SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-2
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
SWING-N-SLIDE CORP.
(Exact name of registrant as specified in its charter)
Delaware 36-3808989
(State of incorporation) (I.R.S. Employer
Identification No.)
1212 Barberry Drive
Janesville, WI 53545
(608) 755-4777
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Terence S. Malone
Chief Executive Officer
SWING-N-SLIDE CORP.
1212 Barberry Drive
Janesville, WI 54545
(608) 755-4777
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Joseph P. Hildebrandt, Esq.
Foley & Lardner
150 East Gilman Street
Madison, Wisconsin
53703
(608) 258-4232
____________________________
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration
Statement.
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, check the following box. [X]
If the registrant elects to deliver its latest annual report to
security holders or a complete and legible facsimile thereof, pursuant to
Item 11(a)(1) of this Form, check the following box. [_]
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. [_]
____________________________
CALCULATION OF REGISTRATION FEE
Proposed
Title of Each Proposed Maximum
Class of Offering Aggregate Amount of
Securities to Amount to be Price Offering Registration
be Registered Registered Per Security Price Fee(1)
Common Stock,
$.01 par 622,665
value Shares $4.015 $2,500,000 $758
(1) The registration fee was paid with the filing of the Registration
Statement and was based upon the proposed maximum aggregate
offering price of $2,500,000.
______________________
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
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
September 5, 1997
622,665 Shares
SWING-N-SLIDE
Common Stock, $.01 Par Value Per Share
The Company is the leading designer, manufacturer and marketer
of do-it-yourself wooden playground equipment. The Company's swing-sets,
climbing units, slides and accessories are sold nationwide through more
than 8,000 home center, building supply and hardware stores and in Mexico,
South America and Europe. The Company also offers the Tuff Kids line of
commercial playground systems targeted at churches, daycare centers, park
districts, campgrounds and housing developments. The Company recently
completed the acquisition of GameTime, Inc., a leading manufacturer of
modular and custom commercial outdoor playground equipment for schools,
parks and municipalities. As used herein, "Swing-N-Slide" refers to
Swing-N-Slide Corp., "Newco" refers to Swing-N-Slide's wholly-owned
subsidiary, Newco, Inc., and the "Company" refers to Swing-N-Slide and
Newco together.
Swing-N-Slide is hereby offering 622,665 shares (the "Maximum
Offering Number") of its Common Stock, $.01 par value per share ("Common
Stock"). During the 60-day subscription period commencing on the date
hereof, the shares will be offered exclusively to record holders of Swing-
N-Slide Common Stock as of August 25, 1997 (the "Record Date"), other than
GreenGrass Holdings (the "Other Stockholders"), on a pro rata basis.
Following the conclusion of such subscription period, any shares which are
not purchased by the Other Stockholders will be purchased by GreenGrass
Holdings, which is contractually obligated to purchase all such shares.
Each Other Stockholder is entitled to purchase his, her or its pro rata
portion of the Maximum Offering Number, determined by multiplying the
Maximum Offering Number by a percentage equal to the number of shares of
Common Stock owned by such Other Stockholder as of the Record Date,
divided by the total number of shares of Common Stock owned by all Other
Stockholders as of the Record Date; provided, that Swing-N-Slide will not
offer fractional shares, and the number of shares that each Other
Stockholder is entitled to purchase will be rounded down to the nearest
whole number. As of the Record Date, an aggregate of 2,427,694 shares of
Common Stock were owned by all Other Stockholders. Again, any shares
which are not purchased by Other Stockholders during the 60-day
subscription period, will be purchased by GreenGrass Holdings and will not
be re-offered to the Other Stockholders. See "Background of Offering"
and "Plan of Distribution."
Pursuant to a separate registration statement filed with
Securities and Exchange Commission, Swing-N-Slide currently anticipates
making an independent offering in the near future of $3,333,333 aggregate
principal amount of its 10% Convertible Debentures Due 2004 (the "Second
Series Debentures"). See "Risk Factors -- Controlling Interest in the
Company."
See "Risk Factors" on page 8 for a discussion of certain matters
that should be considered by prospective purchasers of the Common Stock
offered hereby.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Price Estimated Proceeds to
to Expenses (1) Swing-N-
Public Slide (1)
Per Share............ $4.015 $.128 $3.887
Total................ $2,500,000 $80,000 $2,420,000
(1) Expenses payable by Swing-N-Slide include registration, printing,
postage, legal and accounting fees and miscellaneous expenses. The
shares of Common Stock are being offered and sold directly by Swing-
N-Slide, and no commissions or other remuneration will be paid to any
person for soliciting purchases of the shares of Common Stock. The
expenses incurred in connection with this offering will be borne by
Swing-N-Slide, and 100% of the proceeds from the sale of shares of
Common Stock offered hereby, in the amount of $2,500,000, will be
used to prepay in full the principal outstanding under the Bridge
Note. See "Background of Offering."
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
This Prospectus is dated September 5, 1997.
<PAGE>
AVAILABLE INFORMATION
Swing-N-Slide is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by Swing-N-Slide can be inspected
and copied at the public reference facilities maintained by the Commission
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the Commission's Regional Offices located at Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois
60601-2511, and 13th Floor, 7 World Trade Center, New York, New York,
10048. Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C., at
prescribed rates. The Commission maintains a web site
(http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the Commission.
Swing-N-Slide's Common Stock is listed on the AMEX, and reports,
proxy statements and other information concerning Swing-N-Slide can be
inspected at the AMEX, 86 Trinity Place, New York, New York 10006.
Swing-N-Slide has filed with the Commission a Registration
Statement on Form S-2 ("Registration Statement") under the Securities Act
of 1933, as amended ("Securities Act"), with respect to the securities
offered hereby. This Prospectus does not contain all of the information
set forth in the Registration Statement and the exhibits and schedules
thereto. For further information with respect to Swing-N-Slide and such
securities, reference is hereby made to such Registration Statement,
exhibits and schedules. Statements contained in this Prospectus
concerning the provisions of any document are not necessarily complete,
and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with
the Commission. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Swing-N-Slide that have been filed
with the Commission pursuant to the Exchange Act are hereby incorporated
by reference in this Prospectus: (a) Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997; (b) Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 (the "Recent Form 10-Q"); (c) Annual Report on
Form 10-K for the fiscal year ended December 31, 1996 (the "Form 10-K");
and (d) Current Report on Form 8-K filed March 13, 1997, as amended by
Amendment No. 1 on Form 8-K/A filed May 6, 1997 (as amended, the "Form 8-
K"). Copies of the Recent Form 10-Q, the Form 10-K and the Form 8-K are
being delivered, together with this Prospectus, to each offeree hereunder.
All documents filed by Swing-N-Slide pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act subsequent to the date of this
Prospectus are hereby incorporated by reference in this Prospectus and
shall be deemed a part hereof from the date of filing of such documents.
Any statement or information contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed modified or
superseded for the purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document that also
is or is deemed to be incorporated herein by reference modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
Swing-N-Slide will provide without charge to any person to whom
a Prospectus is delivered, on written or oral request of such person, a
copy of any or all documents incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents). Requests
should be directed to: Richard E. Ruegger, Vice President, Swing-N-Slide
Corp., 1212 Barberry Drive, Janesville, Wisconsin 53545, phone number
(608) 755-4777.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more
detailed information and consolidated financial statements (including the
notes thereto) appearing elsewhere in this Prospectus and in the documents
incorporated by reference in this Prospectus. As used in this Prospectus,
"Swing-N-Slide" refers to Swing-N-Slide Corp., "Newco" refers to Swing-N-
Slide's wholly-owned subsidiary, Newco, Inc., and the "Company" refers to
Swing-N-Slide and Newco together.
THE COMPANY
The Company is the leading designer, manufacturer and marketer
of do-it-yourself, wooden home playground equipment. Its core product
group--kits for wooden swing sets and climbing units, plastic slides and
related accessories--is sold nationwide through over 8,000 home center,
building supply and hardware stores and in Mexico, South America and
Europe. The Company also offers the Tuff Kids line of commercial
playground systems targeted at churches, daycare centers, park districts,
campgrounds and housing developments. The Company recently completed the
acquisition of GameTime, Inc., a leading manufacturer of modular and
custom commercial outdoor playground equipment for schools, parks and
municipalities. The mailing address of the Company's principal executive
offices is Swing-N-Slide Corp., 1212 Barberry Drive, Janesville, Wisconsin
53545, and its telephone number is (608) 755-4777.
THE OFFERING
Securities Offered 622,665 shares (the "Maximum Offering Number")
of Swing-N-Slide Common Stock, $.01 par value per
share. Each stockholder of Swing-N-Slide other
than GreenGrass Holdings (the "Other
Stockholders") is entitled to purchase up to his,
her or its pro rata portion of the Maximum
Offering Number, determined by multiplying the
Maximum Offering Number by a percentage equal to
the number of shares of Common Stock owned by such
Other Stockholder as of August 25, 1997 (the
"Record Date"), divided by the total number of
shares of Common Stock owned by all Other
Stockholders as of the Record Date (rounded down
to the nearest whole number of shares). Any
shares which are not purchased by the Other
Stockholders will be purchased by GreenGrass
Holdings, which is contractually obligated to
purchase all such shares.
Common Stock to be
Outstanding Immediately
After the Offering 7,871,995(1)
Plan of Distribution The subscription period commences on the date of
this Prospectus and shall remain open until
November 5, 1997 (the "Expiration Date"). Each
Other Stockholder who wishes to purchase shares
must submit to the Subscription Agent, by 5:00
p.m. Central Time on the Expiration Date, a
Subscription Agreement indicating the number of
shares to be purchased together with payment in
full of the applicable purchase price. Upon the
expiration of the subscription period, any shares
not purchased by the Other Stockholders will be
purchased by GreenGrass.
Use of Proceeds The proceeds from the sale of shares of Common
Stock offered hereby will be used to prepay in
full the principal outstanding under the Bridge
Note. See "Background of Offering."
AMEX Symbol SWG
__________________________
(1) Includes 7,249,330 shares presently outstanding, 622,665
shares offered hereby. Excludes 3,600,000 shares that are held
by Swing-N-Slide as treasury shares; 50,000 shares underlying a
warrant held by GreenGrass Holdings; excludes up to maximum of
56,740 shares that GreenGrass Holdings will receive as interest
on the Bridge Note at maturity assuming a maturity date of
November 10, 1997; excludes 592,177 shares underlying warrants
held by Massachusetts Mutual Life Insurance Company and
affiliates; excludes $5,000,000 principal amount of First Series
Debentures (defined below) owned by GreenGrass Holdings
convertible into approximately 1,041,667 shares of Common Stock,
$587,787.97 principal amount of interest Debentures paid with
respect thereto on April 15, 1996, October 15, 1996, and April 15,
1997 (of which $572,938.37 principal amount is held by GreenGrass
Holdings and $9,899.69 and $4,949.91 are held by two former
members of GreenGrass Management, LLC, one of the general
partners of GreenGrass Holdings), convertible into approximately
122,456 shares, and up to $1,100,381.35 principal amount of
interest Debentures payable thereon with respect to the period
from April 16, 1997 through February 15, 1999, convertible into
approximately 229,247 shares; excludes $3,333,333 principal
amount of Second Series Debentures (defined below) to be offered
to Swing-N-Slide stockholders other than GreenGrass Holdings,
convertible into approximately 709,220 shares, and up to
$419,907.05 principal amount of interest Debentures payable
thereon (with respect to the period from December 1, 1997, an
assumed issuance date, through February 15, 1999), convertible
into approximately 89,342 shares; excludes 448,414 shares
issuable upon the exercise of stock options granted under the
Swing-N-Slide Corp. 1992 Stock Program; excludes 838,000 shares
issuable upon the exercise of stock options granted under the
Swing-N-Slide Corp. 1996 Incentive Stock Plan; excludes 362,000
shares available for future grants of awards and options under
the Swing-N-Slide Corp. 1996 Incentive Stock Plan. See "Risk
Factors -- Possible Dilution of Ownership Interest,"
"Capitalization" and "Background of Offering."
RISK FACTORS
In addition to the other information in this Prospectus, the
following factors should be considered carefully in evaluating an
investment in the shares of Common Stock offered by this Prospectus.
