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 Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx (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repealed as provided therein and in accordance with applicable law,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
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"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;
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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.
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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/ Xxxxxx Xxxxxxx
----------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President,
Law and Administration,
General Counsel and Secretary
NEW PLAYBOY, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President,
Law and Administration,
General Counsel and Secretary
PLAYBOY ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxx
----------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
SPICE ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxx
----------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
SPICE ENTERTAINMENT COMPANIES, INC.
By: /s/ J. Xxxxx Xxxxxxx
------------------------
Name: J. Xxxxx Xxxxxxx
Title: Chairman and
Chief Executive Officer
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