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EXECUTION COPY
OPTION EXERCISE/CANCELLATION AGREEMENT
THIS OPTION EXERCISE/CANCELLATION AGREEMENT (this
"Agreement"), is dated as of April __, 2000, by and among PlayCore, Inc., a
Delaware corporation (the "Company"), Jasdrew Acquisition Corp., a Delaware
corporation ("Acquisition Company"), and _____________, a current director of
the Company ("Optionee").
WHEREAS, the Company has entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of April __, 2000, by and among the
Company, Acquisition Company and PlayCore Holdings, Inc., a Delaware corporation
("Parent"), pursuant to which (i) Acquisition Company and the Company, among
others, have agreed to make a joint tender offer (the "Offer") for all of the
outstanding common stock, $0.01 par value, of the Company ("Shares"), and (ii)
after consummation of the Offer, Acquisition Company will be merged with and
into the Company (the "Merger").
WHEREAS, pursuant to one or both of the Company's 1992 Stock
Program and the Company's 1996 Incentive Stock Plan (collectively, the "Plans"),
Optionee has been granted certain stock options to purchase Shares (the
"Options").
WHEREAS, as a condition to Acquisition Company and Parent
entering into the Merger Agreement, the Company has agreed to cause Optionee to
enter into this Agreement, pursuant to which the Optionee agrees that (i) upon
consummation of the Offer, if requested by Acquisition Company, Optionee will
exercise Optionee's Options that have a per Share exercise price (the "Exercise
Price") less than the price per Share paid in the Offer ("In-the-Money Options")
and sell to Acquisition Company the Option Shares that are issued to Optionee
upon the exercise of such In-the-Money Options (the "Exercised Shares"), (ii)
upon consummation of the Merger, the Company will cancel all of the Optionee's
Options that are not In-the-Money Options ("Out-of-the-Money Options"), and
cancel all the In-the-Money Options not exercised by Optionee for the
consideration provided in Section 2 below and (iii) he will tender any Shares
(other than the Exercised Shares) in the Offer as provided in Section 4 below.
NOW, THEREFORE, in consideration of the foregoing, the
agreements set forth herein and the mutual benefits to be gained by the
performance thereof, the Company, Acquisition Company and Optionee hereby agree
as follows:
1. Exercise of In-the-Money Options. The Optionee agrees that,
upon the consummation of the Offer and request by Acquisition Company, and
provided that Acquisition Company holds at least a majority of the outstanding
Shares at the time of such request, the Optionee shall (i) immediately exercise
all of the Optionee's In-the-Money Options in accordance with the terms of the
Plans and this Agreement, by delivery of a Notice of Exercise in the form
attached hereto as Exhibit A and (ii) sell to Acquisition Company all
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Exercised Shares at a price per Share equal to the price per share paid in the
Offer (the "Share Purchase Price"). The aggregate Exercise Price for the
Exercised Shares shall be paid by Optionee in the form of (i) a cash payment in
the form of a check payable to the Company in an amount equal to the product of
(a) the number of Exercised Shares and (b) the par value of such Exercised
Shares (such product, the "Cash Exercise Price") and (ii) a promissory note (the
"Optionee Note") in the form attached hereto as Exhibit B in a principal amount
equal to (x) the number of Exercised Shares multiplied by the Exercise Price
minus (y) the Cash Exercise Price. The Share Purchase Price shall be paid by
Acquisition Company by a promissory note (the "Acquisition Company Note") in the
form of Exhibit C attached hereto.
2. Cancellation of In-the-Money Options. In the event that
Acquisition Company has not requested the Optionee to exercise the Optionee's
In-the-Money Options pursuant to Section 1 above, Optionee hereby agrees that
the Company shall at the Effective Time (as defined in the Merger Agreement)
cancel all of the Optionee's In-the-Money Options in exchange for a cash payment
to Optionee in an amount equal to the product, as to each Option, of (a) the
Share Purchase Price less the Exercise Price per Share for each such Option
cancelled pursuant to this Section 2 and (b) the number of Shares subject to
such Option.
