Exhibit 3
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. In
the County of New Castle.
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 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 ($.0l) per share and Thirty Million (30,000,000) shares of
Class B Common Stock of the par value of One Cent ($.0l) 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.
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 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.
(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.
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.
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 assts 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.
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
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
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. 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."
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 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
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
*****
PLAYBOY ENTERPRISES, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
The present registered agent of the corporation is Corporation
Service Company and the present registered office of the corporation is in the
county of Wilmington.
The Board of Directors of PLAYBOY ENTERPRISES, INC. adopted the
following resolution on the 20th day of September, 2000.
RESOLVED, that the registered office of PLAYBOY ENTERPRISES, INC. in the
state of Delaware be and it hereby is changed to Corporation Trust Center,
1209 Orange Street, in the City of Wilmington, County of New Castle, and
the authorization of the present registered agent of this corporation be
and the same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall
be and is hereby constituted and appointed the registered agent of this
corporation at the address of its registered office.
IN WITNESS WHEREOF, PLAYBOY ENTERPRISES, INC. has caused this
statement to be signed by Howard Shapiro, its Executive Vice President and
Secretary, as of the 21st day of September, 2000.
/s/ Howard Shapiro
-----------------------------------------
Howard Shapiro
Executive Vice President, General Counsel
and Secretary
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PLAYBOY ENTERPRISES, INC.
----------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
----------------------------------------
PLAYBOY ENTERPRISES, INC., a corporation duly organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify that:
FIRST: The first paragraph of Article FOURTH of the Amended and
Restated Certificate of Incorporation of the Corporation is hereby amended to
read in its entirety as follows:
"The total number of shares of all classes of capital stock which
the corporation shall have authority to issue is Forty Seven Million
Five Hundred Thousand (47,500,000) consisting of: (i) Seven Million
Five Hundred Thousand (7,500,000) shares of Class A Common Stock of
the par value of One Cent ($.01) per share, (ii) Thirty Million
(30,000,000) shares of Class B Common Stock of the par value of One
Cent ($.01) per share and (iii) Ten Million (10,000,000) shares of
Preferred Stock of the par value of One Cent ($.01) per share."
SECOND: The following paragraph is to be inserted as a new
subsection E entitled "Terms of Preferred Stock" of Article FOURTH of the
Amended and Restated Certificate of Incorporation of the Corporation:
"The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more
classes or series, and to fix for each such class or series such
voting powers, full or limited, or no voting powers, and such
distinctive designations, preferences and relative, participating,
optional or other special rights and such qualifications,
limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such class or series and as
may be permitted by the General Corporation Law of the State of
Delaware, including, without limitation, the authority to provide
that any such class or series may be (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to
receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in
preference to, or in such relation to, the dividends payable on any
other class or classes or any other series; (iii) entitled to such
rights upon the dissolution of, or upon any distribution of the
assets of, the
Corporation; or (iv) convertible into, or exchangeable for, shares
of any other class or classes of stock, or of any other series of
the same or any other class or classes of stock, of the Corporation
at such price or prices or at such rates of exchange and with such
adjustments; all as may be stated in such resolution or resolutions.
Notwithstanding the foregoing, any such Preferred Stock shall not
have any voting powers, except as required by law or in the event of
failure to pay dividends, and shall in no event be convertible into
shares of Class A Common Stock."
THIRD: The foregoing amendments to the Amended and Restated
Certificate of Incorporation of the Corporation were duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, Playboy Enterprises, Inc. has caused this
Certificate of Amendment to be executed by its duly authorized officer this 1st
day of May, 2003.
PLAYBOY ENTERPRISES, INC.
