-----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, BdTrEss9Guw3Z4rcDE0cL5s7jReYm0Z3xa/Xnr+hyESyPmN6/ExFviIPLsoBNRux qb+cY2Gx/kxO+sVYkugZsQ== 0000950142-99-000204.txt : 19990310 0000950142-99-000204.hdr.sgml : 19990310 ACCESSION NUMBER: 0000950142-99-000204 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990308 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990309 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: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-06813 FILM NUMBER: 99560886 BUSINESS ADDRESS: STREET 1: 680 N LAKE SHORE DR CITY: CHICAGO STATE: IL ZIP: 60611 BUSINESS PHONE: 3127518000 8-K 1 CURRENT REPORT ON 8-K As filed with the Securities and Exchange Commission on March 9, 1999 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (date of earliest event reported): March 8, 1999 PLAYBOY ENTERPRISES, INC. ------------------------- (Exact name of registrant as specified in its charter) DELAWARE 1-6813 36-2258830 -------- ------ ---------- (State or other jurisdiction of (Commission File (IRS Employer incorporation) Number) Identification No.) 680 NORTH LAKE SHORE DRIVE, CHICAGO, ILLINOIS 60611 - --------------------------------------------- ----- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (312) 751-8000 -------------- Not Applicable -------------- (Former name or former address, if changed since last report) ================================================================================ ITEM 5. OTHER EVENTS Playboy Enterprises, Inc. (the "Company") and Spice Entertainment Companies, Inc. ("Spice") have entered into an amendment to the terms of their merger agreement. A copy of this amendment is attached as Exhibit 2.1. On March 8, 1999, the Company and Spice made an announcement regarding the closing of their merger. A copy of the press release of this announcement is attached as Exhibit 99. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (a) Financial statements of businesses acquired Not applicable. (b) Pro forma financial information Not applicable. (c) Exhibits Exhibit Number Description ------ ----------- 2.1 Second Amendment to the Agreement and Plan of Merger, dated as of February 26, 1999, as amended as of November 16, 1998, by and among the Company, New Playboy, Inc., Playboy Acquisition Corp., Spice Acquisition Corp. and Spice. 99 Press release, dated March 8, 1999, of the Company and Spice. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. PLAYBOY ENTERPRISES, INC. By: /s/ Howard Shapiro ---------------------- Name: Howard Shapiro Title: Executive Vice President, Law and Administration, General Counsel and Secretary Dated: March 9, 1999 3 EXHIBIT INDEX Page ---- 2.1 Second Amendment to the Agreement and Plan of Merger, dated as 5 of February 26, 1999, as amended as of November 16, 1998, by and among Playboy Enterprises, Inc., New Playboy, Inc., Playboy Acquisition Corp., Spice Acquisition Corp. and Spice Entertainment Companies, Inc. 99 Press release, dated March 8, 1999, of Playboy Enterprises, Inc. 10 and Spice Entertainment Companies, Inc. 4 EX-2.1 2 EXHIBIT 2.1 Exhibit 2.1 SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER SECOND AMENDMENT, dated as of February 26, 1999 (the "SECOND AMENDMENT"), to the Agreement and Plan of Merger, dated as of May 29, 1998, as amended as of November 16, 1998 (the "Merger Agreement"), by and among Playboy Enterprises, Inc., a Delaware corporation, New Playboy, Inc., a Delaware corporation, Playboy Acquisition Corp., a Delaware corporation, and Spice Acquisition Corp., a Delaware corporation (collectively, the "PLAYBOY ENTITIES"), and Spice Entertainment Companies, Inc., a Delaware corporation (the "COMPANY"). WHEREAS, the Playboy Entities have requested that certain provisions of the Merger Agreement be amended as provided herein; WHEREAS, the Company is willing to so amend the Merger Agreement; and WHEREAS, all capitalized terms not otherwise defined in this Second Amendment shall have the meanings assigned to them in the Merger Agreement; NOW, THEREFORE, in consideration of the premises and mutual agreements herein contained, and intending to be legally bound hereby, the parties agree as follows: 1. Section 1.2 of the Merger Agreement is hereby amended by deleting the first sentence thereof in its entirety and replacing it with the following: Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Section 7.1 and subject to the satisfaction or waiver of the conditions set forth in Article 6, the closing of the Mergers (the "CLOSING") shall take place in New York City at the offices of Paul, Weiss, Rifkind, Wharton & Garrison (i) no later than March 16, 1999, at such time and date after the date on which the conditions set forth in Article 6 have been satisfied or waived by the party or parties entitled to the benefit of such conditions or (ii) at such other place as the parties may mutually agree. 