EXHIBIT 10.1 (e)
PLAYBOY ENTERPRISES, INC.
SECTION 162(m) RESTRICTED STOCK AGREEMENT
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THIS SECTION 162(m) RESTRICTED STOCK AGREEMENT (the "Agreement"),
dated _______ (the "Award Date"), is made by and between PLAYBOY ENTERPRISES,
INC., a Delaware corporation (the Company"), and __________, an employee of the
Company or a Subsidiary (the "Employee"):
WHEREAS, the Company has established the Amended and Restated Playboy
Enterprises, Inc. 1995 Stock Incentive Plan (the "Plan"); and
WHEREAS, the Company wishes to carry out the Plan (the terms of which
are hereby incorporated by reference and made a part of this Agreement, and
which shall control in the event of any inconsistency between this Agreement and
the Plan or any interpretation of this Agreement); and
WHEREAS, the Plan provides for the issuance of shares of the
Company's Common Stock (as defined hereunder), subject to certain restrictions
thereon (hereinafter referred to as "Section 162(m) Restricted Stock"; and
WHEREAS, the Compensation Committee of the Company's Board of
Directors (the "Committee"), appointed to administer the Plan, has determined
that it would be in the best interest of the Company to issue the shares of
Section 162(m) Restricted Stock provided for herein to the Employee in partial
consideration of past services to the Company and/or its Subsidiaries and to
provide further incentives for performance and continued service during the
vesting periods provided herein, and has advised the Company thereof and
instructed the undersigned Officers (as defined hereunder) to issue said Section
162(m) Restricted Stock;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
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Whenever the following terms are used below in this Agreement, they
shall have the meaning specified below unless the context clearly indicates to
the contrary. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Plan.
Section 1.1 - Change of Control
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"Change of Control" shall mean the occurrence of any of the
following events: (i) except in a transaction described in clause (iii) below,
Xxxx X. Xxxxxx, Xxxxxxxx Xxxxxx, the Xxxx X. Xxxxxx 1991 Trust (for so long as
Xxxx X. Xxxxxx and Xxxxxxxx Xxxxxx are joint trustees or one of them is sole
trustee), and the Xxxx X. Xxxxxx Foundation (for so long as Xxxx X. Xxxxxx and
Xxxxxxxx Xxxxxx are joint trustees or one of them is sole trustee) cease
collectively to own a majority of the total number of votes that may be cast for
the election of directors of the Company; or (ii) a sale of Playboy
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magazine by the Company; or (iii) the liquidation or dissolution of the Company,
or any merger, consolidation or other reorganization involving the Company
unless (x) the merger, consolidation or other reorganization is initiated by the
Company, and (y) is one in which the stockholders of the Company immediately
prior to such reorganization become the majority stockholders of a successor or
ultimate parent corporation of the Company resulting from such reorganization
and (z) in connection with such event, provision is made for an assumption of
outstanding Options and rights or a substitution thereof of a new Option or
right in such successor or ultimate parent of substantially equivalent value.
SECTION 1.2 - Common Stock
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"Common stock" shall mean the Class B Common Stock, par value
$.01 per share, of the Company.
Section 1.3 - Exchange Act
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.4 - Plan
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"Plan" shall mean the Amended and Restated Playboy Enterprises,
Inc. 1995 Stock Incentive Plan.
Sections 1.5 - RESTRICTIONS
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"Restrictions" shall mean the transferability restrictions
imposed upon Section 162(m) Restricted Stock under this Agreement.
Section 1.6 - Rule 16b-3
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"Rule 16b-3" shall mean that certain Rule 16b-3 under the
Exchange Act, as such Rule may be amended in the future.
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Section 1.7 - Secretary
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"Secretary" shall mean the Secretary of the Company.
Section 1.8 - Section 162(m) Restricted Stock
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"Section 162(m) Restricted Stock" shall mean Common Stock of the
Company issued under this Agreement and subject to the Restrictions imposed
hereunder.
