As filed with the Securities and Exchange Commission on March 15, 1999
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 15, 1999
PLAYBOY ENTERPRISES, INC.
-------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 1-6813 36-4249478
-------- ------ ----------
(State or other jurisdiction of (Commission File (IRS Employer
incorporation) Number) Identification No.)
680 NORTH LAKE SHORE DRIVE, CHICAGO, ILLINOIS 60611
- - --------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (312) 751-8000
--------------
NEW PLAYBOY, INC.
-----------------
(Former name or former address, if changed since last report)
================================================================================
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ITEM 5. OTHER EVENTS
On March 15, 1999, the Registrant, a holding company formed on April
30, 1998, became the parent holding company of and successor to Playboy
Enterprises, Inc., a Delaware corporation ("Old Playboy"), and Spice
Entertainment Companies, Inc., a Delaware corporation ("Spice"), as a result of
the consummation of the transactions contemplated by the Agreement and Plan of
Merger, dated as of May 29, 1998, as amended (the "Merger Agreement"), by and
among the Registrant, Old Playboy, Spice, Playboy Acquisition Corp., a Delaware
corporation ("Merger Sub P"), and Spice Acquisition Corp., a Delaware
corporation ("Merger Sub S"). A copy of the press release announcing the
consummation of these transactions is attached as Exhibit 99.2.
Under the Merger Agreement, (i) Merger Sub P merged into Old Playboy
with Old Playboy being the surviving corporation (the "Playboy Merger") and (ii)
Merger Sub S merged into Spice with Spice being the surviving corporation (the
"Spice Merger"). The Playboy Merger and the Spice Merger are referred to
collectively as the "Transactions."
Upon the consummation of the Playboy Merger:
(i) Old Playboy became a wholly owned subsidiary of the Registrant;
(ii) the name of Old Playboy was changed from "Playboy Enterprises,
Inc." to "Playboy Enterprises International, Inc.";
(iii) each share of Class A Common Stock, par value $.01 per share, of
Old Playboy ("Old Playboy Class A Common Stock") issued and
outstanding immediately prior to consummation of the Playboy
Merger, was automatically converted into one fully paid and
nonassessable share of the Class A Common Stock, par value $.01
per share, of the Registrant ("New Playboy Class A Common
Stock");
(iv) each share of Class B Common Stock, par value $.01 per share, of
Old Playboy ("Old Playboy Class B Common Stock") issued and
outstanding immediately prior to consummation of the Playboy
Merger, was converted into one fully paid and nonassessable share
of the Class B Common Stock, par value $.01 per share, of the
Registrant ("New Playboy Class B Common Stock"); and
(v) each outstanding option to purchase shares of Old Playboy Class A
Common Stock or Old Playboy Class B Common Stock was assumed by
the Registrant and converted into an option to
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purchase shares of New Playboy Class A Common Stock or New
Playboy Class B Common Stock, respectively, on substantially the
same terms and conditions as in effect immediately prior to the
consummation of the Transactions.
Immediately following the consummation of the Playboy Merger, the
Registrant filed a certificate of amendment to its certificate of incorporation
effecting a change of its name from "New Playboy, Inc." to "Playboy Enterprises,
Inc."
Upon the consummation of the Spice Merger:
(i) Spice became a wholly owned subsidiary of the Registrant;
(ii) each share of Common Stock, par value $.01 per share, of Spice
("Spice Common Stock") issued and outstanding immediately prior
to consummation of the Spice Merger, was automatically converted
into the right to receive (a) 0.1133 fully paid and nonassessable
shares of New Playboy Class B Common Stock, (b) 0.125 shares of
Common Stock, par value $.01 per share, of Directrix, Inc., a
recently formed Delaware corporation and formerly a wholly owned
subsidiary of Spice, and (c) $3.60 in cash (collectively, the
"Merger Consideration"); and
(iii) each option or warrant to purchase shares of Spice Common Stock
was deemed to have been exercised by its holder and was converted
into the right to receive the Merger Consideration for each of
the shares of Spice Common Stock deemed to have been acquired,
with the exercise price of the option or warrant being offset
first against the cash portion of the Merger Consideration and
then against the New Playboy Class B Common Stock portion of the
Merger Consideration.
The Registrant will issue new stock certificates to stockholders of
record of Spice in connection with the Spice Merger. The Registrant does not,
however, intend to issue new stock certificates to stockholders of record of Old
Playboy in connection with the Playboy Merger; instead, each certificate
representing issued and outstanding shares of Old Playboy Class A Common Stock
or Old Playboy Class B Common Stock immediately prior to the consummation of the
Playboy Merger will continue to evidence ownership of shares of New Playboy
Class A Common Stock or New Playboy Class B Common Stock, respectively, after
the consummation of the Playboy Merger.
Upon consummation of the Transactions, the New Playboy Class A Common
Stock and New Playboy Class B Common Stock will be registered under Section 12
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
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as provided by Rule 12g-3 under the Exchange Act. For purposes of Rule 12g-3,
the Registrant is the successor issuer to each of Old Playboy and Spice.
The New Playboy Class A Common Stock and New Playboy Class B Common
Stock have been substituted for the Old Playboy Class A Common Stock and Old
Playboy Class B Common Stock, respectively, on the New York Stock Exchange and
the Pacific Exchange. The New Playboy Class A Common Stock will continue to be
listed under the Old Playboy Class A Common Stock symbol, "PLA.A," and the New
Playboy Class B Common Stock will continue to be listed under the Old Playboy
Class B Common Stock symbol, "PLA," without interruption. The Spice Common Stock
will no longer be listed on the NASDAQ Small-Cap Market.
