Asset Purchase Agreement - Brian Brisbin

ASSET PURCHASE AGREEMENT


This ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of January 18, 1997 by and between FLORIDA PANTHERS ICE VENTURES, INC., a Florida corporation (the "Purchaser"), and BRIAN BRISBIN, a Canadian citizen and resident of Toronto, Ontario (the "Seller"). Certain other capitalized terms used herein are defined in Article X and throughout this Agreement.


RECITALS


The Seller is the owner of (i) certain concepts for application of technology to videography in sports (the "Concepts"); (ii) certain registrations for patents and copyrights (the "Patents"); (iii) certain predevelopment rights (the "Predevelopment Rights"); and (iv) trademarks (the "Trademarks"). The Concepts, Patents, Predevelopment Rights and Trademarks are collectively referred to as the "Assets," and are more fully listed and described on Exhibit A attached hereto. The Seller desires to sell to the Purchaser, and the Purchaser desires to purchase from the Seller, the Assets in accordance with the terms and conditions of this Agreement.


TERMS OF AGREEMENT


In consideration of the mutual representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:


ARTICLE I


PURCHASE AND SALE OF ASSETS


1.1 Subject to the terms and conditions of this Agreement, the Seller shall, in reliance upon the representations, warranties and covenants of the Purchaser set forth in this Agreement, agree to sell, convey, grant, assign, transfer and deliver to Purchaser and Purchaser shall, in reliance upon representations, warranties and covenants of the Purchaser set forth in the Agreement, agree to purchase and acquire, free and clear of any and all Liens, all of Seller's right, title and interest in and to the Assets.


1.2 PURCHASE PRICE. Subject to the terms and conditions of this Agreement, the Purchaser shall, in full consideration of the sale, conveyance, grant, assignment, transfer and delivery up to by the Seller to the Purchaser of the Assets, pay to the Seller (allocated as provided in Schedule 1.2) 212,766 shares of common stock, par value $.01 per share (the "FPHI Common Stock"), subject to adjustment as provided below, of the Florida Panthers Holdings, Inc. ("FPHI") representing the number of shares derived by dividing (a) $5,000,000 (the "Purchase Price"); by (b)


2 the average closing sale price of a share of FPHI Common Stock on The Nasdaq Stock Market for the three consecutive trading days which precede the date of this Agreement, as reported (absent manifest error in the printing thereof) by the Wall Street Journal (Eastern Edition) (the "Average Closing Sale Price"); provided, however, that the Purchase Price shall be adjusted by the amount that Purchaser is required to withhold, deduct or hold back for income taxes in connection with the sale and assignment of trademarks listed on Exhibit A. The parties hereto shall mutually agree upon the valuation of such trademarks prior to Closing.


1.3 TIME AND PLACE. Subject to the terms and conditions of this Agreement, the closing of the purchase and sale of the Assets (the "Closing") shall commence at 9:00 a.m. on January 31, 1997, or on a date selected by the parties as seen thereafter as the conditions to Closing shall be satisfied or waived as provided for herein, at the offices of Akerman, Senterfitt & Eidson, P.A., One Southeast Third Avenue, 28th Floor, Miami, Florida, or such other time and place as the parties may otherwise agree. The time and date of the Closing are referred to herein as the "Closing Date."


1.4 DELIVERY OF ASSETS. At Closing, the Seller shall duly execute and deliver to the Purchaser any and all instruments of transfer of title as are necessary to transfer to the Purchaser good, insurable and marketable title to the Assets and shall deliver to the Purchaser immediate possession of the Assets. The Seller agrees to execute and deliver to the Purchaser from time to time such further and particular assignments, consents or other instruments as the Purchaser may request as appropriate or desirable to confirm its title in and to any and all of the Assets sold, conveyed and assigned to the Purchaser.


1.5 DELIVERY OF SHARES. At the Closing, the Purchaser shall deliver to the Seller one or more certificates representing 153,192 shares of FPHI Common Stock. The Purchaser shall set aside and hold 59,574 shares of FPHI Common Stock (the "Held Back Shares") in accordance with Section 7.3. The shares of FPHI Common Stock (including the Held Back Shares) issuable by the Purchaser are sometimes referred to herein as the "FPHI Shares."


ARTICLE II


REPRESENTATIONS AND WARRANTIES OF THE PURCHASER


As a material inducement to the Seller to enter into this Agreement and to consummate the transactions contemplated hereby, the Purchaser makes the following representations and warranties:


2.1 CORPORATE STATUS. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida.


2.2 CORPORATE POWER AND AUTHORITY. The Purchaser has the corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The Purchaser has taken all actions necessary to


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authorize the execution and delivery of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby.


