Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PLAYCORE, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3808989
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Riverfront Centre
Suite 204 53545
15 West Milwaukee Street (Zip Code)
Janesville, Wisconsin
(Address of principal executive offices)
PlayCore, Inc. 1996 Incentive Stock Plan
(Full title of the plan)
Frederic L. Contino
President and Chief Executive Officer Copy to:
PlayCore, Inc.
Riverfront Centre Benjamin F. Garmer, III
Suite 204 Foley & Lardner
15 West Milwaukee Street 777 East Wisconsin Avenue, Suite 3700
Janesville, Wisconsin 53545 Milwaukee, Wisconsin 53202
(608) 741-7183 (414) 271-2400
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share Price Registration Fee
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Common Stock,
$.01 par value 1,200,000 shares $6.236(1) $7,483,212.50(1) $2,081
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(1) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee based on the offering
prices of 1,074,000 shares of Common Stock and the average of the high and low
sale prices of 126,000 shares of Common Stock as reported on the American Stock
Exchange on May 14, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed with the Securities and Exchange Commission
("Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by PlayCore, Inc.
(the "Company") with the Commission and are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, which includes audited financial statements as of and for the
year ended December 31, 1998.
(b) All other reports filed by the Company or the Plan pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1998.
(c) The description of the Company's Common Stock contained in Item 1
of the Company's Registration Statement on Form 8-A, dated August 3, 1995, filed
with the Commission pursuant to Section 12 of the Exchange Act, and any
amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of filing
of this Registration Statement and prior to such time as the Company files a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Set forth below is a description of certain provisions of the Company's
Amended Certificate of Incorporation and Bylaws and the Delaware General
Corporation Law ("DGCL"), as such provisions relate to the
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indemnification of the directors and officers of the Company. 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.
The Company's Amended Certificate of Incorporation provides that the
Company shall, to the full extent permitted by the DGCL, as amended form 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.
The Company maintains insurance on behalf of its officers and directors
which, subject to certain exceptions, covers liabilities under the Securities
Act of 1933.
Under the terms of a Transaction Agreement dated January 4, 1996, as
amended February 12, 1996 (the "Transaction Agreement"), between the Company and
GreenGrass Holdings, a Delaware general partnership which owns approximately 72%
of the outstanding Common Stock of the Company, the Company is required to
indemnify and provide insurance to the officers and directors of the Company and
PlayCore Wisconsin, Inc. (formerly Newco, Inc.), a wholly-owned subsidiary of
the Company ("PlayCore Wisconsin"), 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 under the Transaction Agreement ("Purchase Date"),
the Company must (subject to certain terms, conditions and qualifications)
provide officers' and directors' liability insurance covering each present and
former director or officer of the Company or PlayCore Wisconsin, 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, the Company'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 the Company's Amended Certificate of Incorporation and
Bylaws, and PlayCore Wisconsin's Articles of Incorporation and Bylaws, as in
effect on January 4, 1996; and (c) proper provision be made so that the
Company's successors, assigns and transferees of
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all or substantially all the Company's assets assume the indemnification and
insurance obligations set forth in the Transaction Agreement (without relieving
the Company of its obligations thereunder).
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
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(4) PlayCore, Inc. 1996 Incentive Stock Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of Ernst & Young LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit 5
hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
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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 the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. 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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Janesville, and State of Wisconsin, on this 5th
day of May, 1999.
PLAYCORE, INC.
By: /s/ Frederic L. Contino
Frederic L. Contino,
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints Frederic L. Contino and Richard E. Ruegger, and each of
them individually, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and revocation, 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 this Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, may lawfully do or cause to be
done by virtue hereof.