By: /s/ Howard Shapiro
------------------------------------
Name: Howard Shapiro
Title: Executive Vice President, Law
and Administration, General
Counsel and Secretary
CERTIFICATE OF THE DESIGNATIONS,
POWERS, PREFERENCES AND RIGHTS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
PLAYBOY ENTERPRISES, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Playboy Enterprises, Inc., a Delaware corporation (the "Company"),
hereby certifies that the following resolution was adopted by the Board of
Directors of the Company:
"RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Company (the "Board of Directors") by
the provisions of the Amended and Restated Certificate of Incorporation of the
Company (the "Certificate of Incorporation"), there is hereby created, out of
the 10,000,000 shares of preferred stock, par value $0.01 per share, of the
Company authorized in Article Fourth of the Certificate of Incorporation (the
"Preferred Stock"), a series of the Preferred Stock consisting of 1,674 shares,
which series shall have the following powers, designations, preferences and
relative, participating, optional or other rights, and the following
qualifications, limitations and restrictions (in addition to any powers,
designations, preferences and relative, participating, optional or other rights,
and any qualifications, limitations and restrictions, set forth in the
Certificate of Incorporation which are applicable to the Preferred Stock):
Section 1. Designation of Amount.
The shares of Preferred Stock created hereby shall be designated the
"Series A Convertible Preferred Stock" (the "Series A Preferred Stock") and the
authorized number of shares constituting such series shall be 1,674. The stated
value per share shall be $10,000 (the "Stated Value").
Section 2. Dividends.
(a) The holders of the then outstanding shares of Series A Preferred
Stock will be entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Company legally available therefor, cumulative
cash dividends, accruing from the Original Issuance Date (as hereinafter
defined) through and including the date on which such dividends are paid at the
annual rate of 8% (the "Applicable Rate") of the Liquidation Preference (as
hereinafter defined) per share of the Series A Preferred Stock, payable in cash
in arrears on the last day of each June and December (each such date being
referred to herein as a "Dividend Payment Date"), commencing on the first
Dividend Payment Date after the Original Issuance Date; provided that if payment
in cash would not be permitted at the time (the "Cash Dividend Block") under the
Indenture (as hereinafter defined), no cash dividends shall be paid or
payable, until such time as the payment of dividends in cash is no longer
prohibited by the terms of the Indenture. In the event of a Cash Dividend Block,
the Company may at its option, pay any such dividend in Class B Common Stock,
par value $0.01 per share (the "Class B Common Stock"), of the Company. If a
dividend payment date is not a Business Day then such dividend shall be payable
on the next Business Day. Accumulated and unpaid dividends for any prior period
may be paid at any time. Such dividends shall be deemed to accrue on the Series
A Preferred Stock from the Original Issuance Date and shall be cumulative
whether or not earned or declared and whether or not there are profits, surplus
or other funds of the Company legally available for the payment of dividends.
The term "Original Issuance Date" means the date on which the Series A Preferred
Stock was issued to the holder pursuant to the terms of the Series B Preferred
Stock (as hereinafter defined). The term "Indenture" means that certain
Indenture dated as of the Closing Date (as hereinafter defined), among the
Company, certain subsidiaries of the Company and Bank One, N.A., as Trustee. The
dividends provided for in this Section 2(a) are hereinafter referred to as "Base
Dividends." Any dividend paid in the manner specified in this Section 2, if so
paid, shall be deemed to be paid in full.
(b) In the event of a Cash Dividend Block, any dividend payments to
be made by delivering shares of Class B Common Stock shall be made by delivering
the number of shares of Class B Common Stock (rounded up in the case of
fractions to the next whole share) determined by dividing the amount of accrued
but unpaid Base Dividends payable as of the dividend payment date by the
weighted average closing price of Class B Common Stock over the 90-day period
immediately preceding the dividend payment date.
