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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 1, 1997
REGISTRATION STATEMENT NO. 333-28951
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 4
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FLORIDA PANTHERS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 7941 65-0676005
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or Classification Code Number) Number)
organization)
RICHARD L. HANDLEY
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
FLORIDA PANTHERS HOLDINGS, INC.
450 EAST LAS OLAS BOULEVARD 450 EAST LAS OLAS BOULEVARD
FORT LAUDERDALE, FLORIDA 33301 FORT LAUDERDALE, FLORIDA 33301
(954) 712-1300 (954) 712-1300
(Address, including zip code, and telephone (Name, address, including zip code, and
number, including telephone
area code, of registrant's principal executive number, including area code, of agent for
offices) service)
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Copies to:
STEPHEN K. RODDENBERRY, ESQ.
AKERMAN, SENTERFITT & EIDSON, P.A.
ONE S.E. THIRD AVENUE, 28TH FLOOR
MIAMI, FLORIDA 33131-1704
(305) 374-5600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
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If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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Logo
PROSPECTUS
FLORIDA PANTHERS HOLDINGS, INC.
This Prospectus is being furnished to the current limited partners (the
"Limited Partners") of Boca Raton Hotel and Club Limited ("Boca Partnership"),
who were previously provided a copy of that Solicitation Statement/Prospectus
dated June 12, 1997 (the "Solicitation Statement/Prospectus") in connection with
the proposal to approve and adopt a Contribution and Exchange Agreement dated as
of March 20, 1997, as amended and restated (the "Contribution and Exchange
Agreement"), by and among Florida Panthers Holdings, Inc. ("Panthers Holdings"),
Boca Raton Hotel and Club Limited Partnership, a Florida limited partnership
("Boca Partnership"), BRMC, L.P., a Delaware limited partnership (the "Boca
General Partner"), and BRMC Corporation, a Delaware corporation and the general
partner of the Boca General Partner ("BRMC"). Boca Partnership was formed in
June 1983 for the purpose of purchasing, owning, managing and operating the Boca
Raton Resort and Club ("Boca Resort"), a destination luxury resort and private
club encompassing 298 acres of land fronting on both the Atlantic Ocean and
Intracoastal Waterway in Boca Raton, Florida. The transaction contemplated by
the Contribution and Exchange Agreement (the "Contribution and Exchange") was
consummated on June 26, 1997.
Upon the terms and subject to the provisions of the Contribution and
Exchange Agreement, all of the assets of Boca Partnership were transferred to
Panthers BRHC Limited, a newly-formed Florida limited partnership ("Panthers
BRHC"), in which the managing general partner and the limited partner are
wholly-owned by the Panthers Holdings. As set forth in the Contribution and
Exchange Agreement, Panthers Holdings, through the managing general partner,
limited partner and Panthers BRHC, paid the following consideration: (i) a
non-managing general partnership interest in Panthers BRHC; (ii) warrants (the
"Warrants") to purchase 869,810 shares of Panthers Holdings' Class A common
stock, par value $.01 per share (the "Class A Common Stock"); (iii) 189,574
shares of Class A Common Stock, which were used to compensate certain affiliates
of Boca Partnership, who through their affiliates control the Boca General
Partner, for their involvement in integrating Boca Resort into the Company; (iv)
82,729 shares of Class A Common Stock, which were used to pay persons to whom
Boca Partnership is obligated to pay fees; (v) exchange rights (the "Exchange
Rights") which, when distributed to the Boca General Partner and the limited
partners in accordance with the partnership agreement of Boca Partnership, will
entitle such holders, without any additional consideration, to sell their
partnership interests to an affiliate of Panthers Holdings in exchange for
approximately 4,242,586 shares of Class A Common Stock exercisable at any time
before January 1, 2001; and (vi) the assumption by Panthers BRHC of indebtedness
and payment by Panthers BRHC of deferred fees and additional interest charges
owed by the Boca Partnership in the amount of approximately $205.9 million, of
which approximately $95.9 million was repaid from capital contributions by
Panthers Holdings upon consummation of the Contribution and Exchange. Of the
$95.9 million in capital contributions, $60.9 million was paid from Panthers
Holdings' working capital and $35.0 million was paid from the incurrence of
additional debt.
This Prospectus updates certain information contained in the Solicitation
Statement/Prospectus and is for the use of the Limited Partners in determining
whether to exercise their Warrants or Exchange Rights for shares of the Class A
Common Stock.
Panthers Holdings' executive offices are located at 450 East Las Olas
Boulevard, Fort Lauderdale, Florida 33301, and its telephone number is (954)
712-1300.
The Class A Common Stock is traded on the New York Stock Exchange (the
"NYSE") under the symbol "PAW." On November 28, 1997, the last reported sales
price of Class A Common Stock as reported by the New York Stock Exchange was
$18 13/16 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is December , 1997.
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No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in or
incorporated by reference in this Prospectus in connection with the offer made
by this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by Panthers Holdings or the
Selling Stockholders. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
not been any change in the facts set forth in this Prospectus or in the affairs
of Panthers Holdings since the date hereof. This Prospectus does not constitute
an offer or solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
TABLE OF CONTENTS
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PAGE
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Available Information....................................... 2
Summary..................................................... 3
Risk Factors................................................ 7
The Contribution and Exchange............................... 12
Legal Matters............................................... 13
Experts..................................................... 13
Incorporation of Certain Documents by Reference............. 13
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AVAILABLE INFORMATION
Panthers Holdings is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder, and, in accordance therewith, files
reports, proxy and information statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy and
information statements and other information concerning Panthers Holdings can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; and at
the Commission's regional offices located at Citicorp Center, Suite 1400, 500
West Madison Street, Chicago, Illinois 60661 and at Seven World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material can also be
obtained from the Commission at prescribed rates through its Public Reference
Section at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also
maintains a site on the World Wide Web at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The Class A Common
Stock formerly traded on the Nasdaq National Market ("Nasdaq"). Information
filed by Panthers Holdings with Nasdaq may be inspected at the offices of Nasdaq
at 1735 K Street, N.W., Washington, D.C. 20006. As of July 11, 1997, the Class A
Common Stock began trading on the NYSE. Information filed by Panthers Holdings
with the NYSE may be inspected at the offices of the NYSE at 20 Broad Street,
New York, New York 10005.
Panthers Holdings has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act with respect to the Shares offered hereby
(including all amendments and supplements thereto, the "Registration
Statement"). This Prospectus, which forms a part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement,
certain parts of which have been omitted in accordance with the rules and
regulations of the Commission. Statements contained herein concerning the
provisions of certain documents are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference. The Registration
Statement and the exhibits thereto can be inspected and copied at the public
reference facilities and regional offices of the Commission and at the offices
of Nasdaq and the NYSE referred to above.
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SUMMARY
PANTHERS HOLDINGS
Panthers Holdings is a holding company with subsidiaries currently
operating in two business segments: (i) leisure and recreation (the "Leisure and
Recreation Business") and (ii) entertainment and sports (the "Entertainment and
Sports Business"). Panthers Holdings was formed in July 1996 and, upon the
completion of its initial public offering and concurrent offering (the "Initial
Offerings") in November 1996, continued the operations of the Panthers, a
professional hockey team which has been a member of the National Hockey League
("NHL") since 1993. Following completion of the Initial Offerings, Panthers
Holdings expanded into the Leisure and Recreation Business, through the
ownership and operation of high-end destination luxury resorts, and diversified
the Entertainment and Sports Business to include ice skating rink operations.
Panthers Holdings current focus is on expanding the Leisure and Recreation
Business. The primary elements of Panthers Holdings' current business strategy
include: (i) the development of capital projects (additional unit construction,
recreational amenities and conference space) at its existing luxury resorts,
(ii) the expansion of the core upscale clientele of the Leisure and Recreation
Business, which will increase Panthers Holdings' ability to cross-market other
services to this customer base and (iii) the acquisition of other luxury
resorts. In executing its business strategy, Panthers Holdings continuously
evaluates opportunities in other industries and businesses for potential
strategic acquisitions where Panthers Holdings believes it can leverage its
competitive strengths and increase stockholder value.
The Leisure and Recreation Business presently consists of Panthers
Holdings' ownership of the Boca Raton Resort and Club ("Boca Resort"), the Hyatt
Regency Pier 66 Hotel and Marina ("Pier 66") and the Radisson Bahia Mar Beach
Resort and Yachting Center ("Bahia Mar"), and its majority ownership interest in
the Registry Hotel at Pelican Bay ("Registry Resort") (Boca Resort, Pier 66,
Bahia Mar and Registry Resort are collectively referred to as the "Resort
Facilities").
Boca Resort is a destination luxury resort and private club fronting both
the Atlantic Ocean and Intracoastal Waterway in Boca Raton, Florida. Boca Resort
includes 963 luxury guest rooms, a 50,000 sq. ft. conference center, a separate
140,000 sq. ft. conference center currently under construction, a 25 slip
marina, two 18 hole championship golf courses, a 30 court tennis club, five
swimming pools, an indoor basketball court, two indoor racquetball courts, a
fitness center, a half mile of private beach with various water sports
facilities and 15 food and beverage sites ranging from five-star cuisine to
beach side grills. Boca Resort has consistently been awarded the Readers' Award
as one of the "Top 25 Hotels in North America" by Travel & Leisure magazine.
Registry Resort is a luxury resort fronting the Gulf of Mexico in Naples,
Florida, within a 90-minute drive of the east coast of South Florida. Panthers
Holding's currently owns approximately 78% of Registry Resort and has made
offers to acquire the remaining 22%. Registry Resort includes 474 luxury guest
rooms, a conference center, recreational areas, restaurant and retail outlets, a
15 court tennis facility and a nature reserve boardwalk, as well as water sports
and other beach amenities. Registry Resort has received Mobile Travel Guide's
Four Star Award, as well as AAA's Four Diamond Award, and has been cited by
Conde Nast Traveler magazine as one of the best resorts in the United States.
Pier 66 is a luxury resort and marina fronting the Intracoastal Waterway in
Fort Lauderdale, Florida. Pier 66 includes 380 luxury guest rooms, a 142 slip
marina, three swimming pools, meeting space and six restaurants and lounges.
Pier 66 has received the Mobil Travel Guide's Four Star Award and AAA's Four
Diamond Award.
Bahia Mar is a resort and marina complex fronting the Atlantic Ocean in
Fort Lauderdale, Florida. Bahia Mar includes 300 luxury guest rooms, a 350 slip
marina, four tennis courts, meeting space and retail space. Bahia Mar has
received the Mobil Travel Guide's Three Star Award and AAA's Three Diamond
Award, as well as the 1995 Radisson President's Award and a City of Fort
Lauderdale Community Appearance Award.
Panthers Holdings' Entertainment and Sports Business currently consists of
Panthers Holdings' hockey operations, arena development and management
operations and ice skating rink operations. Panthers Holdings' hockey operations
consist of the ownership and operation of the Panthers. Panthers Holdings' arena
development and management operations involve the Broward County Arena, a new
multi-purpose, state-of-
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the-art entertainment and sports center in Broward County, Florida. Pursuant to
an operating agreement between Panthers Holdings and Broward County, upon
completion of the Broward County Arena, Panthers Holdings will manage and
operate the Broward County Arena, where the Panthers will play their home games.
Panthers Holdings also owns approximately 78% of Decoma, the entity which
operates the Miami Arena, the arena where the Panthers play their home games.
Panthers Holding's ice skating rink activities consist of the operation of
Incredible Ice, a twin-pad ice skating rink facility in Coral Springs, Florida,
and Gold Coast, an ice skating rink facility in Pompano Beach, Florida.
Panthers Holdings was incorporated in Florida on July 3, 1996 and
subsequently reincorporated in Delaware on November 17, 1997. In connection with
the Initial Offerings, the Class A Common Stock began trading on Nasdaq on
November 13, 1996 under the symbol "PUCK." On July 11, 1997, the Class A Common
Stock began trading on the NYSE under the symbol "PAW." The NYSE ticker symbol
was not affected by the reincorporation.
BOCA PARTNERSHIP
Boca Partnership was formed in June 1983 for the purpose of purchasing,
owning, managing and operating the Boca Raton Resort and Club, a destination
luxury resort and private club encompassing 298 acres of land fronting on both
the Atlantic Ocean and Intracoastal Waterway in Boca Raton, Florida. The Boca
Raton Resort and Club consists of 963 luxury guest rooms, a 70,000 sq. ft.
convention center, a separate 140,000 sq. ft. convention center currently under
construction, a 25 slip marina, two 18-hole championship golf courses, 30 tennis
courts, five swimming pools, an indoor basketball court, two indoor racquetball
courts, three fitness centers and 15 food and beverage sites, ranging from five
star cuisine to beachside grills.
TERMS OF THE CONTRIBUTION AND EXCHANGE
Pursuant to the Contribution and Exchange Agreement, Panthers Holdings
acquired substantially all of the assets of Boca Partnership on June 26, 1997,
in exchange for the consideration described below.
Upon the terms and subject to the provisions of the Contribution and
Exchange Agreement, all of the assets of Boca Partnership were transferred to
Panthers BRHC, in which the managing general partner and the limited partner are
wholly-owned by Panthers Holdings. As set forth in the Contribution and Exchange
Agreement, Panthers Holdings, through the managing general partner, limited
partner and Panthers BRHC, paid the following consideration: (i) a non-managing
general partnership interest in Panthers BRHC; (ii) Warrants to purchase 869,810
shares of Class A Common Stock; (iii) 189,574 shares of Class A Common Stock,
which were used to compensate certain affiliates of Boca Partnership, who
through their affiliates control the Boca General Partner, for their involvement
in integrating Boca Resort into Panthers Holdings; (iv) 82,729 shares of Class A
Common Stock, which were used to pay persons to whom Boca Partnership is
obligated to pay fees; (v) the Exchange Rights which, when distributed to the
Boca General Partner and the limited partners in accordance with the partnership
agreement of Boca Partnership, will entitle such holders, without any additional
consideration, to sell their partnership interests to an affiliate of Panthers
Holdings in exchange for approximately 4,242,586 shares of Class A Common Stock
exercisable at any time before January 31, 2001; and (vi) the assumption by
Panthers BRHC of indebtedness and payment by Panthers BRHC of deferred fees and
additional interest charges owed by the Boca Partnership in the amount of
approximately $205.9 million, of which approximately $95.9 million was repaid
from capital contributions by Panthers Holdings upon consummation of the
Contribution and Exchange. Of the $95.9 million in capital contributions, $60.9
million was paid from Panthers Holdings' working capital and $35.0 million was
paid from the incurrence of additional debt.
Following the consummation of the Contribution and Exchange, the Limited
Partners electing not to exercise the Exchange Rights to exchange the units of
limited partner interests ("Units") for shares of Class A Common Stock will
continue to hold the Units, the Boca General Partner will continue to hold its
general partner interest in Boca Partnership and Boca Partnership will hold a
general partner interest in Panthers BRHC. The Exchange Rights expire on January
31, 2001. However, the terms of the Panthers BRHC limited partnership agreement
(the "BRHC Partnership Agreement") provide Panthers Holdings
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with the option to purchase after thirty (30) day written notice a cash buy-out
at any time after January 31, 2001 all or a portion of the general partner
interest held by Boca Partnership in Panthers BRHC. Panthers Holdings is not
obligated to exercise its option to purchase all or any portion of the general
partner interest of Boca Partnership in Panthers BRHC. More specifically, at any
time after January 31, 2001, Panthers Holdings may acquire for cash all of the
general partner interest held by Boca Partnership in Panthers BRHC at a price
equal to the fair market value of such general partner interest, which will be
based on the distributions which would be made in respect of such general
partner interest if the Boca Raton Resort and Club were sold for its then
appraised value as obtained by an affiliate of Panthers Holdings in its capacity
as General Partner of Panthers BRHC and the proceeds were distributed pursuant
to the BRHC Partnership Agreement, with a 30% discount for non-marketability and
lack of control. If Panthers Holdings exercises its option to acquire a portion
of the general partner interest held by Boca Partnership in Panthers BRHC, the
cash price paid will equal the pro rata portion of the price if Panthers
Holdings purchased the entire interest held by the Boca Partnership in Panthers
BRHC. Accordingly, the limited partners who have not exercised their rights to
exchange their Units would receive a cash buy-out equivalent to their
proportional interests, as set forth in the partnership agreement of Boca
Partnership (the "Boca Partnership Agreement"), in the proceeds of a
hypothetical sale of the Boca Raton Resort and Club equivalent to 70% of
appraised value as obtained by an affiliate of Panthers Holdings in its capacity
as General Partner of Panthers BRHC. If the limited partners and the Boca
General Partner have not availed themselves of their right to exchange their
Units or Boca General Partner economic interest for shares of Class A Common
Stock on or before January 31, 2001, there can be no assurance (i) that limited
partners will receive any cash flow distributions from Boca Partnership under
the terms of the Boca Partnership Agreement, or that they will be able to sell
or otherwise dispose of their Units, or (ii) if the cash buy-out option is
exercised, that the price received by Boca Partnership in connection with such a
buy-out right and the resulting distribution will be greater than the value of
the Class A Common Stock into which the limited partners could exchange their
Units and it may be in their interest to exchange before the buy-out right is
exercised.
As the non-managing general partner of Panthers BRHC, Boca Partnership will
be liable to the creditors of Panthers BRHC other than those creditors who agree
to limit their recourse only to the assets of Panthers BRHC. In addition, under
the Panthers BRHC Partnership Agreement, so long as persons other than
affiliates of Panthers Holdings own more than 51% of the limited partnership
interests in Boca Partnership, the non-managing general partner will have the
right (i) to approve any amendment (unless such amendment will not have a
material adverse impact on Boca Partnership) to the BRHC Partnership Agreement;
(ii) to approve any sale of all or substantially all of the contributed assets
of Panthers BRHC prior to January 1, 2001, provided, however, if prior to
January 1, 2001, the Class A Common Stock closes at an average price of $52.75
for five consecutive trading days, the non-managing general partner shall have
no right to approve any sale of all or substantially all of the contributed
assets; (iii) to consult with the managing general partner to develop an annual
budget, provided, however, that the managing general partner will have the sole
authority to approve such budget; and (iv) to consult with the managing general
partner regarding the renewal or termination of employment agreements between
Panthers BRHC and operating management employees. Upon consummation of the
Contribution and Exchange, and until such time as a sufficient percentage of the
limited partners of Boca Partnership exercise their right to exchange their
respective Units for shares of Class A Common Stock, Panthers Holdings and its
affiliates will own less than 51% of Boca Partnership.
In lieu of a special meeting of the shareholders of Panthers Holdings,
action to approve and adopt the Contribution and Exchange Agreement was taken by
written consent of at least a majority of the total votes represented by the
outstanding shares of the Class A Common Stock and the Class B Common Stock,
voting together as a single class. The consents of the limited partners of Boca
Partnership to approve and adopt the Contribution and Exchange Agreement were
solicited separately by the Boca General Partner. The current limited partners
of Boca Partnership did not have appraisal rights in connection with the
Contribution and Exchange. However, no such limited partner will be forced to
exchange his limited partnership interest for Panthers Holdings' securities.
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MANAGEMENT OF BOCA RATON RESORT AND CLUB FOLLOWING THE CONTRIBUTION AND EXCHANGE
Upon consummation of the Contribution and Exchange, the day-to-day
operations of Boca Resort continued to be managed by Boca Resort's management
team.
RECENT DEVELOPMENTS
On November 26, 1997, Panthers Holdings consummated the acquisition of the
Rolling Hills Golf Course, which is located in Davie, Florida, for approximately
$8.0 million in cash. The transaction will be accounted for under the purchase
method of accounting.