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Signature Title Date
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/s/ Frederic L. Contino President, Chief Executive Officer
Frederic L. Contino (Principal Executive Officer) and
Director May 5, 1999
/s/ Richard E. Ruegger Vice President and Chief Financial
Richard E. Ruegger Officer (Principal Financial and
Accounting Officer) May 5, 1999
/s/ David S. Evans
David S. Evans Director May 5, 1999
/s/ George N. Herrera
George N. Herrera Director May 4, 1999
Timothy R. Kelleher Director May __, 1999
/s/ Terence S. Malone
Terence S. Malone Chairman of the Board and Director May 4, 1999
/s/ Gary A. Massel
Gary A. Massel Director May 5, 1999
/s/ Ronald Wray
Ronald Wray Director May 4, 1999
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EXHIBIT INDEX
PLAYCORE, INC. 1996 INCENTIVE STOCK PLAN
Exhibit No. Exhibit
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(4) PlayCore, Inc. 1996 Incentive Stock Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of Ernst & Young LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit
5 hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
Exhibit 4
PLAYCORE, INC.
(formerly Swing-N-Slide Corp.)
1996 INCENTIVE STOCK PLAN
Section 1. Purpose
The purpose of the PlayCore, Inc. 1996 Incentive Stock Plan (the
"Plan") is to promote the interests of PlayCore, Inc. (together with its wholly
owned subsidiary, Newco, Inc. and any successors to said entities, the
"Company") and its stockholders, by encouraging and providing for the
acquisition of an equity interest in the success of the Company by key employees
and by enabling the Company and its Affiliates (as defined below) to attract and
retain the services of key employees upon whose judgment, interest, skills, and
special effort the successful conduct of their operations is largely dependent.
In addition, the Plan is designed to promote the best interests of the Company
and its stockholders by providing a means to attract and retain competent
directors who are not employees of the Company, any Affiliate or of any
GreenGrass Affiliate (as defined below) and to provide opportunities for stock
ownership by such directors which will increase their proprietary interest in
the Company and, consequently, their identification with the interests of the
stockholders of the Company.
Section 2. Effective Date
The Plan shall become effective on April 1, 1996, subject, however, to
the approval of the Plan by the stockholders of the Company at the next annual
meeting of stockholders within twelve months following the date of adoption of
the Plan by the Board.
Section 3. Definitions
As used in the Plan, the following terms shall have the respective
meanings set forth below:
(a) "Affiliate" means any entity that, directly or through one or more
intermediaries, is controlled by, controls, or is under common control with, the
Company.
(b) "Award" means any Option, Stock Appreciation Right, Bonus Share or
Director Option granted under the Plan.
(c) "Award Agreement" means any written agreement, contract, or other
instrument or document evidencing any Award granted under the Plan.
(d) "Board" means the Board of Directors of the Company.
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(e) "Bonus Shares" means any shares of Stock delivered pursuant to
Section 10 of the Plan.
(f) A "Change of Control" shall be deemed to have occurred on the date
on which (i) any Person or group of Persons acting in concert become the
beneficial owner, directly or indirectly, or otherwise possess the voting rights
of securities representing in excess of fifty percent (50%) of the voting
securities of the Company, except for GreenGrass Holdings, a Delaware general
partnership ("GreenGrass Holdings"), GreenGrass Capital LLC, a Delaware limited
liability company ("Capital"), or any member of Capital on the date hereof, or
their respective affiliates (the "Permitted Holders"); (ii) the Company sells or
otherwise disposes of all or substantially all of its assets other than to an
entity which is a Permitted Holder; (iii) persons who, at the beginning of any
twelve (12) consecutive month period, constitute the Board cease, at the end of
such period, to constitute a majority of the Board, and any Person or group of
Persons acting in concert become the beneficial owner, directly or indirectly,
or otherwise possess the voting rights of securities representing in excess of
fifty percent (50%) of the voting securities of the Company within such
twelve-month period; or (iv) the Company merges with or into any other entity
unless the surviving corporation in the merger is a Permitted Holder.
(g) "Code" means the Internal Revenue Code of 1986 and the regulations
thereunder, as amended from time to time.
(h) "Commission" means the United States Securities and Exchange
Commission or any successor agency.
