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
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Howard Shapiro
Executive Vice President,
Law and Administration,
General Counsel and Secretary
ATTEST:
/s/ Robert D. Campbell
- - ----------------------
Robert D. Campbell
Assistant Secretary
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