Section 1.9 - Securities Act
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"Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.10 - Termination of Employment
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"Termination of Employment" shall mean the time when the
employee-employer relationship between the Section 162(m) Restricted Stockholder
and the Company or any Subsidiary is terminated, voluntarily or involuntarily,
for any reason, with or without Cause (as defined below), including, but not by
way of limitation, a termination by resignation, discharge, death, disability or
retirement, but excluding any termination where there is simultaneous
reemployment by the Company or a Subsidiary. The Committee, subject to the
definition of Cause below, shall determine the effect of all other matters and
questions relating to Termination of Employment, including, but not by way of
limitation, the question of whether particular leaves of absence constitute
Terminations of Employment. For purposes of the Plan, "Cause" shall mean an
Employee's (a) gross negligence in the performance of the responsibilities of
such Employee's office or position; (b) any act of dishonesty or moral turpitude
materially adversely affecting the Company or the Company's reputation; (c)
commission of any other willful or intentional act that could reasonably be
expected to injure materially the reputation, business or business relationships
of the Company or any Subsidiary; or (d) conviction of a felony or of any crime
involving moral turpitude, fraud or misrepresentation.
Section 1.11 - Vested Stock
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"Vested Stock" shall mean Section 162(m) Restricted Stock with
respect to which the Employee has satisfied the performance vesting standards of
the Agreement as specified in Article III.
ARTICLE II
ISSUANCE OF SECTION 162(m) RESTRICTED STOCK
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Section 2.1 - Issuance of Section 162(m) Restricted Stock
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In consideration for past services rendered to the Company and
for other good and valuable consideration which the Committee has determined to
be equal to not less than
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the par value of the Section 162(m) Restricted Stock issued hereunder, on
October 1, 1996, the Company issued to the Employee 15,000 shares of its Class B
Common Stock, par value $.01 per share, which have not vested as of the date
hereof and which shall be subject to the terms, conditions and restrictions set
forth in this Agreement.
Section 2.2 - No Right to Continued Employment
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Nothing in this Agreement or in the Plan shall confer upon the
Employee any right to continue in the employ of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company or any
Subsidiary, which are hereby expressly reserved, to discharge the Employee at
any time for any reason whatsoever, with or without Cause.
ARTICLE III
RESTRICTIONS
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Section 3.1 - Performance Criteria
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Performance Criteria have been established as a condition to
vesting of the Section 162(m) Restricted Stock. The Performance Criteria are
based on the Company's "Operating Income" as such term is used and determined by
the Company for purposes of the Company's financial reports filed with the
Securities and Exchange Commission under the Exchange Act. Operating Income will
be measured before any unusual or "one-time" economic or accounting instances
which would distort the actual Operating Income of the Company, identified as
the Company's publicly reported "Operating Income Before One-Time Items." The
Restrictions will lapse with respect to the specified number of shares of
Section 162(m) Restricted Stock subject to this award, without duplication, on
the second business day following the issuance by the Company's independent
auditors of their audit report after the end of any fiscal year of the Company,
beginning with the fiscal year ended June 30, 1997, during which Operating
Income first equals or exceeds each of the following thresholds:
Annual Operating Number of Shares
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Income Goal of Section 162(m)
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($million) Restricted Stock
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15.0 5,000
20.0 10,000
For example, if no Restrictions have yet lapsed, and the
Company's Operating Income equals $16.0 million in a given year, the
restrictions would lapse with respect to 5,000 shares of the Section 162(m)
Restricted Stock. If in a subsequent fiscal year, Operating Income equals $21.0
million, the restrictions would lapse with respect to the additional 10,000
shares of the Section 162(m) Restricted Stock.
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The lapse of the Restrictions shall be effective on the second
business day following the issuance by the Company's independent auditors of
their audit report with respect to the prior fiscal year. However,
notwithstanding anything in this Agreement to the contrary, the lapse of the
Restrictions shall be effective only after the Committee has certified in
writing that performance goals specified in this Section 3.1 and any other
material terms were satisfied.
Section 3.2 - Right to Payment of Section 162(m) Restricted Stock
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Upon issuance of an independent auditor's report with respect
to each fiscal year, a determination will be made as to the amount of Section
162(m) Restricted Stock earned, if any, on the basis of the vesting guidelines
in Section 3.1 and what Section 162(m) Restricted Stock has thereby become
Vested Stock. Participants must be employed the Company or by a Subsidiary on
the second business day following the issuance by the Company's independent
auditors of their audit report with respect to such year in order to receive any
Vested Stock. Unlegended stock certificates will be issued to participants only
after the independent audit report confirms and the Committee has certified in
writing that vesting requirements have been satisfied; pending such issuance,
Section 162(m) Restricted Stock will be held in book entry form by the Company
as custodian for the Employee. Unless the Secretary determines that certificates
must be issued pursuant to applicable law or contractual obligations, Section
162(m) Restricted Stock shall not be issued to the Employee in certificated
form. The Secretary of the Company shall establish book entry procedures
sufficient to prevent unauthorized transfers of the Section 162(m) Restricted
Stock.
