Exhibit 10.1
FIRST AMENDMENT TO THE
PLAYBOY ENTERPRISES, INC.
DEFERRED COMPENSATION PLAN
(As Amended and Restated January 1, 2005)
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WHEREAS,
Playboy Enterprises, Inc. (the "Company") has established and
maintains the Playboy Enterprises, Inc. Deferred Compensation Plan
(the "Plan"),
as last amended and restated effective January 1, 2005; and
WHEREAS,
pursuant to its
reserved powers under
Section 7.01, the Company
desires to further
amend the Plan,
effective as of January 1, 2008, to comply
with final regulations
under Section 409A of the Internal Revenue Code (the
"Code") and in certain other respects;
NOW,
THEREFORE,
the Plan is hereby
amended, effective as of January 1,
2008, in the following respects:
1.
The
definition of "Agreement" in Section 2.03 is amended by adding
the following sentence to the end of that Section:
"Each Agreement
shall be irrevocable as of the last date
on
which it could be made
under the Plan for the Plan Year to
which it
applies, except as otherwise permitted by the Plan or
applicable law and consistent with IRC Section 409A."
2.
The
definition of
"Disability" in Section 2.12 is amended by adding
the following sentence to the end of that Section:
"Notwithstanding the
foregoing,
to the extent
required by
regulations under Code
Section 409A, where a
Participant has
not been determined to
have a disability
prior to January 1,
2008 and such
Participant
is receiving disability income
benefits thereafter
under any Company-maintained short or
long-term disability
plan, the Participant shall not be
considered to have a
Disability for
purposes of this Plan as
of any date that comes before such disability income benefits
have been paid to the
Participant,
or on the Participant's
behalf, for a period of three consecutive months."
3.
The
definition
of "Termination of Services" in Section 2.24 is
amended by inserting the following three sentences between the
current first and
last sentences in that Section:
"For this purpose, in
accordance with
regulations under
IRC
Section 409A, a leave of absence shall be considered bona fide
only if, and for so long as, there is a reasonable expectation
that the Participant will resume performing services for the
Company. In
addition, on or after January 1, 2008, when a
leave of absence is due to a medically determinable physical
or mental impairment
that is expected to result in death or
can be expected to
last for a continuous
period of at least
six (6) months, and
such impairment causes the Participant to
be unable to perform the duties of his
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or her position with the Company or any substantially similar
position, then the
Committee shall be permitted to extend the
foregoing six (6)
month maximum period of leave to up to
twenty-nine (29)
months of continuous
absence, but not for
longer than
the maximum period of continuous disability
allowed under
the Company's employment policies before
terminating the employment of a similarly situated employee on
disability leave.
Whether
a Termination of Service has
occurred shall be
determined by the Committee (other than in
instances where the duration of a disability leave triggers a
termination of
employment
under the Company's employment
policies) based
on whether the facts and circumstances
indicate that
the Participant and the Company reasonably
anticipate that no
further services will
be performed by the
Participant for the Company after a certain date."
4.
Section
3.02, Deferral of Salary and Incentive Award or Sales
Commissions, is rewritten in its entirety, to read as follows:
(a) Plan Year
First Eligible. An eligible employee who first
becomes eligible to
participate in the Plan on or after
the first day of a Plan Year may elect to participate in
the Plan for the
balance of that Plan
Year, provided
that (i) the eligible employee is not already
participating in any
other similar type of deferred
compensation plan that
is maintained by the Company and
would be aggregated
with this Plan for
purposes of IRC
Section 409A, and (ii)
the eligible employee
files an
Agreement with the
Company within thirty (30) days from
the date he or she first becomes eligible to participate
in the Plan. If either of the conditions of (i) or (ii)
above are not met, then the eligible employee shall not
be allowed to participate in the Plan until the start of
the next (or any future) Plan Year, when the eligible
employee may
commence participation by filing an
Agreement in
advance of that
subsequent
Plan Year in
accordance with the
procedures
set forth in Section
3.02(b) below.
If both conditions of (i) and (ii) are
met, the eligible employee shall commence participation
during his
or her initial (partial) Plan Year of
eligibility in accordance with the further provisions of
this Section 3.02.
A timely initial Agreement under the preceding paragraph
to defer Salary,
Incentive Award or
Sales Commissions
will not apply to any payroll period that commences on
or before the date such Agreement was filed. The
Committee may
require that the Agreement be filed a
reasonable number
of days before the start of any
payroll period
to which it
shall apply, in order to
accommodate the processing of such Agreement.
(b) Subsequent
Years of Eligibility. For any Plan Year
subsequent to the Plan Year in which an individual first
becomes eligible
to participate in the Plan, that
Participant or
eligible employee may
file an Agreement
with the Company to defer Salary, Incentive
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Award or Sales
Commissions for the
upcoming Plan Year
only if such Agreement
is filed prior to the
first day
of that upcoming
Plan Year (or within
thirty (30) days
after the date he or she first became eligible to
participate in the
Plan, if later, but
such Agreement
will not take effect before the first payroll period in
the new Plan Year which begins after the Agreement is
filed). Subject to the
limitations of this Section 3.02
and the eligibility
requirements of Section 3.01 above,
a Participant or
eligible employee who
does not file a
timely and effective deferral Agreement for a particular
Plan Year may nevertheless file an Agreement hereunder
for any subsequent Plan Year.
(c) Filing
Method. The filing of deferral
Agreements
and
other Participant elections under the Plan shall be made
using the Plan's
website or web link as
designated by
the Administrative
Committee,
or by such telephonic
process as the Committee may approve, in lieu of filing
hard copy paper
documents. Exceptions
to the approved
election and
filing processes may be al
