EXECUTION COPY
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STOCK PURCHASE AGREEMENT
AMONG
PLAYCORE HOLDINGS, INC.,
JASDREW ACQUISITION CORP.,
PLAYCORE, INC.,
AND
THE STOCKHOLDERS LISTED HEREIN
dated as of April 13, 2000
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TABLE OF CONTENTS
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Page
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1. Definitions..............................................................1
2. Purchase of Purchase Shares and Securities...............................2
2.1 Purchase of Purchase Shares........................................2
2.2 Purchase of Securities.............................................3
2.3 Purchase Price and Securities Purchase Price.......................3
2.4 Purchase Closing...................................................3
2.5 Payment of Purchase Price and Securities
Purchase Price.....................................................3
2.6 Conversion of Securities...........................................4
3. Other Covenants, Representations and Warranties of
Stockholders.............................................................4
3.1 Ownership of Securities............................................4
3.2 Power; Binding Agreement...........................................4
3.3 No Conflicts.......................................................5
3.4 No Encumbrances....................................................5
3.5 No Solicitation....................................................5
3.6 Restriction on Transfer, Proxies and
Non-Interference...................................................6
3.7 Waiver of Appraisal Rights.........................................6
3.8 Reliance by Acquisition Company....................................6
3.9 Further Assurances.................................................6
3.10 No Finder's Fees...................................................6
4. Parent and Acquisition Company Representations,
Warranties and Covenants.................................................7
5. Provisions Concerning Company Common Stock...............................7
6. Conduct as to Subject Securities.........................................8
6.1 Permission to Disclose.............................................8
6.2 Stop Transfer; Changes in Shares...................................8
7. Conduct as a Director....................................................8
8. Miscellaneous............................................................8
8.1 Entire Agreement...................................................8
(i)
8.2 Certain Events.....................................................8
8.3 Assignment.........................................................9
8.4 Amendments, Waivers, Etc...........................................9
8.5 Notices............................................................9
8.6 Severability......................................................11
8.7 Specific Performance..............................................11
8.8 Remedies Cumulative...............................................11
8.9 No Waiver.........................................................11
8.10 No Third Party Beneficiaries......................................12
8.11 Governing Law.....................................................12
8.12 Jurisdiction......................................................12
8.13 Descriptive Headings..............................................12
8.14 Counterparts; Effectiveness.......................................12
8.15 Termination.......................................................12
8.17 Irrevocable Proxy.................................................12
EXHIBITS
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Exhibit A - Form of Irrevocable Proxy
SCHEDULES
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Schedule 1 - List of Stockholders and Securities Ownership
(ii)
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated April 13, 2000, among PlayCore Holdings,
Inc., a Delaware corporation ("Parent"), Jasdrew Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Acquisition Company"),
PlayCore, Inc., a Delaware corporation (the "Company"), and the other parties
signatory hereto (individually a "Stockholder" and collectively, the
"Stockholders").
WITNESSETH:
WHEREAS, concurrently herewith, Parent, Acquisition Company and the
Company, are entering into an Agreement and Plan of Merger (as such agreement
may hereafter be amended from time to time, the "Merger Agreement"), pursuant to
which Acquisition Company will be merged with and into the Company (the
"Merger"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, the parties hereto have required that they agree, and such parties
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1. "Acquisition Company" shall have the meaning set forth in the
recitals hereto.
1.2. "Company" shall have the meaning set forth in the recitals
hereto.
1.3. "Company Common Stock" shall mean at any time the Common Stock,
$.01 par value, of the Company.
1.4. "Existing Shares" shall mean, with respect to any Stockholder,
the number of shares of Company Common Stock set forth opposite such
Stockholder's name on Schedule 1 hereto.
1.5. "Merger" shall have the meaning set forth in the recitals hereto.
1.6. "Merger Agreement" shall have the meaning set forth in the
recitals hereto.
1.7. "Notice" shall have the meaning set forth in Section 2.4 hereto.
1.8. "Parent" shall have the meaning set forth in the recitals hereto.
1.9. "Proxy" shall have the meaning set forth in Section 8.16 hereto.
1.10. "Purchase Closing" shall have the meaning set forth in Section
2.4 hereto.
1.11. "Purchase Price" shall have the meaning set forth in Section 2.3
hereto.
1.12. "Purchase Price Per Share" shall have the meaning set forth in
Section 2.3 hereto.
1.13. "Purchase Securities" shall have the meaning set forth in
Section 2.2 hereto.
1.14. "Purchase Shares" shall mean, with respect to any Stockholder,
the Existing Shares and any Shares acquired by such Stockholder after the date
hereof.