(i) "Committee" means the compensation committee of the Board
designated by such Board to administer the Plan and composed of not less than
two directors, each of whom is a "disinterested person" within the meaning of
Rule 16b-3.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
(k) "Fair Market Value" means the fair market value of the Stock
determined by such methods or procedures as shall be established from time to
time by the Committee; provided, however, that the Fair Market Value shall not
be less than the par value of the Stock; and provided further, that so long as
the Stock is traded on a public market, Fair Market Value means the closing
price of a share of Stock on the relevant date as reported on the composite list
used by the Wall Street Journal for reporting stock prices, or if no such sale
shall have been made on that day, on the last preceding day on which there was
such a sale.
(l) "GreenGrass Affiliate" means any entity that, directly or through
one or more intermediaries, is controlled by, controls, or is under common
control with Capital.
(m) "Key Employee" means any officer or other key employee of the
Company or of any Affiliate who is responsible for or contributes to the
management, growth
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or profitability of the business of the Company or any Affiliate as determined
by the Committee.
(n) "Non-Employee Director" means any member of the Board who is not an
employee of the Company, any Affiliate or of any GreenGrass Affiliate.
(o) "Option" means the right to purchase Stock at a stated price for a
specified period of time. For purposes of the Plan, an Option may be either (i)
an "incentive stock option" within the meaning of Section 422 of the Code; or
(ii) a "nonqualified stock option."
(p) "Participant" means any Key Employee designated by the Committee to
be granted an Award under the Plan.
(q) "Rule 16b-3" means Rule 16b-3 as promulgated by the Commission
under the Exchange Act or any successor rule or regulations thereto.
(r) "Stock" means the Common Stock of the Company, par value of $.01
per share.
(s) "Stock Appreciation Right" means any right granted pursuant to
Section 9 of the Plan.
Section 4. Administration
The Plan shall be administered by the Committee; provided, however,
that if at any time the Committee shall not be in existence, the functions of
the Committee as specified in the Plan shall be exercised by a committee
comprised solely of those members of the Board who qualify as "disinterested
persons" under Rule 16b-3.
Subject to the terms of the Plan and applicable law, the Committee
shall have full power and authority to: (i) designate Participants; (ii)
determine the type or types of Awards to be granted to Participants under the
Plan; (iii) determine the number of shares to be covered by (or with respect to
which payments, rights, or other matters are to be calculated in connection
with) Awards granted to Participants; (iv) determine the terms and conditions of
any Award granted to a Participant; (v) determine whether, to what extent, and
under what circumstances Awards granted to Participants may be settled or
exercised in cash, shares of Stock, other securities, other Awards, or other
property, or canceled, forfeited, or suspended to the extent permitted in
Section 15 of the Plan, and the method or methods by which Awards may be
settled, exercised, canceled, forfeited, or suspended; (vi) determine whether,
to what extent, and under what circumstances cash, shares of Stock, other
securities, other Awards, other property, and other amounts payable with respect
to an Award granted to Participants under the Plan shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) modify or amend any Award or waive any restrictions or conditions
applicable to any Award, (viii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan (including,
without limitation, any
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Award Agreement); (ix) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (x) make any other determination and take any
other action that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time, and shall be final, conclusive, and binding
upon all persons, including the Company, any Affiliate, any Participant, any
Non-Employee Director, any holder or beneficiary of any Award, any stockholder,
and any employee of the Company or of any Affiliate. Notwithstanding the
foregoing, Awards to Non-Employee Directors under the Plan shall be automatic
and the amount, terms and conditions of such Awards shall be determined as
provided in Section 11 of the Plan.
Section 5. Eligibility and Participation
Participants in the Plan shall be selected by the Committee from among
those Key Employees, including any executive officer or employee-director of the
Company or of any Affiliate, who, in the opinion of the Committee, are in a
position to contribute materially to the Company's continued growth and
development and to its long-term financial success. All Non-Employee Directors
shall receive Awards as provided in Section 11.
