As filed with the Securities and Exchange Commission on June 27, 1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PLAYBOY ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-2258830
(State or Other Jurisdiction of Incorporation) (I.R.S. Employer
Identification No.)
680 North Lake Shore Drive
Chicago, Illinois 60611
(Address of principal executive offices)
Non-qualified Stock Option Agreements dated November 13, 1996
between Playboy Enterprises, Inc. and each of
Dennis S. Bookshester and Sol Rosenthal
(Full title of the Plan)
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Howard Shapiro, Esq.
Executive Vice President, Law and Administration,
General Counsel and Secretary
Playboy Enterprises, Inc.
680 North Lake Shore Drive
Chicago, Illinois 60611
(312) 751-8000
(Name, address, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered per share offering price registration fee
- -----------------------------------------------------------------------------------------------------------------------
Class B Common Stock, $.01 par value 20,000 $11.9375(1) $238,750 $100.00
Shares
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(1) Calculated using the high and low prices of Class B shares in the composite
reporting system for June 24, 1997.
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PART II
Item 3. Incorporation of Documents by Reference
The Annual Report on Form 10-K of Playboy Enterprises, Inc. (the
"Company" or the "Registrant") for the fiscal year ended June 30, 1996, its
Quarterly Reports on Form 10-Q for the quarterly periods ending September 30,
1996, December 31, 1996 (as amended by Form 10-Q/A) and March 31, 1997 and the
description of the Company's Class A and Class B Common Stock contained in the
registration statement on Form 8-A dated May 17, 1990, as amended by Form 8,
dated June 7, 1990, and any amendment or report filed for the purpose of
updating such description, are incorporated by reference into this registration
statement. Any documents filed by the Company subsequent to the filing of this
registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel
Howard Shapiro, Esq., whose opinion regarding the validity of the
securities offered hereby is filed as Exhibit 5.1 hereto, is an officer and
stockholder of the Company. Mr. Shapiro is the Company's Executive Vice
President, Law and Administration, General Counsel and Secretary. As of May 31,
1997, Mr. Shapiro owned beneficially 15 shares of the Company's Class A Common
Stock and 30,145 shares of the Company's Class B Common Stock (including 22,500
shares of restricted stock subject to vesting) and held options to purchase
35,000 shares of Class A Common Stock and 135,000 shares of Class B Common
Stock.
Item 6. Indemnification of Directors and Officers
The Company is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "GCL") provides that a Delaware
corporation has the power to indemnify its officers and directors in certain
circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided that such director or officer had no reasonable cause to believe his or
her conduct was unlawful.
2
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit provided that such director or officer acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the court in
which such action or suit was brought determines that despite the adjudication
of liability such director or officer is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 145 of the GCL further provides that (i) to the extent a
director or officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
or in the defense of any claim, issue or matter therein, such director or
officer shall be indemnified against expenses (including attorney's fees)
actually and reasonably incurred by such director or officer in connection
therewith; (ii) expenses may be advanced by the corporation subject to an
undertaking of the person receiving the advance to reimburse such expenses if
the person receiving the advance is ultimately determined not to be entitled to
indemnification; (iii) indemnification provided for by Section 145 shall not be
deemed exclusive of any other rights to which the indemnified party may be
entitled otherwise; and (iv) the corporation may purchase and maintain insurance
on behalf of a director or officer of the corporation against any liability
asserted against him or her or incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under Section
145.
As permitted by Section 102(b)(7) of the GCL, Article TWELFTH of the
Company's Restated Certificate of Incorporation provides that directors of the
Company will be exempt from monetary liabilities in certain circumstances, as
follows:
"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."