2. Section 1.4(a) of the Merger Agreement is hereby amended by deleting that Section 1.4(a) in its entirety and replacing it with the following: The Restated Certificate of Incorporation of Playboy, as in effect immediately prior to the Effective Time of the Mergers (the "RESTATED CERTIFICATE OF INCORPORATION"), shall become, from and after the Effective Time of the Mergers, the certificate of incorporation of the P Surviving Corporation, until thereafter altered, amended or repealed as provided therein and in accordance with applicable law, except that Article FIRST of such Restated Certificate of Incorporation shall be amended to read "The name of the corporation is PLAYBOY ENTERPRISES INTERNATIONAL, INC." and a new Article THIRTEENTH shall be added to such Restated Certificate of Incorporation to read 5 "Any act or transaction by or involving the Corporation that requires for its adoption the approval of its stockholders pursuant to the Delaware General Corporation Law or the provisions of this certificate of incorporation shall, as provided by subsection (g) of ss. 251 of the Delaware General Corporation Law, require, in addition, the approval of the stockholders of Playboy Enterprises, Inc. (and any successor by merger) by the same vote as is required pursuant to the Delaware General Corporation Law and/or the provisions of this certificate of incorporation, as the case may be." 3. Section 2.1(a) of the Merger Agreement is hereby amended by deleting that Section 2.1(a) in its entirety and replacing it with the following: Each share of common stock, par value $.01 per share, of Merger Sub P issued and outstanding immediately prior to the Effective Time of the Mergers shall be converted into (i) 0.1 of one (1) fully paid and non-assessable share of Class A Common Stock, par value $.01 per share, of the P Surviving Corporation and (ii) 0.9 of one (1) share of Class B Common Stock, par value $.01 per share, of the P Surviving Corporation. 4. The first sentence of Section 4.2(b) of the Merger Agreement is hereby amended by deleting it in its entirety and replacing it with the following: The authorized capital stock of Holdco consists (i) of 7,500,000 shares of Class A common stock, par value $.01 per share ("NEW PLAYBOY CLASS A COMMON STOCK"), 100 of which are validly issued and outstanding, and (ii) 30,000,000 shares of Class B common stock, par value $.01 per share ("NEW PLAYBOY CLASS B COMMON STOCK" and, together with the New Playboy Class A Common Stock, "NEW PLAYBOY COMMON STOCK"), none of which are issued and outstanding. The 100 outstanding shares of New Playboy Class A Common Stock, are fully paid and non-assessable and owned by Playboy, free and clear of any Liens, other than Liens imposed by Federal and state securities laws. 5. Section 7.1(b) of the Merger Agreement is hereby amended by deleting that Section 7.1(b) in its entirety and replacing it with the following: (b) by either Playboy or the Company, if the Effective Time of the Mergers shall not have occurred on or before March 16, 1999; PROVIDED, HOWEVER, that (i) the Company's right to terminate this Agreement under this Section 7.1(b) shall not be available if the failure of the Company (or any Company Subsidiary) to effect the Related Transactions shall have been the cause of, or resulted in, the failure of the Effective Time of the Mergers to occur before March 16, 1999, other than due to events or circumstances which are beyond the control of the Company; and (ii) the right to terminate this Agreement under this Section 7.1(b) shall not be available to the party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or resulted in, the failure of the Effective Time of the Mergers to occur on or before March 16, 1999; 6 6. Sections 7.1(e), (f), (g) and (h) of the Merger Agreement are hereby amended by deleting those Sections in their entirety and replacing them with the following: (e) by Playboy, upon a beach by the Company of any material representation or warranty of the Company set forth in this Agreement, or if any such representation or warranty shall have become untrue (either, a "TERMINATING COMPANY BREACH"), in either case such that the conditions set forth in Section 6.3(a) could not, upon the Company's exercise of its reasonable best efforts, be satisfied by March 16, 1999 or such breach has not in any event been cured by March 16, 1999; (f) by the Company, upon a breach by Playboy of any material representation or warranty of Playboy set forth in this Agreement, or if any such representation or warranty