The Registrant's capital stock, which is comprised of the New Playboy
Class A Common Stock and the New Playboy Class B Common Stock, is more fully
described in Exhibit 99.1.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit
Number Description
------ -----------
2.1 Agreement and Plan of Merger, dated as of May 29, 1998,
by and among Playboy Enterprises, Inc., the Registrant,
Playboy Acquisition Corp., Spice Acquisition Corp. and
Spice Entertainment Companies, Inc. (incorporated by
reference to Exhibit 2.1 to the Registrant's
Registration Statement on Form S-4, Commission File No.
333-68139).
2.2 Amendment, dated as of November 16, 1998, to the
Agreement and Plan of Merger by and among Playboy
Enterprises, Inc., the Registrant, Playboy Acquisition
Corp., Spice Acquisition Corp. and Spice Entertainment
Companies, Inc. (incorporated by reference to Exhibit
2.2 to the Registrant's Registration Statement on Form
S-4, Commission File No. 333-68139).
2.3 Second Amendment, dated as of February 26, 1999, to the
Agreement and Plan of Merger by and among Playboy
Enterprises, Inc., the Registrant, Playboy Acquisition
Corp., Spice Acquisition Corp. and Spice Entertainment
Companies, Inc. (incorporated by reference to Exhibit
2.1 of the Registrant's Current Report on Form 8-K,
dated March 9, 1999).
3.1 Amended and Restated Certificate of Incorporation of the
Registrant.
3.2 Certificate of Amendment of the Amended and Restated
Certificate of Incorporation of the Registrant, dated
March 15, 1999.
3.3 Certificate of Amendment of the Amended and Restated
Certificate of Incorporation of the Registrant, dated
March 15, 1999.
3.4 Amended and Restated Bylaws of the Registrant.
99.1 Description of the Registrant's Capital Stock.
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Exhibit
Number Description
------ -----------
99.2 Press Release, dated March 15, 1999, of the Registrant
and Spice.
6
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
PLAYBOY ENTERPRISES, INC.
By: /s/ Howard Shapiro
------------------
Name: Howard Shapiro
Title: Executive Vice President,
Law and Administration,
General Counsel and Secretary
Date: March 15, 1999
7
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INDEX TO EXHIBITS
-----------------
Exhibit Page
Number Description Number
- - ------ ----------- ------
2.1 Agreement and Plan of Merger, dated as of May 29, 1998,
by and among Playboy Enterprises, Inc., the Registrant,
Playboy Acquisition Corp., Spice Acquisition Corp. and
Spice Entertainment Companies, Inc. (incorporated by
reference to Exhibit 2.1 to the Registrant's
Registration Statement on Form S-4, Commission File No.
333-68139).
2.2 Amendment, dated as of November 16, 1998, to the
Agreement and Plan of Merger by and among Playboy
Enterprises, Inc., the Registrant, Playboy Acquisition
Corp., Spice Acquisition Corp. and Spice Entertainment
Companies, Inc. (incorporated by reference to Exhibit
2.2 to the Registrant's Registration Statement on Form
S-4, Commission File No. 333-68139).
2.3 Second Amendment, dated as of February 26, 1999, to the
Agreement and Plan of Merger by and among Playboy
Enterprises, Inc., the Registrant, Playboy Acquisition
Corp., Spice Acquisition Corp. and Spice Entertainment
Companies, Inc. (incorporated by reference to Exhibit
2.1 of the Registrant's Current Report on Form 8-K,
dated March 9, 1999).
3.1 Amended and Restated Certificate of Incorporation of the 9
Registrant.
3.2 Certificate of Amendment of the Amended and Restated 17
Certificate of Incorporation of the Registrant, dated
March 15, 1999.
3.3 Certificate of Amendment of the Amended and Restated 18
Certificate of Incorporation of the Registrant, dated
March 15, 1999.
3.4 Amended and Restated Bylaws of the Registrant. 19
99.1 Description of the Registrant's Capital Stock. 32
99.2 Press Release, dated March 15, 1999, of the Registrant 36
and Spice.
8
EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NEW PLAYBOY, INC.
The undersigned, being the Executive Vice President, Law and
Administration, and General Counsel and the Secretary of NEW PLAYBOY, INC. (the
"Corporation"), a corporation organized and existing under the laws of the State
of Delaware, do hereby certify as follows:
1. The name of the Corporation is NEW PLAYBOY, INC. The date of filing
its original Certificate of Incorporation with the Secretary of State was April
30, 1998.
2. This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Section 245 of the General
Corporation Law of the State of Delaware. This Amended and Restated Certificate
of Incorporation restates and integrates and further amends the provisions of
the Corporation's Certificate of Incorporation as heretofore amended or
supplemented.
3. The text of the Amended and Restated Certificate of Incorporation,
as amended or supplemented heretofore, is hereby restated to read as herein set
forth in full:
FIRST: The name of the corporation is NEW PLAYBOY, INC.
SECOND: Its principal office in the State of Delaware is located at
1013 Centre Road, Wilmington. The name and address of its resident agent is
Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805.
THIRD: The nature of the business, or objects or purposes to be
transacted, promoted or carried on are:
To engage in the business of: publishing of all kinds; all phases of
entertainment and communications, including motion pictures, plays, radio,
television; the operation of hotels and resorts; and the operation of
establishments featuring food, beverage and entertainment.
To engage in any lawful act or activity, or engage in any business, for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of
Delaware
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upon corporations formed under the General Corporation Law of the State of
Delaware, and to do any or all of the things hereinbefore set forth to the same
extent as natural persons might or could do.
FOURTH: The total number of shares of all classes of capital stock
which the corporation shall have authority to issue is Thirty Seven Million Five
Hundred Thousand (37,500,000) shares of Common Stock, consisting of Seven
Million Five Hundred Thousand (7,500,000) shares of Class A Common Stock of the
par value of One Cent ($.01) per share and Thirty Million (30,000,000) shares of
Class B Common Stock of the par value of One Cent ($.01) per share.
