<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 24, 1999
REGISTRATION STATEMENT NO. 333-72443
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
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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<S> <C>
DELAWARE 65-0676005
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
</TABLE>
450 EAST LAS OLAS BOULEVARD
FORT LAUDERDALE, FLORIDA 33301
(954) 712-1300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
RICHARD L. HANDLEY, ESQ.
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
FLORIDA PANTHERS HOLDINGS, INC.
450 EAST LAS OLAS BOULEVARD
FORT LAUDERDALE, FLORIDA 33301
(954) 712-1300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Class A Common Stock, par value $.01
per share.......................... 3,900,000 shares $10.375(1) $40,462,500 $11,249
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act. The Proposed Maximum
Offering Price is based on the average of the high and low prices of the
shares of Class A Common Stock as reported on the New York Stock Exchange on
February 10, 1999 of $10.375 per share.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
FLORIDA PANTHERS HOLDINGS, INC.
LOGO
3,900,000 SHARES OF CLASS A COMMON STOCK
Florida Panthers Holdings, Inc. is offering 3,900,000 shares of Class A
Common Stock to all of our qualified stockholders. To be a qualified
stockholder, you must have owned Class A Common Stock or Class B Common Stock as
of February 24, 1999. If you are a qualified stockholder, you will receive at no
cost a right to buy one share of Class A Common Stock at a price of $10.25 per
share for every ten shares of Class A Common Stock or Class B Common Stock you
owned on that date. This right is called the Basic Subscription Privilege. In
determining the number of shares we will issue to each stockholder pursuant to
the rights, we will round up to the nearest whole number. We will not issue
fractional rights and we will not pay cash in place of rights. Subject to
certain other conditions, you also may subscribe to buy additional shares of
Class A Common Stock at the same price as the Basic Subscription Privilege. This
right is called the Oversubscription Privilege. Certain of our officers,
directors and stockholders, including H. Wayne Huizenga, have advised us that
they intend to fully exercise their Basic Subscription Privilege and to exercise
their Oversubscription Privilege in an amount to be determined, to the extent
that shares of Class A Common Stock remain available after all qualified
stockholders have exercised their Basic Subscription Privilege.
THE RIGHTS OFFERING WILL EXPIRE AT 5:00 P.M., EASTERN STANDARD TIME, ON
MARCH 31, 1999. IF YOU WANT TO PARTICIPATE IN THE RIGHTS OFFERING, WE RECOMMEND
THAT YOU SUBMIT YOUR SUBSCRIPTION DOCUMENTS TO THE SUBSCRIPTION AGENT BEFORE
THAT DEADLINE OR TO YOUR BROKER OR BANK AT LEAST 10 DAYS BEFORE THAT DEADLINE.
See page 13 of this Prospectus for further instructions on submitting
subscriptions. All subscriptions will be held in escrow by our subscription
agent, BankBoston, N.A., through the expiration date of the rights offering. We
reserve the right to extend the expiration date for up to 10 days. We also
reserve the right to cancel the rights offering at any time before the
expiration date.
There is no minimum number of shares that we must sell in order to complete
the rights offering. Stockholders who do not participate in the rights offering
will continue to own the same number of shares, but will own a smaller
percentage of the total shares outstanding to the extent that other stockholders
participate in the rights offering. You may transfer your subscription rights to
your immediate family members or entities beneficially owned or controlled by
you. Otherwise, your subscription rights are non-transferrable.
The Class A Common Stock currently trades on the New York Stock Exchange
under the symbol "PAW." On February 16, 1999, the date of the first public
announcement of the rights offering, the closing price of the Class A Common
Stock was $10.50 per share. On February 23, 1999, the closing price of the Class
A Common Stock was $10.125 per share.
See "Risk Factors" beginning on page 7 of this Prospectus for a discussion
of certain factors that you should consider in connection with the rights
offering and Class A Common Stock offered hereby.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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PROCEEDS TO THE
SUBSCRIPTION PRICE FINANCIAL ADVISORY FEE(1) COMPANY(2)
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<S> <C> <C> <C>
Per share................................... $10.25 $0.15 $10.10
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Total....................................... $39,975,000 $600,000 $39,375,000
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</TABLE>
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(1) The Company has agreed to pay Allen & Company Incorporated a fee not to
exceed $600,000 for providing financial advisory services to the Company in
connection with the rights offering, which equals a financial advisory fee
of approximately $0.15 per share (assuming that all 3,900,000 are subscribed
for in the rights offering). See "The Rights Offering -- Plan of
Distribution."
(2) Before deducting expenses we will pay in connection with the rights
offering, which we estimate to be $250,000.
The rights may not be exercised by any person, and neither this Prospectus
nor any subscription form shall constitute an offer to sell or a solicitation of
an offer to purchase any shares of Class A Common Stock, in any jurisdiction in
which such transaction would be unlawful.
THE DATE OF THIS PROSPECTUS IS FEBRUARY 24, 1999
<PAGE> 3
PROSPECTUS SUMMARY
This summary outlines and highlights information contained in this
Prospectus and the information incorporated in this Prospectus by reference.
Except as otherwise noted, all information in this Prospectus assumes that all
rights will be exercised and an aggregate of 3,900,000 shares of Class A Common
Stock will be issued in connection with the rights offering.
THE COMPANY
Florida Panthers Holdings, Inc. is a holding company with subsidiaries
currently operating in two business segments: (1) leisure and recreation and (2)
entertainment and sports. Our current focus is on expanding the leisure and
recreation business primarily through capital projects at existing facilities
and increasing our marketing efforts directed to the core upscale clientele of
the leisure and recreation business. Although our current focus is on expanding
the leisure and recreation business, we continuously evaluate ownership,
acquisition and divestiture alternatives relating to our two business segments
with the intention of maximizing stockholder value.
We were formed in July 1996 for the purpose of acquiring the operations of
the Florida Panthers Hockey Club, a professional hockey team which has been a
member of the National Hockey League since 1993. After our initial public
offering in November 1996, we expanded into the leisure and recreation business
through the acquisition, ownership and operation of high-end destination luxury
resorts, and diversified the entertainment and sports business to include ice
skating rink operations.
Our leisure and recreation business consists of our ownership of:
o the Boca Raton Resort and Club;
o the Arizona Biltmore Hotel;
o the Registry Hotel at Pelican Bay;
o the Edgewater Beach Hotel;
o the Hyatt Regency Pier 66 Resort and Marina;
o the Radisson Bahia Mar Resort & Yachting Center; and
o the Grande Oaks Golf Club (formerly known as the Rolling Hills Golf
Club.)
Our entertainment and sports business consists of:
o the Florida Panthers Hockey Club;
o arena development and management operations, including the National Car
Rental Center, a new multi-purpose state-of-the-art entertainment and
sports center, located in western Broward County, Florida, where the
Florida Panthers Hockey Club has begun playing its home games; and
o ice skating rink operations.
We were incorporated in Florida on July 3, 1996 and subsequently
reincorporated in Delaware on November 17, 1997. In connection with our initial
public offering, our Class A Common Stock began trading on The Nasdaq National
Market on November 13, 1996 under the symbol "PUCK." On July 11, 1997, our Class
A Common Stock began trading on the New York Stock Exchange under the symbol
"PAW."
2
<PAGE> 4
THE RIGHTS OFFERING
Eligible Stockholders......... You will not be eligible to purchase stock
through the rights offering unless you owned
shares of Class A Common Stock or Class B
Common Stock as of February 24, 1999.
Subscription Rights........... If you are an eligible stockholder, you will
have two different subscription rights:
(1) Basic Subscription Privilege. First, you
will have the right to purchase one share of
Class A Common Stock for every ten shares of
Class A Common Stock or Class B Common Stock
you owned as of February 24, 1999. In
determining the number of shares we will issue
to each stockholder pursuant to the rights, we
will round up to the nearest whole number. You
may also purchase a smaller number of shares
through the rights offering, if you wish. The
offering price is $10.25 per share.
(2) Oversubscription Privilege. If you
exercise your Basic Subscription Privilege in
full, you also may offer to buy additional
shares. In exercising this right, you should
specify the maximum number of shares of Class A
Common Stock that you are willing to buy at
$10.25 per share.
Ownership Limits.............. National Hockey League restrictions prohibit
any person or group of persons from acquiring
5.0% or more of the outstanding Class A Common
Stock, unless that person or group of persons
first obtains approval from the National Hockey
League.
As a condition to accepting your subscription
for the shares under the rights offering, we
are limiting each subscriber to an ownership
position of no more than 5.0% of the total
outstanding shares unless prior approval is
obtained from the National Hockey League. Each
subscriber must state in writing that such
subscriber owned Class A Common Stock, and will
not be acquiring, more shares than are
permitted under the terms of the rights
offering.