Article VII, Section 6 of the Company's bylaws provides for
indemnification of officers and directors of the Company, to the fullest extent
permitted by the GCL, for all expense, liability and loss in connection with any
action, suit or proceeding while serving as a director or officer of the Company
or as an officer, director or employee of any other entity at the request of the
Company. Such indemnification continues as to a person who has ceased to be a
director or officer, and inures to the benefit of his or her heirs, executors
3
and administrators. The Company is required to indemnify any officer or
director in connection with a proceeding initiated by such officer or director
only if such proceeding was authorized by the Board. The right to
indemnification includes the right to be paid by the Company the expenses
incurred in defending any such proceeding in advance of its final disposition
subject to receipt by the Company of any required undertaking to repay all
amounts so advanced if it shall ultimately be determined that the director or
officer is not entitled to be indemnified under the Company's bylaws or
otherwise. If an indemnification claim is not paid in full by the Company
within ninety days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant is also entitled to be paid the expense of prosecuting that claim. The
right to indemnification and payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in the bylaws is not
exclusive of any other rights. This section of the bylaws provides further that
the Company may maintain insurance to protect any director or officer against
any expense, liability or loss, whether or not the Company would have the power
to indemnify such person against such expense, liability or loss. The Company
maintains such insurance for its directors and officers.
Item 8. Exhibits
<captiion>
Exhibit Number Description
- -------------- -----------
4.1 Form of certificate for shares of the Company's Class B Common
Stock (incorporated by reference to Exhibit 1.2 of the
Registration Statement on Form 8-A, dated May 17, 1990, as
amended by Form 8, dated May 17, 1990; Commission File No. 1-
6813)
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's annual
report on Form 10-K for the year ended June 30, 1995; Commission
File No. 1-6813)
4.3 Restated bylaws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's annual report on Form 10-K for the
year ended June 30, 1994; Commission File No. 1-6813)
4.4 Form of Non-qualified Stock Option Agreements dated November 13,
1996 between Playboy Enterprises, Inc. and each of Dennis S.
Bookshester and Sol Rosenthal
5.1 Opinion of Counsel
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Counsel (included in Exhibit 5.1)
4
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar amount would not exceed that which is registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange
5
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on June 27, 1997.
PLAYBOY ENTERPRISES, INC.
(Registrant)
By: /s/ Howard Shapiro
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Howard Shapiro, Executive Vice President,
Law and Administration, General Counsel and
Secretary
Each of the undersigned, by signing his or her name below, does hereby
constitute and appoint Christie Hefner and Howard Shapiro, and each of them, as
his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
registration statement and to file the same, with exhibits and schedules
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact full power and
authority to do and perform each and every act and thing necessary or desirable
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, thereby ratifying and confirming all that
said attorney-in-fact, or his or her substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on June 27, 1997.
Signature Title
- --------- -----
/s/ Christie Hefner Chairman and Chief Executive Officer
- ------------------------- and Director (Principal Executive
Christie Hefner Officer)
/s/ Linda Havard Chief Financial Officer and
- ------------------------- Executive Vice President, Finance
Linda Havard and Operations (Principal Financial
and Accounting Officer)
/s/ Dennis S. Bookshester
- -------------------------
Dennis S. Bookshester Director
/s/ David I. Chemerow
- -------------------------
David I. Chemerow Director
/s/ Sol Rosenthal
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Sol Rosenthal Director
/s/ Richard S. Rosenzweig
- -------------------------
Richard S. Rosenzweig Director
/s/ Sir Brian Wolfson
- -------------------------
Sir Brian Wolfson Director
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EXHIBIT INDEX
Sequentially
Exhibit Number Description Numbered Page
- -------------- ----------- -------------
4.1 Form of certificate for shares of the
Company's Class B Common Stock (incorporated by
reference to Exhibit 1.2 of the Registration
Statement on Form 8-A, dated May 17, 1990, as
amended by Form 8, dated May 17, 1990;
Commission File No. 1-6813)
4.2 Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit
3.1 of the Company's annual report on Form 10-
K for the year ended June 30, 1995; Commission
File No. 1-6813)
4.3 Restated bylaws of the Company (incorporated
by reference to Exhibit 3.2 of the Company's
annual report on Form 10-K for the year ended
June 30, 1994; Commission File No. 1-6813)
4.4 Form of Non-qualified Stock Option Agreements
dated November 13, 1996 between Playboy
Enterprises, Inc. and each of Dennis S.
Bookshester and Sol Rosenthal
5.1 Opinion of Counsel
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Counsel (included in Exhibit 5.1)
8