3. Cancellation of Out-of-the-Money Options. In consideration
of the agreements set forth herein and without further consideration, Optionee
further agrees that upon the exercise of the In-the-Money Options pursuant to
Section 1 or the cancellation of the In-the-Money Options pursuant to Section 2
above, the Company shall cancel all of Optionee's Out-of-the-Money Options.
4. Tender of Shares. Optionee hereby agrees to validly tender
(and not to withdraw) pursuant to and in accordance with the terms of the Offer
(provided that the Offer is commenced and not amended in a manner adverse to
Optionee), not later than the Expiration Date (as defined in the Merger
Agreement), the Shares (other than Exercised Shares) owned by Optionee. Each
Optionee hereby acknowledges and agrees that the obligation of the Company or
Acquisition Company to accept for payment and pay for Shares in the Offer,
including the Optionee's Shares, is subject to the terms and conditions of the
Offer.
5. Waiver and Release.
(a) Optionee hereby acknowledges the effect of and consents
to the exercise and/or cancellation of the Options as herein provided.
Without limiting the generality of the foregoing, upon exercise and/or
cancellation of the Options, Optionee waives all rights and benefits
associated with such Options and relinquishes any and all claims that
Optionee may have against the Company, Acquisition Company or Parent
related to such Options or the Plans.
(b) Upon the exercise and/or cancellation of the Options,
Optionee hereby unconditionally releases and discharges the Company,
Acquisition Company and Parent and their respective directors,
officers, employees, agents and assigns from, without limitation, any
and all claims, awards, damages, obligations, promises,
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liabilities or any other compensation whatsoever, arising or in any way
related to the Plans or the Options.
6. Other Covenants, Representations and Warranties of
Optionee. Optionee hereby represents, warrants and covenants to the Company and
Acquisition Company with respect to Optionee as follows:
(a) Ownership of Shares. Optionee is the owner of the: (i)
Options set forth on Schedule 1 hereto, which Schedule indicates the
number of Shares into which the Options are exercisable, the Plan under
which such Options were granted, the grant date of such Options and the
Exercise Price therefor, and (ii) the Shares set forth on Schedule 1.
On the date hereof, the Options and the Shares set forth on Schedule 1
hereto constitute all of the securities of the Company and its
subsidiaries owned of record by Optionee. Except with respect to any
applicable marital property rights, Optionee has sole power to issue
instructions with respect to the matters set forth in this Agreement,
sole power of disposition, sole power of exercise and conversion, sole
power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all
of the securities set forth opposite Optionee's name on Schedule 1
hereto, with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws, marital property laws
and the terms of this Agreement.
(b) Power; Binding Agreement. Optionee has the legal
capacity, power and authority to enter into and perform all of
Optionee's obligations under this Agreement. This Agreement has been
duly and validly executed and delivered by Optionee and constitutes a
valid and binding agreement of Optionee, enforceable against Optionee
in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(c) No Conflicts. (i) No filing with, and no permit,
authorization, consent or approval of, any state or federal public body
or authority or any other person or entity is necessary for the
execution of this Agreement by Optionee and the consummation by
Optionee of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by Optionee, the consummation
by Optionee of the transactions contemplated hereby or compliance by
Optionee with any of the provisions hereof shall (A) result in a
violation or breach of, or constitute (with or without notice or lapse
of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which
Optionee is a party or by which Optionee or any of Optionee's
properties or assets may be bound, or (B) violate any order, writ,
injunction, decree,
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judgment, order, statute, rule or regulation applicable to Optionee or
any of Optionee's properties or assets.
(d) No Encumbrances. Except pursuant to this Agreement and
any applicable marital property rights, Optionee's securities and the
certificates representing such securities are now, and at all times
during the term hereof will be, held by Optionee, or by a nominee or
custodian for the benefit of Optionee, free and clear of all claims,
options, third party rights, liens, hypothecations, security interests,
proxies, voting trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever.
(e) Restriction on Transfer, Proxies and Non-Interference.