A. TERMS OF COMMON STOCK
Except as otherwise required by law or as otherwise provided in this
certificate, each share of Class A Common Stock and each share of Class B Common
Stock shall have identical powers, preferences, qualifications, limitations and
other rights.
Subject to all of the rights of any class of stock authorized after the
effective date of this provision of Article FOURTH ranking senior to the Common
Stock as to dividends, dividends may be paid upon the Common Stock as and when
declared by the Board of Directors out of funds and other assets legally
available for the payment of dividends. The Board of Directors may declare a
dividend or distribution upon both classes of the Common Stock in shares of any
authorized class or series of capital stock of the corporation only if such
dividend or distribution is declared and paid proportionately to all holders of
both classes of Common Stock as follows: (i) in Class A Common Stock to the
holders of Class A Common Stock and in Class B Common Stock to the holders of
Class B Common Stock, (ii) in Class B Common Stock to the holders of Class A
Common Stock and Class B Common Stock, or (iii) in any other authorized class or
series of capital stock to the holders of both classes of Common Stock.
In the event of any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, and after the holders of any
class of stock authorized after the effective date of this provision of Article
FOURTH ranking senior to the Common Stock as to assets shall have been paid in
full the amounts to which such holders shall be entitled, or an amount
sufficient to pay the aggregate amount to which such holders shall be entitled
shall have been set aside for the benefit of the holders of such stock, the
remaining net assets of the corporation shall be distributed pro rata to the
holders of both classes of the Common Stock.
In the event of a merger or consolidation of the corporation with or
into another entity (whether or not the corporation is the surviving entity),
the holders of Class B Common Stock shall be entitle to receive the same per
share consideration as the per share consideration, if any, received by any
holder of the Class A Common Stock in such merger or consolidation.
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Except as otherwise expressly provided with respect to any other class
of stock and except as otherwise may be required by law or this certificate, the
Class A Common Stock shall have the exclusive right to vote for the election of
directors and for all other purposes and each holder of Class A Common Stock
shall be entitled to one vote for each share of Class A Common Stock held.
Except as expressly provided in this certificate and except as
otherwise required by law, the Class B Common Stock shall have no voting rights.
The corporation may not split, divide or combine the shares of either
class of Common Stock unless, at the same time, the corporation splits, divides
or combines, as the case may be, the shares of the other class of Common Stock
in the same proportion and manner.
B. ISSUANCE OF CLASS A COMMON STOCK IN MERGERS AND ACQUISITIONS
Class A Common Stock may be issued as consideration in a merger or
other transaction involving the acquisition of or exchange for securities,
assets, properties or other interests of any person or entity by the
corporation, only if such issuance is approved by the holders, as of a date not
more than thirty days prior to the effective date of such merger or other
transaction, of a majority of the outstanding shares of Class A Common Stock,
unless (i) Class B Common Stock is also issued as consideration in such merger
or other transaction, and (ii) the quotient determined by dividing the number of
shares of Class B Common Stock to be so issued by the number of shares of Class
A Common Stock to be so issued is greater than or equal to the quotient
determined, immediately prior to the effective time of such merger or other
transaction, by dividing the total number of outstanding shares of Class B
Common Stock by the total number of outstanding shares of Class A Common Stock.
C. MINORITY PROTECTION TRANSACTIONS
(i) If any person or group acquires beneficial ownership of additional
Class A Common Stock, or if any group of persons is formed, after the effective
date of this provision of Article FOURTH, and such acquisition (other than upon
original issuance by the corporation, by operation of law, by will or the laws
of descent and distribution, by gift or by foreclosure of a bona fide loan) or
formation results in such person or group owning 10% or more of the issued and
outstanding Class A Common Stock, and such person or group (a "Related Person")
does not then own an equal or greater percentage of the Class B Common Stock,
such person or group must, within a 90-day period beginning the day after
becoming a Related Person, make a public tender offer in compliance with all
applicable laws and regulations to acquire additional Class B Common Stock as
provided in this subsection C of Article FOURTH (a "Minority Protection
Transaction").
(ii) In each Minority Protection Transaction, the Related Person must
make a public tender offer to acquire that number of shares of Class B Common
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Stock determined by (a) multiplying the percentage of outstanding Class A Common
Stock beneficially owned by such Related Person by the total number of shares of
Class B Common Stock outstanding on the date such person or group became a
Related Person, and (b) subtracting therefrom the total number of shares of
Class B Common Stock beneficially owned by such Related Person on such date
(including shares acquired on such date at or prior to the time such person or
group became a Related Person). The Related Person must acquire all of such
shares validly tendered; provided, however, that if the number of shares of
Class B Common Stock tendered to the Related Person exceeds the number of shares
required to be acquired pursuant to the formula set forth in this clause (ii),
the number of shares of Class B Common Stock acquired from each tendering holder
shall be pro rata in proportion to the total number of shares or Class B Common
Stock tendered by all tendering holders.
(iii) The offer price for any shares of Class B Common Stock required
to be purchased by the Related Person pursuant to this provision shall be the
greater of (a) the highest price per share paid by the Related Person for any
share of Class A Common Stock in the six month period ending on the date such
person or group became a Related Person or (b) the highest bid price of a share
of Class A Common Stock or Class B Common Stock on the New York Stock Exchange
(or such other exchange or quotation system as is then the principal trading
market for such shares) on the date such person or group became a Related
Person. For purposes of clause (iv) below, the applicable date for the
calculations required by the preceding sentence shall be the date on which the
Related Person or Interested Stockholder (as defined therein), became required
to engage in a Minority Protection Transaction. In the event that the Related
Person has acquired Class A Common Stock in the six month period ending on the
date such person or group becomes a Related Person for consideration other than
cash, the value of such consideration per share of Class A Common Stock shall be
as determined in good faith by the Board of Directors.
