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EXHIBIT 1.2
PLACEMENT AGENCY AGREEMENT
____________ __, 1996
Florida Panthers Holdings, Inc.
000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
This placement agency agreement (the "AGREEMENT") outlines the terms upon
which Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ") and Xxxxxxx
Xxxxx & Associates, Inc. (collectively, the "PLACEMENT AGENTS") are engaged by
Florida Panthers Holdings, Inc., a Florida corporation (the "COMPANY"), to act
as its financial advisors and exclusive placement agents in connection with the
offering by the Company (the "CONCURRENT OFFERING") of up to an aggregate of
4,600,000 Shares (the "CONCURRENT SHARES") of Class A Common Stock, par value
$.01 per share (the "CLASS A COMMON STOCK"), of the Company. The Concurrent
Offering of Concurrent Shares is registered on Registration Statement No.
333-12191 (as such Registration Statement may be amended from time to time, the
"REGISTRATION STATEMENT") under the Securities Act of 1933, as amended (the
"ACT"), filed by the Company with the Securities and Exchange Commission (the
"COMMISSION"). The Company will also enter into an underwriting agreement with
the Placement Agents, as representatives of the several underwriters to be
named in Schedule I thereto (collectively, the "UNDERWRITERS"), relating to the
offering of Class A Common Stock by the Underwriters (the "INITIAL PUBLIC
OFFERING" and, together with the Concurrent Offering, the "OFFERINGS"). The
Initial Public Offering is also registered on the Registration Statement. To
the extent designated herein, portions of the underwriting agreement relating
to the Initial Public Offering, in the form filed as Exhibit 1.1 to the
Registration Statement and attached hereto as Annex A (as such Underwriting
Agreement may be amended from time to time with the Placement Agents' consent,
the "UNDERWRITING AGREEMENT"), shall be deemed to be incorporated by reference
herein and form a part hereof. Notwithstanding anything else herein to the
contrary, it is expressly understood and agreed that the closing of the
Concurrent Offering is conditioned on the occurrence of the Closing Date. All
capitalized terms not defined herein shall have the meanings ascribed to them
in the Underwriting Agreement.
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The Company is a newly-formed corporation, which was established for the
purpose of effecting the Reorganization (as defined below). The operations of
the business described in the Prospectus (as defined below) are currently
conducted by the Company, through its ownership of Florida Panthers Hockey
Club, Ltd. (the "PARTNERSHIP"), Arena Development Company, Ltd. ("ARENA
DEVELOPMENT"), Arena Operating Company, Ltd. ("ARENA OPERATOR"), Decoma
Investment, Inc. I ("DECOMA I") and Decoma Investment, Inc. II ("DECOMA II").
On __________, 1996, the following events (collectively, the "REORGANIZATION")
occurred: (i) Xx. Xxxxxxxx contributed (A) a note (the "PARTNERSHIP NOTE"),
representing the outstanding amount which the Partnership borrowed from Xx.
Xxxxxxxx plus interest accrued on the Partnership Note ($_______ as of
_________, 1996), and (B) all the outstanding capital stock of each of Decoma I
and Decoma II, which entities together own approximately a 78% limited
partnership interest in Decoma Miami Associates, Ltd., to the capital of the
Partnership in exchange for a ___% limited partnership interest in the
Partnership; (ii) Xx. Xxxxxxxx, as the sole limited partner and the sole
general partner (through his ownership of Florida Panthers Hockey Club, Inc.)
of the Partnership, contributed his limited partnership interest in the
Partnership as well as the outstanding capital stock of Florida Panthers Hockey
Club, Inc. to the Company; and (iii) Xx. Xxxxxxxx, as the sole general partner
(through his ownership of Arena Development Company, Inc. and Arena Operating
Company, Inc., respectively) of each of Arena Development and Arena Operator,
contributed the outstanding capital stock of each of Arena Development Company,
Inc. and Arena Operating Company, Inc. to the Company in exchange for 5,020,678
shares of the Company's Class A Common Stock and 255,000 shares of the
Company's Class B Common Stock.
