FORM OF AMENDED AND RESTATED PERFORMANCE STOCK AWARD AGREEMENT (2008 LONG-TERM INCENTIVE PROGRAM) THE CHILDREN’S PLACE RETAIL STORES, INC.
FORM
OF AMENDED AND RESTATED PERFORMANCE STOCK AWARD AGREEMENT
(2008
LONG-TERM INCENTIVE PROGRAM)
THE
CHILDREN’S PLACE RETAIL STORES, INC.
This
Amended and Restated Performance Stock Award Agreement (the “Agreement”),
entered into on January __, 2008 by and between The Children’s Place Retail
Stores, Inc., a Delaware corporation (the “Company”), and the
individual identified
in Exhibit
A
(the
“Awardee”), but effective as of December 10, 2007, amends, restates and
supercedes, the Performance Stock Award Agreement effective as of the “Award
Date” set forth in the attached Exhibit
A.
WHEREAS,
the Company desires to provide the Awardee an incentive to participate in the
success and growth of the Company through the opportunity to earn a proprietary
interest in the Company; and
WHEREAS,
to give effect to the foregoing intentions, the Company desires to grant the
Awardee a performance stock award of shares of the Company’s common stock, par
value $.10
per
share (the “Common Stock”) pursuant to the Amended and Restated 2005 Equity
Incentive Plan of The Children’s Place Retail Stores, Inc. (the
“Plan”);
WHEREAS,
on December 6, 2007 the Compensation Committee of the Board of Directors (the
“Committee”) awarded the number of Performance Shares determined in accordance
with Exhibit A of this Agreement to Awardee and such award was effective on
December 10, 2007;
WHEREAS,
on January 10, 2008, the Committee authorized certain changes to the terms
of
the Performance Stock Award Agreement and the Committee desires that such
changes be effective as of December 10, 2007;
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto agree as
follows:
1. Award.
Subject
to Sections 2 and 3 hereof, the Company shall deliver to the Awardee the number
of shares of Common Stock determined in accordance with Exhibit A (the
“Performance Shares”) to the extent, if any, that performance targets
established by the Committee no later than April 30, 2008 and incorporated
into
Exhibit A are achieved. Subject
to the earlier delivery of such shares or any portion thereof required by
Section 2 or 3 or Exhibit A hereof and the Awardee's continued employment with
the Company or a Subsidiary (other than termination due to death, Disability
or
a termination entitling Awardee to severance benefits under Section 4 of the
Change in Control Severance Agreement entered between the Company and Awardee
(the “Change in Control Severance Agreement”)), the shares shall be delivered to
the Awardee no later than 60 days after the end of the Company's 2010 fiscal
year (the “Delivery Date”). Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings as set forth in the Plan.
2. Termination
of Employment During Measurement Period.
If
Awardee’s employment with the Company and its Subsidiaries terminates after the
beginning of the Company's 2008 fiscal year and before the end of the Company's
2010 fiscal year (the “Measurement Period”) due to the Awardee’s Disability or
death, the
Awardee (or Awardee's estate) shall be entitled to the (1) the Performance
Shares, if any, that have been earned and otherwise would have been paid in
accordance with Exhibit A had Awardee continued in the employment of the Company
throughout the entire Measurement Period, plus (2) a prorated number of the
Target Number of Performance Shares available to be earned during the remainder
of the Measurement Period based on the ratio of the number of full calendar
months the Awardee was employed during the Measurement Period (minus any months
for which the Compensation Committee has determined whether Performance Shares
have been earned ) to the remaining number of calendar months in the Measurement
Period.
Such
Performance Shares, if any, shall be delivered to the Awardee (or Awardee’s
estate) on the Delivery Date to the extent the requisite performance targets
have been achieved. Except as provided in Section 3 below, if Awardee’s
employment with the Company and its Subsidiaries terminates before the Delivery
Date for any reason other than due to the Awardee’s Disability or death, the
Awardee shall not be entitled to receive any Performance Shares. Notwithstanding
anything contained herein to the contrary, delivery of Performance Shares to
a
“specified employee” as defined in Section 409A(a)(2)(B) of the Code shall be
deferred until the first business day of the seventh month following Awardee's
separation from service with the Company to the extent earlier delivery would
cause a violation of Section 409A of the Code.
3. Change
in Control.