(iv) A Minority Protection Transaction shall also be required to be
effected by any Related Person, and any other person or group that beneficially
owns 10% or more of the outstanding shares of Class A Common Stock on the
effective date of this provision of Article FOURTH (an "Interested
Stockholder"), that acquires beneficial ownership of additional shares of Class
A Common Stock (other than upon issuance or sale by the corporation, by
operation of law, by will or the laws of descent and distribution, by gift, or
by foreclosure of a bona fide loan) or joins with other persons to form a group,
whenever such additional acquisition or formation results in such Related Person
or Interested Stockholder owning the next higher integral multiple or 5% (e.g.
15%, 20%, 25%, etc.) of the outstanding shares of Class A Common Stock and such
Related Person or Interested Stockholder does not own an equal or greater
percentage of the shares of Class B Common Stock. Such Related Person or
Interested Stockholder shall be required to make a public tender offer to
acquire that number or shares of Class B Common Stock prescribed by the formula
set forth in clause (ii) above, and must acquire all shares validly tendered or
a pro rata portion thereof, as specified in said clause (ii), at the price
determined pursuant to clause (iii) above.
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(v) If any Related Person or Interested Stockholder fails to make an
offer required by this subsection C of Article FOURTH, or to purchase shares
validly tendered and not withdrawn (after proration, if any), such Related
Person or Interested Stockholder shall not be entitled to vote any shares of
Class A Common Stock beneficially owned by such Related Person or Interested
Stockholder unless and until such requirements are complied with or unless and
until all shares of Class A Common Stock causing such offer requirement to be
effective are no longer beneficially owned by such Related Person or Interested
Stockholder.
(vi) The Minority Protection Transaction requirement shall not apply to
any increase in percentage ownership of Class A Common Stock resulting solely
from a change in the total amount of Class A Common Stock outstanding, provided
that any acquisition by any person or group owning 10% or more of the Class A
Common Stock occurring after such change shall be subject to any Minority
Protection Transaction requirement that would be imposed with respect to a
Related Person or Interested Stockholder pursuant to clause (iv) of this
Subsection C of Article FOURTH.
(vii) If the person acquiring Class A Common Stock is the corporation,
treasury shares will be considered issued and outstanding for purposes of
determining the corporation's obligations hereunder.
(viii) All calculations with respect to percentage ownership of issued
and outstanding shares of either class of Common Stock will be based upon the
numbers of issued and outstanding shares reported by the corporation on the last
filed of (a) the corporation's most recent annual report on Form 10-K, (b) its
most recent Quarterly Report on Form 10-Q, or (c) if any, its most recent
Current Report on Form 8-K.
(ix) For purposes of this subsection C of this Article FOURTH, the term
"person" means a natural person, company, government, or political subdivision,
agency or instrumentality of a government, or other entity. "Beneficial
ownership" shall be determined pursuant to Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or any successor
regulation. The formation or existence of a "group" shall be determined pursuant
to Rule 13d-5(b) under the 1934 Act or any successor regulation.
(x) The corporation shall not take any corporate action, including,
without limitation, any amendment to this certificate (including any amendment
effected by merger or consolidation), which will adversely affect the rights of
the holders of the Class B Stock under this subsection C of Article FOURTH,
unless such action shall have been approved by the holders of a majority of the
outstanding shares of Class B Stock who are not Related Persons or Interested
Stockholders.
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D. NO PRE-EMPTIVE RIGHTS
No stockholder of this corporation shall by reason of his holding
shares of any class have any pre-emptive or preferential right to purchase or
subscribe to any shares of any class of this corporation, now or hereafter to be
authorized, or any notes, debentures, bonds, or other securities convertible
into or carrying options or warrants to purchase shares of any class, now or
hereafter to be authorized whether or not the issuance of any such shares, or
such notes, debentures, bonds or other securities, would adversely affect the
dividend or voting rights of such stockholder, other than such rights, if any,
as the Board of Directors, in its discretion from time to time may grant and at
such price as the Board of Directors in its discretion may fix; and the Board of
Directors may issue shares of any class of this corporation, or any notes,
debentures, bonds, or other securities convertible into or carrying options or
warrants to purchase shares of any class, without offering any such shares of
any class, either in whole or in part, to the existing stockholders of any
class.
FIFTH: The minimum amount of capital with which the corporation will
commence business is One Thousand Dollars ($1,000.00).
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatever.
EIGHTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By resolution passed by a majority of the whole board, to designate one
or more committees, each committee to consist of two or more of the directors of
the corporation, which, to the extent provided in the resolution or in the
by-laws of the corporation, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the corporation,
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Such committee or committees shall have such name or names as
may be stated in the by-laws of the corporation or as may be determined from
time to time by resolution adopted by the Board of Directors.
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When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting-power, given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of the holders of a majority of the voting stock issued and
outstanding, to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other corporation or
corporations, as its Board of Directors shall deem expedient and for the best
interests of the corporation.
NINTH: In the absence of fraud, no contract or other transaction
between this corporation and any other corporation or any partnership or
association shall be affected or invalidated by the fact that any director or
officer of this corporation is pecuniarily or otherwise interested in or is a
director, member or officer of such other corporation or of such firm,
association or partnership or is a party to or is pecuniarily or otherwise
interested in such contract or other transaction or in any way connected with
any person or persons, firm, association, partnership or corporation pecuniarily
or otherwise interested therein; any director may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of this
corporation for the purpose of authorizing any such contract or transaction with
like force and effect as if he were not so interested, or were not a director,
member or officer of such other corporation, firm, association or partnership.
TENTH: Meetings of stockholders may be held outside the State of
Delaware, if the by-laws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the by-laws of the corporation. Elections of directors
need not be by ballot unless the by-laws of the corporation shall so provide.
ELEVENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
TWELFTH: Directors shall not be personally liable to the corporation or
its stockholders for monetary damages for breaches of fiduciary duty as a
director, except for liability (i) for 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 Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper personal benefit.
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IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate this 5th day of August, 1998.