Section 6. Stock Subject to Plan
6.1 Number. Subject to adjustment as provided in Section 6.3, the total
number of shares of Stock with respect to which Awards may be granted pursuant
to the Plan shall be 1,200,000. The total number of shares of Stock subject to
issuance pursuant to Options granted under the Plan and Stock Appreciation
Rights granted under the Plan to any one person may not exceed 350,000. A Stock
Appreciation Right that is granted in connection with an Option pursuant to
Section 8.1 shall not be counted for purposes of applying the limitation of this
Section 6.1. The shares to be delivered under the Plan may consist, in whole or
in part, of authorized but unissued Stock or treasury Stock, not reserved for
any other purpose.
6.2 Unused Stock; Unexercised Rights. If, after the effective date of
the Plan, any shares of Stock covered by an Award granted under the Plan, or to
which any Award relates, are forfeited or if an Award otherwise terminates,
expires or is canceled prior to the delivery of all of the shares of Stock or of
other consideration issuable or payable pursuant to such Award then the number
of shares of Stock counted against the number of shares available under the Plan
in connection with the grant of such Award, shall again be available for
granting of additional Awards under the Plan to the extent permitted by Section
15 and to the extent determined to be appropriate by the Committee.
6.3 Adjustment in Capitalization. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of cash,
Stock, other securities or other property), recapitalization, stock split,
reverse stock split, reorganization,
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merger, consolidation, split-up, spin-off, combination, repurchase or exchange
of Stock or other securities of the Company, issuance of warrants or other
rights to purchase Stock or other securities of the Company, or other similar
corporate transaction or event affects the Stock, other than where such
transaction or event is in consideration for additional fair value, such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee may, in such manner as it may
deem equitable, adjust any or all of (i) the number and type of shares of Stock
subject to the Plan and which thereafter may be made the subject of Awards under
the Plan; (ii) the number and type of shares of Stock subject to outstanding
Awards; and (iii) the grant, purchase or exercise price with respect to any
Award, or, if deemed appropriate, make provision for a cash payment to the
holder of an outstanding Award; provided, however, in each case, that with
respect to Awards of incentive stock options no such adjustment shall be
authorized to the extent that such authority would cause such options to cease
to be treated as incentive stock options; and provided further, however, that
the number of shares of Stock subject to any Award payable or denominated in
Stock shall always be a whole number. Notwithstanding the foregoing, Director
Options subject to grant or previously granted to Non-Employee Directors under
the Plan at the time of any event described in the preceding sentence shall be
subject to only such adjustments as shall be necessary to maintain the
proportionate interest of the Non-Employee Directors and preserve, without
exceeding, the value of such Director Options. Notwithstanding anything
contained herein to the contrary, any adjustment by the Committee under this
Section 6.3 shall not increase the number of shares of Stock that may be
purchased pursuant to the exercise of the Options issued under the Plan by more
than six percent (6%) of the issued and outstanding shares of Stock immediately
prior to the date of such adjustment if the adjustment results from the issuance
of one or more warrants (the "Warrants") by the Company to Massachusetts Mutual
Massachusetts Mutual Life Insurance Company and its affiliates (collectively,
"MassMutual") pursuant to that certain Securities Purchase Agreement dated March
12, 1997, by and among the Company and MassMutual, or any similar adjustments to
the number of shares of Stock which may be purchased upon the exercise of any of
the Warrants.
Section 7. Term of the Plan
No Award shall be granted under the Plan after March 31, 2001. However,
unless otherwise expressly provided in the Plan or in an applicable Award
Agreement, any Award theretofore granted may extend beyond such date, and, to
the extent set forth in the Plan, the authority of the Committee to amend,
alter, adjust, suspend, discontinue or terminate any such Award, or to waive any
conditions or restrictions with respect to any such Award, and the authority of
the Board to amend the Plan, shall extend beyond such date.
