respective
businesses, properties or prospects or the investment contemplated
herein, other than the representations and warranties set forth in
Section 3 hereof.
12. Each of the Class B Limited Partners has such
knowledge and experience in financial, tax and business matters,
including substantial experience in evaluating and investing in
common stock and other securities (including the common stock and
other securities of new and speculative companies), so as to enable
such Class B Limited Partner to utilize the information referred to
in Section 2(i) hereof and any other information made available by
Panthers to such Class B Limited Partner in order to evaluate the
merits and risks of an investment in the Panthers Shares and to
make an informed investment decision with respect thereto.
13. Neither of the Class B Limited Partners is relying
on Panthers or on any legal or other opinion in the materials
reviewed by such Class B Limited Partner with respect to the
financial or tax considerations of such Class B Limited Partner
relating to its investment in the Panthers Shares. Each of the
Class B Limited Partners has relied solely on the representations
and warranties, covenants and agreements of Panthers in this Class
B Exchange Agreement and the Exchange Agreement (including the
Exhibits hereto) and on its examination and independent
investigation in making its decision to acquire the Panthers
Shares.
All of the foregoing representations and warranties of the
Class B Limited Partners shall survive the Effective Time.
14. Representations and Warranties of the Panthers.
The Panthers hereby represents and warrants to each of the
Class B Limited Partners that:
15. Panthers is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Florida. Panthers has the requisite power and authority to carry
on its business and to own or lease its properties.
16. Panthers has the corporate power and authority to
execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
Panthers has taken all action necessary to authorize its execution
and delivery of this Agreement, the performance of its respective
obligations hereunder and the consummation of the transactions
contemplated hereby.
17. This Agreement has been duly executed and delivered
by Panthers and constitutes a legal, valid and binding obligation
of Panthers, enforceable against Panthers in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and general
equitable principles regardless of whether such enforceability is
considered in a proceeding at law or in equity.
18. Upon consummation of the transactions contemplated
hereunder and the issuance and delivery of certificates
representing the Panthers Shares to the Class B Limited Partners,
the Shares will be validly issued, fully paid and non-assessable
shares of Panthers Common Stock.
19. Panthers has not incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar
compensation in connection with the transactions contemplated
hereby.
20. Additional Agreements.
21. Each of the parties agree to execute and deliver
such additional instruments and documents and take such further
actions as may be necessary or appropriate to effectuate, carry out
and comply with all the terms of this Agreement and the
transactions contemplated hereby. Between the execution of this
Agreement and the Closing Date, each of the Class B Limited
Partners agree that they will not take any action, or do or propose
to do, or obligate themselves to do anything which would impair
their ability to consummate the transactions contemplated under
this Agreement on the Closing Date. Each of the Class B Limited
Partners agree to cooperate with Panthers, at no cost to the Class
B Limited Partners, in the preparation and filing of all forms,
notifications, reports and information, if any, required or
reasonably deemed advisable pursuant to any law, rule or regulation
or the rules of any exchange on which Panthers Common Stock is
listed or of the Nasdaq Stock Market in connection with the
transactions contemplated by this Agreement and to use its
respective best efforts to agree jointly on a method to overcome
any objections by any governmental authority to any such
transactions. Each of the parties agree to provide the other with
notice of the occurrence or non-occurrence of any event which would
likely cause any representation or warranty contained herein to be
untrue or inaccurate, or any covenant, condition or agreement
contained herein not to be complied with or satisfied.
22. Panthers and each of the Class B Limited Partners
will use their respective best efforts to cause the transactions
contemplated hereunder to qualify as tax-free transactions under
the provisions of Section 351 of the Internal Revenue Code of 1986,
as amended (the "Code") and do not presently intend to take any
action as to the transactions contemplated hereunder are effective
to cause the transactions contemplated hereunder to lose their tax-
free status. All of the parties agree to comply with the reporting
requirements of Section 351 of the Code and applicable Treasury
Regulations promulgated thereunder.