/s/ Howard Shapiro
------------------
Howard Shapiro
Executive Vice President,
Law and Administration,
General Counsel and Secretary
ATTEST:
/s/ Robert D. Campbell
- - ----------------------
Robert D. Campbell
Assistant Secretary
16
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NEW PLAYBOY, INC.
NEW PLAYBOY, INC., a corporation duly organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
1. The Amended and Restated Certificate of Incorporation of the
Corporation is amended by adding the following sentence to the end of the fifth
paragraph of Article FOURTH thereof:
The prior sentence shall not, however, apply to the merger to be
effected under Section 251(g) of the General Corporation Law of the
State of Delaware as contemplated by the Agreement and Plan of Merger,
dated as of May 29, 1998, as the same has been and may be amended, to
which the Corporation is a party.
2. The foregoing amendment to the Amended and Restated Certificate of
Incorporation of the Corporation was duly adopted in accordance with the
provisions of Section 242 and has been consented to in writing in accordance
with Section 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, New Playboy, Inc. has caused this Certificate of
Amendment to be executed by its duly authorized officer this 15th of March,
1999.
NEW PLAYBOY, INC.
By: /s/ Howard Shapiro
------------------
Name: Howard Shapiro
Title: Executive Vice President,
Law and Administration,
General Counsel and Secretary
17
EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NEW PLAYBOY, INC.
NEW PLAYBOY, INC., a corporation duly organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that:
3. Article FIRST of the Amended and Restated Certificate of
Incorporation of the Corporation is amended to read in its entirety as follows:
"FIRST: The name of the corporation is PLAYBOY ENTERPRISES, INC."
4. The foregoing amendment to the Amended and Restated Certificate of
Incorporation of the Corporation was duly adopted in accordance with the
provisions of Section 242 and has been consented to in writing by the sole
stockholder in accordance with Section 228 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, New Playboy, Inc. has caused this Certificate of
Amendment to be executed by its duly authorized officer this 15th of March,
1999.
NEW PLAYBOY, INC.
By: /s/ Howard Shapiro
------------------
Name: Howard Shapiro
Title: Executive Vice President,
Law and Administration,
General Counsel and Secretary
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EXHIBIT 3.4
NEW PLAYBOY, INC.
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AMENDED AND RESTATED BY-LAWS
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I.
OFFICES
A. The principal office shall be in the City of Wilmington, County of
New Castle, State of Delaware.
B. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
II.
MEETINGS OF STOCKHOLDERS
A. Meetings of the stockholders for the election of directors shall be
held at such place, either within or without the State of Delaware, as may be
fixed from time to time, by the Board of Directors, and as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
B. Annual meetings of stockholders shall be held on a date and time
designated by the Board of Directors consistent with the Delaware General
Corporation Law, at which meetings they shall elect a Board of Directors by the
vote set forth in Section 8 of this Article II, and transact such other business
as may properly be brought before the meeting.
C. The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten days before every election of directors, a
complete list of the stockholders entitled to vote at said election, arranged in
alphabetical order, showing the address of and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the election, either at a
place within the city, town or village where the election is to be held and
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where said meeting is to be
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held, and the list shall be produced and kept at the time and place of election
during the whole time thereof, and subject to the inspection of any stockholder,
for any purpose germane to the meeting, who may be present.
D. Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute or by the Certificate of Incorporation,
may be called by the Chief Executive Officer and shall be called by the Chief
Executive Officer or Secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
E. Whenever stockholders are required or permitted to take any action
at a meeting, a written notice of the meeting shall be given, which notice shall
state the place, date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. The written
notice of any meeting shall be given to each stockholder entitled to vote at any
such meeting not less than ten nor more than sixty days before the date of the
meeting. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
F. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
G. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified.
H. When a quorum is present at any meeting, the vote of the holders of
a majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, except for the
election of directors of the Corporation, unless the question is one upon which
by express provision of the statutes or of the Certificate of Incorporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question. Each nominee for director, in order to be
elected at a meeting, must receive the vote of the holders of a majority of the
stock having power to vote in the election of the Board of Directors and present
in person or represented by proxy at such meeting.
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I. Each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of capital stock
having voting power held by such stockholder, but no proxy shall be valid unless
it provides that it may only be voted on at a specific meeting of stockholders
or any adjournment or adjournments thereof; except where the transfer books of
the Corporation have been closed or a date has been fixed as a record date for
the determination of its stockholders entitled to vote, no share of stock shall
be voted on at any election for directors which has been transferred on the
books of the Corporation within twenty days next preceding such election for
directors.
J. Unless otherwise provided in the Certificate of Incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the Corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted and shall be delivered to the Corporation by delivery to
its registered office in Delaware, its principal place of business, or to an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
III.
DIRECTORS
A. The number of directors which shall constitute the whole Board shall
be such number, not less than five nor more than ten, as may be determined from
time to time by resolution duly adopted by the Board of Directors. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2. of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
B. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
C. The business of the Corporation shall be managed by its Board of
Directors which may exercise all such powers of the Corporation and do all such
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lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
D. Unless otherwise provided by the Certificate of Incorporation or by
law, any director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of shares then entitled to vote at
an election of directors.
MEETINGS OF THE BOARD OF DIRECTORS
E. The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
F. The first meeting of each newly elected Board of Directors shall be
held without other notice than this Bylaw, immediately after, and at the same
place, as the annual meeting of stockholders.
G. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board.
H. Special meetings of the Board may be called by the Chief Executive
Officer on twenty-four hours' notice to each director, either personally, by
telegram or by facsimile, or on five days' notice by mail; special meetings
shall be called by the Chief Executive Officer or Secretary in like manner and
on like notice on the written request of two directors.
I. At all meetings of the Board, a majority of the number of directors
who have been elected and are then serving in such capacity, but in no event
less than one-third of the total number of authorized directors, shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute or by the Certificate of Incorporation.