Section 8. Key Employee Stock Options
8.1 Grant of Options. Subject to the provision of Sections 6 and 7,
Options may be granted to Participants at any time and from time to time as
shall be determined by the Committee. The Committee shall have complete
discretion in determining the number of Options granted to each Participant. The
Committee also shall determine whether an Option is
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to be an incentive stock option within the meaning of Section 422 of the Code or
a nonqualified stock option. However, in no event shall the aggregate Fair
Market Value (determined at the date of grant) of Stock with respect to which
incentive stock options are exercisable for the first time by a Participant
during any calendar year exceed $100,000. Nor shall any incentive stock option
be granted to any person who owns, directly or indirectly, stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company. Nothing in this Section 8 of the Plan shall be deemed to prevent the
grant of nonqualified stock options in excess of the maximum established by
Section 422 of the Code.
8.2 Award Agreement. Each Option shall be evidenced by an Award
Agreement that shall specify the type of Option granted, the Option price, the
duration of the Option, the number of shares of Stock to which the Option
pertains and such other provisions as the Committee shall determine.
8.3 Option Price. The Option price shall be determined by the
Committee, but shall not for any incentive stock option be less than 100% of the
Fair Market Value of the Stock on the date the Option is granted.
8.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time it is granted, provided, however, that no
incentive stock option shall be exercisable later than the tenth (10th)
anniversary date of its grant.
8.5 Exercise of Options. Subject to the provisions of Section 14,
Options granted under the Plan shall be exercisable at such times and be subject
to such restrictions and conditions as the Committee shall in each instance
approve, which need not be the same for all Participants.
8.6 Payment. The Committee shall determine the method or methods by
which, and the form or forms, including, without limitation, cash, shares of
Stock, other securities, other Awards, or other property, or any combination
thereof, having a Fair Market Value on the exercise date equal to the relevant
exercise price, in which payment of the exercise price with respect to an Option
may be made or deemed to have been made.
8.7 Incentive Stock Options. The terms of any incentive stock option
granted under the Plan shall comply in all respects with the provisions of
Section 422 of the Code, or any successor provision thereto, and any regulations
promulgated thereunder. Notwithstanding any provision in the Plan to the
contrary, no incentive stock option may be granted hereunder after the tenth
anniversary of the adoption of the Plan by the Board.
8.8 Restrictions on Stock Transferability. The Committee may impose
such restrictions on any shares of Stock acquired pursuant to the exercise of an
Option under the Plan as it may deem advisable, including, without limitation,
restrictions under applicable Federal securities law, under the requirements of
any stock exchange upon which such shares of Stock are then listed, under any
blue sky or state securities laws applicable to such shares and under any
agreements with Capital, GreenGrass Management LLC or any of their Affiliates to
which the Participants are bound.
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Section 9. Stock Appreciation Rights
9.1 Grant of Stock Appreciation Rights. Subject to the provisions of
Sections 6 and 7, Stock Appreciation Rights may be granted to Participants.
Non-Employee Directors are not eligible to be granted Stock Appreciation Rights
under the Plan. Each grant of Stock Appreciation Rights shall be in writing. A
Stock Appreciation Right may relate to a specific Option granted under the Plan
and may, in such case, relate to all or part of the Option shares covered by the
related Option, or may be granted independently of any Option granted under the
Plan.
9.2 Exercise or Maturity of Stock Appreciation Rights. Stock
Appreciation Rights shall be exercisable or shall mature at such time or times,
on the conditions and to the extent and in the proportion, that any related
Option is exercisable and may be exercised or mature for all or part of the
shares of Stock subject to the related Option. In the case of a Stock
Appreciation Right that is granted independently of any Option granted under the
Plan, such Rights shall be exercisable or shall mature at such time or times, on
the conditions and to the extent and in the proportion set forth in the grant.
Notwithstanding the preceding sentence, a Stock Appreciation Right granted under
the Plan to a Participant who is an officer of the Company or an Affiliate
subject to Section 16 of the Exchange Act shall not be exercisable until at
least six months have elapsed from the date of grant of such Stock Appreciation
Right.
9.3 Effect of Exercise. Upon exercise of any number of Stock
Appreciation Rights, the number of Option shares subject to any related Option
shall be reduced accordingly and such Option shares may not again be subject to
an Option under this Plan. The exercise of any number of Options shall result in
an equivalent reduction in the number of Option shares covered by the related
Stock Appreciation Right and such shares may not again be subject to a Stock
Appreciation Right under this Plan; provided, however, that if a Stock
Appreciation Right was granted for less than all of the Option shares covered by
any related Option, any such reduction shall be made at such time as, and only
to the extent that, the number of shares exercised under the related Option
exceeds the number of Option shares not covered by the Stock Appreciation Right.