23. Except as may be required by law or otherwise
permitted or expressly contemplated herein, the Class B Limited
Partners shall not disclose to any third party this Agreement or
the subject matter or terms hereof without the prior written
consent of Panthers. The Panthers acknowledge that the stockholder
of Sixty-Six must disclose the closing of the transactions
contemplated by this Agreement by filing a Form 8-K with the
Securities and Exchange Commission and Sixty-Six agrees that it
shall provide Panthers the opportunity to review and comment upon
such Form 8-K prior to filing. No press release or other public
announcement related to this Agreement or the transactions
contemplated hereby shall be issued by the Class B Limited Partners
without the prior written approval of Panthers. Except as
otherwise expressly consented to by Panthers in writing, from the
date of this Agreement until the Closing Date, none of the Class B
Limited Partners (or any affiliates thereof) will directly or
indirectly purchase or sell (including short sales) any shares of
Panthers Common Stock in any transaction effected on the Nasdaq
National Market or otherwise.
24. Conditions to the Obligations of Panthers.
The obligations of Panthers to effect the transactions
contemplated hereunder shall be subject to the fulfillment at or
prior to the Closing Date of the following conditions, any or all
of which may be waived in whole or in part by Panthers in writing:
25. The representations and warranties of the Class B
Limited Partners contained in this Agreement shall be true and
correct as of the Closing Date with the same force and effect as
though made at and as of that time. The Class B Limited Partners
shall have each performed and complied with all of their respective
obligations required by this Agreement to be performed or complied
with at or prior to the Closing Date. Each of the Class B Limited
Partners shall have delivered to Panthers a certificate, dated as
of the Effective Time, duly signed by its respective president,
certifying that such representations and warranties are true and
correct and that all such obligations have been complied with and
performed.
26. The satisfactory closing of the 2301 Exchange
Agreement.
27. The Class B Limited Partners shall deliver to
Panthers certified resolutions adopted by the Boards of Directors
of each of the Class B Limited Partners and the shareholders
thereof authorizing the transactions contemplated by this
Agreement, and a certificate of good standing for each of the Class
B Limited Partners as of a date not more than 10 days prior to the
Closing Date.
28. Each of the Class B Limited Partners shall have
received consents to the transactions contemplated hereby from any
person from whom such consent is required under any contract or
other obligation, except for the consent of 2301 Ltd.
29. The Class B Limited Partners shall have delivered to
Panthers appropriate assignments and other documentation required
by Panthers or Panthers' counsel transferring their respective
Class B Limited Partnership Interests to Panthers.
30. Deliveries at Closing.
At Closing, the Panthers will deliver (i) certificates
representing 491,848 of the Panthers Shares and (ii) a certificate
of 2301, Ltd. that consents to the transfer of the Class B Limited
Partnership Interests to the Panthers and that certifies a true and
correct copy of the Partnership Agreement. On the first
anniversary of the Closing of the transactions in this Class B
Exchange Agreement Panthers will deliver certificates representing
the Holdback Shares. The number of Holdback Shares may be reduced
(pro rata with the Held Back Shares pursuant to the terms and
procedures set forth in Section 9.3 of the Exchange Agreement.
Also at Closing the Class B Limited Partners will deliver an
assignment of their Class B Limited Partnership Interests to
Panthers in a form satisfactory to Panthers. During the one (1)
year period that Panthers shall hold the Holdback Shares, the Class
B Limited Partners shall be entitled to the same benefits and
rights as those provided to the Held Back Shares as defined under
the Exchange Agreement pursuant to Section 9.4 of the Exchange
Agreement. Each of the parties should also deliver such other
documents and take such other actions as they deem reasonably
necessary to conclude the transactions contemplated hereby.