Panthers Holdings' principal executive offices are located at 450 East Las
Olas Boulevard, Fort Lauderdale, Florida 33301 and its telephone number is (954)
712-1300.
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RISK FACTORS
Prospective investors should consider carefully the following risk factors,
together with the other information contained in this Prospectus, in evaluating
an investment in the shares of Class A Common Stock offered hereby. The
following factors and other information set forth in this Prospectus contain
certain forward-looking statements involving risks and uncertainties. Panthers
Holdings' actual results may differ materially from the results anticipated in
these forward-looking statements as a result of certain factors set forth in
this section and elsewhere in this Prospectus.
HISTORY OF LOSSES OF THE PANTHERS AND UNCERTAINTY OF FUTURE RESULTS
Panthers Holdings and its subsidiaries have not generated any earnings to
date and have incurred net losses of approximately $12.2 million, $10.3 million,
$25.1 million, $15.4 million, $12.9 million and $937,000 during the three months
ended September 30, 1997 and the years ended June 30, 1997, 1996, 1995 and 1994
and the seven months ended June 30, 1993, respectively. These losses were due
primarily to the operations of the Panthers. Although Panthers Holdings has
moved into the high-end luxury resort business, which is generally more
profitable than professional sports franchises, there can be no assurance that
Panthers Holdings will ever achieve a profitable level of operations or that
profitability, if achieved, can be sustained on an ongoing basis.
NEED FOR ADDITIONAL CAPITAL
Panthers Holdings' business may require substantial capital infusions on a
continuing basis to finance operations and expansion. Panthers Holdings' capital
resources are used to meet operating expenses, satisfy Panthers Holdings' debt
and other obligations, expand Panthers Holdings' existing resorts and acquire
additional resorts. Panthers Holdings believes that it has or can obtain sources
of capital from additional borrowings or the sale of debt or equity securities,
or some combination thereof to satisfy its capital requirements. In the event
Panthers Holdings cannot generate sufficient cash flow from its operations, or
is unable to borrow or otherwise obtain additional funds to finance its
operations, Panthers Holdings' financial condition or results of operations
could be materially adversely affected.
CHALLENGES OF INTEGRATING THE OPERATIONS OF THE RESORT FACILITIES
The full benefits of Panthers Holdings' acquisitions of the Resort
Facilities will require the integration of each entity's administrative, finance
and marketing organizations and the implementation of appropriate operational,
financial and management systems and controls. There can be no assurance that
Panthers Holdings will be able to integrate the operations of the Resort
Facilities successfully.
RISKS RELATING TO EXPANSION
Panthers Holdings may, as part of its growth strategy, consider making
additional acquisitions of certain resort-related, sports-related or other types
of businesses, as well as certain commercial properties, including properties
which may be owned by Mr. Huizenga, Panthers Holdings' Chairman of the Board, or
his affiliates. Panthers Holdings may make such acquisitions with cash or with
stock or a combination thereof. If Panthers Holdings does make any such
acquisitions, various associated risks may be encountered, including potential
dilution to the shares of Class A Common Stock then outstanding due to
additional shares of Class A Common Stock or Class B Common Stock (collectively,
the "Common Stock") being issued in connection with the acquisitions, incurrence
or assumption of debt, possible goodwill amortization or additional depreciation
on acquired property and equipment, diversion of management's attention,
possible environmental and other regulatory costs and unanticipated problems or
liabilities, some or all of which could have a material adverse effect on
Panthers Holdings' financial condition or results of operations.
CONTROL BY H. WAYNE HUIZENGA; VOTING RIGHTS
Panthers Holdings has two classes of common stock, the Class A Common Stock
and the Class B Common Stock. Panthers Holdings has issued shares of Class B
Common Stock to Mr. Huizenga to satisfy certain control requirements of the NHL.
In accordance with the NHL Constitution and Bylaws, a change in the controlling
shareholder must be approved by the NHL. As such, Mr. Huizenga is required to
maintain control of Panthers Holdings unless the NHL approves the transfer of
his controlling interests. The Class A Common Stock and the Class B Common Stock
generally vote together on each matter submitted to the
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stockholders for approval. Each share of Class A Common Stock is entitled to one
vote, and each share of Class B Common Stock is entitled to 10,000 votes.
Consequently, Mr. Huizenga, as the sole holder (holding 255,000 shares) of the
Class B Common Stock, will be able to control the management and policies of
Panthers Holdings and the outcome of substantially all of the matters submitted
to the stockholders for approval, including the election of directors.
Neither Panthers Holdings' charter nor its bylaws restrict the transfer of
the Class B Common Stock. Accordingly, subject to the requirements of federal
and state securities laws and the approval of the NHL, shares of Class B Common
Stock may be owned by persons other than Mr. Huizenga. As a result, control of
Panthers Holdings may be transferred by Mr. Huizenga to other persons without
the approval of the holders of Class A Common Stock and Mr. Huizenga may receive
a control premium, which may be significant, in connection with such sale.
DEPENDENCE ON KEY PERSONNEL
For the foreseeable future, Panthers Holdings will be materially dependent
upon the services of Mr. Huizenga. The loss of the services of Mr. Huizenga
could have a material adverse effect on Panthers Holdings. Panthers Holdings
does not carry key man life insurance on any of its officers.
SHARES OF CLASS A COMMON STOCK ELIGIBLE FOR FUTURE SALE
All of Panthers Holdings' currently issued and outstanding shares of Class
A Common Stock were either issued in the prior registered public offerings or
have been registered for resale, and thus are freely tradeable without
restriction under the Securities Act, unless held by an affiliate of Panthers
Holdings. In addition, Panthers Holdings has registered under the Securities Act
(i) the 5,112,396 shares of the Class A Common Stock registered hereunder which
were issued or are issuable in connection with the acquisition of Boca Resort,
(ii) 5,000,000 shares of the Class A Common Stock reserved for issuance under
the Amended and Restated 1996 Stock Option Plan and (iii) 6,000,000 shares of
Class A Common Stock which may be issued in connection with potential future
acquisitions and resales thereof by the recipients. Shares so registered could
be sold in the public market at any time. No predictions can be made as to the
effect, if any, that market sales of shares of Class A Common Stock or the
availability of the shares of Class A Common Stock 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 shares of Class A Common Stock in the public
market could adversely affect the market price of the Class A Common Stock and
could impair Panthers Holdings' future ability to raise capital through an
offering of equity securities.
POSSIBLE VOLATILITY OF STOCK PRICE
The trading price of the Class A Common Stock could be subject to
significant fluctuations in response to variations in quarterly results and
other factors.
ABSENCE OF DIVIDENDS
Panthers Holdings does not intend to pay any cash or stock dividends with
respect to its Common Stock in the foreseeable future. Furthermore, Panthers
Holdings' ability to declare or pay dividends on its Common Stock is limited by
the provisions of the NHL Bylaws and is expected to be limited by the terms of a
new credit facility which Panthers Holdings is currently negotiating.
OPERATING RISKS RELATING TO THE RESORT FACILITIES
The Resort Facilities are subject to all operating risks common to the
resort and hotel industry. These risks include, among other things,
over-building in the resort and hotel industry which adversely affects rates
charged by the Resort Facilities; increases in operating costs due to inflation
and other factors; dependence on tourism and weather conditions; increases in
energy costs and other expenses of travel; and adverse effects of general and
local economic conditions. Any of these factors could have a material adverse
effect on Panthers Holdings' financial condition or results of operations.
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SEASONALITY OF THE RESORT BUSINESS
The business of the Resort Facilities is generally seasonal. The Resort
Facilities, each of which is located in South 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.
COMPETITION
The resort and hotel industry is highly competitive. Competitive factors
within the resort and hotel industry include room rates, quality of
accommodations, service levels, convenience of location, reputation, reservation
systems, name recognition and availability of alternative resort and hotel
operations in local markets. Each of the Resort Facilities has a number of
competitors. An increase in the number of competitive resort and hotel
facilities in each of the Resort Facilities' respective markets could have a
material adverse effect on the levels of occupancy and average room rates of
each of the Resort Facilities. Further, there can be no assurance that new or
existing competitors will not significantly reduce their rates or offer greater
convenience, services or amenities or significantly expand, improve or develop
facilities in the markets in which the Resort Facilities compete, thereby
adversely affecting Panthers Holdings' resort and hotel operations.
The Panthers compete for entertainment and sports dollars not only with
other major league sports, but also with college athletics and other
sports-related entertainment. During portions of its season, the Panthers
experience competition from professional basketball (the Miami Heat),
professional football (the Miami Dolphins) and professional baseball (the
Florida Marlins). Mr. Huizenga currently controls the Miami Dolphins and the
Florida Marlins. In addition, the colleges and universities in South Florida, as
well as public and private secondary schools, offer a full schedule of athletic
events throughout the year. The Panthers also compete for attendance and
advertising revenue with a wide range of other entertainment and recreational
activities available in South Florida. Additionally, the Panthers compete with
other NHL and non-NHL teams, professional and otherwise, for available players.
CAPITAL EXPENDITURES RELATING TO THE RESORT FACILITIES
The Resort Facilities have an ongoing need for routine renovations and
other capital improvements, including periodic replacement of furniture,
fixtures and equipment. The cost of such capital improvements could have a
material adverse effect on Panthers Holdings' financial condition or results of
operations. In addition, the Resort Facilities may require non-routine
renovations in the future. Such renovations involve certain risks, including the
possibility of environmental problems, the possibility that Panthers Holdings
will not have available cash to fund renovations or that financing for
renovations will not be available on favorable terms, uncertainties as to market
demand or deterioration in market demand after commencement of renovation and
the emergence of unanticipated competition from other resorts, hotels and
alternative lodging facilities.
ENVIRONMENTAL MATTERS
Panthers Holdings' operating costs may be affected by the obligation to pay
for the cost of complying with existing environmental laws, ordinances and
regulations, as well as the cost of complying with future legislation. Under
various federal, state and local environmental laws, ordinances and regulations,
a current or previous owner or operator of real property may be liable for the
costs of removal or remediation of hazardous or toxic substances, as well as
contamination from such hazardous or toxic substances, on, under or in such
property. Such laws and regulations often impose liability whether or not the
owner or operator knew of, or was responsible for, the presence of such
hazardous or toxic substances. Liability extends to those persons arranging for
the disposal of hazardous or toxic substances. Environmental laws and
regulations also impose restrictions on the manner in which property may be used
or transferred or in which businesses may be operated thereon, and these
restrictions may require certain expenditures. In connection with the ownership
of its properties, Panthers Holdings may be liable for any such costs. The costs
of complying with environmental
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<PAGE> 11
laws and of defending against claims of liability arising therefrom could have a
material adverse effect on Panthers Holdings' financial condition and results of
operations.
LOSSES IN EXCESS OF RESORT FACILITIES' INSURANCE COVERAGE; LIMITATIONS OF
INSURANCE FOR THE PANTHERS
Panthers Holdings maintains comprehensive insurance on the Resort
Facilities, including liability, fire and extended coverage, in the types and
amounts customarily obtained by an owner and operator in the resort and hotel
industry. Nevertheless, there are certain types of losses, generally of a
catastrophic nature, that may be uninsurable or not economically insurable.
Panthers Holdings 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 Holdings' lost investment and the insurance
proceeds received by Panthers Holdings might not be adequate to restore its
economic position with respect to the Resort Facilities.
The Panthers maintain disability insurance for certain highly compensated
players, which insurance provides for up to 80% salary reimbursement after the
player misses 30 consecutive regular season games due to injury. In the event an
injured player is not insured or disability insurance does not cover the entire
amount of the injured player's salary, Panthers Holdings may be obligated to pay
all or a portion of the injured player's salary.
UNCERTAINTIES OF INCREASES IN THE PANTHERS' PLAYERS' SALARIES
Players' salaries in the NHL have increased significantly over the last
three seasons. The NHL Collective Bargaining Agreement is designed, in part, to
control the future rate of increase in players' salaries. However, there can be
no assurance that the rate of increase in players' salaries will be effectively
controlled. Significant increases in players' salaries could have a material
adverse effect on Panthers Holdings' financial condition or results of
operations.
NHL MEMBERSHIP -- POTENTIAL LIABILITIES AND OWNERSHIP RESTRICTIONS
Because the NHL is a joint venture, the Panthers and other members of the
NHL are generally jointly and severally liable for the debts and obligations of
the league. Any failure of other members of the NHL to pay their pro rata share
of any such debt or obligation could adversely affect the Panthers. In addition,
the Panthers and their personnel are bound by a number of rules, regulations and
agreements, including, but not limited to, the Constitution and Bylaws of the
NHL, national television contracts and the NHL Collective Bargaining Agreement.
The NHL Constitution and Bylaws contain provisions which may in some
circumstances operate to prohibit a person from acquiring Class A Common Stock
and affect the value of such Class A Common Stock. In general, any acquisition
of shares of Class A Common Stock which will result in a person or a group of
persons holding a 5% or more interest in Panthers Holdings, and each acquisition
of shares of Class A Common Stock which will result in a person or a group of
persons holding any multiple of a 5% interest, will require the prior approval
of the NHL, which may be granted or withheld in the sole discretion of the NHL.
DEVELOPMENT AND OPERATION OF THE BROWARD COUNTY ARENA
In June 1996, Panthers Holdings entered into an agreement with Broward
County to develop the Broward County Arena. Construction projects, such as the
development of a new arena, entail significant risks, including regulatory and
licensing requirements, shortages of materials or skilled labor, unforeseen
engineering, environmental or geological problems, work stoppages, weather
interferences, unanticipated cost increases and challenges from local residents.
Under the agreement with Broward County, Panthers Holdings will be responsible
for all costs relating to the development of the Broward County Arena in excess
of $184.7 million. There can be no assurance that Panthers Holdings can
successfully develop the Broward County Arena or that costs associated with the
development of the Broward County Arena will not exceed the $184.7 million
budget. Although Panthers Holdings anticipates that the Broward County Arena
will be completed in time for
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the 1998-99 season, there can be no assurance that the Broward County Arena will
be completed within the contemplated time frame.
EXERCISE OF THE WARRANTS AND THE EXCHANGE RIGHTS
Although Panthers Holdings has undertaken to maintain the effectiveness of
the registration statement relating to the Warrants and the Exchange Rights as
long as shall be necessary to permit the resale of any underlying Class A Common
Stock, there is a possibility that upon the announcement by Panthers Holdings of
a material event subsequent to the closing of the Contribution and Exchange, the
effectiveness of the registration statement may be suspended until such time as
Panthers Holdings has updated such registration statement.
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<PAGE> 13
THE CONTRIBUTION AND EXCHANGE
The following information describes all of the material aspects of the
Contribution and Exchange. This description does not, however, purport to be
complete and is qualified in its entirety by reference to the Contribution and
Exchange Agreement which is attached hereto as Annex A, and is incorporated
herein by reference.
GENERAL
Upon the terms and subject to the provisions of the Contribution and
Exchange Agreement, all of the assets of Boca Partnership were transferred to
Panthers BRHC, in which the managing general partner and the limited partner are
wholly-owned by Panthers Holdings. As set forth in the Contribution and Exchange
Agreement, Panthers Holdings, through the managing general partner, limited
partner and Panthers BRHC, paid the following consideration: (i) a non-managing
general partnership interest in Panthers BRHC; (ii) the Warrants to purchase
869,810 shares of Class A Common Stock; (iii) 189,574 shares of Class A Common
Stock, which were used to compensate certain affiliates of Boca Partnership, who
through their affiliates control the Boca General Partner, for their involvement
in integrating Boca Resort into Panthers Holdings; (iv) 82,729 shares of Class A
Common Stock, which were used to pay persons to whom Boca Partnership is
obligated to pay fees; (v) the Exchange Rights which, when distributed to the
Boca General Partner and the limited partners in accordance with the partnership
agreement of Boca Partnership, will entitle such holders, without any additional
consideration, to sell their partnership interests to an affiliate of Panthers
Holdings in exchange for approximately 4,242,586 shares of Class A Common Stock
exercisable at any time before January 1, 2001; and (vi) the assumption by
Panthers BRHC of indebtedness and payment by Panthers BRHC of deferred fees and
additional interest charges owed by the Boca Partnership in the amount of
approximately $205.9 million, of which approximately $95.9 million was repaid
from capital contributions by Panthers Holdings upon consummation of the
Contribution and Exchange. Of the $95.9 million in capital contributions, $60.9
million was paid from Panthers Holdings' working capital and $35.0 million was
paid from the incurrence of additional debt.
Fifty percent of the Warrants will expire on December 31, 1998 and the
remaining fifty percent of the Warrants will expire on December 31, 1999. The
Exchange Rights will expire on January 31, 2001. The discussion in this
Prospectus regarding the Contribution and Exchange Agreement and the description
of the principal terms of the Contribution and Exchange Agreement are subject to
and qualified in their entirety by reference to the Contribution and Exchange
Agreement.
THE WARRANTS AND THE EXCHANGE RIGHTS
The Warrants issued in connection with the Contribution and Exchange
entitle the holders thereof to purchase an aggregate of approximately 869,810
shares of Class A Common Stock. Each of the Warrants is immediately exercisable
to purchase one share of the Class A Common Stock at a price of $29.01. Fifty
percent of the Warrants will expire on December 31, 1998 and the remaining fifty
percent of the Warrants will expire on December 31, 1999.
The Exchange Rights issued in connection with the Contribution and Exchange
are exercisable for an aggregate of approximately 4,242,586 shares of the Class
A Common Stock. Each of the Exchange Rights is immediately exercisable, without
further consideration, for one share of the Class A Common Stock. The Exchange
Rights will expire on January 31, 2001.
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<PAGE> 14
LEGAL MATTERS
The validity of the shares of the Class A Common Stock offered hereby will
be passed upon for Panthers Holdings by Akerman, Senterfitt & Eidson, P.A.,
Miami, Florida. Certain attorneys at Akerman, Senterfitt & Eidson, P.A. own
shares of Panthers Holdings' Class A Common Stock.
EXPERTS
The audited financial statements of the Florida Panthers Holdings, Inc. as
of June 30, 1997, and 1996 and for each of the three years in the period ended
June 30, 1997; the audited financial statements of 2301 Ltd. as of December 31,
1996 and the year then ended; the audited financial statements of Rahn Bahia
Mar, Ltd. as of December 31, 1996 and 1995, and for the years ended December 31,
1996 and 1995 and the period from inception (June 28, 1994) to December 31,
1994; the audited financial statements of Coral Springs Ice, Ltd. as of December
31, 1996 and for the period from inception (February 26, 1996) to December 31,
1996 and the audited financial statements of LeHill Partners L.P. and
consolidated entities as of December 31, 1996 and for the year then ended
incorporated by reference into this Prospectus and Registration Statement have
been audited by Arthur Andersen LLP, independent certified public accountants,
as indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
The audited financial statements of 2301 SE 17th St. Ltd. as of December
31, 1995, and for each of the years in the two year period ended December 31,
1995, have been incorporated by reference into this Prospectus and in the
Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, appearing elsewhere herein, and upon
the authority of said firm as experts in accounting and auditing.