Beginning on the date hereof and ending on the earlier of the Effective
Time or the Termination Date, except as required to comply with the
provisions of this Agreement, the Optionee shall not: (i) directly or
indirectly, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract or option
with respect to the sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of Optionee's securities
or any interest therein; (ii) grant any proxies or powers of attorney,
deposit any securities held by Optionee into a voting trust or enter
into a voting agreement with respect to any securities; (iii) take any
action that would make any representation or warranty of Optionee
contained herein untrue or incorrect or have the effect of preventing
or disabling Optionee from performing Optionee's obligations under this
Agreement; or (iv) acquire any Company securities.
(f) Waiver of Appraisal Rights. Each Optionee hereby waives
any rights of appraisal or rights to dissent from the Merger that
Optionee may have with respect to any securities held by Optionee.
(g) Reliance by Acquisition Company. Each Optionee
understands and acknowledges that Acquisition Company is entering into
the Merger Agreement in reliance upon Optionee's execution and delivery
of this Agreement.
(h) Further Assurances. From time to time and until the
Termination Date, at any other party's request and without further
consideration, Optionee shall execute and deliver such additional
documents and take all such further lawful action as may be reasonably
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
7. Representations and Warranties of the Company. The Company
hereby represents and warrants to Acquisition Company and Optionee as follows:
(a) Power; Binding Agreement. The Company has the legal
capacity, power and authority to enter into and perform all of the
Company's obligations under this Agreement. The execution, delivery and
performance of this Agreement has been duly authorized by the Company.
This Agreement has been duly and validly executed and delivered by the
Company and constitutes a valid and binding agreement of the
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Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(b) No Conflicts. (i) No filing with, and no permit,
authorization, consent or approval of, any state or federal public body
or authority or any other person or entity is necessary for the
execution of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions contemplated hereby or
compliance by the Company with any of the provisions hereof shall (A)
conflict with or result in any breach of any applicable organizational
documents of the Company, (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which the Company is a
party or by which the Company or any of the Company's properties or
assets may be bound, or (C) violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to the
Company or any of the Company's properties or assets.
8. Other Covenants, Representations and Warranties of
Acquisition Company. Acquisition Company hereby represents and warrants to the
Company and the Optionee as follows:
(a) Power; Binding Agreement. Acquisition Company has the
legal capacity, power and authority to enter into and perform all of
Acquisition Company's obligations under this Agreement. The execution,
delivery and performance of this Agreement has been duly authorized by
Acquisition Company. This Agreement has been duly and validly executed
and delivered by Acquisition Company and constitutes a valid and
binding agreement of Acquisition Company, enforceable against
Acquisition Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(b) No Conflicts. (i) No filing with, and no permit,
authorization, consent or approval of, any state or federal public body
or authority or any other person or entity is necessary for the
execution of this Agreement by Acquisition Company and the consummation
by Acquisition Company of the transactions contemplated hereby and
thereby and (ii) none of the execution and delivery of this
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Agreement by Acquisition Company, the consummation by Acquisition
Company of the transactions contemplated hereby or compliance by
Acquisition Company with any of the provisions hereof shall (A)
conflict with or result in any breach of any applicable organizational
documents of Acquisition Company, (B) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which Acquisition Company
is a party or by which Acquisition Company or any of Acquisition
Company's properties or assets may be bound, or (C) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to Acquisition Company or any of Acquisition Company's
properties or assets.
9. Miscellaneous.
(a) Amendment. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
(b) Waiver. Any party hereto may (i) extend the time for or
waive compliance with the performance of any obligation or other act of
any other party hereto or (ii) waive any inaccuracy in the
representations and warranties contained herein or in any document
delivered pursuant hereto. Any such extension or waiver shall be valid
only if set forth in an instrument in writing signed by the party or
parties to be bound thereby. The failure of any party to this Agreement
to assert any of its rights under this Agreement or otherwise shall not
constitute a waiver of those rights.
(c) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed
given if delivered personally or sent by telecopy or by overnight
courier (providing proof of delivery), if to the Optionee at the
address specified on the signature pages, and if to Acquisition Company
or the Company as specified below:
If to Acquisition Company: Chartwell Investments II LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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with a copy to: Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company PlayCore, Inc.
