Post-effective Amendment No. 2 to Registration No. 333-20463
Post-effective Amendment No. 1 to Registration No. 333-11340
As filed with the Securities and Exchange Commission on February 25, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
----------------------
SPALDING HOLDINGS CORPORATION
(FORMERLY EVENFLO & SPALDING HOLDINGS CORPORATION)
(Exact Name of Registrant as Specified in Its Charter)
Delaware 59-2439656
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
425 Meadow Street
Chicopee, Massachusetts 01013
(Address, including Zip Code, of Registrant's Principal Executive Offices)
Amended and Restated 1996 Stock
Purchase and Option Plan for Key Employees of
Spalding Holdings Corporation and Subsidiaries
(Full Title of the Plan)
---------------------------
James R. Craigie
President and Chief Executive Officer
425 Meadow Street
Chicopee, Massachusetts 01013
(413) 536-1200
(Name, Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Agent for Service)
With Copies to:
Arthur D. Robinson, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
---------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to Amount to be Price Per Offering Registration
be Registered Registered Share (a) Price (a) Fee (a)
- --------------------- ------------ --------- --------- ------------
Common Stock, $.01 par
value per share 4,315,444 $2.00 $8,630,888 $2,278.56
(a) Pursuant to Rule 457(h) under the Securities Act of 1933, the proposed
maximum offering price per share, the proposed maximum aggregate
offering price and the amount of registration fee have been computed on
the basis of the price at which common stock under the Plan will be
sold, and the price at which options under the Plan may be exercised.
Pursuant to Rule 429 of the Rules and Regulations of the Securities and
Exchange Commission under the Securities Act of 1933, as amended, this
Registration Statement contains a Prospectus that also relates to
Registration Statement No. 333-20463 on Form S-8 relating to 7,484,556 shares
of common stock previously filed by the Registrant and declared effective on
January 27, 1997 and as to which a filing fee of $11,340.24 was paid, and
Registration Statement No. 333-11340 on Form S-8 relating to 4,500,000 shares
of common stock previously filed by the Registrant and declared effective
September 2, 1999 and as to which a filing fee of $2,502.00 was paid.
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Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed by Spalding Holdings
Corporation (the "Company" or the "Registrant") with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference
in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1998;
(b) The Company's Annual Report on Form 10-K for the transition
period from October 1, 1998 to December 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended April 3, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended July 3, 1999;
(e) The Company's Quarterly Report on Form 10-Q for the quarter
ended October 2, 1999;
(f) The Company's two Current Reports on Forms 8-K dated October
1, 1999;
(g) The Company's Current Report on Form 8-K dated January 21,
2000.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of this Registration Statement and prior to
the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
The following description of the terms of the Common Stock is qualified
in its entirety by reference to the provisions of the Management
Stockholder's Agreements, filed as Exhibits 4.11 and 4.12 to the Company's
Registration Statement No. 333-11340 on Form S-8, dated September 2, 1999 and
incorporated herein by reference.
The authorized capital stock of the Company consists of 150,000,000
shares of Common Stock, par value $.01 per share, of which 98,058,948 shares
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were outstanding as of December 31, 1999 and 50,000,000 shares of preferred
stock, of which 100,000 shares were outstanding as of December 31, 1999.
Voting Rights. The holders of the Common Stock are entitled to one vote
per share on all matters submitted for action by the shareholders. There is
no provision for cumulative voting with respect to the election of directors.
Accordingly, the holders of more than 50% of the shares of Common Stock can,
if they choose to do so, elect all of the directors. In such event, absent
contractual provisions to the contrary the holders of the remaining shares
will not be able to elect any directors.
Dividend Rights. All shares of Common Stock are entitled to share
equally in such dividends as the Board of Directors may declare from sources
legally available therefor.
Liquidation Rights. Upon liquidation or dissolution of the Company,
whether voluntary or involuntary, all shares of Common Stock are entitled to
share equally in the assets available for distribution to shareholders after
payment of all prior obligations of the Company.
