Exhibit 10.27(c)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the "Agreement"), dated as
of September 1, 2008, is by and between ROBERT MEYERS
(the "Executive"), and
PLAYBOY ENTERPRISES, INC., a Delaware
corporation (the "Employer" or the
"Company"), hereby amending, restating and
superseding that prior Employment
Agreement between the parties dated
September 15, 2006 (the
"Original
Agreement"), for compliance with Section 409A of the
Internal Revenue Code of
1986 (the "Code").
RECITALS
WHEREAS, Employer is
primarily engaged in the business of
multimedia
entertainment. Employer desires to continue
employment with Executive, and
Executive desires to continue his
employment with Employer on the terms and
subject to the conditions set forth below.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto hereby agree as
follows:
1.
Employment of the Executive. Employer
hereby agrees to continue
employing Executive and Executive
hereby agrees to remain in the employ of
Employer, as an Executive Vice
President of Employer, upon the terms
and
conditions hereinafter set forth.
2. Employment
Period. As provided in the Original Agreement, the
term
of Executive's employment under this
Agreement (the "Employment Period")
commenced as of September 15, 2006 (the
"Commencement Date") and, subject to
earlier termination as provided pursuant to Section 5 below,
shall continue for
a period of three years (the "Initial Period")
after the Commencement Date.
Unless earlier terminated pursuant to Section 5 below, at the end
of the Initial
Period, the parties will determine whether or not to renew this
Agreement, and,
if so, on what terms and conditions.
3. Duties and
Responsibilities. During the Employment Period, Executive
(i) shall have the title of Executive Vice President and President,
Media Group,
(ii) shall devote his full business time
and attention and expend his best
efforts, energies and skills on a
full-time basis to the business of the
Company, and shall not engage in any other activity
that would interfere with
the performance of his duties under this Agreement
(provided that Executive is
permitted to serve on the board of directors of
Double Click - to the extent
that doing so does not create any
conflict of interest with Executive's
obligations or duties under this
Agreement--other organizations, subject to
approval of the Company's Chief Executive Officer (CEO), or
engage in endeavors
related to the community, his faith and other charitable
functions which do not
materially interfere with the performance of his
duties hereunder) and (iii)
shall perform such duties, and comply
with all reasonable directions and
instructions of the Company's CEO.
(a) During the Employment Period,
Executive's responsibilities
will include all pay and free cable
and satellite broadcast television,
home video and
theatrical entertainment development
activities of the
Company, and the
associated production, programming and
distribution
activities, the Company's
online, radio and wireless activities and the
Company's publishing
activities (other than international publishing);
provided, however, that
the foregoing will not be construed so as
to
prevent or limit the
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Company's good
faith determination for bona fide business
reasons to
operate one or more of any such
activities through a joint venture, third
party license or other arrangement
with a third party, subject to Section
5(e)(ii) below.
(b) During the Employment Period,
Executive will report to the
Company's CEO and will be the
Company's most senior executive in regard to
those responsibilities set forth in
paragraph (a) immediately above.
4.
Compensation.
(a) Base Salary. For all
services rendered and required to be
rendered by, covenants of and
restrictions in respect to Executive, under
this Agreement, Employer shall pay
to Executive during and with respect to
the Employment
Period, and Executive agrees to accept a
base salary
computed at a rate of
$721,000.28 (which became effective as of December
29, 2007) per annum
("Base Salary"), payable on a
biweekly basis in
accordance with the Employer's
standard payroll practices.
(b) Incentive Program.
Executive shall also be eligible
to
participate in a Board of Directors'
approved incentive compensation plan,
as in place from time to time, with
Executive's being eligible to earn up
to a maximum
potential of 100% of his Base
Salary. The incentive
compensation will be based in
part (50%) on the Company's fiscal year net
income performance as
determined by the CEO and the Company's Board of
Directors and in
part (50%) on Media Group
financial performance
established by the CEO in
consultation with Executive. Subject to Section
5 hereof and as provided in the
Original Agreement, incentive compensation
for fiscal years
2006 and 2009 will be prorated based on
Executive's
initial hire date of September 15,
2006.