1.15. "Securities" shall mean securities of the Company other than
Company Common Stock.
1.16. "Securities Purchase Price" shall have the meaning set forth in
Section 2.3 hereto.
1.17. "Shares" shall mean shares of Company Common Stock.
1.18. "Stockholder" shall have the meaning set forth in the recitals
hereto.
1.19. "Subject Securities" shall mean the Purchase Shares and the
Securities.
1.20. "Termination Date" shall have the meaning set forth in Section
8.15 hereto.
1.21. Capitalized Terms. Capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Merger Agreement.
2. Purchase of Purchase Shares and Securities.
2.1 Purchase of Purchase Shares. Subject to the terms and provisions
of this Agreement, at the Purchase Closing, Acquisition Company agrees to and
shall purchase from each Stockholder and each Stockholder agrees to and shall
sell to Acquisition Company all of such Stockholder's right, title and interest
in and to the Purchase Shares for the consideration specified below in Section
2.3.
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2.2 Purchase of Securities. Subject to the terms and provisions of
this Agreement, at the Purchase Closing, Acquisition Company agrees to and shall
purchase from each Stockholder and each Stockholder agrees to and shall sell to
Acquisition Company all of such Stockholder's right, title and interest in and
to all outstanding Securities owned by such Stockholder (the "Purchase
Securities") for the consideration specified below in Section 2.3.
2.3 Purchase Price and Securities Purchase Price. In full
consideration for the Purchase Shares, Acquisition Company shall pay each
Stockholder a cash purchase price per share of Company Common Stock equal to the
highest cash price paid by Acquisition Company or the Company pursuant to the
Offer, the Merger or otherwise (other than pursuant to Section 3.2 of the Merger
Agreement and other than in the settlement or other resolution of litigation)
(the "Purchase Price Per Share", and as an aggregate, the "Purchase Price"). In
full consideration for the Purchase Securities, Acquisition Company shall pay to
each Stockholder a cash purchase price equal to the Purchase Price Per Share for
each share of Company Common Stock such Stockholder would have received had such
Stockholder exercised or converted such Purchase Securities into Company Common
Stock, net of any cost of such exercise or conversion (the "Securities Purchase
Price").
2.4 Purchase Closing. Subject to the terms and conditions of this
Agreement, the closing of the purchase and sale of the Purchase Shares and the
Purchase Securities provided for herein (the "Purchase Closing") will occur on
the first business day after the Acceptance Date, or on such other date as
Acquisition Company and the Stockholders may mutually determine. Acquisition
Company shall send a written notice (the "Notice") to the Stockholders
identifying the place for the Purchase Closing not less than two business days
prior to the Purchase Closing.
2.5 Payment of Purchase Price and Securities Purchase Price. The
payment of the Purchase Price and the aggregate Securities Purchase Price shall
be made by Acquisition Company by wire transfer in immediately available funds
on the date of the Purchase Closing, and each Stockholder's portion of the
Purchase Price and the aggregate Securities Purchase Price shall be directed to
the account of such Stockholder specified on Schedule 1 hereto; provided,
however, that, in the event the Purchase Price Per Share is increased after the
Purchase Closing pursuant to Section 2.3, the aggregate amount of such increase
per Share shall be paid to each Stockholder in immediately available funds at
the earliest of (a) within one business day after the Effective Time or (b) the
date of any earlier payment of such increased Purchase Price Per Share.
2.6 Conversion of Securities. The Company shall permit exercises and
conversions of the Purchase Securities and shall cause shares of Company Common
Stock to be issued to
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Acquisition Company if Acquisition Company purchases the Purchase Securities
immediately upon any such exercise or conversion.
3. Other Covenants, Representations and Warranties of Stockholders. Each
Stockholder hereby represents, warrants and covenants, severally and not
jointly, to Parent with respect to such Stockholder as follows:
3.1 Ownership of Securities. Stockholder is the record and beneficial
owner of the number of Subject Securities set forth opposite such Stockholder's
name on Schedule 1 hereto. On the date hereof, the Subject Securities set forth
opposite such Stockholder's name on Schedule 1 hereto constitute all of the
Subject Securities and Shares owned of record by such Stockholder. Stockholder
has sole voting power and sole power to issue instructions with respect to the
matters set forth in this Agreement and the Proxy (as defined below), 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 and Proxy, in each case with respect to all of the Subject Securities
set forth opposite Stockholder's name on Schedule 1 hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement and the Proxy.