31. Indemnification.
Each of the Class B Limited Partners, jointly and severally,
agree to indemnify, defend and hold Panthers harmless from and
against the aggregate of all expenses, losses, costs, deficiencies,
liabilities and damages (including, without limitation, related
counsel and paralegal fees and expenses) incurred or suffered by
Panthers arising out of or relating from (i) any breach of a
representation or warranty made by either of the Class B Limited
Partners in or pursuant to this Agreement, and (ii) any breach of
the covenants or agreements made by either of the Class B Limited
Partners in or pursuant to this Agreement.
Panthers agree to indemnify, defend and hold each of the Class
B Partners harmless from and against the aggregate of all expenses,
losses, costs, deficiencies, liabilities and damages (including,
without limitation, related counsel and paralegal fees and
expenses) incurred or suffered by either of the Class B Partners
arising out of or relating from (i) any breach of a representation
or warranty made by the Panthers in or pursuant to this Agreement,
and (ii) any breach of the covenants or agreements made by Panthers
in or pursuant to this Agreement.
32. Securities Laws.
33. Each of the Class B Limited Partners represent
and warrant that the Panthers Shares being acquired by them
hereunder are being acquired and will be acquired for their own
respective accounts and will not be sold or otherwise disposed of,
except pursuant to (a) an exemption from the registration
requirements under the Securities Act, which does not require the
filing by Panthers with the Securities and Exchange Commission (the
SEC) of any registration statement, offering circular or other
document, in which case, the Class B Limited Partners shall first
supply to Panthers an opinion of counsel (which counsel and
opinions shall be satisfactory to Panthers) that such exception is
available, or (b) an effective registration statement filed by
Panthers with the SEC under the Securities Act.
34. The certificates representing the Panthers
Shares shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE
WITH AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
AND ALSO MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF BY
THE HOLDER EXCEPT IN COMPLIANCE WITH ANY APPLICABLE RULES OF THE
SECURITIES AND EXCHANGE COMMISSION.
Panthers may, unless a registration statement is in effect covering
such shares, place stop transfer orders with its transfer agents
with respect to such certificates in accordance with federal
securities laws.
35. Registration Rights
The Class B Limited Partners shall have the following
registration rights with respect to the Shares issued to them
hereunder:
36. Registration Rights for Panthers Shares; Filing of
Registration Statement. Panthers will utilize reasonable efforts to
cause, as soon as practicable following the Effective Time, a
registration statement to be filed under the Securities Act or a
pending registration statement to be amended for the purpose of
registering the Panthers Shares for resale by a Holder thereof (the
Registration Statement). In the event that Panthers shall file a
registration statement for the registration of Panthers Common
Stock issued under the Exchange Agreement then, the Panthers shall
include for registration on the same terms and conditions and with
the same rights as the shares of Panthers Common Stock issued under
the Exchange Agreement in such registration statement the Panthers
Shares issued hereunder. For purposes of this Section 9, a person
is deemed to be a Holder of Panthers Shares whenever such person
is the record owner of the Shares. Panthers will use reasonable
efforts to have the Registration Statement become effective and
cause the Panthers Shares to be registered under the Securities
Act, and registered, qualified or exempted under the state
securities laws of such jurisdictions as any Holder reasonably
requests, as soon as is reasonably practicable. Notwithstanding
the foregoing, Panthers may delay filing the Registration
Statement, and may withhold efforts to cause the Registration
Statement to become effective, if Panthers determines in good faith
that such registration might interfere with or affect the
negotiation or completion of any transaction that is being
contemplated by Panthers (whether or not a final decision has been
made to undertake such transaction) at the time the right to delay
is exercised.
37. Expenses of Registration. Panthers shall pay all
expenses incurred by Panthers in connection with the registration,
qualification and/or exemption of the Shares, including any SEC and
state securities law registration and filing fees, printing
expenses, fees and disbursements of Panthers' counsel and
accountants, transfer agents' and registrars' fees, fees and
disbursements of experts used by Panthers in connection with such
registration, qualification and/or exemption, and expenses
incidental to any amendment or supplement to the Registration
Statement or prospectuses contained therein. Panthers shall not,
however, be liable for any sales, broker's or underwriting
commissions upon sale by any Holder of any of the Shares.