shall have become untrue (either, a "TERMINATING PLAYBOY BREACH"), in either case such that the conditions set forth in Section 6.2(a) could not, upon Playboy's exercise of its reasonable best efforts, be satisfied by March 16, 1999 or such Terminating Playboy Breach has not in any event been cured by March 16, 1999; (g) by Playboy, upon the breach by the Company of any material covenant or agreement of the Company set forth in this Agreement which is not, upon the Company's exercise of its reasonable best efforts, able to be cured by March 16, 1999 or has not, in any event, been cured by March 16, 1999; (h) by the Company, upon the breach by Playboy of any material covenant or agreement of Playboy set forth in this Agreement which is not, upon Playboy's exercise of its reasonable best efforts, able to be cured by March 16, 1999 or has not, in any event, been cured by March 16, 1999; 7. Section 7.1 of the Merger Agreement is hereby amended by adding the following paragraph at the end of that Section 7.1: Each of the Playboy Entities and the Company acknowledge that time is of the essence in connection with the Closing under this Agreement. Any party hereto has the right to terminate this Agreement on and after March 17, 1999 if the S Merger has not been consummated on or before March 16, 1999 without providing the other party any further extension of time or the right to cure any breach or default and without any liability for such termination; PROVIDED, HOWEVER, that no such termination shall relieve any party hereto of the consequences of any breach of or default under this Agreement. 8. Other than as expressly set forth herein, the Merger Agreement is hereby ratified and confirmed and shall remain unchanged in all other respects. 9. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. 7 IN WITNESS WHEREOF, each of the parties has caused this Amendment to be duly executed on its behalf as of the day and year first above written. PLAYBOY ENTERPRISES, INC. By: /s/ Howard Shapiro ---------------------- Name: Howard Shapiro Title: Executive Vice President, Law and Administration, General Counsel and Secretary NEW PLAYBOY, INC. By: /s/ Howard Shapiro ---------------------- Name: Howard Shapiro Title: Executive Vice President, Law and Administration, General Counsel and Secretary PLAYBOY ACQUISITION CORP. By: /s/ Howard Shapiro ---------------------- Name: Howard Shapiro Title: Secretary SPICE ACQUISITION CORP. By: /s/ Howard Shapiro ---------------------- Name: Howard Shapiro Title: Secretary SPICE ENTERTAINMENT COMPANIES, INC. By: /s/ J. Roger Faherty ------------------------ Name: J. Roger Faherty Title: Chairman and Chief Executive Officer 8 EX-99 3 EXHIBIT 99 Exhibit 99 FOR IMMEDIATE RELEASE Investor Contact: Martha Lindeman 312-751-8000 x2430 Media Contact: Rebecca Theim 312-751-8000 x2445 PLAYBOY ENTERPRISES, INC. AND SPICE ENTERTAINMENT COMPANIES, INC. SET CLOSING DATE FOR ACQUISITION Chicago, March 8, 1999 -- Playboy Enterprises, Inc. (PLA - NYSE) and Spice Entertainment Companies, Inc. (SPZE - NASDAQ) today announced that they have scheduled the closing of Playboy's acquisition of Spice for Monday, March 15, 1999. Playboy signed a credit agreement on February 26th to provide the financing necessary to close the Spice acquisition. Playboy will issue in the aggregate between 1,980,000 and 2,055,000 shares of Playboy Class B Common Stock, depending upon decisions to be made by holders of options to acquire Spice stock. Of these shares, approximately 173,800 will be issued to Spice and will be included among the assets being transferred to Directrix, Inc., the common stock of which is being distributed to stockholders of Spice as part of the consideration for the merger. The remaining shares of Playboy Class B Common Stock will be issued to the Spice stockholders in partial exchange for their shares of Spice. Playboy and Spice expect that all closing conditions will be met by March 15, 1999. *** Playboy Enterprises, Inc. is an international multimedia entertainment company that publishes editions of PLAYBOY magazine around the globe; creates programming for Playboy TV networks and home video distribution around the world; operates a direct marketing business, including CRITICS' CHOICE VIDEO, COLLECTORS' CHOICE MUSIC, PLAYBOY and SPICE catalogs and Web sites; markets Playboy-branded consumer products sold worldwide; operates Playboy Online, which includes the PLAYBOY.COM and PLAYBOY CYBER CLUB Web sites; and plans to open the Playboy Casino & Beach Hotel on the Greek island of Rhodes. Spice Entertainment Companies, Inc. is a leading provider of adult television entertainment throughout the world. 9 -----END PRIVACY-ENHANCED MESSAGE-----