Riverfront Center, Suite 204
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention:
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxxx & Lardner
Firstar Center
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxx, III
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) Assignment, Binding Effect; Benefit. Neither this
Agreement nor any of the rights, interests or obligations hereunder
shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties hereto without the prior written
consent of the other parties, except that Acquisition Company may
assign, in its discretion, any or all of its rights, interests and
obligations hereunder to Parent or any direct or indirect subsidiary of
Parent, but no such assignment shall relieve Acquisition Company of any
of its obligations hereunder. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and
permitted assigns. Notwithstanding anything contained in this Agreement
to the contrary, nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts of laws thereof.
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(f) ENFORCEMENT. THE PARTIES AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT
WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE
OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE
ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THIS
AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS OF THIS
AGREEMENT IN ANY COURT OF THE UNITED STATES OR ANY STATE HAVING
JURISDICTION, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY
ARE ENTITLED AT LAW OR IN EQUITY.
(g) Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same
counterpart.
(h) Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
of this Agreement.
10. Withholding. Optionee agrees that the Company or
Acquisition Company may withhold from amounts paid to Optionee by Company or
Acquisition Company hereunder such amounts as shall be required by all
applicable federal, state and local laws, regulations and rulings.
11. Termination. This Agreement shall terminate upon
termination of the Merger Agreement (such date of termination being the
"Termination Date").
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IN WITNESS WHEREOF, the undersigned has executed this
document, effective as of the date recited above.
PLAYCORE, INC.
By:
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Name:
Title:
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IN WITNESS WHEREOF, the undersigned has executed this
document, effective as of the date recited above.
JASDREW ACQUISITION CORP.
By:
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Name:
Title:
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IN WITNESS WHEREOF, the undersigned has executed this
document, effective as of the date recited above.
OPTIONEE
--------------------------------
Address:
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SPOUSAL CONSENT
I am the spouse of the Optionee and I acknowledge having read
the foregoing Option Exercise/Cancellation Agreement ("Option Agreement") to be
executed by my spouse, that I understand the contents thereof and that I agree
that any interest I may have under the Wisconsin Marital Property law or
otherwise in any Shares or Options which are held in the name of my spouse shall
be disposed of in accordance with the Option Agreement. I consent to the Option
Agreement and waive any legal right I may have to assert a spousal community
property or marital property interest in the Shares or the Options. I represent,
warrant and covenant that any such spousal interest I may have shall be
asserted, if at all, only against my spouse, and not against Company or
Acquisition Company or any other person or entity. I further agree that this
consent shall bind my successors, assigns, personal representatives, heirs and
legatees.
Dated ________________, 2000
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(Signature of Spouse)
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EXHIBIT A
NOTICE OF EXERCISE
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STOCK OPTION EXERCISE NOTICE
I, ____________________________, hereby give notice to PlayCore, Inc.
of my exercise of the following stock options at the following exercise prices:
Number of Shares
Covered by Options Exercise Price
------------------ --------------
$ per share
------------------ --------
$ per share
------------------ --------
$ per share
------------------ --------
Total: $
------------------ ---------------
The aggregate exercise price for these options will be paid in cash in
an amount of $____________ and a secured demand note in the amount of
$______________.
Please issue the stock certificate(s) for the shares in my name and
deliver such stock certificate(s) to the following:
PlayCore, Inc.
c/o
-----------------------
--------------------------
--------------------------
Dated: March __, 2000
----------------------------
Name:
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EXHIBIT B
FORM OF OPTIONEE NOTE
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FORM OF PROMISSORY NOTE
$_________________ Dated: ______________, 2000
FOR VALUE RECEIVED, the undersigned, ____________________, an
individual residing at _____________________ (the "Borrower"), HEREBY PROMISES
TO PAY to PlayCore, Inc. (the "Lender"), the principal amount of
_________________________ U.S. DOLLARS ($____________________) in lawful money
of the United States of America.
ARTICLE I.
DEFINITIONS
As used in this Note, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Acquisition Company" means Jasdrew Acquisition
Corp., a Delaware corporation.