Decreasing Sales
Sales declined during the 1996 fiscal year to $41.9 million from
$45.1 million in 1995. Sales in the first quarter of 1997 increased from
$9.6 million for the three months ended March 31, 1996 to $10.8 million
for the three months ended March 31, 1997. Sales in the second quarter of
1997 increased from $19.2 million for the three months ended June 30, 1996
to $34.9 million for the three months ended June 30, 1997. The primary
reason for the increase in sales for 1997 is the inclusion of the sales of
the Company's GameTime division subsequent to the March 13, 1997
acquisition. Sales for the Company's Swing-N-Slide division decreased
$0.8 million for the three months ended March 31, 1997 as compared to the
same period for the prior year. Similarly, sales for the Swing-N-Slide
division decreased $0.7 million for the three months ended June 30, 1997
as compared to the same period a year ago. Among the factors which
contributed to this decline in sales were changes in timing of customer
orders, including ordering closer to the retail season, and increased
competition among retailers in the backyard playground equipment industry,
resulting in a net loss to the Company of approximately 300 outlets during
1996. Some of these outlet losses resulted purely from a product offering
standpoint, as home center chains sought to differentiate themselves from
rival chains by stocking a competing product. The Company's market share
leadership made it more vulnerable to this type of strategy. In addition,
the slide market remained highly competitive with no short-term
improvement in pricing expected for the more commodity-type models. The
home center industry itself also experienced a difficult year in 1996 and
continues to focus on reducing retail inventories of all products,
including backyard playground equipment. Each year customer programs are
negotiated for the upcoming selling season. Poor weather in 1997,
particularly during the critical spring selling season, also contributed
to decreased sales. The Company expects the market for home playground
equipment to remain highly competitive.
Controlling Interest in the Company
GreenGrass Holdings, a Delaware general partnership
("GreenGrass"), which is owned in part by members of the Company's
management, owns approximately 66% (or approximately 71% if GreenGrass
converted all $5,572,938.37 principal amount of its First Series
Debentures, as defined below, into Common Stock) of the outstanding Common
Stock of Swing-N-Slide and is able to elect each member of Swing-N-Slide's
Board of Directors. As a result, GreenGrass is able to control
substantially all decisions made by the Company, with certain exceptions
established by the Transaction Agreement (as defined below).
Under the terms of a Transaction Agreement dated January 4,
1996, as amended February 12, 1996 (the "Transaction Agreement"),
GreenGrass purchased 3,510,000 shares of Common Stock of Swing-N-Slide
tendered under GreenGrass' $6.50 per share cash tender offer which expired
on February 14, 1996. In addition, pursuant to the Transaction Agreement,
GreenGrass purchased on February 16, 1996, $4,300,000 principal amount of
Swing-N-Slide's 10% Convertible Debentures Due 2004, and on April 25,
1996, purchased an additional $700,000 principal amount of debentures
(collectively, the "First Series Debentures"). The debentures are
convertible into shares of Common Stock at a conversion price of $4.80 per
share (subject to customary antidilution adjustments). Pursuant to the
terms of the Transaction Agreement, Swing-N-Slide intends to offer to
stockholders of Swing-N-Slide other than GreenGrass the right to purchase
their pro rata share of $3,333,333 aggregate principal amount of 10%
Convertible Subordinated Debentures Due 2004 (the "Second Series
Debentures"). Pursuant to the terms of an Indenture to be entered into
by the Company (the "Indenture"), the Second Series Debentures shall be
convertible into shares of Common Stock at a conversion price of $4.70
per share, and otherwise possess terms which are substantially similar to
those of the First Series Debentures.
Competition
The markets for both home playground equipment and commercial
park and playground equipment are highly competitive. While the Company's
Swing-N-Slide division faces competition from manufacturers of metal
swingsets and pre-cut and custom built wood kits, the Company's GameTime
division faces competition from manufacturers of commercial playground
equipment. With respect to home playground equipment, Hedstrom
Corporation is a major manufacturer and marketer of metal gym sets,
plastic and metal slides and accessories. Hedstrom Corporation also
manufactures and sells a competing line of wooden swingset and climbing
unit kits. Several other manufacturers also market kit products which are
similar to the Company's kits. With respect to commercial park and
playground equipment, the three largest competitors of the Company's
GameTime division are Miracle Recreation Equipment Co., Landscape
Structures Inc. and Little Tikes Commercial Play Systems Inc., a unit of
Rubbermaid, Inc., each of which has nationwide distribution.
The Company's Swing-N-Slide division competes on the basis of
design, a complete merchandising program, quality, timeliness of delivery,
service, price, packaging and brand name recognition. The Company
believes that its design capabilities, complete merchandising program and
reputation for delivery enable it to compete effectively. The Company's
reputation as a pioneer in the market has also been an important element
of its successful operations. Meanwhile, the Company's GameTime division
competes on the basis of product design, price, safety representative
design systems, and unique product characteristics. Although there are no
significant technological or manufacturing barriers to entering into the
home or commercial playground equipment business, factors such as brand
recognition, the Company's established relationship with its home center
and building supply retailers, its quality assurance program and its
GameTime sales representative organization may discourage new competitors
from entering the business. There can be no assurance, however, that the
Company will be able to maintain all of its competitive advantages and
other companies in the industry may succeed in acquiring market share at
the expense of the Company.
Reliance on Certain Customers
Product sales of the Company's Swing-N-Slide division are highly
concentrated. One customer, Lowe's, accounted for 13%, 16% and 22% of the
Company's net sales during 1994, 1995 and 1996, respectively. Sales to
another customer, Menard's, were 9%, 11% and 16% of net sales in 1994,
1995 and 1996, respectively. The Company's top five customers accounted
for 60% of total net sales in 1996. The loss of significant customers in
the Swing-N-Slide division, such as Lowe's or Menard's, or a significant
decline in the amount of business from such customers, could have a
material adverse effect on the Company. Product sales of the Company's
GameTime division are more diverse, with no single customer accounting for
more than 2% of its net sales in 1996.
Seasonality
The Company's sales pattern for home playground equipment is
highly seasonal, and the bulk of the Company's sales take place during the
spring and early summer months, the peak selling season. During fiscal
years 1994, 1995 and 1996, approximately 80%, 74% and 69%, respectively,
of the Company's net sales occurred between January 1 and June 30.
Unseasonably cool or rainy weather during the spring and early summer
months adversely affects the Company's ability to make sales during this
peak selling season. Sales that are not completed during this season are
generally not recovered later in the year. During the first half of 1997,
the Company's sales volume suffered, partially as the result of poor
weather.
In contrast, the sales pattern for commercial park and
playground equipment produced by the Company's GameTime division is
subject to somewhat less seasonality. Revenues generally peak between
June and August and reach lows in January and February. During fiscal
years 1994, 1995 and 1996, approximately 59%, 61% and 61%, respectively,
of GameTime's net sales occurred between April 1 and September 30.
Reliance on Expansion and Acquisitions Beyond Historical Core Product
Group
The Company is attempting to pursue an aggressive growth
strategy, the success of which will depend in part upon its ability to
successfully expand beyond its historical core product group of do-it-
yourself wooden swingset and climbing unit kits for the backyard. The
Company has embarked upon a strategy to become one of the largest
manufacturers and marketers of large scale play equipment for all
environments, including (1) commercial products of indoor and outdoor use
in several venues, (2) consumer playground equipment that includes pre-cut
wood and other materials, (3) new product categories that can be marketed
through existing retailers, and (4) expanding international markets. As
part of its growth strategy, the Company acquired GameTime on March 13,
1997, and intends to pursue acquisitions of other companies as
appropriate.
The Company has incurred and may incur further significant costs
and indebtedness in connection with these initiatives. There can be no
assurance that the Company will achieve its planned expansion goals,
manage its growth effectively, or continue to operate its historical core
business profitably. The failure of the Company to achieve its expansion
goals on a timely basis, manage its growth effectively or continue to
operate its historical core business profitably would have a material
adverse effect on the Company's business, financial condition and results
of operation.
Price Volatility of Lumber and Resin
Since assembly of the Company's do-it-yourself kits requires
lumber, retail prices of the complete kit package with lumber vary with
the price of lumber. Lumber prices have shown volatility over the past
few years. A substantial increase in lumber prices could cause the
Company's products to have less market acceptance or result in significant
price erosion which will have a material adverse effect on the Company's
profitability. In addition, because almost all of the Company's Swing-N-
Slide division sales are made to retailers which appeal to do-it-yourself
consumers, changes in economic activity which impact such retailers may
also have an impact on the Company's sales.
Costs of polyethylene resin, a key component in the sheet
plastic which represents approximately 70% of the cost of producing a
slide, have increased substantially in recent years due to severe resin
industry capacity constraints and increased demand. These increased costs
have adversely affected the Company's margins since the Company has not
been able to pass such price increases on to its customers. While the
Company has responded by improving the efficiency of its processes and by
redesigning its products to reduce its use of resin in its plastic
products, there can be no assurance that market prices of polyethylene
resin and sheet plastic will not continue to have an adverse affect on the
Company's margins. While the risk is heightened by the need for
additional polyethylene resin for the newly acquired GameTime division,
the Company will attempt to use its increased purchasing volume to
negotiate favorable terms where possible.
Backlog
The Company's Swing-N-Slide division does not generally have a
meaningful backlog of orders, and the division's backlog as of any given
date is not a meaningful measure because, even during peak periods, orders
will generally be filled three business days from receipt of the order.
The Company's GameTime division has a normal backlog of four to six weeks
approximating 10-15% of its sales.
Dependence Upon Key Personnel
The Company is highly dependent upon the efforts and abilities
of the Company's senior management team. The loss of the services of Mr.
Mueller, or all or part of the Company's senior management team, could, if
competent replacements for such individuals were not located, have a
material adverse effect on the Company's business, financial condition or
results of operations. Effective September 2, 1997, Richard G. Mueller
resigned as the Company's President and Chief Executive Officer. Terence
S. Malone is currently serving as interim Chief Executive Officer until a
successor for Mr. Mueller is named. See "Recent Developments." The future
success of the Company will depend to a significant degree upon the efforts
and abilities of the interim and then the successor Chief Executive
Officer.
Declining Stock Price
Swing-N-Slide's stock has been traded on the AMEX since August
10, 1995, under the symbol "SWG." From July 6, 1995 to August 9, 1995,
the stock was traded on the over-the-counter market and prior to July 6,
1995, the stock was traded on the NASDAQ National Market System. Set
forth below for the calendar quarters indicated are the high and low
closing prices:
1994 1995 1996 1997
high low high low high low high low
Q1 13 9 1/2 8 7/8 3 3/4 5 9/16 3 1/2 5 1/2 3 1/8
Q2 11 9 1/2 5 1/4 3 1/4 4 1/8 3 7/16 4 3/8 3 9/16
Q3 10 1/4 8 1/4 4 13/16 3 5/8 3 1/2 2 1/2 4 15/16* 3 3/4*
Q4 9 1/2 7 3/4 4 15/16 3 1/2 3 3/8 2 5/8 N/A N/A
* Through September 4, 1997.
The per share price of Swing-N-Slide's stock has generally declined since
1994 and there can be no assurance that this general trend will be
significantly reversed at any time in the foreseeable future.
Holding Company Structure
Swing-N-Slide derives substantially all of its revenues from the
operations of its wholly-owned subsidiary, Newco. The ability of Swing-N-
Slide to pay dividends, if any, on the Common Stock will be primarily
dependent on receipt of dividends or other distributions from Newco.
Payment of dividends from Newco to Swing-N-Slide are subject to statutory
or contractual restrictions and are contingent upon the earnings of Newco.
In particular, Newco is subject to a number of restrictions
contained in that certain Credit Agreement dated as of March 13, 1997,
between Newco and certain lenders, including Fleet National Bank (the
"Credit Agreement"). Under the terms of the Credit Agreement, Newco
obtained debt financing in the aggregate amount of $69.5 million, of
which $20.0 million comprised a senior secured revolving credit facility,
$45.0 million comprised a senior secured Term Loan A facility, and $4.5
million comprised a senior secured Term Loan B facility. The Credit
Agreement restricts Newco's ability to incur additional indebtedness, pay
cash dividends or make other distributions, issue capital stock, and sell
assets and requires Newco to maintain certain financial ratios. In
addition, the Credit Agreement requires that certain prepayments with
respect to the Term Loan A facility and Term Loan B facility be made
quarterly beginning June 30, 1997. The Credit Agreement also restricts
Swing-N-Slide's activities, and provides that Swing-N-Slide and Newco
shall not substantially engage in any business other than children's
consumer and commercial indoor and outdoor play products, new products
that utilize their metal fabrication or plastic forming core competencies,
or substantially similar products that may be sold through home centers,
mass merchants or commercial and industrial trade classes.
