Exhibit 10.1
EXECUTION COPY
SECURITIES PURCHASE
AGREEMENT
This Securities Purchase Agreement
(this “ Agreement ) is entered into on July 29,
2009, by and among The Children’s Place Retail
Stores, Inc., a Delaware corporation (the “
Company ”), on the one hand, and Ezra Dabah (“
Dabah ”) and each of the additional parties listed on
Annex A attached hereto (each, a “ Seller
” and, together with Dabah, the “ Sellers
”), on the other hand. The Company and the Sellers are
sometimes hereinafter referred to each individually as a
“Party” and collectively as the
“Parties.”
WHEREAS, the Sellers own certain
shares of the Common Stock, par value $0.10 per share, of the
Company (“ Common Stock ”) as set forth on
Annex A attached hereto under the column “Shares Owned
as of the Date Hereof;”
WHEREAS, the Sellers desire to sell
to the Company, and the Company is willing to purchase from the
Sellers, an aggregate of 2,451,315 shares of Common Stock held by
the Sellers as set forth on Annex A attached hereto under
the column “Number of Shares to be Sold at Closing”
(the “ Shares ”), upon the terms and subject to
the conditions set forth in this Agreement;
WHEREAS, the Sellers desire to have
the option to have an aggregate of 2,452,258 shares of Common Stock
held by the Sellers as set forth on Annex A attached hereto
under the column “Registrable Shares,” registered
pursuant to the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Securities and
Exchange Commission thereunder (the “ Securities Act
”), for sale pursuant to an underwritten public offering;
and
WHEREAS, the Company has received
all the necessary consents and approvals of its lenders in order to
execute this agreement and consummate the purchase of the
Shares.
NOW, THEREFORE, in consideration of
the mutual representations, warranties, covenants and agreements
herein contained, the Parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1
Purchase and Sale of Shares
. Upon the terms and subject to the conditions set forth in
this Agreement, the Sellers agree to sell, grant, convey, assign,
transfer and deliver to the Company, and the Company agrees to
purchase and acquire from the Sellers (the “ Sale
”), at the Closing (as defined below), all right, title and
interest in and to the Shares, free and clear of any Liens (as
defined below). In consideration for the Sale, at the
Closing, the Company shall pay each Seller an amount in cash equal
to $28.88 per share, multiplied by the number of Shares to be sold
by such Seller at Closing (the “ Purchase Price
”).
Section 1.2
Closing . Subject to the satisfaction of the
conditions set forth in Article IV , the Company and
the Sellers shall consummate the sale of the Shares at a closing
(the “ Closing ”) to take place at the offices
of Weil, Gotshal & Manges LLP, located at 767 Fifth
Avenue, New York, New York, on August 3, 2009, at
10:00 a.m., New York Time, or at such other time and place or
on such other date as the Sellers and the Company may mutually
agree to in writing (such date and time of Closing being herein
collectively referred to as the “ Closing Date
”). At the Closing, (i) the Sellers will deliver
or cause to be delivered to the Company the Shares (through book
entry transfer or duly endorsed or accompanied by stock powers duly
executed in blank to the extent the Shares are in certificated
form) and (ii) the Company shall deliver the Purchase Price
pursuant to Section 1.1 to the Sellers by wire transfer
of
immediately available funds to an
account designated in writing by the Sellers one (1) Business
Day (as defined below) prior to the Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Sellers’
Representations and Warranties . The Sellers
represent and warrant to the Company, on a joint and several basis,
that the statements contained in this Section 2.1 are
true, correct and complete as of the date of this Agreement and
will be true, correct and complete as of the Closing Date (as
though made as of the Closing Date).
(a) The Agreement
. This Agreement has been duly authorized, executed and
delivered by the Sellers. This Agreement constitutes the
legal, valid and binding obligation of the Sellers, enforceable
against the Sellers in accordance with its terms and
conditions. Except for filings and notices required under the
Exchange Act and pursuant to customary margin accounts, the Sellers
need not give any notice to, make any filing with, or obtain any
authorization, consent or approval of any person or entity,
including, without limitation, any government or governmental
entity or agency, in order to execute and deliver this Agreement or
consummate the transactions contemplated by this
Agreement.
(b) Ownership of Shares
. The Sellers hold of record and/or beneficially own the
Shares as set forth on Annex A and, except for such shares
which are pledged pursuant to customary margin accounts, such
shares are free and clear of any mortgage, deed of trust, pledge,
hypothecation, lien, charge, covenant, condition, easement,
encumbrance, option, warrant, claim, demand, interest or any other
title defect, charge or restriction of any kind (each, a “
Lien ”). The Sellers will hold of record and/or
beneficially own the Shares as set forth on Annex A , and,
as of the Closing, such shares shall be free and clear of any
Liens. The Sellers are not a party to any option, warrant,
purchase right or other contract or commitment (other than this
Agreement) that could require the Sellers to sell, transfer, or
otherwise dispose of any of the Shares.