If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
J. Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if prior to such action a written consent thereto is signed by all members of
the Board or of such committee as the case may be, and such written consent is
filed with the minutes of proceeding of the Board or committee.
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K. Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, members of the Board of Directors or of any committee thereof may
participate in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
COMMITTEES OF DIRECTORS
L. The Board of Directors may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
two or more of the directors of the Corporation, which, to the extent provided
in the resolution and permitted by law, shall have and may exercise the powers
of the Board of Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors.
M. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
N. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid such compensation as the
Board may by resolution determine, including without limitation a fixed sum for
attendance at each meeting of the Board of Directors and a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed such compensation for attending
committee meetings as the Board may by resolution determine.
IV.
NOTICES
A. Notice to directors and stockholders shall be in writing and
delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the Corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors may also be given by telegram or facsimile.
B. Whenever any notice is required to be given under the provisions of
the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
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V.
OFFICERS
A. The officers of the Corporation shall be chosen by the Board of
Directors and shall be the Chairman Emeritus/Editor in Chief, the Chairman of
the Board, the Chief Executive Officer, a Vice President, a Secretary and a
Treasurer. The Board of Directors may also choose additional Vice Presidents,
and one or more Assistant Secretaries and Assistant Treasurers. Two or more
offices may be held by the same person.
B. The Board of Directors at its first meeting after each annual
meeting of stockholders shall choose the Editor in Chief, the Chairman of the
Board, Chief Executive Officer, a Vice President, a Secretary and a Treasurer,
and may choose one or more additional Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers.
C. The Board of Directors may appoint such other officers and agents as
it shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors.
D. The Board of Directors shall be responsible for establishing the
compensation and employee benefit policies and programs of the Corporation.
E. The officers of the Corporation shall hold office until their
successors are chosen and qualified. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
EDITOR IN CHIEF
F. The Editor in Chief shall direct senior editorial and video
production personnel on creative matters and editorial policy. He will consult
with senior management of the Corporation and advise regarding major strategic
business decisions and direction. He shall be entitled to attend all meetings of
the Board whether or not he shall be a director of the Corporation. He shall be
actively involved in promoting the Corporation and its products and shall be
available for publicity, promotional events and charitable affairs sponsored by
the Corporation.
THE CHIEF EXECUTIVE OFFICER
G. The Chief Executive Officer shall be the Chief Executive Officer of
the Corporation, shall have general and active management of the business and
officers of the Corporation, shall see that all orders and resolutions of the
Board of
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Directors are carried into effect and shall have the general powers and duties
of management usually vested in the chief executive officer of corporations. The
Chief Executive Officer shall be a director of the Corporation, shall be
Chairman of the Board of Directors and as such shall preside at all meetings of
the Board of Directors and stockholders.
THE VICE PRESIDENTS
H. In the election of officers, the Board of Directors may designate
one of the Vice Presidents as the Executive Vice President and one or more of
the Vice Presidents as Senior Vice Presidents. In the absence or inability or
refusal to act of the Chief Executive Officer, the duties of such office shall
be performed by one of the Vice Presidents, acting singly in the following order
in the absence or inability or refusal to act of their respective designated
predecessors:
1. The Executive Vice President, if any;
2. The Senior Vice Presidents, if any, in the order designated
by the Board of Directors or, in the absence of any designation, then in the
order of their election;
3. All other Vice Presidents in the order designated by the
Board of Directors or, in the absence of any designation, then in the order of
their election.
Each Vice President when performing the duties of the Chief Executive
Officer shall have all the powers of and be subject to all the restrictions upon
the Chief Executive Officer. Each Vice President may sign, with the Secretary or
an Assistant Secretary, certificates for shares of the Corporation and shall
perform such other duties as may be assigned to him from time to time by the
Chief Executive Officer or by the Board of Directors.
THE SECRETARY AND ASSISTANT SECRETARIES
I. The Secretary shall attend all meetings of the Board of Directors
and all meetings of the stockholders and record all the proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for the purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or Chief
Executive Officer, under whose supervision he shall be. He shall have custody of
the corporate seal of the Corporation and he, or an Assistant Secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
Assistant Secretary. The Board of Directors may give
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general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature.
J. The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
K. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all monies
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
L. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
M. If required by the Board of Directors, he shall give the Corporation
a bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
N. The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors, shall,
in the absence or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
VI.
CERTIFICATES OF STOCK
A. Every holder of stock in the Corporation shall be entitled to have a
certificate, signed by, or in the name of the Corporation by, the Chairman of
the Board of Directors, the Chief Executive Officer or Vice President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the
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Corporation, certifying the number of shares represented by such certificate
owned by him in the Corporation.
B. The signatures on any stock certificate of any such Chairman of the
Board of Directors, Chief Executive Officer, Vice President, Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary may be facsimile. In case
any officer or officers who have signed, or whose facsimile signature or
signatures have been used on, any such certificate or certificates shall cease
to be such officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates have been
delivered by the Corporation, such certificate or certificates may nevertheless
be adopted by the Corporation and be issued and delivered as though the person
or persons who signed such certificate or certificates or whose facsimile
signature or signatures have been used thereon had not ceased to be such officer
or officers of the Corporation.
LOST, STOLEN OR DESTROYED CERTIFICATES
C. The Board of Directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate
or certificates, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
D. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
RECORD DATES
E. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders, or any
adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record date
which shall be not more than sixty nor less
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than ten days before the date of any such meeting, which shall be not earlier
than, nor more than ten days after, the date of adoption of any resolution
fixing a record date with respect to a written consent, and which shall not be
more than sixty days prior to any dividend payment or other such action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
F. The Corporation shall be entitled to recognize the exclusive right
of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
VII.
GENERAL PROVISIONS
DIVIDENDS
A. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of capital stock, subject to the
provisions of the Certificate of Incorporation.
B. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
C. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
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FISCAL YEAR
D. The fiscal year of the Corporation shall be fixed by resolution of
the Board of Directors.
SEAL
E. The corporate seal shall be circular in form with the name "NEW
PLAYBOY, INC." at top, "Delaware" at the bottom and the words "Corporate Seal"
in the center. Pursuant to the General Corporation Law of Delaware, the
Corporation may use such seal by causing it or a facsimile thereof to be
impressed or affixed, or reproduced, or otherwise, and which corporate seal may
be altered at pleasure.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
F. 1. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment) against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in Paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer including, without
limitation, service to an employee benefit plan) in advance
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of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
2. Right of Claimant to Bring Suit. If a claim under Paragraph (a) of
this Section is not paid in full by the Corporation within ninety days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
3. Non-Exclusivity of Rights. The right to indemnification and payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this section shall not be exclusive of any other right
which any person may have or hereafter acquired under any statute, provision of
the Certificate of Incorporation, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
4. Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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VIII.
AMENDMENTS
A. These Bylaws may be altered or repealed at any regular meeting of
the stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration or repeal
be contained in the notice of such special meeting.
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EXHIBIT 99.1
DESCRIPTION OF THE REGISTRANT'S CAPITAL STOCK
GENERAL. The Registrant's authorized capital stock consists of
37,500,000 shares of Common Stock of which 7,500,000 shares are Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), and 30,000,000
shares are Class B Common Stock, par value $.01 per share (the "Class B Common
Stock" and together with the Class A Common Stock, the "Common Stock"). All
outstanding shares of Common Stock are validly issued, fully paid and
non-assessable.
VOTING. Each share of Class A Common Stock entitles its holder to one
vote on all matters submitted to the stockholders, including the election of
directors. Each share of Class B Common Stock has no voting rights, other than
those as described below or as required by law. Under the Delaware General
Corporation Law ("DGCL"), holders of Class B Common Stock are entitled to vote
on proposals to increase or decrease the number of authorized shares of Class B
Common Stock, to change the par value of the Class B Common Stock or to alter or
change the powers, preferences or special rights of the shares of Class B Common
Stock which may affect them adversely.
DIVIDENDS AND OTHER DISTRIBUTIONS (INCLUDING DISTRIBUTIONS UPON
LIQUIDATION OR SALE OF THE REGISTRANT). Each share of Class A Common Stock and
Class B Common Stock is equal with respect to dividends and other distributions
in cash, stock or property (including distributions upon liquidation,
dissolution or winding up of the Registrant), except as described below.
Dividends or other distributions payable on the Registrant's capital stock in
shares of stock will be made to all holders of the Registrant's capital stock
and may be made either (a) in shares of Class B Common Stock or any security
other than Class A Common Stock to the record holders of both Class A Common
Stock and Class B Common Stock, or (b) in shares of Class A Common Stock to the
record holders of Class A Common Stock and shares of Class B Common Stock to the
record holders of Class B Common Stock. In no event will either Class A Common
Stock or Class B Common Stock be split, divided or combined unless the other is
proportionately split, divided or combined.
NON-CONVERTIBILITY. Neither the Class A Common Stock nor the Class B
Common Stock is convertible into another class of common stock or any other
security of the Registrant.
MINORITY PROTECTION TRANSACTIONS. If any person or group acquires
beneficial ownership of additional Class A Common Stock (other than upon
original issuance by the Registrant, by operation of law, by will or the laws of
descent and distribution, by gift or by foreclosure of a bona fide loan), or any
persons holding Class A Common Stock form a group, and the acquisition or
formation results in that person or group owning 10% or more of the Class A
Common Stock then outstanding (a "Related Person"), and the Related Person does
not then own an equal or greater percentage of all outstanding shares of Class B
Common Stock, the Related Person must, within a 90-day period beginning the day
after becoming a Related Person, make a public
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tender offer to acquire additional shares of Class B Common Stock (a "Minority
Protection Transaction"). For purposes of this provision, "beneficial ownership"
and "group" have the respective meanings of those terms as used in Rule 13d-3
and Rule 15d-5(b) under the Exchange Act or any successor regulations.
In a Minority Protection Transaction, the Related Person must offer to
acquire from the holders of Class B Common Stock that number of shares of
additional Class B Common Stock (the "Additional Shares") determined by (a)
multiplying the percentage of outstanding Class A Common Stock beneficially
owned by the Related Person by the total number of shares of Class B Common
Stock outstanding on the date the person or group became a Related Person, and
(b) subtracting therefrom the total number of shares of Class B Common Stock
beneficially owned by that Related Person on such date (including shares
acquired on that date at or prior to the time the person or group became a
Related Person). The Related Person must acquire all shares validly tendered or,
if the number of shares tendered exceeds the number determined under the
formula, a pro rata amount from each tendering holder.
The offer price for any shares required to be purchased by the Related
Person in a Minority Protection Transaction is the greater of (a) the highest
price per share paid by the Related Person for any share of Class A Common Stock
in the six month period ending on the date the person or group became a Related
Person, or (b) the highest bid price of a share of the Class A Common Stock or
Class B Common Stock on the New York Stock Exchange on the date the person or
group became a Related Person.
A Minority Protection Transaction will also be required by any Related
Person, and any other person or group beneficially owning 10% or more of the
outstanding Class A Common Stock (an "Interested Common Stockholder"), that
acquires additional Class A Common Stock (other than upon issuance or sale by
the Registrant, by operation of law, by will or the laws of descent and
distribution, by gift or by foreclosure of a bona fide loan) or joins with other
persons to form a group, whenever an additional acquisition or formation results
in the Related Person or Interested Common Stockholder owning the next highest
integral multiple of 5% (e.g. 15%, 20%, 25%, etc.) of the outstanding Class A
Common Stock and the Related Person or Interested Common Stockholder does not
own an equal or greater percentage of all outstanding shares of Class B Common
Stock. The Related Person or Interested Common Stockholder will be required to
extend an offer to buy that number of Additional Shares prescribed by the
formula set forth above, and must acquire all shares validly tendered or a pro
rata portion as specified above at the price determined above, even if a
previous offer resulted in fewer shares of Class B Common Stock being tendered
than the previous offer included.
