AGREEMENT AND GENERAL RELEASE
This
Agreement and General Release (the “Agreement”) is made this ____ day of January
between Xxxx Xxxxxxxx (the “Employee”) and The Children’s Place Retail Stores,
Inc. and its direct and indirect subsidiaries and affiliated corporations
(collectively, the “Employer” or the “Company”).
1. Termination
of Employment.
The
parties agree that the Employee’s employment with the Employer terminated
effective December 19, 2007 (the “Separation Date”), as a result of the notice
given by Employee (the “Termination Notice”) pursuant to Section 10.01 of the
Amended and Restated Employment Agreement dated May 12, 2006 (the “Employment
Agreement”).
2. Separation
Payment.
(a) In
consideration for entering into this Agreement, the Employer shall pay to the
Employee the sum of Seven Hundred Fifteen Thousand Dollars ($715,000), less
legally required payroll deductions (“Separation Payment”), which sum shall be
paid to Employee in equal consecutive monthly installments with the first such
installment paid on the first day of the month next following the effective
date
of termination of Employee’s employment hereunder; provided, however, that the
payments of all such installments otherwise payable prior to July 1, 2008 shall
be deferred and paid on such date. The parties agree that this payment schedule
meets the requirements set forth in Section 6.01 of the Amended and Restated
Employment Agreement dated as of May 12, 2006 (the “Employment Agreement”).
(b)
In addition to the payment set forth above in Section 2(a), the parties
acknowledge that the Employee shall receive all wages and payments for accrued
paid time off in Employee’s final paycheck on January 4, 2008.
(c)
The parties agree that a total of 45,837 stock
options of the Company’s common stock at a strike price of $27.65 scheduled to
vest on January 31, 2008 shall vest immediately as of the Separation Date.
All
other unvested stock options as of the Separation Date shall be null and void.
The Employee shall have a period of ninety (90) days from the Separation Date
to
exercise vested but unexercised stock options, if applicable, after which time
all such unexercised stock options shall expire. The employee acknowledges
that
notwithstanding the preceding sentence, any shares that he may obtain upon
the
exercise of options that are subject to the Transfer Restriction Agreement
he
executed on January 27, 2006 shall be transferable only pursuant to the terms
of
such agreement. The parties agree that since the Employee is no longer an
employee of the Company he is no longer subject to the pre-established blackout
periods of the Company’s Xxxxxxx Xxxxxxx Policy. However, the Employee
acknowledges that he must continue to comply with Section 16 of Securities
Exchange Act of 1934 (“Section 16”), as amended and Rule 10b-5, promulgated by
the Securities and Exchange Commission, and the Company shall assist the
Employee with compliance with Section 16. In
addition, the Employee acknowledges that he is no longer entitled to any of
the
equity compensation that was granted to him in December 2007.
(d)
The Employer represents and warrants, and the Employee acknowledges, that the
consideration paid to the Employee under this Agreement is at least equal to
the
amount the Employee would be entitled to upon termination of the Employee’s
employment pursuant to Section 6.01.
3. Other
Benefits.
(a) Any and all other employment benefits received by the Employee shall
terminate effective as of the Separation Date.
(b)
The Employee agrees that the Employee is not entitled to and will not seek
any
further consideration, including, but not limited to, any wages, vacation pay,
sick pay, disability pay, bonus, compensation, payment or benefit from the
Released Parties (as defined in Section 10) other than that to which the
Employee is entitled pursuant to this Agreement or applicable law. The Employee
acknowledges and agrees that the payments hereunder satisfy in full the
Company's obligations to the Employee under the Employment
Agreement.
4.
Removal
from Company Positions and Indemnification.
The parties agree that the Termination Notice shall constitute Employee’s
written resignation from all positions held on behalf of the Company including
but not limited to officer, director, agent, representative, trustee,
administrator, fiduciary and signatory. In addition, with respect to all acts
or
omissions of Employee which occurred prior to the Separation Date, the Company
agrees to continue to indemnify the Employee to the same extent that the
Employee was indemnified prior to the Separation Date and that the Employee
shall retain the benefit of all directors and officers liability insurance
and
coverage maintained by the Company with respect to claims made during the period
provided by the Company’s current policy and to the extent provided by any
future policy from time to time maintained by the Company with respect to other
former executives of the Company, in each case on the terms and conditions
of
such policy. Without
limiting the foregoing, the Company shall pay legal fees and expenses as are
incurred by him in connection with Employee’s defense in the matter entitled
Xxxx
Xxxxxx v. Xxxx Xxxxx, et al.,
Case No. 2:07-CV-121(SDW)(MCA) (the “Litigation”). Employee further acknowledges
and agrees to promptly reimburse the Company for any amounts advanced or paid
on
Employee’s behalf in connection with the Litigation in the event it shall
ultimately be determined by a court of competent jurisdiction that Employee
is
not entitled to be indemnified by the Company as authorized in Section 145
of
the Delaware General Corporation Law.