The financial statements of the Boca Raton Hotel and Club Limited
Partnership as of December 31, 1996 and for the year then ended incorporated by
reference into this Prospectus and Registration Statement have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
certified public accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of Boca Raton Hotel and Club Limited Partnership
at December 31, 1995, and for each of the two years in the period ended December
31, 1995 incorporated by reference into this Prospectus and the Registration
Statement have been audited by Ernst & Young LLP, independent certified public
accountants, as set forth in their report thereon, and are given upon the
authority of such firm as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Panthers Holdings with
the Commission are incorporated by reference and made a part of this Prospectus:
(i) Panthers Holdings' Annual Report on Form 10-K for the fiscal year ended June
30, 1997, which was filed with the Commission on September 29, 1997, as amended
on Form 10-K/A filed October 14, 1997; (ii) all other reports filed by Panthers
Holdings pursuant to Section 13(a) or 15(d) of the Exchange Act since June 30,
1997, specifically including Panthers Holdings' Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 1997, which was filed with the
Commission on November 14, 1997, Panthers Holdings' Current Reports on Form 8-K
dated June 26, 1997, August 13, 1997 and November 17, 1997, which were filed
with the Commission on July 1, 1997, August 27, 1997 and November 17, 1997,
respectively, and Panthers Holdings' amended Current Report on Form 8-K/A dated
August 13, 1997 and filed October 27, 1997; (iii) the description of the Common
Stock contained in Panthers Holdings' Registration Statement on Form 8-A, dated
and filed with the Commission on July 9, 1997; (iv) and Panthers Holdings'
Post-Effective Amendment No. 3 to Registration Statement on Form S-4 filed
November 17, 1997 (Regis. No. 333-28951).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the Offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document or information incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent
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<PAGE> 15
that a statement contained herein or in any subsequently filed document that
also is, or is deemed to be, incorporated herein by reference, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The making of a modifying or superseding statement shall not be deemed an
admission that the modified or superseded statement, when made, constituted a
misrepresentation, an untrue statement of a material fact or an omission to
state a material fact that is required to be stated or that is necessary to make
a statement not misleading in light of the circumstances in which it was made.
PANTHERS HOLDINGS UNDERTAKES TO PROVIDE, WITHOUT CHARGE, TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS IS DELIVERED,
UPON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY AND ALL OF THE
DOCUMENTS OR INFORMATION REFERRED TO ABOVE THAT HAS BEEN OR MAY BE INCORPORATED
BY REFERENCE IN THIS PROSPECTUS (EXCLUDING EXHIBITS TO SUCH DOCUMENTS UNLESS
SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE). REQUESTS SHOULD BE
DIRECTED TO RICHARD L. HANDLEY, SECRETARY, FLORIDA PANTHERS HOLDINGS, 450 EAST
LAS OLAS BOULEVARD, FORT LAUDERDALE, FLORIDA 33301, TELEPHONE: (954) 712-1300.
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<PAGE> 16
ANNEX A
AMENDED AND RESTATED
CONTRIBUTION AND EXCHANGE AGREEMENT
(BOCA RATON HOTEL & CLUB)
This Contribution and Exchange Agreement (this "Agreement") is entered into
as of March 20, 1997 by and among FLORIDA PANTHERS HOLDINGS, INC., a Florida
corporation ("Panthers"); PANTHERS BRHC LIMITED, a Florida limited partnership
("Panthers BRHC Limited"); BOCA RATON HOTEL AND CLUB LIMITED PARTNERSHIP, a
Florida limited partnership ("Partnership"); BRMC, L.P., a Delaware limited
partnership ("General Partner") and BRMC CORPORATION, a Delaware corporation and
general partner of the General Partner ("BRMC").
RECITALS
The Board of Directors of Panthers has determined that it is in the best
interests of Panthers shareholders for Panthers to acquire, directly or
indirectly, all of the assets of the Partnership and the General Partner has
determined on behalf of the Partnership that it is in the best interests of the
Partnership and its limited partners to transfer all its assets to Panthers BRHC
Limited as provided herein.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE EXCHANGE
1.1 The Closing. Subject to the terms and conditions of this Agreement,
the consummation of the transactions contemplated hereunder ("Closing") shall
take place on a date which is on or about five (5) business days after
satisfaction or waiver of the conditions set forth in Articles VI and VII, at
the offices of Panthers' counsel, Akerman, Senterfitt & Eidson, P.A., Miami,
Florida, or such other time and place as the parties may otherwise agree, it
being the intent of the parties to close as promptly as practicable. The date on
which the Closing occurs is hereinafter referred to as the Closing Date.
1.2 Partnership's Contribution of Assets. The Partnership shall convey,
transfer, assign and deliver to Panthers BRHC Limited at the Closing on the
terms and subject to the conditions set forth in this Agreement, all of its
assets, properties and business of every kind and description, whether real,
personal or mixed, tangible or intangible, wherever located (except those assets
of the Partnership which are specifically excluded as provided in Section 1.3
hereof) as shall exist on the Closing Date (collectively, the "Contributed
Assets"). Without limiting the generality of the foregoing, the Contributed
Assets shall include the following:
(a) all right, title and interest of the Partnership in and to the
Owned Property (as defined in Section 3.11 hereof) and as lessee under any
leases covering the properties leased by the Partnership;
(b) all machinery, equipment, tools, supplies, leasehold improvements,
constructions in progress, furniture and fixtures located at or on any
parcel of the Owned Property or leased premises;
(c) all inventory of the Partnership;
(d) all receivables of the Partnership, including without limitation,
all trade accounts receivable, notes receivable, and receivables from
insurance companies, service contract providers and any other vendors or
suppliers of the Partnership (whether on accounts owed as incentive
payments or otherwise), but excluding any receivables due from any
Affiliate of the Partnership or any Partner of the Partnership which shall
be paid or satisfied prior to the Closing;
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<PAGE> 17
(e) all of the interests, rights and benefits accruing to the
Partnership under any sales contracts, supply contracts, service
agreements, purchase orders and purchase commitments made by the
Partnership in the ordinary course of business, all other agreements to
which the Partnership is a party or by which it is bound and all other
choses in action, causes of action and other rights of every kind of the
Partnership;
(f) all operating data and records of the Partnership, including
without limitation, customer lists and records, financial, accounting and
credit records, correspondence, budgets and other similar documents and
records;
(g) all of the proprietary rights of the Partnership, including
without limitation, all trademarks, trade names, patents, patent
applications, licenses thereof, trade secrets, technology, knowhow,
formulae, designs and drawings, computer software, slogans, copyrights,
processes, operating rights, other licenses and permits and other similar
intangible property and rights relating to the products or business of the
Partnership;
(h) all cash and cash equivalents and investments, whether short-term
or long-term, of the Partnership, including without limitation,
certificates of deposit, treasure bills and securities;
(i) all prepaid and deferred items of the Partnership, including
without limitation, prepaid rentals, insurance, taxes and unbilled charges
and deposits relating to the operations of the Partnership; and
(j) all right, title and interest of the Partnership in and to any
other intangible property of the Partnership.
1.3 Excluded Assets. The Contributed Assets shall exclude the following
assets of the Partnership: (i) the Exchange Rights (as defined in Section
1.8(i)) and the Panthers Warrants (as defined in Section 1.8(j)), and the Fee
Shares (as defined in Section 1.8(i)) and the rights of the Partnership under
this Agreement; (ii) the minute books and partnership interest transfer records
of the Partnership; and (iii) those assets set forth on Exhibit "A" attached
hereto ("Sold Assets"), which shall be sold by the Partnership to Panthers, or
its designee, at closing in consideration of the Exchange Rights and the
Panthers Warrants and the Fee Shares.
1.4 Assignment of Contracts. Notwithstanding anything in this Agreement to
the contrary, this Agreement shall not constitute an assignment of any claim,
contract, license, franchise, lease, commitment, sales contract, supply
contract, service agreement or purchase commitment if an attempted assignment
thereof without the consent of a third party thereto would constitute a breach
thereof or in any way adversely affect the rights of Panthers BRHC Limited
thereunder. If such consent is not obtained, or if any attempt at an assignment
thereof would be ineffective or would affect the rights of Panthers BRHC Limited
thereunder so that Panthers BRHC Limited would not in fact receive all such
rights, the Partnership, the General Partner and BRMC shall cooperate, to the
best of their ability, but at the cost and expense of Panthers BRHC Limited
without reduction of the purchase price calculated under Section 1.8(i), with
Panthers BRHC Limited to the extent necessary to provide for Panthers BRHC
Limited the benefits under such claim, contract, service agreement, purchase
order or purchase commitment, including enforcement for the benefit of Panthers
BRHC Limited of any and all rights of the Partnership against a third party
thereto arising out of the breach or cancellation by such third party or
otherwise. The provisions of this Section 1.4 shall not affect or modify any
other rights of Panthers BRHC Limited under this Agreement.
1.5 Panthers Contribution of Assets. At or prior to the Closing, Panthers,
or its designees, shall contribute or cause to be contributed to Panthers BRMC
Limited ((a), (b) and (c) below being referred to as the "Panthers Capital
Contribution"):
(a) Cash in an amount sufficient to pay off in full at the Closing
Date the obligations of the Partnership set forth on Schedule 1.5 attached
hereto;
(b) At the written election of BRMC, which shall be delivered within
five (5) days prior to the Closing Date, cash or 141,232 shares (adjusted,
as appropriate, for any stock split, reverse stock split, stock dividend or
"Special Transaction" generally in accordance with the provisions of
Exhibit "B"
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<PAGE> 18
attached hereto) of the Class A common stock of Panthers, par value $.01
per share ("Panthers Common Stock") to satisfy the $3.725 million
Partnership's deferred fee obligations to BRMC; and
(c) The Sold Assets, which the parties agree will have a value of $30
million.
That portion of the Panthers Capital Contribution described in clause (a)
shall be determined with reference to the payoff letters required by Section
5.17 hereof. For purposes of Panthers BRHC Limited's partnership agreement, the
Panthers Capital Contribution shall also include: (i) the aggregate value of any
Panthers Common Stock issued upon exercise of any options granted to those
persons referred to in Section 6.8 hereof; (ii) any cash contributed to pay off
the $110 Million Senior Facility under the Loan Agreement ("Senior Facility"),
when and if permitted hereunder and under Panthers BRHC Limited's partnership
agreement; (iii) any additional cash contributed by Panthers to Panthers BRHC
Limited to pay transaction costs and expenses under Section 5.20 hereof, and
(iv) any other non-reimbursable expenses of Panthers BRHC Limited paid by
Panthers and additional cash contributed to the equity of Panthers BRHC Limited.
1.6 Assumed Liabilities. Panthers BRHC Limited shall at the Closing assume
and agree to pay, discharge, and perform when lawfully required all of the
obligations, duties and liabilities of the Partnership whether absolute or
contingent, known or unknown. The obligations, duties and liabilities assumed by
Panthers BRHC Limited pursuant to this Section 1.6 shall be referred to as the
"Assumed Liabilities."
1.7 No Expansion of Third Party Rights. The assumption by Panthers BRHC
Limited of the Assumed Liabilities, the transfer thereof by the Partnership, and
the limitations of such transfer shall in no way expand the rights or remedies
of any third party against Panthers BRHC Limited or the Partnership as compared
to the rights and remedies which such third party would have against the
Partnership had Panthers BRHC Limited not assumed such liabilities. Without
limiting the generality of the preceding sentence, the assumption by Panthers
BRHC Limited of the Assumed Liabilities shall not create any third party
beneficiary rights.
1.8 Procedure at the Closing. At the Closing, the parties agree that the
following shall occur:
(a) Panthers (or its designee) and the Partnership shall enter into a
partnership agreement for Panthers BRHC Limited, the form of which shall be
agreed upon no later than thirty (30) days from the date of this Agreement;
provided however, that such agreement shall provide that:
(i) Affiliates of Panthers will be the managing General Partner of
Panthers BRHC Limited and the holder of a limited partnership interest
therein (the "Panther Interest");
(ii) The Partnership shall acquire a non-managing general
partnership interest ("Boca LP Interest") in exchange for the
Contributed Assets;
(iii) Cash from operations determined by the managing general
partner to be available for distribution will be distributed (x) first
to the holders of the Panther Interest in payment of a profit share
equal to 15% per annum, cumulative and compounded, on the "Base Amount,"
which shall equal the Panthers Capital Contributions, and (y) next in
proportion to each of the partner's percentage interests in Panthers
BRHC Limited (the "Contribution Ratio"); provided, however, that if any
taxable income is allocated to the Partnership, cash equal to 40% of
such taxable income will be distributed to the Partnership; the initial
Contribution Ratio for the holders of the Panther Interest for the first
fiscal year ending after the Closing Date, expressed as a percentage,
will be determined by dividing (A) by (B). (A) equals the Capital
Contributions made by holders of the Panther Interest, which for the
first fiscal year will be determined as of forty-five days after the
Closing Date. (B) equals the sum of (A) plus the initial capital account
credit of the Partnership, which shall equal the dollar amount specified
in Section 1.8(i), less the value of the Sold Assets. The Contribution
Ratio shall be re-determined when Panthers or the Partnership contribute
additional capital to Panthers BRHC Limited. In such case, (A) will
equal the Capital Contributions made by the holders of the Panther
Interest. (B) will equal the sum of (x)(A), (y) the initial capital
account
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<PAGE> 19
credit of the Partnership and (z) additional capital, if any,
contributed to the equity of Panthers BRHC Limited by the Partnership.
(iv) Cash from any sale or refinancing or other capital
transactions determined by the managing general partner of Panthers BRHC
Limited to be available for distribution will be distributed (1) first
to the holders of the Panther Interest in payment of their unpaid profit
share on the Base Amount, (2) next to the holders of the Panther
Interest in repayment of their capital accounts, (3) next in payment of
the capital account of the Partnership and (4) next in accordance with
the Contribution Ratio;
(v) Taxable income and loss will generally be allocated in
accordance with the Contribution Ratio except that the Panther Interest
will be specially allocated a profit share on the Base Amount;
(vi) The Partnership will have no voting rights under the limited
partnership agreement, except that for so long as Persons other than
Panthers (or its designees) own more than 51% of the limited partnership
interests of the Partnership, the Partnership, after due and proper
notice, shall have the right: (1) to approve any amendment (unless such
amendment will not have a material adverse impact on the Partnership) to
the partnership agreement of Panthers BRHC Limited (the provisions of
Section 5.13 hereof will be included in the partnership agreement); (2)
to approve any sale of all or substantially all of the Contributed
Assets of Panthers BRHC Limited prior to January 1, 2001; provided
however, if prior to January 1, 2001, Panthers Common Stock closes at an
average price of $52.75 for five consecutive trading days on the NASDAQ
Stock Market, the Partnership shall have no right to approve any sale of
all or substantially all of the Contributed Assets; (3) to consult with
the managing general partner to develop an annual budget provided,
however, that the managing general partner will have the sole authority
to approve such budget; and (4) to consult with the managing general
partner regarding the renewal or termination of employment agreements
between Panthers BRHC Limited and Operating Management employees;
(vii) An affiliate of Panthers shall have the right to manage the
Owned Property for a management fee equal to 3% of the gross revenues of
Panthers BRHC Limited;
(viii) At any time on or after January 31, 2001, Panthers (or its
designee) shall have the right to acquire, for cash, all or a portion of
the partnership interests of the Partnership in Panthers BRHC Limited at
a price equal to the Fair Market Value of the partnership interest being
acquired. The Fair Market Value of a partnership interest shall be
calculated as set forth on Exhibit "C" attached hereto. The acquisition
shall be automatically effected by Panthers after thirty days prior
written notice to the Partnership;
(ix) For federal income tax purposes, the Partnership is subject to
Section 704(c) of the Internal Revenue Code of 1986, as amended (the
"Code"), with respect to its transfer of assets to Panthers BRHC
Limited. Panthers agree to cause Panthers BRHC Limited to elect the
remedial allocation method specified in Treasury Regulation Section
1.704-3(d). Panthers shall allocate the book value of the Contributed
Assets to each asset or class of assets provided such allocation does
not cause or create on the Closing Date income to the Partnership under
Sections 752 and 731 of the Code;
(x) At the option of Panthers, Panthers BRHC Limited shall make an
election under Section 754 of the Code. At the request of Panthers, the
Partnership shall make timely election under Section 754 of the Code for
the taxable year ending on the Closing Date, and any other taxable year
of the Partnership following its termination under Section 708(b)1)(B)
of the Code;
(xi) The partnership agreement will allow the holders of the
Panther Interest to cause after January 31, 2001, a tax termination of
Panthers BRHC Limited under Section 708(b)(1)(B) even if such action
creates an adverse effect to the Partnership;
(xii) The general partnership interest of the Partnership in
Panthers BRHC Limited will not be transferable, other than to Panthers
and its Affiliates;
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(xiii) Panthers may admit additional limited partners to Panthers
BRHC Limited in return for capital contributions and/or grant lenders
participation rights in the profits of Panthers BRHC Limited, subject to
Section 5.13 and provided that any dilution of partnership interests
resulting therefrom shall be proportionate between the Partnership and
the holders of the Panther Interests;
(xiv) The Panther Interest which is a limited partnership interest
in Panthers BRHC Limited may be transferred. The Panther Interest which
is a general partnership interest may be transferred to a Panthers
Affiliate, or to a non-Affiliate with the consent of the Partnership.
Any transfer causing a tax termination of Panthers BRHC Limited under
Section 708(b)(1)(B) of the Code on or before January 31, 2001, shall be
prohibited unless there are no material adverse tax consequences to the
Partnership or its partners;
(xv) Panthers, or its designee, may elect to borrow from Panthers
BRHC Limited, and upon such election Panthers BRHC Limited shall loan to
Panthers, or its designee, the proceeds of any financing or refinancing
of the Contributed Assets and Sold Assets ("Refinancing") on terms and
conditions equal to those of the Refinancing; and
(xvi) The partnership agreement will also contain other standard
terms, including customary indemnification provisions in favor of the
direct and indirect general partners of Panthers BRHC Limited and
payment by Panthers BRHC Limited to the Partnership of an administrative
fee to reimburse the Partnership for certain of its expenses.
(b) The Partnership shall have satisfied each of the conditions set
forth in Article VI and shall deliver to Panthers BRHC Limited the
documents, certificates, opinions, consents and letters required by Article
VI, unless waived by Panthers.
(c) Panthers and Panthers BRHC Limited shall have satisfied each of
the conditions set forth in Article VII and shall deliver to the
Partnership the documents, certificates, consents and letters required by
Article VII, unless waived by the Partnership.
(d) The Partnership shall deliver to the Panthers BRHC Limited such
warranty deeds, bills of sale, endorsements, assignments, releases and
other instruments and documents (including certificates and resolutions) in
such form as is reasonably satisfactory to Panthers BRHC Limited and as
shall be sufficient to vest in Panthers BRHC Limited (or its assignee) good
and marketable title to the Contributed Assets.
(e) Panthers BRHC Limited shall deliver to the Partnership
instruments, in such form as is reasonably satisfactory to the Partnership
and as shall be sufficient to effect the assumption by Panthers BRHC
Limited of the Assumed Liabilities.
(f) Panthers, Panthers BRHC Limited and the Partnership shall execute
and deliver a cross-receipt acknowledging receipt of the Contributed
Assets, the Sold Assets, the Exchange Rights (defined below), the Panthers
Warrants (defined below) and the Fee Shares (defined below).
(g) The Partnership shall deliver to Panthers BRHC Limited payoff and
estoppel letters in accordance with Section 5.17, and Panthers BRHC Limited
shall pay off in full the debt referred to in Schedule 1.5 hereof.
(h) The Partnership shall pay the expenses referred to in Section 5.20
out of a portion of the cash contributed under Section 1.5(a).