Other Matters. The holders of the Common Stock have no preemptive
rights. All outstanding shares of Common Stock are, and the Common Stock
offered hereby will be, fully paid and non-assessable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters in connection with the Common Stock offered
hereby are being passed upon for the Company by Peter Arturi.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative, or
investigative (other than action by or in the right of the corporation a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceedings, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification
only extends to expenses (including attorneys' fees) incurred in connection
with the defense or settlement of such actions, and the statute requires
court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be
granted by a corporation's charter, by-laws, disinterested director vote,
stockholder vote, agreement or otherwise. Article IV of the Registrant's
By-laws requires indemnification to the fullest extent permitted by Delaware
law. The Registrant has also obtained officers' and directors' liability
insurance which insures against liabilities that officers and directors of
the Registrant, in such capacities, may incur.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
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<PAGE>
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duties as a director, except for liability (i) for
any transaction from which the director derives an improper personal benefit,
(ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) for improper payment of
dividends or redemptions of shares, or (iv) for any breach of a director's
duty of loyalty to the company or its stockholders. Article Seven of the
Registrant's Restated Certificate of Incorporation includes such a provision.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
See "Index to Exhibits."
Item 9. Undertakings
(a) 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
Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement.
(2) That, for the purposes of determining any liability under the
Act, 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.
(b) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a)or 15(d)
of the Exchange Act that is incorporated by reference in this Registration
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Statement 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.
(c) Insofar as indemnification for liabilities arising under the 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 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 Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicopee, State of
Massachusetts, on this 25th day of February, 2000.
SPALDING HOLDINGS CORPORATION
(Registrant)
By /s/ James R. Craigie
James R. Craigie
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
Signature Title Date
/s/ Edwin L. Artzt Chairman of Board of Directors February 25, 2000
- ------------------
Edwin L. Artzt
/s/ James R. Craigie President and Chief Executive Officer February 25, 2000
- --------------------
James R. Craigie
/s/ Daniel S. Frey Chief Financial Officer February 25, 2000
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Daniel S. Frey
/s/ Peter A. Arturi General Counsel and Secretary February 25, 2000
- -------------------
Peter A. Arturi
/s/ Henry R. Kravis Director February 25, 2000
- -------------------
Henry R. Kravis
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Signature Title Date
/s/ George Roberts Director February 25, 2000
- --------------------
George Roberts
/s/ Michael T. Tokarz Director February 25, 2000
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Michael T. Tokarz
/s/ Marc S. Lipschultz Director February 25, 2000
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Marc S. Lipschultz
/s/ Gustavo A. Cisneros Director February 25, 2000
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Gustavo A. Cisneros
/s/ David W. Checketts Director February 25, 2000
- ----------------------
David W. Checketts
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<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
4.(1) Restated Certificate of Incorporation of the Company (filed
as Exhibit 3.1 to the Form S-4 Registration Statement and
incorporated herein by reference).
4.(2) Amendment to the Restated Certificate of Incorporation of
the Company (filed as Exhibit 3.1 to the Company's Current
Report dated August 13, 1999 and incorporated herein by
reference).
4.(3) By-laws of the Company (filed as Exhibit 3.2 to the Form S-
4 Registration Statement and incorporated herein by
reference).
4.(4) Indenture between E&S Holdings Corporation and Marine
Midland Bank, as Trustee (incorporated by reference from
Exhibit 4.1 to Registration Statement No. 333-14569 filed
by the Company on January 9, 1997).
4.(5) Form of 10 3/8% Series B Senior Subordinated Notes due 2006
(incorporated by reference from Exhibit 4.3 to Registration
Statement No. 333-14569 filed by the Company on January 9,
1997).
4.(6) Stock Purchase Warrants, dated August 20, 1998, by and
among Evenflo & Spalding Holdings Corporation and KKR 1996
Fund L.P., relating to the purchase of 44,100,000 shares of
Common Stock of the Company granted to KKR 1996 Fund L.P.
(filed as Exhibit 4.4 to the Company's Annual Report on
Form 10-K dated March 29, 1999 and incorporated herein by
reference).
4.(7) Stockholders' Agreement dated August 20, 1998, by and among
Evenflo Company, Inc. KKR 1996 Fund L.P. and Lisco, Inc.
(filed as Exhibit 4.5 to the Company's Annual Report on
Form 10-K dated March 29, 1999 and incorporated herein by
reference).
4.(8) Certificate of Designations of Variable Rate Cumulative
Preferred Stock of Evenflo & Spalding Holdings Corporation,
dated August 19, 1998 (filed as Exhibit 4.6 to the
Company's Annual Report on Form 10-K dated March 29, 1999
and incorporated herein by reference).