SERVICES
1. The Company hereby appoints the Placement Agents as the Company's
exclusive placement agents in connection with the Concurrent Offering and,
subject to the terms and conditions contained or incorporated by reference
herein, the Placement Agents hereby accept such appointment.
2. The Placement Agents agree to provide advisory services to the Company
as to the structure of the Concurrent Offering. Except as specifically set
forth herein, the Placement Agents do not assume any additional duties or
responsibilities with respect to the Concurrent Offering and no other duties
shall be implied from this Agreement. The Company acknowledges that purchasers
of the Concurrent Offering are not, and will not be treated as, "customers" of
the Placement Agents for purposes of the rules of the National Association of
Securities Dealers, Inc. (the "NASD") and that the Placement Agents shall have
no responsibility for the performance or non-performance of any purchaser in
the Concurrent Offering or for the performance or non-performance of the
Company.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
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3. The Company hereby makes to the Placement Agents the agreements,
representations and warranties set forth in Sections 5 and 6 of the
Underwriting Agreement.
4. The Company agrees with the Placement Agents:
(a) to provide the Placement Agents with such copies of the
Registration Statement, Prospectus, any preliminary prospectus and such
other documents and instruments as the Placement Agents may reasonably
request; and
(b) to comply with the agreement in the third paragraph of
Section 2 of the Underwriting Agreement.
5. The Company further agrees with the Placement Agents that the Company
will pay all costs, expenses, fees and taxes incident to (i) the preparation,
printing, filing and distribution under the Act of the Registration Statement
(including financial statements and exhibits), of each preliminary prospectus
and all amendments and supplements to any of them prior to or during the period
specified in Section 5(e) of the Underwriting Agreement to the Placement Agents
and the Purchasers (including potential purchasers), (ii) the printing and
delivery of the Prospectus and all amendments or supplements to it during the
period specified in Section 5(e) of the Underwriting Agreement to the Placement
Agents and the Purchasers (including potential purchasers), (iii) the printing
and delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the
Concurrent Shares (including in each case any disbursements of counsel for the
Placement Agents relating to such printing and delivery), (iv) the registration
or qualification of the Concurrent Shares for offer and sale under the
securities or Blue Sky laws of the several states (including in each case the
fees and disbursements of counsel for the Placement Agents relating to such
registration or qualification and memoranda relating thereto), (v) filings and
clearance with the National Association of Securities Dealers, Inc. in
connection with the Concurrent Offering, (vi) the listing of the Concurrent
Shares on the National Association of Securities Dealers Automated Quotation
system ("NASDAQ") National Market System, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale of
the Concurrent Shares by the Company to the Purchasers, and (viii) all other
costs and expenses incident to the performance of its obligations hereunder and
the Subscription Agreements which are not otherwise specifically provided for
in this Section.
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6. The obligations of the Placement Agents hereunder and the closing of
the sale of the Concurrent Shares in the Concurrent Offering (the "CONCURRENT
TIME OF DELIVERY") shall be subject to the satisfaction of the conditions set
forth in Section 8 of the Underwriting Agreement. Furthermore, (i) the
Concurrent Time of Delivery shall be conditioned upon the occurrence of the
Closing Date and (ii) the obligations of the Placement Agents hereunder shall
be conditioned upon resolution to the reasonable satisfaction of the Placement
Agents of all legal and regulatory issues related to the Concurrent Offering.
For purposes of this Section 6, all references to "Underwriters" and "Firm
Shares" in the introductory paragraph of Section 8 of the Underwriting
Agreement shall be deemed to refer to the Placement Agents and Concurrent
Shares, respectively. Also for purposes of this Section 6, (a) the opinions of
(i) Akerman, Senterfitt & Xxxxxx, P.A. and (ii) XxXxxxxxx, Will & Xxxxx, (b)
the letter or letters of Xxxxxx Xxxxxxxx LLP and (c) the certificates of
officers of the Company (provided for in Section 8(c) of the Underwriting
Agreement), shall each also be addressed and furnished to the Placement Agents
at the Concurrent Time of Delivery and all references in Section 8 of the
Underwriting Agreement to "your reasonable satisfaction," "satisfactory to
you," "judgment of the Representatives" or similar language shall be deemed to
refer to a determination by the Placement Agents.