(i) Acceleration
of Performance Shares.
In the
event that a Change in Control occurs after the date hereof or during the
Measurement Period and either (1) Awardee is entitled to severance benefits
under Section 4 of Awardee’s Change in Control Severance Agreement or (2) this
Agreement is not assumed by the purchaser or surviving company (as the case
may
be), then in such event, the Awardee shall be entitled to receive the greater
of: (1) the Performance Shares that the Awardee earned and would be entitled
to
receive at the end of the Performance Period based on achievement of the
Performance Metrics established by the Compensation Committee through the date
of the Change in Control or, if applicable, the Awardee's date of termination
of
employment (in each case, notwithstanding any minimum performance requirement
on
which the issuance of Performance Shares are conditioned) or (2) a percentage
of
the Target Number of Performance Shares that the Awardee would be entitled
to
receive at the end of the Performance Period, as follows: (a) if the Change
in
Control occurs on or before the first anniversary of the Award Date, 50% of
the
Target Number of Performance Shares shall be deemed earned and become payable;
(b) if the Change in Control occurs after the first anniversary of the Award
Date and on or before the 18-month anniversary of the Award Date, 75% of the
Target Number of Performance Shares and (c) if the Change in Control occurs
after the 18-month anniversary of the Award Date, 100% of the Target Number
of
Performance Shares. Notwithstanding anything herein to the contrary, for
purposes of determining the number of Performance Shares issuable in the event
of a Change of Control pursuant to this Section 3, any minimum performance
requirement on which the issuance of Performance Shares are conditioned shall
be
disregarded.
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(ii) Delivery
of Accelerated Performance Shares.
In the
event Performance Shares become issuable pursuant to this Section 3, the
underlying Common Stock shall be delivered to the Awardee on, or prior to,
(1)
the Date of Termination (as defined in the Change in Control Severance
Agreement), where Awardee is entitled to such Performance Shares pursuant to
Section 4 of the Change in Control Severance Agreement (or, if Awardee is a
“specified employee” as defined in Section 409A(a)(2)(B) of the Code, on the
first business day of the seventh month following the Awardee's separation
from
service with the Company to the extent earlier delivery would cause a violation
of Section 409A of the Code), or (2) the date of the Change in Control, where
this Agreement is not assumed by the purchaser or surviving company (as the
case
may be); provided, however, in lieu of such Performance Shares, Awardee shall
receive either (A) the same kind and amount of securities and/or other property
receivable by holders of outstanding shares of the Company’s Common Stock as
consideration in such Change in Control transaction, or (B) cash equal to the
“fair market value” of the Common Stock underlying such Performance Shares, or
property described in the foregoing clause (A), determined as of the date of
the
Change in Control. For
purposes of this Agreement, "fair market value" means the per-share price paid
for (or the corresponding value assigned to) the Common Stock in connection
with
the Change in Control (or, if such amount is payable in connection with the
Awardee's Date of Termination, the higher of such amount or the "Fair Market
Value" of the Common Stock as determined pursuant to Section 2(n) of the Plan
on
the date of payment). Notwithstanding
the foregoing, to the extent the Performance Shares are subject to Section
409A
of the Code, payment shall be made in connection with a Change in Control on
the
applicable date set forth above only if such Change in Control also qualifies
as
a "change
in
the ownership or effective control" of the Company or a "change in the ownership
of a substantial portion of the assets"
of the
Company, each as determined pursuant to Section 409A of the Code, and any
Performance Shares that cannot be delivered upon the occurrence of the Change
in
Control as a result of the application of this sentence shall instead be
delivered on the otherwise-applicable Delivery Date.
4. Transfer
Restrictions.
Prior
to delivery of any Performance Shares, the Awardee shall not be deemed to have
any ownership or shareholder rights (including without limitation dividend
and
voting rights) with respect to such shares, nor may the Awardee sell, assign,
pledge or otherwise transfer (voluntarily or involuntarily) any of the
Performance Shares prior to delivery thereof.
5. Adjustment
of Shares.
Notwithstanding anything contained herein to the contrary, in the event of
any
change in Common Stock resulting from a corporate transaction including, but
not
limited to, a subdivision or consolidation, reorganization, recapitalization,
merger, share split, reverse share split, share distribution, combination of
shares or the payment of a share dividend, the Performance Shares shall be
treated in the same manner in any such transaction as other Common
Stock.
