Exhibit 10.22(e)
THIRD AMENDMENT
TO THE
PLAYBOY ENTERPRISES, INC.
BOARD OF DIRECTORS'
DEFERRED COMPENSATION PLAN
(As Amended and Restated Effective January 1, 2005
WHEREAS, Playboy Enterprises, Inc. (the "Company") has established and
maintains the Playboy Enterprises, Inc. Board of Directors' Deferred
Compensation Plan, as amended and restated effective January 1, 2005 and amended
twice thereafter (the "Plan"); and
WHEREAS, Sections 7.01 and 7.02 of the Plan reserve to the Company's Board
of Directors (the "Board") the authority to amend and terminate the Plan at any
time; and
WHEREAS, the Board has determined that the Plan shall be terminated (i) if
the Company's Deferred Compensation Plan for executives is terminated or (ii) if
enough Participants elect to receive transition distributions in January 2009
under new Section 4.11 of the Plan so that at least 66 2/3% of the total
benefits accrued through December 31, 2008 will have been paid out after such
January 2009 distributions are completed, because so few assets and Participants
would remain in the Plan and the costs of maintaining the Plan for such small
numbers cannot be justified; and
WHEREAS, the Board desires that the Plan be terminated (if the
preconditions for termination are met) in a manner that permits all remaining
benefits to be distributed during the thirteenth month after the actions
authorizing the Plan termination take place without violating the
anti-acceleration prohibition under Section 409A of the Internal Revenue Code of
1986, as amended;
NOW, THEREFORE, the Plan is hereby amended in the following respects:
1. The following new paragraphs are added to Section 7.02, Company's Right
to Terminate:
"Notwithstanding any Plan provisions to the contrary, if
sufficient Participant distribution elections are made under Section
4.11 so that, after such January, 2009 distributions are completed,
no more than 33 1/3% of all vested benefits would remain unpaid
under the Plan, then the Plan shall be terminated effective as of
the last day of the distribution election period under Section 4.11
(December 23, 2008), in accordance with the provisions of this
Section 7.02. Alternatively, if the Company terminates its Deferred
Compensation Plan for executives due to a similar lack of
participant interest, then this Plan also shall be terminated as if
the conditions of the preceding sentence were satisfied, regardless
of whether such conditions were actually met. If the preceding
conditions are not met, then the Plan shall not terminate and the
following provisions of this Section 7.02 shall be null and void.
All distribution events occurring after the December 23, 2008
Plan termination date shall not give rise to any distribution
rights. The only distributions payable under the Plan after the Plan
termination date shall be (i) Plan termination distributions under
this Section 7.02; (ii) distributions which are in pay status or
already scheduled as of the Plan termination date due to a prior
distribution event under Sections 4.01, 4.02 or 4.03; (iii)
transition distributions elected under Section 4.11; and (iv)
hardship distributions made in accordance with Section 4.06. Except
for the foregoing removal of distribution events from the terminated
Plan, Participants shall continue to have all other rights of
Participants under the Plan until their benefit has been fully paid.
Distributions triggered solely by the Plan termination shall
be paid in a lump sum during the thirty (30) day period commencing
with the one-year anniversary of the Plan termination date.
Participants shall not be allowed any influence regarding in which
calendar year this payment is made; the timing of such Plan
termination payments shall be determined in the sole discretion of
the Company. Any benefit that is in pay status or otherwise
scheduled for payment after that thirty (30) day distribution period
shall be accelerated and paid in a single lump sum during that
thirty (30) day distribution period the same as a Plan termination
distribution.
This Plan termination shall be administered so as to comply
with Treasury Regulation ss.1.409A-3(j)(4)(ix)(C) and any Plan
provision not consistent with that intent shall be disregarded or
conformed in operation, in the discretion of the Administrative
Committee, to ensure compliance with such Regulation. The Company
reserves the right to further amend the Plan, even after the Plan
termination date, to facilitate the Plan termination, to maintain
compliance with Code Section 409A or for any other purpose. The
Company agrees to terminate all other similar plans, and not to
adopt any similar replacement plan for at least the next three years
after adoption of this Plan termination amendment, as and to the
extent required by the aforesaid Treasury Regulation."
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2. The first sentence of Section 8.10, Deferred Compensation Plan
Trust, is hereby rewritten, effective as of the Plan termination
date (but only if the Plan is terminated hereunder), to read as
follows:
"The Company may establish a Trust and designate the trustee,
and shall comply with the terms of the Trust."
IN WITNESS WHEREOF, this Third Amendment, having been duly adopted, is
hereby executed below by a duly authorized officer on behalf of the Company on
this 10th day of December, 2008.
PLAYBOY ENTERPRISES, INC.
By: /s/ Robert D. Campbell
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Robert D. Campbell
Senior Vice President, Treasurer
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