In addition, Newco is subject to a number of restrictions
contained in those certain Securities Purchase Agreements dated as of
March 13, 1997, among Newco, Swing-N-Slide and Massachusetts Mutual Life
Insurance Company ("MassMutual") and certain of its affiliates
(collectively, the "MassMutual Agreements"). Under the terms of the
MassMutual Agreements, Newco obtained $12.5 million of debt financing from
MassMutual and its affiliates by issuing its 12% Senior Subordinated Notes
due 2005 (the "MassMutual Notes"). As part of such debt financing,
MassMutual and its affiliates received warrants to purchase up to an
aggregate of 592,177 shares of Swing-N-Slide's Common Stock (subject to
adjustment) at an exercise price of $.001 per share. The MassMutual
Agreements require Newco to maintain certain financial ratios and to make
certain prepayments of the principal amount of the MassMutual Notes
commencing in September, 2002. Further, the MassMutual Agreements
restrict Newco's ability to incur additional indebtedness, incur liens,
pay cash dividends or make other distributions, issue capital stock, sell
assets, and enter into certain other transactions.
Substantial Indebtedness
The Company has indebtedness that is substantial in relation to
its Stockholders' Equity. See "Capitalization." The Credit Agreement
imposes significant operating and financial restrictions on the Company.
See "Risk Factors--Holding Company Structure." Such restrictions will
affect, and in many respects significantly limit or prohibit, among other
things, the ability of the Company to incur additional indebtedness to pay
dividends. These restrictions, in combination with the leveraged nature
of the Company, could limit the ability of the Company to effect future
financing or otherwise may restrict corporate activities.
The Company's high degree of leverage could have important
consequences to the holders of the Common Stock, including the following:
(1) the Company's ability to obtain additional financing for working
capital, capital expenditures, acquisitions, general corporate and other
purposes may be impaired in the future; (2) a substantial portion of the
Company's cash flow from operations must be dedicated to the payment of
principal and interest on its indebtedness, thereby reducing the funds
available to the Company for other purposes; (3) the Company's substantial
degree of leverage may hinder its ability to adjust rapidly to changing
market conditions; and (4) the Company's indebtedness could make it more
vulnerable in the event of a downturn in general economic conditions or
its business.
Stockholders' Suit
Swing-N-Slide has been named as a defendant in the proceeding
Robert Barbieri v. Swing-N-Slide Corp., Thomas R. Baer, Richard G.
Mueller, Andrew W. Code, James M. Dodson, Peter M. Gotsch, Terence S.
Malone, Henry B. Pearsall and Brian P. Simmons, GreenGrass and GreenGrass
Management, LLC (the "Civil Action"). The complaint alleges that Swing-N-
Slide's tender offer for 3.5 million of outstanding shares of Common
Stock, which was completed in January 1995, was the result of a deceptive
and manipulative plan on the part of the individual defendants to enrich
themselves. The plaintiff also challenges on similar grounds the purchase
by GreenGrass of approximately 3.6 million shares of Common Stock pursuant
to a tender offer in February 1996. The plaintiffs were granted
certification of the two classes of stockholders consisting of all
stockholders other than the defendants at November 14, 1994 or at March
15, 1995. The relief sought includes the imposition of a constructive
trust on all proceeds of the repurchase received by the defendants as well
as various non-monetary forms of relief. The parties have conducted
discovery. While Swing-N-Slide intends to vigorously defend the claims
and believes it has substantial defenses to all the claims, there can be
no assurance that resolution of the claims will not have a material
adverse effect on the financial condition or results of operations of the
Company.
Product Liability Claims
Due to the nature of its business, the Company, at any
particular time, is subject to a number of product liability claims for
personal injuries allegedly related to its products. The Company has to
date been successful in defending or settling such claims. Thus far, no
such claims have resulted in any material payments on account of defending
or settling such claims. The Company's products are designed to meet the
applicable safety guidelines of the American Society for Testing and
Materials ("ASTM Guidelines"). Several of the Company's products are new,
however, and the claims experience with such products cannot be predicted.
Although the Company maintains product liability insurance at coverage
levels which it believes are adequate, there can be no assurance that the
Company will not incur substantial liability for product liability claims
or that insurance will provide adequate coverage against such liability.
Environmental Matters
The Company is subject to the environmental laws and regulations
of the United States, the State of Wisconsin, and the State of Alabama as
well as local ordinances. The Company has established procedures for
maintaining environmental law compliance, including procedures for the
disposal of limited quantities of hazardous waste, with the United States
Environmental Protection Agency ("EPA") licensed haulers and recyclers.
The Company also incurs ongoing costs monitoring compliance with
environmental laws and in connection with disposal of waste materials.
Environmental laws imposed by the EPA and state officials nationwide are
becoming more stringent and may result in higher costs for the Company and
its competitors. While liabilities for environmental compliance and waste
disposal have not been material to the Company in the past, there can be
no assurance that the Company will not incur substantial liability with
respect to environmental law compliance in the future.
No Dividends
There have been no dividends paid to stockholders since the
inception of Swing-N-Slide in January, 1992. The Credit Agreement
restricts the ability of Newco, Swing-N-Slide's operating subsidiary, to
pay dividends to Swing-N-Slide.
Possible Dilution of Ownership Interest
There are presently outstanding 7,249,330 shares of the
Company's Common Stock. In addition to the 622,665 shares offered
hereby, the Company has reserved a substantial number of shares of Common
Stock for future issuances for various purposes, as discussed below.
Pursuant to the terms of the Transaction Agreement, Swing-N-
Slide intends to offer to stockholders of Swing-N-Slide other than
GreenGrass the right to purchase their pro rata share of $3,333,333
aggregate principal amount of Second Series Debentures. The Second Series
Debentures are convertible into shares of Common Stock at a conversion
price of $4.70 per share, and otherwise possess terms which are
substantially similar to those of the First Series Debentures.
Upon the completion of this Offering, GreenGrass is
contractually obligated to purchase shares of Common Stock offered
hereunder which are not purchased by the stockholders of Swing-N-Slide
other than GreenGrass, if any. As a result, stockholders who do not elect
to purchase their pro rata portion of the shares of Common Stock offered
hereunder in full will realize a dilution in their voting rights in Swing-
N-Slide and percentage interests in future net earnings, if any, of the
Company. See "Background of Offering" and "Risk Factors--Controlling
Interest in the Company."
In addition, stockholders may realize a dilution in their voting
rights in Swing-N-Slide and percentage interests in future net earnings,
if any, of the Company as a result of: (i) the issuance to GreenGrass of
50,000 shares underlying a warrant held by GreenGrass; (ii) the issuance
to GreenGrass of up to 56,740 shares as interest on the Bridge Note at
maturity assuming a maturity date of November 10, 1997; (iii) the issuance
to MassMutual and certain of its affiliates of up to 592,177 shares
(subject to adjustment) underlying warrants held by such entities; (iv)
the issuance to GreenGrass of approximately 1,041,667 shares in the event
of conversion of its $5,000,000 principal amount of First Series Debentures;
(v) the issuance to GreenGrass of approximately 119,362 shares in the event
of conversion of its $572,938.37 principal amount of interest Debentures
held by it, and up to approximately 228,637 shares in the event of
conversion of up to $1,097,457.06 principal amount of interest Debentures
hereafter payable to GreenGrass; (vi) the issuance to two former members
of GreenGrass Management, LLC, one of the general partners of GreenGrass
Holdings, of an aggregate of approximately 3,094 shares in the event of
conversion of their $14,849.60 aggregate principal amount of interest
Debentures held by them, and up to approximately 610 shares in the event
of conversion of up to $2,924.29 aggregate principal amount of interest
Debentures hereafter payable to them; (vii) the issuance to holders of
Second Series Debentures of up to 709,220 shares in the event of conversion
of $3,333,333 principal amount of Second Series Debentures, and up to
approximately 89,342 shares in the event of conversion of up to $419,907.05
principal amount of interest Debentures payable thereon (assuming
December 1, 1997 issuance of $3,333,333 principal amount of Second Series
Debentures); (viii) the issuance of up to 448,414 shares issuable upon the
exercise of stock options granted under the Swing-N-Slide Corp. 1992 Stock
Program; (ix) the issuance of up to 838,000 shares issuable upon the
exercise of stock options granted under the Swing-N-Slide Corp. 1996
Incentive Stock Plan; (x) the issuance of up to 362,000 shares available
for future grants of awards and options under the Swing-N-Slide Corp. 1996
Incentive Stock Plan; and (xi) the issuance of shares as part of any
future acquisitions in connection with the pursuit of the Company's
aggressive growth strategy. See "Capitalization," "Background of
Offering" and "Risk Factors -- Reliance on Expansion and Acquisitions
Beyond Historical Core Product Group."
RECENT DEVELOPMENTS
On March 13, 1997, the Company completed the acquisition of
GameTime, Inc., a leading manufacturer of modular and custom commercial
outdoor playground equipment for schools, parks and municipalities. On
that date, Newco acquired all of the issued and outstanding shares of
GameTime capital stock for $27.0 million and the assumption of GameTime
indebtedness of approximately $13.4 million. Immediately following the
acquisition, GameTime was merged with and into Newco. To provide
financing for this acquisition, to refinance certain indebtedness of
Swing-N-Slide, Newco and GameTime, and to provide funds for working
capital purposes, Swing-N-Slide and Newco entered into certain definitive
agreements, referenced below.
On March 13, 1997, a group of banks led by Fleet National Bank
provided Newco with a $69.5 million senior secured credit facility. The
facility consists of (a) a $20.0 million revolving credit facility (of
which $12.7 million was drawn on March 13, 1997); (b) a $45.0 million Term
Loan A facility; and (c) a $4.5 million Term Loan B facility. The entire
facility is guaranteed by Swing-N-Slide, and secured by a first priority
mortgage or security interest in all of Newco's tangible and intangible
assets, as well as a pledge of 100% of the outstanding shares of Newco
common stock. In addition, Newco is subject to certain restrictive
covenants which include, among other things, restrictions on the payment
of dividends or issuance of capital stock and a limitation on additional
indebtedness.
On March 13, 1997, Swing-N-Slide and Newco entered into
Securities Purchase Agreements with Massachusetts Mutual Life Insurance
Company and certain of its affiliates, pursuant to which Swing-N-Slide
sold warrants (the "MassMutual Warrants") evidencing rights to purchase an
aggregate of 592,177 shares of its Common Stock (subject to adjustment),
and Newco sold its 12% Senior Subordinated Notes due March 13, 2005 (the
"MassMutual Notes"), in the aggregate principal amount of $12,500,000.
The MassMutual Warrants are exercisable at any time during the period
commencing March 13, 1997, and terminating on the later of March 13, 2003,
or the date upon which all of the MassMutual Notes have been paid in full,
at an exercise price of $.001 per share (subject to adjustment).
On March 13, 1997, Swing-N-Slide entered into an Investment
Agreement with GreenGrass Holdings pursuant to which Swing-N-Slide sold to
GreenGrass Holdings 1,087,406 shares (subject to adjustment) of its Common
Stock for an aggregate purchase price of $5,000,000, or a per share
purchase price of $4.5981, and sold its Junior Subordinated Bridge Note in
the principal amount of $2,500,000 (the "Bridge Note"), due not later than
December 31, 1997 (subject to prepayment), bearing interest at a rate of
13.5% per annum, and accompanied by ten-year warrants to purchase 50,000
shares of such stock, at a per share purchase price of $4.5981 (subject to
adjustment). Pursuant to the terms of the Investment Agreement, and based
on fluctuations in the market price of the Company's Common Stock on the
AMEX during the 150-day period following the public announcement of the
GameTime acquisition, effective August 13, 1997, the number of shares
issued to GreenGrass was adjusted and increased from 1,087,406 to
1,245,330. As a result of such adjustment, the price per share paid by
GreenGrass for the 1,245,330 shares received was in effect fixed at
$4.015 per share. Swing-N-Slide will use the proceeds of the sale of
shares of Common Stock in this offering to prepay in full the principal
outstanding under the Bridge Note.