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4.(9) Form of Amended and Restated 1996 Stock Purchase and Option
Plan for Key Employees of Spalding Holdings Corporation and
Subsidiaries.
4.(10) Form of Management Stockholder's Agreement (Stock and Options)
(incorporated by reference from Exhibit 4.10 to Registration
Statement No. 333-11340 on Form S-8 filed by the Company on
September 2, 1999).
4.(11) Form of Management Stockholder's Agreement (Options)
(incorporated by reference from Exhibit 4.11 to Registration
Statement No. 333-11340 on Form S-8 filed by the Company on
September 2, 1999).
4.(12) Form of Non-Qualified Stock Option Agreement (incorporated by
reference from Exhibit 4.12 to Registration Statement No.
333-11340 on Form S-8 filed by the Company on September 2,
1999).
4.(13) Form of Sale Participation Agreement (incorporated by
reference from Exhibit 4.13 to Registration Statement No. 333-
11340 on Form S-8 filed by the Company on September 2, 1999).
4.(14) Registration Rights Agreement, dated as of September 30, 1996,
among Evenflo & Spalding Holdings Corporation, Strata
Associates, L.P. and KKR Partners II, L.P. (incorporated by
reference from Exhibit 10.4 to Registration Statement No. 333-
14569 filed by the Company on January 9, 1997).
5 Opinion of Peter Arturi, Esq.
15 Letter in lieu of consent of Deloitte & Touche LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Peter Arturi, Esq. (included in Exhibit 5 of this
Registration Statement).
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Exhibit 4.9
PLAN DOCUMENT
AMENDED AND RESTATED 1996 STOCK PURCHASE AND OPTION PLAN
FOR KEY EMPLOYEES OF
SPALDING HOLDINGS CORPORATION AND SUBSIDIARIES
1. Purpose of Plan
---------------
The Amended and Restated 1996 Stock Purchase and Option Plan for Key
Employees of Spalding Holdings Corporation and Subsidiaries (the "Plan") is
designed:
(a) to promote the long term financial interests and growth of Spalding
Holdings Corporation (the "Company") and its subsidiaries by attracting and
retaining management personnel with the training, experience and ability to
enable them to make a substantial contribution to the success of the
Company's business;
(b) to motivate management personnel by means of growth-related
incentives to achieve long range goals; and
(c) to further the alignment of interests of participants with those of
the stockholders of the Company through opportunities for increased stock, or
stock-based, ownership in the Company.
2. Definitions
-----------
As used in the Plan, the following words shall have the following
meanings:
(a) "Affiliate" shall mean any corporation directly or indirectly
controlling, controlled by, or under common control with, the Company, KKR or
any other entity designated by the Board of Directors of the Company in which
the Company or an Affiliate has an interest.
(b) "Board of Directors" means the Board of Directors of the Company.
(c) "Change of Control" means (i) a sale of all or substantially all of
the assets of the Company to a Person or Group who is not an Affiliate of
Kohlberg Kravis Roberts & Co., L.P. ("KKR"), (ii) a sale by KKR or any of its
Affiliates resulting in (A) more than 50% of the voting stock of the Company
being held by a Person or Group that does not include KKR or any of its
Affiliates and (B) more than 50% of the seats on the Board of Directors of
the Company being controlled by or being designees of a party or parties
other than KKR or any of its Affiliates, or (iii) a merger or consolidation
of the Company into another Person which is not an Affiliate of KKR.
<PAGE>
(d) "Committee" means the Compensation Committee of the Board of
Directors.
(e) "Common Stock" or "Share" means common stock of the Company which
may be authorized but unissued, or issued and reacquired.
(f) "Employee" means a person, including an officer, in the regular
full-time employment of the Company or one of its Subsidiaries who, in the
opinion of the Committee, is, or is expected to be, primarily responsible for
the management, growth or protection of some part or all of the business of
the Company.
(g) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(h) "Fair Market Value" means such value of a Share as reported for
stock exchange transactions and/or determined in accordance with any
applicable resolutions or regulations of the Committee in effect at the
relevant time.
(i) "Grant" means an award made to a Participant pursuant to the Plan
and described in Paragraph 5, including, without limitation, an award of an
Incentive Stock Option, Non-Qualified Stock Option, Stock Appreciation Right,
Dividend Equivalent Right, Restricted Stock, Purchase Stock, Performance
Units, Performance Shares or Other Stock- Based Grant or any combination of
the foregoing.
