AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
This Agreement and General Release (the
“Agreement”) is made this 24th day of November 2009 between Xxxxxxx Xxxxx (the
“Employee”) and The Children’s Place Services Company, LLC and its parents and
direct and indirect subsidiaries and affiliated corporations (collectively, the
“Employer” or the “Company”).
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1.
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Termination of
Employment. The parties agree that the Employee’s
employment with the Company shall terminate effective August 4, 2009
(“Separation Date”).
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2.
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Separation
Payment. (a) In consideration of entering into this
Agreement, the Employer shall pay to the Employee the sum of Four Hundred
Ninety-Nine Thousand One Hundred Dollars ($499,100.00), less any legally
required payroll deductions, which amount shall be paid in twenty-six (26)
equal bi-weekly installments commencing the first pay period following
full execution of the Agreement. The bi-weekly installments
shall be in an amount equal to Employee’s bi-weekly base salary as of the
Separation Date; provided that the last installment shall be made no later
than April 15, 2010 and shall include any remaining
payments. For purposes of 409A of the Code, each installment
shall be deemed a separate
payment.
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(b)
In addition the payment set forth above in Section 2(a), the parties
acknowledge that the Employee shall receive all wages and payments for
accrued but unused paid time off, less any legally required payroll
deductions, in Employee’s final
paycheck.
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(c) The
Company also agrees to pay to Employee an additional sum of One Hundred
One Thousand Five Hundred Dollars ($101,500), less any legally required
payroll deductions, within fourteen (14) days of full execution of this
Agreement
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3.
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Other
Benefits. (a) As of the Separation Date, Employee shall
no longer be entitled to any of the employment benefits previously
received by or offered to the Employee in the course of his employment
with Employer, except that in the event Employee elects to continue
medical, dental, and vision benefits required to be made available to
Employee in accordance with the Consolidated Omnibus Budget Reconciliation
Act (“COBRA”) (subject to any applicable requirements for continuation of
coverage as set forth by COBRA), the Employer agrees to waive the
applicable premium cost that Employee would otherwise be required to pay
for such continued group health coverage for a period of twelve (12)
months or until the date Employee commences full-time employment with
another company that offers the opportunity to obtain comparable health
benefits, whichever date is sooner.
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4.
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Acknowledgments
Regarding Payments and Benefits. The Employer represents
and warrants, and the Employee acknowledges, that the consideration paid
to the Employee under this Agreement exceeds, supersedes, and extinguishes
the amount, if any, the Employee may be entitled under any offer letter or
employment agreement, verbal or written, as well as any employment or
personnel policies, procedures or handbooks, including but not limited to,
severance plans, policies or precedent utilized by the Employer or any
other legal obligation which the Employer may have to the
Employee. Employee further acknowledges that in the absence of
this Agreement, Employee would not be entitled to, among other things, the
payments and benefits provided by this Agreement. Employee also
acknowledges that any monetary or other benefits which, prior to the
execution of this Agreement, Employee may have earned or accrued or to
which Employee may have been entitled to be paid prior to the execution of
this Agreement, have been paid, or addressed in this Agreement, or such
payments or benefits have been released, waived or settled by Employee
pursuant to this Agreement. 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 Paragraph 12) other than that to which the Employee
is entitled pursuant to this Agreement. The Employee further agrees that
he shall retain any vested awards or rights pursuant to (i) the
Amended and Restated Performance Stock Award Agreement (2008 Long-Term
Incentive Program), effective as of December 10, 2007; (ii)
Amendment to the Amended and Restated Performance Stock Award
Agreement (2008 Long-Term Incentive Program), effective as of March 6,
2008; (iii) Amended and Restated Deferred Stock Award Agreement -
Executives (2008 Long Term Incentive Program), effective as of December
10, 2007, but shall not accrue any additional awards or rights pursuant to
any of the foregoing agreements as of the Separation Date. The
Employee further agrees that he shall retain no rights pursuant to the
Amended and Restated Change in Control Severance Agreement effective as of
January 24, 2008.
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5.