"Acquisition Company Note" means the Promissory Note
from Acquisition Company to Borrower, dated
_________________________________, 2000, substantially in the form
attached as Exhibit 3 to the Option Exercise Agreement.
"Option Exercise Agreement" means the Option
Exercise/Cancellation Agreement, dated as of _________________, 2000,
by and among Borrower, Lender and Acquisition Company.
"Option Shares" means Shares received by Borrower
upon exercise of options to purchase shares of Common Stock of the
Company.
"Security Agreement" means a pledge, assignment and
security agreement entered into by the Borrower for the benefit of the
Lender, in substantially the form of Exhibit A hereto, as such
agreement may be amended or modified from time to time.
ARTICLE II.
AMOUNT AND TERMS OF THE LOAN
SECTION 2.1. The Loan. The Lender agrees, on the terms and
conditions hereinafter set forth, to make a loan (the "Loan") to the Borrower on
the date hereof in the amount set forth above, in order for Borrower to pay the
exercise price (other than the per share par value) for the In-the-Money Options
(as defined in the Option Exercise Agreement).
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SECTION 2.2. Repayment. The Borrower shall repay the unpaid
principal amount of the Loan on earlier of the date on which (x) Acquisition
Company acquires the Option Shares for cash consideration or (y) Acquisition
Company satisfies its payment obligations on the Acquisition Company Note.
SECTION 2.3. Prepayments. The Borrower may prepay the Note, in
whole or in part, at any time without penalty.
SECTION 2.4. Payments and Computations. The Borrower shall
make each payment hereunder not later than 1:00 P.M. (Milwaukee time) on the day
when due in U.S. Dollars to the Lender at its address referred to in Section 5.2
in same day funds or by certified check.
ARTICLE III.
SECURITY AGREEMENT
The obligation of the Lender to make the Loan hereunder is
subject to the condition precedent that the Lender shall have received on or
before the date of such Loan the Security Agreement.
ARTICLE IV.
EVENTS OF DEFAULT
SECTION 4.1. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall admit in writing his inability to pay
his debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower
seeking to adjudicate the Borrower a bankrupt or insolvent, or seeking
liquidation, protection, relief, or composition of the Borrower or of his debts
under any law relating to bankruptcy, insolvency or relief of debtors, or
seeking the entry of an order for relief for the Borrower or for any substantial
part of his or her property; or
(b) The Security Agreement after delivery thereof pursuant to
Article 3 shall for any reason (other than pursuant to the terms thereof) cease
to create a valid security interest in any of the collateral purported to be
covered thereby,
then, and in any such event, the Lender may, by notice to the Borrower, declare
this Note and all other amounts payable under the Note to be forthwith due and
payable, whereupon this Note and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided, that
in the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, this Note and all
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such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. Amendments, Etc. No amendment or waiver of any
provision of this Note, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Lender and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 5.2. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Borrower, at its address as indicated in
the recital of parties to this Note; and if to the Lender, at its address at
__________________________, Attn: Xxxxxxx Xxxxx; or, as to each party, at such
other address and to such other individual as shall be designated by such party
in a written notice to the other party. All such notices and communications
shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective
when deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively.
SECTION 5.3. No Waiver; Remedies. No failure on the part of
the Lender to exercise, and no delay in exercising, any right under this Note
shall operate as a waiver hereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies provided in this Note are cumulative and not
exclusive of any remedies provided by law.
SECTION 5.4. Binding Effect. This Note shall (a) be binding
upon the Borrower and his personal representatives, estate, heirs, devisees,
legatees and assigns, (b) inure to the benefit of the Borrower and his assigns
and (c) be binding upon and inure to the benefit of the Lender and its
respective successors and assigns, except that the Borrower shall not have the
right to assign his rights hereunder or any interest herein without the prior
written consent of the Lender.
SECTION 5.5. Governing Law. This Note shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 5.6. Cost of Collection. Lender shall be entitled to
recover from Borrower all costs and expenses (including reasonable attorneys'
fees and costs) incurred in collecting any amounts due hereunder.
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IN WITNESS WHEREOF, the Borrower has executed and the Lender
has caused this Note to be executed by its officer thereunto duly authorized, in
each case, as of the date first above written.