Section 3.3 - Legend
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The Secretary shall, or shall instruct the Company's transfer
agent to, provide stop transfer instructions in the Company's stock records to
prevent any transfer of the Section 162(m) Restricted Stock for any purpose
until the stock is vested. Any certificate that the Secretary or the transfer
agent deems necessary to issue to represent shares of Section 162(m) Restricted
Stock shall, until all restrictions lapse and new certificates are issued
pursuant to Section 3.4, bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS AND MAY BE SUBJECT TO REACQUISITION BY THE COMPANY
UNDER THE TERMS OF THAT CERTAIN SECTION 162(m) RESTRICTED STOCK AGREEMENT
BY AND BETWEEN PLAYBOY ENTERPRISES, INC. (THE "COMPANY") AND THE HOLDER OF
THE SECURITIES. PRIOR TO VESTING OF OWNERSHIP IN THE SECURITIES, THEY MAY
NOT BE, DIRECTLY OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES.
COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICES OF THE
COMPANY AT 000 XXXXX XXXX XXXXX XXXXX, XXXXXXX, XX 00000.
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Section 3.4 - Lapse of Restrictions
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Upon the vesting of the shares of Section 162(m) Restricted
Stock as provided in Sections 3.1 and 3.2 and subject to Sections 4.2 and 4.3,
the Company shall cause new certificates to be issued with respect to such
Vested Stock and delivered to the Employee or his legal representative, free
from the legend provided for in Section 3.3 and any of the other Restrictions.
Such Vested Stock shall thereupon cease to be considered Section 162(m)
Restricted Stock subject to the terms and conditions of this Agreement.
Section 3.5 - Section 162(m) Restricted Stock Not Transferable
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Prior to the issuance of Vested Stock, no Section 162(m)
Restricted Stock or any interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Employee 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.
Section 3.6 - Termination of Employment
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If there is a Termination of Employment for any reason, whether
voluntarily or involuntarily, with or without Cause, by retirement or by reason
of death or disability or otherwise, the Employee shall forfeit all unvested
Section 162(m) Restricted Stock, and all Section 162(m) Restricted Stock shall
on the effective date of such Termination of Employment, be immediately canceled
and returned to the status of authorized and unissued Common Stock. If an
Employee was employed on the last day of a fiscal year and there is a
Termination of Employment of such Employee prior to the second business day
following the issuance of an independent audit report that shows that
Restrictions have lapsed with respect to any unvested Section 162(m) Restricted
Stock, such Employee shall not receive (and shall forfeit all rights to) such
Section 162(m) Restricted Stock.
Section 3.7 - Change of Control
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Upon a Change of Control specified in clause (iii) of the
definition thereof, any Section 162(m) Restricted Stock that has not vested
shall be forfeited on the effective date of such Change of Control, and all
Section 162(m) Restricted Stock shall, on the effective date of such Change of
Control, be immediately canceled and returned to the status of authorized and
unissued Common Stock; provided, however, that a Change of Control specified in
clause (i) or (ii) of the definition thereof occurs, such Section 162(m)
Restricted Stock shall remain outstanding, subject to any remaining
Restrictions.
Section 3.8 - Changes in Common Stock
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In the event that the outstanding shares of the Company's Common
Stock are changed into or exchanged for a different number or kind of shares or
other securities of the
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Company pursuant to a recapitalization, reclassification, stock split-up, stock
dividend, or other combination of shares or similar transaction, any new,
additional or different shares or securities which are issued in the name of the
Employee as a holder of Section 162(m) Restricted Stock shall be considered to
be Section 162(m) Restricted Stock and shall be subject to all of the
Restrictions.
ARTICLE IV
MISCELLANEOUS
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Section 4.1 - Administration
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The Committee shall have the power to interpret the Plan, this
Agreement and all other documents relating to Section 162(m) Restricted Stock
and to adopt such rules for the administration, interpretation and application
of the Plan as are consistent herewith and to interpret, amend or revoke any
such rules. All actions taken and all interpretations and determinations made by
the Committee in good faith shall be final and binding upon the Employee, 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 Plan or Section 162(m) Restricted Stock and all
members of the Committee shall be fully protected by the Company in respect to
any such action, determination or interpretation. In its absolute discretion,
the Board may at any time and from time to time exercise any and all rights and
duties of the Committee under this Plan except with respect to matters which
under Rule 16b-3 or Section 162(m) of the Internal Revenue Code of 1986, as
amended, or any regulations or rules issued thereunder, are required to be
determined in the sole discretion of the Committee.