FEES
7. As compensation for their services under this Agreement, the Placement
Agents will receive at the Concurrent Time of Delivery a fee (the "PLACEMENT
FEE") from the Company of 3.5% of the amount equal to Initial Public Offering
Price less the underwriting discount and commissions to be paid to the
Underwriters in the Underwritten Offering, multiplied by the number of Shares
sold in the Concurrent Offering, by wire transfer in immediately available
funds to a bank account or accounts designated by the Placement Agents.
Payment of such Placement Fee shall be a condition of the Concurrent Time of
Delivery. In the event the Concurrent Offering is terminated by the Placement
Agents because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Placement Agents for all out-of-pocket expenses
(including the fees and disbursements of counsel) reasonably incurred by them.
INDEMNIFICATION AND EXCULPATION
8. The Company (the "INDEMNIFYING PARTY") agrees to indemnify and hold
harmless the Placement Agents, their affiliates and their parents and their
affiliates, and the respective directors, officers, agents and employees of the
Placement Agents, their affiliates and their parents and their affiliates, and
each person, if any, who controls either of the Placement Agents within the
meaning of the Act or the Exchange Act from and against any losses, claims,
damages, judgments, assessments, costs and other liabilities (or actions or
proceedings in respect thereof) to which the Placement Agents or such entity or
person may become subject related to or arising out of (i) the Placement
Agents' engagement hereunder including, without limitation, the use or content
of the Registration Statement, any preliminary prospectus or the Prospectus, or
any amendment or supplement thereto, or (ii) the activities of the Company in
connection with
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the Offerings, and will reimburse the Placement Agents and each such entity or
person for all reasonable legal and other expenses as incurred in connection
with investigating, preparing, pursuing or defending any such loss, claim,
damage, judgment, assessment, cost, liability, action, investigation or
proceeding whether or not in connection with pending or threatened litigation
in which either the Placement Agents or any such entity or person is a party;
provided, however, that the Company shall not be liable in the case of clause
(i) for losses, claims, damages, judgments, assessments, costs, liabilities or
expenses that (x) a court of competent jurisdiction shall have found in a final
judgment which is no longer subject to appeal or further review to have arisen
solely from the gross negligence or willful misconduct of either of the
Placement Agents or (y) are caused by any untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Placement Agents furnished in writing to the Company by the Placement Agents
specifically for use in the Registration Statement, any preliminary prospectus
or any Prospectus or any amendment or supplement thereto.
In case any proceeding shall be instituted involving any person in respect
to whom indemnity may be sought, such person (the "INDEMNIFIED PARTY") shall
promptly notify the indemnifying party in writing; provided, however, that
failure to so notify the indemnifying party shall not relieve the indemnifying
party from any liability the indemnifying party may have on account of this
indemnity or otherwise, except to the extent the indemnifying party shall have
been materially prejudiced by such failure. The indemnifying party, upon the
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may reasonably designate in such proceedings and shall pay
as incurred the fees and expenses of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain
its own counsel at its own expense, except that the indemnifying party shall
pay as incurred the reasonable fees and expenses of counsel retained by the
indemnified party in the event that (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of all such parties by the same counsel would constitute a real
or perceived conflict of interest in the reasonable opinion of the indemnified
party, due to actual or potential differing interests between them or (iii) the
indemnifying party has failed to assume the defense and employ counsel. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
to the extent set forth in this Agreement. The indemnifying party will not,
without the prior written consent of the indemnified party, settle, compromise
or consent to the entry of any judgment in or otherwise seek to terminate any
pending or threatened action or proceeding in respect of which indemnification
or contribution may be sought hereunder unless such settlement, compromise,
consent or termination includes an unconditional release of the indemnified
party from any and all liability with respect to such action or proceeding.