5.
Return
of Company Property.
The Employee agrees to return to the Company all laptops, cellular telephones,
blackberries, keys, locks, credit cards, documents, records, materials, and
other information of any type whatsoever that is the property of the Company.
Employee further agrees that Employee shall not retain any copies or
reproductions of correspondence, memoranda, reports, notebooks, drawings,
photographs, or other documents relating in any way to the affairs of
the Company or its vendors. The Company agrees to provide Employee with
reasonable access during business hours to documents or other information
determined necessary to defend against any claims brought against him which
arise from or relate to his employment with the Company, including those
referenced in Section 4 of this Agreement.
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6. Consultation
with Counsel and Voluntariness of Agreement.
(a) The Employee acknowledges that the Employer has advised the Employee in
writing to consult with an attorney prior to executing this Agreement. The
Employee further acknowledges that, to the extent desired, the Employee has
consulted with the Employee’s own attorney in reviewing this Agreement, that the
Employee has carefully read and fully understands all the provisions of this
Agreement, and that the Employee is voluntarily entering into this Agreement.
(b)
The
Employee further acknowledges that the Employee has had a period of at least
twenty-one (21) days in which to consider the terms of this
Agreement.
(c)
The
Employee acknowledges that the Employee has been informed in writing that the
Employee has seven (7) calendar days following the execution of this Agreement
to revoke it, and that such revocation must be in writing, hand delivered or
sent via overnight mail and actually received by the Employer within such
period. It is specifically understood that this Agreement shall not be effective
or enforceable, and the payments and benefits set forth in this Agreement shall
not be paid until the seven-day revocation period has expired.
7.
Confidentiality
of Agreement.
The Employee agrees not to disclose the existence of this agreement or the
terms
and conditions of this Agreement to any person or entity, except: (a) to comply
with or enforce the terms of this Agreement; (b) to the Employee’s legal,
financial or tax advisors, spouse, and to the Internal Revenue Service or any
similar state or local taxation authority; or (c) as otherwise required by
law.
8.
Exclusivity
of Services, Confidential Information and Restrictive Covenants.
The Employee acknowledges and agrees that he continues to be bound by Section
9
of Employment Agreement to the extent required by applicable law.
9. Confirmation
of Employment.
The Employer shall, if called upon, confirm the Employee’s dates of employment
and position with the Employer.
10. Release.
(a) Employee represents and warrants that he is not aware of any misconduct
by
any employee or director of the Company that Employee should report in
accordance with the Company’s Code of Business Conduct or any irregularity in
the Company’s books or records or any other matter relating to the Company’s
accounting that could properly be reported by Employee pursuant to the
procedures established by the Company for making such reports, except any that
has already been reported by Employee in writing to the appropriate personnel
of
the Company. In exchange for the consideration set forth in Section 2, the
Employee, on behalf of the Employee and the Employee’s agents, assignees,
attorneys, heirs, executors and administrators, voluntarily and knowingly
releases the Employer, as well as the Employer’s successors, predecessors,
assigns, parents, subsidiaries, divisions, affiliates, officers, directors,
shareholders, employees, agents and representatives, in both their individual
and representative capacities (collectively, the “Released Parties”), from any
and all claims, causes of action, suits, grievances, debts, sums of money,
agreements, promises, damages, back and front pay, costs, expenses, and
attorneys’ fees by reason of any matter, cause, act or omission arising out of
or in connection with the Employee’s employment or separation from employment
with the Employer, including but not limited to any claims based upon common
law, any federal, state or local employment statutes or civil rights laws.
Included in this release, without limiting its scope, are claims arising under
Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination
in
Employment Act; the Older Workers Benefit Protection Act; the Americans with
Disabilities Act; the Family and Medical Leave Act, the Fair Labor Standards
Act
of 1938 as amended by the Equal Pay Act of 1963; the Employee Retirement Income
Security Act of 1974; the New Jersey Conscientious Employee Protection Act;
the
New Jersey Law Against Discrimination; the New Jersey Family Leave Act; the
New
Jersey Wage Payment Act; the Xxxxxxxx-Xxxxx Act of 2002; and any other laws
prohibiting discrimination, retaliation, wrongful termination, failure to pay
wages, breach of contract, defamation, invasion of privacy, whistleblowing
or
infliction of emotional distress, or any other matter. This release shall apply
to all known, unknown, unsuspected and unanticipated claims, liens, injuries
and
damages that have accrued to the Employee as of the date of this Agreement.
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(b)
This
release does not waive rights or claims that may arise after this release is
executed and does not waive any rights or claims which cannot be waived as
a
matter of law. This Agreement does not affect the Employee’s right to file a
charge with the EEOC or to participate in any investigation conducted by the
EEOC, but the Employee acknowledges that the Employee is not entitled to any
other monies other than those payments described in this Agreement.
(c)
To
the fullest extent permitted by law, the Employee promises never to file a
lawsuit, claim, administrative proceeding or agency action (collectively
“Lawsuit”) asserting any claims against a Released Party with respect to any
claim released by Section 10(a), and further agrees that he shall not have
the
right to recover any monetary relief with respect to any such claim that may
be
asserted on his behalf.
11.
Cooperation.
Employee shall furnish such information as may be in his possession to, and
cooperate with, the Company as may reasonably be requested by the Company in
the
orderly transfer of his responsibilities to other Company employees or
in connection with any litigation or other proceeding in which the Company
is or
may be involved or a party to the extent there exists a commonality of interests
between the parties with respect to the defense of such claims.
12. Violation
of Terms.
Should the Employee breach any provision of this Agreement, which breach is
not
cured within ten (10) days after written notice to Employee, then, in addition
to all other damages or legal remedies available to the Employer (including
without limitation injunctive relief), the Employee immediately shall return
to
the Employer all monies paid to the Employee pursuant to this Agreement. Should
the Employer violate any provision of this Agreement, then the Employee shall
have all remedies and civil actions available to remedy Employee’s damages. The
parties agree that, should either party seek to enforce the terms of this
Agreement through litigation, then the prevailing party, in addition to all
other legal remedies, shall be reimbursed by the other party for all reasonable
attorneys’ fees in relation to such litigation. However, in accordance with
applicable laws, if the Employee violates this Agreement by commencing an action
under the Age Discrimination in Employment Act, then the requirements set forth
in this Section 12 shall not apply.
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13.
No
Admission.
Nothing contained in this Agreement nor the fact that the parties have signed
this Agreement shall be construed as an admission by either party that it has
taken any improper action or done anything wrong.
14. Waiver
of Reinstatement.
By entering into this Agreement, the Employee acknowledges that the Employee
waives any claim to reinstatement and/or future employment with the Employer.
The Employee further acknowledges that the Employee is not and shall not be
entitled to any payments, benefits or other obligations from the Released
Parties whatsoever (except as expressly set forth in this
Agreement).
15. Miscellaneous.
This Agreement contains the entire understanding between the parties. This
Agreement supersedes any and all previous agreements and plans, whether written
or oral, between the Employee and the Employer. There are no other
representations, agreements or understandings, oral or written, between the
parties relating to the subject matter of this Agreement. No amendment to or
modification of this Agreement shall be valid unless made in writing and
executed by the parties hereto subsequent to the date of this Agreement. This
Agreement shall be enforced in accordance with the laws of the State of New
Jersey without regard to conflicts of law principles, and the parties agree
that
any litigation to enforce this Agreement will take place in New Jersey. This
Agreement may be executed in several counterparts, and all counterparts so
executed shall constitute one Agreement, binding upon the parties
hereto.
16. Severability.
If any term, provision or part of this Agreement shall be determined to be
in
conflict with any applicable federal, state or other governmental law or
regulation, or otherwise shall be invalid or unlawful, such term, provision
or
part shall continue in effect to the extent permitted by such law or regulation.
Such invalidity, unenforceability or unlawfulness shall not affect or impair
any
other terms, provisions and parts of this Agreement not in conflict, invalid
or
unlawful, and such terms, provisions and parts shall continue in full force
and
effect and remain binding upon the parties hereto.
17. Tax
Withholding.
All amounts payable hereunder shall be subject to all applicable federal, state
and local tax withholdings.
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THE
EMPLOYEE STATES THAT THE EMPLOYEE HAS CAREFULLY READ THIS AGREEMENT PRIOR TO
SIGNING IT, THAT THE AGREEMENT HAS BEEN FULLY EXPLAINED TO THE EMPLOYEE PRIOR
TO
SIGNING IT, THAT THE EMPLOYEE HAS HAD THE OPPORTUNITY TO HAVE IT REVIEWED BY
AN
ATTORNEY AND THAT THE EMPLOYEE UNDERSTANDS THE AGREEMENT’S FINAL AND BINDING
EFFECT PRIOR TO SIGNING IT, AND THAT THE EMPLOYEE IS SIGNING THE RELEASE
VOLUNTARILY WITH THE FULL INTENTION OF COMPROMISING, SETTLING, AND RELEASING
THE
COMPANY AS STATED IN THIS AGREEMENT.
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The
Children’s Place Retail Stores, Inc.
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Xxxx
Xxxxxxxx
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| By: | ||||
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(signature)
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Dated:
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Dated:
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