9.4 Payment of Stock Appreciation Right Amount. On exercise or maturity
of the Stock Appreciation Right, the holder shall be entitled to receive payment
of an amount determined by multiplying:
(a) The difference between the Fair Market Value of a share of Stock at
the date of exercise over the price fixed by the Committee at the date of grant,
by
(b) The number of shares with respect to which the Stock Appreciation
Right is exercised.
In the case of a Stock Appreciation Right which is granted in
conjunction with an Option, the amount determined under (a) above shall be
determined by using a price fixed by the Committee at the date of grant which
does not exceed the option price of any related incentive stock option. The
holder of a Stock Appreciation Right shall receive payment in cash
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or a combination of cash and Stock, the Fair Market Value of which is to be
determined as of the date of exercise or maturity of the Stock Appreciation
Right, all in accordance with the terms and conditions of the written grant of
the Stock Appreciation Right.
9.5 Rule 16b-3 Requirements. Notwithstanding any other provision of the
Plan, the Committee may impose such conditions on exercise of a Stock
Appreciation Right (including, without limitation, the right of the Committee to
limit the time of exercise to specified periods) as may be required to satisfy
the requirements of Rule 16b-3 under the Exchange Act.
Section 10. Bonus Shares
The Committee is authorized to provide Participants the opportunity to
elect to receive such portion, as determined by the Committee, of cash bonuses
under the Company's management incentive compensation program in the form of
shares of Stock ("Bonus Shares"). If a Participant is subject to Section 16 of
the Exchange Act, the election to receive Bonus Shares must be made at least six
months prior to the date cash bonuses are determined. All elections made under
this Section 10 by persons subject to Section 16 of the Exchange Act are
irrevocable and will remain in effect until another irrevocable election becomes
effective. Bonus Shares shall be issued in an amount equal to (a) the equivalent
dollar amount of bonus a Participant has elected to receive in Stock (subject to
such limits as may be prescribed by the Committee) divided by (b) the price per
share of Stock as determined by the Committee and shall be subject to such terms
and conditions as the Committee deems appropriate, including, without
limitation, restrictions on sale or other disposition.
Section 11. Non-Employee Director Stock Options
Each Non-Employee Director (including members of the Committee) who is
a director of the Company on the first day after the annual meeting of
stockholders of the Company during the term of the Plan shall automatically be
granted on each such date a fully vested non-qualified stock option for the
purchase of 5,000 shares of Stock ("Director Options") at a purchase price equal
to one hundred percent (100%) of the Fair Market Value of the shares on the date
each Director Option is granted. Director Options shall be exercisable for ten
(10) years from the date of grant and shall terminate ninety (90) days after the
Non-Employee Director ceases to serve as a director of the Company for any
reason, except that, in the event of a Change of Control, Director Options will
remain exercisable during the remaining term of the Director Option if the
Non-Employee Director ceases to serve as a director of the Company (or its
successor) at any time during the one-year period immediately following any such
Change of Control.
Section 12. Beneficiary Designation
Each Participant and Non-Employee Director under the Plan may, from
time to time, name any beneficiary or beneficiaries (who may be named
contingently or successively) to whom any benefit under the Plan is to be paid
in case of the Participant's or the Non-
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Employee Director's, as the case may be, death before he or she receives any or
all of such benefit. Each designation will revoke all prior designations, shall
be in a form prescribed by the Committee and will be effective only when filed
by the Participant or the Non-Employee Director in writing with the Committee
during his or her lifetime. In the absence of any such designation, benefits
remaining unpaid at the Participant's death shall be paid to the estate of the
Participant or the Non-Employee Director.