(c) If full cumulative Base Dividends are not paid in full, or
declared in full and sums set apart in trust with a bank or trust company for
the payment thereof, upon the shares of Series A Preferred Stock and the shares
of any other series of capital stock of the Company ranking on a parity as to
dividends with the Series A Preferred Stock ("Parity Dividend Stock"), all
dividends declared upon shares of Series A Preferred Stock and upon all Parity
Dividend Stock shall be paid or declared pro rata so that in all cases the
amount of dividends paid or declared per share on the Series A Preferred Stock
and such Parity Dividend Stock shall bear to each other the same ratio that
unpaid accumulated dividends per share, including dividends accrued or in
arrears, if any, on the shares of Series A Preferred Stock and such other shares
of Parity Dividend Stock, bear to each other. Unless and until full cumulative
Base Dividends on the shares of Series A Preferred Stock in respect of all past
semi-annual dividend periods have been paid, and the full amount of Base
Dividends on the shares of Series A Preferred Stock in respect of the then
current semi-annual dividend period shall have been or are contemporaneously
declared in full and sums set aside in trust with a bank or trust company for
the payment thereof, no dividends shall be paid or declared or set aside for
payment or other distribution upon the Class A Common Stock, par value $0.01 per
share (the "Class A Common Stock") and the Class B Common Stock, and
collectively with the Class A Common Stock the "Common Stock"), of the Company
or any other capital stock of the Company ranking junior to the Series A
Preferred Stock as to dividends (other than in shares of, or warrants or rights
to acquire, solely capital stock of the
Company ranking junior to the Series A Preferred Stock both as to dividends and
as to distributions upon liquidation, dissolution or winding up of the Company).
The terms "accrued dividends," "dividends accrued" and "dividends in
arrears," whenever used herein with reference to shares of Series A Preferred
Stock shall be deemed to mean an amount which shall be equal to Base Dividends
thereon at the Applicable Rate per share from the date or dates on which such
dividends commence to accrue to the end of the then current semi-annual dividend
period (or, in the case of redemption or conversion, to the effective date of
redemption or conversion as provided herein), whether or not earned or declared
and whether or not assets of the Company are legally available therefor, and if
full dividends are not declared or paid, then such dividends shall cumulate,
with additional dividends thereon, compounded semi-annually, at the Applicable
Rate, for each semi-annual period during which such dividends remain unpaid.
The amount of any Base Dividends per share of Series A Preferred
Stock for any full semi-annual period shall be computed by multiplying the
Applicable Rate for such semi-annual dividend period by the Liquidation
Preference per share and dividing the result by two. Base Dividends payable on
the shares of Series A Preferred Stock for any period less than a full
semi-annual dividend period shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days elapsed for any period less
than one month.
Section 3. Liquidation Preference.
(a) In the event of a liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary (a "Liquidation"), the holders of the
Series A Preferred Stock then outstanding shall be entitled to receive out of
the assets of the Company available for distribution to the Company's
stockholders, whether such assets are stated capital or surplus of any nature,
after payment of the liquidation preference of any Senior Liquidation Stock (as
hereinafter defined), an amount on such date equal to the Stated Value per share
of Series A Preferred Stock (the "Liquidation Preference") plus an amount equal
to any accrued and unpaid Base Dividends as of such date, calculated pursuant to
Section 2 and no more. Such payment shall be made before any payment shall be
made or any assets distributed to the holders of any class or series of the
Common Stock or any other Junior Liquidation Stock (as hereinafter defined). If
upon any Liquidation, the amounts payable with respect to the Series A Preferred
Stock and any Parity Liquidation Stock (as hereinafter defined) are not paid in
full, holders of the Series A Preferred Stock and any Parity Liquidation Stock
will share ratably in any distribution of the assets of the Company in
proportion to the respective amounts that would be payable per share, if the
assets of the Company were sufficient for all such amounts to be paid in full.
Neither the consolidation or merger of the Company into or with any other
entity, nor the sale or transfer by the Company of all or any part of its
assets, nor the reduction of the capital stock of the Company, shall be deemed
to be a Liquidation.
(b) Any assets to be delivered to the holders of the Series A
Preferred Stock pursuant to this Section 3 as a consequence of a Liquidation
shall be valued at their fair market value as determined in good faith by the
Board of Directors of the Company, whose determination shall be conclusive and
binding absent manifest error.
Section 4. Mandatory Redemption.