For further information on the GameTime acquisition, including
copies of GameTime's audited financial statements, see the Form 8-K, a
copy of which accompanies this Prospectus.
On September 2, 1997, Richard G. Mueller resigned as Chairman,
President and Chief Executive Officer of the Company. Terence S. Malone,
a Company director since September 1992, and former Chairman and Chief
Executive Officer of Johnson Worldwide Associates, Inc. (international
manufacturer and marketer of outdoor recreational products) will serve
as the Chief Executive Officer of the Company until a successor
for Mr. Mueller is named.
USE OF PROCEEDS
The proceeds from the sale of shares of Common Stock offered
hereby will be used to prepay in full the principal outstanding under the
$2,500,000 Junior Subordinated Bridge Note dated March 13, 1997 (the
"Bridge Note"). The Bridge Note bears interest at the rate of 13.5% per
annum, and matures on the earlier of December 31, 1997, or such time as
the Company has received the proceeds from the sale of shares pursuant to
this offering. The proceeds of the Bridge Note comprised a part of the
funds used by the Company to provide financing for the GameTime
acquisition, to refinance certain indebtedness of the Company, and to
provide funds for working capital purposes. See "Background of Offering."
The Company will bear the cost of expenses incurred in
connection with the offering hereby, including registration, printing,
postage, legal and accounting fees and miscellaneous expenses, estimated
to be approximately $80,000.
CAPITALIZATION
The following table sets forth the historical capitalization of
the Company as of June 30, 1997, and as adjusted to give effect to the
issuance and sale of 622,665 shares of Common Stock offered by
Swing-N-Slide hereby.
June 30, 1997
Actual As Adjusted (1)
(in thousands)
Short-term debt:
Revolving loan $12,320 $12,320
Current portion of long-term debt 4,761 4,761
Bridge Note 2,500 0 (2)
Long-term obligations:
Long-term debt, net of current portion 56,266 56,266
10% Convertible Debentures due 2004 5,588(3) 5,588(3)
Stockholders' equity:
Preferred stock, $.01 par value -
5,000,000 shares authorized, no shares
issued or outstanding ----- -----
Common Stock, $.01 par
value - 25,000,000 shares authorized,
7,091,406 shares outstanding (5) 107 115(5)
Class B Common Stock, $.01 par value
- 1,750,000 shares authorized, no shares
issued or outstanding ----- -----
Additional paid-in capital 32,185 34,597(7)
Paid-in capital -- stock warrants 2,723 2,723
Excess purchase price over predecessor
basis (5,627) (5,627)
Retained earnings 22,171 22,171
Cost of 3,600,000 shares of common
stock in treasury (40,348) (40,348)
Total stockholders' equity 11,211 13,631
_________________________
1 As adjusted for the proceeds from the issuance of 622,665
shares of Common Stock pursuant to this Offer as of June 30, 1997.
2 The expenses incurred in connection with this offering will
be borne by Swing-N-Slide, and 100% of the proceeds from the sale of
shares of Common Stock offered hereby, in the amount of $2,500,000, will
be used to prepay in full the principal outstanding under the Bridge Note.
3 This amount represents $4,300,000 and $700,000 in First
Series Debentures issued to GreenGrass on February 16, 1996, and April 25,
1996, respectively, and an aggregate of $587,787 in First Series
Debentures issued to GreenGrass (and to two former members of its general
partner, GreenGrass Management LLC) on April 15, 1996, October 15, 1996,
and April 15, 1997, as interest payments.
4 As of June 30, 1997, there were 7,091,406 shares of
Common Stock issued and outstanding. This amount excludes 3,600,000
shares that are held by Swing-N-Slide as treasury shares, and excludes up
to approximately 4,549,923 shares underlying various rights to acquire
Common Stock. See "Risk Factors -- Possible Dilution of Ownership
Interest."
5 Includes 622,665 shares offered hereby and 157,924
additional shares issued to GreenGrass pursuant to the Investment
Agreement as a result of the fact that the Final Calculated Price was
determined to be $4.015 per share. See "Background of Offering."
6 Net of offering expenses estimated at $80,000.
BACKGROUND OF OFFERING
On March 13, 1997, Newco acquired all of the issued and
outstanding shares of GameTime capital stock for $27.0 million and the
assumption of GameTime indebtedness of approximately $13.4 million.
Immediately following the acquisition, GameTime was merged with and into
Newco. To provide financing for this acquisition, to refinance certain
indebtedness of Swing-N-Slide, Newco and GameTime, and to provide funds
for working capital purposes, Swing-N-Slide and Newco entered into certain
definitive agreements, referenced below.
On March 13, 1997, a group of banks led by Fleet National
Bank provided Newco with a $69.5 million senior secured credit facility.
The facility consists of (a) a $20.0 million revolving credit facility (of
which $12.7 million was drawn on March 13, 1997); (b) a $45.0 million Term
Loan A facility; and (c) a $4.5 million Term Loan B facility. The entire
facility is guaranteed by Swing-N-Slide, and secured by a first priority
mortgage or security interest in all of Newco's tangible and intangible
assets, as well as a pledge of 100% of the outstanding shares of Newco
common stock. In addition, Newco is subject to certain restrictive
covenants which include, among other things, restrictions on the payment
of dividends or issuance of capital stock and a limitation on additional
indebtedness.
On March 13, 1997, Swing-N-Slide and Newco entered into
Securities Purchase Agreements with Massachusetts Mutual Life Insurance
Company ("MassMutual") and certain of its affiliates, pursuant to which
Swing-N-Slide sold warrants (the "MassMutual Warrants") evidencing rights
to purchase an aggregate of 592,177 shares of its Common Stock (subject to
adjustment), and Newco sold its 12% Senior Subordinated Notes due March
13, 2005 (the "MassMutual Notes"), in the aggregate principal amount of
$12,500,000. The MassMutual Warrants are exercisable at any time during
the period commencing March 13, 1997, and terminating on the later of
March 13, 2003, or the date upon which all of the MassMutual Notes have
been paid in full, at an exercise price of $.001 per share (subject to
adjustment).
On March 13, 1997, Swing-N-Slide entered into an Investment
Agreement with GreenGrass Holdings pursuant to which Swing-N-Slide sold to
GreenGrass Holdings 1,087,406 shares (subject to adjustment) of its Common
Stock for an aggregate purchase price of $5,000,000, or a per share
purchase price of $4.5981, and sold its Junior Subordinated Bridge Note in
the principal amount of $2,500,000 (the "Bridge Note"), due not later than
December 31, 1997 (subject to prepayment), bearing interest at a rate of
13.5% per annum, and accompanied by ten-year warrants to purchase 50,000
shares of such stock, at a per share purchase price of $4.5981 (subject to
adjustment). Pursuant to the terms of the Investment Agreement, and based
on fluctuations in the market price of the Company's Common Stock on the
AMEX during the 150-day period following the public announcement of the
GameTime acquisition, effective August 13, 1997, the number of shares
issued to GreenGrass was adjusted and increased from 1,087,406 to
1,245,330. As a result of such adjustment, the price per share paid by
GreenGrass for the 1,245,330 shares received was in effect fixed at
$4.015 per share. Swing-N-Slide will use the proceeds of the sale of
shares of Common Stock in this offering to prepay in full the principal
outstanding under the Bridge Note.
The number of shares of Common Stock to be sold in this
offering (the "Rights Shares"), fixed at 622,665, was determined by
dividing 2,500,000, the original principal amount of the Bridge Note, by
the $4.015 per share Final Calculated Price (determined in the manner set
forth below). Swing-N-Slide will offer to each stockholder of Swing-N-
Slide other than GreenGrass Holdings the right, on the basis of the number
of shares held as of August 25, 1997, the record date set by the Board of
Directors of Swing-N-Slide (the "Record Date"), to purchase up to his,
her or its pro rata share of the Rights Shares for cash at a price equal to
the Final Calculated Price. This offering is being made in order to give
the Company's stockholders, other than GreenGrass, the opportunity to
mitigate the dilutive effect of the purchase by GreenGrass of shares of
Common Stock pursuant to the Investment Agreement. Thus, stockholders other
than GreenGrass are hereby granted the opportunity to purchase their pro
rata share of 622,665 shares of Common Stock at the same $4.015 per share
purchase price, or an aggregate purchase price of $2,500,000, thereby
mitigating the dilutive effect of the recent purchase by GreenGrass of
1,245,330 shares of Common Stock at $4.015 per share or an aggregate
purchase price of $5,000,000.
GreenGrass Holdings is obligated to purchase any Rights
Shares not purchased by the other stockholders of Swing-N-Slide under the
Rights Offering (the "Remaining Rights Shares") at a price per share equal
to the Final Calculated Price. The purchase price for the Remaining
Rights Shares will be paid through a reduction of any principal
outstanding under the Bridge Note on a dollar-for-dollar basis. The Final
Calculated Price of $4.015 per share was determined, in accordance with
the terms of the Investment Agreement and the documents contemplated
thereby, by calculating the amount equal to the average of the daily
closing bid price per share of Common Stock for the trading days on the
AMEX (weighted for volume on each trading day) included in the 150-day
period from March 17, 1997, through August 13, 1997.
PLAN OF DISTRIBUTION
Rights Offering; Subscription Period
Swing-N-Slide is offering the shares of Common Stock to
stockholders of Swing-N-Slide other than GreenGrass (the "Other
Stockholders") on a pro rata basis. The record date for the Offering is
August 25, 1997 (the "Record Date"). The maximum number of shares each
Other Stockholder is entitled to purchase pursuant to the foregoing
sentence is referred to herein as the "Maximum Subscription Number." With
respect to each Other Stockholder, the Maximum Subscription Number is
determined by multiplying the Maximum Offering Number by a percentage
equal to the number of shares of Common Stock owned by such Other
Stockholder as of the Record Date, divided by the total number of shares
of Common Stock owned by all Other Stockholders as of the Record Date;
provided, that Swing-N-Slide will not offer fractional shares, and the
number of shares offered to each Other Stockholder will be rounded down to
the nearest whole number. As of the Record Date, an aggregate of
2,427,694 shares were owned by all Other Stockholders.
The Subscription Period commences on the date of this
Prospectus and shall remain open until November 5, 1997. Subscriptions
for the purchase of shares of Common Stock, in the form of a Subscription
Agreement, must be received by 5:00 p.m. Central Time on November 5, 1997,
by Firstar Trust Company (the "Subscription Agent"). The November 5, 1997,
expiration date may be extended by Swing-N-Slide from time to time
in its sole discretion by issuing a press release to that effect no later
than 10:00 a.m., Eastern Time, on November 6, 1997.
Each Other Stockholder who wants to purchase shares must
submit to the Subscription Agent, by 5:00 p.m. Central Time on November 5,
1997, a Subscription Agreement indicating the number of shares the
Other Stockholder will purchase. Other Stockholders will be able to
purchase shares in number only up to the Maximum Subscription Number. No
fractional shares will be issued. The right to subscribe to purchase
shares offered hereunder is non-transferable. Each Subscription Agreement
shall be considered a non-revokable offer to purchase shares in number up
to the Maximum Subscription Number, as set forth in the Subscription
Agreement. Once submitted to the Subscription Agent, the Subscription
Agreement and the offer to purchase set forth therein cannot be changed or
revoked.
If the Other Stockholders do not subscribe for their
respective Maximum Subscription Number, the remaining shares will not be
reoffered to Other Stockholders. Under the terms of the Investment
Agreement, GreenGrass is contractually obligated to purchase shares
offered hereunder which are not purchased by the Other Stockholders, if
any. As a result, upon the expiration of the subscription period,
GreenGrass shall purchase any shares not purchased by the Other
Stockholders at a per share purchase price of $4.015.
Certificates representing the shares purchased in this
Offering will be delivered to the subscribing Other Stockholders as soon
as practicable after the expiration of the subscription period.