3.2 Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of Stockholder's obligations
under this Agreement and the Proxy. The execution, delivery and performance of
this Agreement and the Proxy have been duly authorized by such Stockholder and
do not and will not violate any other agreement to which Stockholder is a party
or by which any of such Stockholder's Subject Securities are bound, including,
without limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement and the Proxy have been duly and validly executed and
delivered by Stockholder and constitute valid and binding agreements of such
Stockholder, enforceable against such Stockholder in accordance with their
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).
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which Stockholder is trustee whose consent is required
for the execution and delivery of this Agreement, the Proxy or the consummation
by the Stockholder of the transactions contemplated hereby and thereby.
3.3 No Conflicts. Except for filings under the HSR Act, the Exchange
Act and any applicable state antitrust laws, (a) no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority or any
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other person is necessary for the execution of this Agreement and the Proxy by
Stockholder and the consummation by Stockholder of the transactions contemplated
hereby and thereby and (b) none of the execution and delivery of this Agreement
and the Proxy by Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby and thereby or compliance by Stockholder with
any of the provisions hereof or thereof shall (i) conflict with or result in any
breach of any applicable organizational documents of Stockholder, (ii) 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 Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, judgment, order, statute,
rule or regulation applicable to Stockholder or any of Stockholder's properties
or assets.
3.4 No Encumbrances. Except pursuant to this Agreement and the Proxy,
Stockholder's Subject Securities and the certificates representing such Subject
Securities are now, and at all times during the term hereof will be, held by
such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, and will be transferred to Acquisition Company or the Company (as
the case may be) at the Purchase Closing, 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, except for any such encumbrances or proxies arising hereunder.
3.5 No Solicitation. Until the earlier of the Effective Time or the
Termination Date, Stockholder shall not, in its capacity as such, directly or
indirectly, solicit (including by way of furnishing information) or respond to
any inquires or the making of any proposal by any person or entity, or enter
into any negotiations, agreements or understandings with any Person (other than
Parent, Acquisition Company or a Person designated by Parent) with respect to
the Company that constitutes an Acquisition Proposal. If Stockholder receives
any such inquiry or proposal in its capacity as a Stockholder, then Stockholder
shall promptly inform Parent of the existence thereof, specifying therein the
details thereof and the name of the Person making such inquiry or proposal.
3.6 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 or the Proxy, the Stockholder shall not: (a) directly or indirectly,
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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 such Stockholder's Subject Securities or any interest therein; (b)
grant any proxies or powers of attorney, deposit any Subject Securities into a
voting trust or enter into a voting agreement with respect to any Subject
Securities; (c) take any action that would make any representation or warranty
of such Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling Stockholder from performing Stockholder's obligations
under this Agreement or the Proxy; or (d) acquire any Company Common Stock
(other than acquisition upon exercise or conversion of Securities).
3.7 Waiver of Appraisal Rights. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that Stockholder may
have with respect to any Purchase Shares.
3.8 Reliance by Parent. Each Stockholder understands and acknowledges
that Parent is entering into, and causing Acquisition Company to enter into, the
Merger Agreement in reliance upon Stockholder's execution and delivery of this
Agreement and the Proxy.
3.9 Further Assurances. From time to time and until the Termination
Date, at any other party's request and without further consideration, each party
hereto 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 and the Proxy.
3.10 No Finder's Fees. Other than existing financial advisory and
investment banking arrangements and agreements entered into by the Company, no
broker, investment banker, financial adviser or other person is entitled to any
broker's, finder's, financial adviser's or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of such Stockholder.
4. Parent and Acquisition Company Representations, Warranties and
Covenants. Parent and Acquisition Company hereby represent and warrant to each
Stockholder as to the matters set forth in Article V of the Merger Agreement, as
if such representations and warranties had been set forth in their entirety
herein and addressed to each Stockholder.
5. Provisions Concerning Company Common Stock. Each Stockholder hereby
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of the Effective Time or the Termination Date, at any
meeting of the holders of Company Common Stock, however called, or in connection
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with any written consent of the holders of Company Common Stock, such
Stockholder shall vote (or cause to be voted) the Purchase Shares including any
Shares acquired by such Stockholder after the date hereof: (a) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in furtherance
thereof and hereof; (b) against any action, any failure to act, or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or this Agreement (before giving effect to any materiality or similar
qualifications contained therein); and (c) except as otherwise agreed to in
writing in advance by Parent, against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its Subsidiaries; (ii)
declaration of any dividend or issuance of any securities of the Company (other
than upon exercise or conversion of Securities outstanding prior to the date
hereof) or any of its Subsidiaries, (iii) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (iv) (A) any change in a majority of the persons who
constitute the board of directors of the Company; (B) any change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or Bylaws; (C) any other material change in the Company's
corporate structure or business; or (D) any other action involving the Company
or its Subsidiaries which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or materially adversely affect the
Merger and the transactions contemplated by, or which would result in a breach
of, this Agreement and the Merger Agreement. Each Stockholder agrees that it
shall not enter into any agreement with any Person prior to the Termination Date
the effect of which would be to violate the provisions and agreements contained
in this Section 5.