On September 15, 2010 (the "Final Redemption Date"), the Company
shall, subject to any limitations or restrictions imposed by law, redeem all
shares of Series A Preferred Stock that are then outstanding at a redemption
price per share equal to the Liquidation Preference thereof plus an amount equal
to any accrued and unpaid Base Dividends as of the Final Redemption Date (the
"Final Redemption Price"). The Final Redemption Price shall be paid, at the
Company's option, in either (i) cash, (ii) shares of Class B Common Stock or
(iii) any combination thereof. The number of shares of Class B Common Stock to
which a holder of Series A Preferred Stock shall be entitled upon redemption
pursuant to clause (ii) shall be determined by dividing (x) the Liquidation
Preference of such Series A Preferred Stock plus the amount of any accrued but
unpaid Base Dividends as of the Final Redemption Date by (y) the weighted
average closing price of the Class B Common Stock over the 90-day period
immediately preceding the Final Redemption Date. Not less than ten (10) days
prior to the Final Redemption Date, notice by first class mail, postage prepaid,
shall be given to each holder of record of the Series A Preferred Stock, at such
holder's address as it shall appear upon the stock register of the Company on
such date. Each notice shall specify the Final Redemption Price, the form of
payment of the Final Redemption Price, the place or places of payment and that
payment will be made upon presentation and surrender of the certificate(s)
evidencing the shares of Series A Preferred Stock to be redeemed. On or after
the Final Redemption Date, each holder of shares of Series A Preferred Stock
shall surrender the certificate evidencing such shares to the Company at the
place designated in such notice and shall thereupon be entitled to receive
payment of the Final Redemption Price in the manner set forth in the notice.
Section 5. Status of Redeemed Shares.
Any shares of Series A Preferred Stock which shall at any time have
been redeemed pursuant to Section 4 hereof shall, after such redemption, have
the status of authorized but unissued shares of Preferred Stock, without
designation as to series, and shall not be reissued as Series A Preferred Stock.
On the Final Redemption Date, notwithstanding that the certificates evidencing
any shares so called for redemption shall not have been surrendered, the shares
shall no longer be deemed outstanding, the dividends shall cease to accumulate,
the holders thereof shall cease to be stockholders, and all rights whatsoever
with respect to the Series A Preferred Stock (except the right of the holders to
receive the Final Redemption Price upon surrender of their certificates
therefor) shall terminate, except to the extent the Company shall default in
payment of the Final Redemption Price on the Final Redemption Date.
Section 6. Voting Rights.
Except as required by applicable law, the holders of outstanding
shares of the Series A Preferred Stock shall have no voting rights or powers;
provided that with respect to any matters required to be submitted to a vote of
the holders of Class B Common Stock under applicable law, the holders of
outstanding shares of Series A Preferred Stock shall (i) vote together with the
holders of Class B Common Stock as a single class and (ii) be entitled to the
number of votes per share of Series A Preferred Stock equal to the number of
shares of Class B Common Stock into which such share is convertible at the time.
Section 7. Conversion Rights.
(a) Optional. Subject to and upon compliance with the provisions of
this Section 7, the holders of the shares of Series A Preferred Stock shall be
entitled, at their option, at any time to convert all or any such shares of
Series A Preferred Stock into a number of fully paid and non-assessable shares
(calculated as to each conversion to the nearest 1/100,000th of a share) of
Class B Common Stock. The number of shares of Class B Common Stock to which a
holder of Series A Preferred Stock shall be entitled upon conversion shall be
determined by dividing (x) the Liquidation Preference of such Series A Preferred
Stock plus the amount of any accrued but unpaid Base Dividends thereon as of the
Conversion Date (as hereinafter defined) by (y) the Conversion Price (determined
as provided in this Section 7).
(b) Conversion Price. The conversion price (the "Conversion Price")
shall be equal to 1.25 multiplied by the weighted average closing price of the
Class B Common Stock over the 90-day period immediately prior to the Original
Issuance Date, subject to adjustment from time to time in accordance with
Section 7(e).