(i) Partnership shall sell to Panthers (or its designee) the Sold
Assets set forth on Exhibit "A" in consideration of delivery of the
Exchange Rights and Warrants described below, as well as a number of Shares
of Panthers Common Stock (the "Fee Shares") necessary to satisfy the
Partnership's obligations to pay certain fees to (i) the holder of the
third mortgage on the Partnership's assets, (ii) Temple Development Company
and (iii) Operating Management, as shall be designated by the General
Partner prior to Closing. Panthers shall deliver an Exchange Agreement
("Exchange Agreement") to the Partnership, granting to the Partnership (or
to the Partnership's partners) rights ("Exchange Rights") to
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acquire, in exchange for all of the partnership interests in the
Partnership, an aggregate number of shares (rounded to the nearest whole
share) of Panthers Common Stock (the "Panthers Shares" and each, a
"Panthers Share") determined by dividing (i) the difference between Three
Hundred Twenty Million Dollars ($320,000,000) minus (w) the value of the
Fee Shares (determined using the Price per Share, but subject to the
anti-dilution provisions set forth on Exhibit "B" attached hereto), minus
(x) the outstanding principal balance, and any accrued and unpaid interest
thereon that is past due as of the Closing Date, under the $110 Million
Senior Facility evidenced by the Loan Agreement, minus (y) the amount of
cash contributed under Section 1.5(a) (other than the amount contributed to
cover expenses as set forth in Schedule 1.5, subsection (vii) and Schedule
5.20), minus (z) Three Million Seven Hundred Twenty-Five Thousand Dollars;
by (ii) $26.375 (the "Price per Share"). In no case shall the number of Fee
Shares and the number of Panthers Shares underlying the Exchange Rights
exceed that number of shares determined in the preceding sentence without
regard to clause (w). The number of Panthers Shares shall be reserved by
Panthers for issuance under the Exchange Agreement and shall be subject to
the anti-dilution provisions set forth on Exhibit "B" attached hereto. The
Exchange Agreement shall provide: (a) for the mechanics of the exchange;
(b) that in the event the sale of all or substantially all of the
Contributed Assets is consummated prior to exercise of any Exchange Rights,
upon notice to the holders of the Exchange Rights, the Exchange Rights
shall expire; (c) that Exchange Rights to acquire an amount of Panthers
Common Stock with a fair market value at Closing equal to Two Million Five
Hundred Thousand Dollars ($2,500,000) (as determined pursuant to Section
9.3(d) below) shall be held back ("Held Back Interests") subject to the
provisions of Article IX hereof; (d) after due and proper notice that any
partnership interest in the Partnership so exchanged shall be transferred
to a designee of Panthers; and (e) that, after due and proper notice, the
Exchange Rights shall expire at January 31, 2001.
(j) Panthers shall deliver to the Partnership, registered in the name
of the holders specified by the Partnership in writing not less than five
(5) business days prior to Closing, an aggregate number of warrants to
acquire a number of shares of Panthers Common Stock equal to twenty (20%)
percent of the number of Fee Shares and the number of Panthers Shares
issued pursuant to the second sentence of Section 1.8(i) above ("Panthers
Warrants"). The Panthers Warrants shall be exercisable at a price of $29.01
per share. Fifty (50%) percent of the Panthers Warrants shall expire on
December 31, 1998 and the remaining fifty (50%) percent of the Panthers
Warrants shall expire on December 31, 1999. The number of Panthers Warrants
shall be subject to the anti-dilution provisions set forth in Exhibit "B"
attached hereto.
1.9 Filing of Documents. At the time of the Closing, the parties shall
cause to be filed with the Secretary of State of the State of Florida any
documents that Panthers or Panthers BRHC Limited determines to be required to
lawfully effect the purposes of this Agreement.
1.10 Tax Treatment. The parties hereto acknowledge and agree that the
receipt of the non-managing general partnership interest in Panthers BRHC
Limited by the Partnership contemplated hereby is intended to be a tax-free
transaction under Section 721 of the Code.
1.11 Option to Acquire General Partner's Interest in the Partnership. The
General Partner does hereby grant to Panthers the option to acquire, directly or
through its designee and exercisable upon the earlier of January 15, 2001 or at
such time as all of the Exchange Rights have been exercised, its general
partnership interest in the Partnership for $1.00 ("Option"). The Option shall
not expire unless waived in writing by Panthers. The General Partner shall
transfer its general partnership interest to Panthers' designee within five days
after Panthers' written notice to General Partner that it is electing to
exercise the Option.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF PANTHERS
As a material inducement to the Partnership to enter into this Agreement
and to consummate the transactions contemplated hereby, Panthers and Panthers
BRHC Limited make the following representations and warranties to the
Partnership:
2.1 Corporate Status. 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. Panthers BRHC Limited is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Florida. Panthers BRHC Limited has the requisite power and authority to carry on
its business and to own or lease its properties.
2.2 Corporate Power and Authority. Panthers and Panthers BRHC Limited each
have the power and authority to execute and deliver this Agreement, to perform
their respective obligations hereunder and to consummate the transactions
contemplated hereby. Other than Panthers obtaining shareholder approval, each of
Panthers and Panthers BRHC Limited have taken all action necessary to authorize
its execution and delivery of this Agreement, and the performance of their
respective obligations hereunder and the consummation of the transactions
contemplated hereby.
2.3 Enforceability. This Agreement has been duly executed and delivered by
Panthers and Panthers BRHC Limited and constitutes a 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.
2.4 Exchanged Securities. Upon consummation of the transactions
contemplated hereunder, the Panthers Warrants will be validly issued. Upon
exercise of any Exchange Rights under the Exchange Agreement for Panthers
Shares, and the issuance and delivery of certificates representing the Panthers
Shares to the holders of the Exchange Rights, the Panthers Shares will be
validly issued, fully paid and non-assessable shares of Panthers Common Stock.
Upon exercise of the Panthers Warrants, and payment of the exercise price with
respect thereto, the shares of Panthers Common Stock issued thereunder will be
validly issued, fully paid and non-assessable.
2.5 No Commissions. 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.
2.6 No Violation. The execution and delivery of this Agreement by Panthers
and Panthers BRHC Limited and the performance by them of their respective
obligations hereunder and the consummation by them of the transactions
contemplated by this Agreement will not: (a) contravene any provision of the
articles of incorporation or bylaws of Panthers or the Partnership Agreement or
Certificate of Limited Partnership of Panthers BRHC Limited; (b) violate or
conflict with any law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment or order of any Governmental Authority or of any
arbitration award which is either applicable to, binding upon or enforceable
against Panthers or Panthers BRHC Limited; (c) conflict with, result in any
breach of, or constitute a default (or an event which would, with the passage of
time or the giving of notice or both, constitute a default) under, or give rise
to a right to terminate, amend, modify, abandon or accelerate, any Contract
which is applicable to, binding upon or enforceable against Panthers or Panthers
BRHC Limited; (d) result in or require the creation or imposition of any Lien
upon or with respect to any of the property or assets of Panthers or Panthers
BRHC Limited; or (e) require the consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Authority, any court or
tribunal or any other Person, except any applicable filings required under the
HSR Act, any SEC filings required to be made by Panthers, any SEC and state
filings contemplated hereby, and any filings required to be made in connection
with the transfer of the licenses and permits contemplated hereunder as part of
the Contributed Assets and the Sold Assets.
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2.7 SEC Filings. From November 8, 1996 through the date hereof, Panthers
has duly and timely filed with the SEC all reports, proxy statements and other
information required to be filed by it under the Exchange Act (the "SEC
Filings"). The SEC Filings, at the time of filing did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading. Except as
disclosed in the SEC Filings, since November 8, 1996 to the date hereof, there
has not been any Material Adverse Change in the business, financial position or
results of operations of Panthers. The Registration Statement and Prospectus to
be filed pursuant to Article VIII hereof at the time of filing will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
2.8 Capitalization. As of the date hereof, the authorized capital stock of
Panthers consists of 100,000,000 shares of Panthers Common Stock (which number
includes 2,600,000 shares of Panthers Common Stock reserved for issuance under
the Panthers' 1996 Stock Option Plan) and 10,000,000 shares of Class B common
stock, par value $.01 per share. Panthers has no shares of preferred stock
authorized. As of March 4, 1997: (a) 23,648,444 shares of Panthers Common Stock,
which number does not include 920,440 shares of Panthers Common Stock which are
subject to granted but currently unexercisable options, were validly issued and
outstanding, fully paid and nonassessable, and (b) 255,000 shares of Panthers
Class B Common Stock were validly issued and outstanding, fully paid and
nonassessable. As of the Closing Date, the number of shares of Panthers Common
Stock equal to the aggregate number of shares of Panthers Common Stock
underlying the Exchange Rights and the Panthers Warrants will be reserved for
issuance upon exercise of the Exchange Rights and upon exercise of the Panthers
Warrants.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
PARTNERSHIP, THE GENERAL PARTNER AND BRMC
As a material inducement to Panthers and to Panthers BRHC Limited to enter
into this Agreement and to consummate the transactions contemplated hereby, the
Partnership, the General Partner and BRMC make the following representations and
warranties to the Panthers and Panthers BRHC Limited:
3.1 Partnership's Organization. (i) The Partnership is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Florida, and (ii) the character of the properties owned or
leased by Partnership and the nature of Partnership's business do not require it
to be qualified and in good standing in any other state.
3.2 General Partner's and BRMC's Organization. General Partner is a
limited partnership, duly organized, validly existing and in good standing under
the laws of the State of Delaware and is qualified to do business under the laws
of the State of Florida. BRMC is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware and is qualified to
do business under the laws of the State of Florida. General Partner is the sole
general partner of Partnership and BRMC is the sole general partner of General
Partner.
3.3 Subsidiaries. Except as set forth on Schedule 3.3 hereof, the
Partnership does not own, directly or indirectly, any outstanding voting
securities of or other interests in, or control, any other corporation,
partnership, joint venture or other business entity.
3.4 Power and Authority. The Partnership has partnership power and
authority, as applicable, to: (i) to conduct its business as now conducted; (ii)
execute and deliver this Agreement, and (iii) subject to obtaining appropriate
limited partner consents required by its partnership agreement, close the
transactions contemplated by this Agreement. Each of the General Partner and
BRMC has full partnership or corporate power and authority to authorize and
consent to the execution and delivery by the Partnership of this Agreement, and,
subject to obtaining appropriate consents of the limited partners of the
Partnership and the General Partner, if any, the performance by Partnership of
its obligations hereunder. All of the consents of the general
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partner of each of the Partnership and the General Partner, and of the Board of
Directors of BRMC, required, if any, in connection with the execution, delivery
and performance of this Agreement have been obtained.
3.5 Due Execution/Enforceability. This Agreement has been duly executed
and delivered by Partnership, and assuming due authorization, execution and
delivery by Panthers and Panthers BRHC Limited, constitutes the legal, valid and
binding obligations of Partnership, enforceable against it in accordance with
the terms hereof and thereof, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
3.6 Litigation. Except as set forth on Schedule 3.6 hereof, there is no
action, suit or proceeding pending or, to the knowledge of any of the
Partnership, the General Partner and BRMC, threatened against or affecting any
of them that is not covered by insurance or, that if adversely determined would
materially affect the assets, business or operations of the Partnership or would
materially impair the ability of any of the Partnership, the General Partner or
BRMC to perform any of such entity's obligations under this Agreement.
3.7 Conflict. Except as set forth on Schedule 3.7, neither the execution
nor the delivery of this Agreement nor the performance by the Partnership, the
General Partner and BRMC of any of the provisions hereof, will conflict with or
result in a breach of any of the provisions of the Partnership's, the General
Partner's or BRMC's governing documentation, any applicable Legal Requirements,
or any Designated Contract (as defined in Section 3.23 hereof), or constitute a
default under any of the foregoing or result in the creation or imposition of
any lien, charge or encumbrance upon any property of such entity, or on all or a
portion of the Contributed Assets (including the Owned Property) or the Sold
Assets.
3.8 Governmental Consent. No consent, approval or other authorization of
or by any Governmental Authority is required in connection with the execution or
delivery by the Partnership, the General Partner or BRMC of this Agreement or
compliance by them with any of the provisions hereof, except with respect to the
transfer of the Permits (defined in Section 3.19) and except HSR or SEC filings
required by law, if any.
3.9 Financial Statements. Each of Partnership's 1995 audited, and
December, 1996 audited Financial Reports previously delivered to Panthers (i) in
the case of the accrual statement, has been audited by a certified public
accounting firm, which has issued its report thereon, (ii) is true and correct
in all material respects on and as of the dates and periods covered by such
statements and (iii) was prepared in accordance with GAAP. No event or
circumstance since the dates of such statements makes any of them untrue or
misleading in any material adverse manner. The balance sheet of the Partnership,
dated as of December 31, 1996, is referred to herein as the "Current Balance
Sheet." Partnership has delivered to Panthers a true and correct copy of its
1997 Budget as it relates to capital expenditures, repairs and maintenance, and
to furniture, fixtures and equipment, which was prepared in the ordinary course
of business and was approved by the General Partner, and which is subject to
adjustment from time to time.
3.10 Liabilities of the Partnership. (a) The Partnership does not have any
liabilities or obligations, whether accrued, absolute, contingent or otherwise,
except (i) to the extent reflected or taken into account in its Current Balance
Sheet and not heretofore paid or discharged, (ii) to the extent specifically set
forth in or incorporated by express reference in any of the Schedules attached
hereto, (iii) liabilities incurred in the ordinary course of business consistent
with past practice since the date of its Current Balance Sheet (none of which
relates to breach of contract, breach of warranty, tort, infringement or
violation of law, or which arose out of any action, suit, claim, governmental
investigation or arbitration proceeding), (iv) normal accruals,
reclassifications, and audit adjustments which would be reflected on an audited
financial statement and which would not be material in the aggregate, and (v)
liabilities incurred in the ordinary course of business prior to the date of its
Current Balance Sheet which, in accordance with GAAP consistently applied, were
not recorded thereon.
(b) The Partnership's Net Working Capital (defined below) minus the
Partnership's closing costs and expenses set forth in Section 5.20 hereof, shall
be $1.00 or more as of the last day of the month immediately preceding the
Closing Date (with the current portion of the Premier Club Accounts Receivable
being that amount due prior to the Settlement Date (defined in Section 9.2
hereof)). The Partnership's "Net Working
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Capital" as of December 31, 1996 is set forth on Schedule 3.10 hereof, and shall
be recalculated by the Partnership for purposes of Closing in a manner
consistent with Schedule 3.10 as of the end of the calendar month immediately
preceding the Closing Date, and such recalculation shall be deemed a Schedule
attached to this Agreement ("Closing Net Working Capital Statement").
3.11 Real Estate. (a) The Partnership does not own any real property or
any interest therein except as set forth on Schedule 3.11(a) (the "Owned
Property"), which Schedule sets forth the location and principal improvements
and buildings on ("Improvements") the Owned Property, together with a list of
all title insurance policies relating to such properties, all of which policies
have previously been delivered or made available to Panthers by the Partnership.
(i) Partnership holds good, indefeasible and marketable fee simple
title to the Land and existing Improvements, free and clear of all
mortgages, deeds of trust, liens, encumbrances, ground rents, leases,
tenancies, licenses, contracts of sale, options, security interests,
covenants, conditions, restrictions, rights of way, easements,
encroachments and any other matters affecting title except the Permitted
Exceptions (set forth on Schedule 3.11(b));
(ii) The completion of the Expansion Plan and the use of the Expansion
Plan improvements will not violate any Permitted Exception;
(iii) To the best of each of the Partnership's, the General Partner's
and BRMC's knowledge, no Improvements upon the Owned Property encroaches
upon any adjacent property building line, setback line, side yard line, or
any recorded or visible easement (or other easement of which they are aware
or have reason to believe may exist) with respect to the Owned Property,
except insofar as the same may be a Permitted Exception or as disclosed on
the Survey; and
(iv) The Owned Property is taxed separately without regard to any
other property and has been subdivided from all other property in
compliance with applicable laws.
3.12 Condemnation. There is no pending condemnation, expropriation,
eminent domain or similar proceeding affecting the Owned Property or any portion
thereof, and Partnership has no knowledge and has not received any written or
oral notice that any such proceeding is contemplated.
3.13 No Management Agreement. There is no management agreement affecting
the Owned Property (other than with respect to Partnership's obligations to pay
General Partner the Supervisory Fee pursuant to the Partnership Agreement).
3.14 Ownership of Contributed Assets. Except as otherwise disclosed on
Schedule 3.14, the Partnership is the owner of all of its Contributed Assets and
Sold Assets, which Contributed Assets and Sold Assets are free and clear of any
Liens, other than as set forth on Schedule 3.11 or 3.14.
3.15 Compliance with Laws. (a) Partnership has complied in all material
respects with all Legal Requirements and all recorded instruments affecting the
Property. The use of the Owned Property complies, and after substantial
completion of the Expansion Plan, shall continue to comply in all material
respects, with all zoning and use-related Legal Requirements.
(b) The Partnership is and at all times has been in compliance in all
material respects with the terms and provisions of the Immigration Reform and
Control Act of 1986, as amended (the "Immigration Act"). With respect to each
Employee (as defined in 8 C.F.R. 274a.1(f)) of the Partnership for whom
compliance with the Immigration Act is required, the Partnership has on file a
true, accurate and complete copy of (i) each Employee's Form I-9 (Employment
Eligibility Verification Form) and (ii) all other records, documents or other
papers prepared, procured and/or retained by the Partnership pursuant to the
Immigration Act. The Partnership has not been cited, fined, served with a Notice
of Intent to Fine or, to the knowledge of the Partnership, the General Partner
or BRMC, with a Cease and Desist Order, nor has any action or administrative
proceeding been initiated or threatened against the Partnership, by the
Immigration and Naturalization Service by reason of any actual or alleged
failure to comply with the Immigration Act.
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(c) The Partnership is not subject to any Contract, decree or injunction in
which the Partnership is a party which restricts the continued operation of any
business of the Partnership or the expansion thereof to other geographical
areas, customers and suppliers or lines of business.
3.16 Labor and Employment Matters. The Partnership is not a party to or
bound by any collective bargaining agreement or any other agreement with a labor
union, and there has been no effort by any labor union during the 24 months
prior to the date hereof to organize any Employees of the Partnership into one
or more collective bargaining units. There is no pending or, to the knowledge of
the Partnership, the General Partner or BRMC, threatened labor dispute, strike
or work stoppage which affects or which may affect the business of the
Partnership or which may interfere with its continued operations. Neither the
Partnership nor, to the knowledge of the Partnership, any agent, representative
or Employee thereof has within the last 24 months committed any unfair labor
practice as defined in the National Labor Relations Act, as amended, and there
is no pending or threatened charge or complaint against the Partnership by or
with the National Labor Relations Board or any representative thereof. There has
been no strike, walkout or work stoppage involving any of the Employees of the
Partnership during the 24 months prior to the date hereof. The Partnership is
not aware that any key Employee or group of Employees has any plans to terminate
his, her or their employment with the Partnership as a result of the
transactions contemplated hereunder or otherwise. Schedule 3.16 lists each
contract, agreement or plan of the following nature, whether formal or informal,
and whether or not in writing, to which the Partnership is a party or under
which it has an obligation: (i) employment agreements, (ii) employee handbooks,
policy statements and similar plans, (iii) noncompetition agreements and (iv)
consulting agreements (true and correct copies of which the Partnership has
provided to the Panthers). The Partnership has complied with applicable laws,
rules and regulations relating to employment, civil rights and equal employment
opportunities, including but not limited to, the Civil Rights Act of 1964, the
Fair Labor Standards Act, and the Americans with Disabilities Act, as amended.
3.17 ERISA. Neither Partnership nor any member of a Controlled Group of
which Partnership is a member maintains any Plan for the benefit of employees of
Partnership and neither Partnership nor any member of such Controlled Group is
obligated to make contributions in respect of any such Plan.
