Exhibit 10.52



 


Exhibit - 10.52



THE GYMBOREE CORPORATION




MANAGEMENT SEVERANCE PLAN




Amended and Restated

Effective May 1, 2003




ARTICLE I




PURPOSE, ESTABLISHMENT AND APPLICABILITY OF PLAN



     1.     Purpose. The purpose of this Plan is to provide for the payment of
severance benefits to Participants whose employment with the Company terminates
in an Involuntary Termination other than in connection with a Change of
Control. The Company believes that severance benefits of this kind will aid
the Company in attracting and retaining the highly qualified individuals that
are essential to its success.



     2.     Establishment of Plan. As of the Effective Date, the Company hereby
establishes the Plan, as set forth in this document.



     3.     Applicability of Plan. Subject to the terms of this Plan, the benefits
provided by this Plan shall be available to those Employees who, on or after
the Effective Date, receive a Notice of Participation.



     4.     Contractual Right to Benefits. This Plan and the Notice of
Participation establish and vest in each Participant a contractual right to the
benefits to which he or she is entitled pursuant to the terms thereof,
enforceable by the Participant against the Company.




ARTICLE II




DEFINITIONS AND CONSTRUCTION



     Whenever used in the Plan, the following terms shall have the meanings set
forth below.



     1.     Base Compensation. “Base Compensation” shall mean the gross annual
cash compensation paid to each Participant in the form of salary, exclusive of
bonuses, commissions, other incentive pay and other items of taxable
compensation, together with any increases in such compensation that may occur
from time to time. Base Compensation of a Participant shall be computed with
reference to the greatest Base Compensation received by that Participant in any
full payroll period during the twelve (12) months preceding the Participant’s
termination.



     2.     Board. “Board” shall mean the Board of Directors of the Company.



     3.     Cause. “Cause” shall mean (i) any act of personal dishonesty taken by
the Participant in connection with his or her responsibilities as an Employee
and intended to result in substantial personal enrichment of the Participant,
(ii) the Participant’s conviction of a felony


 







 




 that is injurious to the Company, (iii) a willful act by the Participant
which constitutes gross misconduct and which is injurious to the Company, (iv)
continued substantial violations by the Participant of the Participant’s
employment duties which are demonstrably willful and deliberate on the
Participant’s part after there has been delivered to the Participant a written
demand for performance from the Company which specifically sets forth the
factual basis for the Company’s belief that the Participant has not
substantially performed his duties, or (v) any act that would constitute a
material violation of the standards set forth in this Plan, including, without
limitation, the standards of Article V.



     4.     Change of Control. “Change of Control” shall mean the occurrence of
any of the following events:




               (i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the total voting power
represented by the Company’s then outstanding voting securities; or




               (ii) A change in the composition of the Board occurring within a two-year
period, as a result of which fewer than a majority of the directors are
Incumbent Directors. “Incumbent Directors” shall mean directors who either (A)
are directors of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but shall not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or




               (iii) The consummation of a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than fifty percent (50%)
of the total voting power represented by the voting securities of the Company
or such surviving entity outstanding immediately after such merger or
consolidation; or




               (iv) the consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets.



     5.     Code. “Code” shall mean the Internal Revenue Code of 1986, as amended.



     6.     Company. “Company” shall mean The Gymboree Corporation, any subsidiary
corporations, any successor entities as provided in Article VII hereof, and any
parent or subsidiaries of such successor entities.



     7.     Disability. “Disability” shall mean that the Participant has been
unable to perform his or her duties as an Employee as the result of incapacity
due to physical or mental illness, and the Participant is found to be disabled
within the meaning of the Company’s long-term disability plan.



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      8.      Effective Date. “Effective Date” shall mean May 1, 2003.



      9.      Employee. “Employee” shall mean an employee of the Company.



     10.     ERISA. “ERISA” shall mean the Employee Retirement Income Security Act
of 1974, as amended.



     11.     Involuntary Termination. “Involuntary Termination” shall mean an
involuntary termination of a Participant’s employment with the Company other
than for Cause; provided, however, that an Involuntary Termination shall not
occur for purposes of this Plan if the Participant accepts non-comparable
employment with the Company or is offered comparable employment with the
Company. A position will not be considered comparable under the foregoing
sentence if, at the time the Participant is offered the position: (a) the Base
Compensation for the new position would result in a reduction of more than 10%
when compared to the Base Compensation of the Participant’s then current
position or (b) the new position would relocate the Participant to a facility
or a location more than 50 miles from the location of the Participant’s then
current position and add more than 100 miles to his or her daily round-trip
commute.’



     12.     Notice of Participation. “Notice of Participation” shall mean an
individualized written notice of participation in the Plan from an authorized
officer of the Company.



