{"id":38729,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/deferred-compensation-agreement-polo-ralph-lauren-corp-and2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"deferred-compensation-agreement-polo-ralph-lauren-corp-and2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/deferred-compensation-agreement-polo-ralph-lauren-corp-and2.html","title":{"rendered":"Deferred Compensation Agreement &#8211; Polo Ralph Lauren Corp. and Michael J. Newman"},"content":{"rendered":"<pre>\n                         DEFERRED COMPENSATION AGREEMENT\n\n\n         AGREEMENT made as of the 4th day of April, 1993, by and between Polo\nRalph Lauren Corporation, a corporation organized under the laws of the State of\nNew York (the 'Company'), and Michael J. Newman (the 'Executive').\n\n         The Board of Directors of the Company (the 'Board') recognizes that the\nExecutive's contribution to the growth and success of the Company has been\nsubstantial. The Board desires to assure itself of the continued employment of\nthe Executive by providing an incentive for him to continue his employment with\nthe Company.\n\n         In order to effect the foregoing, the Company and the Executive wish to\nenter into a Deferred Compensation Agreement on the terms and conditions set\nforth below.\n\n         Accordingly, in consideration of the premises and covenants hereinafter\ncontained, the parties hereto agree as follows:\n\nSection 1. Deferred Compensation Account; Contributions to Trust.\n\n                  (a) The Company shall credit to a book reserve (the 'Deferred\nCompensation Account') established for this purpose, commencing as of April\n1993, and for each month thereafter through and including March 2003, an amount\nequal to 20% of the Executive's base salary for such month; provided that the\nExecutive is employed with the Company on the last business day of such month.\nThe Deferred Compensation Account shall be debited or credited with amounts\nrepresenting all\n\n                                                                               2\n\n\nlosses or earnings debited or credited to an account (the 'Account') established\nin respect of the Executive under the Trust (as hereinafter defined).\n\n                  (b) Any amounts represented by credits made to the Deferred\nCompensation Account in accordance with the first sentence of paragraph (a)\nabove shall be contributed by the Company on the last business day of each month\nto the trust (the 'Trust') established under the Trust Agreement substantially\nin the form of Exhibit A annexed hereto (the 'Trust Agreement'); provided,\nhowever, that amounts represented by credits in respect of the month of April\n1993 and all subsequent completed calendar months to the date of execution\nhereof shall be contributed to the Trust within 3 business days after execution\nof this Agreement with simple interest of 6% per annum from the effective date\nof this Agreement. Amounts contributed to the Trust and credited to the\nExecutive's Account thereunder shall be invested and reinvested, at the\ndirection of the Executive, in accordance with the provisions of the Trust\nAgreement.\n\n                  (c) The Executive agrees on behalf of himself and his\ndesignated beneficiary to assume all risk in connection with any debits or\ncredits made to his Account under the Trust by reason of losses or earnings on\ninvestments made in accordance with the provisions of the Trust Agreement.\n\nSection 2. Benefit Payments.\n\n                  (a) On the earlier of (i) April 1, 2003 and (ii) the earliest\ndate reasonably practicable following the Executive's termination of employment\nwith the Company for any reason, the Company shall pay (or cause to be paid from\nthe Trust) to the Executive or to the Executive's beneficiary or estate (in the\nevent of his death)\n\n                                                                               3\n\n\n\n\nin cash a lump sum amount equal to the vested amount (determined pursuant to\nSection 3 hereof) reflected in the Deferred Compensation Account as of the date\nof such termination.\n\n                  (b) The beneficiary referred to in paragraph (a) above may be\ndesignated or changed by the Executive (without the consent of any prior\nbeneficiary) on a form provided by the Company and delivered to the Company\nbefore his death. If no such beneficiary shall have been designated, or if no\ndesignated beneficiary shall survive the Executive, the lump sum payment payable\nunder paragraph (a) above shall be payable to the Executive's estate.\n\nSection 3. Vesting.\n\n                  (a) Except as provided in paragraph (b) below, the Executive's\ninterest in the Deferred Compensation Account shall vest at the rate of 20% per\nyear, commencing on the first anniversary of April 4, 1993, and on each of the\nfollowing four anniversaries thereof, thereby becoming 100% vested on April 4,\n1998, but only if the Executive is actively employed by the Company and has\nremained continuously so employed from the date hereof to and including the\napplicable anniversary date. The Executive shall not be deemed to be actively\nemploy for a period during which the Executive remains on the payroll for the\npurpose of collecting salary pursuant to a severance or similar termination\narrangement.\n\n                  (b) In the event that (i) the Executive dies, (ii) the\nExecutive's employment is terminated by reason of Disability (as hereinafter\ndefined), (iii) the Executive's employment is terminated by the Company for\nother than Cause (as hereinafter defined) or (iv) the Executive terminates\nemployment for Good Reason (as\n\n                                                                               4\n\n\nhereinafter defined), then the Executive's Deferred Compensation Account shall\nbe 100% vested.