38. Furnishing of Documents. Panthers shall furnish to
the Holders such reasonable number of copies of the Registration
Statement, such prospectuses as are contained in the Registration
Statement and such other documents as the Holders may reasonably
request in order to facilitate the resale of the Panthers Shares.
39. Amendments and Supplements. Panthers shall prepare
and promptly file with the SEC and promptly notify the Holders of
the filing of such amendments or supplements to the Registration
Statement or prospectuses contained therein as may be necessary to
correct any statements or omissions if, at the time when a
prospectus relating to the Panthers Shares is required to be
delivered under the Securities Act, any event shall have occurred
as a result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Panthers shall also advise the Class B
Limited Partners who shall immediately notify the Holders promptly
after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness
of the Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued. If, after a
Registration Statement becomes effective, Panthers advises the
Class B Limited Partners who shall immediately notify the Holders
that Panthers considers it appropriate that the Registration
Statement be amended, the Holders shall suspend any further sales
of the Panthers Shares until Panthers advises the Holders that the
Registration Statement has been amended.
40. Duration. Panthers shall maintain the effectiveness
of the Registration Statement until such time as Panthers
reasonably determines, based on an opinion of counsel, that the
Holders will
be eligible to sell all of the Shares then owned by the Holders
without the need for continued registration of the shares, in the
three month period immediately following the termination of the
effectiveness of the Registration Statement. Panthers' obligations
contained in paragraphs (a), (c) and (d) shall terminate on the
second anniversary of the Effective Date.
41. Further Information. If Shares owned by a Holder
are included in any registration, such Holder shall furnish
Panthers such information regarding himself as Panthers may
reasonably request and as shall be required in connection with any
registration, qualification or compliance referred to in this
Agreement.
42. Termination.
This Agreement may be terminated at any time prior to the
Closing Date:
43. By mutual written consent of all the parties hereto
at any time prior to the Closing Date; or
44. By Panthers in the event of a material breach by
either of the Class B Limited Partners of any provision of this
Agreement; or
45. By the Class B Limited Partners in the event of a
material breach by Panthers of any provision of this Agreement; or
46. By any of Panthers or the Class B Limited Partners
if the Closing shall not have occurred by April 1, 1997.
47. Notices.
All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered
by certified or registered mail (first class postage pre-paid),
guaranteed overnight delivery, or facsimile transmission if such
transmission is confirmed by delivery by certified or registered
mail (first class postage pre-paid) or guaranteed overnight
delivery, to the following addresses and telecopy numbers (or to
such other addresses or telecopy numbers which such party shall
designate in writing to the other party):
48. if to the Panthers:
Florida Panthers Holdings, Inc.
100 Southeast Third Avenue, Second Floor
Ft. Lauderdale, FL 33301
Attn: Steven M. Dauria
Telecopy: (954) 768-1948
with a copy to:
Akerman, Senterfitt & Eidson, P.A.
One Southeast Third Avenue, 28th Floor
Miami, Florida 33131
Attention: Edward L. Ristaino, Esq.
Telecopy: (305) 374-5095
49. if to Sixty-Six:
One International Place
Boston, Massachusetts 02110
Attn: Richard McCready
Telecopy: (617) 330-8621
with a copy to:
Post & Heymann LLP
100 Jericho Quadrant, Suite 214
Jericho, N.Y. 11753
Telecopy: (516) 433-2777
Attn: David Heymann, Esq.
50. if to Winthrop:
One International Place
Boston, Massachusetts 02110
Attn: Richard McCready
Telecopy: (617) 330-8621
with a copy to:
Post & Heymann LLP
100 Jericho Quadrant, Suite 214
Jericho, N.Y. 11753
Attn: David Heymann, Esq.
Telecopy: (516) 433-2777
Notice shall be deemed given on the date sent if sent by
overnight delivery or facsimile transmission and on the date
delivered (or the date of refusal of delivery) if sent by certified
or registered mail.