(j) "Grant Agreement" means an agreement between the Company and a
Participant that sets forth the terms, conditions and limitations applicable
to a Grant.
(k) "Group" means two or more Persons acting together as a partnership,
limited partnership, syndicate or other group for the purpose of acquiring,
holding or disposing of securities of the Company.
(l) "Participant" means an Employee, or other person having a
relationship with the Company or one of its Subsidiaries, to whom one or more
Grants have been made and such Grants have not all been forfeited or
terminated under the Plan.
(m) "Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
(n) "Stock-Based Grants" means the collective reference to the grant of
Stock Appreciation Rights, Dividend Equivalent Rights, Restricted Stock,
Performance Units, Performance Shares and Other Stock-Based Grants.
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(o) "Stock Options" means the collective reference to "Incentive Stock
Options" and "Non-Qualified Stock Options".
(p) "Subsidiary" shall mean any company in an unbroken chain of
companies beginning with the Company if each of the companies, or group of
commonly controlled companies, other than the last company in the unbroken
chain then owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other companies in such chain.
3. Administration of Plan
----------------------
(a) The Plan shall be administered by the Committee. None of the
members of the Committee shall be eligible to be selected for Grants under
the Plan, or have been so eligible for selection within one year prior
thereto; provided, however, that the members of the Committee shall qualify
to administer the Plan for purposes of Rule 16b-3 (and any other applicable
rule) promulgated under Section 16(b) of the Exchange Act to the extent that
the Company is subject to such rule. The Committee may adopt its own rules
of procedure, and action of a majority of the members of the Committee taken
at a meeting, or action taken without a meeting by written consent, shall
constitute action by the Committee. The Committee shall have the power and
authority to administer, construe and interpret the Plan, to make rules for
carrying it out and to make changes in such rules. Any such interpretations,
rules, and administration shall be consistent with the basic purposes of the
Plan.
(b) The Committee may delegate to the Chief Executive Officer and to
other senior officers of the Company its duties under the Plan subject to
such conditions and limitations as the Committee shall prescribe except that
only the Committee may designate and make Grants to Participants who are
subject to Section 16 of the Exchange Act.
(c) The Committee may employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Company, and the
officers and directors of the Company shall be entitled to rely upon the
advice, opinions or valuations of any such persons. All actions taken and
all interpretations and determinations made by the Committee in good faith
shall be final and binding upon all Participants, the Company and all other
interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with
respect to the Plan or the Grants, and all members of the Committee shall be
fully protected by the Company with respect to any such action, determination
or interpretation.
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4. Eligibility
-----------
The Committee may from time to time make Grants under the Plan to such
Employees, or other persons having a relationship with the Company or any of
its Subsidiaries, and in such form and having such terms, conditions and
limitations as the Committee may determine. Grants may be granted singly, in
combination or in tandem. The terms, conditions and limitations of each
Grant under the Plan shall be set forth in a Grant Agreement, in a form
approved by the Committee, consistent, however, with the terms of the Plan;
provided, however, such Grant Agreement shall contain provisions dealing with
the treatment of Grants in the event of the termination, death or disability
of a Participant, and may also include provisions concerning the treatment of
Grants in the event of a Change of Control of the Company.
5. Grants
------
From time to time, the Committee will determine the forms and amounts of
Grants for Participants. Such Grants may take the following forms in the
Committee's sole discretion:
(a) Incentive Stock Options - These are stock options within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), to purchase Common Stock, which may only be granted to an Employee
(who is actually employed by the Company). In addition to other restrictions
contained in the Plan, an option granted under this Paragraph 5(a): (i) may
not be exercised more than 10 years after the date it is granted; (ii) may
not have an option price less than the Fair Market Value of the Common Stock
on the date the option is granted; (iii) must otherwise comply with Code
Section 422; and (iv) must be designated as an "Incentive Stock Option" by
the Committee. The maximum aggregate Fair Market Value of Common Stock
(determined at the time of each Grant) with respect to which Incentive Stock
Options are first exercisable with respect to any Participant under this Plan
and any Incentive Stock Options granted to the Participant for such year
under any plans of the Company or any Subsidiary in any calendar year is
$100,000. Payment of the option price shall be made in cash or in shares of
Common Stock, or a combination thereof, in accordance with the terms of the
Plan, the Grant Agreement, and of any applicable guidelines of the Committee
in effect at the time.