2.3 ENFORCEABILITY. This Agreement has been duly executed and delivered by the Purchaser and constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity.


2.4 NO COMMISSIONS. The Purchaser has not incurred any obligation for any finder's or broker's or agent's fees or commissions or similar compensation in connection with the transactions contemplated hereby.


ARTICLE III


REPRESENTATIONS AND WARRANTIES OF THE SELLER


As a material inducement to the Purchaser to enter into this Agreement and to consummate the transactions contemplated hereby, the Seller makes the following representations and warranties to the Purchaser:


3.1 POWER AND AUTHORITY. The Seller is an individual with the requisite competence and authority to execute and deliver this Agreement, to perform his obligations hereunder and to consummate the transactions contemplated hereby.


3.2 ENFORCEABILITY. This Agreement has been duly executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity.


3.3 NO VIOLATION. The execution and delivery of this Agreement by the Seller, the performance by the Seller of its respective obligations hereunder and the consummation by the Seller of the transactions contemplated by this Agreement will not (i) violate or conflict with any law, statute, ordinance, rule, regulation, decree, writ, injunction, judgment or order of any Governmental Authority or of any arbitration award which is either applicable to, binding upon or enforceable against the Seller or the Assets; (ii) conflict with, result in any breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, or give rise to a right to terminate, amend, modify, abandon or accelerate any Contract which is applicable to, binding upon or enforceable against the Seller or the Assets; (iii) result in or require the creation or imposition of any Lien upon or with respect to any of the Assets; or (iv) require the


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consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, any court or tribunal or any other Person, except any filings required to be made by the Purchaser.


3.4 NO COMMISSIONS. The Seller has not incurred any obligation for any finder's or broker's or agent's fees or commissions or similar compensation in connection with the transactions contemplated hereby.


3.5 LIABILITIES OF THE SELLER. The Seller does not have any liabilities or obligations, whether accrued, absolute, contingent or otherwise which would preclude or otherwise prevent the Seller from selling, conveying, granting, assigning, transferring and delivering to the Purchaser, free and clear of any and all Liens, the Assets.


3.6 LITIGATION. There is no action, suit or other legal or administrative proceeding or governmental investigation pending, threatened, anticipated or contemplated against, by or affecting the Seller or the Assets, or which question the validity or enforceability of this Agreement or the transactions contemplated hereby, and there is no basis for any of the foregoing. There are no outstanding orders, decrees, stipulations or agreements issued by any Governmental Authority in any proceeding to which the Seller is or was a party which have not been complied with in full or which continue to impose any material obligations on the Seller.


3.7 GOOD TITLE, ADEQUACY AND CONDITION. Seller has, and at Closing will have, good and marketable title to the Assets with full power to sell, convey, grant, assign, transfer and deliver the same, free and clear of any Lien The Seller covenants and agrees that it will warrant and defend the title to the Assets hereby sold to the Purchaser, its successors and assigns, against the claims, demands and charges of all persons whomsoever.


3.8 COMPLIANCE WITH LAWS. The Seller is and has been in compliance in all material respects with all laws, regulations and orders applicable to it and the Assets.


3.9 INTELLECTUAL PROPERTIES. The Seller has full legal right, title and interest to the copyrights, trademarks and patents listed on Exhibit A (the "Intellectual Properties"), and the use by the Seller of the Intellectual Properties does not infringe or misappropriate, and the Seller has no knowledge of or received any communications asserting that such use infringes or misappropriates, any rights of any third party. None of the Intellectual Properties has been declared invalid or unenforceable, or is the subject of any pending or threatened action for opposition, cancellation, declaration, infringement or invalidity, unenforceability or misappropriation of the claim, action or proceeding, and no person is infringing on any of the Intellectual Properties.


3.10 SECURITIES LAW MATTERS. The Seller is acquiring the FPHI Shares hereunder for its own account for investment and not with a view to, or for the sale in connection with, any distribution of any of the FPHI Shares, except in compliance with applicable state and federal securities laws. The Seller acknowledges receiving a prospectus of FPHI in accordance with the requirements of the


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Securities Act. The Seller has had the opportunity to discuss the transactions contemplated hereby with FPHI and has had the opportunity to obtain such information pertaining to FPHI as has been requested, including but not limited to filings made by FPHI with the Commission under the Exchange Act. The Seller is an "accredited investor" within the meaning of Regulation D promulgated under the Securities Act, and has such knowledge and experience in business or financial matters that it is capable of evaluating the merits and risks of an investment in the FPHI Shares.