The requirement to engage in a Minority Protection Transaction is
satisfied by making the requisite offer and purchasing validly tendered shares,
even if the number of shares tendered is less than the number of shares included
in the required offer. The penalty applicable to any Related Person or
Interested Common Stockholder that
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fails to make a required offer, or to purchase shares validly tendered (after
proration, if any), is to suspend automatically the voting rights of the shares
of Class A Common Stock owned by the Related Person or Interested Common
Stockholder until consummation of the required offer or until divestiture of the
shares of Class A Common Stock that triggered the offer requirement. Neither the
Minority Protection Transaction requirement nor the related penalty apply to any
increase in percentage ownership of Class A Common Stock resulting solely from a
change in the total amount of Class A Common Stock outstanding.
Similar requirements apply to any purchases by the Registrant, except
that treasury shares will be included in the calculations. All calculations are
based upon numbers of shares reported by the Registrant in its most recent
annual or quarterly report filed pursuant to the Exchange Act, or Current Report
filed on Form 8-K, if any.
This provision of the Registrant's Amended and Restated Certificate of
Incorporation may be amended in a manner adversely affecting the holders of
Class B Common Stock (including amendments effected in any merger or
consolidation involving the Registrant) only if the amendment is approved by a
majority vote of holders of Class B Common Stock who are not Related Persons or
Interested Common Stockholders.
PREEMPTIVE RIGHTS. The Registrant's capital stock does not carry any
preemptive rights enabling a holder to subscribe for or receive shares of any
class of capital stock of the Registrant or any other securities convertible
into shares of any class of capital stock of the Registrant.
MERGERS AND ACQUISITIONS. Each holder of Class B Common Stock will be
entitled to receive the same per share consideration as the per share
consideration, if any, received by any holder of the Class A Common Stock in a
merger or consolidation of the Registrant (whether or not the Registrant is the
surviving corporation). Any issuance of shares of Class A Common Stock in a
merger or other acquisition transaction must be approved by the holders of a
majority of the shares of Class A Common Stock unless shares of Class B Common
Stock are also issued in the transaction and the quotient determined by dividing
the number of shares of Class B Common Stock to be so issued by the number of
shares of Class A Common Stock to be so issued is at least equal to the quotient
determined, immediately prior to the transaction, by dividing the total number
of outstanding shares of Class B Common Stock by the total number of outstanding
shares of Common Stock.
Section 203 of the DGCL generally prohibits certain Delaware
corporations from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the person became an interested
stockholder, unless (a) prior to the time the board approved either the business
combination or the transaction that resulted in the stockholder becoming an
interested stockholder, (b) upon consummation of the transaction that resulted
in the person becoming an
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interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding, for purposes of determining the number of shares
outstanding, shares owned by certain directors or certain employee stock plans),
or (c) on or after the time the stockholder became an interested stockholder,
the business combination is approved by the board of directors and authorized by
the affirmative vote (and not by written consent) of at least two-thirds of the
outstanding voting stock excluding any stock owned by the interested
stockholder. A "business combination" includes a merger, asset sale and certain
other transactions resulting in a financial benefit to the interested
stockholder. In general, an "interested stockholder" is a person who (other than
the corporation and any direct or indirect majority owned subsidiary of the
corporation), together with affiliates and associates, owns (or, is an affiliate
or associate of the corporation and, within three years prior, did own) 15% or
more of the corporation's outstanding voting stock. A Delaware corporation may
"opt out" from the application of Section 203 of the DGCL through a provision in
its certificate of incorporation. The Registrant's Amended and Restated
Certificate of Incorporation does not contain such a provision and the
Registrant has not "opted out" from the application of Section 203 of the DGCL.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for the
Registrant's capital stock is Harris Trust and Savings Bank.
35
EXHIBIT 99.2
FOR IMMEDIATE RELEASE Investor Contact:
Martha Lindeman 312-373-2430
Media Contact:
Rebecca Theim 312-373-2445
PLAYBOY ENTERPRISES, INC. COMPLETES ACQUISITION OF
SPICE ENTERTAINMENT COMPANIES, INC.
CHICAGO, March 15, 1999 -- Playboy Enterprises, Inc. (PLA-NYSE) today
announced that it has completed the acquisition of Spice Entertainment
Companies, Inc. (SPZE-NASDAQ). Playboy acquired all of the outstanding shares of
Spice for cash and Playboy stock. The total transaction value, including the
assumption of debt, was approximately $105 million. For each share of Spice,
stockholders will receive:
o $3.60 in cash;
o 0.1133 shares of Playboy Class B Common Stock; and
o 0.125 shares of Directrix Common Stock.
Directrix, Inc. is a former subsidiary of Spice that owns Spice's
digital operations center, an option to acquire Emerald Media, Inc., and certain
rights to Spice's library of adult films.
****
Playboy Enterprises, Inc. is an international media and entertainment
company that publishes PLAYBOY magazine in the United States and licenses
editions internationally, develops and markets other branded media products,
including newsstand specials, calendars, books, CD-ROMs and Internet sites;
creates and distributes programming for domestic pay television, worldwide home
video and international television; markets the Playboy trademarks on apparel,
accessories and products sold around the world; operates a direct marketing
business, including the CRITICS' CHOICE VIDEO, COLLECTORS' CHOICE MUSIC and
PLAYBOY catalogs; and will open the Playboy Casino & Beach Hotel on the Greek
island of Rhodes.
Spice Entertainment Companies is a leading provider of adult television
entertainment throughout the world.