     13.     Participant. “Participant” shall mean an individual who meets the
eligibility requirements of Article III.



     14.     Plan. “Plan” shall mean this The Gymboree Corporation Management
Severance Plan.



     15.     Plan Administrator. “Plan Administrator” shall mean the Board of
Directors of the Company, or its committee or designate, as shall be
responsible for administering the Plan.



     16.     Severance Payment. “Severance Payment” shall mean the payment of
severance compensation as provided in Article IV hereof.



     17.     Severance Payment Percentage. “Severance Payment Percentage” shall
mean, for each Participant, the Severance Payment Percentage set forth in such
Participant’s Notice of Participation.




ARTICLE III




ELIGIBILITY



     1.     Waiver. As a condition of receiving benefits under the Plan, an
Employee must sign a general waiver and release on a form provided by the
Company.



     2.     Participation in Plan. Each Employee who is designated by the Board
and who signs and timely returns to the Company a Notice of Participation
within the time set forth in such Notice shall be a Participant in the Plan. A
Participant shall cease to be a Participant in the


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 Plan (i) upon ceasing to be an Employee, or (ii) upon receiving written
notice from the Plan Administrator that the Participant is no longer eligible
to participate in the Plan, unless in either case such Participant is then
entitled to benefits hereunder. A Participant entitled to benefits hereunder
shall remain a Participant in the Plan until the full amount of the benefits
have been delivered to the Participant.




ARTICLE IV




SEVERANCE BENEFITS



     1.     Severance Pay Upon an Involuntary Termination. If the Participant’s
employment with the Company terminates as a result of Involuntary Termination,
the Participant shall be entitled to receive a Severance Payment equal to the
product obtained by multiplying the Participant’s Severance Payment Percentage
times the Participant’s Base Compensation. Any such Severance Payment shall be
paid in cash by the Company to the Participant in equal monthly installments
(less applicable withholding) over a twelve-month period. Payments shall cease
upon the Participant’s acceptance of an offer of any other employment. Should
the Participant’s base salary at the new place of employment be less than the
Participant’s final base salary at time of the Participant’s termination from
the Company, the Company will provide the Participant with the difference on
any remaining monthly installments in one lump sum. It is the Participant’s
responsibility to notify the Company immediately upon accepting an offer of any
other employment. Such Severance Payment shall be in lieu of any other
severance or severance-type benefits to which the Participant may be entitled
under any other Company-sponsored plan, practice or arrangement.





	 	 	 	EXAMPLE: Participant is Involuntarily Terminated as of July 1, 2003.
Participant’s Base Compensation is $150,000. The Severance Payment
Percentage set forth in the Participant’s Notice of Participation is 50%.
The Participant is entitled to a Severance Payment equal to 50% x
$150,000 = $75,000, payable in twelve equal monthly installments or until
an offer of employment is accepted.



     2.     Voluntary Resignation; Termination For Cause. If the Participant’s
employment terminates by reason of the Participant’s voluntary resignation (and
is not an Involuntary Termination), or if the Company terminates the
Participant for Cause, then the Participant shall not be entitled to receive
severance or other benefits under this Plan and shall be entitled only to those
benefits (if any) as may be available under the Company’s then existing benefit
plans and policies at the time of such termination.



     3.     Disability; Death. If the Participant’s employment terminates by
reason of the Participant’s death, or in the event the Company terminates the
Participant’s employment following his or her Disability, the Participant shall
not be entitled to receive severance or other benefits under this Plan and
shall be entitled only to those benefits (if any) as may be available under the
Company’s then existing benefits plans and policies at the time of such
termination.



     4.     Termination Following a Change of Control. In the event that a
Participant’s employment terminates for any reason that entitles him or her to
benefits under the Company’s Management Change of Control Plan, or any similar
plan, the Participant shall not be entitled to


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 receive severance benefits under this Plan and shall be entitled only to
those benefits (if any) as may be available under the Company’s other then
existing benefit plans and policies at the time of such termination.




ARTICLE V




FORFEITURE OF SEVERANCE BENEFITS



     1.     Future Services with the Company. If a Participant provides services
to the Company (as an employee, independent contractor, consultant or
otherwise) during the 12-month period following his or her Involuntary
Termination and does so without the prior written approval of the Company’s
General Counsel or his or her delegate, the Participant shall repay (or, if the
severance or other benefits under this Plan have not yet been paid or provided,
forfeit) a pro rata amount of such benefits previously paid by the Company.



     2.     Violation of the Company’s Code of Conduct, Code of Ethics or the
Participant’s Restrictive Covenants. Notwithstanding any other provision of
this Plan to the contrary, if it is determined by the Company that a
Participant has violated the Company’s code of conduct or code of ethics or
violated any restrictive covenants contained in the Participant’s general
waiver and release or any other restrictive covenants contained in any other
Company plan or program or agreement between the Company and the Participant,
the Participant shall be required to repay to the Company an amount equal to
the economic value of all severance and other benefits already paid or provided
to the Participant under this Plan and the Participant shall forfeit all other
entitlements under this Plan. Additional forfeiture provisions may apply under
other agreements between the Participant and the Company, and any such
forfeiture provisions shall remain in full force and effect.