\n\n                  For purposes of this Agreement:\n\n                  Termination of employment by reason of 'Disability' shall\nmean, if, as a result of the Executive's incapacity due to physical or mental\nillness, the Executive shall have been absent from his duties hereunder on a\nfull-time basis for the entire period of six consecutive months.\n\n                  'Cause' shall mean (i) the willful and continued failure by\nthe Executive to substantially perform his duties hereunder after demand for\nsubstantial performance is delivered by the Company that specifically identifies\nthe manner in which the Company believes the Executive has not substantially\nperformed his duties, or (ii) the Executive's conviction of any crime (whether\nor not involving the Company) constituting a felony or (iii) the willful\nengaging by the Executive in misconduct that is materially injurious to the\nCompany, monetarily or otherwise (including, but not limited to, conduct that\nconstitutes competitive activity) or that subjects, or if generally known, would\nsubject the Company to public ridicule or embarrassment. For purposes of this\nparagraph, no act, or failure to act, on the Executive's part shall be\nconsidered 'willful' unless done, or omitted to be done, by him not in good\nfaith and without reasonable belief that his action or omission was in the best\ninterest of the Company. Notwithstanding the foregoing, the Executive shall not\nbe deemed to have been terminated for Cause without (x) reasonable written\nnotice to the Executive setting forth the reasons for the Company's intention to\nterminate for Cause, (y) an opportunity for the Executive, together with his\ncounsel,\n\n                                                                               5\n\n\n\nto be heard before the Board and (z) delivery to the Executive of a notice of\ntermination from the Board finding that in the good faith opinion of the Board\nthe Executive was guilty of the conduct set forth above in clauses (i) - (iii)\nhereof, and specifying the particulars thereof in detail.\n\n                  'Good Reason' shall mean (i) the assignment to the Executive\nof a title or duties inconsistent with those of a senior executive of the\nCompany, (ii) a reduction by the Board of the Executive's salary, or (iii) a\nfailure by the Company to comply with any material provision of the employment\nagreement entered into between the Executive and the Company as of October 26,\n1993, or any successor agreement thereto, that has not been cured within thirty\n(30) days after notice of such noncompliance has been given by the Executive to\nthe Company.\n\nSection 4. Unfunded Arrangement.\n\n                  It is the intention of the parties hereto that the arrangement\ndescribed in this Agreement be unfunded for tax purposes and for purposes of\nTitle I of the Employee Retirement Income Security Act of 1974, as amended.\nNothing contained in this Agreement or the Trust Agreement and no action taken\npursuant to the provisions of this Agreement or the Trust Agreement shall create\nor be construed to create a fiduciary relationship between the Company and the\nExecutive, his designated beneficiary or any other person. Any funds that may be\ninvested under the provisions of the Trust Agreement shall continue for all\npurposes to be a part of the general funds of the Company and no person other\nthan the Company shall by virtue of the provisions of this Agreement have any\ninterest in such funds. To the extent that any person acquires a right to\nreceive payments from the Company under this Agreement,\n\n                                                                               6\n\n\n\nsuch right shall be no greater than the right of any unsecured general creditor\nof the Company. This Agreement constitutes a mere promise by the Company to make\na benefit payment in the future.\n\nSection 5. Nonalienation of Benefits.\n\n                  The right of the Executive or any other person to the payment\nof deferred compensation or other benefits under this Agreement shall not be\nsubject in any manner to anticipation, alienation, sale, transfer, assignment,\npledge, encumbrance, attachment or garnishment by creditors of the Executive or\nthe Executive's beneficiary or estate.\n\nSection 6. No Right to Employment.\n\n                  Nothing contained herein shall be construed as conferring upon\nthe Executive the right to continue in the employ of the Company as an executive\nor in any other capacity.\n\nSection 7.  Effect on Other Benefits.\n\n                  Any deferred compensation payable under this Agreement shall\nnot be deemed salary or other compensation to the Executive for the purpose of\ncomputing benefits to which he may be entitled under any pension plan or other\narrangement of the Company for the benefit of its employees.\n\nSection 8. Binding Agreement.\n\n                  This Agreement shall be binding upon and inure to the benefit\nof the Company, its successors and assigns and the Executive and his heirs,\nexecutors, administrators and legal representatives.\n\n                                                                               7\n\n\nSection 9. Governing Law.\n\n                  This Agreement shall be construed in accordance with and\ngoverned by the laws of the State of New York without regard to its conflict of\nlaws principles.\n\nSection 10. Validity.