(b) Non-Qualified Stock Options - These are options to purchase Common
Stock which are not designated by the Committee as "Incentive Stock Options".
At the time of the Grant the Committee shall determine, and shall include in
the Grant Agreement or other Plan rules, the option exercise period, the
option price, and such other conditions or restrictions on the grant or
exercise of the option as the Committee deems appropriate, which may include
the requirement that the grant of options is predicated on the acquisition of
Purchase Shares under Paragraph 5(e) by the Optionee. In addition to other
restrictions contained in the Plan, an option granted under this Paragraph
5(b): (i) may not be exercised more than 10 years after the date it is
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granted and (ii) may not have an option exercise price less than the par
value of the Common Stock on the date the option is granted. Payment of the
option price shall be made in cash or in shares of Common Stock, or a
combination thereof, in accordance with the terms of the Plan, the Grant
Agreement and of any applicable guidelines of the Committee in effect at the
time.
(c) Stock Appreciation Rights - These are rights that on exercise
entitle the holder to receive the excess of (i) the Fair Market Value of a
share of Common Stock on the date of exercise over (ii) the Fair Market Value
on the date of Grant, multiplied by (iii) the number of rights exercised as
determined by the Committee. Stock Appreciation Rights granted under the
Plan may, but need not be, granted in conjunction with an Option under
Paragraph 5(a) or 5(b). The Committee, in the Grant Agreement or by other
Plan rules, may impose such conditions or restrictions on the exercise of
Stock Appreciation Rights as it deems appropriate, and may terminate, amend,
or suspend such Stock Appreciation Rights at any time. No Stock Appreciation
Right granted under this Plan may be exercised less than 6 months or more
than 10 years after the date it is granted except in the event of death or
disability of a Participant. To the extent that any Stock Appreciation Right
that shall have become exercisable, but shall not have been exercised or
cancelled or, by reason of any termination of employment, shall have become
non-exercisable, it shall be deemed to have been exercised automatically,
without any notice of exercise, on the last day on which it is exercisable,
provided that any conditions or limitations on its exercise are satisfied
(other than (i) notice of exercise and (ii) exercise or election to exercise
during the period prescribed) and the Stock Appreciation Right shall then
have value. Such exercise shall be deemed to specify that the holder elects
to receive cash and that such exercise of a Stock Appreciation Right shall be
effective as of the time of automatic exercise.
(d) Restricted Stock - Restricted Stock is Common Stock delivered to a
Participant with or without payment of consideration with restrictions or
conditions on the Participant's right to transfer or sell such stock;
provided that the price of any Restricted Stock delivered for consideration
and not as bonus stock may not be less than par value of Common Stock on the
date such Restricted Stock is granted or the price of such Restricted Stock
may be the par value. If a Participant irrevocably elects in writing in the
calendar year preceding a Grant of Restricted Stock, dividends paid on the
Restricted Stock granted may be paid in shares of Restricted Stock equal to
the cash dividend paid on Common Stock. The number of shares of Restricted
Stock and the restrictions or conditions on such shares shall be as the
Committee determines, in the Grant Agreement or by other Plan rules, and the
certificate for the Restricted Stock shall bear evidence of the restrictions
or conditions. No Restricted Stock may have a restriction period of less
than 6 months, other than in the case of death or disability.
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(e) Purchase Stock - Purchase Stock refers to shares of Common Stock
offered to a Participant at such price as determined by the Committee, the
acquisition of which will make him eligible to receive under the Plan,
including, but not limited to, Non-Qualified Stock Options; provided,
however, that the price of such Purchase Shares may not be less than the par
value of the Common Stock on the date such shares of Purchase Stock are
offered.
(f) Dividend Equivalent Rights - These are rights to receive cash
payments from the Company at the same time and in the same amount as any cash
dividends paid on an equal number of shares of Common Stock to shareholders
of record during the period such rights are effective. The Committee, in the
Grant Agreement or by other Plan rules, may impose such restrictions and
conditions on the Dividend Equivalent Rights, including the date such rights
will terminate, as it deems appropriate, and may terminate, amend, or suspend
such Dividend Equivalent Rights at any time.