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Return of Company
Property. The Employee agrees, prior to or on the
Separation Date, 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 and shall immediately return any copies, images, or
reproductions of correspondence, memoranda, reports, financial
information, notebooks, drawings, photographs, or other documents relating
in any way to the affairs of the Company or its
vendors.
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6.
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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.
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(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.
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(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 no sooner
than the seven-day revocation period has
expired.
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7.
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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 this Agreement; (b) to
the Employee’s legal, certified 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. The Employee
agrees that the Employee will not publicly or privately disparage the
Company or any of the Company’s products, services, affiliates, or current
or former officers, directors, trustees, employees, agents,
administrators, representatives or
fiduciaries.
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8.
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Confidential and
Proprietary Information; Work Product. (a) The Employee
acknowledges that the Employee may possess certain confidential
information, property or trade secrets of the Company (“Confidential
Information”) which would damage the Company if disclosed or used by the
Employee. Accordingly, the Employee acknowledges a continuing
duty of confidentiality to the Company and agrees that the Employee will
not use or disclose Confidential Information to any person or entity or
use the Confidential Information in any way. Confidential
information shall include, but shall not be limited to, the following: (i)
documentation or data contained in any files or any other records the
Company may maintain; (ii) statements regarding any matters made by any
employees, officers, agents, representatives or attorneys of the Company
at any meeting attended by the Employee or which the Employee may have
heard or obtained knowledge of which may result in any detriment to the
Company; (iii) actions taken or contemplated by the Company with respect
to any of its operations, assets or employees; (iv) policies, practices,
programs or plans contemplated, initiated or effectuated by the Company;
and (v) any other information, records or data of a private nature to the
Company. Confidential Information shall not include information
which is then in the public domain (so long as the Employee did not,
directly or indirectly, cause or permit such information to enter the
public domain). Notwithstanding the foregoing, nothing
contained in this Paragraph 8 shall prevent Employee from disclosing
Confidential Information if compelled to do so by legal process; provided,
that Employee immediately notifies Employer if disclosure of Confidential
Information is required by court order or other legal process to allow
Employer sufficient time to obtain a protective order or otherwise obtain
the fullest protection permitted by applicable law. In
addition, notwithstanding the foregoing, nothing contained in this
Paragraph 8 shall serve as a restraint or limitation upon the Employee
from exercising the Employee’s general knowledge and expertise in the
Employee’s field or from earning a livelihood in said
field.
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(b)
Employee agrees that all copyrights, patents, trade secrets or other
intellectual property rights associated with any ideas, concepts,
techniques, inventions, processes, or works of authorship developed or
created by him during his employment by the Company and for a period of
one (1) year thereafter, that (i) relate, whether directly or indirectly,
to the Company’s actual or anticipated business, research or development
or (ii) are suggested by or as a result of any work performed by Employee
on the Company’s behalf, shall, to the extent possible, be considered
works made for hire within the meaning of the Copyright Act (17 U.S.C. §
101 et. seq.) (the “Work Product”). All Work Product shall be
and remain the property of the Company. To the extent that any
such Work Product may not, under applicable law, be considered works made
for hire, Employee hereby grants, transfers, assigns, conveys and
relinquishes, and agrees to grant, transfer, assign, convey and relinquish
from time to time, on an exclusive basis, all of his right, title and
interest in and to the Work Product to the Company in perpetuity or for
the longest period otherwise permitted by law. Consistent with
his recognition of the Company’s absolute ownership of all Work Product,
Employee agrees that he shall (i) not use any Work Product for the benefit
of any party other than the Company and (ii) perform such acts and execute
such documents and instruments as the Company may now or hereafter deem
reasonably necessary or desirable to evidence the transfer of absolute
ownership of all Work Product to the Company; provided, however, if
following ten (10) days’ written notice from the Company, Employee
refuses, or is unable, due to disability, incapacity, or death, to execute
such documents relating to the Work Product, he hereby appoints any of the
Company’s officers as his attorney-in-fact to execute such documents on
his behalf. This agency is coupled with an interest and is
irrevocable without the Company’s prior written
consent.
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9.