Section 4.2 - Approval of Plan by Stockholders
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The Section 162(m) Restricted Stock will not vest prior to the
approval of the Plan by the stockholders, and, if such approval has not been
obtained 12 months after the date of the Board's adoption of the Plan, such
Section 162(m) Restricted Stock shall thereupon be canceled and become null and
void.
Section 4.3 - Conditions to Issuance of Stock Certificates
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The Company shall not be required to issue or deliver any
certificate or certificates for Vested Stock pursuant to this Agreement prior to
fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) 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
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regulatory body, which the Committee shall, in its absolute
discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from
any state or Federal governmental agency which the Committee shall, in
its absolute discretion, determine to be necessary or advisable; and
(d) Subject to the provisions of Section 4.8 the payment
by the Employee of all amounts required to be withheld, under federal,
state and local tax laws, with respect to the issuance of Section
162(m) Restricted Stock and/or the lapse or removal of any of the
Restrictions; and
(e) The lapse of such reasonable period of time as the
Committee may establish from time to time for reasons of
administrative convenience.
Section 4.4 - Notices
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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 000 X. Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, and any notice to be given to the Employee shall be addressed to the
Employee at the address given beneath the Employee's signature hereto. By a
notice given pursuant to this Section 4.4, either party may hereafter designate
a different address for notices to be given to the Company or such Employee. Any
notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of such Employee's status and
address by written notice under this Section 4.4. Any notice shall have been
deemed duly given when received.
Section 4.5 - Rights as Stockholder
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Upon issuance of the Section 162(m) Restricted Stock in the name
of the Employee, the Employee shall have all the rights of a stockholder with
respect to said shares including the right to receive all dividends and other
distributions paid or made with respect to the shares.
Section 4.6 - Titles
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Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 4.7 - Amendment
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This Agreement may be amended only by a writing executed by the
parties hereto which specifically states that it is amending this Agreement.
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Section 4.8 - Tax Withholding
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The Company's obligation (i) to issue or deliver to the Employee
any certificate or certificates for Vested Stock or (ii) to pay to the Employee
any dividends or make any distributions with respect to the Section 162(m)
Restricted Stock, is expressly conditioned upon receipt from the Employee, on or
prior to the date the same is required to be withheld, of:
(a) Full payment (in cash or by check) of any amount that must be
withheld by the Company for federal, state and/or local tax purposes; or
(b) Subject to the Committee's consent and Section 4.8(c), full
payment by delivery to the Company of unrestricted shares of the Company's
Common Stock previously owned by the Employee duly endorsed for transfer to
the Company by the Employee with an aggregate fair market value equal to
the amount that must be withheld by the Company for federal, state and/or
local tax purposes; or
(c) With respect to the withholding obligation for shares of
Section 162(m) Restricted Stock that become unrestricted shares of stock as
of a certain date (the "Vesting Date"), subject to the Committee's consent
and to the timing requirements set forth in this Section 4.8(c), full
payment by retention by the Company of a portion of such shares of Section
162(m) Restricted Stock which become Vested Stock with an aggregate fair
market value (determined as of the Vesting Date) equal to the amount that
must be withheld by the Company for federal, state and/or local tax
purposes; or
(d) Subject to the Committee's consent, any combination of
payments provided for in the foregoing subsections (a), (b) or (c).
Section 4.9 - Governing Law
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The laws of the State of Delaware shall govern the
interpretation, validity, administration, enforcement and performance of the
terms of this Agreement regardless of the law that might be applied under
principles of conflicts of laws.
Section 4.10 - Prior Agreement
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This Agreement supersedes and replaces all of Employee's rights
and benefits under that certain Restricted Stock Agreement dated October 1, 1996
by and between the Company and the Employee (the "Prior Agreement"). From and
after the date of this Agreement, the Prior Agreement shall be of no further
force or effect.
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IN WITNESS HEREOF, this Agreement has been executed and delivered
by the parties hereto.
PLAYBOY ENTERPRISES, INC.
By _______________________
Its ______________________
_____________________________
_____________________________
_____________________________
Address
_____________________________
Employee Tax I.D Number
Section 162(m) Restricted Stock Issued: 15,000 shares
Par Value of Stock: $.01 per share
Date Issued: _________________
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