51. Entire Agreement.
This Agreement and other documents delivered at the Closing
pursuant hereto, contains the entire understanding of the parties
in respect of its subject matter and supersedes all prior
agreements and understandings (oral or written) between or among
the parties with respect to such subject matter.
52. Expenses.
The parties shall pay their own fees and expenses, including
their own counsel fees, incurred in connection with this Class B
Exchange Agreement or any transaction contemplated hereby.
53. Amendment; Waiver
This Agreement may not be modified, amended, supplemented,
canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising,
any right, power or privilege under this Agreement shall operate as
a waiver, nor shall any single or partial exercise of any right,
power or privilege hereunder preclude the exercise of any other
right, power or privilege. No waiver of any breach of any
provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any
waiver be implied from any course of dealing between the parties.
No extension of time for performance of any obligations or other
acts hereunder or under any other agreement shall be deemed to be
an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under
this Class B Exchange Agreement are in addition to all other rights
and remedies, at law or equity, that they may have against each
other.
54. Binding Effect; Assignment.
The rights and obligations of this Class B Exchange Agreement
shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied
herein shall be construed to give any other person any legal or
equitable rights hereunder. The rights and obligations of this
Class B Exchange Agreement may not be assigned or delegated by
either of the Class B Limited Partners without the prior written
consent of Panthers.
55. Counterparts
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall
constitute one and the same instrument.
56. Interpretation
When a reference is made in this Agreement to an article,
section, paragraph, clause, schedule or exhibit, such reference
shall be deemed to be to this Agreement unless otherwise indicated.
The headings contained herein and on the schedules are for
reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement or the schedules. Whenever the
words include, includes or including are used in this
Agreement, they shall be deemed to be followed by the words
without limitation. Time shall be of the essence in this
Agreement.
57. Governing Law; Interpretation
This Agreement shall be construed in accordance with and
governed for all purposes by the laws of the State of Florida
applicable to contracts executed and to be wholly performed within
such State. The parties irrevocably consent to personal
jurisdiction and venue in the appropriate courts located in Broward
County, Florida for the resolution of all disputes hereunder.
58. Arm's Length Negotiations.
Each party herein expressly represents and warrants to all
other parties hereto that (a) before executing this Agreement, said
party has fully informed itself of the terms, contents, conditions
and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c)
said party has had the opportunity to seek and has obtained the
advice of counsel before executing this Agreement; (d) said party
has acted voluntarily and of its own free will in executing this
Agreement; (e) said party is not acting under duress, whether
economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by
and among the parties and their respective counsel.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year
first above written.
FLORIDA PANTHERS HOLDINGS, INC., a
Florida corporation
By:
Name: Steven M. Dauria
Title: Vice President
FIRST WINTHROP CORPORATION, a Delaware
corporation
By:
Name: ____________________________
Title:
SIXTY-SIX, INC., a Delaware
corporation
By:
Name: ____________________________
Title:
EXHIBIT A
Definition of Accredited Investor contained in Rule 501(a)
promulgated under the Securities Act.
EXHIBIT B
SEC FILINGS and RISK FACTORS
THE INVESTOR IS URGED TO REVIEW THE FOLLOWING DOCUMENTS WHICH ARE
INCORPORATED BY REFERENCE HEREIN AS IF RESTATED HEREIN:
1. Final Prospectus dated November 13, 1996, in connection
with the Issuer's Initial Public Offering.
2. Quarterly Reports on Form 10-Q for the quarterly
periods ended September 30, 1996 and December 31, 1996.
3. Current Report on Form 8-K dated December 23, 1996
4. Preliminary Consent Solicitation Statement, dated
January 17, 1997, relating to the solicitation of written
consents to approve the Issuer's acquisition, directly or
indirectly, of all of the general and limited partnership
interests in each of 2301 S.E. 17th Street, Ltd. (2301 Ltd.)
and Rahn Bahia Mar, Ltd. (Rahn Ltd.) (the Exchanges). *
5. Press Release, dated December 23, (included with Form
8-K referenced above).