Subscription Agreement
Each Other Stockholder who wishes to purchase shares must
submit to Firstar Trust Company, 1555 North Rivercenter Dr., P.O. Box 2077,
Suite 301, Milwaukee, Wisconsin 53201-2077, by 5:00 p.m. Central Time on the
Expiration Date, a properly completed and executed Subscription Agreement,
together with payment in full of the purchase price ("Purchase Price") for
the number of shares (not to exceed the Maximum Subscription Number) to be
purchased by such Other Stockholder. Payment may be made only (a) by
check or bank draft drawn upon a U.S. bank, or postal, telegraphic or
express money order, payable to Swing-N-Slide Corp., or (b) by wire
transfer of funds to the account maintained by the Subscription Agent for
the purpose of accepting subscriptions, or (c) a combination of the
foregoing. The Purchase Price will be deemed to have been received by the
Subscription Agent only upon (i) clearance of any uncertified check, (ii)
receipt by the Subscription Agent of any certified check or bank draft
drawn upon a U.S. bank or any postal, telegraphic or express money order,
or (iii) receipt of collected funds in the Subscription Agent's account
designated above. If paying by uncertified personal check, please note
that the funds paid thereby may take at least five (5) business days to
clear. ACCORDINGLY, OTHER STOCKHOLDERS WHO WISH TO PAY THE PURCHASE PRICE
BY MEANS OF UNCERTIFIED PERSONAL CHECK ARE URGED TO MAKE PAYMENT
SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO ENSURE THAT SUCH PAYMENT
IS RECEIVED AND CLEARS BY SUCH TIME AND ARE URGED TO CONSIDER IN THE
ALTERNATIVE PAYMENT BY MEANS OF CERTIFIED OR CASHIER'S CHECK, MONEY ORDER
OR WIRE TRANSFER OF FUNDS.
Because the right to purchase shares hereunder is
nontransferable, if a beneficial owner of Common Stock desires to purchase
shares, he may do so only by having the owner of record act on his behalf.
Beneficial owners of Common Stock held of record by a broker, dealer,
commercial bank, trust company or other nominee, as well as persons
holding certificates for Common Stock personally who would prefer to have
such institutions effect transactions related to this Offering on their
behalf, should contact the appropriate institution or nominee and request
it to effect such transactions for them.
If an Other Stockholder does not indicate in his, her or
its Subscription Agreement the number of shares which the Other
Stockholder is willing to purchase, or does not forward full payment of
the Purchase Price for the number of shares the Other Stockholder
indicates he, she or it is willing to purchase, then such Other
Stockholder will be deemed to have offered to purchase a number of shares
(not to exceed the Maximum Subscription Number) equal to the Purchase
Price received by the Subscription Agent divided by the Final Calculated
Price.
All funds received by the Subscription Agent in payment of
the Purchase Price for shares will be retained by the Subscription Agent
and will not be delivered to the Company until the certificates
representing shares have been issued.
Persons who hold shares of Common Stock for the account of
others, such as brokers, trustees or depositories for securities, should
contact the respective beneficial owners of such shares as soon as
possible to ascertain those beneficial owners' intentions and to obtain
instructions with respect to responding to this Offer. If a beneficial
owner so instructs, the record holder of that beneficial owner's shares of
Common Stock should complete the Subscription Agreement and submit it to
the Subscription Agent with proper payment. In addition, beneficial
owners of Common Stock held through such a nominee holder should contact
the nominee holder and request the nominee holder to effect transactions
in accordance with the beneficial owner's instructions.
THE SUBSCRIPTION AGREEMENT SHOULD BE SENT WITH PAYMENT TO
FIRSTAR TRUST COMPANY, 1555 NORTH RIVERCENTER DR., P.O. BOX 2077, SUITE
301, MILWAUKEE, WISCONSIN 53201-2077.
THE METHOD OF DELIVERY OF THE SUBSCRIPTION AGREEMENT AND
PAYMENT OF THE PURCHASE PRICE TO THE SUBSCRIPTION AGENT ARE AT THE
ELECTION AND RISK OF THE STOCKHOLDER. IF SENT BY MAIL, STOCKHOLDERS ARE
URGED TO SEND THE SUBSCRIPTION AGREEMENT AND PAYMENTS BY REGISTERED MAIL,
PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, AND ARE URGED TO ALLOW A
SUFFICIENT NUMBER OF DAYS TO ENSURE DELIVERY TO THE SUBSCRIPTION AGENT AND
CLEARANCE OF PAYMENT PRIOR TO THE EXPIRATION TIME. BECAUSE UNCERTIFIED
PERSONAL CHECKS MAY TAKE AT LEAST FIVE (5) BUSINESS DAYS TO CLEAR,
STOCKHOLDERS ARE STRONGLY URGED TO PAY, OR ARRANGE FOR PAYMENT, BY MEANS
OF CERTIFIED OR CASHIER'S CHECK, MONEY ORDER OR WIRE TRANSFER OF FUNDS.
All issues concerning timeliness, validity, form and
eligibility regarding this Offer will be resolved by Swing-N-Slide, whose
determinations will be final and binding. Swing-N-Slide, in its sole
discretion, may waive any defect or irregularity, or permit a defect or
irregularity to be corrected within such time as it may determine.
Subscription Agreements will not be deemed to have been received or
accepted until all irregularities have been waived or cured within such
time as Swing-N-Slide determines, in its sole discretion. Swing-N-Slide
will not 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 such notification.
Any questions or requests for assistance concerning the
method of purchasing shares or requests for additional copies of this
Prospectus or Subscription Agreements should be directed to Richard E.
Ruegger, Vice President, Swing-N-Slide Corp., 1212 Barberry Drive,
Janesville, Wisconsin 53545, phone number (608) 755-4777, or Wayne O.
Hanewicz, Foley & Lardner, 150 East Gelman St., Madison, Wisconsin 53703,
phone number (608) 258-4246.
No Revocation; No Transfer of Rights
ONCE AN OTHER STOCKHOLDER HAS SUBMITTED HIS, HER OR ITS
SUBSCRIPTION AGREEMENT IT MAY NOT BE REVOKED OR CHANGED.
This Offer is made only to Other Stockholders, and each
Other Stockholder is entitled to purchase only his pro rata share of the
Common Stock, as described above. An Other Stockholder may not transfer,
in whole or in part, his right to purchase the Common Stock offered
hereby, to any other person, including another Other Stockholder.
State and Foreign Securities Law
Swing-N-Slide will not offer, sell or issue shares of
Common Stock in states or other jurisdictions where it is unlawful to do
so or whose laws, rules, regulations or orders would require Swing-N-Slide
to incur costs, obligations or time delays which Swing-N-Slide determines,
in its sole discretion, are disproportionate to the net proceeds to be
realized by Swing-N-Slide from such offers, sales or issuances. No action
has been taken in any jurisdiction outside the United States to permit
offers and sales of the shares. Consequently, Swing-N-Slide may reject
subscriptions for shares by any Other Stockholder, unless it determines
that it may lawfully accept such subscriptions, even if it could do so by
qualifying the shares for sale or by taking other actions in such
jurisdictions.
Rights of Subscribers
Other Stockholders will have no rights as stockholders
until certificates representing the shares of Common Stock for which they
have subscribed are issued to them. All shares of Common Stock issued
will be issued in the name of the holder of record of the shares of Common
Stock giving rise to the right to purchase Common Stock hereunder. An
Other Stockholder will not have the right to revoke his, her or its
subscriptions after delivery of his, her or its Subscription Agreement to
the Subscription Agent.
DESCRIPTION OF CAPITAL STOCK
Swing-N-Slide has 31,750,000 authorized shares of capital
stock, divided into three classes as follows: 25,000,000 shares, par
value $0.01 per share, of common stock (for purposes of this section,
"Common Stock"), 1,750,000 shares, par value $0.01 per share, of Class B
Common Stock ("Class B Common Stock"), and 5,000,000 shares, par value
$0.01 per share of Preferred Stock. Effective as of August 25, 1997,
7,249,330 shares of Common Stock were issued and outstanding, and no shares
of Class B Common Stock or Preferred Stock were issued. See
"Capitalization." All outstanding shares of Common Stock are fully paid
and nonassessable (except as otherwise provided by law).
Common Stock
Holders of Common Stock are entitled to one vote per share
on all matters which, pursuant to the Delaware General Corporation Law
(the "DGCL"), require the approval of Swing-N-Slide's stockholders.
Holders of Class B Common Stock have no right to vote on any matters to be
voted on by Swing-N-Slide's stockholders. GreenGrass's ownership of
approximately 67% of the currently issued and outstanding Common Stock
(approximately 71% if GreenGrass converted all $5,572,938.37 principal
amount in First Series Debentures into Common Stock), along with
GreenGrass's potential ownership of at least approximately 63% of the
debentures issued under the Indenture, give it effective control over
Swing-N-Slide. See "Risk Factors--Controlling Interest in the Company."
In the event of a liquidation, dissolution or winding up of
Swing-N-Slide, holders of Common Stock and Class B Common Stock are
entitled to participate ratably in all distributions after payment of
liabilities and satisfaction of any preferential rights of holders of
Preferred Stock, if any. Holders of Common Stock and Class B Common Stock
are not entitled to any preemptive rights. Subject to any preferences
that may be applicable to any outstanding shares of Preferred Stock,
holders of Common Stock and Class B Common Stock are entitled to receive
cash dividends ratably on a per share basis if and when such dividends are
declared by the Board of Directors from funds legally available therefor.
But see "Risk Factors--No Dividends."
Shares of Common Stock can be converted into shares of
Class B Common Stock by "Regulated Stockholders" (defined in the Amended
Certificate of Incorporation to mean stockholders who, among other things,
are subject to Regulation Y of the Board of Governors of the Federal
Reserve System). Currently, there are no Regulated Stockholders. Each
holder of Class B Common Stock can convert it into Common Stock under
certain circumstances described in the Amended Certificate of
Incorporation. Currently, there are no holders of Class B Common Stock.
The rights, preferences and privileges of Common Stock and
Class B Common Stock are subject to, and may be adversely affected by, the
rights of holders of shares of any series of Preferred Stock which Swing-
N-Slide may designate and issue in the future.
Preferred Stock
The Board of Directors of Swing-N-Slide is authorized to
provide for the issuance by Swing-N-Slide of Preferred Stock in one or
more series and to fix the rights, preferences, privileges,
qualifications, limitations and restrictions thereof, including, without
limitation, dividend rights, dividend rates, conversion rights, voting
rights, terms of redemption or repurchase, redemption or repurchase
prices, limitations or restrictions thereon, liquidation preferences and
the number of shares constituting any series or the designation of such
series, without any further vote or action by the stockholders. The
issuance of any series of Preferred Stock may have an adverse effect on
the rights of holders of common stock, and could decrease the amount of
earnings and assets available for distribution to holders of common stock.
In addition, any issuance of Preferred Stock could have the effect of
delaying, deferring or preventing a change in control of Swing-N-Slide.
Swing-N-Slide has no present plans to issue any shares of
Preferred Stock.
Section 203 of the Delaware Law
Generally, Section 203 of the DGCL prohibits certain
Delaware corporations from engaging in a business combination with an
interested stockholder for a period of three years after the date of the
transaction in which the person became an interested stockholder, subject
to certain exceptions. A Delaware corporation may "opt out" from the
application of Section 203 of the DGCL through a provision in its
certificate of incorporation or by-laws. Swing-N-Slide has "opted out"
from the application of Section 203. Swing-N-Slide's election not to be
governed by Section 203 will not, however, apply to any business
combination between Swing-N-Slide and any person who became an interested
stockholder on or prior to June 18, 1992.
Certain Certificate of Incorporation and Bylaw Provisions
The Amended and Restated Certificate of Incorporation
("Amended Certificate of Incorporation") of Swing-N-Slide provides that
the number of directors of Swing-N-Slide shall consist of not less than
one and not more than ten, with the exact number to be determined by a
vote of a majority of the Board. There are currently six members of the
Board of Directors with one vaccancy. Any vacancies on the Board may be
filled for the unexpired portion of the term by a majority vote of the
remaining directors.
Election of directors at all meetings of the stockholders
at which directors are to be elected shall be by ballot, and, except as
may be limited by the rights of Preferred Stockholders, a plurality of
votes cast thereat shall elect. Except as otherwise provided by law or
the Amended Certificate of Incorporation, all matters other than the
election of directors submitted to the stockholders at any meeting shall
be decided by a majority of the votes cast with respect thereto.
The Amended Certificate of Incorporation prohibits
stockholders of Swing-N-Slide from taking action by written consent
without a meeting of stockholders. The Amended Certificate of
Incorporation provides, with certain exceptions, that meetings of
stockholders of the Corporation may be called only by the Chairman of the
Board of Directors or the President of Swing-N-Slide, a majority of the
Board of Directors, or holders of a majority of the shares of Common
Stock. The Amended Certificate of Incorporation and Bylaws further
provide that nominations for the election of directors and advance notice
of other action to be taken at meetings of stockholders of Swing-N-Slide
must be given in the manner provided in the Bylaws, and the Bylaws contain
detailed notice requirements relating to nominations and other action.