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, as Borrower
----------------
CONSENTED TO AND ACKNOWLEDGED:
PLAYCORE, INC.
as Lender
By:
---------------------------------
Name:
Title:
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EXHIBIT A TO PROMISSORY NOTE
PLEDGE, ASSIGNMENT AND SECURITY AGREEMENT
PLEDGE, ASSIGNMENT AND SECURITY AGREEMENT, dated as of
__________________, 2000, made by the individual identified on the signature
page hereof (the "Pledgor"), residing at the address indicated for the Pledgor
on the signature page hereof, to PlayCore, Inc. (the "Pledgee").
PRELIMINARY STATEMENTS:
(1) The Pledgor has made a Promissory Note to the Pledgee,
(the "Note"), any terms defined therein and not otherwise defined herein being
used herein are as therein defined.
(2) The Pledgor is the owner of the number of Option Shares
set forth on the Signature Page hereof (the "Pledged Shares").
(3) The Note requires that the Pledgor shall grant the
security interest contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Pledgee to make the loans under the Note, the Pledgor hereby
agrees with the Pledgee as follows:
SECTION 1. Grant of Security. The Pledgor hereby assigns,
transfers and pledges to the Pledgee, and hereby grants to the Pledgee a
security interest in, all of the Pledgor's right, title and interest in, to and
under the following, whether now owned or hereafter acquired, wherever located
and whether now or hereafter existing (the "Collateral")
(a) the Pledged Shares; and
(b) all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such Pledged Shares:
SECTION 2. Security for Obligations. This Agreement secures
the payment of all obligations of the Pledgor now or hereafter existing under
the Note (all such obligations of the Pledgor being the "Obligations"). Without
limiting the generality of the foregoing, this Agreement secures the payment of
all amounts that constitute part of the Obligations and would be owed by the
Pledgor to the Pledgee under the Note but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Pledgor.
SECTION 3. Delivery of Collateral. All certificates or
instruments representing or evidencing the Collateral are being delivered to and
will be held by or on
21
behalf of the Pledgee pursuant hereto and shall be in suitable form for transfer
by delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Pledgee.
SECTION 4. Representations and Warranties. The Pledgor
represents and warrants as follows:
(a) The residence of the Pledgor is located at the address
specified on the signature page of this Agreement.
(b) The Pledgor is the legal and beneficial owner of the
Collateral free and clear of any lien, security interest, option or other charge
or encumbrance, except for the security interests created by this Agreement and
under the Option Exercise Agreement.
(c) This Agreement has been duly executed and delivered by the
Pledgor and is a valid and binding obligation of the Pledgor, enforceable
against the Pledgor in accordance with its terms.
(d) The execution and delivery by the Pledgor of this
Agreement and the performance of its obligations thereunder are within the
Pledgor's authority and capacity and do not contravene any law, regulation,
order or contractual restriction binding on or affecting the Pledgor.
SECTION 5. Further Assurances. (a) The Pledgor agrees that
from time to time, at the expense of the Pledgee, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Pledgee may reasonably
request, in order to perfect and protect any pledge, assignment or security
interest granted or purported to be granted hereby or to enable the Pledgee to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral.
SECTION 6. Transfers and Other Liens. The Pledgor shall not
(a) sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to , any of the Collateral or (b) create or permit
to exist any lien, security interest, option or other charge or encumbrance upon
or with respect to any of the Collateral, except for the security interest under
this Agreement.
SECTION 7. Pledgee Appointed Attorney-in-Fact. The Pledgor
hereby irrevocably appoints the Pledgee the Pledgor's attorney-in-fact after the
occurrence of an Event of Default, with full authority in the place and stead of
the Pledgor and in the name of the Pledgor or otherwise, from time to time in
the Pledgee's discretion, to take any action and to execute any instrument that
the Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement.
SECTION 8. Pledgee May Perform. If the Pledgor fails to
perform any agreement contained herein, the Pledgee may itself perform, or cause
performance of, such
2
22
agreement, and the reasonable expenses of the Pledgee incurred in connection
therewith shall be payable by the Pledgor.