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In the event a claim for indemnification as described herein is
unavailable or insufficient, then the Company shall contribute to the aggregate
losses, claims, damages or liabilities to which the Placement Agents, their
affiliates and their parents and their affiliates, and the respective
directors, officers, agents, employees or controlling persons may be subject in
such amount as is appropriate to reflect the relative benefits received by the
Company on the one hand and the party seeking contribution on the other and the
relative fault of the Company on the one hand and the party seeking
contribution on the other, as well as any relevant equitable contributions;
provided, however, that in no event shall the Company contribute less than the
amount necessary to ensure that the Placement Agents and such entities and
persons, in the aggregate, are not liable for any losses, claims, damages,
judgments, assessments, costs and other liabilities in excess of the amount of
the Placement Fee actually received by the Placement Agents hereunder. The
relative benefits received by the Company and on the one hand and the Placement
Agents on the other shall be deemed to be in the same proportion as the total
net proceeds from the Concurrent Offering (before deducting expenses) received
by the Company bear to the Placement Fee paid to the Placement Agents by the
Company.
The provisions of this Agreement relating to reimbursement,
indemnification and contribution shall survive termination, modification or
completion of the engagement of the Placement Agents and shall be binding upon
any successors or assigns of the Company.
9. The Company also agrees that the Placement Agents, their affiliates
and their parents and their affiliates and the respective directors, officers,
agents, employees of the Placement Agents, their affiliates and their parents
and their affiliates, shall have no liability to the Company or its
shareholders for or in connection with any matter referred to in this
Agreement, except in the case of clause (i) of Section 8, to the extent that
any losses, claims, damages, judgments, assessments, costs, liabilities or
expenses incurred by the Company are determined by a court of competent
jurisdiction in a final judgment which is no longer subject to appeal or
further review to have arisen solely from the gross negligence or willful
misconduct of the Placement Agents.
OTHER
10. The Company represents and warrants that no person or organization
other than the Placement Agents are, as a result of any action by the Company,
entitled to compensation for services as a finder, broker, placement agent or
investment banker in connection with the Concurrent Offering.
11. This Agreement shall be deemed to be effective as of the date hereof
and the term of this engagement shall be from the date hereof until the earlier
of (i) termination of the
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Concurrent Offering, and (ii) the completion of the Offerings. Notwithstanding
the foregoing, if at any time the Company violates any of its covenants and
agreements contained herein or if any of the conditions set forth in Section 6
are not satisfied, the Placement Agents shall have the right to terminate their
obligations hereunder upon prior notice to the Company. In the event of any
termination of this Agreement or if for any reason the Concurrent Offering is
terminated, the Company shall be responsible for (i) the reimbursement of all
fees, disbursements, costs and expenses, as provided in Section 5, and (ii) its
obligations arising under Section 8.
12. The Company agrees that the Placement Agents shall have the right
to advertise their participation in the Concurrent Offering in "tombstone" or
other appropriate financial advertisements in newspapers, magazines, trade
periodicals or other publications. The Placement Agents agree that such
tombstone or other advertisements shall not be published without the prior
approval of the Company, provided that such approval is not unreasonably
withheld or delayed.
13. The invalidity or unenforceability of any provision of this Agreement
shall in no way offset the validity or enforceability of any other provision.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the state of New York. The terms and provisions of this
Agreement are solely for the benefit of the Company and the Placement Agents
and the other indemnified parties and their respective successors, assigns,
heirs and personal representatives, and no other person shall acquire or have
any right by virtue of this letter.
14. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Placement Agents shall be delivered or sent by mail,
telex or facsimile transmission to: in the case of the Placement Agents to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; and in the case of the Company to the address
of the Company set forth in the Registration Statement, Attention: Secretary.
Any such statements, requests, notices or agreement shall take effect upon
receipt thereof.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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Please confirm that the terms described here are in accordance with your
understanding by signing and returning to use the enclosed duplicate of this
letter.
Very truly yours,
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
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Title:
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XXXXXXX XXXXX & ASSOCIATES, INC.
By:
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Title:
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AGREED AND CONFIRMED:
FLORIDA PANTHERS HOLDINGS, INC.
By:
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Title:
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ANNEX A
[Attach form of Underwriting Agreement]