(c) Mandatory. (i) After the date that is three (3) years after the
Original Issue Date, if at any time the weighted average closing price of the
Class B Common Stock for each of fifteen (15) consecutive Trading Days (each a
"Mandatory Conversion Period") equals or exceeds 150% of the Conversion Price
(subject to proportionate adjustment as provided in Section 7(e)) the Company
shall have the option by delivery of written notice ("Mandatory Conversion
Notice") to holders of shares of Series A Preferred Stock provided within five
(5) Business Days after the end of any Mandatory Conversion Period to convert
any or all shares of Series A Preferred Stock into such number of fully paid and
non-assessable shares of Class B Common Stock determined by dividing (i) the
Liquidation Preference of such Preferred Stock plus the amount of any accrued
but unpaid Base Dividends as of the Mandatory Conversion Date (as hereinafter
defined) by (ii) the Conversion Price. The Company shall send the written notice
provided for above, by mail to each holder of record of Series A Preferred Stock
at its address then shown on the records of the Company, which notice shall
state that the Company has elected to convert some or all of the Series A
Preferred Stock and the effective date (the "Mandatory Conversion Date") of such
conversion, which date shall be the last day of the applicable Mandatory
Conversion Period, and that certificates
evidencing shares of Series A Preferred Stock must be surrendered at the office
of the Company (or of its transfer agent for the Class B Common Stock, if
applicable).
(ii) On or after the Mandatory Conversion Date, shares of Series A
Preferred Stock shall no longer be deemed outstanding, the dividends shall cease
to accumulate, the holders shall cease to be stockholders, all rights whatsoever
with respect to the Series A Preferred Stock so converted will terminate, and
the holders entitled to receive Class B Common Stock issuable upon conversion
shall be treated for all purposes as the record holder of such Class B Common
Stock as and after the Mandatory Conversion Date. The conversion shall occur on
Mandatory Redemption Date without any further action by such holders of such
shares and whether or not the certificates representing such shares are
surrendered to the Company or its transfer agent; provided, however, that the
Company shall not be obligated to issue certificates evidencing the shares of
Class B Common Stock issuable upon such conversion unless certificates
evidencing such shares of Series A Preferred Stock so converted are surrendered
to the Company. Upon the occurrence of such conversion of the Series A Preferred
Stock, the holders of Series A Preferred Stock shall promptly surrender the
certificates representing such shares at the office of the Company or any
transfer agent for the Series A Preferred Stock. Thereupon, there shall be
issued and delivered to such holder promptly at such office and in its name as
shown on such surrendered certificate(s), a certificate or certificates for the
number of shares of Class B Common Stock into which the shares of Series A
Preferred Stock surrendered were convertible on the Mandatory Conversion Date.
(d) Fractions of Shares. The Company shall not issue any fractional
shares of Class B Common Stock upon conversion of the Series A Preferred Stock.
Instead the Company shall round the results of a conversion up to the nearest
full share of Class B Common Stock.
(e) Adjustments to Conversion Price. The Conversion Price shall be
subject to adjustment from time to time as follows:
(1) Upon Stock Dividends, Subdivisions or Splits. If, at any
time after the Original Issuance Date, the number of shares of Class B
Common Stock outstanding is increased by a stock dividend payable in
shares of Class B Common Stock or by a subdivision or split-up of shares
of Class B Common Stock, then, following the record date for the
determination of holders of Class B Common Stock entitled to receive such
stock dividend, or to be affected by such subdivision or split-up, the
Conversion Price shall be appropriately decreased so that the number of
shares of Class B Common Stock issuable on conversion of Series A
Preferred Stock shall be increased in proportion to such increase in
outstanding shares.
(2) Upon Combinations. If, at any time after the Original
Issuance Date, the number of shares of Class B Common Stock outstanding is
decreased by a combination of the outstanding shares of Class B Common
Stock into a smaller number of shares of Class B Common Stock, then,
following the record date to determine shares affected by such
combination, the Conversion Price shall be appropriately increased so that
the number of shares of Class B Common Stock issuable on conversion of
each share of Series A Preferred Stock shall be decreased in proportion to
such decrease in outstanding shares.
