-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PkfhsKNfeKBU2t+gyZT/4F3ihV0rF7z/bnLlYizhGc35m4CudSZtRqyuywRRcvLN P10e20ToylbDEkI5knVakA== 0000950131-97-004189.txt : 19970630 0000950131-97-004189.hdr.sgml : 19970630 ACCESSION NUMBER: 0000950131-97-004189 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970627 EFFECTIVENESS DATE: 19970627 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PLAYBOY ENTERPRISES INC CENTRAL INDEX KEY: 0000079114 STANDARD INDUSTRIAL CLASSIFICATION: PERIODICALS: PUBLISHING OR PUBLISHING AND PRINTING [2721] IRS NUMBER: 362258830 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-30185 FILM NUMBER: 97631500 BUSINESS ADDRESS: STREET 1: 680 N LAKE SHORE DR CITY: CHICAGO STATE: IL ZIP: 60611 BUSINESS PHONE: 3127518000 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on June 27, 1997 Registration No. 333-______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------------------- FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 -------------------------------------- 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) -------------------------------------- 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) -------------------------------------- CALCULATION OF REGISTRATION FEE
======================================================================================================================= 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 =======================================================================================================================
(1) Calculated using the high and low prices of Class B shares in the composite reporting system for June 24, 1997. =============================================================================== 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 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. 6 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 ------------------------------------- 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 - ------------------------- Sol Rosenthal Director /s/ Richard S. Rosenzweig - ------------------------- Richard S. Rosenzweig Director /s/ Sir Brian Wolfson - ------------------------- Sir Brian Wolfson Director 7 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 EX-4.4 2 NON-QUALIFIED STOCK OPTION AGREEMENTS Exhibit 4.4 PLAYBOY ENTERPRISES, INC. NON-QUALIFIED STOCK OPTION AGREEMENT ------------------------------------ THIS AGREEMENT, dated as of November 13, 1996 is made by and between Playboy Enterprises, Inc., a Delaware corporation hereinafter referred to as "Company," and Sol Rosenthal, a non-employee Director of the Company hereinafter referred to as "Optionee": WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its Class B Common Stock, par value $.01 per share (hereinafter referred to as the "Class B Stock"); and WHEREAS, the execution of a stock option agreement in the form hereof has been duly authorized by a resolution of the Board of Directors of the Company duly adopted on November 13, 1996 and incorporated herein by reference; NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS ----------- Whenever the following terms are used in this Agreement, they shall have the meaning specified below. Section 1. - "Board" shall mean the Board of Directors of the Company. Section 1.2 - "Code" shall mean the Internal Revenue Code of 1986, as amended. Section 1.3 - "Committee" shall mean the Compensation Committee of the Board. Section 1.4 - "Company" shall mean Playboy Enterprises, Inc. Section 1.5 - "Director" shall mean a member of the Board. Section 1.6 - "Option" shall mean the non-qualified option to purchase 10,000 shares of Class B Stock of the Company granted under this Agreement. Section 1.7 - "Rule 16b-3" shall mean Rule 16b-3 which has been adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, as such rule or its equivalent is then in effect ("Rule 16b-3"). Section 1.8 - "Secretary" shall mean the Secretary of the Company. Section 1.9 - "Securities Act" shall mean the Securities Act of 1933, as amended. Section 1.10 - "Termination of Service" shall mean the time at which the Optionee ceases to serve as a Director for any reason, with or without cause, which includes termination by resignation, death or retirement. ARTICLE II GRANT OF OPTION --------------- Section 2.1 - Grant of Option In consideration of the Optionee's agreement to continue to serve as a Director and for other good and valuable consideration, on the date hereof the Company irrevocably grants to the Optionee a non-qualified option to purchase any part or all of an aggregate of 10,000 shares of its Class B Stock upon the terms and conditions set forth in this Agreement. Section 2.2 - Purchase Price The purchase price of the shares of Class B Stock covered by the Option shall be $12.00 per share, which was 100% of the fair market value per share of such shares at the end of the business day immediately preceding the day the Option was granted, as determined according to the closing price of the Class B Stock on such business day. Section 2.3 - No Additional Rights Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue to serve as a Director of the Company or shall interfere with or restrict in any way the right which is hereby expressly reserved, to remove the Optionee as a Director in accordance with the By-laws and Restated Certificate of Incorporation of the Company and applicable law. Section 2.4 - Adjustments in Option In the event that the outstanding shares of Class B Stock are changed into or exchanged for a different number or kind of shares of the Company or other securities of the Company by reason of merger, consolidation, recapitalization, 