6. Conduct as to Subject Securities.
6.1 Permission to Disclose. Each Stockholder hereby agrees to permit
Parent and Acquisition Company to publish and disclose in any documents filed
with any Governmental or Regulatory Authority in connection with the Merger,
including the Proxy Statement (including all documents and schedules filed with
the SEC), its identity and ownership of Company Common Stock and Securities and
the nature of its commitments, arrangements and understandings under this
Agreement.
6.2 Stop Transfer; Changes in Shares. Each Stockholder agrees with,
and covenants to, Parent that beginning on the date hereof until the Termination
Date, such Stockholder shall not request that the Company, and the Company
hereby agrees
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with, and covenants to, Parent that beginning on the date hereof and ending on
the Termination Date it will not, register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of
such Stockholder's Subject Securities, unless such transfer is made in
compliance with this Agreement. In the event of a dividend or distribution, or
any change in the Company Common Stock by reason of any dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such dividends
and distributions and any shares into which or for which any or all of the
Shares may be changed or exchanged and the Purchase Price Per Share shall be
appropriately adjusted.
7. Conduct as a Director. Notwithstanding anything in this Agreement to the
contrary, the covenants and agreements set forth herein shall not prevent any of
the Stockholders' designees serving on the Company's Board of Directors from
taking any action, subject to the applicable provisions of the Merger Agreement,
while acting in such designee's capacity as a director of the Company; provided,
that, such action shall not in any manner affect Stockholders' obligations under
this Agreement or the Proxy.
8. Miscellaneous.
8.1 Entire Agreement. This Agreement, the Proxy and the Merger
Agreement constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, among any of the parties with respect to
the subject matter hereof.
8.2 Certain Events. Each Stockholder agrees that this Agreement and
the Proxy and the obligations hereunder and thereunder shall attach to such
Stockholder's Subject Securities and shall be binding upon any person or entity
to which legal or beneficial ownership of such Securities shall pass, whether by
operation of law or otherwise, including, without limitation, such Stockholder's
heirs, guardians, administrators or successors. Notwithstanding any transfer of
Subject Securities, the transferor shall remain liable for the performance of
all obligations of the transferor under this Agreement.
8.3 Assignment. This Agreement shall not be assigned without the prior
written consent of the other parties hereto and no rights, or any direct or
indirect interest herein, shall be transferable hereunder without the prior
written consent of the other parties hereto; provided, that, Acquisition Company
may assign or transfer its rights hereunder to any other Person that is an
Affiliate of Parent, which assignment shall not relieve Parent of any of its
respective obligations hereunder.
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8.4 Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by all of the parties
to this Agreement.
8.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier services, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
If to Stockholders: At the addresses set forth on Schedule 1 hereto
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with a copy to: Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Parent or 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
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, Xxxxxxxxx 00000
Attention:
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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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.
8.6 Severability. Whenever possible, each provision or portion of any
provision of this Agreement and the Proxy will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement or the Proxy is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement and the Proxy will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
8.7 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement or the Proxy will cause the other parties to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved parties shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which they may be entitled, at law or in equity.
8.8 Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or the Proxy or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
8.9 No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or the Proxy or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder or thereunder, and any
custom or practice of the parties at variance with the terms hereof or thereof,
shall not constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
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8.10 No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
8.11 Governing Law. This Agreement and the Proxy shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
8.12 Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the District of
Delaware or any court of the State of Delaware located in the City of Wilmington
in any action, suit or proceeding arising in connection with this Agreement or
the Proxy, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 8.12 and
shall not be deemed to be a general submission to the jurisdiction of said
Courts or in the State of Delaware other than for such purposes.
8.13 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
8.14 Counterparts; Effectiveness. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement. Notwithstanding the
foregoing, this Agreement shall not be effective as to any Stockholder until
executed by all parties hereto.
8.15 Termination. This Agreement will automatically terminate upon the
termination of the Merger Agreement for any reason (the date of such termination
being referred to herein as the "Termination Date").