(c) All Authorizations
Obtained . The Sellers have the legal right and power,
and all authorizations and approvals required by law to enter into
this Agreement, to sell, transfer and deliver all of the Shares
pursuant to this Agreement and to comply with his other obligations
hereunder.
(d) Non-Contravention; No
Further Authorizations or Approvals Required . The
execution and delivery by the Sellers of, and the performance by
the Sellers of their obligations under, this Agreement
(i) will not conflict with or constitute a breach of, or
default under, with or without notice or the passage of time, any
other agreement or instrument to which any of the Sellers is a
party or by which any of the Sellers are or may be bound or under
which any of the Sellers are or may be entitled to any right or
benefit, (ii) will not result in any violation of any statute,
law, regulation, order or decree applicable to the Sellers of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over any of the
Sellers or their respective properties, except in the case of
clauses (i) and (ii) as would not individually or in the
aggregate be reasonably expected to impair in any material respect
the ability of the Sellers to consummate the transactions
contemplated by this Agreement, or (iii) will not result in
the imposition or creation of any Lien upon or with respect to the
Shares. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental
authority or agency, is required for the consummation by any of the
Sellers of the transactions contemplated in this Agreement, except
such as (A) have been obtained or made in connection with the
Sale and are in full force and effect and (B) will be obtained
or made in connection with the underwritten offering contemplated
in Section 5.2(a) hereof under the Securities
Act, applicable state securities or blue sky laws and from FINRA
and the Nasdaq Stock Market.
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(e) No Further Consents,
etc . No consent, approval or waiver is required under
any instrument or agreement to which any of the Sellers are a party
or by which any of the Sellers are or may be bound or under which
any of the Sellers are or may be entitled to any right or benefit,
in connection with the offering, sale or purchase by the Company of
any of the Shares which may be sold by the Sellers under this
Agreement or the consummation by any of the Sellers of any of the
other transactions contemplated hereby.
(f) Brokers . Except as
disclosed on Schedule 2.1(f) , the Sellers have no liability
to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this
Agreement.
(g) Experience and
Information . Each of the Sellers has experience as
investors in securities of companies and have such knowledge and
experience in financial or business matters to be capable of
evaluating the merits and risks of the Sale pursuant to this
Agreement and protecting his, her or its own interests in
connection with such Sale. The Sellers have had an
opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the Sale and the business,
properties, prospects and financial condition of the Company and to
obtain any additional information requested and has received and
considered all information the Sellers deem relevant to make an
informed decision regarding the Sale.
Section 2.2
The Company’s
Representations and Warranties . The Company represents and warrants to
the Sellers that the statements contained in this
Section 2.2 are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing
Date (as though made as of the Closing Date).
(a) The Agreement
. The Agreement has been duly authorized, executed and
delivered by the Company. This Agreement constitutes the
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms and
conditions. The Company need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval of
any person or entity, including, without limitation, any government
or governmental entity or agency in order to execute and deliver
this Agreement or consummate the transactions contemplated by this
Agreement.
(b) All Authorizations
Obtained . The Company has the legal right and power, and
all authorizations and approvals required by law and under its
charter or by-laws or other organizational documents to enter into
this Agreement, to purchase all of the Shares pursuant to this
Agreement and to comply with its other obligations
hereunder.
(c) Non-Contravention; No
Further Authorizations or Approvals Required . The
execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement (i) will
not result in any default under, or require the consent of any
other party to, the charter or by-laws or other organizational
documents of the Company, (ii) will not conflict with or
constitute a breach of, or default under, with or without notice or
the passage of time, any other agreement or instrument to which the
Company is or may be a party or by which it is or may be bound or
under which it is entitled to any right or benefit and
(iii) will not result in any violation of any statute, law,
regulation, order or decree applicable to the Company of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or its properties, except in the case of clauses (ii) and
(iii) as would not individually or in the aggregate be
reasonably expected to impair in any material respect the ability
of the Company to consummate the transactions contemplated by this
Agreement. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental
authority or agency, is required for the consummation by
the
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Company of the transactions contemplated in this
Agreement, except such as (A) have been obtained or made in
connection with the Sale and are in full force and effect and
(B) will be obtained or made in connection with the
underwritten offering contemplated in Section 5.2(a)
hereof, under the Securities Act, applicable state securities
or blue sky laws and from FINRA (as defined below) and the Nasdaq
stock market.