2 reclassification, stock split, stock dividend or combination of shares, the Committee shall make an appropriate and equitable adjustment in the number and kind of shares as to which the Option, or portions thereof then unexercised, shall be exercisable, so that the Optionee's proportionate interest shall be maintained. Such adjustment in the Option shall be made without change in the total price applicable to the unexercised portion of the Option (except for any change in the aggregate price resulting from rounding-off of share quantities or prices) and with any necessary corresponding adjustment in the Option price per share. Any such adjustment made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. ARTICLE III PERIOD OF EXERCISABILITY ------------------------ Section 3.1 - Commencement of Exercisability a. Subject to Section 3.1(b), the Option shall become exercisable in four (4) cumulative installments as follows: (i) The first installment shall consist of twenty-five percent (25%) of the shares covered by the Option and shall become exercisable twelve (12) months after November 13, 1996. (ii) The second installment shall consist of twenty-five percent (25%) of the shares covered by the Option and shall become exercisable twenty-four (24) months after November 13, 1996. (iii) The third installment shall consist of twenty-five percent (25%) of the shares covered by the Option and shall become exercisable thirty-six (36) months after November 13, 1996. (iv) The fourth installment shall consist of twenty-five percent (25%) of the shares covered by the Option and shall become exercisable forty-eight (48) months after November 13, 1996. b. No portion of the Option which is unexercisable at Termination of Service shall thereafter become exercisable. Section 3.2 - Duration of Exercisability The installments provided for in Section 3.1 are cumulative. As each such installment becomes exercisable it shall remain exercisable until it becomes unexercisable under the terms of Section 3.3. 3 Section 3.3 - Expiration of Option The Option may be exercised any time until the first of the following events: a. Ten (10) years from the date the Option was granted if the Optionee is still a Director of the Company. b. Three (3) months after the Optionee's Termination of Service if such Termination of Service results from (i) Optionee's retirement, or (ii) Optionee's removal from the Board other than for cause. c. The effective date of (i) removal of Optionee from the Board for cause, (ii) the Optionee's resignation from the Board, or (iii) a "Change of Control" described in clauses (iv) and (v) of the definition of such term set forth in Section 3.4 hereof. d. One (1) year after the date on which the Optionee ceases to be a Director of the Company by reason of having become disabled (within the meaning of Section 22(e)(3) of the Code); provided, however, that this subsection (d) shall not apply if the Optionee dies prior to the expiration of such one (1) year period. e. One (1) year from the date of the Optionee's death. Section 3.4 - Acceleration of Exercisability In the event there is a "Change of Control" (as hereinafter defined), the Optionee shall have the right to exercise the Option with respect to all shares covered by the Option held by Optionee. In the event of any Change of Control described in clauses (iv) or (v) below, if the Option has then neither been fully exercised nor become unexercisable under Section 3.1, this Option shall be exercisable as to all shares covered hereby during the period commencing ninety (90) days prior to the scheduled effective date of any such Change in Control and ending on the day immediately preceding the effective date of such Change in Control; provided that any exercise of any Option so accelerated shall be conditioned upon the consummation of the contemplated corporate transaction. For purposes of this Agreement, the term "Change of Control" means the occurrence of any of the following events: (i) except pursuant to a transaction described in the proviso to Section 3.4(iv) or (v), Hugh M. Hefner and Christie Hefner cease collectively to hold over 50% of the combined voting power of the then- 4 outstanding securities entitled to vote generally in the election of Directors of the Company ("Voting Stock"); (ii) except pursuant to a transaction described in the proviso to Section 3.4(iv) or (v), a sale, exchange or other disposition of PLAYBOY Magazine; (iii) except pursuant to a transaction described in the proviso to Section 3.4(iv) or (v), the liquidation or dissolution of the Company; (iv) The Company is merged, consolidated or reorganized into or with another corporation or other legal person; provided, however, that no such merger, consolidation or reorganization will constitute a Change of Control if (x) the merger, consolidation or reorganization is initiated by the Company, (y) as a result of such merger, consolidation or reorganization not less than a majority of the combined voting power of the then-outstanding securities of the surviving, resulting or ultimate parent corporation, as the case may be, immediately after such transaction is held in the aggregate by persons who held not less than a majority of the combined voting power of the outstanding Voting Stock of the Company immediately prior to such transaction, and (z) in connection with such a transaction, provision is made for an assumption of this Option or a substitution hereof with a new option in the surviving, resulting or ultimate parent corporation, as the case may be, of substantially equivalent value; or (v) The Company sells or otherwise transfers all or substantially