(g) Performance Units - These are rights to receive at a specified
future date payment in cash of an amount equal to all or a portion of the
value of a unit granted by the Committee. At the time of the Grant, in the
Grant Agreement or by other Plan rules, the Committee must determine the Fair
Market Value of the unit, the performance factors applicable to the
determination of the ultimate payment value of the unit and the period over
which the Company's performance will be measured. These factors must include
a minimum performance standard for the Company below which no payment will be
made and a maximum performance level above which no increased payment will be
made. The term over which the Company's performance will be measured shall
be not less than six months.
(h) Performance Shares - These are rights to receive at a specified
future date payment in cash or Common Stock, as determined by the Committee,
of an amount equal to all or a portion of the average Fair Market Value for
all days that the Common Stock is traded during the last forty-five (45) days
of the specified period of performance of a specified number of shares of
Common Stock at the end of a specified period based on the Company's
performance during the period. At the time of the Grant, the Committee, in
the Grant Agreement or by Plan rules, will determine the factors which will
govern the portion of the rights so payable and the period over which the
Company's performance will be measured. The factors will be based on the
Company's performance and must include a minimum performance standard for the
Company below which no payment will be made and a maximum performance level
above which no increased payment will be made. The term over which the
Company's performance will be measured shall be not less than six months.
Performance Shares will be granted for no consideration.
-6-
<PAGE>
(i) Other Stock-Based Grants - The Committee may make other Grants
under the Plan pursuant to which shares of Common Stock (which may, but need
not, be shares of Restricted Stock pursuant to Paragraph 5(d)) or other
equity securities of the Company are or may in the future be acquired, or
Grants denominated in stock units, including ones valued using measures other
than market value. Other Stock-Based Grants may be granted with or without
consideration; provided, however, that the price of any such Grant made for
consideration that provides for the acquisition of shares of Common Stock or
other equity securities of the Company may not be less than the par value of
the Common Stock or such other equity securities on the date of such Grant.
Such Other Stock-Based Grants may be made alone, in addition to or in tandem
with any Grant of any type made under the Plan and must be consistent with
the purposes of the Plan.
6. Limitations and Conditions
--------------------------
(a) The number of Shares available for Grants under this Plan shall be
16,300,000 shares of the authorized Common Stock as of the effective date of
the Plan. Unless restricted by applicable law, Shares related to Grants that
are forfeited, terminated, cancelled or expire unexercised, shall immediately
become available for Grants.
(b) No Grants shall be made under the Plan beyond ten years after the
effective date of the Plan, but the terms of Grants made on or before the
expiration of the Plan may extend beyond such expiration. At the time a
Grant is made or amended or the terms or conditions of a Grant are changed,
the Committee may provide for limitations or conditions on such Grant.
(c) Nothing contained herein shall affect the right of the Company to
terminate any Participant's employment at any time or for any reason.
(d) Deferrals of Grant payouts may be provided for, at the sole
discretion of the Committee, in the Grant Agreements.
(e) Except as otherwise prescribed by the Committee, the amounts of the
Grants for any employee of a Subsidiary, along with interest, dividend, and
other expenses accrued on deferred Grants, shall be charged to the
Participant's employer during the period for which the Grant is made. If the
Participant is employed by more than one Subsidiary or by both the Company
and a Subsidiary during the period for which the Grant is made, the
Participant's Grant and related expenses will be allocated between the
companies employing the Participant in a manner prescribed by the Committee.
(f) Other than as specifically provided in the Form of Management
Stockholder's Agreement attached hereto as Exhibit A, with regard to the
death of a Participant, no benefit under the Plan shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
-7-
<PAGE>
encumbrance, or charge, and any attempt to do so shall be void. No such
benefit shall, prior to receipt thereof by the Participant, be in any manner
liable for or subject to the debts, contracts, liabilities, engagements, or
torts of the Participant.
(g) Participants shall not be, and shall not have any of the rights or
privileges of, stockholders of the Company in respect of any Shares
purchasable in connection with any Grant unless and until certificates
representing any such Shares have been issued by the Company to such
Participants.
(h) No election as to benefits or exercise of Stock Options, Stock
Appreciation Rights, or other rights may be made during a Participant's
lifetime by anyone other than the Participant except by a legal
representative appointed for or by the Participant.
(i) Absent express provisions to the contrary, any grant under this
Plan shall not be deemed compensation for purposes of computing benefits or
contributions under any retirement plan of the Company or its Subsidiaries
and shall not affect any benefits under any other benefit plan of any kind
now or subsequently in effect under which the availability or amount of
benefits is related to level of compensation. This Plan is not a "Retirement
Plan" or "Welfare Plan" under the Employee Retirement Income Security Act of
1974, as amended.
