STATE OF DELAWARE
[ART]
OFFICE OF SECRETARY OF STATE
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I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF RESTATED
CERTIFICATE OF INCORPORATION OF PLAYBOY ENTERPRISES, INC. FILED IN THIS OFFICE
ON THE TWENTY-SEVENTH DAY OF JUNE, A.D. 1990, AT 9 O'CLOCK A.M.
: : : : : : : : : :
RECEIVED FOR RECORD
June 29 A.D. 1990
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[SEAL] /s/ Michael T. Scuse /s/ Michael Harkins
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RECORDER Michael Harkins, Secretary of State
$3.00 STATE DOCUMENT FEE PAID AUTHENTICATION: 12707560
901735199 DATE: 06/27/1990
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 06/27/1990
901785190 - 611512
RESTATED CERTIFICATE OF INCORPORATION
OF
PLAYBOY ENTERPRISES, INC.
The undersigned, being the Executive Vice President, Law
and Administration, and General Counsel and the Secretary of PLAYBOY
ENTERPRISES, 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 PLAYBOY ENTERPRISES, INC.
The Corporation was originally incorporated under the name HMH
Corporation. The date of filing its original Certificate of
Incorporation with the Secretary of State was May 27, 1964.
2. This 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 Restated
Certificate of Incorporation only restates and integrates and does
not further amend the provisions of the Corporation's Restated
Certificate of Incorporation as heretofore amended or supplemented,
and there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation.
3. The text of the 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 PLAYBOY ENTERPRISES, INC.
SECOND: Its principal office in the State of Delaware is located
at 39 Loockerman Square, Suite L-100, in the City of Dover, County
of Kent. The name and address of its resident agent is The Prentice-
Hall Corporation System, Inc., 32 Loockerman Square, Suite L-100,
Dover, Kent County, Delaware 19901.
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 upon corporations formed under
the General Corporation Law of the State of Delaware, and to do
any or all of the things
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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
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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 capita1 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,
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received by any holder of the Class A Common Stock in such merger or
consolidation.
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
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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
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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 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.
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(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
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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.
(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
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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
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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.
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
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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.
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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.
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 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
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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 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.
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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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BK C - 129 PG 160
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate this 25th day of June, 1990.
/s/ Howard Shapiro
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Howard Shapiro
[Seal] Executive Vice President,
Law and Administration,
and General Counsel
ATTEST:
/s/ Dale C. Gordon
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Dale C. Gordon
Secretary
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STATE OF DELAWARE )
) INDEXED
KENT COUNTY )
RECORDED In the Office for the Recording of Deeds, Etc. at
Dover, In and for the said County of Kent, In Corp. Record C
Vol. 129 Page 144 Etc. the 29th day of June A.D. 1990. WITNESS
my Hand and Seal of said office.
/s/ Michael T. Scuse, Recorder