* This document is a confidential, non-public document
and its contents should not be disclosed to any third party.
THE INVESTOR IS ALSO URGED TO CAREFULLY READ THE FOLLOWING
ADDITIONAL RISK FACTORS:
Uncertainty Regarding Registration Rights.
Although Panthers has undertaken to register the Shares for
resale by the Class B Limited Partners, such registration must be
on a Registration Statement on Form S-1 rather than on a
Registration Statement on Form S-3. This distinction is
significant because, while Form S-3 allows for a prospectus to
remain evergreen by incorporation by reference of subsequently
filed Exchange Act reports, Form S-1 requires that a post-
effective amendment be filed during any period in which offers or
sales are made thereunder to reflect any fundamental change in
the information presented in the prospectus which is part of the
Registration Statement. Therefore, the Class B Limited Partners
should be aware that there will be periods, between the date that
any such post-effective amendment is filed and the date that such
post-effective amendment is declared effective by the SEC, during
which the Class B Limited Partners will be restricted under
certain provisions of the Securities Act from reselling any of
the Shares.
Possible Depressing Effect of Future Sales of Class A Common
Stock
Under the agreements executed in connection with the Exchanges
(the Exchange Agreements) Panthers has agreed to file a
registration statement covering registration of the 8,400,000
shares (the "Exchange Shares") of Class A Common Stock to be
issued pursuant to the Exchanges. The Exchange Shares so
registered could be sold in the public market. No predictions
can be made as to the effect, if any, that market sales of the
Exchange Shares, or the availability of the Exchange Shares for
sale, will have on the market price for shares of Class A Common
Stock prevailing from time to time. Sales of substantial amounts
of the Exchange Shares in the public market following the
Exchanges could adversely affect the market price of the Class A
Common Stock.
Risks Associated with the Proposed Exchanges
There may be liabilities which Panthers fails to or is unable to
discover in the course of performing due diligence investigations
in connection with the proposed Exchanges, including liabilities
arising from non-compliance with certain federal, state or local
environmental laws by prior owners, and for which Panthers, as a
successor owner, may be responsible. Although Panthers will be
fully indemnified for a period of three years under each of the
Exchange Agreements, there can be no assurance that such
indemnification will be sufficient in scope or duration to fully
offset the possible liabilities arising from the consummation of
the Exchanges.
Seasonality of the Resort Business; Adverse Weather
The business of the Hyatt Regency Pier 66 Hotel and the Radisson
Bahia Mar Resort and Yachting Center (the Resort Facilities),
is generally seasonal. The Resort Facilities, both of which are
located in Fort Lauderdale, Florida, have historically
experienced higher revenues and operating profits in the first
and fourth quarters of each calendar year, due to increased rates
of occupancy and room rental rates during the winter months.
This seasonality also results in higher operating costs during
these quarters. In addition, South Florida is subject to
tropical weather and storms which, if severe (as in the case of a
hurricane), can interrupt the normal operations of the Resort
Facilities and affect tourism.
Losses in Excess of Insurance Coverage
Upon consummation of the transactions contemplated by the
Exchange Agreements, Panthers intends to maintain comprehensive
insurance on such Resort Facilities, including liability, fire
and extended coverage, in the types and amounts customarily
obtained by an owner and operator in the lodging industry.
Nevertheless, there are certain types of losses, generally of a
catastrophic nature, such as hurricanes, earthquakes and floods,
that may be uninsurable or not economically insurable. Panthers
will use its discretion in determining amounts, coverage limits
and deductibility provisions of insurance, with a view to
obtaining appropriate insurance on the Resort Facilities at a
reasonable cost and on suitable terms. This may result in
insurance coverage that in the event of a loss would not be
sufficient to pay the full current market value or current
replacement value of Panthers lost investment and the insurance
proceeds received by Panthers might not be adequate to restore
its economic position with respect to such Resort Facilities.
MIA-150713-1
