Exhibit 10.34
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT, dated as of
January 22, 2004 between Neal Goldberg (“Executive”)
and THE CHILDREN’S PLACE RETAIL STORES, INC., a Delaware
corporation (“Employer”).
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.
SECTION 2
EMPLOYMENT PERIOD
2.01.
The terms of
Executive’s employment under this Agreement (the
“Employment Period”) shall commence on January 22, 2004
(the “Commencement Date”) and shall continue unless
terminated in accordance with the provisions of Section
5.
SECTION 3
DUTIES
3.01.
Generally.
During the
Employment Period, Executive (i) shall be employed as President of
Employer, (ii) shall serve as a member of the Executive Management
Committee of Employer, (iii) 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
(collectively, “Company”), and (iv) 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
(i) engage in personal investment activities for himself and his
family and (ii) engage in charitable and civic activities, provided
the outside activities set forth in (i) and (ii) 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 of any partnership except with the prior written
approval of the Chief Executive Officer of
Employer.
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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.
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 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 procedures and policies 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.
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4.05.
Options.
Executive shall
be granted stock options to purchase 300,000 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 the Commencement Date and pursuant to the vesting
schedule set forth below. Subject to Section 6.02, Executive
shall vest in the stock options granted above in accordance with
the following schedule: 60,000 shares on January 31, 2005 and
60,000 shares on each of the next four anniversaries
thereof.
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 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, “for Cause” means:
(i)
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
(ii)
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
(iii)
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
(iv)
Executive shall
have committed an act constituting a felony under the laws of the
United States or any state or political subdivision
thereof.
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5.03.
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 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 Section
5.01, Executive terminates his employment with Employer pursuant to
Section 5.01 for “Good Reason,” or Executive’s
employment is terminated for any reason following a Change of
Control as defined in Section 8, Executive shall be entitled to
continuation of his Base Salary for a period of one (1) year
following such termination, 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. The amount to be paid pursuant to this Section
6.01 is referred to as the “Termination Compensation”
and the period for which such compensation is to be paid is
referred to as the “Relevant Period”. For
purposes of this Section 6.01, “Good Reason” shall
mean: (1) a relocation of Employer’s headquarters outside the
New York City metropolitan area; (2) 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 Paragraph 3.02; (3)
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; (4) Employer’s material breach of this
Agreement which breach is not cured within ten (10) business days
after notice to Employer; or (5) Ezra Dabah no longer holds the
position of Chief Executive Officer of Employer. Such
Termination Compensation shall be paid to Executive in equal
consecutive monthly installments during the Relevant Period, 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.
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6.02.
Stock Options
Upon Termination . In the event
Executive’s employment hereunder is terminated by Employer
pursuant to Section 5.01 or Executive terminates his employment
with Employer pursuant to Section 5.01 for “Good
Reason,” (i) the stock options scheduled to vest pursuant to
Section 4.05 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 (ii)
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”, (i) all stock options
previously granted to Executive that have not yet vested shall be
forfeited, and (ii) 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 Change in Control as defined in Section 8, (i) all
stock options previously granted to Executive that have not yet
vested shall vest immediately; and (ii) 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 5.03, or if Executive
dies, (i) all stock options previously granted to Executive that
have not yet vested shall vest immediately, and (ii) 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.
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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, which includes Secaucus, New Jersey. For so long
as Employer’s headquarters are located in the New York City
metropolitan area, Executive’s principal place of business
shall be located at such headquarters.
7.02.
Travel
.
Notwithstanding the provisions of Section 7.01, Executive will
engage in such travel and spend time in other places as may be
necessary or appropriate in furtherance of his duties
hereunder.
SECTION 8
CHANGE IN CONTROL
8.01.
Effect of
Change in Control.
If a Change in
Control (as hereinafter defined) shall occur and if Executive is
terminated by Employer or Executive for any reason, all outstanding
stock options under the stock option plan shall immediately vest
and Executive shall be entitled to all the payments in Section
6.01.
As used in this Agreement,
“Change in Control” means the occurrence during the
Term
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