3.18 Tax Matters. All federal, state and other tax returns and reports of
each of the Partnership, the General Partner and BRMC required to be filed have
been duly filed, and all federal, state and other taxes, assessments (including
assessments for municipal improvements), fees or other governmental charges
imposed upon the Partnership, the General Partner, BRMC, and the Contributed
Assets which are due and payable have been paid (other than with respect to the
State of Florida Department of Revenue sales tax audit). Partnership knows of no
proposed material tax or other assessments against Partnership, the Owned
Property or any of the improvements thereon, and no extension of time for
assessment or payment of any federal state or local tax requested by Partnership
is in effect.
3.19 Licenses and Permits. All licenses and governmental or official
approvals, permits or authorizations (collectively, the "Permits") issued to the
Partnership are listed on Schedule 3.19. All such Permits are valid and in full
force and effect, the Partnership is in compliance in all material respects with
the respective requirements thereof, and no governmental proceeding is pending
or, to the knowledge of the Partnership, the General Partner or BRMC, threatened
to revoke or amend any of them.
3.20 Insurance. A list of the insurance policies maintained by the
Partnership is set forth on Schedule 3.20 hereto. Such policies are in full
force and effect, all premiums due and payable therefor have been paid in full,
and true and correct copies thereof have been delivered to Panthers.
3.21 Adequacy of the Assets; Relationships with Customers and Suppliers;
Affiliated Transactions. The Contributed Assets and Sold Assets constitute, in
the aggregate, all of the assets and properties necessary for the conduct of the
business of the Partnership in the manner in which and to the extent to which
such business is currently being conducted. No current supplier to the
Partnership of items essential to the conduct of its business will or has
threatened to terminate its business relationship with it for any reason.
Neither the Partnership nor the General Partner nor BRMC has any direct or
indirect interest in any customer, supplier or competitor or in any person from
whom or to whom the Partnership leases real or personal property. Other
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than as specified in the partnership agreement of the Partnership, and other
than the Temple Agreement, neither the General Partner nor any Affiliate thereof
is a party to any Contract or transaction with the Partnership or has any
interest in any property used by the Partnership.
3.22 Intellectual Property. All trademarks, service marks, trade names,
copyrights, patents, licenses (including licenses for the use of computer
software programs) and other intellectual property used in the conduct of the
Partnership's business (the "Intellectual Property") are listed on Schedule 3.22
hereof. The Partnership is the owner of the Intellectual Property, except as set
forth on Schedule 3.22 hereof. The conduct of the business of the Partnership as
presently conducted does not infringe or misappropriate any rights held or
asserted by any Person with respect to, and no Person is infringing on, the
Intellectual Property. Except as set forth on Schedule 3.22, no payments are
required for the continued use of the Intellectual Property.
3.23 Contracts. As of the date of this Agreement, Schedule 3.23 sets forth
a list of each Designated Contract (defined below) to which the Partnership is a
party or by which it or its properties and assets are bound, copies of which
have been provided to Panthers. The copy of each Designated Contract furnished
to Panthers is a true and complete copy of the document it purports to represent
and reflects all amendments thereto made through the date of this Agreement. The
Partnership has not violated any of the material terms or conditions of any
Designated Contract or any term or condition which would permit termination or
material modification of any Designated Contract, and, to the knowledge of the
Partnership, the General Partner and BRMC, all of the covenants to be performed
by any other party thereto as of the date hereof have been fully performed and
there are no claims for breach or indemnification or notice of default or
termination under any Designated Contract. No event has occurred which
constitutes, or after notice or the passage of time, or both, would constitute,
a material default by the Partnership under any Designated Contract, and, to the
knowledge of the Partnership, the General Partner and BRMC, no such event has
occurred which constitutes or would constitute a material default by any other
party. The Partnership is not subject to any liability or payment resulting from
renegotiation of amounts payable by it under any Designated Contract. The term
Designated Contract shall mean: (a) loan agreements, indentures, mortgages,
pledges, hypothecations, deeds of trust, conditional sale or title retention
agreements, security agreements, equipment financing obligations or guaranties,
or other sources of contingent liability in respect of any indebtedness or
obligations to any other Person, or letters of intent or commitment letters with
respect to same; (b) contracts obligating the Partnership to provide products or
services for a period of one year or more and, irrespective of the term of the
Contract, requiring the Partnership to make payments of cash or property
totalling $100,000 or more; (c) leases of real property, and leases of personal
property not cancelable without penalty on notice of sixty (60) days or less or
calling for payment of an annual gross rental exceeding Ten Thousand Dollars
($10,000.00); (d) distribution, sales agency or franchise or similar agreements,
or agreements providing for an independent contractor's services, or letters of
intent with respect to same; (e) employment agreements, management service
agreements, consulting agreements, confidentiality agreements, non-competition
agreements and any other agreements relating to any employee, officer or
director of the Partnership; (f) licenses, assignments or transfers of
trademarks, trade names, service marks, patents, copyrights, trade secrets or
know how, or other agreements regarding proprietary rights or intellectual
property; (g) any Contract relating to pending capital expenditures by the
Partnership; and (h) other material Contracts or understandings, irrespective of
subject matter and whether or not in writing, not entered into in the ordinary
course of business by the Partnership and not otherwise disclosed on the
Schedules.
3.24 Access to Information. Each of the Partnership, the General Partner
and BRMC has had the opportunity to discuss the transactions contemplated hereby
with Panthers and Panthers BRMC Limited Partnership and has had the opportunity
to obtain such information pertaining to Panthers as has been requested,
including but not limited to filings made by Panthers with the SEC under the
Exchange Act.
3.25 Bank Accounts; Business Locations. Schedule 3.25 sets forth all
accounts of the Partnership with any bank, broker or other depository
institution, and the names of all persons authorized to withdraw funds from each
such account.
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3.26 Names. All names under which the Partnership does business as of the
date hereof are specified on Schedule 3.26. The Partnership has not changed its
name or used any assumed or fictitious name within the past three years.
3.27 No Commissions. The Partnership 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, other than the
financial advisor's fee owing by the Partnership to BT Securities Corporation,
which fees and commissions shall be paid by the Partnership.
3.28 Premier Club Notes. (i) All of the Premier Club Notes outstanding as
of December 31, 1996 appear on the list set forth on Schedule 3.28, (ii)
Partnership is the holder and beneficial owner of all of the Premier Club Notes
free and clear of any encumbrances except as in favor of the holders of the
first, second and third mortgages encumbering the Owner Property, (iii) as of
December 31, 1996, the remaining unpaid principal balance of each Premier Club
Note is as set forth on Schedule 3.28, (iv) except as set forth on Schedule
3.28, (A) no default exists under any of the Premier Club Notes, (B) all of the
Premier Club Notes remain in full force and effect and have not been amended and
(c) no obliger under any Premier Club Note has any defenses or rights of set-off
or abatement against such obligor's obligations under the applicable Premier
Club Note, and (v) as of the Closing Date, Partnership has delivered to Panthers
BRMC Limited the originals of all of the Premier Club Notes including any
amendments and modifications made thereto.
3.29 Premier Club Deposits. All of the Premier Club Deposits as of
December 31, 1996 are set forth on Schedule 3.29 and as of such date, except as
set forth on Schedule 3.29, no Premier Club member has notified Partnership of
the exercise of its right to a refund of any or all of any Premier Club Deposit.
3.30 Environmental Matters. (a) Except as disclosed in the Environmental
Report, (i) the Partnership has not conducted and shall not hereafter conduct
and (ii) to the best knowledge of the Partnership, no prior owner or current or
prior tenant or occupant of all or any portion of the Partnership has conducted
or is conducting, any Hazardous Substance Activity at, on or under the Owned
Property (A) in violation of Environmental Laws that would have a Material
Adverse Effect on the operation of the Owned Property or (B) in a manner
inconsistent with the use of the Owned Property as a first class resort hotel
complex, business conference center and resort membership club;
(b) Except as disclosed by the Environmental Report the Owned Property does
not contain asbestos or any Asbestos-Containing Material and there is no current
or potential contamination of the Owned Property by asbestos fiber; and
(c) The Partnership fully cooperated with Law Engineering and Environmental
Services, Inc. in the preparation of the Environmental Report and, to the best
of the Partnership's knowledge, such Environmental Report is not inaccurate in
any material respect.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE CLOSING DATE
4.1 Conduct of Business by the Partnership Pending the Closing Date. The
Partnership covenants and agrees that, between the date of this Agreement and
the Closing Date, its business shall be conducted only in and it shall not take
any action except in, the ordinary course of business, consistent with past
practice. Completion of the Expansion Plan and completion of the sale of the
Albanese Lots and corresponding renovation of the golf course shall be deemed to
be within the ordinary course of business. The Partnership shall use its best
efforts to preserve intact its business organization, to keep available the
services of its current officers, employees and consultants, and to preserve its
present relationships with customers, suppliers and other persons with which it
has significant business relations. By way of amplification and not limitation,
except as contemplated by this Agreement, the Partnership shall not, between the
date of this Agreement and
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the Closing Date, directly or indirectly, do or propose or agree to do any of
the following without the prior written consent of Panthers and Panthers BRHC
Limited:
(a) amend or otherwise change its certificate of limited partnership
or partnership agreement or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, encumber, or authorize the
issuance, sale, pledge, disposition, grant or encumbrance of (i) any
partnership interests of any class, or any options, warrants, convertible
securities or other rights of any kind to acquire any partnership interest,
or (ii) any of its assets, tangible or intangible, except in the ordinary
course of business consistent with past practice;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, property or otherwise, with respect to any
of its partnership interests;
(d) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its partnership
interests;
(e) (i) acquire (including, without limitation, for cash or shares of
stock or partnership interests, by merger, consolidation, or acquisition of
stock, partnership interest or assets) any interest in any corporation,
partnership or other business organization or division thereof or any
assets, or make any investment either by purchase of stock, partnership
interest or other securities, contributions of capital or property
transfer, or, except in the ordinary course of business, consistent with
past practice, purchase any property or assets of any other Person, (ii)
incur any indebtedness for borrowed money or issue any debt securities or
assume, guarantee or endorse or otherwise as an accommodation become
responsible for, the obligations of any Person, or make any loans or
advances, or (iii) enter into any Contract other than in the ordinary
course of business, consistent with past practice;
(f) except in the ordinary course of business consistent with past
practice, increase the compensation payable or to become payable to its
officers or employees, or, except as presently bound to do, grant any
severance or termination pay to, or enter into any employment or severance
agreement with, any of its directors, officers or other employees, or
establish, adopt, enter into or amend or take any action to accelerate any
rights or benefits which any collective bargaining, bonus, profit sharing,
trust, compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees;
(g) take any action other than in the ordinary course of business and
in a manner consistent with past practice with respect to accounting
policies or procedures;
(h) pay, discharge or satisfy any existing claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the
ordinary course of business and consistent with past practice of due and
payable liabilities reflected or reserved against in its financial
statements, as appropriate, or liabilities incurred after the date hereof
in the ordinary course of business and consistent with past practice; or
(i) agree, in writing or otherwise, to take or authorize any of the
foregoing actions or any action which would make any representation or
warranty in Article III untrue or incorrect.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Further Assurances. Each party shall execute and deliver, to the
extent permitted by its respective governance agreements, such additional
instruments and other documents and shall take such further actions as may be
necessary or appropriate to effectuate, carry out and comply with all of the
terms of this Agreement and the transactions contemplated hereby.
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5.2 General Partner Obligations. The General Partner, as soon as
practically possible, shall send the consent solicitation required under the
Partnership's certificate of limited partnership and partnership agreement to
the limited partners of the Partnership and, subject to Section 5.4 below,
recommend and otherwise use its reasonable best efforts to facilitate the
Closing of the transaction contemplated hereby, unless the Termination Fee
becomes payable to Panthers under Section 5.12 hereof.
5.3 Cooperation. Each of the parties agrees to cooperate with the other
parties 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 the Panthers
Common Stock is listed or 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.
5.4 HSR Act and Other Actions. Each of the parties hereto shall (i) make
promptly (and in no event later than ten (10) business days following the
attachment of all Schedules and Exhibits hereto) its respective filings, if any,
and thereafter make any other required submissions, under the HSR Act, with
respect to the transactions contemplated hereby, and (ii) use its reasonable
best efforts to take, or cause to be taken, all appropriate actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated herein, including, without limitation, using its best efforts to
obtain all licenses, permits, consents, approvals, authorizations,
qualifications and orders of any Governmental Authority and parties to Contracts
with the Partnership and limited partners of the Partnership as are necessary
for the consummation of the transactions contemplated hereby. Each of the
parties shall make on a prompt and timely basis all governmental or regulatory
notifications and filings (including Panthers making all SEC filings necessary
to solicit shareholder consent to the transactions contemplated hereby and using
good faith efforts to obtain SEC approval of such filings) required to be made
by it for the consummation of the transactions contemplated hereby. The parties
also agree to use best efforts to defend all lawsuits or other legal proceedings
challenging this Agreement or the consummation of the transactions contemplated
hereby and to lift or rescind any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the transactions
contemplated hereby. If, on the date the General Partner mails its consent
solicitation to the limited partners of the Partnership, BT Securities
Corporation determines that it can not bring forward to a current date the
fairness opinion previously delivered to the General Partner on or about the
date hereof, the General Partner shall so advise the limited partners and shall
have no obligation to recommend the transaction contemplated hereby, but shall
also not recommend against the transaction contemplated hereby except as
required by law.
5.5 Access to Information. From the date hereof to the Closing Date, the
Partnership, the General Partner and BRMC shall (and shall cause its directors,
officers, employees, auditors, counsel and agents) afford Panthers and Panthers'
officers, employees, auditors, counsel and agents reasonable access on
reasonable notice at all reasonable times to its properties, offices, and other
facilities, to its officers and employees and to all books and records, and
shall furnish such persons with all financial, operating and other data and
information as may be requested. No information provided to or obtained by
Panthers shall affect any representation or warranty in this Agreement.
5.6 Notification of Certain Matters; Exhibits and Schedules. (a) The
Partnership, the General Partner and BRMC shall give prompt written notice to
Panthers of the occurrence or non-occurrence of any event which would likely
cause any representation or warranty contained herein (including with respect to
any Schedules attached hereto), to be untrue or inaccurate, or any covenant,
condition, or agreement contained herein not to be complied with or satisfied
and the occurrence or non-occurrence of which would be a Material Adverse Change
with respect to the Partnership. Upon receipt by Panthers of notice of any
Material Adverse Change, Panthers shall have ten (10) business days to terminate
this Agreement, and the parties shall thereafter have no further liability to
the other in respect of this Agreement.
(b) In the event any Exhibits or Schedules contemplated hereby are not
attached hereto at the time of execution of this Agreement, the parties hereto
will work and negotiate in good faith to complete and attach such Schedules and
Exhibits within ten (10) business days thereafter; provided, however, that
Panthers shall
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have the right to determine, in good faith, within two (2) business days of
receipt thereof that any Exhibit or Schedule prepared solely by Partnership
constitutes a Material Adverse Change in which case the provisions of Subsection
(a) above will apply.
5.7 Tax Treatment. Panthers, BRMC, and the Partnership will use their
respective best efforts to cause the receipt by the Partnership of the
partnership interest in Panthers BRHC Limited contemplated hereunder to qualify
as a tax-free transaction under the provisions of Section 721 of the Code and do
not presently intend to take any action after the transaction contemplated
hereunder is effected to cause such transaction to lose its tax-free status. All
parties hereto agree to comply with the Code and applicable Treasury Regulations
regarding reporting requirements relating to a transaction under Section 721 of
the Code.
5.8 Confidentiality; Publicity. Except as may be required by law or as
otherwise permitted or expressly contemplated herein, no party hereto or their
respective Affiliates, employees, agents and representatives shall disclose to
any third party this Agreement or the subject matter or terms hereof without the
prior consent of the other parties hereto. No press release or other public
announcement related to this Agreement or the transactions contemplated hereby
shall be issued by any party hereto without the prior approval of the other
parties, except that Panthers may make such public disclosure which it believes
in good faith to be required by law or by the terms of any listing agreement
with or requirements of a securities exchange or the NASDAQ Stock Market (in
which case Panthers will consult with an officer of the Partnership prior to
making such disclosure).
5.9 No Other Discussions. While this Agreement is in effect, neither the
Partnership, the General Partner nor BRMC or their respective Affiliates,
employees, agents and representatives will (i) initiate or encourage the
initiation by others of discussions or negotiations with third parties relating
to any merger, sale or other disposition of any substantial part of the assets,
business or properties of the Partnership (whether by merger, consolidation,
sale of stock or otherwise) or (ii) enter into any agreement or commitment
(whether or not binding) with respect to any of the foregoing transactions,
other than pursuant to the terms of Section 5.12 hereof. The Partnership, the
General Partner and BRMC will immediately notify Panthers if any third party
attempts to initiate any solicitation, discussion or negotiation with respect to
any of the foregoing transactions.
5.10 [Reserved]
5.11 Trading in Panthers Common Stock. Except as otherwise expressly
consented to by Panthers, from the date of this Agreement until the Closing
Date, neither the Partnership, the General Partner nor BRMC (or any Affiliates
thereof) will directly or indirectly purchase or sell (including short sales)
any shares of Panthers Common Stock in any transactions effected on the NASDAQ
Stock Market or otherwise.
5.12 Termination Fee. Prior to the acceptance by the Partnership of any
unsolicited third party offer for the assets to be acquired hereunder (or for a
majority of the limited partnership interests in the Partnership), the
Partnership shall notify Panthers in writing and Panthers shall have ten (10)
business days to match any such offer in writing (including by matching any
offer with Panthers Common Stock with a fair market value equal to the fair
market value of the third party offer). In the event Panthers does not match
such offer, the Partnership may terminate this Agreement and accept such offer
in which case the Partnership shall pay to Panthers $10,000,000 and reimburse
Panthers for its out-of-pocket costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby ("Termination Fee"). In
the event the limited partners of the Partnership fail to approve the
transaction contemplated by this Agreement, and a substantial part of the
assets, business or properties to be acquired hereunder are sold (or a majority
of the limited partnership interests of the Partnership are transferred) within
six months of the resulting termination, the Termination Fee shall also be
payable by the Partnership to Panthers. Panthers shall pay the Partnership
$10,000,000, plus reimburse the Partnership for its out-of-pocket costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, in the event Panthers fails to close the transactions
contemplated by this Agreement solely due to Panthers' breach of this Agreement.
5.13 Maintenance of Loan Agreement. Prior to the earlier of January 1,
2001 or such date as Panthers Common Stock closes at an average price of $36.93
(adjusted, as appropriate, for any stock split, reverse stock split, stock
dividend or "Special Transaction" generally in accordance with the provisions of
Exhibit "A"
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attached hereto) for five consecutive trading days on the NASDAQ Stock Market,
Panthers BRHC Limited shall not prepay or modify the $110 million Senior
Facility, and will only refinance such $110 million Senior Facility on terms
which provide for the allocation of the refinanced indebtedness to the
Partnership under Section 752 of the Code in the same manner as the $110 million
Senior Facility is allocated to the Partnership on the Closing Date.
5.14 Panthers BRHC Limited Appointed Attorney for the
Partnership. Effective at the Closing Date, the Partnership hereby constitutes
and appoints the Panthers Affiliate that becomes the managing general partner of
Panthers BRHC Limited and Panthers BRHC Limited, and its successors and assigns,
its true and lawful attorney, in the name of either Panthers BRHC Limited or the
Partnership (as Panthers BRHC Limited shall determine in its sole discretion)
but for the benefit and at the expense of Panthers BRHC Limited (except as
otherwise herein provided), (a) to institute and prosecute all proceedings which
Panthers BRHC Limited may deem proper in order to collect, assert or enforce any
claim, right or title of any kind in or to the Contributed Assets as provided
for in this Agreement; (b) to defend or compromise any and all actions, suits or
proceedings in respect of any of the Contributed Assets, and to do all such acts
and things in relation thereto as Panthers BRHC Limited shall deem advisable;
and (c) to take all action which Panthers BRHC Limited may reasonably deem
proper in order to provide for Panthers BRHC Limited the benefits under any of
the Contributed Assets where any required consent of another party to the sale
or assignment thereof to Panthers BRHC Limited pursuant to this Agreement shall
not have been obtained. The Partnership acknowledges that the foregoing powers
are coupled with an interest and shall be irrevocable. Panthers BRHC Limited
shall be entitled to retain for its own account any amounts collected pursuant
to the foregoing powers, including any amounts payable as interest in respect
thereof.