(d) Brokers’ Fees
. The Company has no liability to pay any fees or commissions
to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Sellers could become
liable or obligated.
ARTICLE III
COVENANTS
Section 3.1
Further Assurances .
The Sellers and the Company hereby agree to execute and deliver
such certificates, instruments and other documents, and to take all
other actions, as may be reasonably requested by the other Party in
order to carry out, evidence or give effect to the transactions
contemplated by this Agreement, including, without limitation, the
Sale.
Section 3.2
Expenses . Except as otherwise expressly provided herein,
the Sellers and the Company shall each pay their own expenses
(including, without limitation, legal expenses) incurred in
connection with the transactions contemplated by this Agreement,
including, without limitation, the Sale.
Section 3.3
Standstill;
Non-Disparagement; Voting .
(a) During the Standstill
Period, the Sellers agree that neither they nor any of their
affiliates, agents, associates or representatives shall, unless
specifically invited in writing by the Company, directly or
indirectly, in any manner:
(i) acquire, offer or propose
to acquire or agree to acquire, directly or indirectly, alone or in
concert with others, by purchase or otherwise, any direct or
indirect beneficial interest in any voting securities of the
Company or direct or indirect rights, warrants or options to
acquire, or securities convertible into or exchangeable for, any
voting securities of the Company (other than the purchase of Common
Stock in connection with the exercise of any outstanding stock
options and the acquisition of Common Stock pursuant to deferred
stock awards held by Dabah as of the date hereof, or by way of
stock dividends or other distributions or offerings made available
to holders of Common Stock generally on a pro rata basis,
provided that any such securities so received will be
subject to the provisions of this Section 3.3
);
(ii) make, or in any way
participate in, directly or indirectly, alone or in concert with
others, any “solicitation” of “proxies” to
vote (as such terms are used in the proxy rules of the
Securities and Exchange Commission (the “ SEC ”)
promulgated pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”)),
or seek to advise or influence in any manner whatsoever any Person
with respect to the voting of, any voting securities of the
Company;
(iii) form, join or in any way
participate in a “group” within the meaning of
Section 13(d)(3) of the Exchange Act with respect to any
voting securities of the Company;
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(iv) acquire, offer to acquire
or agree to acquire, directly or indirectly, alone or in concert
with others, by purchase, exchange or otherwise, (i) any of
the assets, tangible or intangible, of the Company or any of its
affiliates or (ii) direct or indirect rights, warrants or
options to acquire any assets of the Company or any of its
affiliates;
(v) arrange, or in any way
participate, directly or indirectly, in any financing for the
purchase of any voting securities of the Company or any securities
convertible into or exchangeable or exercisable for any voting
securities or assets of the Company;
(vi) otherwise act, alone or in
concert with others, to seek to propose to the Company or any of
its stockholders any merger, business combination, restructuring,
recapitalization or other transaction to or with the Company or
otherwise seek, alone or in concert with others, to control, change
or influence the management, board of directors or policies of the
Company or nominate any person as a director who is not nominated
by the then incumbent directors, or propose any matter to be voted
upon by the stockholders of the Company;
(vii) take any action that
might result in the Company having to make a public announcement
regarding any of the matters referred to in clauses
(i) through (vi) of this Section 3.3(a) ;
or
(viii) request a waiver from
the Company in connection with, or announce an intention to do, or
enter into any arrangement or understanding or discussions with
others to do, any of the actions restricted or prohibited under
clauses (i) through (vi) of this
Section 3.3(a) .
(b) From and after the date
hereof, neither the Sellers nor the Company nor any of its officers
or directors shall make, or cause to be made, any statement or
announcement that relates to and constitutes an ad hominem attack
on or otherwise disparages, the other Party (and, in the case of
the Company, its current or future officers or directors);
provided , however , that this non-disparagement
provision shall not in any way prevent the Company or the Sellers
from disclosing any information to their attorneys or in response
to a lawful subpoena or court order requiring disclosure of such
information or otherwise disclosing any information as required by
law; provided , further , that this non-disparagement
provision shall not in any way restrict Dabah or his agents in
their statements to other directors of the Company or at meetings
of the Company’s board of directors, during his membership on
the board of directors.