\n\n                  The invalidity or unenforceability of any provision or\nprovisions of this Agreement shall not affect the validity or enforceability of\nany other provision of this Agreement, which shall remain in full force and\neffect.\n\nSection 11. Counterparts.\n\n                  This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original but all of which together will\nconstitute one and the same instrument.\n\nSection 12. Arbitration.\n\n                  Any dispute or controversy arising under or in connection with\nthis Agreement shall be settled exclusively by arbitration in the City of New\nYork in accordance with the rules of the American Arbitration Association then\nin effect. Judgment may be entered on the arbitrator's award in any court having\njurisdiction. The expense of such arbitration shall be shared equally by the\nCompany and by the Executive; provided that the arbitrator shall be entitled to\ninclude as part of the award to the prevailing party the reasonable legal fees\nand expenses incurred by such party in an amount not to exceed $25,000 in\nconnection with enforcing its rights hereunder.\n\nSection 13. Amendment.\n\n                  The Agreement may be amended in whole or in part by a written\ninstrument executed by both parties hereto.\n\n                                                                               8\n\n\n                   IN WITNESS WHEREOF, the Company has caused this Agreement to\nbe executed by its duly authorized officers and the Executive has hereunto set\nhis hand and seal as of the date first above written.\n\n                                   POLO RALPH LAUREN CORPORATION\n\n\n                                   By  \/s\/ Peter Strom\n                                       -----------------------------\n\n                                       \/s\/ Michael J. Newman\n                                       -----------------------------\n                                           Michael J. Newman\n\n\n\n\n                               AMENDMENT NO. 1 TO\n                         DEFERRED COMPENSATION AGREEMENT\n\n                  Agreement dated as of October 31, 1994 between Polo Ralph\nLauren Corporation ('Polo'), Polo Ralph Lauren, L.P. (the 'Partnership') and\nMichael J. Newman ('Executive').\n\n                  Polo and Executive are parties to a certain Deferred\nCompensation Agreement dated as of the 4th day of April, 1993 (the 'Agreement').\n\n                  Polo has transferred substantially all of its assets and\nliabilities and its business to the Partnership as of the date first written\nabove.\n\n                  The parties wish to confirm and acknowledge that Polo has\nassigned to the Partnership and the Partnership has assumed, all rights, duties\nand obligations of Polo under the Agreement.\n\n                  NOW, THEREFORE, intending to be bound the parties hereby agree\nas follows with effect from the first date written above.\n\n                  1. All references to the Company under the Agreement shall\nrefer to Polo Ralph Lauren, L.P., a Delaware limited partnership, and all\nnotices shall be addressed to that entity. The Partnership hereby agrees to\nfulfill all the duties and obligations of the Company under the Agreement and to\nbe bound by the terms thereof.\n\n                  2. Except where the context requires otherwise, references in\nthe Agreement to the 'Board of Directors' of the Company or its 'Board' shall\nmean the executive or managing board of the Company which is vested with the\nauthority to hire and dismiss the executive officers of the Company and if that\npower is vested in a general partner of the Company then such reference shall be\nto the Board of\n\n                                                                               2\n\n\nDirectors or the executive or managing board, as the case may be, of such\ngeneral partner.\n\n                  3. The Agreement remains in full force and effect and\nunmodified except as herein provided.\n\n                  IN WITNESS WHEREOF, each of the undersigned has executed this\nAgreement as of the date first written above.\n\n                                         POLO RALPH LAUREN CORPORATION, a New\n\n                                           York corporation\n\n                                         By: \/s\/ Victor Cohen\n                                             --------------------------------\n                                         POLO RALPH LAUREN, L.P., a Delaware\n                                           limited partnership\n\n                                         By: POLO RALPH LAUREN CORPORATION,\n\n                                           General Partner\n\n                                         By: \/s\/ Victor Cohen\n                                             --------------------------------\n\n                                         EXECUTIVE:\n\n                                             \/s\/ Michael J. Newman\n                                             --------------------------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8547],"corporate_contracts_industries":[9396],"corporate_contracts_types":[9539,9544],"class_list":["post-38729","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-polo-ralph-lauren-corp","corporate_contracts_industries-consumer__clothing","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38729","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38729"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38729"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38729"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38729"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}