(3) Upon Reclassifications, Reorganizations, Consolidations or
Mergers. In the event of any capital reorganization of the Company, any
reclassification of the stock of the Company (other than a change in par
value or from par value to no par value or from no par value to par value
or as a result of a stock dividend or subdivision, split-up or combination
of shares), or any consolidation or merger of the Company with or into
another Person (where the Company is not the surviving Person or where
there is a change in or distribution with respect to the Class B Common
Stock), each share of Series A Preferred Stock shall after such
reorganization, reclassification, consolidation, or merger be convertible
into the kind and number of shares of stock or other securities or
property of the Company or of the successor Person resulting from such
consolidation or surviving such merger, if any, to which the holder of the
number of shares of Class B Common Stock deliverable (immediately prior to
the time of such reorganization, reclassification, consolidation or
merger) upon conversion of such Series A Preferred Stock would have been
entitled upon such reorganization, reclassification, consolidation or
merger. The provisions of this clause shall similarly apply to successive
reorganizations, reclassifications, consolidations or mergers.
(4) Distributions. If the Company declares, pays or makes a
Class B Common Distribution (as hereinafter defined), then the Conversion
Price shall be reduced so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such Class B Common Distribution by a fraction of
which the numerator shall be the fair market value (as determined in good
faith by the Board of Directors of the Company whose determination shall
be final and binding absent manifest error) per share of Common Stock on
the date fixed for such determination less the fair market value (as
determined above) on such date of the portion of the assets, property
and/or securities so to be distributed applicable to one share of Class B
Common Stock and of which the denominator shall be such fair market value
per share of Class B Common Stock on the date fixed for such
determination, such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such Class B Common
Distribution. For purposes of this Section 7(e)(4), "Class B Common
Distribution" means any dividend or other distribution declared, paid or
made on or in respect of the Class B Common Stock (other than a
distribution or dividend payable solely in Class B Common Stock for which
an adjustment provided by Section 7(e)(1) above is made including any pro
rata distribution of cash, property, securities or other assets to
the holders of Class B Common Stock, whether or not paid out of capital,
surplus or earnings).
(f) Exercise of Conversion Privilege.
(i) To convert shares of Series A Preferred Stock pursuant to
Section 7(a), a holder must (A) surrender the certificate or certificates
evidencing such holder's shares of Series A Preferred Stock to be
converted, duly endorsed in a form satisfactory to the Company, at the
office of the Company and (B) notify the Company at such office that such
holder elects to convert Series A Preferred Stock and the number of shares
such holder wishes to convert. Such notice referred to in clause (B) above
shall be delivered substantially in the following form:
"NOTICE TO EXERCISE CONVERSION RIGHT"
The undersigned, being a holder of the Series A Convertible
Preferred Stock of Playboy Enterprises, Inc. (the "Convertible Preferred
Stock") irrevocably exercises the right to convert ____________
outstanding shares of Convertible Preferred Stock on ___________, ____,
into shares of Class B Common Stock of Playboy Enterprises, Inc. in
accordance with the terms of the shares of Convertible Preferred Stock,
and directs that the shares issuable and deliverable upon the conversion
be issued and delivered in the denominations indicated below to the
registered holder hereof unless a different name has been indicated below.
Dated: [At least one Business Day prior to the date fixed for conversion]
Fill in for registration of
shares of Class B Common Stock
if to be issued otherwise than
to the registered holder:
________________________________
Name
________________________________
Address
________________________________ ________________________________
Please print name and (Signature)
address, including postal
code number
Denominations:__________________
(ii) Series A Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the day
(the "Conversion Date") of surrender of such shares of Series A
Preferred Stock for conversion in accordance with the foregoing
provisions and at such time the shares of Series A Preferred Stock
(or portions thereof) submitted for conversion shall no longer be
deemed outstanding, the dividend shall cease to accumulate on such
shares, the holders shall cease to be stockholders with respect to
such shares, and all rights whatsoever with respect to the Series A
Preferred Stock so converted will terminate and the holders entitled
to receive the Class B Common Stock issuable upon conversion shall
be treated for all purposes as the record holder or holders of such
Class B Common Stock as and after such time. As promptly as
practicable on or after the Conversion Date, the Company shall issue
and shall deliver at any office of the Company or the transfer agent
for the Series A Preferred Stock, a certificate or certificates for
the number of full shares of Class B Common Stock issuable upon
conversion.
(iii) In the case of any certificate evidencing shares
of Series A Preferred Stock which is converted in part only, upon
such conversion the Company shall execute and deliver a new
certificate representing an aggregate number of shares of Series A
Preferred Stock equal to the unconverted portion of such
certificate.