Moreover, each subscriber who currently owns
more than 5.0% of the outstanding Class A
Common Stock or who subscribes for more than
1,000,000 shares must agree to provide us, upon
request, with reasonable evidence of his or her
total share ownership. Finally, every
subscriber must state in writing that he or she
has read carefully the description of ownership
limits under National Hockey League
restrictions and agrees not to engage in any
intentional violation of those limits.
Allocation of Shares.......... If we receive proper subscriptions for more
shares than are being offered, we will first
fill all exercises of the Basic Subscription
Privilege. We will then allocate the remaining
shares among those who exercise the
Oversubscription Privilege, in proportion to
the maximum number of shares that each
subscriber offers to purchase within the
permitted limit.
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Restricted Transferability of
Rights........................ The subscription rights may be exercised by the
persons to whom the rights are granted.
However, you may transfer your subscription
rights to immediate family members or to
entities beneficially owned or controlled by
you. Otherwise, your subscription rights are
non-transferable.
Expiration Date............... March 31, 1999, at 5:00 p.m., Eastern Standard
Time, unless extended.
Subscription Procedures....... To subscribe for shares, you should carefully
complete and sign the subscription agreement
for the rights offering and forward it to our
subscription agent, BankBoston, N.A. whose
address appears below. Be sure to include a
check or money order for the full amount of
your subscription price, unless you elect to
make payment by wire transfer or by notice of
guaranteed delivery of payment. Checks and
money orders will not be cashed until we accept
your subscription. If your subscription is
accepted in part and rejected in part (for
example, due to oversubscription), the
subscription agent will send you a check for
the difference. No interest will be paid on
subscription funds. With only limited
exceptions, once a holder has submitted
subscription documents, his or her exercise of
subscription rights may not be revoked.
Persons Wishing to Exercise
Rights for the Benefit of
Others........................ Brokers, banks, trustees, and other individuals
or entities that hold Class A Common Stock or
Class B Common Stock for the account of others
may, if authorized by the beneficial owner,
complete the subscription agreement and submit
it to the subscription agent with the proper
payment.
Completion of the Offering.... Certificates representing shares of the Class A
Common Stock will be delivered to subscribers
as soon as practicable after the expiration
date of the rights offering. We expect that
this may take two weeks or longer, due to the
need to allow checks to clear and to confirm
compliance with stock ownership limits.
Subscription Agent............ Subscription agreements may be delivered to:
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<CAPTION>
BY HAND, MAIL OR OVERNIGHT COURIER BY FACSIMILE TRANSMISSION
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BankBoston, N.A. (For Eligible
150 Royall Street Institutions Only)
Canton, MA 02021 (781) 575-2149
Attention: Corporate Actions
Department Confirm Facsimile
by Telephone:
(781) 575-2294
</TABLE>
Financial Advisor............. Allen & Company Incorporated
711 Fifth Avenue
New York, NY 10022
Use of Proceeds............... We intend to use the proceeds of the rights
offering to repay certain short-term
indebtedness and for working capital and
general purposes.
Risk Factors.................. An investment in shares of Class A Common Stock
involves a high degree of risk. See "Risk
Factors" beginning on Page 7.
4
<PAGE> 6
Certain Federal Income Tax
Consequences.................. Your receipt or exercise of the subscription
rights should not be treated as a taxable event
for United States federal income tax purposes,
but may have other tax effects.
Questions..................... If you have any questions about the rights
offering, including questions about
subscription procedures and requests for
additional copies of this Prospectus or other
documents, please contact Richard L. Handley
(Senior Vice President, Secretary and General
Counsel) or Mary Jo Finocchiaro (Director of
SEC Reporting). Either of them may be reached
by telephone at 954-712-1300.
5
<PAGE> 7
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's web site at http://www.sec.gov. The SEC allows us to "incorporate
by reference" the information we file with them, which means that we can
disclose important information to you by referring to our filed SEC documents.
The information incorporated by reference is part of this Prospectus.
Information we file with the SEC after we file this document will update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c), 14,
or 15(d) of the Securities Exchange Act of 1934 until the rights offering is
completed.
(a) Our Annual Report on Form 10-K for the year ended June 30, 1998;
(b) Our Quarterly Report on Form 10-Q for the quarter ended September 30,
1998;
(c) Our Quarterly Report on Form 10-Q for the quarter ended December 31,
1998.
(d) Our Current Report on Form 8-K filed February 16, 1999.
(e) Our Post-Effective Amendment No. 5 to Registration Statement on Form
S-1, (Registration No. 333-23135);
(f) Our Amended Current Report on Form 8-K/A filed on October 27, 1997; and
(g) Our Amended Current Report on Form 8-K/A filed on May 15, 1998.
You may request a copy of these filings, at no cost, by writing or
telephoning Richard L. Handley, Senior Vice President, Secretary and General
Counsel at:
Florida Panthers Holdings, Inc.
450 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
(954) 712-1300
You should rely only on the information incorporated by reference or
provided in this Prospectus. We have authorized no one to provide you with
different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this Prospectus is accurate as of any date other than the date on
the front of this Prospectus.
6
<PAGE> 8
RISK FACTORS
Before you invest in our Class A Common Stock, you should be aware that
there are various risks, including those described below. We urge you to
carefully consider these risk factors together with all of the other information
included in this Prospectus and the information incorporated in this Prospectus
by reference before you decide to exercise the rights and subscribe for shares
of our Class A Common Stock.
Some of the information in this Prospectus may contain forward-looking
statements. Such statements can be identified by the use of forward-looking
terminology such as "may," "will," "expect," "anticipate," "estimate,"
"continue" or other similar words. These statements discuss future expectations,
contain projections of results of operations or of financial condition or state
other "forward-looking" information. When considering such forward-looking
statements, you should keep in mind the risk factors and other cautionary
statements in this Prospectus. The risk factors noted in this section and other
factors noted throughout this Prospectus, including certain known and unknown
risks and uncertainties, could cause our actual results to differ materially
from those contained in any forward-looking statement.
Irrevocability of Subscriptions. Subscriptions for shares in the rights
offering will be irrevocable, except in limited circumstances. Subscribers will
not receive interest on their subscription funds.
Dilution of Stockholders' Interests. If you chose not to exercise your
subscription rights, your relative ownership interests will be diluted by the
issuance of shares of Class A Common Stock to those stockholders who do exercise
their subscription rights.
Determination of Offering Price. The offering price was determined by our
Board of Directors without any independent appraisal of value of the Class A
Common Stock. The offering price does not necessarily bear any relationship to
the book value of our assets, past operations, cash flow, earnings, financial
condition or any other established criteria for value and should not be
considered any indication of our underlying value. There can be no assurance
that our Class A Common Stock will trade at prices in excess of the subscription
price at any time after the date of this Prospectus.
Need for Additional Capital. In order to finance our business operations,
meet our debt obligations and continue our expansion strategy, we may need to
obtain substantial amounts of additional capital on a regular basis. We believe
we can obtain additional capital by selling debt or equity securities and/or by
borrowing money. If we cannot obtain additional capital when it is needed, then
our financial condition and results of operations could be adversely affected.
Challenges of Integrating the Operations of the Resorts. In order to take
advantage of the full economic benefits of our resort acquisitions, we need to
integrate the administrative, financial and marketing organizations of each of
our resorts. We also need to implement appropriate operational, financial and
management systems. We cannot assure you that we will be able to successfully
integrate the operations of the resorts or implement the appropriate systems.
Capital Expenditures Relating to the Resorts. Our growth strategy may
include expanding the infrastructure at the resorts or expanding within the
respective geographic markets of the resorts. The resorts may also need
renovations or other capital improvements. Unexpected excessive costs of any
expansion or needed renovation or capital improvements could have a material
adverse effect on our financial condition or results of operations. Also, any
capital expenditures we make on expansion, renovation or improvement of the
resorts may not generate the financial returns we expect.
Risks Relating to Expansion. We may make additional acquisitions of
resort-related, sports-related or other types of businesses and pay for the
acquisitions with cash and/or stock. Risks relating to any such expansion
include dilution of current stockholders, incurrence or assumption of additional
debt, environmental and other regulatory costs and other unanticipated problems.
Operating Risks Relating to the Resorts. We may encounter risks common to
the operations of resorts, including over-building which may lower room rates,
dependence on tourism and weather conditions, increases in travel costs and poor
economic conditions. Any of these risks could have a material adverse effect on
our financial condition or results of operations.
7
<PAGE> 9
Seasonality of the Resort Business. Our resort operations are generally
seasonal. Our resorts historically experience greater revenue, costs and profits
in the first and fourth quarters of the calendar year due to increased occupancy
and room rates during the winter months. Approximately seventy percent of our
annual revenue has historically been generated 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 our resorts has a number of
competitors. An increase in the number of competitors in each of the resort's
respective markets could result in a decrease in occupancy and room rates of the
affected resorts. If we fail to adequately address each of the competitive
pressures in the resort and hotel industry then our financial condition and
results of operations could be adversely affected.