8.16 Irrevocable Proxy. Each Stockholder acknowledges that,
concurrently with the execution of this Agreement, it has executed and delivered
to Acquisition Company an Irrevocable Proxy, the form of which is attached
hereto as Exhibit A hereto (the "Proxy").
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
"PARENT" PLAYCORE HOLDINGS, INC.
By: /s/
-----------------------------------
Name:________________________________
Title:_______________________________
"ACQUISITION COMPANY" JASDREW ACQUISITION CORP.
By: /s/
-----------------------------------
Name:________________________________
Title:_______________________________
"COMPANY" PLAYCORE, INC.
By: /s/
-----------------------------------
Name:________________________________
Title:_______________________________
"STOCKHOLDER" GREENGRASS HOLDINGS
By: /s/
-----------------------------------
Name:________________________________
Title:_______________________________
SCHEDULE 1 TO
STOCK PURCHASE AGREEMENT
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Number of Warrants
(and Shares into which
Name, Address and Bank Number of such Warrants are Amount of
Account of Stockholder Shares Owned exercisable) Debentures
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GreenGrass Holdings 5,345,905 1 Warrant to purchase $7,257,912.86
50,000 Shares convertible
into
1,376,568
Shares
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Schedule 1-1
EXHIBIT A
to Stock Purchase Agreement
IRREVOCABLE PROXY
The undersigned stockholder of PlayCore, Inc., a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent provided by law, but
subject to automatic termination and revocation as provided below) appoints
Jasdrew Acquisition Corp., a Delaware corporation (the "Acquisition Company"),
the attorney and proxy of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
the shares of capital stock of the Company owned beneficially or of record by
the undersigned, which shares are listed on the final page of this Proxy, and
any and all other shares or securities of the Company issued or issuable with
respect thereof or otherwise acquired by stockholder on or after the date
hereof, until the Termination Date (as defined in the Stock Purchase Agreement
referred to below), in all instances (the "Shares"). Upon the execution hereof,
all prior proxies given by the undersigned with respect to the Shares are hereby
revoked and no subsequent proxies will be given as to the matters covered hereby
prior to the Termination Date. This proxy is irrevocable (to the fullest extent
provided by law, but subject to automatic termination and revocation as provided
below), coupled with an interest, and is granted in connection with the Stock
Purchase Agreement, dated as of April 13, 2000, among the Company, Parent,
Acquisition Company and the Stockholders party thereto, including the
undersigned stockholder (the "Stock Purchase Agreement", capitalized terms not
otherwise defined herein being used herein as therein defined), and is granted
in consideration of the Company entering into the Merger Agreement referred to
therein.
The attorney and proxy named above will be empowered at any time prior to
the Termination Date to exercise all voting and other rights with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual, special
or adjourned meeting of shareholders of the Company and in every written consent
in lieu of such a meeting, or otherwise: (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
of the terms thereof and the Stock Purchase Agreement and each of the other
actions contemplated by the Merger Agreement and the Stock Purchase Agreement
and any actions required in furtherance thereof; (ii) against any action, any
failure to act, or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or the Stock Purchase Agreement (before
giving effect to any materiality or similar qualifications contained therein);
and (iii) against the following actions (other than the Merger and the
transactions contemplated
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by the Merger Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or any
of its Subsidiaries; (B) declaration of any dividend or issuance of any equity
securities of the Company (other than upon exercise or conversion of Securities
outstanding prior to the date hereof) or any of its Subsidiaries; (C) a sale,
lease or transfer of a material amount of assets of the Company or its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or its Subsidiaries; (D) (1) any change in a majority of the
persons who constitute the board of directors of the Company; (2) any change in
the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or Bylaws; (3) any other material change in the
Company's corporate structure or business; or (4) any other action involving the
Company or its Subsidiaries which is intended, or could reasonably be expected,
to impede, interfere with, delay, postpone, or materially adversely affect the
Merger and the transactions contemplated by, or which would result in a breach
of, this Agreement and the Merger Agreement.
The attorney and proxy named above may only exercise this proxy to vote the
Shares subject hereto in accordance with the preceding paragraph, and may not
exercise this proxy in respect of any other matter. The undersigned shareholder
may vote the Shares (or grant one or more proxies to vote the Shares) on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This proxy is irrevocable, but shall automatically terminate and be revoked
and be of no further force and effect upon termination of the Stock Purchase
Agreement on the Termination Date.
Dated: April ____, 2000 STOCKHOLDER
By:__________________________________
Name:________________________________
Title:_______________________________
Shares Owned: ______________
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