SECTION 9. The Pledgee's Duties. The powers conferred on the
Pledgee hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. The Pledgee shall be
deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment equal to
that which the Pledgee accords its own property.
SECTION 10. Remedies. If any Event of Default shall have
occurred and be continuing, Pledgee shall, by Notice to Pledgor, be entitled to
take title to the Collateral and Pledgor shall take all action reasonably
requested by Pledgee to effectuate such transfer.
SECTION 11. Amendments; Etc. No amendment or waiver of any
provision of this Agreement, and no consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Pledgee, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 12. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered to it, if to the Pledgor or Pledgee, at its address
specified in the Note, or, as to either party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and other communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answer back or delivered
to the cable company, respectively.
SECTION 13. Continuing Security Interest. This Agreement shall
create a continuing security interest in the Collateral and shall (a) remain in
full force and effect until the payment in full of the Obligations and all other
amounts payable under the Note, (b) be binding upon the Pledgor, its successors
and assigns and (c) inure to the benefit of, and be enforceable by, the Pledgee
and its successors, transferees and assigns.
SECTION 14. Release and Termination. The security interest
granted hereby shall terminate and all rights to the Collateral shall revert to
the Pledgor upon the payment in full of the Obligations and all other amounts
payable under the Note.
SECTION 15. Governing Law; Terms. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
3
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IN WITNESS WHEREOF, the Pledgor has duly executed and
delivered this Agreement, and the Pledgee has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized, as of the date
first above written.
--------------------------------------
; as Pledgor
----------------------
Address:
-------------------------------
---------------------------------------
PLAYCORE, INC.
as Pledgee
By:
----------------------------------
Title:
Number of Shares owned by Pledgor: Shares.
-----------------------
24
FORM OF SPOUSAL CONSENT
The undersigned, spouse of _________________, a holder of stock of
PlayCore, Inc., a Delaware corporation (the "Company"), executing the foregoing
Promissory Note and Pledge, Assignment and Security Agreement, hereunto
subscribes [HIS/HER] name in evidence of [HIS/HER] agreement and consent to the
pledge of interests of the Company referred to in the foregoing Promissory Note
and Pledge, Assignment and Security Agreement, and to all other provisions
thereof.
Effective as of _________________, 2000.
----------------------------------
Name:
-----------------------------
25
EXHIBIT C
FORM OF ACQUISITION COMPANY NOTE
26
FORM OF PROMISSORY NOTE
$_________________ Dated: ______________, 2000
FOR VALUE RECEIVED, the undersigned, Jasdrew Acquisition
Corp., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to
________________________, an individual residing at
_________________________________ (the "Lender") the principal amount of
_________________________ U.S. DOLLARS ($____________________) in lawful money
of the United States of America.
ARTICLE I.
DEFINITIONS
As used in this Note, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Merger Agreement" means the Merger Agreement,
dated as of _________________, 2000, by and among Borrower, PlayCore
Holdings, Inc., a Delaware corporation, and PlayCore, Inc., a Delaware
corporation.
"Option Shares" means all Shares received by Borrower
upon exercise of options to purchase shares of Common Stock of the
Company.
ARTICLE II.
AMOUNT AND TERMS OF THE LOAN
SECTION 2.1. The Loan. The Lender has, on the terms and
conditions hereinafter set forth, made a loan (the "Loan") to the Borrower on
the date hereof in the amount set forth above, in connection with Borrower's
purchase of the Option Shares.
SECTION 2.2. Repayment. The Borrower shall repay the unpaid
principal amount of the Loan on the earlier to occur of (a) the date on which
the Merger contemplated by the Merger Agreement is consummated or (b) 48 hours
following the issuance of the Note.
SECTION 2.3. Prepayments. The Borrower may prepay the Note, in
whole or in part, at any time without penalty.
SECTION 2.4. Payments and Computations. The Borrower shall
make each payment hereunder not later than 3:00 P.M. (Milwaukee time) on the day
when due in U.S. Dollars to the Lender at its address referred to in Section 5.2
in same day funds or by certified check.
27
ARTICLE III.