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Non-Competition,
Non-Solicitation, and No Interference With Business Operations.
(a) The Employee agrees that, for a period of one (1)
year following the Separation Date (the “Restricted Period”), the Employee
will not without the express prior written consent of the Company,
anywhere, either directly or indirectly, whether alone or as an owner,
shareholder, partner, member, joint venturer, officer, director,
consultant, independent contractor, agent, employee or otherwise of any
company or other business enterprise, assist in, engage in or otherwise be
connected to or benefit from any business competitive with that of the
Company. A "business competitive with that of the Company" is
one that (i) designs, manufactures, contracts to manufacture or sells, or
intends to design, manufacture, contract to manufacture or sell,
children's apparel, shoes or accessories and other children's-oriented
merchandise, or (ii) engages in or provides or intends to engage in or
provide any products, services or other business which is of the same
nature as a product, service or other business of the Company or a
product, service or other business which the Company is developing and of
which Employee has knowledge. Notwithstanding the foregoing,
nothing herein shall be deemed to prohibit Employee’s ownership of less
than 1% of the outstanding shares of any publicly traded corporation that
conducts a business competitive with that of the Company or prohibit
Employee for working for a company engaged in a “business competitive with
that of the Company” provided that Employee does not render services or
assistance to any division, subsidiary, affiliate or other area of said
competitor that is engaged in any of the businesses or activities set
forth in (i) or (ii) in this Paragraph
9(a).
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(b) Employee
further agrees that, during the Restricted Period, he will not, without
the express prior written consent of the Company, directly or indirectly:
(i) contact, communicate, solicit, transact business with or perform
services for (or assist any third party in contacting, communicating,
soliciting, transacting business with or performing any services for) any
person or entity that is or was (at any time within 6 months prior to the
contact, communication, solicitation, transaction of business, or
performance of services), a vendor of the Company in connection with or
otherwise related to services or products provided by the vendor to any
business competitive with that of the Company; (ii) solicit, recruit,
hire, engage, or refer (or assist any third party in soliciting,
recruiting, hiring, engaging or referring) any person or entity who or
which either is, or during the twelve (12) months immediately preceding
the Separation Date was, an employee, agent, consultant or independent
contractor of the Company; or (iii) interfere with, disrupt or attempt to
interfere with or disrupt the relationship, contractual or otherwise,
between the Company and any of its vendors, lessors, independent
contractors, agents or
employees.
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(c) Employee
acknowledges and agrees that the restrictions on the activities in which
he may engage that are set forth in Paragraphs 9(a) and (b) of
this Agreement and the location and period of time for which such
restrictions apply are reasonable and necessary to protect the Company's
legitimate business interests. Employee understands that the
Company's business is global and, accordingly, the restrictions cannot be
limited to any particular geographic area except as otherwise provided
herein. Employee further acknowledges that the restrictions
contained in this Agreement will not prevent him or her from earning a
livelihood.
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10.
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Injunctive
Relief. Employee acknowledges that a breach or
threatened breach of any of the terms set forth in Paragraphs 7, 8, or 9
of this Agreement shall result in an immediate irreparable and continuing
harm to the Employer for which there shall be no adequate remedy of
law. The Employer shall, without posting a bond, be entitled to
obtain injunctive and other equitable relief, in addition to any other
remedies available to the Employer in connection with Paragraphs 7, 8, 9
of this Agreement.
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11.
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Confirmation of
Employment. The Employee shall refer all inquiries
concerning Employee’s employment to the payroll department and Employer’s
payroll department shall, if called upon, confirm the Employee’s dates of
employment and position with the
Employer.
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12.
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Release. In
exchange for the consideration set forth above, 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
with the Employer or separation therefrom, including but not limited to
any claims based upon common law, or 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 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, including any right or claim to enforce the terms of
this Agreement, and does not waive any rights or claims hereunder or 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.
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13.
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Removal from Company
Positions and Indemnification. The Employee agrees that
as of the Separation Date, the Employee shall resign 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.
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14.