ARTICLE VI




EMPLOYMENT STATUS; WITHHOLDING



     1.     Employment Status. This Plan does not constitute a contract of
employment or impose on the Participant or the Company any obligation to retain
the Participant as an Employee, to change the status of the Participant’s
employment, or to change the Company’s policies regarding termination of
employment. The Participant’s employment is and shall continue to be at-will,
as defined under applicable law. If the Participant’s employment with the
Company or a successor entity terminates for any reason, including (without
limitation) any termination prior to a Change of Control, the Participant shall
not be entitled to any payments, benefits, damages, awards or compensation
other than as provided by this Plan, or as may otherwise be available in
accordance with the Company’s established employee plans and practices or other
agreements with the Company at the time of termination.



     2.     Taxation of Plan Payments. All amounts paid pursuant to this Plan
shall be subject to regular payroll and withholding taxes.



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ARTICLE VII




SUCCESSORS TO COMPANY AND PARTICIPANTS



     1.     Company’s Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company’s business and/or assets
shall assume the obligations under this Plan and agree expressly to perform the
obligations under this Plan by executing a written agreement. For all purposes
under this Plan, the term “Company” shall include any successor to the
Company’s business and/or assets which executes and delivers the assumption
agreement described in this subsection or which becomes bound by the terms of
this Plan by operation of law.



     2.     Participant’s Successors. All rights of the Participant hereunder
shall inure to the benefit of, and be enforceable by, the Participant’s
personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees.




ARTICLE VIII




DURATION, AMENDMENT AND TERMINATION



     1.     Duration. This Plan shall terminate on May 1, 2008, unless, (a) this
Plan is extended by the Board, or (b) the Board terminates the Plan in
accordance with this Article VIII.2 below. A termination of this Plan pursuant
to the preceding sentences shall be effective for all purposes, except that
such termination shall not affect the payment or provision of compensation or
benefits earned by a Participant prior to the termination of this Plan.



     2.     Amendment and Termination. The Board shall have the discretionary
authority to amend the Plan in any respect, including as to the removal or
addition of Participants, or to terminate the Plan, in either case by
resolution adopted by a majority of the Board.




ARTICLE IX




ADMINISTRATION



The Plan Administrator has all power and authority necessary or convenient to
administer this Plan, including, but not limited to, the exclusive authority
and discretion: (a) to construe and interpret this Plan; (b) to decide all
questions of eligibility for and the amount of benefits under this Plan; (c) to
prescribe procedures to be followed and the forms to be used by the
Participants pursuant to this Plan; and (d) to request and receive from all
Participants such information as the Plan Administrator determines is necessary
for the proper administration of this Plan.



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ARTICLE X




CLAIMS PROCESS



     1.     Claim for Benefits. A Participant (or any individual authorized by
such Participant) has the right under ERISA and this Plan to file a written
claim for benefits. To file a claim, the Participant must send the written
claim to the Company’s Vice President, Human Resources . If such claim is
denied in whole or in part, the Participant shall receive written notice of the
decision of the Company’s Vice President, Human Resources, within 90 days after
the claim is received. Such written notice shall include the following
information: (i) specific reasons for the denial; (ii) specific reference to
pertinent Plan provisions on which the denial is based; (iii) a description of
any additional material or information necessary for the perfection of the
claim and an explanation of why it is needed; and (iv) steps to be taken if the
Participant wishes to appeal the denial of the claim, including a statement of
the Participant’s right to bring a civil action under Section 502(a) of ERISA
upon an adverse decision on appeal. If the Company’s Vice President, Human
Resources, needs more than 90 days to make a decision, he or she shall notify
the Participant in writing within the initial 90 days and explain why more time
is required, and how long is needed. If a Participant (or any individual
authorized by such Participant) submits a claim according to the procedures
above and does not hear from the Company’s Vice President, Human Resources,
within the appropriate time, the Participant may consider the claim denied.