3.11 ACCURACY OF INFORMATION FURNISHED BY THE SELLER TO THE PURCHASER. No representation, statement or information made or furnished by the Seller to the Purchaser or any of the Purchaser's representatives, including those contained in this Agreement and other information and statements referred to herein and previously furnished by the Seller, contains or shall contain any untrue statement of a material fact which would make such information or statements misleading.


ARTICLE IV


CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES


4.1 FURTHER ASSURANCES. Each party to this Agreement shall execute and deliver such additional instruments and other documents and shall take such further actions as may be necessary or appropriate to effectuate, carry out and comply with all of the terms of this Agreement and the transactions contemplated hereby and to satisfy the conditions set forth in Articles V and VI. Each of the parties agrees to cooperate with the others in the preparation and filing of all forms, notifications, reports and information, if any, required or reasonably deemed advisable pursuant to any applicable law in connection with the transactions contemplated by this Agreement, and to use its best efforts to agree on a method to overcome any objections by any Governmental Authority to any such transactions. Each of the parties also agrees to use best efforts to defend all lawsuits or other legal proceedings challenging this Agreement or the consummation of the transactions contemplated hereby and to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby.


4.2 ACCESS TO INFORMATION. From the date hereof to the Closing Date, the Seller shall (and shall cause its auditors, counsel and agents) afford the Purchaser and the Purchaser's officers, employees, auditors, counsel and agents reasonable access at all reasonable times to all books and records, and shall furnish such persons with all financial, operating and other data and information as may be requested. No information provided to or obtained by the Purchaser shall affect any representation or warranty in this Agreement.


4.3 NOTIFICATION OF CERTAIN MATTERS. The Seller shall give prompt notice to the Purchaser of the occurrence or non-occurrence of any event which would likely cause any representation or warranty contained herein to be untrue or inaccurate, or any covenant, condition or agreement contained herein not to be complied with or satisfied.


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4.4 CONFIDENTIALITY; PUBLICITY. Except as may be required by law or as otherwise permitted or expressly contemplated herein, no party hereto or its respective Affiliates, employees, agents and representatives shall disclose to any third party this Agreement or the subject matter or terms hereof without the prior consent of the other parties hereto. No press release or other public announcement related to this Agreement or the transactions contemplated hereby shall be issued by any party hereto without the prior approval of the other parties, except that the Purchaser may make such public disclosure which it believes in good faith to be required by law or by the terms of any listing agreement with a securities exchange (in which case the Purchaser will consult with the Seller prior to making such disclosure).


4.5 NO OTHER DISCUSSIONS. The Seller and its agents and representatives will not (i) initiate, encourage the initiation by others of discussions or negotiations with third parties or respond to solicitations by third persons relating to sale or other disposition of the Assets or (ii) enter into any agreement or commitment (whether or not binding) with respect to the foregoing transaction. The Seller will immediately notify the Purchaser if any third party attempts to initiate any solicitation, discussion or negotiation with respect to the foregoing transaction.


4.6 TRADING IN FPHI COMMON STOCK. Except as otherwise expressly consented to by the Purchaser, from the date of this Agreement until the Closing Date, the Seller (and any of his Affiliates) will not directly or indirectly purchase or sell (including short sales) any shares of FPHI Common Stock in any transactions effected on the Nasdaq Stock Market or otherwise.


4.7 COVENANT NOT TO COMPETE. The Seller agrees that, for the period of three (3) years immediately following the Closing Date, the Seller shall not, directly or indirectly:


(a) alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor, or security holder of any Person, engage in any business activity at any location in the United States of America, which is engaged in developing, owning, or operating ice rinks and their related facilities or the operation of the twin pad ice rink which is directly or indirectly in competition with the business of the Purchaser or its subsidiary; provided, however, that the beneficial ownership of less than five percent (5%) of any class of securities of any entity having a class of equity securities actively traded on a national securities exchange or the Nasdaq Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this Section; provided, further, that the providing of architectural services and designs by the Seller for professional arenas with seating capacity of at least 3,000 spectators or stadiums in the United States shall not be deemed to violate covenants contained herein. The provision of architectural services and/or designs by the Seller or by Brisbin Brook Beynon, Arc ...