Section 13. Rights of Employees
Nothing in the Plan shall interfere with or limit in any way the right
of the Company or any Affiliate to terminate any Participant's employment at any
time nor confer upon any Participant any right to continue in the employ of the
Company or any Affiliate.
Section 14. Change of Control
In the event of a "Change of Control" (a) each Participant shall be
entitled to receive full vesting of the Option (i) for the fiscal year in which
the Change of Control occurred, if the Options for said year would have vested
by applying the EBITDA (as defined in the Award Agreement), or other measure of
performance as required by the Award Agreement for the 12-month period
immediately preceding the date of the Change of Control; and (ii) covering
future years beyond the year in which the Change of Control occurred, at the
percentage of fully diluted Stock for each such fiscal year determined by
multiplying the maximum percentage of fully diluted Stock available for Options
to be granted in such fiscal years times the rate by which the percentage of
fully diluted Stock relating to Options actually granted under subsection (i)
above for the year of the Change of Control bears to the maximum percentage of
fully diluted Stock available under the Plan for such year (for example, if the
Participant received 80% of the maximum percentage of fully diluted Stock
available under the Plan for year of the Change of Control, the Participant
would be entitled to receive full vesting of Options representing 80% of the
maximum percentage of fully diluted Stock available under the Plan for all
future years covered by the Plan);
(b) each holder of an Option and Director Option shall have the right
to a redemption, in the sole and absolute discretion of the Participant and
Non-Employee Director, of any or all Options and Director Options that are
vested in the Participant or Non-Employee Director in exchange for a payment of
cash in the amount of the value of such options, determined by multiplying the
applicable number of shares of Stock covered by such options by the difference
between the then Fair Market Value of such shares of Stock and the exercise
price for the Stock under the options; and
(c) each Option and Director Option shall remain exercisable during its
full term (i) if at any time the holder ceases to be an Employee or Director
during the one-year period immediately following any Change of Control or (ii)
if the Employee holder gives notice of his termination within thirty (30) days
after expiration of such one-year period.
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<PAGE>
The Committee may, in its sole and absolute discretion, amend, modify
or rescind the provisions of this Section 14 if it determines that the operation
of this Section 14 may prevent a transaction in which the Company or any
Affiliate is a party from being accounted for on a pooling-of-interests basis.
Section 15. Amendment, Modifications and Termination of Plan
The Board may at any time amend, alter, suspend, discontinue or
terminate the Plan; provided, however, that the provisions of Section 11 of the
Plan shall not be amended more than once every six (6) months, other than to
comport with changes in the Code, the Employee Retirement Income Security Act of
1974, as amended, or the rules promulgated thereunder; and provided further that
stockholder approval of any amendment of the Plan shall also be obtained if
otherwise required by (i) the rules and/or regulations promulgated under Section
16 of the Exchange Act (in order for the Plan to remain qualified under Rule
16b-3), (ii) the Code or any rules promulgated thereunder (in order to allow for
incentive stock options to be granted under the Plan, or (iii) the listing
requirements of the American Stock Exchange or any principal securities exchange
or market on which the Stock is then traded (in order to maintain the listing or
quotation of the Stock thereon). Termination of the Plan shall not affect the
rights of Participants or Non-Employee Directors with respect to Awards
previously granted to them, and all unexpired Awards shall continue in force and
effect after termination of the Plan except as they may lapse or be terminated
by their own terms and conditions.
No amendment, modification or termination of the Plan shall in any
manner adversely affect any Award theretofore granted under the Plan, without
the consent of the Participant or the Non-Employee Director, as the case may be.
Section 16. Tax Withholding
No later than the date as of which an amount first becomes includible
in the gross income of a Participant for federal income tax purposes with
respect to any Award under the Plan, the Participant shall pay to the Company,
or make arrangements satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. Unless otherwise determined by the
Committee, withholding obligations arising with respect to Awards to
Participants under the Plan may be settled with shares of Stock, including
shares that are part of, or are received upon exercise of, the Award that gives
rise to the withholding requirement. The obligations of the Company under the
Plan shall be conditional on such payment or arrangements, and the Company and
any Affiliate shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment otherwise due to the Participant. The Committee
may establish such procedures as it deems appropriate for the settling of
withholding obligations with shares of Stock, including, without limitation, the
establishment of such procedures as may be necessary to satisfy the requirements
of Rule 16b-3.