History of Losses of the Florida Panthers Hockey Club and Uncertainty of
Future Results. Prior to the year ended June 30, 1998 we did not generate any
earnings. However, for the year ended June 30, 1998, we had net income of $1.3
million. This increase in earnings is due in part to the move into the high-end
luxury resort business, which is generally more profitable than professional
sports franchises. Earnings for our entertainment and sports business may also
increase due in part to the fact that the Florida Panthers Hockey Club will be
sharing in the net profits of the newly constructed National Car Rental Center
beginning in the year ending June 30, 1999. Despite our recent increase in
earnings, we cannot assure you that we can sustain earnings in the future.
Control by H. Wayne Huizenga; Voting Rights. We have two classes of common
stock, Class A Common Stock and Class B Common Stock. On each matter submitted
for stockholder 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. We have
issued all of the shares of Class B Common Stock to Mr. Huizenga, assuring that
Mr. Huizenga will have voting control of our company, in order to satisfy
certain National Hockey League control requirements. Mr. Huizenga may not sell
his controlling interest in our company unless the National Hockey League
approves the sale. As the sole owner of Class B Common Stock, Mr. Huizenga will
be able to control our management and policies as well as the outcome of
substantially all matters submitted to the stockholders for approval, including
the election of directors.
Nothing in our charter or bylaws restricts the transfer of Class B Common
Stock. As a result, Mr. Huizenga may sell his controlling interests, subject to
the National Hockey League approval, without the approval of the holders of
Class A Common Stock. However, if Mr. Huizenga were to sell his controlling
interests, then certain change in control provisions relating to our credit
facilities may apply. Also, Mr. Huizenga may receive a substantial premium price
for selling his controlling interest in the Company.
Dependence on Key Personnel. For the foreseeable future, we will be
materially dependent on the services of Mr. Huizenga. The loss of Mr. Huizenga's
services could have a material adverse effect on our business. We do not carry
key man life insurance on Mr. Huizenga or any of our officers or directors.
Shares of Class A Common Stock Eligible for Future Sale. As of February
23, 1999, we have registered a total of 39,125,080 shares under the Securities
Act, including: (1) 18,609,491 shares of Class A Common Stock for resale by
certain selling stockholders, (2) 9,515,589 shares of Class A Common Stock which
have been issued or are reserved for issuance to holders of outstanding rights
and warrants to acquire shares of Class A Common Stock in connection with
certain completed acquisitions, (3) 5,000,000 shares of Class A Common Stock
which are reserved for issuance under the Amended and Restated 1996 Stock Option
Plan and (4) 6,000,000 shares of Class A Common Stock which we may issue in
connection with future acquisitions. We cannot predict the effect, if any, that
market sales of any of these shares of Class A Common Stock, or the availability
of these shares, will have on the market price for shares of Class A Common
Stock. 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, could impair our ability to raise capital through an offering of equity
securities, or could impair our ability to consummate acquisitions using shares
of Class A Common Stock.
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<PAGE> 10
Absence of Dividends. We have not paid and do not intend to pay any cash
or stock dividends with respect to the Class A Common Stock or Class B Common
Stock in the foreseeable future. Certain provisions of the National Hockey
League Constitution and Bylaws and our credit facilities limit our ability to
declare or pay dividends on the Class A Common Stock and Class B Common Stock.
Americans with Disabilities Act. The resorts and our other properties are
subject to the requirements of the ADA, which generally requires that public
accommodations be made accessible to disabled persons. We believe that the
resorts and our other properties are in substantial compliance with the ADA and
that we will not be required to make substantial capital expenditures to address
the requirements of the ADA. However, if we were required to make substantial
alterations in one or more of the resorts or our other properties in order to
comply with the ADA, our financial condition and results of operations could be
adversely affected.
Environmental Matters. 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 resulting from these
hazardous or toxic substances, on, under or in the property. Environmental laws
and regulations often impose liability whether or not the owner or operator knew
of, or was responsible for, the presence of the hazardous or toxic substances.
Liability also 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 which businesses
may be operated on a subject property, and these restrictions may require
certain expenditures. In connection with the ownership of our properties, we may
be liable for such costs.
In connection with our acquisition of the resorts and our other property,
we have obtained Phase I, and in some instances Phase II, environmental site
assessments in order to assess potential environmental liabilities at these
properties. Although these assessments have identified certain matters that will
require us to incur costs to remedy, none of these matters appears likely to
have a material adverse effect on our business, assets, results of operations or
liquidity. However, because these assessments cannot give full and complete
knowledge of environmental liability and compliance matters, we cannot give you
assurance that the costs of complying with environmental laws and of defending
against claims of liability arising from alleged violations of environmental
laws will not have a material adverse effect on our financial condition and
results of operations.
Losses in Excess of the Resorts' Insurance Coverage. We maintain
comprehensive insurance on the resorts, including liability, fire and extended
coverage, in the types and amounts customary to the resort and hotel industry.
We will use our discretion in determining amounts, coverage limits and
deductibility provisions of insurance, with a view to obtaining appropriate
insurance on the resorts at a reasonable cost and on suitable terms.
Nevertheless, it is possible that our insurance coverage may not be sufficient
to pay the full current market value or current replacement value of a lost
investment, and the insurance proceeds we receive may not be adequate to restore
our economic position with respect to the resorts. Furthermore, certain losses
may be uninsurable or not economically insurable.
National Hockey League Membership -- Potential Liabilities and Ownership
Restrictions. The Florida Panthers Hockey Club is generally jointly and
severally liable with the other members of the National Hockey League for the
debts and obligations of the National Hockey League. If another member of the
National Hockey League does not pay its pro rata share of any debt or
obligation, the Florida Panthers Hockey Club would be obligated to pay a pro
rata share of such debt or obligation, after all other individual team remedies
are exhausted including sale of a member team.
The National Hockey League Constitution and Bylaws require a person or a
group of persons holding a 5.0% or more interest in our company to obtain the
prior approval of the National Hockey League. The National Hockey League may
withhold its approval in its sole discretion.
Year 2000 Compliance. We have completed an assessment relative to the
modification or replacement of portions of our software so that our computer
systems will function properly with respect to dates in the year 2000 and
thereafter. We are also in the process of identifying and reviewing our
non-information technology systems with respect to Year 2000 issues. In
addition, communication with third parties has been initiated to
9
<PAGE> 11
determine the extent to which our interface systems are vulnerable to those
third parties' failure to remediate their own Year 2000 issues. As of December
31, 1998 we had spent approximately $100,000 on Year 2000 issues. The Year 2000
project is scheduled to be completed by June 30, 1999 and the total cost is
expected not to exceed $500,000. We believe that modifications to existing
software and conversions to new software will not pose significant operational
problems for computer systems.
We also believe, that upon remediation of our business software
applications, as well as other equipment with embedded technology, the Year 2000
issue will not present a materially adverse risk to our future consolidated
results of operations, liquidity and capital resources. However, if such
remediation is not completed in a timely manner or the level of timely
compliance by key suppliers or vendors is not sufficient, the Year 2000 issue
could have a material adverse impact on our operations including, but not
limited to, delays in delivery of products from third party vendors, increased
operating costs, loss of customers or suppliers, or other significant
disruptions to the business. We have initiated comprehensive contingency and
business continuation plans which are expected to be in place in early 1999 in
order to ensure enough time for implementation of such plans, if necessary and
thus possibly avoid such risks.
Litigation. We are currently party to certain litigation, which if concluded
adversely to our interests could have a material adverse effect on our financial
condition or results of operations. See "Legal Proceedings" under Item 3 of our
Annual Report on Form 10-K which is incorporated by reference herein.
USE OF PROCEEDS
The proceeds from the rights offering are expected to be used to repay $9.5
million of our $219.9 million bridge loan, which bears interest at a rate of
LIBOR plus 4.25% (9.4% as of December 31, 1998) and matures on June 15, 1999.
The proceeds from the bridge loan (after the payment of fees and expenses) were
used to (i) finance a portion of the acquisition price of the Arizona Biltmore
Hotel ($126.0 million), (ii) finance the purchase price of the Edgewater Beach
Hotel (approximately $41.2 million), (iii) retire the indebtedness incurred in
connection with the acquisition of the Radisson Bahia Mar Resort and Yachting
Center (approximately $15.1 million) and (iv) purchase the remaining units of
the Registry Hotel at Pelican Bay (approximately $30.6 million). Another $19.1
million in proceeds from the rights offering are expected to be used to repay a
portion of our $99.8 million secured loan, which bears interest at a rate of
LIBOR plus 6.0% (10.9% as of December 31, 1998) and matures no later than
December 2000. The proceeds from the secured loan were used to finance a portion
of the purchase price of the Arizona Biltmore Hotel. We expect to use the
remaining proceeds for working capital and general corporate purposes.