Swing-N-Slide may change or repeal any provision contained
in the Amended Certificate of Incorporation (except as provided below) and
any other provision authorized by the laws of the State of Delaware at the
time in force may be added (except as provided below) in the manner
prescribed by law. Notwithstanding the foregoing, the affirmative vote of
the holders of at least a majority of the voting power of the shares of
the then outstanding voting stock of Swing-N-Slide, voting together as a
single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with, Articles FIFTH (election of directors),
EIGHTH (indemnification of directors and officers), NINTH (limiting
liability of directors for money damages), or TENTH (stockholders meeting
requirements).
Limitation of Liability
Swing-N-Slide's Amended Certificate of Incorporation
provides that directors of Swing-N-Slide shall not be personally liable to
Swing-N-Slide or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to Swing-N-Slide or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
DGCL, relating to prohibited dividends or distributions or the repurchase
or redemption of stock, or (iv) for any transaction from which the
director derives an improper personal benefit. Such limitation of
liability does not affect the availability of equitable remedies such as
injunctive relief or rescission.
Transfer Agent and Registrar
The transfer agent and registrar for Swing-N-Slide is First
Chicago Trust Company of New York, P.O. Box 13701, Newark, New Jersey
07188.
LEGAL MATTERS
The validity of the Common Stock registered hereunder will
be passed upon for Swing-N-Slide by Foley & Lardner, Madison and
Milwaukee, Wisconsin.
EXPERTS
The consolidated financial statements and related
consolidated financial statement schedules of Swing-N-Slide appearing in
Swing-N-Slide's Annual Report (Form 10-K) for the year ended December 31,
1996, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements and financial statement
schedules are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
No person has been authorized in connection with the
offering made hereby to give any information or to make any representation
not contained in this Prospectus and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company or by any other person. This Prospectus does not constitute an
offer to sell or a solicitation of any offer to buy any of the securities
offered hereby to any person or by anyone in any jurisdiction in which it
is unlawful to make such offer or solicitation. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information contained
herein is correct as of any date subsequent to the date hereof.
Table of Contents
Page
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . .
Incorporation of Certain Documents by Reference . . . . . . . . . . . . .
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . . . . . . .
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . .
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Background of Offering . . . . . . . . . . . . . . . . . . . . . . . . .
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . .
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . .
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in
connection with the issuance and distribution of the securities being
registered, all of which are being borne by the Registrant:
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . . . . . $758
AMEX Listing fee . . . . . . . . . . . . . . . . $12,500
Legal fees and expenses . . . . . . . . . . . . $40,000
Accounting fees and expenses . . . . . . . . . . . $2,000
Printing and mailing fees . . . . . . . . . . . $10,000
Miscellaneous . . . . . . . . . . . . . . . . . $14,742
TOTAL . . . . . . . . . . . . . . . . . . $80,000
Item 15. Indemnification of Directors and Officers
Set forth below is a description of certain provisions of
Swing-N-Slide's Amended Certificate of Incorporation and Bylaws and the
DGCL, as such provisions relate to the indemnification of the directors
and officers of Swing-N-Slide. This description is intended only as a
summary and is qualified in its entirety by reference to the Amended
Certificate of Incorporation, Bylaws, and the DGCL.
Swing-N-Slide's Amended Certificate of Incorporation
provides that Swing-N-Slide shall, to the full extent permitted by the
DGCL, as amended from time to time, indemnify its directors, officers and
certain other persons (subject to certain conditions and qualifications)
and eliminates the personal liability of its directors to the full extent
permitted by Section 102(b)(7) of the DGCL, as amended from time to time.
Section 145 of the DGCL permits a corporation to indemnify
its directors and officers against expenses (including attorney's fees),
judgments, fines and amounts paid in settlements actually and reasonably
incurred by them in connection with any action, suit or proceeding brought
by third parties, if such directors or officers 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
proceeding, had no reasonable cause to believe their conduct was unlawful.
In a derivative action, i.e., one by or in the right of the corporation,
indemnification may be made only for expenses actually and reasonably
incurred by directors and officers in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to
which they shall have acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have
been adjudged liable for negligence or misconduct in the performance of
his respective duties to the corporation, although the court in which the
action or suit was brought may determine upon application that the
defendant officers or directors are reasonably entitled to indemnification
for such expenses despite such adjudication of liability.
Section 102(b)(7) of the DGCL provides that a corporation
may eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law (iii) under Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. No such provision shall eliminate or limit the
ability of a director for any act or omission occurring prior to the date
which such provision becomes effective.
Swing-N-Slide maintains insurance on behalf of its officers
and directors which, subject to certain exceptions, covers liabilities
under the Securities Act of 1933.
Under the Transaction Agreement, Swing-N-Slide is required
to indemnify and provide insurance to the officers and directors of Swing-
N-Slide and Newco, and to certain other persons ("Indemnified Persons").
These obligations require, among other things, that: (a) for three years
and sixty days after the date on which shares of Common Stock were
purchased in the tender offer ("Purchase Date"), Swing-N-Slide must
(subject to certain terms, conditions and qualifications) provide
officers' and directors' liability insurance covering each present and
former director or officer of Swing-N-Slide or Newco, and fiduciary
liability insurance covering each present and former Fiduciary (as defined
in the Transaction Agreement), with respect to events, actions and
omissions occurring on or prior to the Purchase Date, including any which
relate to the transactions contemplated by the Transaction Agreement; (b)
for not less than six years after the date on which the tender offer
expired, Swing-N-Slide's Certificate of Incorporation and Bylaws shall
provide indemnification to the Indemnified Persons on terms no less
favorable to the Indemnified Persons than those contained in Swing-N-
Slide's Amended Certificate of Incorporation and Bylaws, and Newco's
Articles of Incorporation and Bylaws, as in effect on January 4, 1996; and
(c) proper provision be made so that Swing-N-Slide's successors, assigns
and transferees of all or substantially all Swing-N-Slide's assets assume
the indemnification and insurance obligations set forth in the Transaction
Agreement (without relieving Swing-N-Slide of its obligations thereunder).
Item 16. Exhibits
Exhibit
Number Description
2.(1) Transaction Agreement dated January 4, 1996 between
GreenGrass Holdings and Swing-N-Slide.(1)
2.(2) Amendment No. 1 to Transaction Agreement dated February 12,
1996 between GreenGrass Holdings and Swing-N-Slide.*
2.(3) Amended and Restated Registration Rights Agreement dated
March 13, 1997 between GreenGrass Holdings and Swing-N-
Slide.(2)
2.(4) Stipulation and Order dated February 13, 1996 relating to
Barbieri v. Swing-N-Slide Corp., et al., Court of Chancery
of the State of Delaware, New Castle County, Civil Action
No. 14239.(3)
2.(5) Amended and Restated Stock Purchase Agreement, dated as of
March 13, 1997, by and among Newco, Inc., Game Time, Inc.
and Ross D. Siragusa, Jr., John R. Siragusa and Richard D.
Siragusa.(4)
2.(6) Articles of Merger Merging Game Time, Inc. With and Into
Newco, Inc., dated as of March 13, 1997.(5)
4.(1) Amended and Restated Certificate of Incorporation of Swing-
N-Slide.(6)
4.(2) Amended and Restated 10% Convertible Subordinated Debenture
due 2004, dated February 16, 1996, in the original
principal amount of $4,300,000 issued by Swing-N-Slide
Corp. to GreenGrass Holdings.*
4.(3) Amended and Restated 10% Convertible Subordinated Debenture
due 2004, dated April 25, 1996, in the original principal
amount of $700,000 issued by Swing-N-Slide Corp. to
GreenGrass Holdings.*
4.(4) Swing-N-Slide Corp. Bridge Note, dated as of March 13,
1997, in the principal amount of $2,500,000.(7)
5.(1) Opinion of Foley & Lardner.
10.(1) Credit Agreement, dated as of March 13, 1997, among Swing-
N-Slide Corp., Newco, Inc., the Lenders party thereto and
Fleet National Bank, as lender and agent, together with the
notes related thereto.(8)
10.(2) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and Massachusetts
Mutual Life Insurance Company, together with the notes and
warrants related thereto.(9)
10.(3) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and MassMutual
Corporate Investors, together with the note and warrant
related thereto.(10)
10.(4) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and MassMutual
Participation Investors, together with the note and warrant
related thereto.(11)
10.(5) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and MassMutual
Corporate Value Partners Limited, together with the note
and warrant related thereto.(12)
10.(6) Warrant No. 1 for the Purchase of Common Stock of Swing-N-
Slide Corp., dated as of March 13, 1997.(13)
10.(7) Investment Agreement, dated as of March 13, 1997, between
Swing-N-Slide Corp. and GreenGrass Holdings.(14)
10.(8) Severance, Change of Control and Noncompetition Agreement
dated as of May 21, 1997, between Swing-N-Slide and Richard
G. Mueller.*
10.(9) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and Curtis Cole.(15)
10.(10) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and Richard Ruegger.(16)
10.(11) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and David Hammelman.(17)
10.(12) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and Kenneth Jonas.(18)
10.(13) Lease dated October 13, 1995, between Hovde Development,
Inc., lessor, and Swing-N-Slide Corp., lessee.(19)
10.(14) Lease dated November 1, 1993, between HUFCOR, INC., lessor,
and Newco, Inc., lessee, as amended.(20)
10.(15) Swing-N-Slide Corp. 1996 Incentive Stock Plan.(21)
10.(16) Swing-N-Slide Corp. 1992 Stock Program.(22)
10.(17) Management Consulting Agreement dated as of February 16,
1996, by and among Newco, Inc., Swing-N-Slide Corp.,
Glencoe Investment Corporation and Desai Capital Management
Incorporated.(23)
10.(18) Acquisition consulting agreement relating to GameTime
transaction dated as of September 6, 1996, by and among
Swing-N-Slide Corp., Glencoe Investment Corporation and
Desai Capital Management Incorporated.(24)
13.(1) Annual Report of Swing-N-Slide for the year ended December
31, 1996.(25)
13.(2) Quarterly Report of Swing-N-Slide for the quarter ended
March 31, 1997.(26)
13.(3) Quarterly Report of Swing-N-Slide for the quarter ended
June 30, 1997.(27)
13.(4) Current Report of Swing-N-Slide on Form 8-K filed March 13,
1997, as amended by Amendment No. 1 on Form 8-K/A filed May
6, 1997.(28)
23.(i)(1) Consent of Ernst & Young LLP.*
23.(i)(2) Consent of Foley & Lardner (included in Exhibit 5).
24. Powers of Attorney.
99. Form of Subscription Agreement.
________________________________________
(1) Incorporated by reference to Swing-N-Slide's Schedule 14D-9
(File No. 0-20450).
(2) Incorporated by reference to Exhibit 4.28 of Swing-N-Slide
Corp.'s Registration Statement on Form S-8 (Registration No. 33-
48735).
(3) Incorporated by reference to Exhibit 2.(5) of Swing-N-Slide
Corp.'s Registration Statement on Form S-2 (Registration No.
333-3907).
(4) Incorporated by reference to Exhibit 2.1 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(5) Incorporated by reference to Exhibit 2.2 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(6) Incorporated by reference to Swing-N-Slide Corp.'s Registration
Statement on Form S-8 (Registration No. 33-48735).
(7) Incorporated by reference to Exhibit 4.26 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(8) Incorporated by reference to Exhibits 4.1 through 4.10 of Swing-
N-Slide Corp.'s Current Report on Form 8-K dated March 13, 1997
(SEC File Number 0-20450).
(9) Incorporated by reference to Exhibits 4.11, 4.15, 4.16, 4.20,
and 4.21 of Swing-N-Slide Corp.'s Current Report on Form 8-K
dated March 13, 1997 (SEC File Number 0-20450).
(10) Incorporated by reference to Exhibits 4.12, 4.17 and 4.22 of
Swing-N-Slide Corp.'s Current Report on Form 8-K dated March 13,
1997 (SEC File Number 0-20450).
(11) Incorporated by reference to Exhibits 4.13, 4.18 and 4.23 of
Swing-N-Slide Corp.'s Current Report on Form 8-K dated March 13,
1997 (SEC File Number 0-20450).