(c) Equity Awards. As provided in the
Original Agreement, for
calendar year 2008 and 2009,
Executive will be granted 20,000 deferred
stock awards
subject to the terms and conditions
determined by the
Company's Compensation
Committee of the Company's Board of
Directors
consistent with the terms and
conditions of deferred stock awards to other
executive officers of the
Company (which will include performance goals
based on the
Company's operating income as such
term is used and
determined by the Company for
purposes of the Company's rolling three year
plan). Any such deferred stock
awards shall be paid to Executive in a lump
sum no later than March 15 of
the year following the year in which such
awards vest.
(d) Other Benefits. Executive
will continue to be entitled to
participate in the
Company's health benefit plans, Executive
vacation
policy, matching 401-K plan,
deferred compensation plan and similar plans
in effect from time to time.
Executive's participation in the foregoing
plans, perquisites and travel and
entertainment policy will be on terms no
less favorable
than afforded to other
executives of the Company
commensurate with Executive's
level.
5. Termination of
Employment Period; Change of Control.
(a) Termination by the Company for
Cause. Employer may, at any
time during the Employment Period by
notice to Executive (the "Termination
Notice"),
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terminate the Employment
Period for "Cause" effective immediately. The
Termination Notice shall
specify the Cause for termination. In such an
event, Executive shall not be
entitled to any compensation or other amount
from the Company from
the effective date of termination. For
purposes
hereof, for "Cause" means a:
(i) willful failure or
refusal by Executive to implement or
follow lawful policies or directions
of the CEO or Board of
Directors after notice from Company;
(ii) commission by Executive of an act of moral
turpitude or
act bringing disgrace or disrepute to the
Company, or commission
of/conviction for any felony or any misdemeanor
involving theft,
fraud or other dishonest action or event that results in harm to
the
Company;
(iii) material violation of this Employment Agreement; and
(iv) material misrepresentation or
material and willful
non-disclosure by Executive to the
Company in connection with
performance of Executive duties.
Provided that in the event any
such wrongful conduct is capable of being
cured, Executive will
have fifteen (15) days from his receipt of
the
Termination Notice to cure such
conduct to the reasonable satisfaction of
Company.
(b) Termination by the Company
Without Cause. The Company may
terminate this Agreement at any
time, by delivering a notice to Executive,
without Cause, effective
thirty (30) days after Executive receives such
notice in accordance with the terms
hereof. In such an event, Executive's
sole remedy shall be:
(i) To collect all unpaid Base Salary and
all unreimbursed
expenses payable for all periods through
the effective date of
termination; plus
(ii) A severance payment in the sum of twelve (12)
months of
Executive's then Base Salary; plus
(iii) A prorata payout under the incentive compensation
plan
for Executive in the year of such termination in an amount
equal to
the fraction, the numerator of calendar days from the
beginning of
the year of such termination
through the effective date of
termination and the denominator of which is 365.
(the sum of
subparagraphs (i), (ii) and (iii)
immediately above being
collectively referred to as the
"Severance Payment"). With respect to the
amounts due:
(A) under subparagraph (i)
immediately above, such
amount shall be payable in a lump sum no later than ten
(10)
days following the effective date of the
termination under
this paragraph (b);
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(B) under subparagraph (ii)
immediately above, such
amount shall be payable in a lump sum on the first day of
the
seventh month following the date of the termination under this
paragraph (b); and
(C) under subparagraph (iii) immediately
above, such
amount shall be payable in accordance with the
terms of the
relevant underlying incentive compensation plan
at the time
all other executives are paid
pursuant to such plan with
respect to any such incentive compensation for such year which
includes Executive's date of termination under this
paragraph
(b).
(c) Executive's Disability.
(i) Determination of Disability. In
the event Executive
becomes totally disabled
or disabled such that he is rendered unable
to perform substantially all of his usual duties for Company, and
if
such disability shall persist for a continuous period
in excess of
three months, or an aggregate period in excess of
three months in
any one fiscal year, Company shall have the right at any time
after
the end of such period during continuance of Executive's
disability
by the delivery of not less than thirty (30)
days' prior written
notice to Executive to terminate Executive's employment
under this
Agreement whereupon the applicable provisions of
subparagraph (ii)
immediately below shall apply. For purposes of this
Agreement, if
Executive and Company shall disagree as to
whether Executive is
totally disabled, or disabled such that he is
rendered unable to
perform substantially all of his usual duties
for Company as set
forth above, or as to the date at which time such total
disability
began, the decision of a license medical
practitioner, mutually
agreed upon by the parties, shall be binding as to both
questions.