(j) Unless the Committee determines otherwise, no benefit or promise
under the Plan shall be secured by any specific assets of the Company or any
of its Subsidiaries, nor shall any assets of the Company or any of its
Subsidiaries be designated as attributable or allocated to the satisfaction
of the Company's obligations under the Plan.
7. Transfers and Leaves of Absence
-------------------------------
For purposes of the Plan, unless the Committee determines otherwise: (a)
a transfer of a Participant's employment without an intervening period of
separation among the Company and any Subsidiary shall not be deemed a
termination of employment, and (b) a Participant who is granted in writing a
leave of absence shall be deemed to have remained in the employ of the
Company during such leave of absence.
-8-
<PAGE>
8. Adjustments
-----------
(a) In the event of any change in the outstanding Common Stock by
reason of a stock split, spin-off, stock dividend, stock combination or
reclassification, recapitalization or merger, Change of Control, or similar
event, the Committee may adjust appropriately the number of Shares subject to
the Plan and available for or covered by Grants and Share prices related to
outstanding Grants and make such other revisions to outstanding Grants as it
deems are equitably required.
(b) In the event that the Participant's right to require the Company to
purchase his or her Shares or Options or the Company's right to require the
Participant to sell his or her Shares or Options, as provided in Sections 5
and 6, respectively, of the Form of Management Stockholder's Agreement
attached hereto as Exhibit A, or the Company's Right of First Refusal as
provided in Section 4 of the Form of Management Stockholder's Agreement,
gives rise to adverse accounting consequences to the Company in respect of
the treatment of Options granted pursuant to the Plan, the Committee may, in
its sole discretion, adjust the timing of the exercisability of such
outstanding Options to avoid such adverse accounting consequences.
9. Merger, Consolidation, Exchange,
Acquisition, Liquidation or Dissolution
---------------------------------------
In its absolute discretion, and on such terms and conditions as it deems
appropriate, coincident with or after the grant of any Stock Option or any
Stock-Based Grant, the Committee may provide that such Stock Option or Stock-
Based Grant cannot be exercised after the merger or consolidation of the
Company into another company, the exchange of all or substantially all of the
assets of the Company for the securities of another company, the acquisition
by another company of 80% or more of the Company's then outstanding shares of
voting stock or the recapitalization, reclassification, liquidation or
dissolution of the Company, and if the Committee so provides, it may, in its
absolute discretion and on such terms and conditions as it deems appropriate,
also provide, either by the terms of such Stock Option or Stock-Based Grant
or by a resolution adopted prior to the occurrence of such merger,
consolidation, exchange, acquisition, recapitalization, reclassification,
liquidation or dissolution, that, for some period of time prior to such
event, such Stock Option or Stock-Based Grant shall be exercisable as to all
shares subject thereto, notwithstanding anything to the contrary herein (but
subject to the provisions of Paragraph 6(b)) and that, upon the occurrence of
such event, such Stock Option or Stock-Based Grant shall terminate and be of
no further force or effect; provided, however, that the Committee may also
provide, in its absolute discretion, that even if the Stock Option or Stock-
Based Grant shall remain exercisable after any such event, from and after
such event, any such Stock Option or Stock-Based Grant shall be exercisable
only for the kind and amount of securities and/or other property, or the cash
-9-
<PAGE>
equivalent thereof, receivable as a result of such event by the holder of a
number of shares of stock for which such Stock Option or Stock-Based Grant
could have been exercised immediately prior to such event.
10. Amendment and Termination
-------------------------
The Committee shall have the authority to make such amendments to any
terms and conditions applicable to outstanding Grants as are consistent with
this Plan provided that, except for adjustments under Paragraph 8 or 9
hereof, no such action shall modify such Grant in a manner adverse to the
Participant without the Participant's consent except as such modification is
provided for or contemplated in the terms of the Grant.
The Board of Directors may amend, suspend or terminate the Plan except
that no such action, other than an action under Paragraph 8 or 9 hereof, may
be taken which would, without shareholder approval, increase the aggregate
number of Shares available for Grants under the Plan, decrease the price of
outstanding Options or Stock Appreciation Rights, change the requirements
relating to the Committee or extend the term of the Plan.