(12) Incorporated by reference to Exhibits 4.14, 4.19 and 4.24 of
Swing-N-Slide Corp.'s Current Report on Form 8-K dated March 13,
1997 (SEC File Number 0-20450).
(13) Incorporated by reference to Exhibit 4.27 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(14) Incorporated by reference to Exhibit 4.25 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(15) Incorporated by reference to Exhibit 10.(ii)(A)(4) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(16) Incorporated by reference to Exhibit 10.(ii)(A)(5) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(17) Incorporated by reference to Exhibit 10.(ii)(A)(6) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(18) Incorporated by reference to Exhibit 10.(ii)(A)(7) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(19) Incorporated by reference to Exhibit 10.2 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(20) Incorporated by reference to Exhibit 10.3 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(21) Incorporated by reference to Exhibit 10.(iii)(A)(1) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(22) Incorporated by reference to Swing-N-Slide's Registration
Statement on Form S-8 (Registration No. 33-48735).
(23) Incorporated by reference to Exhibit 10.5 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(24) Incorporated by reference to Exhibit 10.6 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(25) Incorporated by reference to Swing-N-Slide Corp.'s Annual Report
on Form 10-K for the year ended December 31, 1996 (SEC File No.
0-20450).
(26) Incorporated by reference to Swing-N-Slide Corp.'s Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997 (SEC
File No. 0-20450).
(27) Incorporated by reference to Swing-N-Slide Corp.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1997 (SEC
File No. 0-20450).
(28) Incorporated by reference to Swing-N-Slide Corp.'s Current
Report on Form 8-K dated March 13, 1997, as amended by Amendment
No. 1 on Form 8-K/A filed May 6, 1997 (SEC File No. 0-20450).
* Previously filed.
<PAGE>
Item 17. Undertakings
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1993,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration 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.
The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and furnished pursuant
to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and where interim financial information
required to be presented by Article 3 of Regulation S-X are not set forth
in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (Section 230.424(b) of this chapter)
if, in the aggregate, the changes in volume and price represent not more
than a 20% 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.
(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.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-2 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Janesville, State of Wisconsin
on September 5, 1997.
SWING-N-SLIDE CORP.
By: /s/ Terence S. Malone
Terence S. Malone, Chief Executive Officer
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.
/s/ Terence S. Malone
Terence S. Malone, Director and Chief
Executive Officer
Date: September 5, 1997
/s/ Richard E. Ruegger
Richard E. Ruegger, Vice President-Finance,
Chief Financial Officer, Secretary and
Treasurer (Principal Financial and
Accounting Officer)
Date: September 5, 1997
David S. Evans, Director*
Date: September 5, 1997
George N. Herrera, Director*
Date: September 5, 1997
Timothy R. Kelleher, Director*
Date: September 5, 1997
Gary A. Massel, Director*
Date: September 5, 1997
Caroline L. Williams, Director*
Date: September 5, 1997
*By: /s/ Richard E. Ruegger
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
2.(1) Transaction Agreement dated January 4, 1996 between
GreenGrass Holdings and Swing-N-Slide.(1)
2.(2) Amendment No. 1 to Transaction Agreement dated February 12,
1996 between GreenGrass Holdings and Swing-N-Slide.*
2.(3) Amended and Restated Registration Rights Agreement dated
March 13, 1997 between GreenGrass Holdings and Swing-N-
Slide.(2)
2.(4) Stipulation and Order dated February 13, 1996 relating to
Barbieri v. Swing-N-Slide Corp., et al., Court of Chancery
of the State of Delaware, New Castle County, Civil Action
No. 14239.(3)
2.(5) Amended and Restated Stock Purchase Agreement, dated as of
March 13, 1997, by and among Newco, Inc., Game Time, Inc.
and Ross D. Siragusa, Jr., John R. Siragusa and Richard D.
Siragusa.(4)
2.(6) Articles of Merger Merging Game Time, Inc. With and Into
Newco, Inc., dated as of March 13, 1997.(5)
4.(1) Amended and Restated Certificate of Incorporation of Swing-
N-Slide.(6)
4.(2) Amended and Restated 10% Convertible Subordinated Debenture
due 2004, dated February 16, 1996, in the original
principal amount of $4,300,000 issued by Swing-N-Slide
Corp. to GreenGrass Holdings.*
4.(3) Amended and Restated 10% Convertible Subordinated Debenture
due 2004, dated April 25, 1996, in the original principal
amount of $700,000 issued by Swing-N-Slide Corp. to
GreenGrass Holdings.*
4.(4) Swing-N-Slide Corp. Bridge Note, dated as of March 13,
1997, in the principal amount of $2,500,000.(7)
5.(1) Opinion of Foley & Lardner.
10.(1) Credit Agreement, dated as of March 13, 1997, among Swing-
N-Slide Corp., Newco, Inc., the Lenders party thereto and
Fleet National Bank, as lender and agent, together with the
notes related thereto.(8)
10.(2) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and Massachusetts
Mutual Life Insurance Company, together with the notes and
warrants related thereto.(9)
10.(3) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and MassMutual
Corporate Investors, together with the note and warrant
related thereto.(10)
10.(4) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and MassMutual
Participation Investors, together with the note and warrant
related thereto.(11)
10.(5) Securities Purchase Agreement, dated as of March 13, 1997,
among Swing-N-Slide Corp., Newco, Inc. and MassMutual
Corporate Value Partners Limited, together with the note
and warrant related thereto.(12)
10.(6) Warrant No. 1 for the Purchase of Common Stock of Swing-N-
Slide Corp., dated as of March 13, 1997.(13)
10.(7) Investment Agreement, dated as of March 13, 1997, between
Swing-N-Slide Corp. and GreenGrass Holdings.(14)
10.(8) Severance, Change of Control and Noncompetition Agreement
dated as of May 21, 1997, between Swing-N-Slide and Richard
G. Mueller.*
10.(9) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and Curtis Cole.(15)
10.(10) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and Richard Ruegger.(16)
10.(11) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and David Hammelman.(17)
10.(12) Severance and Change of Control Agreement dated February
15, 1996 between Swing-N-Slide and Kenneth Jonas.(18)
10.(13) Lease dated October 13, 1995, between Hovde Development,
Inc., lessor, and Swing-N-Slide Corp., lessee.(19)
10.(14) Lease dated November 1, 1993, between HUFCOR, INC., lessor,
and Newco, Inc., lessee, as amended.(20)
10.(15) Swing-N-Slide Corp. 1996 Incentive Stock Plan.(21)
10.(16) Swing-N-Slide Corp. 1992 Stock Program.(22)
10.(17) Management Consulting Agreement dated as of February 16,
1996, by and among Newco, Inc., Swing-N-Slide Corp.,
Glencoe Investment Corporation and Desai Capital Management
Incorporated.(23)
10.(18) Acquisition consulting agreement relating to GameTime
transaction dated as of September 6, 1996, by and among
Swing-N-Slide Corp., Glencoe Investment Corporation and
Desai Capital Management Incorporated.(24)
13.(1) Annual Report of Swing-N-Slide for the year ended December
31, 1996.(25)
13.(2) Quarterly Report of Swing-N-Slide for the quarter ended
March 31, 1997.(26)
13.(3) Quarterly Report of Swing-N-Slide for the quarter ended
June 30, 1997.(27)
13.(4) Current Report of Swing-N-Slide on Form 8-K filed March 13,
1997, as amended by Amendment No. 1 on Form 8-K/A filed May
6, 1997.(28)
23.(i)(1) Consent of Ernst & Young LLP.*
23.(i)(2) Consent of Foley & Lardner (included in Exhibit 5).
24. Powers of Attorney.
99. Form of Subscription Agreement.
________________________________________
(1) Incorporated by reference to Swing-N-Slide's Schedule 14D-9
(File No. 0-20450).
(2) Incorporated by reference to Exhibit 4.28 of Swing-N-Slide
Corp.'s Registration Statement on Form S-8 (Registration No. 33-
48735).
(3) Incorporated by reference to Exhibit 2.(5) of Swing-N-Slide
Corp.'s Registration Statement on Form S-2 (Registration No.
333-3907).
(4) Incorporated by reference to Exhibit 2.1 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(5) Incorporated by reference to Exhibit 2.2 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(6) Incorporated by reference to Swing-N-Slide Corp.'s Registration
Statement on Form S-8 (Registration No. 33-48735).
(7) Incorporated by reference to Exhibit 4.26 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(8) Incorporated by reference to Exhibits 4.1 through 4.10 of Swing-
N-Slide Corp.'s Current Report on Form 8-K dated March 13, 1997
(SEC File Number 0-20450).
(9) Incorporated by reference to Exhibits 4.11, 4.15, 4.16, 4.20,
and 4.21 of Swing-N-Slide Corp.'s Current Report on Form 8-K
dated March 13, 1997 (SEC File Number 0-20450).
(10) Incorporated by reference to Exhibits 4.12, 4.17 and 4.22 of
Swing-N-Slide Corp.'s Current Report on Form 8-K dated March 13,
1997 (SEC File Number 0-20450).
(11) Incorporated by reference to Exhibits 4.13, 4.18 and 4.23 of
Swing-N-Slide Corp.'s Current Report on Form 8-K dated March 13,
1997 (SEC File Number 0-20450).
(12) Incorporated by reference to Exhibits 4.14, 4.19 and 4.24 of
Swing-N-Slide Corp.'s Current Report on Form 8-K dated March 13,
1997 (SEC File Number 0-20450).
(13) Incorporated by reference to Exhibit 4.27 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(14) Incorporated by reference to Exhibit 4.25 of Swing-N-Slide
Corp.'s Current Report on Form 8-K dated March 13, 1997 (SEC
File Number 0-20450).
(15) Incorporated by reference to Exhibit 10.(ii)(A)(4) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(16) Incorporated by reference to Exhibit 10.(ii)(A)(5) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(17) Incorporated by reference to Exhibit 10.(ii)(A)(6) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(18) Incorporated by reference to Exhibit 10.(ii)(A)(7) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(19) Incorporated by reference to Exhibit 10.2 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(20) Incorporated by reference to Exhibit 10.3 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(21) Incorporated by reference to Exhibit 10.(iii)(A)(1) of Swing-N-
Slide Corp.'s Registration Statement on Form S-2 (Registration
No. 333-3907).
(22) Incorporated by reference to Swing-N-Slide's Registration
Statement on Form S-8 (Registration No. 33-48735).
(23) Incorporated by reference to Exhibit 10.5 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(24) Incorporated by reference to Exhibit 10.6 of Swing-N-Slide
Corp.'s Annual Report on Form 10-K for the year ended December
31, 1996 (SEC File No. 0-20450).
(25) Incorporated by reference to Swing-N-Slide Corp.'s Annual Report
on Form 10-K for the year ended December 31, 1996 (SEC File No.
0-20450).
(26) Incorporated by reference to Swing-N-Slide Corp.'s Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997 (SEC
File No. 0-20450).
(27) Incorporated by reference to Swing-N-Slide Corp.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1997 (SEC
File No. 0-20450).
(28) Incorporated by reference to Swing-N-Slide Corp.'s Current
Report on Form 8-K dated March 13, 1997, as amended by Amendment
No. 1 on Form 8-K/A filed May 6, 1997 (SEC File No. 0-20450).
* Previously filed.
Foley & Lardner
Verex Plaza
150 East Gilman Street
Madison, WI 53703-1441
September 5, 1997
Swing-N-Slide Corp.
1212 Barberry Drive
Janesville, WI 53545
Re: Registration Statement on Form S-2: Registration of Common
Stock
Ladies and Gentlemen:
We have acted as counsel to Swing-N-Slide Corp., a Delaware
corporation (the "Company"), in connection with the offering of up to
622,665 shares of the Company's common stock, $.01 par value per share
(the "Shares"), in accordance with the terms and subject to the conditions
set forth in the prospectus (the "Prospectus") forming a part of the
registration statement on Form S-2 filed by the Company with the
Securities and Exchange Commission on September 5, 1997 (the "Registration
Statement"). You have requested our opinion as counsel to the Company
with respect to certain matters in connection with the registration of the
Shares.
In connection with the rendering of this opinion, we have
examined originals, or copies certified to our satisfaction, of the
Amended and Restated Certificate of Incorporation and Amended and Restated
By-Laws of the Company, as amended, the form of subscription agreement
(the "Subscription Agreement") to be executed by each stockholder who
elects to purchase a portion of the Shares, the Registration Statement and
Prospectus, certificates of officers of the Company, certificates of
public officials, and such other proceedings, documents, and records as we
deemed necessary to enable us to render this opinion.