all of its assets to another corporation or other legal person; provided, however, that no such sale or transfer will constitute a Change of Control if (w) the sale or transfer is initiated by the Company, (x) as a result of such sale or transfer not less than a majority of the combined voting power of the then- outstanding securities of such corporation or other legal person, as the case may be, immediately after such sale or transfer is held in the aggregate by persons who held not less than a majority of the combined voting power of the outstanding Voting Stock of the Company immediately prior to such sale or transfer, and (z) in connection with such a transaction, provision is made for an assumption of this Option or a substitution hereof with a new option in such corporation or other legal person, as the case may be, of substantially equivalent value. For purposes of this Section 3.4, any Voting Stock beneficially owned (as such term is defined under Rule 13d-3 or any successor rule or regulation under the Securities Exchange Act of 1934, as amended) by the Hugh M. Hefner Foundation shall be deemed to be held by Christie Hefner if and so long as she has sole voting power with respect to such Voting Stock. 5 ARTICLE IV EXERCISE OF OPTION ------------------ Section 4.1 - Person Eligible to Exercise --------------------------- a. Except as may be otherwise determined by the Committee, during the lifetime of the Optionee, only he or she may exercise the Option or any portion thereof. If the Optionee dies, any exercisable portion of the Option may, within the time frame allowed, be exercised by his or her personal representative or by any person empowered to do so under the Optionee's will or under the then applicable laws of descent and distribution. b. Should the Optionee be determined under applicable law to have become a disabled person or the equivalent thereof, the Option may, prior to the time when the Option becomes unexercisable under this Agreement, be exercised by the Optionee's guardian or by any other person empowered to do so under applicable laws of guardianship. For purposes of this Section 4.1, "disabled person" shall mean a person who (i) because of mental deterioration or physical incapacity is not fully able to manage his person or estate or (ii) is mentally ill and who because of his mental illness is not fully able to manage his person or estate. Section 4.2 - Partial Exercise ---------------- Any exercisable portion of the Option may be exercised in whole or in part at any time during the time frame allowed; provided, however, that each partial exercise shall be for whole shares only. Section 4.3 - Manner of Exercise ------------------ The Option, or any exercisable portion thereof, must be exercised by delivery to the Secretary or his office of: a. Notice in writing signed by the Optionee (or other person then entitled to exercise the Option) that the Option or portion thereof is being exercised; and b. Payment in full for the exercised shares: (i) In cash or by certified or cashier's check; or (ii) In shares of Class B Stock owned by the Optionee, duly endorsed for transfer to the Company. Such shares will be credited at the fair market value on the date of delivery; or 6 (iii) Any combination of the consideration provided in the foregoing subparagraphs (i) and (ii); and c. Such representations and documents as are necessary or advisable to effect compliance with all applicable provisions of the Securities Act and other federal or state securities laws or regulations; and d. Appropriate proof of the right of such person or persons to exercise the Option in the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee; and e. Full payment to the Company of all amounts which, under federal, state or local law, it is required to withhold upon exercise of the Option. Section 4.4 - Share Certificates The shares of stock deliverable upon the exercise of the Option shall be fully paid and non-assessable. The Company shall not be required to issue or deliver any certificate or certificates for shares for stock purchased upon the exercise of the Option or portion thereof prior to fulfillment of all of the following conditions: a. The completion of any registration or other qualification of such shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or of any other governmental regulatory body, which may be necessary or advisable; and b. The obtaining of any approval or other clearance from any state or federal governmental agency which may be necessary or advisable; and c. The payment to the Company of all amounts which, under federal, state or local law, it is required to withhold upon exercise of the Option. Section 4.5 - Rights as Stockholder The holder of the Option shall not be, nor have any of the rights or privileges of, a holder of the Company's Class B Stock in respect of any shares purchasable upon the exercise of any part of the Option unless and until certificates representing such shares shall have been issued by the Company to such holder. 7 ARTICLE V OTHER PROVISIONS ---------------- Section 5.1 - Administration The Committee shall have the power to interpret this Agreement and to adopt rules for its administration. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Option. Section 5.2 - Option Not Transferable Except as may be determined by the Committee, neither the Option nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution. Section 5.3 - Modification of Option The Option is subject in all events to the condition that, if at any time the Board shall determine, in its discretion, that the listing, registration or qualification of any of the Company's securities upon any securities exchange or under any law, regulation or other requirement of any governmental authority is necessary or desirable, or that any consent or approval from any governmental authority or compliance of the Option with any law or regulation of any such authority is necessary or desirable, then the Board may modify the terms of the Option, without the consent of the Optionee, in any manner which the Board deems necessary or desirable in order to improve the Company's ability to obtain such listing, registration, qualification, consent, approval or compliance. Without limitation of the foregoing, to the extent required for compliance with the provisions of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended, the Board may provide for restrictions on the sale or transfer of any shares acquired upon exercise of this Option. Section 5.4 - Notices Any notice to be given under the terms of this Agreement will be by registered mail, return receipt requested and if to the Company shall be addressed in care of its Secretary at 680 N. Lake Shore Drive, Chicago, Illinois 60611, and if to the 8 Optionee shall be addressed to him at the address given beneath his signature hereto. By a notice given pursuant to the Section 5.4, either party may hereafter designate a different address for notices to be given him. Any notice which is required to be given to the Optionee shall, if the Optionee is then deceased, be given to the Optionee's personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.4. Any notice shall be deemed duly given when delivered or, except in connection with notice of exercise under Section 4.3, at such time as delivery is attempted. Section 5.5 - Construction This Agreement shall be administered, interpreted and enforced under the laws of the State of Delaware. Section 5.6 - No Additional Rights Nothing in this Option shall confer upon the Optionee any right to continue to serve as a Director or shall interfere with or restrict in any way the right, which right is hereby expressly reserved, to remove the Optionee as a Director in accordance with the By-laws and Certificate of Incorporation of the Company and applicable law. Section 5.7 - No Obligation to Register The Company shall not be deemed, by reason of the granting of this Option, to have any obligation to register the shares of Class B Stock subject to this Option under the Securities Act or to maintain in effect any registration of such shares which may be made at any time under the Securities Act. 9 IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto. PLAYBOY ENTERPRISES, INC. By: /s/ Howard Shapiro ----------------------------- Authorized Representative 680 N. Lake Shore Drive Chicago, Illinois 60611 /s/ Sol Rosenthal - ----------------------------- Sol Rosenthal 441 North Barrington Ave. - ----------------------------- Los Angeles, CA 90049 - ----------------------------- Address Optionee's Taxpayer Identification Number: ###-##-#### - ----------------------------- 10 EX-5.1 3 OPINION OF COUNSEL Exhibit 5.1 [LETTERHEAD OF HOWARD SHAPIRO, ESQ.] June 27, 1997 SECURITIES AND EXCHANGE COMMISSION 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: I am the Executive Vice President, Law and Administration, General Counsel and Secretary to Playboy Enterprises, Inc., a Delaware corporation (the "Company"), and have acted as counsel to the Company in connection with the issuance of up to 20,000 shares (the "Shares") of the Company's Class B Common Stock, $.01 par value, issuable upon exercise of the Non-qualified Stock Option Agreements dated November 13, 1996, between the Company and each of Dennis S. Bookshester and Sol Rosenthal (the "Agreements") pursuant to a Registration Statement on Form S-8, filed by the Company with the Securities and Exchange Commission on the date hereof (the "Registration Statement"). I am familiar with the proceedings taken and to be taken by the Company in connection with the authorization, issuance and sale of the Shares, and for the purposes of this opinion, have assumed such proceedings will be timely completed in the manner presently proposed. In addition, I have examined such documents and such questions of law and fact, including an examination of originals or copies certified or otherwise identified to my satisfaction of such documents, corporate records and instruments as I have deemed necessary or appropriate for purposes of this opinion. Based on the foregoing, it is my opinion that the Shares to be issued and sold pursuant to the Agreements have been duly authorized, and that such Shares, when issued and sold pursuant to any exercise of the Agreements in accordance with the terms thereof, will be validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Respectfully submitted, /s/ Howard Shapiro Howard Shapiro, Esq. EX-23.1 4 CONSENT OF COOPERS & LYBRAND L.L.P. Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS ----------------------------------------- We consent to the incorporation by reference in the registration statement of Playboy Enterprises, Inc. on Form S-8 relating to the Non-qualified Stock Option Agreements dated November 13, 1996, between Playboy Enterprises, Inc. and each of Dennis S. Bookshester and Sol Rosenthal of our report dated August 1, 1996, on our audits of the consolidated financial statements and financial statement schedule of Playboy Enterprises, Inc. as of June 30, 1996 and 1995 and for each of the three years in the period ended June 30, 1996, which report is incorporated by reference into the Annual Report on Form 10-K. /s/ COOPERS & LYBRAND L.L.P. Chicago, Illinois June 27, 1997 -----END PRIVACY-ENHANCED MESSAGE-----