(c) The Sellers shall abstain
from voting all shares of Common Stock which they are entitled to
vote at the 2009 Annual Meeting of Stockholders of the Company, or
any adjournments thereof (the “ 2009 Meeting ”),
or vote all such shares in favor of the election of each of the
directors nominated by the Company’s board of directors at
the 2009 Meeting; in any case, the Sellers shall be present at the
2009 Meeting, either in person or by proxy. The Sellers shall
abstain from voting all shares of Common Stock which they are
entitled to vote, or vote all such shares in opposition, with
respect to any proposal (whether by proxy solicitation or
otherwise) that is not recommended by the Board at the 2009 Meeting
or any meeting of stockholders up to and including the 2010 Annual
Meeting of Stockholders, provided the Standstill Period is then in
effect.
(d) “ Standstill
Period ” shall mean twelve (12) months from the date of
this Agreement; provided that if the Offering is not
consummated due to the failure of the Company to comply with any of
its material obligations pursuant to this Agreement, then the
Standstill Period shall terminate on the date specified by Dabah as
the date of termination of the Offering.
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Section 3.4
Director Resignations .
On the Closing Date, Dabah and Stanley Silverstein shall each
deliver to the Company their resignations from the Board of
Directors of the Company, effective as of the Closing Date, in form
and substance reasonably acceptable to the Company.
Section 3.5
SEC Filings . The
Sellers covenant to timely file a Form 4 and an amendment to
Schedule 13D with the SEC reporting the execution of this Agreement
and the consummation of the transactions hereby, each in accordance
with the Exchange Act.
Section 3.6
Transfer of Common
Stock . The Sellers
shall select, in their sole discretion, the particular shares of
Common Stock (including Common Stock received upon the exercise of
stock options or the vesting of deferred stock awards (such stock,
“ Compensation Stock ”)) that will be
transferred to the Company in the Sale and the shares that will
constitute Registrable Shares, provided that all
Compensation Stock shall constitute Registrable Shares. The
Company shall treat the Sellers’ identification of Common
Stock as Shares or Registrable Shares consistently for all
purposes.
ARTICLE IV
CONDITIONS TO OBLIGATION TO
CLOSE
Section 4.1
Conditions to Obligation to
Close . The obligation of each of the Company and the
Sellers to consummate the Sale is subject to satisfaction of the
following conditions at and as of the Closing: (i) with
respect to the obligations of the Company, the representations and
warranties set forth in Section 2.1 above, and with
respect to the obligations of the Sellers, the representations and
warranties set forth in Section 2.2 above, shall be
true and correct in all material respects at and as of the Closing
Date as if such representations and warranties had been made on and
as of the Closing Date, (ii) there shall not be any
injunction, judgment, order decree or ruling in effect prohibiting
or otherwise preventing consummation of the transactions
contemplated under this Agreement, and (iii) with respect to
the obligations of the Company, Dabah and Stanley Silverstein shall
have delivered the resignations described in
Section 3.4 to the Company.
ARTICLE V
REGISTRATION OF COMMON
STOCK
Section 5.1
Certain Defined Terms
. For purposes of this
Agreement, the following terms shall have the meanings specified in
this Section 5.1 .
“ Affiliate ”
means, with respect to any Person, any Person who, directly or
indirectly through one or more intermediaries, controls, is
controlled by or is under common control with any
Person.
“ Business Day ”
means a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the laws
of the United States or the State of New York.
“ FINRA ” means
the Financial Industry Regulatory Authority.
“ Person ” or
“ person ” means any individual, corporation,
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision
thereof.
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“ register ,”
“ registered ” and “ registration
” refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and
the declaration or ordering of the effectiveness of such
registration statement.
“ Registrable Shares
” means, at any time, the Common Stock of the Company
beneficially owned by the Sellers on the date hereof and shares
underlying stock options held by Dabah, after giving effect to the
Sale as provided herein.
Section 5.2
Registration
.
(a) The Company shall file a
Registration Statement on Form S-3 ASR (or other appropriate
form for which the Company is eligible) to effect the registration
under the Securities Act of the Registrable Shares in a firm
commitment underwritten offering (together with related options
granted to the underwriter of such offering, the “
Offering ”) no earlier than September 8, 2009 and
no later than September 30, 2009 and shall use all
commercially reasonable efforts to cause the same to be declared
effective by the SEC as promptly as reasonably practicable after
such filing; provided , however , that:
(i) the Company shall be
permitted to defer the filing (but not the preparation) of the
registration statement for a period of up to 30 days from
September 30, 2009 if the Company or any of its Subsidiaries
are engaged in confidential negotiations or other confidential
business activities or are otherwise in possession of material
non-public information of the Company, the disclosure of which
would be required in such registration statement (but would not be
required if such registration statement were not filed), and the
Board of Directors of the Company determines in good faith that
such disclosure would be detrimental to the Company and its
stockholders (a “ Significant Company Development
&rdqu
