Exhibit 10.36
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release (the
“Agreement”) is made this 9 th
day of July, 2007 between Steven Balasiano (the
“Employee”) and The Children’s Place Services
Company, LLC, its parent and its direct and indirect affiliated
corporations and other entities (collectively, the
“Employer” or the “Company”).
1.
Termination of Employment . The parties agree that the
Employee’s employment with the Employer shall terminate
effective July 20, 2007 (the “Separation
Date”).
2.
Separation Payment . (a) In consideration for entering into
this Agreement, the Employer shall pay to the Employee the sum of
Four Hundred Thirty Eight Thousand Dollars ($438,000), less legally
required payroll deductions (“Separation Payment”),
which sum shall be paid to Employee in accordance with the
Company’s regular payroll practices in twenty-six (26)
biweekly installments commencing the first pay period following the
Separation Date.
(b) The Company also
agrees to pay to Employee the sum of Twenty-Four Thousand Eight
Hundred Seven Dollars and Sixty-Nine Cents ($24,807.69), less
legally required payroll deductions, for Employee’s vacation
and personal days as of the Separation Date, which sum shall be
paid within (14) days of the Separation Date.
(c) The Company also
agrees to pay to Employee an additional amount equal to the bonus
payment, including any discretionary payment, Employee would have
received had Employee received a “3” or “Meets
Expectations” performance rating under and, other than with
regard to the termination of Employee’s employment hereunder,
subject to the terms and conditions of the Company’s Annual
Management Supplemental Program in effect for the 2007 fiscal year,
less legally required payroll deductions, which additional amount
shall be prorated based on the length of employment during the 2007
fiscal year. The Company agrees to pay said additional amount on
the date that the Employer makes bonus payments to eligible
employees but no later than April 15, 2008.
(d) The Employer
and Employee agree that Section 2 of the Transfer Restriction
Agreement dated January 27, 2006 (the “Transfer Restriction
Agreement”) shall be amended in its entirety to state the
following and such amendment shall supersede said section of the
Transfer Restriction Agreement: “The Transfer Restrictions
shall lapse with respect to the Options Shares on the date the
Severance Agreement and Release is executed by the Employee.”
Capitalized terms not otherwise defined in this subparagraph shall
have the meanings ascribed to them in the Transfer Restriction
Agreement. Moreover, the Employee acknowledges that Employee (i)
elected to have all outstanding stock options re-priced to the
measurement date price determined by the Company, (ii) agreed to
repay to the Company an amount equal to the difference between the
exercise price and the correct measurement date price for stock
options previously exercised by Employee, which amount is currently
estimated to be Three Thousand Seven Hundred Seventy-Three Dollars
($3,773) but is subject to final determination by the Company, and
(iii) agrees that Employee continues to be bound by said terms
with
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respect to
Employee’s stock options. The Employee also acknowledges that
the issuance of shares of the Company’s common stock upon the
exercise of any stock option has been temporarily suspended and
that Employee continues to be subject to such temporary suspension
until further notice from the Company. After such temporary
suspension has been lifted, the Employee shall have the same period
of time to exercise any vested but unexercised stock options as
other similarly situated employees, as determined by the Company in
its sole discretion, who have terminated their employment during
the temporary suspension.
(e) The parties
acknowledge that they shall continue to be bound by the Performance
Award Agreement dated January 30, 2006, including the amendment to
the Performance Award Agreement dated July 9, 2007 (collectively,
the “Performance Award Agreement”), which are attached
hereto as Exhibit A. For purposes of the Performance Award
Agreement, the Employee and Company acknowledge and agree that (1)
Employee’s separation from the Company is by mutual agreement
of the Employee and Company, and (2) Employee shall be deemed to
have been employed a full calendar month during the month of July
2007.
(f) The Employer
represents and warrants, and the Employee acknowledges, that the
consideration paid to the Employee under this Agreement is at least
equal to or exceeds the amount the Employee would ordinarily be
entitled to upon termination of the Employee’s
employment.
3.
Other Benefits . (a) Any and all other employment benefits
received by the Employee shall terminate effective as of the
Separation Date, except that in the event Employee elects to
continue medical, dental, and vision benefits though COBRA, the
Employer agrees to waive the applicable premium cost that Employee
would otherwise be required to pay for continued group health
coverage for Employee and his family under Employer’s medical
and dental plans for a period of twelve (12) months or the date
Employee commences full-time employment with another company that
offers comparable health benefits, whichever date is
sooner.
(b) The Company agrees
that, through November 30, 2007, Employee’s personal mail and
email shall be re-directed to a mail and email address as
instructed by Employee.
(c) 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.
4.
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
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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
executive