(g) Notice of Adjustment of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided the Company shall compute the
adjusted Conversion Price in accordance with Section 7(e) and a notice stating
that the Conversion Price has been adjusted and setting forth the adjusted
Conversion Price shall forthwith be prepared by the Company, and as soon as
practicable after it is prepared, such notice shall be mailed by the Company at
its expense to all holders at their last addresses as they shall appear in the
stock register.
(h) Company to Reserve Class B Common Stock. The Company shall at
all times reserve and keep available, free from preemptive rights, out of the
authorized but unissued Class B Common Stock or out of the Class B Common Stock
held in treasury, for the purpose of effecting the conversion of Series A
Preferred Stock, the full number of shares of Class B Common Stock then issuable
upon the conversion of all outstanding shares of Series A Preferred Stock.
(i) Taxes on Conversions. The Company will pay any and all original
issuance, transfer, stamp and other similar taxes that may be payable in respect
of the issue or delivery of shares of Class B Common Stock on conversion of
Series A Preferred Stock pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares of Class B Common Stock in a name other than
that of the holder to be converted or as payment of dividends, and no such issue
or delivery shall be made unless and until
the Person requesting such issue has paid to the Company the amount of any such
tax, or has established to the reasonable satisfaction of the Company that such
tax has been or will be paid.
(j) Status of Converted Series A Preferred Stock. Any shares of
Series A Preferred Stock which shall have been exchanged pursuant to Section 7
hereof, shall, after such conversion, have the status of authorized but unissued
shares of Preferred Stock without designation as to series, and shall not be
reissued as Series A Preferred Stock.
(k) Minimum Adjustment. No adjustment in the Conversion Price need
be made until all cumulative adjustments amount to 1.0% or more of the
Conversion Price as last adjusted. Any adjustments that are not made shall be
carried forward and taken into account in any subsequent adjustment.
Section 8. Certain Definitions. The following terms shall have the
following respective meanings herein:
"Business Day" means a day other than a Saturday, Sunday or day on
which banking institutions in New York are authorized or required to
remain closed.
"Closing Date" means the Closing Date as defined in that certain
Purchase Agreement, dated March 6, 2003, among the Company, PEI Holdings,
Inc., the subsidiary guarantors listed on Schedule B thereto, Banc of
America Securities LLC and Lazard Freres & Co. LLC.
"Junior Liquidation Stock" means any class or series of capital
stock of the Company that, with respect to distributions upon liquidation,
dissolution or winding up of the Company, ranks junior to the Series A
Preferred Stock.
"Parity Liquidation Stock" means any class or series of capital
stock of the Company that, with respect to distributions upon liquidation,
dissolution or winding up the Company, ranks on parity to the Series A
Preferred Stock.
"Senior Liquidation Stock" means any class or series of capital
stock of the Company that, with respect to distributions upon liquidation,
dissolution or winding up of the Company, ranks senior to the Series A
Preferred Stock.
"Series B Preferred Stock" means the shares of the Preferred Stock
created by the Certificate of the Designations, Powers, Preferences and
Rights of Series B Exchangeable Preferred Stock of PEI Holdings, Inc., as
the same may be amended from time to time.
"Trading Day" means a day on which the New York Stock Exchange,
Inc., or if the New York Stock Exchange, Inc. is not the principle
securities exchange or trading market for the Class B Common Stock, the
principle securities exchange or trading market for the Class B Common
Stock, is open for general trading of securities, other than a day on
which general trading of securities on such exchange or market is
suspended based on fluctuations in stock market averages or stock market
indices or (other than where the context so requires) on a day on which
general trading of the Class B Common Stock is suspended."
[Execution Page Follows]
IN WITNESS WHEREOF, the Company has caused this Certificate of
Designations to be signed by its duly authorized officer this 1st day of May,
2003.
PLAYBOY ENTERPRISES, INC.
By: /s/ Howard Shapiro
------------------------------------
Name: Howard Shapiro
Title: Executive Vice President, Law
and Administration, General
Counsel and Secretary