10
<PAGE> 12
THE RIGHTS OFFERING
GENERAL
We are offering our stockholders the right to subscribe for and purchase up
to 3,900,000 shares of Class A Common Stock at $10.25 per share. The rights
offering is open only to those stockholders who owned Class A Common Stock or
Class B Common Stock on February 24, 1999. The rights offering is not open to
persons who did not own Class A Common Stock or Class B Common Stock on that
date.
We are offering stockholders the opportunity to purchase one share of Class
A Common Stock for every ten shares of Class A Common Stock or Class B Common
Stock they owned on February 24, 1999. In determining the number of shares of
Class A Common Stock we will issue to each stockholder pursuant to the
subscription rights offered by this Prospectus, we will round up to the nearest
whole number. We will not issue fractional subscription rights and we will not
pay cash in place of subscription rights.
We are offering two types of rights:
Basic Subscription Privilege. Each qualified stockholder has the
right to purchase one share of Class A Common Stock for every ten shares of
Class A Common Stock or Class B Common Stock such stockholder owned at the
close of business on February 24, 1999.
Oversubscription Privilege. Any qualified stockholder that fully
exercises the Basic Subscription Privilege may subscribe for additional
shares of Class A Common Stock. In doing so, the stockholder will specify
the maximum number of shares such stockholder is willing to purchase at the
offering price, and will submit a check or money order for the full
subscription price.
If we receive subscriptions for more than 3,900,000 shares, then we will
allocate the available shares as follows: first, to subscribing stockholders
according to their exercises of the Basic Subscription Privilege and second, to
subscribing stockholders according to their exercise of the Oversubscription
Privilege. Each stockholder's subscription rights will be subject to the 5.0%
limit which is described below.
OWNERSHIP LIMITS; SUBSCRIPTION AGREEMENT
National Hockey League restrictions prohibit any person or group of persons
from acquiring 5.0% or more of the outstanding Class A Common Stock without
first obtaining approval from the National Hockey League. To avoid inadvertent
violations of these requirements, we are limiting the number of shares that
anyone can purchase through the rights offering. Specifically, prior to
acceptance of any subscriptions no stockholder may be allowed purchase shares if
such stockholder would own more than 5.0% of the outstanding Class A Common
Stock upon completion of the rights offering unless prior written approval is
obtained from the National Hockey League.
The Subscription Agreement for the rights offering contains certain
provisions designed to enforce the terms of the rights offering and to prevent
inadvertent violations of the ownership limit. For example:
(1) Each subscriber must state in writing the number of shares of
Class A Common Stock or rights that such subscriber owned on February 24,
1999;
(2) Each subscriber must state in writing that such subscriber has
read carefully the section of this Prospectus entitled "Certain Ownership
Limits and Reporting Requirements" and agrees not to acquire Class A Common
Stock through or in connection with the rights offering in violation of
those ownership limits and reporting requirements; and
(3) Each subscriber who currently owns more than 5.0% of the
outstanding Class A Common Stock or who subscribes for more than 1,000,000
shares must agree to provide us (if so requested within 60 days after the
expiration date of the rights offering) reasonable evidence of such
subscriber's total share ownership.
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<PAGE> 13
PLAN OF DISTRIBUTION
Allen & Company Incorporated is serving as financial advisor in connection
with the rights offering, for which a fee not to exceed $600,000, plus
reimbursement of certain out-of-pocket expenses, is payable upon the completion
of the rights offering. In connection with such role, Allen & Company
Incorporated will, if requested by the Company, participate in the solicitation
of stockholders to subscribe for shares in the rights offering.
In order to reduce costs, we are making this rights offering directly to
our stockholders. Except for the financial advisory fees referred to above, we
will not be paying any commissions or fees in connection with the rights
offering. However, where shares are held indirectly through a broker, bank, or
other institution we will reimburse the institutions' reasonable out-of-pocket
costs in distributing this Prospectus and other materials to beneficial owners
of the stock.
We have retained our transfer agent, BankBoston, N.A., to assist with the
rights offering in the role of the subscription agent. The subscription agent
will hold all subscriptions received from stockholders, and will be responsible
for delivering stock certificates and refunds (in case of oversubscription or
cancellation of the offering) to stockholders. We will pay all fees and expenses
of the subscription agent.
EXPIRATION DATE; EXTENSION
The rights offering will expire at 5:00 p.m., Eastern Standard Time, on
March 31, 1999, unless we extend the rights offering. After the expiration date,
all unexercised subscription rights will be null and void. We will notify
stockholders of any extension of the expiration date by issuing a press release
indicating such extension.
We may reject any subscription documents that the Subscription Agent
receives after 5:00 p.m. on the expiration date, regardless of when the
documents were originally mailed. We recommend that stockholders submit all
subscription documents to BankBoston, N.A. by the expiration date, or to their
broker or bank at least 10 days before the expiration date, to allow the broker
or bank sufficient time to carry out those instructions.
The rights offering is not conditioned upon our receipt of subscriptions
for any minimum number of shares. However, the rights offering may be canceled
at any time prior to its completion, in which case all subscription payments
will be returned.
SUBSCRIPTION PAYMENTS
Each subscription agreement submitted pursuant to this rights offering must
be accompanied by the full amount of the purchase price for all of the shares of
Class A Common Stock subscribed for by the stockholder. If a subscriber submits
less than the full purchase price, we will limit such subscriber's maximum
subscription to the number of shares purchasable with those funds (rounded down
to the nearest whole number of shares).
If a subscription is rejected in whole or in part, the subscription agent
will promptly refund payment for any unpurchased shares. No interest will be
paid on any subscription funds.
DELIVERY OF CERTIFICATES
The subscription agent will mail certificates for Class A Common Stock as
soon as practicable after the expiration date. We expect that this may take two
weeks or longer, due to the need to confirm compliance with stock ownership
limits.
We will not permit the purchase of fractional shares.
AMENDMENT, EXTENSION AND TERMINATION
We reserve the right to amend the terms and conditions of the rights
offering. If we make an amendment that we consider significant, we will (1) mail
notice of the amendment to all stockholders of record, (2) extend the expiration
date by at least 14 days and (3) offer all subscribers not less than 10 days to
revoke any prior subscriptions, in whole or in part. In all other cases,
subscriptions will be irrevocable.
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<PAGE> 14
We also reserve the right, in our discretion, to extend the expiration date
for a period of up to 10 days, although we presently do not intend to do so. An
extension of the expiration date will not, in and of itself, be treated as a
significant amendment for purposes of the preceding paragraph.
We also reserve the right to terminate the rights offering at any time, in
our discretion, in which case all subscriptions will be cancelled and all
subscription payments will be promptly returned to subscribers.
Upon the occurrence of any change in or cancellation of the rights
offering, or any extension of the expiration date, we will issue a press release
to that effect and will file a post-effective amendment to the Registration
Statement covering this Prospectus.
DETERMINATION OF OFFERING PRICE
Our Board of Directors set the offering price at a level that it judged to
be fair to us and to our stockholders. In doing so, the Board's objective was to
raise cash and provide all of our stockholders with an opportunity to make an
additional investment and minimize the involuntary dilution of their ownership
and voting percentage.
In approving the offering price, the Board considered such factors as the
trading price of the Class A Common Stock in recent months, alternatives
available to us for raising capital, the pro rata nature of the rights offering,
our business prospects and the general condition of the securities markets. The
Board chose not to obtain an independent appraisal of the value of the Class A
Common Stock.
SUBSCRIPTION PROCEDURES
To participate in the rights offering, you must submit a properly completed
subscription agreement, together with full payment of the offering price for all
shares for which you subscribe. Those who hold Class A Common Stock or Class B
Common Stock for the account of others (such as brokers, banks, trustees or
depositaries) should notify the beneficial owners of such shares as soon as
possible to ascertain the beneficial owners' intentions and to obtain
instructions with respect to the rights offering.
The subscription agreement and payment must be received by the subscription
agent before 5:00 P.M. on the expiration date. Payment of the offering price
must be made:
(1) by check or bank draft drawn upon a U.S. bank or postal,
telegraphic, or express money order payable to "BankBoston, N.A., as
Subscription Agent;"
(2) by wire transfer of same day funds to the account maintained by
the subscription agent for such purpose; or
(3) by notice of guaranteed delivery of payment from a bank, a trust
company or a New York Stock Exchange member.
Payment of the offering price will be deemed made only upon (1) the
subscription agent's receipt of a certified check or bank draft drawn upon a
U.S. bank or any postal, telegraphic or express money order, (2) the clearance
of any uncertified check or (3) the receipt of good funds in the wire transfer
account designated above. If you wish to pay by uncertified personal check,
please note that your check may take five business days or more to clear and
therefore you should make payment sufficiently in advance of the expiration date
to ensure that payment is received and clears by the expiration date.