Based on the foregoing, and subject to the assumptions and
qualifications set forth herein, we are of the opinion that:
1. The Shares are validly authorized and, assuming: (a) the
Shares will be validly authorized on the dates of execution of each
Subscription Agreement; (b) on the dates of execution of each Subscription
Agreement, each Subscription Agreement will have been duly executed and
delivered by the subscriber and will constitute the legal, valid, and
binding obligation of the subscriber; (c) no change occurs in the
applicable law or the pertinent facts during the period from the date
hereof until the dates of execution of each Subscription Agreement; (d)
the pertinent provisions of such "blue-sky" and securities laws as may be
applicable have been complied with; and (e) the Shares are issued in the
manner specified in the Registration Statement and in accordance with the
terms of the applicable Subscription Agreement, including receipt by the
Company of the purchase price with respect to the Shares, the Shares will
be validly issued, fully paid, and nonassessable.
Our opinion is further subject to the following assumptions and
qualifications:
A. We express no opinion herein other than as to the General
Corporation Law of the State of Delaware and the federal laws of the
United States.
B. This opinion is given as of the date hereof and is intended
to apply only to those facts and circumstances which exist on the date
hereof, and we assume no obligation or responsibility to update or
supplement this opinion to reflect any facts or circumstances which may
hereafter come to our attention, any changes in laws which may hereafter
occur, or to inform the addressee of any change in circumstances occurring
after the date of this opinion which would alter the opinions rendered
herein.
C. The enforceability of any instrument, document or agreement
is subject to: (i) applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium, or similar laws affecting creditors'
rights generally; (ii) general equitable principles; and (iii) the
availability of specific performance, injunctive relief or any other
equitable remedy subject to the discretion of a court.
D. In rendering the opinions expressed in paragraph 1 above,
we have assumed without investigation that, with respect to each offer,
issuance, sale, and delivery by the Company of Shares and each purchase of
such Shares by the purchaser thereof, (i) except for the General
Corporation Law of the State of Delaware, at the time thereof and at all
times subsequent thereto, such offer, issuance, sale, delivery and
purchase, the execution, delivery, and performance of each Subscription
Agreement, and the consummation of the transactions contemplated thereby,
will not violate, result in a breach of, or conflict with any law, rule,
regulation, order, judgment, or decree, in each case whether then or
subsequently in effect; (ii) no event has taken place subsequent to any
such offer, issuance, sale, delivery, purchase, execution, performance, or
transaction nor will take place which would cause any such offer,
issuance, sale, delivery, purchase, execution, performance, or transaction
not to comply with any such law, rule, regulation, order, judgment,
decree, or duty, or which would permit the Company or any such other party
at any time thereafter to cancel, rescind, or otherwise avoid any such
offer, issuance, sale, delivery, purchase, execution, performance, or
transaction; (iii) there was no misrepresentation, omission, or deceit by
the Company, any such other party, or any other person or entity in
connection with any such offer, issuance, sale, delivery, purchase,
execution, performance, or transaction; (iv) each such offer, issuance,
sale, delivery, purchase, execution, performance, and transaction is
governed by the laws of the State of Delaware, without giving effect to
conflict of laws; (v) each other party to each Subscription Agreement or
to such offer, issuance, sale, delivery, purchase, execution, performance,
or transaction (a) had the power, authority, and capacity to consummate
such purchase, to execute, deliver, and perform such Subscription
Agreement, and to consummate each such transaction; and (b) duly
authorized such purchase and duly authorized, executed and delivered such
Subscription Agreement; (vi) at the time thereof and at all times
subsequent thereto, each such offer, issuance, sale, and delivery the
Company, each such purchase by the other party thereto, and the execution,
delivery, and performance of each Subscription Agreement, by the Company
and the other party thereto, will not violate, result in a breach of,
conflict with or (with or without the giving of notice or the passage of
time or both) entitle any party to terminate or call a default under any
term of any contract, agreement, instrument, lease, license, arrangement
or understanding to which the Company or any such other party is or
becomes a party or to which any of them or any of their respective
properties, assets, or security holders are or will be subject; and (vii)
at the time thereof and at all times subsequent thereto, the persons
authorizing each such offer, issuance, sale, delivery, purchase,
execution, performance or transaction for the Company or for any such
other party will not violate any fiduciary or other duty owed by them.
We hereby consent to the use of this opinion, or copies thereof,
as an exhibit to the Registration Statement, and to the statement made
regarding our firm under the caption "Legal Matters" in the Prospectus.
In giving this consent, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
This opinion has been rendered in connection with the
Registration Statement of the Company solely for the benefit of the
Company, and except as otherwise expressly provided herein, may not be
used or relied upon by any other person or entity or for any other
purpose. Except as otherwise expressly provided herein, any further
distribution or reproduction of the contents hereof, without our prior
written consent, is strictly prohibited.
Very truly yours,
/s/ Joseph P. Hildebrandt
FOLEY & LARDNER
SWING-N-SLIDE CORP.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose
signature appears below hereby constitutes and appoints TERENCE S. MALONE
and RICHARD E. RUEGGER, and each of them, his or her true and lawful
attorneys-in-fact and agents, each with the full power of substitution for
him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the following registration statements under the Securities
Act of 1933, as amended, filed or to be filed by Swing-N-Slide Corp., a
Delaware corporation (the "Company"): (i) Registration Statement on Form
S-2 with respect to the offering by the Company of up to 625,000 shares of
its common stock, (ii) Registration Statement on Form S-2 with respect to
the offering by the Company of $3,333,333.00 of ten percent convertible
subordinate ventures, and (iii) Registration Statement on Form S-8 with
respect to the registration of shares issuable pursuant to the Company's
1996 Incentive Stock Program; and to file the same, with all exhibits
thereto, and all documents in connection therewith with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact or any of them, or their or his substitutes, may do or
cause to be done by virtue thereof.
The validity of this Power of Attorney shall not be affected in
any manner by reason of the execution, at any time, of other powers of
attorney by the undersigned in favor of persons other than the attorneys-
in-fact named herein.
Dated this 5th day of September, 1997.
/s/
_________________________________________
Terence S. Malone
Director and Chief Executive Officer
/s/
_________________________________________
Richard E. Ruegger
Vice President - Finance, Chief Financial
Officer, Secretary and Treasurer (Principal
Financial and Accounting Officer)
/s/
_________________________________________
David S. Evans
Director
/s/
_________________________________________
George N. Herrera
Director
/s/
_________________________________________
Timothy R. Kelleher
Director
/s/
_________________________________________
Gary A. Massel
Director
/s/
_________________________________________
Caroline L. Williams
Director
SUBSCRIPTION AGREEMENT
Firstar Trust Company
Corporate Trust Services
1555 North Rivercenter Dr.
P.O. Box 2077
Milwaukee, WI 53201-2077
The undersigned ("Subscriber") hereby acknowledges receipt of
the Prospectus relating to the offer by Swing-N-Slide Corp. (the
"Company") of an aggregate of 622,665 shares (the "Maximum Offering
Number") of the Company's Common Stock, $.01 par value per share ("Common
Stock"). Under the terms and conditions set forth in the Prospectus, each
stockholder of the Company other than GreenGrass Holdings ("Other
Stockholder") is entitled to purchase up to his, her or its pro rata
portion of the Maximum Offering Number, determined by multiplying the
Maximum Offering Number by a percentage equal to the number of shares of
Common Stock owned by the Subscriber as of August 25, 1997 (the "Record
Date"), divided by 2,427,694 the total number of shares of Common Stock
owned by all Other Stockholders as of the Record Date, rounded down to the
nearest whole number of shares.
Under the terms and conditions set forth in the Prospectus, the
number of shares of Common Stock which the Subscriber is entitled to
purchase is as follows:
Maximum Offering Number: 622,665
multiplied by X
Number of Shares Owned by Subscriber as of Record Date: __________
divided by
Total Number of Shares Owned by All Other Stockholders
As of Record Date: 2,427,694
equals =
Number of Shares Offered to Subscriber,
Rounded Down to Nearest Whole Number of Shares: __________
Under the terms and conditions set forth in the Prospectus, the
Subscriber hereby irrevocably commits to purchase and subscribes for the
number of shares of Common Stock set forth below, at the purchase price of
$4.015 per share, or the aggregate purchase price set forth below:
Number of Shares of Common Stock Which Subscriber
Commits to Purchase (not to exceed ___________ shares: __________
multiplied by X
Purchase Price Per Share of $4.015: $4.015
equals =
Aggregate Purchase Price of Shares Purchased: $__________
THIS SUBSCRIPTION AGREEMENT MUST BE RETURNED TO FIRSTAR TRUST
COMPANY (THE "SUBSCRIPTION AGENT"), CORPORATE TRUST SERVICES, 1555 NORTH
RIVERCENTER DR., P.O. BOX 2077, MILWAUKEE, WI 53201-2077, BY 5:00 P.M.
CENTRAL TIME ON NOVEMBER 5, 1997 ("EXPIRATION DATE"). PAYMENT IN FULL
OF THE PURCHASE PRICE ("PURCHASE PRICE") FOR THE NUMBER OF SHARES OF
COMMON STOCK SUBSCRIBED FOR MUST BE MADE TOGETHER WITH THE RETURN OF THIS
SUBSCRIPTION AGREEMENT.
Payment may be made only by (a) check or bank draft drawn upon a
U.S. bank, or postal, telegraphic or express money order, payable to
Swing-N-Slide Corp., or (b) wire transfer of funds to the account
maintained by the Subscription Agent for the purpose of accepting
subscriptions, or (c) a combination of the foregoing. The Purchase Price
will be deemed to have been received by the Subscription Agent only upon
(i) clearance of any uncertified check, (ii) receipt by the Subscription
Agent of any certified check or bank draft drawn upon a U.S. bank or any
postal, telegraphic or express money order, or (iii) receipt of collected
funds in the Subscription Agent's account designated above.
THE METHOD OF DELIVERY OF THE SUBSCRIPTION AGREEMENT AND PAYMENT
OF THE PURCHASE PRICE TO THE SUBSCRIPTION AGENT ARE AT THE ELECTION AND
RISK OF THE SUBSCRIBER. IF SENT BY MAIL, THE SUBSCRIBER IS URGED TO SEND
THE SUBSCRIPTION AGREEMENT AND PAYMENTS BY REGISTERED MAIL, PROPERLY
INSURED, WITH RETURN RECEIPT REQUESTED, AND IS URGED TO ALLOW A SUFFICIENT
NUMBER OF DAYS TO ENSURE DELIVERY TO THE SUBSCRIPTION AGENT AND CLEARANCE
OF PAYMENT PRIOR TO THE EXPIRATION TIME.
IF PAYING BY UNCERTIFIED PERSONAL CHECK, PLEASE NOTE THAT THE
FUNDS PAID THEREBY MAY TAKE AT LEAST FIVE (5) BUSINESS DAYS TO CLEAR.
ACCORDINGLY, IF THE SUBSCRIBER WISHES TO PAY THE PURCHASE PRICE BY MEANS
OF UNCERTIFIED PERSONAL CHECK, THE SUBSCRIBER IS URGED TO MAKE PAYMENT
SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO ENSURE THAT SUCH PAYMENT
IS RECEIVED AND CLEARS BY SUCH TIME, AND IS URGED TO CONSIDER IN THE
ALTERNATIVE PAYMENT BY MEANS OF CERTIFIED OR CASHIER'S CHECK, MONEY ORDER
OR WIRE TRANSFER OF FUNDS.
For further information about this Offering, please refer to the
Prospectus or contact Richard E. Ruegger, Vice President, Swing-N-Slide
Corp., 1212 Barberry Drive, Janesville, Wisconsin 53545, phone number (608)
755-4777, or Wayne O. Hanewicz, Foley & Lardner, 150 East Gilman St.,
Madison, Wisconsin 53703, phone number (608) 258-4246.
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement as of the date set forth below.
Dated: _________________, 1997
_____________________________
Signature
(Must be signed exactly as name appears on stock certificate or on
security position listing.)
Print Name: ____________________________________
Address: ____________________________________
____________________________________
____________________________________
Telephone Number: ____________________________________