EVENTS OF DEFAULT
SECTION 3.1. Events of Default. If Borrower shall admit in
writing his inability to pay his debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Borrower seeking to adjudicate the Borrower a bankrupt or
insolvent, or seeking liquidation, protection, relief, or composition of the
Borrower or of his debts under any law relating to bankruptcy, insolvency or
relief of debtors, or seeking the entry of an order for relief for the Borrower
or for any substantial part of his or her property, then this Note shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Amendments, Etc. No amendment or waiver of any
provision of this Note, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Lender and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 4.2. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Lender, at its address as indicated in
the recital of parties to this Note; and if to the Borrower, at its address at
__________________________, Attn: Xxxxxxx Xxxxx; or, as to each party, at such
other address and to such other individual as shall be designated by such party
in a written notice to the other party. All such notices and communications
shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective
when deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively.
SECTION 4.3. No Waiver; Remedies. No failure on the part of
the Lender to exercise, and no delay in exercising, any right under this Note
shall operate as a waiver hereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies provided in this Note are cumulative and not
exclusive of any remedies provided by law.
SECTION 4.4. Binding Effect. This Note shall (a) be binding
upon the Borrower and its personal representatives, estate, heirs, devisees,
legatees and assigns, (b) inure to the benefit of the Borrower and its assigns
and (c) be binding upon and inure to the benefit of the Lender and his or her
respective successors and assigns, except that the
2
28
Borrower shall not have the right to assign his rights hereunder or any interest
herein without the prior written consent of the Lender.
SECTION 4.5. Governing Law. This Note shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 4.6. Cost of Collection. Lender shall be entitled to
recover from Borrower all costs and expenses (including reasonable attorneys'
fees and costs) incurred in collecting any amounts due hereunder.
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IN WITNESS WHEREOF, the Borrower has executed and the Lender
has caused this Note to be executed by its officer thereunto duly authorized, in
each case, as of the date first above written.
-----------------------------------
By:
Name:
CONSENTED TO AND ACKNOWLEDGED:
--------------------------------
as Lender
--------------------------------
Name:
4
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SCHEDULE 1
XXXXXXX X. XXXXXX
OPTIONS:
PLAN GRANTED UNDER GRANT DATE EXERCISE PRICE UNDERLYING SHARES
------------------ ---------- -------------- -----------------
1992 1/25/93 $5.3800 4,758
1992 4/28/94 5.3800 4,758
1992 2/15/95 5.3800 2,418
1996 4/26/96 4.0000 5,000
1996 5/22/97 3.6250 5,000
1996 9/30/97 4.7500 7,500
1996 10/31/97 4.7500 7,500
1996 11/30/97 4.7500 7,500
1996 12/31/97 4.7500 7,500
1996 6/05/98 4.8125 5,000
1996 5/27/99 6.0000 5,000
SHARES CURRENTLY OWNED: 247
--------------------------------------------------------------------------------
XXXXXX X. XXXX
OPTIONS:
PLAN GRANTED UNDER GRANT DATE EXERCISE PRICE UNDERLYING SHARES
------------------ ---------- -------------- -----------------
1996 5/27/99 $6.0000 5,000
SHARES CURRENTLY OWNED: 0
--------------------------------------------------------------------------------
31
XXXX X. XXXXXX
OPTIONS:
PLAN GRANTED UNDER GRANT DATE EXERCISE PRICE UNDERLYING SHARES
------------------ ---------- -------------- -----------------
1996 5/22/97 $3.6250 5,000
1996 6/05/98 4.8125 5,000
1996 5/27/99 6.0000 5,000
SHARES CURRENTLY OWNED: 0
--------------------------------------------------------------------------------
XXXXXX X. XXXXXXX
OPTIONS:
PLAN GRANTED UNDER GRANT DATE EXERCISE PRICE UNDERLYING SHARES
------------------ ---------- -------------- -----------------
1996 4/26/96 $4.0000 5,000
1996 5/22/97 3.6250 5,000
1996 6/05/98 4.8125 5,000
1996 5/27/99 6.0000 5,000
SHARES CURRENTLY OWNED: 0