Subscription agreements and any checks in payment of the subscription price
should be delivered (whether by mail, hand delivery, or overnight courier) to:
BankBoston, N.A.
150 Royall Street
Canton, MA 02021
Attention: Corporate Actions Department
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<PAGE> 15
Eligible institutions may deliver documents to BankBoston, N.A. by
facsimile transmission to (781) 575-2149, and should call (781) 575-2294 to
confirm receipt. Do not send subscription documents or payments to us.
If you do not indicate the number of shares to be purchased or do not
forward full payment of the subscription price, then you will be deemed to have
exercised the Basic Subscription Privilege to the full extent of the payment
received and, if any funds remain, will be deemed to have exercised the
Oversubscription Privilege to the extent of the remaining funds. (In each case,
share amounts will be rounded down to the nearest whole number.)
The method of delivery of subscription documents and payment of the
subscription price will be at your election and risk. If sent by mail, it is
recommended that such subscription documents and payments be sent by registered
mail, properly insured, with return receipt requested, and that a sufficient
number of days be allowed to ensure delivery to the subscription agent and
clearance of payment prior to the Expiration Date. Because uncertified personal
checks may take at least five business days to clear, you are urged to arrange
for payment by certified or cashier's check, money order or wire transfer of
funds.
Our answers to all questions concerning the timeliness, validity, form and
eligibility of any subscription will be final and binding. We may, in our sole
discretion, waive any defect or irregularity, permit a defect or irregularity to
be corrected within such time as we may determine, or reject the purported
exercise of any right. Subscriptions will not be deemed to have been received or
accepted until all irregularities have been waived or cured within such time as
we determine in our discretion. Neither we nor the subscription agent will be
under any duty to give notification of any defect or irregularity in connection
with the submission of subscription agreements or incur any liability for
failure to give notification.
If you have any questions concerning the rights offering or these
subscription procedures, or if you would like additional copies of this
Prospectus or other documents, please contact Richard L. Handley, Senior Vice
President, Secretary and General Counsel or Mary Jo Finocchiaro, Director of SEC
Reporting. Either of them may be reached at 954-712-1300.
CERTAIN OWNERSHIP LIMITS AND REPORTING REQUIREMENTS
Any person or group that acquires direct or indirect beneficial ownership
of more than 5.0% of the outstanding shares of Class A Common Stock will be
subject to special reporting requirements under Section 13(d) or 13(g) of the
Securities Exchange Act of 1934. Any person or group that acquires direct or
indirect beneficial ownership of more than 10.0% of the outstanding Class A
Common Stock will be subject to special reporting requirements under Section
16(a) of the Exchange Act and may become liable under Section 16(b) of the
Exchange Act for reimbursement of any "short-swing profits."
FAILURE TO COMPLY WITH THESE PROVISIONS OF FEDERAL OR STATE LAW MAY
CONSTITUTE A CRIMINAL OFFENSE OR OTHERWISE SUBJECT THE RELEVANT PERSON OR GROUP
(AND THEIR CONTROLLING PERSONS) TO SUBSTANTIAL LIABILITY.
National Hockey League restrictions generally prohibit any person or group
of persons from acquiring direct or indirect ownership of 5.0% or more of the
outstanding shares of Class A Common Stock, except with prior approval from the
National Hockey League.
STATE AND FOREIGN SECURITIES LAWS
The rights offering is not being made in any state or foreign country in
which it is unlawful to do so, nor will we accept subscriptions from holders who
are residents of any such state or country.
NO BOARD RECOMMENDATION
An investment in the Class A Common Stock must be made pursuant to each
stockholder's evaluation of such stockholder's best interests. Our Board of
Directors makes no recommendation to any stockholder on whether or not to
exercise such stockholder's subscription rights.
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<PAGE> 16
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
The following is a general discussion of the material anticipated federal
income tax consequences of the rights offering. The discussion is based on the
provisions of the Internal Revenue Code, as amended (the "Code"), the Treasury
Regulations promulgated thereunder, and administrative and judicial
interpretations thereof, all as in effect as of the date hereof and all of which
are subject to change (possibly on a retroactive basis). This discussion does
not purport to deal with all aspects of federal income taxation that may be
relevant to a particular holder of rights in light of such holder's personal
investment circumstances (including the tax consequences of the receipt of
rights by a holder of common stock in connection with compensation) nor does
this discussion address special tax implications which may be applicable to
certain types of holders of rights subject to special treatment under the Code
(including, without limitation, financial institutions, broker-dealers,
regulated investment companies, life insurance companies, tax-exempt
organizations, foreign entities and non-resident aliens). Moreover, the
discussion is limited to those who will hold the rights and any Class A Common
Stock acquired upon the exercise of rights as capital assets (generally,
property held for investment) within the meaning of Section 1221 of the Code. No
consideration of any aspects of state, local or foreign taxation is included
herein. We have not sought, nor do we intend to seek, any rulings from the IRS
relating to the tax issues addressed herein, and such issues may be subject to
substantial uncertainty resulting from the lack of definitive judicial or
administrative authority and interpretations applicable thereto. The following
discussion reflects the material tax considerations of the Rights Offering to a
U.S. holder of rights.
EACH EXISTING HOLDER OF CLASS A COMMON STOCK OR CLASS B COMMON STOCK IS
URGED TO CONSULT THEIR OWN TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES OF
THE RIGHTS OFFERING WITH RESPECT TO SUCH PERSON'S OWN PARTICULAR TAX SITUATION,
INCLUDING THE APPLICATION AND EFFECT OF THE CODE, AS WELL AS STATE, LOCAL AND
FOREIGN INCOME AND OTHER TAX LAWS.
TAX CONSEQUENCES TO HOLDERS
Issuance of Rights to Existing Stockholders
Existing law is not totally clear whether the distribution of rights to
holders of common stock ("Existing Stockholders") would be characterized as a
distribution under Section 305(a) of the Code ("Section 305(a) Distribution")
or, alternatively, as a distribution under Sections 301 and 305(b) of the Code
("Section 301 Distribution"). We believe that the rights distribution is
properly characterized as a Section 305(a) Distribution. Assuming that the
rights distribution is properly characterized as a Section 305(a) Distribution,
the distribution would be nontaxable to the Existing Stockholders without regard
to our earnings and profits. We intend to treat the rights distribution as a
nontaxable Section 305(a) Distribution. If the rights distribution were instead
treated as a Section 301 Distribution, the value of the rights distributed would
be treated as a taxable dividend to the extent of our current and accumulated
earnings and profits. If the value of the rights distributed exceeded such
earnings and profits, the balance of such value would be treated as a nontaxable
reduction in Existing Stockholders' basis in their common stock and the
remaining amount (if any) in excess of the adjusted basis would be taxed as
capital gain.
Basis of Rights
If, as expected, the rights distribution is properly characterized as a
Section 305(a) Distribution, then, except as provided in the following sentence,
the tax basis of rights received by an Existing Stockholder in the rights
distribution would be zero. If, however, the rights distribution constitutes a
Section 305(a) Distribution and the rights are exercised or sold and either (1)
the rights have a value (on the date of distribution of the rights) equal to or
greater than 15.0% of the value of the shares of common stock with respect to
which the rights are distributed or (2) the Existing Stockholder elects to apply
the rule described in this sentence, then upon exercise (but not upon lapse) of
the rights, the Existing Stockholder would reallocate his tax basis in his
existing common stock between the rights and the common stock based on the
relative fair market values of
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<PAGE> 17
each on the date of distribution of the rights and the basis of the common stock
would be reduced by the amount allocated to the rights. If the rights
distribution were treated as a Section 301 Distribution, an Existing Stockholder
would have a tax basis in the rights equal to the fair market value of the
rights on the date of the rights distribution.
Holding Period of Rights
If, as expected, the rights distribution is treated as a Section 305(a)
Distribution, an Existing Stockholder will have a holding period in the rights
that includes the holding period of the shares of Class A Common Stock or Class
B Common Stock to which the rights distribution relates. If the rights
distribution were treated as a Section 301 Distribution, the Existing
Stockholder would have a holding period in the rights that begins on the date of
distribution of the rights.
Exercise of Rights and Basis of Common Stock Received Upon Exercise
A holder of rights will not be taxed upon exercise of the rights. The
holder's tax basis in the shares of Class A Common Stock received upon exercise
of the rights will equal (1) his basis in the rights, plus (2) the exercise
price paid for the Class A Common Stock. The holder's holding period in the
Class A Common Stock will begin on the date of exercise of the rights.
Lapse of Rights
A holder of rights who allows rights to lapse would have a capital loss
equal to such holder's basis (determined as described in "--Basis of Rights,"
above), if any, in the rights that lapsed. If the rights distribution is treated
as a Section 305(a) Distribution, an Existing Stockholder who allows a Right to
lapse will not have a tax basis in the Right and, thus, would not realize a
capital loss.