6. Government
Regulations.
Notwithstanding anything contained herein to the contrary, the Company’s
obligation to issue or deliver certificates evidencing the Performance Shares
shall be subject to the terms of all applicable laws, rules and regulations
and
to such approvals by any governmental agencies or national securities exchanges
as may be required; provided that the Company shall use commercially reasonable
best efforts to ensure that the terms of all applicable laws, rules and
regulations and approvals by any governmental agencies or national securities
exchanges as may be required are timely satisfied or obtained, as
applicable.
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7. Withholding
Taxes.
The
Company shall have the right to withhold from amounts payable to the Awardee,
as
compensation or otherwise, or alternatively, to require the Awardee to remit
to
the Company, an amount sufficient to satisfy all federal, state and local
withholding tax requirements.
8. Awardee
Representations.
The
Awardee has reviewed with his own tax advisors the federal, state, local and
foreign tax consequences of the transactions contemplated by this Agreement.
The
Awardee is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents, if any, made to the
Awardee. The Awardee understands that the Awardee (and not the Company) shall
be
responsible for the Awardee’s own tax liability arising as a result of the
transactions contemplated by this Agreement.
9. Employment.
Neither
this Agreement nor any action taken hereunder shall be construed as giving
the
Awardee any right of continuing employment by the Company.
10. Notices.
Notices
or communications to be made hereunder shall be in writing and shall be
delivered in person, by registered mail, by confirmed facsimile or by a
reputable overnight courier service to the Company at its principal office
or to
the Awardee at his address contained in the records of the Company.
11. Governing
Law.
This
Agreement shall be construed under the laws of the State of Delaware, without
regard to conflict of laws principles.
12. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings relating to the subject matter of this Agreement. Notwithstanding
the foregoing, this Agreement and the Award made hereby shall be subject to
the
terms of the Plan. In the event of a conflict between this Agreement and the
terms of the Plan, the Plan shall control. To the extent that there is any
conflict between the terms and provisions of this Agreement and any other
agreement between the Awardee and the Company other than the Change in Control
Severance Agreement, the terms and provisions of this Agreement will
control.
13. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the Company and
the
Awardee and their respective permitted successors, assigns, heirs, beneficiaries
and representatives. This Agreement is personal to the Awardee and may not
be
assigned by the Awardee without the prior consent of the Company. Any attempted
assignment in violation of this Section shall be null and void.
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14. Amendment.
This
Agreement may be amended or modified only by a written instrument executed
by
both the Company and the Awardee.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement or caused their duly authorized
officer to execute this Agreement as of the date first written
above.
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THE
CHILDREN’S PLACE RETAIL STORES, INC.
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| By: | ||
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
Interim Chief Executive Officer
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| Date: ___________________________ | ||
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AWARDEE
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Name:
Date:
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EXHIBIT
A
| 1. | (a). |
Awardee’s
Name:
|
| (b). |
Awardee’s
Social Security Number:
|
| (c). |
Award
Date:
December
10, 2007
|
| (d). |
Target Number
of Performance Shares Available to be earned:
|
| (e). |
Maximum Number
of Performance Shares Available to be earned:
|
|
(f).
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Measurement
Period:
|
| (g). |
Performance
Requirements:
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Subject
to the terms and conditions set forth in the Performance Stock Award Agreement,
the Performance Shares shall be earned to the extent set forth
below.
Fiscal
Year 2008:
[to
come]. To the extent this goal is achieved for such fiscal year, the number
of
Performance Shares that are earned and vest with respect to Fiscal Year 2008
shall be delivered to the Awardee on the Delivery Date (or, if earlier, upon
a
Change in Control).
Fiscal
Year 2009:
[to
come]. To the extent this goal is achieved for such fiscal year, the number
of
Performance Shares that are earned and vest with respect to Fiscal Year 2009
shall be delivered to the Awardee on the Delivery Date (or, if earlier, upon
a
Change in Control).
Fiscal
Year 2010:
[to
come]. To the extent this goal is achieved for such fiscal year, the number
of
Performance Shares that are earned and vest with respect to Fiscal Year 2010
shall be delivered to the Awardee on the Delivery Date (or, if earlier, upon
a
Change in Control).
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