5.15 Execution of Further Documents. From and after the Closing, upon the
reasonable request of Panthers BRHC Limited, the Partnership shall execute,
acknowledge and deliver all such further deeds, bills of sale, assignments,
transfers, conveyances, powers of attorney and assurances as may be required or
appropriate to convey and transfer to and vest in Panthers BRHC Limited and
protect its right, title and interest in all of the Contributed Assets and the
Sold Assets and to carry out the transactions contemplated by this Agreement.
5.16 Employees of the Partnership. The Partnership agrees to use its
reasonable best efforts to aid Panthers BRHC Limited in engaging such of the
employees of the Partnership as are employed on the Closing Date whom Panthers
BRHC Limited desires to engage after the Closing Date.
5.17 Payoff Letters. Prior to Closing, (a) the Partnership shall request
payoff and estoppel letters with respect to any Indebtedness being repaid or
assumed by Panthers BRHC Limited, which letters shall contain payoff amounts,
per diems, wire transfer instructions and an agreement to deliver, upon full
payment, UCC-3 termination statements, satisfactions of mortgage or other
appropriate releases and any original promissory notes or other evidences of
indebtedness marked canceled, and (b) the Partnership shall provide Panthers
BRHC Limited with evidence of satisfaction in full or release of all guarantees,
notes, or obligations of the Partnership to or on behalf of any Affiliate of the
Partnership or the Partners.
5.18 Panthers Board of Directors. For so long as either of Messrs. Fowler
or Callaghan (or their respective firms) shall be employed by Panthers BRHC
Limited, Panthers shall nominate one of such persons for election to the Board
of Directors of Panthers at each annual meeting of Panthers.
5.19 Allocation of Consideration. The consideration paid by Panthers and
Panthers BRHC Limited for the Contributed Assets shall be allocated to the
Contributed Assets as set forth on Schedule 5.19 hereto.
5.20 Expenses. Subject to the reasonable approval of Panthers and the
Partnership, the Partnership shall pay, out of cash contributed by Panthers
pursuant to Section 1.5(a) hereof and listed in Schedule 1.5(vii), the direct
costs and expenses of Panthers and the Partnership (including but not limited to
financial advisory, brokerage, legal, accounting and printing fees, and fees
relating to the fairness opinion and consent solicitation) payable in connection
with the transaction contemplated hereby, together with all documentary stamp
and intangible taxes payable in connection with the transfer of title to any of
the Contributed Assets and the Sold Assets (including the Owned Property), all
fees and expenses payable in
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connection with the assumption or refinancing of the $110 Million Senior
Facility indebtedness, together with the costs and expenses (including the title
insurance premium) charged in connection with the issuance of a new Owners Title
Insurance Policy (and corresponding Mortgagee Policy or endorsement to the
existing Senior Facility Mortgagee policy, as appropriate) to Panthers BHRC
Limited and any other transaction fees or expenses. Panthers shall have the
right to designate the title company and title agent in its sole discretion.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE PANTHERS
The obligations of the Panthers and Panthers BRMC Limited 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:
6.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of the Partnership, the General
Partner and BRMC contained in this Agreement shall be true and correct in all
material respects at and as of the Closing Date with the same force and effect
as though made at and as of that time except (i) for changes specifically
permitted by or disclosed pursuant to this Agreement, (ii) that those
representations and warranties which address matters only as of a particular
date shall remain true and correct in all material respects as of such date; and
(iii) those which are not a Material Adverse Change with respect to the
Partnership. The Partnership, the General Partner and BRMC shall have performed
and complied in all material respects with all of their respective obligations
required by this Agreement to be performed or complied with at or prior to the
Closing Date. The Partnership, the General Partner and BRMC shall have delivered
to Panthers a certificate, dated as of the Effective Date, duly signed (in the
case of the Partnership, by its General Partner), certifying that such
representations and warranties are true and correct in all material respects and
that all such obligations have been complied with and performed in all material
respects.
6.2 No Material Adverse Change or Destruction of Property. Between the
date hereof and the Closing Date, (i) there shall have been no Material Adverse
Change to the Partnership, (ii) there shall have been no adverse federal, state
or local legislative or regulatory change affecting in any material respect the
services, products or business of the Partnership, and (iii) none of the
properties and assets of the Partnership shall have been damaged by fire, flood,
casualty, act of God or the public enemy or other cause (regardless of insurance
coverage for such damage) which damages may have a Material Adverse Effect
thereon, and there shall have been delivered to the Panthers a certificate to
that effect, dated the Effective Date and signed by or on behalf of the
Partnership.
6.3 Partnership Certificate. The General Partner shall have delivered to
Panthers a certificate of good standing of the Partnership issued by the
Secretary of State of the State of Florida and each other state in which the
Partnership is qualified to do business as of a date not more than fifteen (15)
days prior to the Closing Date. The Partnership shall have delivered to Panthers
(x) a copy of the certificate of limited partnership and the agreement of
limited partnership as in effect immediately prior to the Closing Date and (y) a
copy of the certificate of the General Partner of the Partnership authorizing
the transactions contemplated by this Agreement, certified in the case of
subsections (x) and (y) of this Section 6.3 as of the Closing Date by the
General Partner as being true, correct and complete.
6.4 Opinion of Counsel. Panthers shall have received an opinion dated as
of the Closing Date from counsel for the Partnership, in form and substance
acceptable to Panthers, to the effect that:
(i) The Partnership is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Florida and is
authorized to carry on the business now conducted by it and to own or lease
the properties now owned or leased by it;
(ii) The Partnership has obtained all necessary authorizations and
consents of its partners, and any other required consents under its
certificate of limited partnership and partnership agreement, as the case
may be, to effect the transactions contemplated hereunder;
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(iii) All general partnership interests of the Partnership are owned
as set forth in Schedule 3.2 hereto;
(iv) Such counsel does not know or have reason to believe that there
is any litigation, proceeding or investigation pending or threatened which
might result in any Material Adverse Change in the properties, business or
prospects or in the condition of the Partnership, or which questions the
validity of this Agreement, Panthers BRHC Limited's limited partnership
agreement and the Exchange Agreement (collectively, the "Transaction
Agreements"); and
(v) The Transaction Agreements are valid and binding obligations of
the Partnership, the General Partner and BRMC, and are enforceable against
the Partnership, the General Partner and BRMC, in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally or general equitable principles.
6.5 Senior Credit Facility. The Partnership shall have received the
appropriate consents under the Loan Agreement from the Bank of Nova Scotia (as
Agent for the lenders thereunder), or the Partnership shall have refinanced the
Senior Credit Facility on terms equal to or better than those terms existing
under the Loan Agreement and otherwise acceptable to Panthers in its reasonable
discretion.
6.6 Other Consents. In addition to the consent required by Section 6.5,
the Partnership shall have received consents to the transactions contemplated
hereby and waivers of rights to terminate or modify any material rights or
obligations of the Partnership from any Person from whom such consent or waiver
is required under any Designated Contract as of a date not more than ten days
prior to the Closing Date, or who, as a result of the transactions contemplated
hereby, would have such rights to terminate or modify such Designated Contracts,
either by the terms thereof or as a matter of law, in each case where the
failure to obtain such consent or consents, individually or in the aggregate,
would have a Material Adverse Effect on the Partnership.
6.7 Securities Laws. Panthers and Panthers BRMC Limited shall have
received all necessary consents and otherwise complied with any state Blue Sky
or securities laws applicable to the issuance of their respective securities
hereunder, in connection with the transactions contemplated hereby.
6.8 Employment Agreement. Panthers BRHC Limited shall have entered into
employment agreements with Messrs. Glennie, Feder, March, Lawrence, Nylen and
Tolbert ("Operating Management") in the form of Exhibit "D" (terms attached as
Schedule D) attached hereto.
6.9 Supervisory Management. Messrs. Fowler and Callaghan (or their
respective firms) shall enter into employment or consulting agreements (as the
case may be) with Panthers BRHC Limited in the form of Exhibit "E" (terms
attached as Schedule E) attached hereto.
6.10 Advisory Director. Mr. Temple shall have entered into a consulting
agreement with Panthers BRHC Limited in the form of Exhibit "F" (terms attached
as Schedule F) attached hereto.
6.11 Acknowledgment of Receipt of SEC Filings. At or prior to the Closing,
the General Partner and the Partnership shall have delivered to Panthers a
letter agreement acknowledging receipt of SEC filings of Panthers, in form and
substance satisfactory to the Panthers.
6.12 Transfer of Assets. At the Closing, the Partnership shall have
delivered to Panthers BRHC Limited and to Panthers, as applicable, all
assignments, warranty deeds and other instruments reasonably required to
evidence the conveyance of all of the Contributed Assets and the Sold Assets.
6.13 No Adverse Litigation. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the transaction contemplated hereunder or any other transaction contemplated
hereby, and which, in the judgment of Panthers, makes it inadvisable to proceed
with the transaction contemplated hereunder and other transactions contemplated
hereby.
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6.14 HSR Act Waiting Period. Any applicable HSR Act waiting period shall
have expired or been terminated.
6.15 Other Approvals. The SEC shall have approved Panthers' proxy
statement, consent solicitation statement or information statement (to be
determined in the absolute discretion of Panthers) to its shareholders and shall
have received all necessary approvals of the NASDAQ Stock Market.
6.16 Dissolution of the Partnership. Panthers shall have received an
agreement from the General Partner of the Partnership to dissolve the
Partnership at such time as Panthers (or its designee) elects, after acquisition
of the Partnership's interest in Panthers BRHC Limited; together with an
estoppel letter from the General Partner of the Partnership stating that upon
dissolution and liquidation of the Partnership, Panthers designees owning
limited partnership interests in the Partnership shall be entitled to receive a
pro rata portion of the Partnership's distributable assets equal to the quotient
obtained by dividing: (A) the total Panthers Shares actually issued upon
exercise of the Exchange Rights to date; by (B) the total Panthers Shares
available for issuance under the Exchange Agreement as calculated pursuant to
Section 1.8(i) hereof.
6.17 Accounting Treatment. There shall not have been a change in the rules
promulgated by the Securities and Exchange Commission which does not permit
Panthers to consolidate for financial reporting purposes, all of the results of
operations of Panthers BRHC Limited.
6.18 Panthers BRHC Limited Partnership Agreement and Exchange
Agreement. The Partnership shall have executed and delivered the limited
partnership agreement for Panthers BRHC Limited and the Exchange Agreement.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS
OF THE PARTNERSHIP
The obligations of the Partnership 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 the Partnership:
7.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of Panthers and Panthers BRMC
Limited contained in this Agreement shall be true and correct at and as of the
Closing Date with the same force and effect as though made at and as of that
time except (i) for changes specifically permitted by or disclosed pursuant to
this Agreement, and (ii) that those representations and warranties which address
matters only as of a particular date shall remain true and correct as of such
date. Panthers and Panthers BRHC Limited shall have performed and complied with
all of its obligations required by this Agreement to be performed or complied
with at or prior to the Closing Date. Panthers and Panthers BRHC Limited shall
have delivered to a representative of the Partnership a certificate, dated as of
the Effective Date, and signed by a duly authorized executive officer,
certifying that such representations and warranties are true and correct and
that all such obligations have been complied with and performed.
7.2 Issuance of Securities and Delivery of Agreement. At the Closing, the
Partnership shall have received all of the Panthers Warrants contemplated by
Section 1.8(j) hereof, Panthers BRGP Corporation shall have executed and
delivered the limited partnership agreement for Panthers BRHC Limited in and
Panthers shall have executed and delivered the Exchange Agreement.
7.3 No Adverse Litigation. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the transactions contemplated hereunder or any other transaction contemplated
hereby, and which in the judgment of the General Partner makes it inadvisable to
proceed with the transactions contemplated hereunder and other transactions
contemplated hereby.
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7.4 HSR Act Waiting Period. Any applicable HSR Act waiting period shall
have expired or been terminated.
7.5 Partner Consents. All required partner consents for this transaction
contemplated hereby under the Partnership's Partnership Agreement shall have
been obtained.
7.6 Registration Statement. The registration statement(s) required by
Article XIII hereof shall be effective.
7.7 Opinion of Counsel. The Partnership shall have received an opinion
dated as of the Closing Date from counsel for Panthers and Panthers BRHC
Limited, in form and substance acceptable to Partnership, to the effect that:
(i) 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 as now being
conducted; Panthers BRHC Limited is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
Florida; and Panthers BRHC Limited has the requisite power and authority to
carry on its business as now being conducted;
(ii) Panthers (and Panthers Affiliates) and Panthers BRHC Limited each
have the power and authority to execute and deliver the Transaction
Agreements to which they are a party, to perform their respective
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby or thereby. Each of Panthers (and Panthers Affiliates)
and Panthers BRHC Limited have taken all action necessary to authorize the
execution and delivery of the Transaction Agreements to which they are a
party, including obtaining all required consents required by their
respective Articles of Incorporation and Bylaws, which consents have been
validly obtained, and the performance of their respective obligations
hereunder and thereunder and the consummation of the transactions
contemplated hereby and thereby;
(iii) The execution and delivery of the Transaction Agreements by
Panthers (and Panthers Affiliates) and Panthers BRHC Limited to which they
are a party and the performance of their respective agreements in the
Transaction Agreements do not violate the Articles of Incorporation, or the
Bylaws of Panthers (and Panthers Affiliates) or the Certificate of Limited
Partnership or Partnership Agreement of Panthers BRHC Limited,
respectively.
(iv) Each of the Transaction Agreements has been duly executed and
delivered by Panthers (and Panthers Affiliates) and Panthers BRHC Limited
(as applicable) and constitutes a 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;
(v) Upon consummation of the transactions contemplated hereunder and
the issuance and delivery of the Panthers Warrants, the Panthers Warrants
will be validly issued; upon the exchange of any of the Exchange Rights for
Panthers Shares, and the issuance and delivery of certificates representing
the Panthers Shares to the holders of the Exchange Rights, the Panthers
Shares will be validly issued, fully paid and non-assessable shares of
Panthers Common Stock; and upon exercise of the Panthers Warrants in
accordance with the terms thereof, and payment of the exercise price with
respect thereto, and upon issuance and delivery of the certificates
representing shares of Panthers Common Stock therefore, the shares of
Panthers Common Stock issued thereunder will be validly issued, fully paid
and non-assessable; and
(vi) As of a date on or about the Closing Date, a statement of the
authorized capital stock of Panthers (including any shares of stock
reserved for issuance under any stock option plan); together with a
statement of the total number of securities issued by Panthers and
outstanding (and whether such securities are fully paid and
non-assessable); together with a statement of the total shares of Common
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Stock which are unissued but subject to granted but currently unexercised
options and which are reserved for issuance pursuant to the Exchange
Agreement and upon exercise of the Panthers Warrants.
7.8 Share Price. After the mailing of the solicitations for the limited
partner consents under Section 7.5, there shall not have occurred a Material
Adverse Effect with respect to Panthers which causes the stock price of Panthers
on the NASDAQ Stock Market to fall below $26.375.
ARTICLE VIII
REGISTRATION
8.1 Registration. Prior to the Closing Date, Panthers shall register under
the Securities Act of 1933 ("Securities Act") and under applicable state
securities law, the issuance of the Exchange Rights, Panthers Shares, the Fee
Shares and the Panthers Warrants to the Partnership. Panthers BRHC Limited and
Panthers shall use best efforts to keep the registration statements required by
this Section 8.1 effective for so long as shall be necessary to allow the resale
of any underlying Panthers Common Stock to be made by any holder thereof without
restriction under Section 4(1) of the Securities Act (but without taking into
account any status of such holder as an affiliate of Panthers or Panthers BRHC
Limited).
8.2 Expenses of Registration. Panthers and Panthers BRHC Limited shall pay
all expenses incurred in connection with the registration, qualification and/or
exemption of the securities to be issued hereunder, including any SEC and state
securities law registration and filing fees, printing expenses, fees and
disbursements of Panthers' and Panthers BRHC Limited's counsel and accountants,
transfer agents' and registrars' fees, fees and disbursements of experts used by
Panthers and Panthers BRHC Limited in connection with such registration,
qualification and/or exemption, and expenses incidental to any amendment or
supplement to the Registration Statements or prospectuses contained therein.
Panthers and Panthers BRHC Limited shall not, however, be liable for any sales,
broker's or underwriting commissions upon sale by any holder of any of the
Panthers Shares or Panthers Warrants.
ARTICLE IX
APPLICATION OF HELD BACK INTERESTS
9.1 Survival of Representations and Warranties. Each of the
representations and warranties of the Panthers and Panthers BRHC Limited in this
Agreement or pursuant hereto shall expire at the Closing Date. Each of the
representations and warranties made by the Partnership, the General Partner and
BRMC in this Agreement or pursuant hereto shall expire at the Closing Date,
provided however, that with respect to the Trade Accounts Receivable and Premier
Club Accounts Receivable "Loss Experience" (defined below), Panther's designee
(for example, for purposes of this Article IX, Panthers BRGP Corporation) shall
have recourse to the Held Back Interests as set forth in Section 9.2 hereof.
9.2 Loss Experience and Security for Loss Experience. The "Loss
Experience" with respect to the Trade Accounts Receivable and the Premier Club
Accounts Receivable identified on the Closing Net Working Capital Statement
shall be calculated as of December 31, 1997, unless the Closing occurs
subsequent to June 30, 1997, in which case the Loss Experience shall be
calculated as of a date which is the end of the calendar quarter and which falls
between six and nine months after the Closing Date ("Settlement Date"); for
example, if the Closing occurs on July 10, 1997, the Settlement Date would be
March 31, 1998.
(a) Trade Accounts Receivable Loss Experience shall equal: The total
amount of Trade Accounts Receivable listed on the Closing Net Working
Capital Statement which are uncollected at the Settlement Date.
(b) Premier Club Accounts Receivable Loss Experience shall equal: The
sum of (i) the total amount of Premier Club Accounts Receivable past due
(determined in good faith between Panthers and the Partnership) as of the
Settlement Date ("PCAR Delinquent Amount") plus (ii) the product of (1) the
percentage obtained by dividing (x) the PCAR Delinquent Amount by (y) the
total Premier Club
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Accounts Receivable set forth on the Closing Net Working Capital Statement
which were due on or before the Settlement Date; multiplied by (2) the
amount identified on the Closing Net Working Capital Statement as being due
subsequent to the Settlement Date.
9.3 Adjustment Amount. The Partnership shall pay to Panthers BRGP
Corporation the "Adjustment Amount," which shall equal: (i) the Trade Accounts
Receivable Loss Experience, plus (ii) any negative amount obtained by
subtracting from the Net Working Capital set forth on the Closing Net Working
Capital Statement: (1) the transaction costs referred to in Section 5.20; and
(2) the Premier Club Accounts Receivable Loss Experience. As security for the
agreement by the Partnership to pay the Adjustment Amount, the Partnership does
hereby grant a security interest in, and Pledge to Panthers BRGP Corporation the
Held Back Interests (as defined in Section 1.8(i)) and any Panthers Common Stock
exchangeable therefore and proceeds of all of the foregoing. Panthers BRGP
Corporation may set off against the Held Back Interests and against any proceeds
thereof the Adjustment Amount for which the Partnership may be responsible
pursuant to this Agreement, subject, however, to the following terms and
conditions:
(a) Panthers BRGP Corporation shall give written notice to the
Partnership of any claim for setoff against the Held Back Interests, which
notice shall set forth: (i) the amount of the Adjustment Amount; and (ii)
the basis of such claim;
(b) Such set off shall be effected on the later to occur of the
expiration of 30 days from the date of such notice (the "Notice of Contest
Period") or, if such claim is contested, the date the dispute is resolved,
and such set off shall be charged proportionally against the shares set
aside;
(c) If, prior to the expiration of the Notice of Contest Period, the
Partnership shall notify Panthers BRGP Corporation in writing of an
intention to dispute the claim, the parties shall in good faith negotiate
to resolve the claim or submit the matter to binding arbitration;
(d) For purposes of this Article, Panthers Shares for which each Held
Back Interest can be exercised shall be valued at the greater of the Price
per Share or the price per share of Panthers Common Stock at the close of
trading on the date the written notice is sent pursuant to clause (a)
above.
(e) Neither the Partnership nor the General Partner shall be liable to
Panthers or Panthers BRHC Limited or Panthers BRGP Corporation for any
deficiency resulting from the value of the Held Back Interests being less
than the Adjustment Amount, it being agreed that the only recourse against
Partnership by any party for the Adjustment Amount shall be to the Held
Back Interests.
9.4 Voting of and Dividends on the Held Back Interests. Except with
respect to Held Back Interests transferred pursuant to the foregoing right of
set off (and in the case of such Held Back Interests, until the same are
transferred), all Held Back Interests shall be deemed to be owned by the
Partnership and the Partnership shall be entitled to vote any proceeds thereof;
provided, however, that, there shall also be deposited with Panthers, subject to
the terms of this Article, all shares of Panthers Common Stock issued to the
Partnership as a result of any exercise of any Exchange Rights with respect to
Held Back Interests, and as a result of any stock dividend or stock split and
all cash issuable to the Partnership as a result of any cash dividend with
respect to Panthers Common Stock exchangeable therefore. All stock and cash
issued or paid upon Held Back Interests shall be distributed to the person or
entity entitled to receive such Held Back Interests together with such Held Back
Interests.
9.5 Delivery of Held Back Interests and Proceeds. Panthers BRGP
Corporation agrees to deliver to the Partnership promptly following the
Settlement Date any Held Back Interests (or proceeds thereof) then held by it
which it is not entitled to retain pursuant to Section 9.3, unless there then
remains unresolved any claim for an Adjustment Amount as to which notice has
been given, in which event any Held Back Interests remaining on deposit after
such claim shall have been satisfied shall be returned to the Partnership
promptly after the time of satisfaction.
9.6 Adjustment to Consideration. All setoffs made pursuant to this Article
shall be treated as adjustments to the consideration granted under Section 1.8
hereof.
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ARTICLE X
DEFINITIONS
10.1 Defined Terms. As used herein, the following terms shall have the
following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
"Asbestos-Containing Material" means any material containing more than
one percent (1%) asbestos.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act of 1980 (42 U.S.C. 9601, et seq.), as heretofore or
hereafter amended from time to time.
"Contract" means any agreement, contract, lease, note, mortgage,
indenture, loan agreement, franchise agreement, covenant, employment
agreement, license, instrument, purchase and sales order, commitment,
undertaking, obligation, whether written or oral, express or implied.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with any Person, are treated as a
single employer under Section 414(b) or 414(c) of the Internal Revenue
Code.
"Environmental Laws" collectively means and includes all present and
future laws and any amendments (whether common law, statute, rule, order,
regulation or otherwise), permits, and other requirements or guidelines of
governmental authorities applicable to the Owned Property and relating to
the environment and environmental conditions or to any Hazardous Substance
or Hazardous Substance Activity (including, without limitation, CERCLA, the
Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C.
sec. 6901, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
sec. 6901, et seq., the Federal Water Pollution Control Act, 33 U.S.C.
sec. 1251, et seq., the Clean Air Act, 33 U.S.C. sec. 7401, et seq., the
Clean Air Act, 42 U.S.C. sec. 7401, et seq., the Toxic Substances Control
Act, 15 U.S.C. sec. 2601-2629, the Safe Drinking Water Act, 42 U.S.C.
sec. 300f-300j, the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. sec. 1101, et seq., and any so-called "Super Fund" or "Super Lien"
law, environmental laws administered by the Environmental Protection
Agency, any similar state and local laws and regulations, all amendments
thereto and all regulations, orders, decisions, and decrees now or
hereafter promulgated thereunder).
"Environmental Report" means the "Report of Phase I Environmental Site
Assessment and Limited Visual Asbestos Survey" of the Boca Raton Resort and
Club dated August 8, 1996 prepared by Law Engineering and Environmental
Services, Inc., Project Number 40795-6-0505.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expansion Plan" shall have the meaning set forth in the Loan
Agreement.
"GAAP" means generally accepted accounting principles in effect in the
United States of America from time to time.
"Governmental Authority" means any nation or government, any state,
regional, local or other political subdivision thereof, and any entity or
official exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hazardous Substance" means, at any time, (i) asbestos and any
Asbestos-Containing Material, (ii) any substance that is listed in, or
otherwise classified pursuant to, any Environmental Laws or any applicable
laws or regulations as a "hazardous substance", "hazardous material",
"hazardous waste", "infectious waste", "toxic substance", "toxic pollutant"
or any other formulation intended to define, list, or classify substances
by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, or "EP
toxicity", (iii) any petroleum and drilling fluids, produced waters, and
other wastes associated with the exploration, development or production of
crude
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oil, natural gas, or geothermal resources and (iv) petroleum productions,
ploychlorinated biphenyls, urea formaldehyde, radon gas, radioactive
matter, and medical waste.
"Hazardous Substance Activity" means any actual use, packaging,
labeling, treatment, leaching, spill, cleanup, storage, holding, existence,
release, emission, discharge, generation, processing, abatement, removal,
disposition, handling or transportation of any Hazardous Substance from,
under, into or on the Owned Property or surrounding property (but only
concerning surrounding property to the extent of seepage, release,
discharge, migration, disposal or other actions from the Owned Property to
the surrounding property or from the surrounding property to the Owned
Property).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Legal Requirements" means all applicable laws, statutes, ordinances,
rulings, regulations, codes, decrees, orders, judgments, covenants,
conditions, restrictions, approvals, permits and requirements under any
Permitted Exception or for, from or by any Governmental Authority,
including zoning, subdivision, use, environmental, building, safety,
health, housing and fire.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, but not limited to, any conditional
sale or other title retention agreement, any lease in the nature thereof,
and the filing of or agreement to give any financing statement under the
Uniform Commercial Code or comparable law or any jurisdiction in connection
with such mortgage, pledge, security interest, encumbrance, lien or
charge).
"Loan Agreement" means that certain Loan Agreement dated August 26,
1996 between the Partnership, as Borrower, the Bank's signatory thereto and
the Bank of Nova Scotia, as Agent.
"Material Adverse Change (or Effect)" means a change (or effect) in
the condition (financial or otherwise), properties, assets, liabilities,
rights, obligations, operations or business, which change (or effect)
individually or in the aggregate is materially adverse to such condition,
properties, assets, liabilities, rights, obligations, operations or
business.
"Permitted Exceptions" means those items set forth on Schedule 3.11(b)
hereof.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, estate, trust, unincorporated association,
joint venture, Governmental Authority or other entity, of whatever nature.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Part 3
of Title I of ERISA or Section 412 of the Code and is either (a) maintained
by any Person or any member of a Controlled Group for employees of such
Person or any member of such Controlled Group or (b) maintained pursuant to
a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which such Person or any
member of a Controlled Group is then making or has any obligation to make
contributions or, within the preceding five plan years, has made or has had
any obligation to make contributions.
"Register", "registered" and "registration" refer to a registration of
the offering and sale of securities effected by preparing and filing a
registration statement in compliance with the Securities Act and the
declaration or ordering of the effectiveness of such registration
statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Survey" means the surveys described on Item 1 of the Permitted
Exceptions.
"Tax Return" means any tax return, filing or information statement
required to be filed in connection with or with respect to any Taxes; and
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"Taxes" means all taxes, fees or other assessments, including, but not
limited to, income, excise, property, sales, franchise, intangible,
withholding, social security and unemployment taxes imposed by any federal,
state, local or foreign governmental agency, and any interest or penalties
related thereto.
10.2 Other Definitional Provisions. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificates, reports
or other documents made or delivered pursuant hereto or thereto, unless the
context otherwise requires.
(b) Terms defined in the singular shall have a comparable meaning when used
in the plural, and vice versa.
(c) All matters of an accounting nature in connection with this Agreement
and the transactions contemplated hereby shall be determined in accordance with
GAAP, applied on a basis consistent with prior periods, where applicable.
(d) As used herein, the neuter gender shall also denote the masculine and
feminine, and the masculine gender shall also denote the neuter and feminine,
where the context so permits.
ARTICLE XI
TERMINATION
11.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual written consent of all of the parties hereto at any time
prior to the Closing;
(b) by Panthers, in the event of a breach by any of the Partnership,
the General Partner or BRMC of any provision of this Agreement which would
have a Material Adverse Effect upon the Partnership or upon the rights or
benefits of Panthers or Panthers BRHC Limited hereunder;
(c) by the Partnership in the event of a breach by Panthers or
Panthers BRHC Limited of any provision of this Agreement which would have a
Material Adverse Effect on the rights or benefits of the Partnership
hereunder;
(d) by either Panthers or the Partnership if the Closing shall not
have occurred by December 31, 1997;
(e) by either Panthers or the Partnership if the requisite consents of
the limited partners of the Partnership are not obtained within ninety (90)
days of the last mailing of the consent solicitation or any amendment
thereof; or
(f) by the Partnership upon payment of the Termination Fee set forth
in Section 5.12 hereof.
11.2 Effect of Termination. In the event of termination of this Agreement
pursuant to Section 11.1, this Agreement shall forthwith become void and of no
further force and effect and the parties shall be released from any and all
obligations hereunder; except that the provisions of Section 5.12 shall survive,
as applicable.
ARTICLE XII
GENERAL PROVISIONS
12.1 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
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telecopy numbers (or to such other addresses or telecopy numbers which such
party shall designate in writing to the other party):
(a) IF TO THE PANTHERS:
Florida Panthers Holdings, Inc.
100 S.E. Third Avenue, Second Floor
Ft. Lauderdale, FL 33301
Attn: Steven M. Dauria
Telecopy: (954) 768-1920
WITH A COPY TO:
Akerman, Senterfitt & Eidson, P.A.
One Southeast Third Avenue, 28th Floor
Miami, Florida 33131
Attention: Stephen K. Roddenberry, Esq.
Telecopy: (305) 374-5095
(b) IF TO ANY OF THE PARTNERSHIP, THE GENERAL PARTNER OR BRMC TO:
Private Merchant Banking Company
380 Lexington Avenue, Suite 4500
New York, NY 10168
Attention: Theodore V. Fowler
Telecopy: (212) 689-9519
WITH A COPY TO:
Boca Raton Hotel and Club Limited Partnership
501 East Camino Real
Boca Raton, Florida 33432
Attn: Edward E. March
Telecopy: (561) 394-9183
WITH A COPY TO:
Rogers & Wells
200 Park Avenue
New York, New York 10166
Attn: James M. Asher, Esq.
Telecopy: (212) 878-3215
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.
12.2 Entire Agreement. This Agreement (including the Exhibits and
Schedules attached hereto) and other documents delivered at the Closing pursuant
hereto, contains the entire understanding of the parties in respect of its
subject matter and supersedes all prior agreements and understandings (oral or
written) between or among the parties with respect to such subject matter,
including, but not limited to that certain Contribution and Exchange Agreement
dated as of March 20, 1997 by and among the parties hereto. The Exhibits and
Schedules constitute a part hereof as though set forth in full above.
12.3 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
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obligations or any other acts. The rights and remedies of the parties under this
Agreement are in addition to all other rights and remedies, at law or equity,
that they may have against each other.
12.4 Binding Effect; Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned by any of the parties without the prior written
consent of the other party; provided however, that Panthers may designate that
its affiliates may hold the Panther Interest.
12.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
12.6 Interpretation. When a reference is made in this Agreement to an
article, section, paragraph, clause, schedule or exhibit, such reference shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or the
schedules. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." Time shall be of the essence in this Agreement.
12.7 Governing Law; Interpretation. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of
Florida applicable to contracts executed and to be wholly performed within such
State.
12.8 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:
-------------------------------
Title:
--------------------------------
PANTHERS BRHC LIMITED, a Florida
limited
partnership
By: Panthers BRGP Corporation
as general partner
By:
------------------------------------
Name:
-------------------------------
Title:
--------------------------------
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BOCA RATON HOTEL AND CLUB, LTD.,
a Florida limited partnership
By: BRMC, L.P., a Delaware limited
partnership, as general partner
By: BRMC, Inc., a Delaware
corporation, as general partner
By:
-------------------------------
Theodore V. Fowler, Chief
Executive Officer
BRMC, L.P., a Delaware limited
partnership
By: BRMC, INC., a Delaware
corporation, as general partner
By:
---------------------------------
Theodore V. Fowler, Chief
Executive Officer
BRMC, INC., a Delaware corporation
By:
------------------------------------
Theodore V. Fowler, Chief Executive
Officer
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<PAGE> 45
EXHIBIT "A"
Cash, accounts receivable and other assets such as supplies or inventory,
which have a total value and adjusted tax basis for federal income tax purposes
of approximately $30 million provided, however, that if the Partnership secures
a deduction for federal income tax purposes upon the transfer of the Fee Shares
to creditors of the Partnership, the Partnership and Panthers BRGP Corporation
may select assets to be sold having a value in excess of such adjusted tax basis
equal to the amount of the deduction.
<PAGE> 46
EXHIBIT "B"
I. ADJUSTMENTS TO EXCHANGE RIGHTS INTERESTS
The number of shares of Class A Common Stock ("Class A Shares") for which
an Exchange Right is exercisable, shall be subject to adjustment from time to
time as set forth below.
1.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS.If Florida Panthers
Holdings, Inc. (the "Company") shall, at any time or from time to time, (a) make
(or fix a record date for the holders of shares of its Class A or Class B common
stock, par value $.01 per share (collectively, "Common Stock") entitled to
receive) a dividend payable in, or other distribution of, additional shares of
Common Stock, (b) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock, or (c) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, then the number of
Class A Shares issuable upon the exercise of the Exchange Right immediately
prior to the occurrence of any such event shall be adjusted so that the Holder
of the Exchange Right upon exercise on or after that date shall be entitled to
receive the aggregate number and kind of Class A Shares which the Holder of the
Exchange Right would have owned and been entitled to receive as a result of such
event had the Exchange Right been exercised immediately prior thereto.
1.2 DIVIDENDS AND DISTRIBUTIONS OTHER THAN IN CASH.If the Company
shall, at any time or from time to time, make (or fix a record date for the
holders of shares of its Common Stock entitled to receive) a dividend or other
distribution payable in securities or assets of the Company or in the securities
of any subsidiary of the Company (other than shares of Common Stock or cash),
then lawful and adequate provision shall be made so that the Holder of the
Exchange Right shall be entitled to receive upon exercise of the Exchange Right,
in addition to the number of Class A Shares immediately theretofore issuable
upon exercised of the Exchange Right, the kind and number of securities or
assets of the Company or securities of any subsidiary of the Company, which the
Holder would have owned and been entitled to receive had the Exchange Right been
exercised immediately prior to that date.
1.3 CASH DIVIDENDS AND DISTRIBUTIONS. If the Company shall, at any time
or from time to time, (a) make (or fix a record date for the holders of shares
of its Common Stock entitled to receive) a dividend payable in, or other
distribution of cash, then (i) the number of Class A Shares issuable upon the
exercise of the Exchange Right immediately prior to the occurrence of any such
event shall be increased by: (i) the amount of the dividend the Holder of the
Exchange Right would have received if he had exercised his Exchange Right
immediately prior to the record date, divided by (ii) the average price of
Panthers Class A Common Stock for the five consecutive trading days on the
NASDAQ Stock Market immediately preceding the record date.
1.4 REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALES OF ASSETS. If any
of the following transactions (each, a "Special Transaction") shall become
effective: (i) a capital reorganization, whether by reclassification, exchange,
substitution or otherwise (other than a stock or cash dividend, subdivision,
combination or other distribution provided for elsewhere in this Section 1),
(ii) a consolidation or merger of Panthers Holdings with and into another
entity, or (iii) a sale or conveyance of all or substantially all of the
Company's assets, then as a condition of any such Special Transaction, lawful
and adequate provision shall be made so that the Holder of any Exchange Right
shall thereafter have the right to receive upon exercise of the Exchange Right,
in lieu of the Class A Shares immediately theretofore issuable upon exercise of
the Exchange Right, such shares of stock, other securities, cash or other assets
as may be issued or payable in and pursuant to the terms of such Special
Transaction to the holders of shares of Class A Common Stock for which the
Exchange Right could have been exercised immediately prior to such Special
Transaction. In connection with any Special Transaction, appropriate provision
shall be made with respect to the rights and interests of the Holder of the
Exchange Right to the end that the provisions of the Exchange Right (including
without limitation the provisions of this Section 1), shall thereafter be
applicable, as nearly as may be practicable, to any shares of stock, other
securities, cash or other assets thereafter deliverable upon the exercise of the
Exchange Right. The Company shall not effect any Special Transaction unless
prior to or simultaneously with the closing, the successor entity (if other than
the Company), if any, resulting from such consolidation or
Exhibit B-1
<PAGE> 47
merger or the entity acquiring such assets shall assume by a written instrument
executed and mailed by certified mail or delivered to the Holder of this
Exchange Right at the address of the Holder appearing on the books of the
Company, the obligation of the Company or such successor corporation to deliver
to the Holder such shares of stock, securities, cash or other assets, as in
accordance with the foregoing provisions, which the Holder shall have the right
to purchase.
II. ADJUSTMENTS TO WARRANTS.
The number of Class A Shares for which a Panthers Warrant is exercisable
and the Exercise Price shall be subject to adjustment from time to time as set
forth below.
2.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If the Company
shall, at any time or from time to time, (a) make (or fix a record date for the
holders of shares of its Common Stock") entitled to receive) a dividend payable
in, or other distribution of, additional shares of Common Stock, (b) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or (c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then (i) the number of Class A Shares issuable
upon the exercise of the Warrant immediately prior to the occurrence of any such
event shall be adjusted so that the Holder of the Warrant upon exercise on or
after that date shall be entitled to receive the aggregate number and kind of
Class A Shares which the Holder of the Warrant would have owned and been
entitled to receive as a result of such event had the Warrant been exercised
immediately prior thereto, and (ii) the Exercise Price in effect immediately
prior to such event shall be adjusted by multiplying such Exercise Price by a
fraction, the numerator of which is the aggregate number of Class A Shares
purchasable upon exercise of the Warrant immediately prior to such event, and
the denominator of which is the aggregate number of Class A Shares purchasable
upon exercise of the Warrant immediately thereafter.
2.2 DIVIDENDS AND DISTRIBUTIONS OTHER THAN IN CASH. If the Company
shall, at any time or from time to time, make (or fix a record date for the
holders of shares of its Common Stock entitled to receive) a dividend or other
distribution payable in securities or assets of the Company or in the securities
of any subsidiary of the Company (other than shares of Common Stock or Cash),
then lawful and adequate provision shall be made so that the Holder of the
Warrant shall be entitled to receive upon exercise of the Warrant, for the
aggregate Exercise Price in effect prior thereto, in addition to the number of
Class A Shares immediately theretofore issuable upon exercise of the Warrant,
the kind and number of securities or assets of the Company or securities of any
subsidiary of the Company, which the Holder would have owned and been entitled
to receive had the Warrant been exercised immediately prior to that date.
2.3 CASH DIVIDENDS AND DISTRIBUTIONS. The Company shall, at any time or
from time to time, (a) make (or fix a record date for the holders of shares of
its Common Stock Common Stock entitled to receive) a dividend payable in, or
other distribution of cash, then (i) the number of Class A Shares issuable upon
the exercise of the Warrant, for the aggregate Exercise Price in effect prior
thereto, immediately prior to the occurrence of any such event shall be
increased by: (i) the amount of the dividend the Holder of this Warrant would
have received if he had exercised his warrant immediately prior to the record
date, divided by (ii) the average price of Panthers Class A Common Stock for the
five consecutive trading days on the NASDAQ Stock Market immediately preceding
the record date.
2.4 REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALES OF ASSETS. If any
of the following transactions (each, a "Special Transaction") shall become
effective: (i) a capital reorganization, whether by reclassification, exchange,
substitution or otherwise (other than a stock or cash dividend, subdivision,
combination or other distribution provided for elsewhere in this Section 2),
(ii) a consolidation or merger of the Company with and into another entity, or
(iii) a sale or conveyance of all or substantially all of the Company's assets,
then as a condition of any such Special Transaction, lawful and adequate
provision shall be made so that the Holder of the Warrant shall thereafter have
the right to purchase and receive upon exercise of the Warrant, in lieu of the
Class A Shares immediately theretofore issuable upon exercise of this Warrant,
for the aggregate Exercise Price in effect immediately prior to such
consummation, such shares of stock, other securities, cash or other assets as
may be issued or payable in and pursuant to the terms of such Special
Transaction to the holders of shares of Common Stock for which the Warrant could
have been exercised
Exhibit B-2
<PAGE> 48
immediately prior to such Special Transaction. In connection with any Special
Transaction, appropriate provision shall be made with respect to the rights and
interests of the Holder of the Warrant to the end that the provisions of the
Warrant (including without limitation the provisions of this Section 2), shall
thereafter be applicable, as nearly as may be practicable, to any shares of
stock, other securities, cash or other assets thereafter deliverable upon the
exercise of the Warrant. The Company shall not effect any Special Transaction
unless prior to or simultaneously with the closing, the successor entity (if
other than the Company), if any, resulting from such consolidation or merger or
the entity acquiring such assets shall assume by a written instrument executed
and mailed by certified mail or delivered to the Holder of the Warrant at the
address of the Holder appearing on the books of the Company, the obligation of
the Company or such successor corporation to deliver to the Holder such shares
of stock, securities, cash or other assets, as in accordance with the foregoing
provisions, which the Holder shall have the right to purchase.
Exhibit B-3
<PAGE> 49
EXHIBIT "C"
The Fair Market Value of a partnership interest in Panthers BRHC Limited
shall be determined as follows:
- Assume the sale of contributed Assets and Sold Assets at Appraised
Value
- choice of appraisal provisions
- Run proceeds of sale net of liabilities through Panthers BRHC
Limited's partnership agreement
- Discount 30% for non-marketability and lack of control
<PAGE> 50
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware General Corporation Law. Section 145(a) of the Delaware General
Corporation Law (the "GCL") provides that a Delaware corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, such officer or director shall be indemnified
against expenses actually and reasonably incurred by him or her in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such officer or director and incurred by him or her in any such capacity or
arising out of is or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under Section
145.
Certificate of Incorporation and Bylaws. Panthers Holdings' Certificate of
Incorporation provides that a director shall not be liable to Panthers Holdings
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL as the same exists or may be amended.
However, such provision does not eliminate or limit the liability of a director
for acts or omissions not in good faith or for breaching his or her duty of
loyalty, engaging in intentional misconduct or knowingly violating a law, paying
a dividend or approving a stock repurchase which was illegal, or obtaining an
improper personal benefit. A provision of this type has no effect on the
availability of equitable remedies, such as injunction or rescission, for breach
of fiduciary duty.
Panthers Holdings' Bylaws provides that Panthers Holdings shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any director or officer who was or
is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of Panthers Holdings or,
while a director or officer of Panthers Holdings, is or was serving at the
written request of Panthers Holdings as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses (including attorneys' fees)
reasonably incurred by such director or officer.
II-1
<PAGE> 51
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) A list of the exhibits filed as part of this Registration Statement is
set forth in the Exhibit Index which immediately precedes such exhibits.
(b) Financial Statement Schedule -- none
ITEM 22. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
The undersigned Registrant undertakes that every prospectus: (i) that is
filed pursuant to paragraph (1) immediately preceding, or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Act and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part of
an amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event
II-2
<PAGE> 52
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
ITEM 23. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
2.1 -- Exchange Agreement dated October 25, 1996 by and between the
Company and H. Wayne Huizenga.*
2.2 -- Purchase Agreement dated October 25, 1996 by and between
Decoma Investment, Inc. II and Decoma Investment, Inc. III.*
2.3 -- Partnership Exchange Agreement dated October 25, 1996 by and
between Florida Panthers Hockey Club, Ltd. and H. Wayne
Huizenga.*
2.4 -- Asset Purchase Agreement, dated as of January 18, 1997, by
and among Florida Panthers Ice Ventures, Inc., Iceland
(Coral Springs) Corp., Iceland Holdings, Inc. and Brian
Brisbin.**
2.5 -- Asset Purchase Agreement, dated as of January 18, 1997, by
and among Florida Panthers Ice Ventures, Inc., Brisbin Brook
Beynon, Architects and Brian Brisbin.**
2.6 -- Asset Purchase Agreement, dated as of January 18, 1997, by
and among Florida Panthers Ice Ventures, Inc. and Brian
Brisbin.**
2.7 -- Exchange Agreement (Hyatt Regency Pier 66), dated as of
December 22, 1996.***
2.8 -- Exchange Agreement (Radisson Bahia Mar), dated as of
December 22, 1996.***
2.9 -- Amended and Restated Contribution and Exchange Agreement,
dated as of March 20, 1997, by and among Florida Panthers
Holdings, Inc., Panthers BRHC Limited, Boca Raton Hotel and
Club Limited Partnership, BRMC, L.P. and BRMC Corporation.
(previously filed)
2.10 -- Merger Agreement, dated July 8, 1997, by and among the
Company, FPH/RHI Merger Corp., Inc., ResortHill, Inc. and
Gary V. Chensoff.****
2.11 -- Agreement and Plan of Merger dated as of November 17, 1997,
by and among the Company and Florida Panthers Holdings,
Inc., a Delaware corporation.
3.1 -- Certificate of Incorporation of the Company. (previously
filed)
3.2 -- By-Laws of the Company. (previously filed)
4.1 -- Amended and Restated Loan Agreement, dated June 25, 1997,
among Panthers BRHC Limited, the banks listed on the
signature page thereto and the Bank of Nova Scotia.****
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A., Counsel to
the Company. (previously filed)
10.1 -- Broward County Arena License Agreement, dated as of June 4,
1996, by and between Florida Panthers Hockey Club, Ltd.,
Arena Operating Company, Ltd., and Broward County, Florida.*
10.2 -- Broward County Arena Operating Agreement, dated as of June
4, 1996, by and between Arena Operating Company, Ltd. and
Broward County, Florida.*
10.3 -- Amendment and Clarification to Operating Agreement and
License Agreement, dated as of June 4, 1996, by and between
Florida Panthers Hockey Club, Ltd., Arena Operating Company,
Ltd. and Broward County, Florida.*
</TABLE>
II-3
<PAGE> 53
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
.4 -- Broward County Arena Development Agreement, dated as of June
10 4, 1996, by and between Arena Development Company, Ltd. and
Broward County, Florida.*
10.5 -- Employment Agreement by and between William A. Torrey and
the Company.*
10.6 -- Management Agreement by and between the Company and Huizenga
Holdings, Inc.*
10.7 -- Miami Arena Contract, dated as of October 10, 1986, as
amended, by and between Miami Sports and Exhibition
Authority and Decoma Miami Associates, Ltd.*
10.8 -- First Amendment to Miami Arena Contract and Agreement, dated
as of December 13, 1990, by and between Miami Sports and
Exhibition Authority and Decoma Miami Associates, Ltd.*
10.9 -- Arena Management Agreement, dated as of October 10, 1986, by
and between Decoma Venture and Facility Management and
Marketing (predecessor to Leisure Management
International).*
10.10 -- Amended and Restated 1996 Stock Option Plan. (previously
filed)
10.11 -- Concession Agreement, dated as of April 4, 1995, as amended,
by and between City of Coral Springs, Florida and Can Am
Investment Group, Inc.**
10.12 -- Assignment of Concession Agreement, dated as of January 31,
1997, by and between Coral Springs Ice, Ltd. and Florida
Panthers Holdings, Inc.**
10.13 -- Hotel Management Agreement (Pier 66), by and between 2301 SE
17th St., Ltd. and Rahn Pier Mgt., Inc.***
10.14 -- Hotel Management Agreement (Bahia Mar), by and between 2301
Rahn Bahia Mar, Ltd. and Rahn Bahia Mar Mgmt., Inc.***
21.1 -- Subsidiaries of the Company.*****
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of KPMG Peat Marwick LLP.
23.3 -- Consent of Price Waterhouse LLP.
23.4 -- Consent of Ernst & Young LLP.
23.5 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included in
its opinion previously filed as Exhibit 5.1).
24.1 -- Powers of Attorney (previously filed).
</TABLE>
- ---------------
* Incorporated by reference to the Company's Registration Statement on Form
S-1 -- SEC File No. 333-12191
** Incorporated by reference to the Company's Current Report on Form 8-K
filed on February 18, 1997 -- SEC File No. 0-21435
*** Incorporated by reference to the Company's Definitive Consent
Solicitation Statement filed on March 4, 1997 -- SEC File No. 0-21435
**** Incorporated by reference to the Company's Registration Statement on Form
S-1 -- SEC File No. 333-30925
***** Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1997 -- SEC File No. 1-13173
II-4
<PAGE> 54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Post-Effective Amendment No. 4 to Registration Statement on
Form S-4 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida, on the 1st day of
December, 1997.
Florida Panthers Holdings, Inc.
By: /s/ WILLIAM M. PIERCE
------------------------------------
William M. Pierce
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 4 to Registration Statement on Form S-4 has been
signed by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board December 1, 1997
- ----------------------------------------------------- (Principal Executive
H. Wayne Huizenga Officer)
* Vice Chairman December 1, 1997
- -----------------------------------------------------
Richard C. Rochon
* President and Director December 1, 1997
- -----------------------------------------------------
Richard H. Evans
* Senior Vice President and December 1, 1997
- ----------------------------------------------------- Chief Financial Officer
William M. Pierce (Principal Financial
Officer)
* Vice President and Corporate December 1, 1997
- ----------------------------------------------------- Controller (Principal
Steven M. Dauria Accounting Officer)
* Director December 1, 1997
- -----------------------------------------------------
Steven R. Berrard
/s/ DENNIS J. CALLAGHAN Director December 1, 1997
- -----------------------------------------------------
Dennis J. Callaghan
* Director December 1, 1997
- -----------------------------------------------------
Michael S. Egan
/s/ CHRIS EVERT Director December 1, 1997
- -----------------------------------------------------
Chris Evert
</TABLE>
II-5
<PAGE> 55
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
Director December 1, 1997
*
- -----------------------------------------------------
Harris W. Hudson
* Director December 1, 1997
- -----------------------------------------------------
George D. Johnson, Jr.
/s/ HENRY LATIMER Director December 1, 1997
- -----------------------------------------------------
Henry Latimer
By: /s/ WILLIAM M. PIERCE
-------------------------------------------------
William M. Pierce
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 56
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
2.1 -- Exchange Agreement dated October 25, 1996 by and between the
Company and H. Wayne Huizenga.*
2.2 -- Purchase Agreement dated October 25, 1996 by and between
Decoma Investment, Inc. II and Decoma Investment, Inc. III.*
2.3 -- Partnership Exchange Agreement dated October 25, 1996 by and
between Florida Panthers Hockey Club, Ltd. and H. Wayne
Huizenga.*
2.4 -- Asset Purchase Agreement, dated as of January 18, 1997, by
and among Florida Panthers Ice Ventures, Inc., Iceland
(Coral Springs) Corp., Iceland Holdings, Inc. and Brian
Brisbin.**
2.5 -- Asset Purchase Agreement, dated as of January 18, 1997, by
and among Florida Panthers Ice Ventures, Inc., Brisbin Brook
Beynon, Architects and Brian Brisbin.**
2.6 -- Asset Purchase Agreement, dated as of January 18, 1997, by
and among Florida Panthers Ice Ventures, Inc. and Brian
Brisbin.**
2.7 -- Exchange Agreement (Hyatt Regency Pier 66), dated as of
December 22, 1996.***
2.8 -- Exchange Agreement (Radisson Bahia Mar), dated as of
December 22, 1996.***
2.9 -- Amended and Restated Contribution and Exchange Agreement,
dated as of March 20, 1997, by and among Florida Panthers
Holdings, Inc., Panthers BRHC Limited, Boca Raton Hotel and
Club Limited Partnership, BRMC, L.P. and BRMC Corporation.
(previously filed)
2.10 -- Merger Agreement, dated July 8, 1997, by and among the
Company, FPH/RHI Merger Corp., Inc., ResortHill, Inc. and
Gary V. Chensoff.****
2.11 -- Agreement and Plan of Merger dated as of November 17, 1997,
by and among the Company and Florida Panthers Holdings,
Inc., a Delaware corporation.
3.1 -- Certificate of Incorporation of the Company. (previously
filed)
3.2 -- By-Laws of the Company. (previously filed)
4.1 -- Amended and Restated Loan Agreement, dated June 25, 1997,
among Panthers BRHC Limited, the banks listed on the
signature page thereto and the Bank of Nova Scotia.****
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A., Counsel to
the Company. (previously filed)
10.1 -- Broward County Arena License Agreement, dated as of June 4,
1996, by and between Florida Panthers Hockey Club, Ltd.,
Arena Operating Company, Ltd., and Broward County, Florida.*
10.2 -- Broward County Arena Operating Agreement, dated as of June
4, 1996, by and between Arena Operating Company, Ltd. and
Broward County, Florida.*
10.3 -- Amendment and Clarification to Operating Agreement and
License Agreement, dated as of June 4, 1996, by and between
Florida Panthers Hockey Club, Ltd., Arena Operating Company,
Ltd. and Broward County, Florida.*
10.4 -- Broward County Arena Development Agreement, dated as of June
4, 1996, by and between Arena Development Company, Ltd. and
Broward County, Florida.*
10.5 -- Employment Agreement by and between William A. Torrey and
the Company.*
10.6 -- Management Agreement by and between the Company and Huizenga
Holdings, Inc.*
10.7 -- Miami Arena Contract, dated as of October 10, 1986, as
amended, by and between Miami Sports and Exhibition
Authority and Decoma Miami Associates, Ltd.*
10.8 -- First Amendment to Miami Arena Contract and Agreement, dated
as of December 13, 1990, by and between Miami Sports and
Exhibition Authority and Decoma Miami Associates, Ltd.*
10.9 -- Arena Management Agreement, dated as of October 10, 1986, by
and between Decoma Venture and Facility Management and
Marketing (predecessor to Leisure Management
International).*
10.10 -- Amended and Restated 1996 Stock Option Plan. (previously
filed)
10.11 -- Concession Agreement, dated as of April 4, 1995, as amended,
by and between City of Coral Springs, Florida and Can Am
Investment Group, Inc.**
10.12 -- Assignment of Concession Agreement, dated as of January 31,
1997, by and between Coral Springs Ice, Ltd. and Florida
Panthers Holdings, Inc.**
10.13 -- Hotel Management Agreement (Pier 66), by and between 2301 SE
17th St., Ltd. and Rahn Pier Mgt., Inc.***
</TABLE>
II-7
<PAGE> 57
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
10.14 -- Hotel Management Agreement (Bahia Mar), by and between 2301
Rahn Bahia Mar, Ltd. and Rahn Bahia Mar Mgmt., Inc.***
21.1 -- Subsidiaries of the Company.*****
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of KPMG Peat Marwick LLP.
23.3 -- Consent of Price Waterhouse LLP.
23.4 -- Consent of Ernst & Young LLP.
23.5 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included in
its opinion previously filed as Exhibit 5.1).
24.1 -- Powers of Attorney (previously filed).
</TABLE>
- ---------------
* Incorporated by reference to the Company's Registration Statement on Form
S-1 -- SEC File No. 333-12191
** Incorporated by reference to the Company's Current Report on Form 8-K
filed on February 18, 1997 -- SEC File No. 0-21435
*** Incorporated by reference to the Company's Definitive Consent
Solicitation Statement filed on March 4, 1997 -- SEC File No. 0-21435
**** Incorporated by reference to the Company's Registration Statement on Form
S-1 -- SEC File No. 333-30925
***** Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1997 -- SEC File No. 1-13173
II-8
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
August 15, 1997 included in Florida Panthers Holdings, Inc. and subsidiaries'
Form 10-K for the year ended June 30, 1997. We also consent to the incorporation
by reference in this registration statement of our report dated September 11,
1997 on the financial statements of Lehill Partners, L.P. and consolidated
entities included in Florida Panthers Holdings, Inc.'s Form 8-K/A dated August
13, 1997; and our report dated August 15, 1997 on the financial statements of
Florida Panthers Holdings, Inc. and subsidiaries, our report dated January 10,
1997 on the financial statements of 2301 SE 17th St., Ltd., our report dated
January 10, 1997 on the financial statements of Rahn Bahia Mar, Ltd., our report
dated February 7, 1997 on the financial statements of Coral Springs Ice, Ltd.,
and our report dated September 11, 1997 on the financial statements of Lehill
Partners and consolidated entities all of which are included in the Company's
Post-Effective Amendment No. 2 to Registration Statement on Form S-1 filed
November 17, 1997. We also consent to all references to our firm included in or
made a part of this registration statement.
ARTHUR ANDERSEN LLP
Fort Lauderdale, Florida,
November 26, 1997.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use of our report dated April 19, 1996, with respect to
the financial statements of 2301 SE 17th St., Ltd., incorporated by reference
into this Prospectus of Florida Panthers Holdings, Inc. filed on the
Post-Effective Amendment No. 4 to Form S-4 and to the reference to our firm
under the heading "Experts."
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Fort Lauderdale, Florida,
November 26, 1997.
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Post-Effective Amendment No. 4 to Registration
Statement on Form S-4 (No. 333-28951) of our report dated January 29, 1997,
except as to the subsequent event described in Note 12 which is as of March 20,
1997, relating to the financial statements for the year ended December 31, 1996
of the Boca Raton Hotel and Club Limited Partnership, which is also incorporated
by reference in this Prospectus. We also consent to the reference to us under
the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Fort Lauderdale, Florida
November 26, 1997
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in Post
Effective Amendment No. 4 to the Registration Statement (Form S-4 No. 333-28951)
and related Prospectus of Florida Panthers Holdings, Inc. and to the
incorporation by reference therein of our report dated January 26, 1996, with
respect to the financial statements of Boca Raton Hotel and Club Limited
Partnership included in the Florida Panthers Holdings, Inc. Post Effective
Amendment No. 3 to the Registration Statement (Form S-4 No. 333-28951) filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------------------
ERNST & YOUNG
West Palm Beach, Florida
November 26, 1997