Holding Period of Common Stock Acquired Upon Exercise of Rights
The holding period of shares of Class A Common Stock acquired upon the
exercise of rights will commence on the date of such exercise.
Sale of Common Stock
Upon a sale of shares of Class A Common Stock, an Existing Stockholder will
generally recognize capital gain or loss in an amount equal to the difference
between the amount received in the sale and such holder's tax basis (determined
as described in "-- Exercise of Rights and Basis of Common Stock Upon Exercise,"
above) in the shares sold. Such gain or loss will be long-term capital gain or
loss if the holding period for the Class A Common Stock sold is more than one
year. Long-term capital gain of a non-corporate stockholder is generally subject
to a maximum tax rate of 20 percent. The sale of Class A Common Stock with a
holding period of one year or less will result in short-term capital gain or
loss. Short-term capital gains are subject to tax at ordinary rates.
Dividends on Common Stock
The amount of cash received by a stockholder as a dividend on common stock,
if any, will be treated as ordinary dividend income which is taxable at ordinary
rates to the extent of our current year or accumulated earnings and profits that
are allocable to such common stock. Any cash received that exceeds such amount
will reduce the stockholder's basis in its shares until such basis is reduced to
zero, and any additional cash received will be taxable as capital gain income.
In the case of qualifying corporate stockholders, cash dividends received up to
the extent of our current year or accumulated earnings and profits allocable to
the common stock they held would generally be eligible for the 70% dividends
received deduction.
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LEGAL MATTERS
The validity of the issuance of the shares of Class A Common Stock offered
hereby and certain other matters will be passed upon for us by Akerman,
Senterfitt & Eidson, P.A., Miami, Florida. Certain attorneys at Akerman,
Senterfitt & Eidson, P.A. own shares of Class A Common Stock.
EXPERTS
The audited financial statements of Florida Panthers Holdings, Inc. as of
June 30, 1998 and 1997 and for each of the three years in the period ended June
30, 1998; 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 in 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 herein in reliance upon the report of
KPMG LLP, independent certified public accountants, incorporated by reference
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 PricewaterhouseCoopers LLP,
independent certified public accountants, given on the authority of said firm as
experts in auditing and accounting.
The financial statements of the Boca Raton Hotel and Club Limited
Partnership, appearing in the Florida Panthers Holdings, Inc.'s Post-Effective
Amendment No. 5 to Registration Statement on Form S-1 filed November 17, 1997,
at December 31, 1995 and for each of the two years in the period ended December
31, 1995 have been audited by Ernst & Young LLP, independent certified public
accountants, as set forth in their report thereon included therein and
incorporated herein by reference, and are included in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
The financial statements of Biltmore Hotel Partners, appearing in the
Florida Panthers Holdings, Inc.'s Form 8-K/A dated March 2, 1998, at December
31, 1997 and 1996 and each of the three years in the period ended December 31,
1997 and the Historical Summaries of Revenues and Direct Operating Expenses of
The Rental Pool Operations of the Biltmore Villas for the years ended December
31, 1997 and 1996, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference, and are included in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUMMARY.......................................... 2
WHERE YOU CAN FIND MORE INFORMATION......................... 6
RISK FACTORS................................................ 7
USE OF PROCEEDS............................................. 10
THE RIGHTS OFFERING......................................... 11
CERTAIN OWNERSHIP LIMITS AND REPORTING REQUIREMENTS......... 14
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS.................. 15
LEGAL MATTERS............................................... 17
EXPERTS..................................................... 17
</TABLE>
FLORIDA PANTHERS HOLDINGS, INC.
(LOGO)
3,900,000 SHARES OF CLASS A COMMON STOCK
PROSPECTUS
February 24, 1999
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance of the securities
being registered, all of which will be paid by the Registrant, are as follows:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 11,249
NYSE Listing Fee............................................ 45,000
Subscription Agent Fees..................................... 5,000
Printing Expenses........................................... 25,000
Accounting Fees and Expenses................................ 25,000
Legal Fees and Expenses..................................... 75,000
Miscellaneous............................................... 63,751
----------
Total....................................................... $ 250,000
==========
</TABLE>
ITEM 14. 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. The Registrant's Certificate of
Incorporation provides that a director shall not be liable to the Registrant 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
II-1
<PAGE> 21
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.
The Registrant's Bylaws provides that the Registrant 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 the Registrant or, while a director or
officer of the Registrant, is or was serving at the written request of the
Registrant 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.
ITEM 15. EXHIBITS
The following exhibits are filed as part of this Registration Statement.
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION OF EXHIBIT
-------- ----------------------
<C> <S> <C>
1.1 -- Financial Advisory Agreement
3.1 -- Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-4 -- SEC File No. 333-28951)
3.2 -- By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form
S-4 -- SEC File No. 333-28951)
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A., Counsel to
the Company*
23.1 -- Consent of Arthur Andersen LLP*
23.2 -- Consent of KPMG LLP*
23.3 -- Consent of PricewaterhouseCoopers LLP*
23.4 -- Consent of Ernst & Young LLP*
23.5 -- Consent of Ernst & Young LLP*
23.6 -- Consent of Akerman, Senterfitt & Eidson , P.A. (included in
Exhibit 5.1)*
24.1 -- Powers of Attorney (included as part of the signature page
of this Registration Statement)*
99.1 -- Form of Subscription Agreement*
</TABLE>
- ---------------
* Previously filed
ITEM 16. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event 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 Securities Act and will be governed by the final
adjudication of such issue.
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
II-2
<PAGE> 22
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.
II-3
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fort Lauderdale, State of
Florida, on the 24th day of February, 1999.
FLORIDA PANTHERS HOLDINGS, INC.
By: /s/ WILLIAM M. PIERCE
-------------------------------------
William M. Pierce
Senior Vice President, Treasurer and
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William M. Pierce and Richard L. Handley as his
or her true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement on Form S-3 and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ H. WAYNE HUIZENGA Chairman of the Board February 24, 1999
- --------------------------------------------------- (Principal Executive Officer)
H. Wayne Huizenga
/s/ RICHARD C. ROCHON Vice Chairman and President February 24, 1999
- ---------------------------------------------------
Richard C. Rochon
/s/ WILLIAM M. PIERCE Senior Vice President, February 24, 1999
- --------------------------------------------------- Treasurer and Chief Financial
William M. Pierce Officer (Principal Financial
Officer)
/s/ STEVEN M. DAURIA Vice President and Corporate February 24, 1999
- --------------------------------------------------- Controller (Principal
Steven M. Dauria Accounting Officer)
/s/ STEVEN R. BERRARD Director February 24, 1999
- ---------------------------------------------------
Steven R. Berrard
/s/ DENNIS J. CALLAGHAN Director February 24, 1999
- ---------------------------------------------------
Dennis J. Callaghan
</TABLE>
II-4
<PAGE> 24
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ MICHAEL S. EGAN Director February 24, 1999
- ---------------------------------------------------
Michael S. Egan
/s/ CHRIS EVERT Director February 24, 1999
- ---------------------------------------------------
Chris Evert
/s/ HARRIS W. HUDSON Director February 24, 1999
- ---------------------------------------------------
Harris W. Hudson
/s/ GEORGE D. JOHNSON, JR. Director February 24, 1999
- ---------------------------------------------------
George D. Johnson, Jr.
/s/ HENRY LATIMER Director February 24, 1999
- ---------------------------------------------------
Henry Latimer
</TABLE>
II-5
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION OF EXHIBIT
-------- ----------------------
<C> <S> <C>
1.1 -- Financial Advisory Agreement
3.1 -- Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-4 -- SEC File No. 333-28951)
3.2 -- By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form
S-4 -- SEC File No. 333-28951)
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A., Counsel to
the Company*
23.1 -- Consent of Arthur Andersen LLP*
23.2 -- Consent of KPMG LLP*
23.3 -- Consent of PricewaterhouseCoopers LLP*
23.4 -- Consent of Ernst & Young LLP*
23.5 -- Consent of Ernst & Young LLP*
23.6 -- Consent of Akerman, Senterfitt & Eidson , P.A. (included in
Exhibit 5.1)*
24.1 -- Powers of Attorney (included as part of the signature page
of this Registration Statement)*
99.1 -- Form of Subscription Agreement*
</TABLE>
- ---------------
* Previously filed
<PAGE> 1
EXHIBIT 1.1
FORM OF
FLORIDA PANTHERS HOLDINGS, INC.
FINANCIAL ADVISORY AGREEMENT
February ___, 1999
Allen & Company Incorporated
711 Fifth Avenue
New York, New York 10022
Gentlemen:
Florida Panthers Holdings, Inc., a Delaware corporation (the
"Company") hereby confirms its agreement with you as follows:
1. THE OFFERING. The Company is offering to its existing
stockholders pursuant to a registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Act"), rights (the "Rights") to
purchase up to 3,900,000 shares of the Company's Class A Common Stock (the
"Shares") at a price of approximately $10.25 per share. The foregoing offer and
sale of the Shares is hereinafter referred to as the "Offering."
2. APPOINTMENT OF ADVISOR. You are hereby appointed the
exclusive financial advisor of the Company (the "Advisor") during the Offering
Period (as defined herein) for the purpose of assisting the Company with the
Offering. The "Offering Period" shall commence on the date the Offering
Materials (as defined herein) are first made available to stockholders by the
Company for delivery in connection with the Offering and shall terminate on or
before the close of business on the earliest to occur of the closing of the sale
of all of the Shares issuable pursuant to the Rights, the expiration of the
Rights or the termination of this Agreement. You hereby accept such agency and
agree to assist the Company on a "best efforts" basis. Your agency hereunder may
not be terminated by the Company, except upon termination of the Offering, upon
the Advisor's failure to perform its obligations hereunder in all material
respects, upon the Advisor's material breach of any of its representations and
warranties contained in Section 7 hereof or upon gross negligence or willful
misconduct on the part of the Advisor. It is understood that the offering and
sale of the Rights will be registered under the Act. The size of the Offering or
the Offering price may be increased or amended as agreed by the Company and the
Advisor.
3. OFFERING MATERIALS. The Company will prepare and deliver to
its stockholders a reasonable number of copies of a Prospectus in connection
with the Offering (as amended from time to time, the "Offering Materials").
<PAGE> 2
4. CLOSING; DELIVERY; PLACEMENT FEES.
(a) It is anticipated that the closing of the
purchase and sale of the Rights may be effected at a closing (the "Closing"), at
such time, date or place as shall be agreed upon by you and the Company (the
"Closing Date"). Upon the Closing, the Company will deliver, or cause to be
delivered, to the participating stockholders certificates representing the
Rights purchased by them.
(d) Simultaneous with the Closing, as provided in
paragraph (b) above, the Company shall pay or cause to be paid to the Advisor an
advisory fee not to exceed $600,000 and shall reimburse the Advisor for its
out-of-pocket expenses as provided in Section 6(c) hereof, against the
presentation of bills therefor. If such bills are not available for presentation
at the time of the Closing, then the Company shall reimburse the amount of the
Advisor's reasonable estimate of such out-of-pocket expenses; in such event, the
Advisor shall promptly provide the Company with an accounting of actual expenses
when known, and the parties shall reconcile any amounts still owing among them.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered on behalf of the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
and to general principles of equity and except as rights to indemnity or
contribution hereunder may be limited by Federal or state securities laws.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Advisor that:
(a) During the Offering Period, the Company will
notify the Advisor of any event of which it is aware as a result of which any of
the Offering Materials would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading; and it
will provide you with any amendment or supplement to the Offering Materials
during the Offering Period. The Company will conduct the Offering in compliance
with the Act and the rules and regulations promulgated thereunder and all
applicable state securities laws and regulations.
(b) If required by law, the Company will use its best
efforts to qualify the Rights and/or the Shares for offer and sale under the
Blue Sky or securities laws of applicable jurisdictions and to continue such
qualifications in effect for so long as may be required for purposes of the
Offering, except that the Company shall not be required in connection therewith
or as a condition thereof to qualify as a foreign corporation or to execute a
general consent to service of process in any state or to subject itself to
taxation in any jurisdiction where it is not already subject to such taxation.
2
<PAGE> 3
(c) The Company covenants and agrees with you that it
will pay the reasonable and documented expenses and fees (including the fees and
expenses of Werbel & Carnelutti, special counsel to the Advisor) incurred by you
in connection with (i) the preparation and delivery of the Offering Materials,
(ii) the furnishing of closing documents and (iii) the qualification of the
Rights or the Shares for offer or sale under the securities laws of applicable
jurisdictions.
(d) The Company agrees to cooperate with the Advisor
and its special counsel with respect to their due diligence investigation.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADVISOR.
The Advisor represents, warrants and covenants as follows:
(a) This Agreement has been duly authorized, executed
and delivered by the Advisor and constitutes a valid and binding obligation of
the Advisor, enforceable against it in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to general principles of
equity and except as rights to indemnity or contribution hereunder may be
limited by Federal or state securities laws.
(b) The Advisor will participate in the Offering in
accordance with all federal and state securities laws applicable to the
Offering.
8. CONDITIONS OF THE COMPANY'S PERFORMANCE. The issuance by
the Company of the Rights and the obligations of the Company as provided herein
shall be subject to the following conditions:
(a) The Company shall not have terminated the
Offering, which shall be the decision of the Company in its sole discretion;
(b) The representations and warranties of the Advisor
contained in Section 7 hereof are true and correct in all material respects as
of the date hereof and as of the Closing Date (as if made on and as of such
Closing Date); and
(c) The Advisor shall have performed its obligations
hereunder in all material respects.
9. CONDITIONS OF ADVISOR'S PERFORMANCE. The purchase and sale
of the Shares and the obligations of the Advisor as provided herein shall be
subject to the accuracy in all material respects, as of the date hereof and each
Closing Date (as if made on and as of such Closing Date), of the representations
and warranties of the Company herein, to the performance in all material
respects by the Company of its obligations hereunder, and to the following
additional conditions:
(a) You shall have received the opinion of Akerman,
Senterfitt & Eidson, P.A., counsel to the Company, in form and substance
acceptable to your counsel.
3
<PAGE> 4
(b) You shall have received a certificate, dated as
of the Closing Date, of an authorized executive officer of the Company to the
effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made on
and as of such Closing Date; and the Company has complied with all the
agreements and satisfied all the conditions in all material respects on
its part required by this Agreement to be performed or satisfied at or
prior to such Closing Date; and
(ii) Except as set forth in the Offering Materials and
subsequent to the date of the most recent financial statements included
with the Offering Materials, there has not been any material adverse
change in the condition (financial or otherwise), business or results
of operations of the Company and its subsidiaries taken as a whole.
(c) The Company shall have furnished to you such
certificates, in addition to those specifically mentioned herein, as you or your
counsel may have reasonably requested, as to the accuracy and completeness at
such Closing Date of any statement in the Offering Materials (other than
statements provided by the Advisor for the Offering Materials) and as to such
other matters as you or your counsel may reasonably request.
10. INDEMNIFICATION. (a) The Company will indemnify and hold
harmless the Advisor, the directors and officers of the Advisor and each person,
if any, who controls the Advisor within the meaning of the Act against any
losses, claims, damages or liabilities, joint or several, to which the Advisor
or any such directors, officers or controlling persons may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Materials, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) the Company's
engagement of Allen & Company Incorporated as Advisor or any service the Advisor
performs for the Company or on its behalf pursuant to this Agreement, except to
the extent that any such loss, claim, damage or liability is found by a court of
competent jurisdiction in a judgment that has become final (in that it is no
longer subject to appeal or review) to have resulted directly and primarily from
such Indemnified Person's gross negligence or willful misconduct. Subject to
subsection (c) below, the Company will reimburse the Advisor or any such
directors, officers or controlling persons for any legal or other expenses
reasonably incurred by the Advisor or any such directors, officers or
controlling persons in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any case to the extent that any such loss, claim, damage, liability
or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Offering Materials in
reliance upon and in conformity with written information furnished by and with
respect to the Advisor specifically for use in the preparation thereof. The
Company shall not be required to indemnify the Advisor or any such directors,
officers or controlling persons for any payment made to any claimant in
settlement of any suit or claim unless such payment is approved by the Company,
which approval shall not be unreasonably
4
<PAGE> 5
withheld or delayed. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, but in no event shall an
indemnified party receive more than the amount of its claim.
(b) The Advisor will indemnify and hold harmless the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which the Company, or any such directors,
officers or controlling persons may be or become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Materials or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Offering Materials in reliance upon and in
conformity with written information furnished by and with respect to the Advisor
specifically for use in the preparation thereof; and (subject to subsection (c)
below) will reimburse the Company or any such directors, officers or controlling
persons for any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or actions.
The Advisor shall not be required to indemnify the Company or any such
directors, officers or controlling persons for any payment made to any claimant
in settlement of any suit or claim unless payment is approved by the Advisor,
which approval shall not be unreasonably withheld or delayed. This indemnity
agreement will be in addition to any liability the Advisor may otherwise have,
but in no event shall an indemnified party receive more than the amount of its
claim.