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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, and, upon prior approval of the
Company and to the extent separate counsel is necessary to represent the
interests of Employee in respect to such litigation or proceeding, the
Company agrees to indemnify Employee for the reasonable fees and costs
incurred by Employee in fulfilling his obligations under this Paragraph
14.
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15.
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Violation of
Terms. Should the Employee violate any provision of this
Agreement, 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 Paragraph 15 shall not
apply.
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16.
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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.
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17.
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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).
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18.
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Delay in Payments
Required by Section 409A of the Code. Notwithstanding
any provisions herein to the contrary, if all or any portion of the
Payments due under Paragraph 2 hereof are reasonably determined to be
“nonqualified deferred compensation” subject to Section 409A of the Code
and the Company determines that the Employee is a “specified employee” (as
defined in Section 409A(a)(2)(B)(i) of the Code and the other guidance
promulgated thereunder), then such Payments shall commence on the first
regular payroll date on or immediately following the first day of the
seventh month following the Employee’s “separation from service”, as
defined in Treasury Regulation Section 1.409A-1(h), including the default
presumptions and the first of such Payments shall include all amounts
otherwise payable prior to the first payment date but for the application
of this Paragraph 18.
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19.
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Section 409A of the
Code. The Employee hereby acknowledges and agrees with
the Company that the interpretation of Section 409A of the Code and its
application to the terms of this Agreement is uncertain and may be subject
to change as additional guidance and interpretations become
available. Anything to the contrary herein notwithstanding, all
benefits or payments provided by the Company to the Employee that would be
deemed to constitute “nonqualified deferred compensation” within the
meaning of Section 409A of the Code are intended to comply with
Section 409A of the Code. If, however, any such benefit or
payment is deemed to not comply with Section 409A of the Code, the
Employee and the Company agree to renegotiate in good faith any such
benefit or payment (including, without limitation, as to the timing of any
Payment payable hereof), if possible, so that either (i) Section 409A
of the Code will not apply or (ii) compliance with Section 409A of
the Code will be achieved. The Company shall consult with the
Employee in good faith regarding the implementation of the provisions of
this Paragraph 19; provided, that
neither the Company nor any of its employees or representatives shall have
any liability to the Employee with respect to Section 409A of the
Code.
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20.
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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 may be
executed in counterparts, and all counterparts so executed shall
constitute one agreement, binding upon the parties hereto. This
Agreement shall be binding upon and inure to the benefit of the parties,
as well as their administrators, representatives, agents, executors,
successors and assigns.
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21.
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Choice of Law and
Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey applicable to
contracts made and performed in such state and without regard to the
conflicts or choice of law provisions thereof that would give rise to the
application of the domestic substantive law of any other
jurisdiction. Except in the event the Company seeks to enforce
its rights under Paragraph 7, 8, 9 or 10 of this Agreement, the parties
agree to mediate any dispute arising under this Agreement. In
the event of any such dispute subject to mediation, the parties, within
thirty (30) days of a written request for mediation shall attend a
mediation to be conducted in New Jersey in order to make a good faith
reasonable effort to resolve such dispute. The parties shall
attempt, in good faith, to agree to a mediator. If the parties
are unable to agree to a mediator, the parties shall submit the matter to
the American Arbitration Association to appoint a mediator and conduct the
mediation in New Jersey. If this good faith mediation effort
fails to resolve the dispute arising under this Agreement or in the event
the Company seeks to enforce its rights under Paragraphs 7, 8, 9, or 10 of
this Agreement, then either party may commence a legal suit, action or
proceeding to resolve such dispute, provided that such legal suit, action
or proceeding arising out of or relating to this Agreement shall be
instituted in a New Jersey federal or state court. Employee and
Employer agree to waive any objection which either may now or hereafter
have to the laying of venue of any such suit, action or proceeding and
Employee and Employer irrevocably submit to the jurisdiction of any such
court in any suit, action or
proceeding.
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22.
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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.
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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 Services Company, LLC
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Xxxxxxx
Xxxxx
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By: /s/
Xxxxxxx X. Xxxxxxx
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/s/ Xxxxxxx
Xxxxx
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Dated: November 24,
2009
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Dated:
November 20,
2009
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