If the parties cannot agree as to the
identity of the licensed
medical practitioner, Executive shall
select a licensed medical
practitioner of his choice and the Company shall select
a licensed
medical
practitioner of its choice. The
two licensed medical
practitioners so selected shall select a
third licensed medical
practitioner, which third individual shall resolve either or both
of
the questions referred to above and
which resolution shall be
binding upon the parties.
(ii) Termination Due to Disability. If Executive's
employment
with the Company is terminated on account of Executive's
disability
as provided for in subparagraph
(i) immediately above, then
Executive shall only be entitled to receive, and
Company shall pay
to Executive (or Executive's estate or personal
representative, as
applicable)
the following amounts:
(A) all unpaid Base Salary
and all unreimbursed
expenses payable for all periods through the effective date of
termination; plus
(B)
the sum of six months of Executive's then
Base
Salary; plus
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(C) a pro rata payout under the incentive
compensation
plan for Executive in the year of
such termination in an
amount equal to the fraction, the numerator of
which is the
number of calendar days from the beginning of the year of such
termination through the effective date of termination and
the
denominator of which is 365.
With respect to the amounts due as a
result of your disability:
(I) under Clause (A) immediately
above, such
amount
shall be payable in a lump sum no later than ten
(10) days following the
effective date of the
Executive's termination due to disability;
(II) under Clause (B) immediately
above, such
amount shall be payable in a lump sum on the first
day
of the seventh month
following the date of the
Executive's termination due to disability; and
(III) under Clause (C) immediately above,
such
amount shall be payable in accordance with the terms of
the relevant underlying incentive compensation plan
at
the time all other executives are paid pursuant to such
plan with respect to any such incentive compensation for
such year which includes Executive's date of termination
due
to disability.
(d) Executive's Death. If Executive's employment
with the Company
is terminated on account of
Executive's death, then Executive's estate or
personal representative, as
applicable, shall only be entitled to receive,
and Company shall pay to Executive's
estate or personal representative, as
applicable, the following
amounts:
(i) all unpaid Base Salary and all
unreimbursed expenses
payable for all periods through the effective date of
termination;
plus
(ii) the sum of six {6) months of
Executive's then Base
Salary; plus
(iii) a pro rata payout under the incentive compensation
plan
for Executive in the year of such termination in an amount
equal to
the fraction, the numerator of which is the number of
calendar days
from the beginning of the year of such
termination through the
effective date of termination and the
denominator of which is 365.
With respect to the amounts due as a
result of your death:
(A) under subparagraph (i)
immediately above, such
amount shall be payable in a lump sum no later than ten
(10)
days following the effective date of the Executive's death;
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(B) under subparagraph (ii)
immediately above, such
amount shall be payable in a lump sum no later than ten
(10)
days following the effective date of the
Executive's death;
and
(C) under subparagraph (iii) immediately
above, such
amount shall be payable in accordance with the
terms of the
relevant underlying incentive compensation plan
at the time
all other executives are paid
pursuant to such plan with
respect
to any such incentive compensation for such year which
includes Executive's date of death.
(e) Resignation by Executive for Good Reason. Executive
shall
have the right to
terminate his employment under this
Agreement and
receive the Severance Payment by the
delivery of written notice to Company
within thirty (30) days
after any of the events hereinbelow defined as
Good Reason. For purposes hereof,
"Good Reason" means that:
(i) the Company has materially breached
this Agreement and
the Company has failed to cure such breach after
thirty (30) days
written notice from Executive;
(ii) there has occurred any material diminution or
reduction
in duties of Executive, whether in scope or nature;
(iii) Executive fails to report directly to
the CEO of the
Company (or reports to a CEO other than Christie Hefner);
(iv)
there has occurred a Change in Control (as
defined in
the Severance Agreement referenced in
paragraph (1) immediately
below);
(v) the Company sells or
otherwise transfers all or
substantially all of its media assets in a single
transaction or
series of transactions, except if, and only
for so long as, the
Company, directly or indirectly, continues
to own a controlling
interest in the buyer or transferee;
or
(vi) the Company permanently closes its New York office.