(c) Promptly after receipt by an indemnified party under
subparagraphs 10(a) or (b) of notice of the commencement of any action or other
proceeding (including governmental investigations) in respect of which indemnity
may be sought, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under such subparagraphs, promptly notify
the indemnifying party in writing of the commencement thereof; but the omission
to so notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under such subparagraph. In
case any such action shall be brought against any indemnified party, and it
shall promptly notify the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, assume and control the defense thereof with counsel chosen by it
and after notice from the indemnifying party to such indemnified party of its
election so to assume and control such defense with counsel chosen by it, it
shall bear all expenses of such defense. Any such indemnified party shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless:
(i) the indemnifying party has agreed to pay such
fees and expenses; or
5
<PAGE> 6
(ii) the indemnifying party shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably
satisfactory to such indemnified party in any such action or
proceeding; or
(iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such indemnified party
and the indemnifying party, and such indemnified party shall have been
advised by counsel that there may be one or more legal defenses
available to such party which are different from or additional to those
available to the indemnifying party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of such indemnified party).
The indemnifying party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the indemnified party, which firm
shall be designated in writing by the indemnified party.
11. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 10(a) or
10(b) hereof is for any reason held to be unavailable to any party entitled to
such indemnification, each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of losses, claims, damages
and liabilities of the nature contemplated by such indemnification provisions
(including any investigation, legal and other expenses incurred in connection
with, and amounts paid in settlement of, any action, suit or proceeding or any
claims asserted) to which the Company and the Advisor may be subject, in such
proportions so that the Advisor is responsible for that portion in each case
represented by the percentage that the respective placement fee appearing in
Section 4(c) of this Agreement bears to the offering price of the Shares, and
the Company is responsible for the remaining portion; provided, however, that no
person guilty of fraudulent misrepresentation shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purpose of this Section 11, each person, if any, who controls the Advisor within
the meaning of Section 15 of the Act shall have the same rights to contribution
as the Advisor, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act, each officer of the Company and each director
of the Company shall have the same right to contribution as the Company, subject
in each case to the prior sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which claim for contribution may be
sought, promptly notify the other party or parties in writing of the
commencement thereof, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
Section 11. No party shall be liable for contribution with respect to any action
or claim settled without its consent.
12. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties or agreements of the Company or of the Advisor
herein or in certificates delivered
6
<PAGE> 7
pursuant hereto shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Advisor or any controlling
person, the Company, or any of its officers, directors or controlling persons,
and shall survive delivery of the Rights and the Shares.
13. TERMINATION. Each of the Company's and the Advisor's
obligation to proceed hereunder is conditioned upon its continuing judgment that
market conditions in general, and as they relate to the Company's securities in
particular, are such as to continue to make appropriate the offering and sale of
the Rights in the manner provided for herein. Notwithstanding the foregoing,
this Agreement shall terminate if the Offering is not completed on or before
April 15, 1999, unless extended by the Company and the Advisor. Upon any
termination of this Agreement whether by the Company or the Advisor, the
obligations of the parties set forth in Sections 6(c), 10 and 11 shall survive
termination of this Agreement.
14. NOTICES. All notices or communications hereunder, except
as herein otherwise specifically provided, shall be in writing and if sent to
you shall be mailed, delivered or telegraphed and confirmed to you c/o Allen &
Company Incorporated, 711 Fifth Avenue, New York, NY 10022, Attention: John
Simon, with a copy to Werbel & Carnelutti, 711 Fifth Avenue, New York, NY 10022,
Attn: Guy N. Molinari, Esq., or, if sent to the Company, at 450 East Las Olas
Boulevard, Fort Lauderdale, Florida 33301, Attn: Richard L. Handley, Esq., with
a copy to Akerman, Senterfitt & Eidson, P.A., One Southeast Third Avenue, 28th
Floor, Miami, Florida 33131, Attn: Bradley D. Houser, Esq.
15. BENEFITS OF THE AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Company and the Advisor and their
respective successors and permitted assigns. This Agreement may not be assigned
by any party without the consent of the other party.
16. APPLICABLE LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York.
7
<PAGE> 8
17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
Very truly yours,
FLORIDA PANTHERS HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
ALLEN & COMPANY INCORPORATED
By:
---------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 99.1
FLORIDA PANTHERS HOLDINGS, INC.
RIGHTS OFFERING OF COMMON STOCK
SUBSCRIPTION AGREEMENT
To: Florida Panthers Holdings, Inc.
c/o BankBoston, N.A.
150 Royall Street
Canton, MA 02021
Attn: Corporate Actions Department
The undersigned stockholder ("Subscriber") of Florida Panthers Holdings,
Inc., a Delaware corporation ("FPHI"), hereby subscribes to purchase shares of
FPHI Class A common stock, $.01 par value, ("Class A Common Stock"), on the
terms set forth below. Subscriber hereby represents, warrants, agrees and
acknowledges as follows:
EXISTING OWNERSHIP:
As of February 24, 1999 (the "Record Date"), Subscriber owned shares of
Class A Common Stock as follows (mark all that apply):
[ ] Indirectly, through the following broker or bank:
________________________ located in (city),
____________________(state).
[ ] Directly, through ownership of a FPHI stock certificate in the name of
the Subscriber.
[ ] Other (please describe)
The total number of shares of Class A Common Stock owned by Subscriber on
the Record Date was ________ shares. For these purposes, a person is considered
to "own" shares of Class A Common Stock if (1) such person has the right to vote
the shares or otherwise control the voting of the shares or (2) such person has
the right to sell the shares or otherwise order a sale or other transfer of the
shares. If two or more persons jointly hold the power to vote or sell any shares
of Class A Common Stock (or have otherwise agreed to act in concert for purposes
of voting or disposing of the shares), then either will be considered to own all
of those shares.
Basic Subscription Privilege:
Subscriber elects to exercise such subscriber's Basic Subscription
Privilege as follows: (check one)
[ ] EXERCISE IN FULL to purchase one new share for every ten shares owned
on the Record Date.
[NOTE: If you already own more than ______shares, FPHI reserves the right to
limit this purchase if and to the extent necessary to keep your percentage
ownership from exceeding 5.0% of the outstanding shares.]
[ ] PARTIAL EXERCISE to purchase __________ shares.
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Oversubscription Privilege:
(Fill in this section only if you have exercised the Basic Subscription
Privilege in full.)
In addition to exercising the Basic Subscription Privilege in full, the
undersigned elects to exercise such subscriber's Oversubscription Privilege as
follows:
[ ] PURCHASE ________ ADDITIONAL SHARES, subject to proration and
applicable limits on purchase.
(NOTE: If you want to purchase the maximum possible number of shares, it is
suggested that you subscribe for that number of shares which will increase your
beneficial ownership to 1,950,000 shares. This is the maximum ownership that
will be permitted if all of the offered shares are sold. FPHI will reduce the
subscription such that your beneficial ownership will not exceed 5.0% of the
total outstanding shares of common stock unless prior approval is obtained from
the National Hockey League.)
Calculation of Total Subscription Price:
This subscription must be accompanied by payment of the total subscription
price in the amount of $________ per share subscribed for, as follows:
Total shares subscribed for: ____________ X $________ per share =
$____________.
Method of Payment:
The total subscription price is being paid as follows:
[ ] By check, bank draft or money order payable to "BankBoston, N.A., as
Subscription Agent;"
[ ] By wire transfer directed to __________; or
[ ] By notice of guaranteed delivery of payment from a bank, a trust
company or a New York Stock Exchange Member.
Other Representations and Agreements by Subscriber:
Subscriber hereby represents to FPHI that such subscriber has read
carefully the section of this Prospectus entitled "Certain Ownership Limits and
Reporting Requirements" and agrees not to acquire FPHI shares through or in
connection with the Rights Offering in violation of those ownership limits and
reporting requirements. Subscriber hereby agrees he or she understands that
National Hockey League restrictions prohibit any person or group of persons from
acquiring beneficial ownership of 5.0% or more of the outstanding Class A Common
Stock, unless that person or group first obtains approval from the National
Hockey League. Subscriber agrees not to acquire FPHI shares through or in
connection with the Rights Offering in violation of those prohibitions.
If the Subscriber currently owns more than 1,950,000 FPHI shares
(approximately 5.0% of the outstanding Class A Common Stock) or is subscribing
for more than 1,000,000 shares, then Subscriber agrees (if FPHI so requests
within 60 days of expiration of the Rights Offering) to provide reasonable
evidence of the total number of shares beneficially owned by him or her and
those on whose behalf Subscriber holds shares.
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Subscriber agrees that, until the date such subscriber receives a stock
certificate from FPHI for the shares subscribed for in this Subscription
Agreement, Subscriber will promptly inform FPHI if any of the representations in
this Agreement become untrue. Subscribers principal residence address (or
business address if Subscriber is an entity) is as follows:
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EXECUTED BY SUBSCRIBER on the __ day of ____________, 1999, at __________,
__________ (city, state).
(Joint owners: all owners must sign)
(Entities: specify titles of signing officers)
NAME OF SUBSCRIBER:
Signature:
Title:
