EXHIBIT 10.7
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT DATED MAY 12,
2006 WITH NEAL GOLDBERG .
EXHIBIT 10.7
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT, dated as of May 12, 2006 between Neal Goldberg
(“Executive”) and THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware corporation
(“Employer”).
W I T N E S S E
T H:
WHEREAS, Employer and Executive are
parties to a certain Employment Agreement dated January 22,
2004, as amended by letter dated May 17, 2005 (the
“Prior Agreement”); and
WHEREAS, Executive and Employer
desire to amend and restate the Prior Agreement as set forth
herein;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and agreements herein
contained, the parties agree as follows:
SECTION 1
EMPLOYMENT OF
EXECUTIVE
1.01.
Employer hereby agrees to employ Executive and Executive hereby
agrees to be and remain in the employ of Employer upon the terms
and conditions hereinafter set forth.
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SECTION 2
EMPLOYMENT PERIOD
2.01.
The term of Executive’s employment under this Agreement shall
be effective as of May 12, 2006 (“Effective Date”)
and shall continue until termination of Executive’s
employment in accordance with the provisions of Section 5. The
period of Executive’s employment by Employer shall be
referred to as the “Employment Period” and the date of
Executive’s termination of employment with the Employer shall
be referred to as the “Termination Date.”
SECTION 3
DUTIES
3.01.
Generally.
During the Employment Period, Executive (a) shall be employed
as President of Employer, (b) shall serve as a member of the
Executive Management Committee of Employer, (c) shall devote
all of his business time and attention to the business and affairs
of Employer and other enterprises controlled by, or under common
control with, Employer (Employer and such entities being referred
to collectively as the “Company”), and (d) shall
use his best efforts, skills and abilities in the diligent and
faithful performance of his duties and responsibilities hereunder.
Notwithstanding the foregoing, Executive shall have the right to
(a) engage in personal investment activities for himself and
his family and (b) engage in charitable and civic activities,
provided the outside activities set forth in (a) and
(b) hereof do not interfere with Executive’s performance
of his duties and responsibilities hereunder. In no event shall
Executive serve as an officer or director of any other business
corporation or as a general partner
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of any
partnership except with the prior written approval of the Chief
Executive Officer of Employer.
3.02.
Reporting.
Executive shall report directly to the Chief Executive Officer of
Employer. During the Employment Period, Executive will be subject
to all of the written policies, rules and regulations of which
Executive is given notice applicable to senior executives of
Employer and will comply with all directions and instructions of
the Chairman of the Board and the Chief Executive
Officer.
SECTION 4
COMPENSATION
4.01.
Compensation, Generally. For all services
rendered and required to be rendered by Executive under this
Agreement, Employer shall pay to Executive during and with respect
to the Employment Period, and Executive agrees to accept (in full
payment), Base Salary and Performance Bonus, all as more fully
described on Exhibit A (collectively, the
“Compensation”).
4.02
Other Benefits. Except as otherwise
provided herein, during the Employment Period, Executive shall be
eligible to receive such benefits that the Employer generally makes
available to Employer’s senior executives from time to time
(other than those benefits provided under or pursuant to separately
negotiated individual employment agreements or arrangements).
Executive’s Base Salary shall constitute the compensation on
the basis of
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which the amount
of Executive’s benefits under any such plan or program shall
be fixed and determined.
4.03
Expense Reimbursement. Employer shall
reimburse Executive for all business expenses reasonably incurred
by him in the performance of his duties under this Agreement upon
his presentation, not less frequently than monthly, of signed,
itemized accounts of such expenditures all in accordance with
Employer’s policies and procedures as adopted and in effect
from time to time and applicable to its senior
executives.
4.04
Vacations.
Executive shall be entitled to three weeks vacation with additional
vacation as approved by the Chief Executive Officer, each
twelve-month period worked, which vacation will accrue ratably over
the course of such twelve-month period, which shall be taken at
such time or times as may be approved by the Chief Executive
Officer and shall not unreasonably interfere with Executive’s
performance of his duties under this Agreement.
4.05
Options.
Executive was granted stock options on January 22, 2004 to
purchase 250,000 shares of Common Stock of the Company at an
exercise price equal to the Fair Market Value (as that term is
defined in the Company’s current stock option plan) of the
Company’s common stock as of the close of business on
January 22, 2004 (the “Initial Stock Option”) and
pursuant to the vesting schedule set forth in this
Section 4.05(a). Subject to Sections 6.02 and 8.01 hereof,
Executive shall vest in the Initial Stock Option granted herein in
accordance with the following schedule: 50,000 shares on
January 31, 2005 and 50,000 shares on each of the next four
anniversaries thereof.
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SECTION 5
TERMINATION OF EMPLOYMENT
PERIOD
5.01.
Termination Without Cause.
At any time during the Employment Period, by notice to the other,
Employer or Executive may terminate Executive’s employment
under this Agreement without cause. Such notice shall specify the
effective date of termination, which in the case of termination by
Executive shall not be less than thirty (30) days after the date of
such notice.
5.02.
By Employer: Cause.
At any
time during the Employment Period, by notice to Executive, Employer
may terminate Executive’s employment under this Agreement for
“Cause,” effective immediately. Such notice shall
specify the cause for termination. For the purposes of this
Section 5.02, “Cause” means:
(a) a breach by Executive of any of the material provisions
of this Agreement that Executive fails to remedy or cease within
ten (10) business days after notice thereof to Executive;
or
(b) any conduct, action or behavior by Executive that has or
may reasonably be expected to have a material adverse effect on the
reputation or interests of the Company or Executive; or
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(c) the commission by Executive of an act involving
moral turpitude, dishonesty or fraud, or the engagement in any
other willful or intentional misconduct, whether or not in
connection with Executive’s employment hereunder;
or
(d) Executive shall have committed an act constituting a
felony under the laws of the United States or any state or
political subdivision thereof.
5.03.
By Executive for Good Reason. Executive may, at any time
during the Employment Period by notice to the Employer, terminate
Executive’s employment under this Agreement “for Good
Reason” effective immediately. For the purposes of this
Section 5.03, “Good Reason” means:
(a) a
relocation of Employer’s headquarters outside the New York
City metropolitan area;
(b) a
demotion of Executive’s position, a material, adverse change
in Executive’s duties and responsibilities, or an adverse
change in Executive’s reporting as set forth in
Section 3.02;
(c)
Employer’s failure to pay any amount or benefits when due,
which failure is not cured within ten (10) business days after
notice to Employer;
(d)
Employer’s material breach of this Agreement which breach is
not cured within ten (10) business days after notice to
Employer; or
(e) Ezra
Dabah no longer holds the position of Chief Executive Officer of
Employer.
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5.04.
Disability
.
If during the Employment Period, Executive becomes incapable of
fulfilling his obligations hereunder because of injury or physical
or mental illness, and such incapacity exists for a period of at
least 120 consecutive days or for shorter periods aggregating at
least 180 days during any period of twelve consecutive months
(“Disability”), Employer may, upon at least fifteen
(15) days’ prior written notice to Executive, terminate
Executive’s employment under this Agreement. The Disability
of Executive shall be determined by an independent physician
acceptable to both Employer and Executive or his
representative.
SECTION 6
TERMINATION
COMPENSATION
6.01
Entitlement to
Payment Upon Termination Without Cause. Subject to the
provisions of Sections 6.02 and 9.08, if Executive’s
employment hereunder is terminated by Employer pursuant to Sections
5.01, 5.03, or 8.01 at any time thereafter, Executive shall be
entitled to continuation of his Base Salary for a period of one
(1) year following such termination (“Severance
Payment”), which Severance Payment shall be paid to Executive
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 Executive’s employment
hereunder; provided, however, that to the extent necessary to
comply with the restriction of Section 409A(a)(2)(B) of
the Internal Revenue Code of 1986, as amended (“Code”)
concerning payments to “specified employees,” in no
event shall any portion of the Severance Payment be made earlier
than the first business day of the seventh month following
Executive’s Termination Date (“Delayed Payment
Date”). Executive shall be a “specified employee”
for the 12-month
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period beginning
on the first day of the fourth month following each
“Identification Date” if Executive is a “key
employee” (as defined in Section 416(i) of the Code
without regard to Section 416(i)(5) thereof) of Employer
at any time during the 12-month period ending on the Identification
Date. For purposes of this Agreement, the Identification Date shall
be December 31. Receipt of the Severance Payment shall be
subject to execution of a separation agreement and general release
(the terms of which shall be consistent with this Agreement) in a
form reasonably satisfactory to Employer.
6.02
Stock Options Upon Termination . In the event
Executive’s employment hereunder is terminated by Employer
pursuant to Section 5.01 or by Executive pursuant to
Section 5.03, (a) the stock options scheduled to vest
pursuant to Sections 4.05(a) and 4.05(b) on the next
anniversary date following the date of termination of
Executive’s employment, which number of shares shall be
prorated based on the date of termination of Executive’s
employment, shall immediately vest, and (b) Executive shall
have a period of three months during which any vested options held
by Executive may be exercised (at the conclusion of which period
any unexercised options shall permanently expire). In the event
that Executive’s employment is terminated by Employer
pursuant to Section 5.02 or Executive voluntarily terminates
his employment for any reason other than “Good Reason,”
(a) all stock options previously granted to Executive that
have not yet vested shall be forfeited, and (b) Executive
shall have a period of three months during which any vested options
held by Executive may be exercised (at the conclusion of which
period any unexercised options shall permanently expire). In the
event that Executive’s employment is terminated by Employer
or Executive for any reason following a
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Change in Control
as defined in Section 8, (a) all stock options previously
granted to Executive that have not yet vested shall vest
immediately; and (b) Executive shall have a period of three
months during which any vested options held by Executive may be
exercised (at the conclusion of which period any unexercised
options shall permanently expire). In the event that
Executive’s employment is terminated by Employer by reason of
Disability pursuant to Section 5.04, or if Executive dies,
(a) all stock options previously granted to Executive that
have not yet vested shall vest immediately, and (b) Executive
(or his estate or personal representative) shall have a period of
twelve months during which any vested options held by Executive may
be exercised (at the conclusion of which period any unexercised
options shall permanently expire).
6.03
No Other Termination Compensation. Executive shall not be
entitled to any benefit or compensation following termination of
his employment hereunder, except as set forth in this
Section 6 and Section 8.01, if applicable.
SECTION 7
LOCATION OF EXECUTIVE’S
ACTIVITIES
7.01.
Principal Place of Business.
Executive’s
principal place of business in the performance of his duties and
obligations under this Agreement shall be in the New York
metropolitan area, whi
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