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Section 17. General
17.1 Rule 16b-3 Six-Month Limitations. Notwithstanding any other
provision of the Plan, to the extent required in order to comply with Rule
16b-3, any equity security offered pursuant to the Plan may not be sold for at
least six months after acquisition, except in the case of death or disability,
and any derivative security issued pursuant to the Plan shall not be exercisable
for at least six months, except in case of death or disability of the holder
thereof. Terms used in the preceding sentence shall, for the purposes of such
sentence only, have the meanings, if any, assigned or attributed to them under
Rule 16b-3.
17.2 No Consideration for Awards. Awards shall be granted to
Participants for no cash consideration unless otherwise determined by the
Committee.
17.3 Limits on Transfer of Awards. No Award and no right under any such
Award, shall be assignable, alienable, saleable or transferable by a Participant
or a Non-Employee Director otherwise than by will or by the laws of descent and
distribution; provided, however, that a Participant and a Non-Employee Director
may designate a beneficiary or beneficiaries to exercise his or her rights, and
to receive any property distributable, with respect to any Award as provided in
Section 12 hereof or transfer an Award to the extent allowed under Rule 16b-3 of
the Exchange Act, subject to terms and conditions of the Award Agreement and
Committee rules. Each Award, and each right under any Award, shall be
exercisable, during the lifetime of the Participant only by such individual or,
if permissible under applicable law, by such individual's guardian or legal
representative. No Award, and no right under any such Award, may be pledged,
alienated, attached or otherwise encumbered, and any purported pledge,
alienation, attachment or encumbrance thereof shall be void and unenforceable
against the Company or any Affiliate.
Section 18. Legal Construction
18.1 Requirements of Law. The granting of Awards under the Plan and the
issuance of shares of Stock in connection with an Award, shall be subject to all
applicable laws, rules and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.
18.2 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Delaware.
18.3 Severability. If any provision of the Plan or any Award Agreement
or any Award is or becomes or is deemed to be invalid, illegal or unenforceable
in any jurisdiction, or as to any person or Award, or would disqualify the Plan,
any Award Agreement or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan,
any Award Agreement or the Award, such provision shall be
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stricken as to such jurisdiction, person or Award, and the remainder of the
Plan, any such Award Agreement and any such Award shall remain in full force and
effect.
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Exhibit 5
FOLEY & LARDNER
CHICAGO FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
MILWAUKEE FACSIMILE (414) 297-4900 WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
SACRAMENTO
May 18, 1999
PlayCore, Inc.
Riverfront Centre, Suite 204
15 West Milwaukee Street
Janesville, WI 53545
Ladies & Gentlemen:
We have acted as counsel for PlayCore, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of a Form S-8 Registration
Statement (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), relating to 1,200,000 shares of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), which may be issued or
acquired pursuant to the PlayCore, Inc. 1996 Incentive Stock Plan (the "Plan").
In this regard, we have examined: (a) the Plan; (b) signed copies of
the Registration Statement; (c) the Company's Articles of Incorporation and
Bylaws, as amended to date; (d) resolutions of the Company's Board of Directors
relating to the Plan; and (e) such other documents and records as we have deemed
necessary to enable us to render this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation in good standing under the laws of the
State of Delaware.
2. The shares of Common Stock, when issued pursuant to the terms and
conditions of the Plan, and as contemplated in the Registration Statement, will
be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we are "experts" within
the meaning of Section 11 of the Securities Act or within the category of
persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the PlayCore, Inc. 1996 Incentive Stock Plan of our report
dated January 29, 1999, except for Note 12, as to which the date is February 16,
1999, with respect to the consolidated financial statements and schedules of
PlayCore, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
Milwaukee, Wisconsin ERNST & YOUNG LLP
May 20, 1999