11. Foreign Options and Rights
--------------------------
The Committee may make Grants to Employees who are subject to the
laws of nations other than the United States, which Grants may have terms and
conditions that differ from the terms thereof as provided elsewhere in the
Plan for the purpose of complying with foreign laws.
12. Withholding Taxes
-----------------
The Company shall have the right to deduct from any cash payment made
under the Plan any federal, state or local income or other taxes required by
law to be withheld with respect to such payment. It shall be a condition to
the obligation of the Company to deliver shares upon the exercise of an
Option or Stock Appreciation Right, upon payment of Performance units or
shares, upon delivery of Restricted Stock or upon exercise, settlement or
payment of any Other Stock-Based Grant that the Participant pay to the
Company such amount as may be requested by the Company for the purpose of
satisfying any liability for such withholding taxes. Any Grant Agreement may
provide that the Participant may elect, in accordance with any conditions set
forth in such Grant Agreement, to pay a portion or all of such withholding
taxes in shares of Common Stock.
-10-
<PAGE>
13. Effective Date and Termination Dates
------------------------------------
The Plan shall be effective on and as of the date of its approval by the
stockholders of the Company and shall terminate ten years later, subject to
earlier termination by the Board of Directors pursuant to Paragraph 10.
-11-
Exhibit 5
Spalding Holdings Corporation
425 Meadow Street, P.O. Box 901
Chicopee, Massachusetts 01021-0901
February 25, 2000
Spalding Holdings Corporation
425 Meadow Street, P.O. Box 901
Chicopee, Massachusetts 01021-0901
Ladies and Gentlemen:
I am General Counsel for Spalding Holdings Corporation, a Delaware
corporation (the "Company"), and have advised the Company in connection with
the preparation and filing by the Company with the Securities and Exchange
Commission of a Registration Statement on Form S-8 under the Securities Act
of 1933, as amended, (the "Registration Statement"), which Registration
Statement constitutes Post-Effective Amendment No. 2 to Registration No.
333-20463, relating to the issuance by the Company of up to an additional
4,315,444 shares or options to acquire such shares, of the Company's Common
Stock, par value $.01 per share (collectively, the "Shares"), pursuant to the
Amended and Restated 1996 Stock Purchase and Option Plan for Key Employees of
Spalding Holdings Corporation and Subsidiaries (the "Plan").
I have reviewed the corporate action of the Company in connection with the
authorization of the issuance and sale of the Shares and have examined, and
have relied as to matters of fact, upon originals or copies, certified or
otherwise identified to my satisfaction, of such corporate records,
agreements, documents and other instruments and such certificates or
comparable documents or oral statements of public officials and of officers
and representatives of the Company, and have made such other and further
investigations as I have deemed relevant and necessary as a basis for the
opinions hereinafter set forth. In such examination, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or
photostatic copies, and the authenticity of the originals of such latter
documents.
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, I hereby advise you that in my opinion the issuance of the
<PAGE>
Shares has been duly authorized and, when issued and sold as contemplated by
the Plan, such Shares will be validly issued, fully paid and non-assessable.
I am a member of the Bar of the State of Connecticut and I do not express any
opinion herein concerning any law other than the federal laws of the United
States, the internal law of the law of the State of Connecticut and the
General Corporation Law of the State of Delaware.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without my prior written consent.
I hereby consent to the filing of this opinion of counsel as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Peter A. Arturi
Peter A. Arturi
General Counsel
PAA/njb
-2-
EXHIBIT 15
February 22, 2000
The Board of Directors
Spalding Holdings Corporation
Chicopee, Massachusetts
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
financial information of Spalding Holdings Corporation and subsidiaries for
the fiscal quarters ended April 3, 1999, July 3, 1999, and October 2, 1999,
as indicated in our reports dated May 6, 1999, August 6, 1999, and November
10, 1999 respectively; because we did not perform an audit, we expressed no
opinion on that information.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the fiscal quarters ended April 3, 1999,
July 3, 1999, and October 2, 1999 are being used in this Registration
Statement on Form S-8.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
/s/ Deloitte & Touche LLP
Hartford, Connecticut
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Spalding Holdings Corporation on Form S-8 of our reports dated November
12, 1998 and March 19, 1999, appearing in the Annual Report on Form 10-K of
Spalding Holdings Corporation for the fiscal year ended September 30, 1998
and the transition period October 1, 1998 through December 31, 1998,
respectively.
/s/ Deloitte & Touche LLP
Hartford, Connecticut
February 22, 2000