With
respect to the Severance Payment due, the specific amount due:
(A) under Section 5(b)(i),
such amount shall be
payable in a lump sum no later than ten (10) days
following
the effective date of the Executive's resignation under
this
paragraph (e);
(B) under Section 5(b)(ii),
such amount shall be
payable in a lump sum on the first day of the
seventh month
following the date of the Executive's resignation under
this
paragraph (e); and
(C)
under Section 5(b)(iii), such amount
shall be
payable in accordance with
the terms of the relevant
underlying incentive compensation plan at the time all
other
executives are paid pursuant to
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such plan with respect to any such incentive compensation
for
such year which includes Executive's date of resignation under
this paragraph (e).
(f) Severance Agreement (Change of Control). The
Company is party
to a certain severance
agreement with certain executives of the Company
("the Severance Agreement") a
copy of which is attached hereto as Exhibit
A. The Company will enter into a
Severance Agreement on substantially the
same terms upon
the execution hereof by Executive.
Notwithstanding
anything to the
contrary, if the Executive has any rights to
severance
compensation upon
involuntary termination of employment
under any
Severance Agreement
(i.e., parachute agreement or change
of control
agreement) Executive may have
with the Company or any other arrangement,
any such rights under this
Agreement shall be completely superseded by
such Severance Agreement; for
the avoidance of doubt, Executive can only
receive severance compensation under
this Agreement or under the Severance
Agreement, not both.
(g) No Offset or Mitigation.
If Executive's employment with
Company is
terminated for any reason, Company
will have no right of
offset, nor will
Executive be under any duty or
obligation to seek
alternative or substitute
employment at any time after the effective date
of such termination or
otherwise mitigate any amounts payable by Company
to Executive.
6. Location of
Executive's Activities. Executive's place of business in
the performance of his duties and obligations
under this Agreement shall be
split principally between the
Employer's place of business in
Glendale,
California and New York, New York.
Notwithstanding the preceding sentence,
Executive will engage in such travel
and spend such time in other places,
including Chicago, as may be necessary or
appropriate in furtherance of his
duties hereunder at the Employer's expense.
7.
Miscellaneous.
(a) Notices. All notices, requests,
demands, consents, and other
communications required or
permitted to be given or made hereunder shall
be in writing and shall be
deemed to have been duly given and received,
(i) if delivered by hand, the
day it is so delivered, (ii) if mailed via
the United States
mail, certified first class mail, postage
prepaid,
return receipt requested, five
business days after it is mailed, or (iii)
if sent by a nationally recognized
overnight courier for next business day
delivery, the business day after it
is sent, to the party to whom the same
is so given or made, at the address
of such party as set forth at the head
of this Agreement,
which address may be changed by notice to the other
party hereto duly give
as set forth herein, with copies delivered
as
follows:
if to Executive:
640 West End Avenue, #9B
New York, NY 10024
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with a copy
to:
Ted Schachter
Schachter Entertainment
1157 South Beverly Drive Los
Angeles, CA 90035
if to the Company:
General Counsel
Playboy Enterprises, Inc.
680 North Lake Shore Drive
Chicago, Illinois 60611
(b) Governing Law; Jurisdiction. This agreement
shall be governed
by, and construed and enforced in
accordance with, the substantive and
procedural laws of the
State of Illinois. Each party
hereto hereby
irrevocably submits to the exclusive
jurisdiction of the state and federal
courts located in Cook County,
Illinois, and waives any claim based upon
forum non-conveniens.
(c) Headings. All descriptive
headings in this agreement are
inserted for convenience
only and shall be disregarded in construing or
applying any provision of this
Agreement.
(d) Counterparts. This Agreement maybe executed
in counterparts,
each of which shall be deemed to be
an original, but all of which together
shall constitute one and the same
instrument.
(e) Severability. If any provision of
this Agreement, or part
thereof, is held to be
unenforceable, the remainder of such provision and
this Agreement, as the
case may be, shall nevertheless remain in
full
force and effect.
(f) Entire Agreement and Representation.
This Agreement contains
the entire agreement and
understanding between Employee and Executive with
respect to the subject matter
hereof. This Agreement supersedes any prior
agreement between the
parties relating to the subject
matter hereof.
Except as otherwise provided
herein, this Agreement cannot be changed or
terminated except by an
instrument in writing signed by the
parties
hereto.
(g) Binding Effect. This
Agreement shall be binding upon, and
insure to the benefit of, each
parties' successors, transferees, heirs and
assigns.
(h) Confidentiality; Disclosure of Information.
(i) Confidentiality. Executive recognized
and acknowledges
that he will have access to Confidential
Information (as defined
below) relating to the business or
interests of Company or of
persons with whom Company may have business relationships. Except
as
permitted herein or as may be approved by
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Company from time to time, Executive will not during the
Employment
Period or at any time thereafter, use or
disclose to any other
person or entity, any Confidential Information of Company
(except s
required by applicable law or in connection
with performance of
Executive's duties and responsibilities hereunder). If
Executive is
requested or becomes legally
compelled to disclose any of the
Confidential Information, he will give prompt notice of such
request
or legal compulsion to Company. Company may waive
compliance with
this subparagraph (i) or will provide Executive with
legal counsel
at no cost to Executive to seek an
appropriate remedy; provided
however Executive may disclose any Confidential
Information in the
event notwithstanding all such efforts of the Company and such
legal
counsel Executive if compelled by court
order to do so. The term
"Confidential Information" means information relating
to Company's
business affairs, proprietary technology, trade
secrets, patented
processes, research and development data, know-how,
market studies
and forecasts, competitive analyses, pricing
policies, executive
lists, employment agreements (other than this Employment
Agreement),
personnel
policies, the substance of agreements with
customers,
suppliers and others, marketing
arrangements, customer lists,
commercial arrangements, or any other
information relating to
Company's business which is treated as confidential or
proprietary
by Company in accordance with its policies.
Notwithstanding the
immediately preceding sentence, the provisions of this
subparagraph
(i) shall not apply to any information that (A)
is in the public
domain; (B) is or becomes available to the public
other than as a
result of a disclosure
by Executive in violation of
this
subparagraph (i); (C)
was available to
Executive on a
non-confidential basis prior to
the date of this Employment
Agreement; (D) was already lawfully in Executive's possession
prior
to the date of this Employment Agreement; or (E)
becomes available
to Executive on a non-confidential basis from a
source other than
Company. This obligation shall continue
until such Confidential
Information becomes publicly available,
other than pursuant to a
breach of this subparagraph (i) by the
Executive, regardless of
whether the Executive continues to be employed by the Company.
(ii) Company Property. It is further agreed and understood
by
and between
the parties to this Agreement
that all "Company
Materials," which include, but are
not limited to, computers,
computer software, computer disks, tapes,
printouts, source, HTML
and other codes, flowcharts,
schematics, designs, graphics,
drawings, photographs, charts, graphs, notebooks,
customer lists,
sound recordings, other tangible or
intangible manifestation of
content, and all other documents
whether printed, typewritten,
handwritten, electronic, or stored on computer
disks, tapes, hard
drives, or any other tangible
medium, as well as samples,
prototypes, models, products and the like shall
be the exclusive
property of Company and, upon termination of Executive's
employment
with Company, and/or upon the written
request of Company, all
Company Materials, including copies thereof, as
well as all other
Company property then in Executive's possession or control, shall
be
returned to and left with Company.
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(i) Copyright. Executive acknowledges that
all original works of
authorship by
Executive, whether created alone or jointly with
others,
relating to the
Executive's employment with the Company, and
which are
protectable by copyright, are
"works made for hire" within the meaning of
the United States Copyright
Act, 17 U.S.C. Section 101, as amended, and
the copyright of which shall be
owned solely, completely and exclusively
by Company. If any such work
is considered to be a work not included in
the categories of work
covered by the United States Copyright Act,
17
U.S.C. Section
101, as amended, such work is
hereby conveyed and
transferred completely
and exclusively to Company. Executive
hereby
irrevocably designates
counsel to Company as Executive's
agent and
attorney-in-fact to do all
lawful acts necessary to apply for and obtain
patents and copyrights and to
enforce Company's rights under this section,
provided that such
counsel shall take any such actions
only after
Executive has been
requested in writing to do such acts by Company and
failed to promptly do so. This
Paragraph 7.9 shall survive the termination
of this Agreement.
Any conveyance of copyright hereunder includes
all
rights of paternity,
integrity, disclosure and withdrawal and any other
rights that may be known as or
referred to as "moral rights."
(j) Indemnification. Company recognizes that the
activities within
the scope of
Executive's employment create the
potential in some
jurisdictions of civil or even
criminal actions being brought against
Executive. To
the fullest extent permitted by
law, Company shall
indemnify, defend,
protect and hold Executive harmless from and against
all claims, demands,
causes of action, actions, suits, costs, damages,
penalties, fines,
liabilities, losses and expenses, whether
civil or
criminal,
including, without limitation,
reasonable attorneys' and
consultant's fees
and expenses arising out of or
resulting from the
performance of
Executive's duties within the
scope of Executive's
employment. Company will include
Executive as a named insured on Company's
directors and officers liability
policy.
(k) Non-Competition and Non-Solicitation.
Executive acknowledges
that Company has invested
substantial time, money and resources in the
development and retention of its
Confidential Information (including trade
secrets),
customers, accounts and business
partners, and further
acknowledges that
during the course of Executive's
employment with
Company, Executive will have
access to Company's Confidential Information
(including trade
secrets), and will be introduced
to existing and
prospective customers,
vendors, cable operators, accounts and business
partners of Company.
Executive acknowledges and agrees that any and all
"goodwill" associated with any
existing or prospective customer, vendor,
cable operator,
account or business partner belongs
exclusively to
Company, including, but not limited
to, any goodwill created s a result or
direct or indirect contacts
or relationships between Executive and any
existing or prospective
customers, vendors, cable operators, accounts or
business partners.
Additionally, the parties acknowledge and agree
that
Executive possesses skills
that are special, unique or extraordinary and
that the value of
Company depends upon his use of such skills
on its
behalf. In recognition of this,
Executive covenants and agrees that:
(i) Noncompetition. During
Executive's employment with
Company, Executive may not, without prior written consent of
Company
(whether as an executive,
agent, servant, owner,
partner,
consultant, independent contractor,
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representative, stockholder, or in any other
capacity whatsoever)
perform any work directly competitive in any way to the
business of
Company or a substantially planned business that Executive is
aware
of during Executive's employment with
Company on behalf of any
entity or person other than Company (including Executive).
(ii)
Nonsolicitation of Employees.
During Executive's
employment with Company and for one year thereafter,
Executive may
not notice, solicit or encourage any Company employee
to leave the
employ of the Company or any independent
contractor to sever its
engagement with Company, absent prior written consent from
Company.
(iii) Nonsolicitation of
Customers. During Executive's
employment with Company and for one year thereafter,
Executive may
not, directly or indirectly, entice,
solicit or encourage any
customer or prospective customer of Company to cease doing
business
with Company, reduce its relationship with Company or
refrain from
establishing or expanding a relationship with Company.
(l) Non-Disparagement Non-Disclosure.
(i) Nondisparagement. Executive and
Company hereby agree
that during the Employment Period and all times thereafter,
neither
Executive or Company will make any public
statement, or engage in
any conduct, that is disparaging to the other party or, in
the case
of Company, any of its
Executives, officers, directors,
or
shareholders known to Executive, including, but not limited
to, any
statement that disparages the
products, services, finances,
financial condition, capabilities or other aspect of the business
of
Company and the capabilities of Executive. Notwithstanding
any term
to the contrary herein, neither Executive nor
Company shall be in
breach of this subparagraph (i) for the
making of any truthful
statements under oath.
(ii) Nondisclosure. Executive will not directly or
indirectly
be the source of
disclosing, by publishing or by
granting
interviews, of any Confidential Information
(which is known to
&