     2.     Appeals. The following appeal procedures give the rules for appealing
a denied claim. If a claim for benefits is denied, in whole or in part, or if
the Participant believes benefits under this Plan have not been properly
provided, the Participant (or any individual authorized by such Participant)
may appeal this denial in writing within 60 days after the denial is received.
The Plan Administrator shall conduct a review and make a final decision within
60 days after receiving the Participant’s written request for review. If the
Plan Administrator needs more than 60 days to make a decision, it shall notify
the Participant in writing within the initial 60 days and explain why more time
is required. The Plan Administrator may then take 60 more days to make a
decision. If such appeal is denied in whole or in part, the decision shall be
in writing and shall include the following information: (i) specific reasons
for the denial; (ii) specific reference to pertinent Plan provisions on which
the denial is based; (iii) a statement of the Participant’s right to access and
receive copies, upon request and free of charge, of all documents and other
information relevant to such claim for benefits; and (iv) a statement of the
Participant’s (or representative’s) right to bring a civil action under Section
502(a) of ERISA. If the Plan Administrator does not respond within the
applicable time frame, the Participant may consider the appeal denied. If a
Participant (or any individual authorized by such Participant) submits a
written request to appeal a denied claim, the Participant has the right to
review pertinent Plan documents and to send a written statement of the issues
and any other documents to support the claim.



     3.     Limitations Period. A Participant must pursue the claim and appeal
rights described above before seeking any other legal recourse regarding a
claim for benefits. The Participant may thereafter file an action in a court
of competent jurisdiction, but he or she must do so within 180 days after the
date of the notice of decision on appeal or such action will be forever barred.



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ARTICLE XI




NOTICE AND ASSIGNMENT



     1.     General. Notices and all other communications contemplated by this
Plan shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Participant,
mailed notices shall be addressed to him or her at the home address which he or
she most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and
all notices shall be directed to the attention of its Vice President, Human
Resources.



     2.     Notice by the Participant of Involuntary Termination by the Company.
In the event that the Participant determines that an Involuntary Termination
has occurred, the Participant shall give written notice to the Company that
such Involuntary Termination has occurred. Such notice shall be delivered by
the Participant to the Company within ninety (90) days following the date on
which such Involuntary Termination occurred, shall indicate the specific
provision or provisions in this Plan upon which the Participant relied to make
such determination and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such determination. The failure
by the Participant to include in the notice any fact or circumstance which
contributes to a showing of Involuntary Termination shall not waive any right
of the Participant hereunder or preclude the Participant from asserting such
fact or circumstance in enforcing his or her rights hereunder.



     3.     Assignment by Company. The Company may assign its rights under this
Plan to an affiliate, and an affiliate may assign its rights under this Plan to
another affiliate of the Company or to the Company; provided, however, that no
assignment shall be made if the net worth of the assignee is less than the net
worth of the Company at the time of assignment; provided, further, that the
Company shall guarantee all benefits payable hereunder. In the case of any
such assignment, the term “Company” when used in this Plan shall mean the
corporation that actually employs the Participant.




ARTICLE XII




GOVERNING LAW, JURISDICTION AND VENUE



     This Plan is intended to be, and shall be interpreted as, an unfunded
employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) for
a select group of management or highly compensated employees (within the
meaning of Section 2520.104-24 of Department of Labor Regulations) and it shall
be enforced in accordance with ERISA. Any Participant or other person filing
an action related to this Plan shall be subject to the jurisdiction and venue
of the federal or state courts of the State of California.



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THE GYMBOREE CORPORATION MANAGEMENT SEVERANCE PLAN




NOTICE OF PARTICIPATION




	 	 	 
	To:	 	
Name
	 	 	 
	Date:	 	
         , 200



     The Board has designated you as a Participant in the Plan, a copy of which
is attached hereto. The terms and conditions of your participation in the Plan
are as set forth in the Plan and herein. The terms defined in the Plan shall
have the same defined meanings in this Notice of Participation. As a condition
to receiving benefits under the Plan, you must sign a general waiver and
release in the form provided by the Company.



     In the event that you are entitled to a Severance Payment under the Plan,
you will receive [50% or 100%] (the “Severance Payment Percentage”) of your
Base Compensation payable in equal monthly installments (less applicable
withholding) over a twelve-month period. Payments shall cease upon your
acceptance of an offer of any other employment. Should your base salary at the
new place of employment be less than your final base salary at the time of your
termination from the Company, the Company will provide you with the difference
on any remaining monthly installments in one lump sum. Notwithstanding the
foregoing sentence, you will be required to repay the Severance Payment in the
event you compete against the Company or violate the Company’s Code of Conduct,
Code of Ethics or applicable restrictive covenants, as further described in
Article V of the Plan.



     If you agree to participate in the Plan on these terms and conditions,
please acknowledge your acceptance by signing below. Please return the signed
copy of this Notice of Participation within ten (10) days of the date set forth
above to:




	 	 	 	 	 
	 	 	
Vice President, Human Resources

The Gymboree Corporation

700 Airport Boulevard

Suite 200

Burlingame, California 94010

	 	 



Your failure to timely remit this signed Notice of Participation will result in
your immediate removal from the Plan. Please retain a copy of this Notice of
Participation, along with a copy of the Plan, for your records.




	 	 	 	 	 
	Date:	 	 	Signature: