CHICO’S FAS, INC. 2002 OMNIBUS STOCK AND INCENTIVE PLAN PERFORMANCE AWARD AGREEMENT Capitalized terms not defined herein have the meaning given such terms in the Amended Chico’s FAS, Inc. 2002 Omnibus Stock and Incentive Plan.
Exhibit 10.26
Capitalized terms not defined herein have the meaning given such terms in the
Amended Chico’s FAS, Inc. 2002 Omnibus Stock and Incentive Plan.
Amended Chico’s FAS, Inc. 2002 Omnibus Stock and Incentive Plan.
This Performance Award Agreement (the “Agreement”) is dated as of (the “Grant
Date”), and is entered into between Chico’s FAS, Inc., a Florida corporation (the “Company”), and
Name (the “Employee”).
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Committee”)
is authorized to make grants of Performance Awards under the Company’s 2002 Omnibus Stock and
Incentive Plan, as amended (the “Plan”);
WHEREAS, on or about , the Committee approved the Performance Award grant,
pursuant to the Plan, to the Employee on the Grant Date provided that the Employee continued to be
employed as an employee of the Company on the Grant Date;
WHEREAS, the Committee determined and established the performance measures and goals that must
be achieved in order for the Employee to earn and vest in the Performance Award;
WHEREAS, the Committee intends the Performance Award to be “performance-based compensation” as
such term is used in Section 162(m) of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises set forth
below, the parties hereto agree as follows:
1. Grant of Performance Shares. The Company hereby sets forth the right for the
Employee to receive X shares of Common Stock of the Company at the end of the defined Restriction
Period, subject to the achievement of the Performance Goals set forth in Paragraph 2. This award
is subject to all conditions described in this Performance Award Agreement. The Performance Award
is offered pursuant to and to implement in part the Chico’s FAS, Inc. 2002 Omnibus Stock and
Incentive Plan (as amended and in effect from time to time, the “Plan”) and is subject to the
provisions of the Plan, which is hereby incorporated herein and is made a part hereof, as well as
the provisions of this Performance Award Agreement. The Employee agrees to be bound by all of the
terms, provisions, conditions and limitations of the Plan and this Performance Award Agreement.
All capitalized terms have the meanings set forth in the Plan unless otherwise specifically
provided in this Performance Award Agreement. All references to specified paragraphs pertain to
paragraphs of this Performance Award Agreement unless otherwise specifically provided.
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2. Performance Goals. The Employee’s right to receive the Performance Award is
subject to (a) the vesting provisions set forth in Paragraph 5 and (b) the achievement of the
following Performance Goals:
| EPS Achieved* | % of Performance | |||
| Award Earned | ||||
| Threshold | $.XX | 100% | ||
| < $.XX | 0 % |
|
|
|||
| * | EPS is the Company’s earnings per share entry point for the Chico’s FAS, Inc. Management Bonus Plan for the Company’s 2011 fiscal year. | ||
3. No Transfer of Unvested Shares. During the period that any shares underlying the
Performance Award are unvested as set forth in Paragraphs 4, 5 and 6, the Employee shall have no
rights to or with respect to such shares, and such unvested shares shall not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, other than by will, the laws of
descent and distribution or by qualified domestic relations order. No right or benefit hereunder
shall in any manner be liable for or subject to any debts, contracts, liabilities, or torts of the
Employee.
4. Risk of Forfeiture. Subject to Paragraphs 6, should the Employee’s employment
(defined below) with Company and each subsidiary (as the term “subsidiary” is defined in the Plan)
terminate prior to the end of the Restriction Period set forth in Paragraph 5, the Employee shall
forfeit the right to receive the Performance Award that would otherwise have vested at the end of
the Restriction Period.
5. Vesting Dates. Subject to Paragraph 6, if the Performance Goals set forth in
Paragraph 2 are achieved, the restrictions applicable to the Performance Award will lapse as
follows: (i) the restrictions as to one-third of the Performance Award will lapse one year after
the Grant Date; (ii) the restrictions as to an additional one-third of the Performance Award will
lapse two years after the Grant Date; and (iii) the restrictions as to the remaining one-third of
the Performance Award will lapse three years after the Grant Date. The table below sets forth such
lapse date for the Performance Award:
| Number of Shares | Date Restrictions | |
| of Common Stock | Lapse | |
| X | February 24, 2012 | |
| X | February 24, 2013 | |
| X | February 24, 2014 |
6. Termination of Service; Change in Control. Voluntary or involuntary termination of
service as an Employee, retirement, death or disability of the Employee, or occurrence of a Change
in Control, shall affect the Employee’s rights under this Performance Award Agreement as follows:
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a. Voluntary Termination or Termination for Cause. If, other than as specified below,
the Employee voluntarily terminates service as a Employee of the Company or if the Employee’s
position as an employee of the Company is terminated by the Company for Cause prior to the last day
of the Restriction Period, then the Employee shall forfeit the right to receive all shares of the
Performance Award. ”Cause” shall have the same meaning it does in Employee’s employment agreement
with the Company.
b. Involuntary Termination Without Cause. If, following the achievement of the
Performance Goals, the Employee’s position as an employee of the Company is terminated by the
Company without cause prior to the last day of the Restriction Period, then a pro-rata number of
shares underlying the Performance Award earned pursuant to Paragraph 2 shall become fully vested,
such pro-rata amount being equal to a fraction, the numerator of which is the number of months
(rounded to the next highest whole number) the Employee remained an Employee of the Company
following the Grant Date and the denominator of which is 36.
c. Change in Control. If a Change in Control shall occur following the achievement of
the Performance Goals, but prior to the last day of the Restriction Period, the Performance Award
earned pursuant to Paragraph 2 shall immediately become fully vested. “Change in Control” shall
have the same meaning it does in Employee’s employment agreement with the Company.
d. Death or Disability. If the Employee’s position as an employee of the Company is
terminated by death or disability following the achievement of the Performance Goals, but prior to
the last day of the Restriction Period, then the Performance Award earned pursuant to Paragraph 2
shall immediately become fully vested. Disability for purposes herein shall mean the Employee’s
inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which can be expected to
last for a continuous period of not less than 12 months.
e. Definition of Employment. For purposes of this Performance Award Agreement,
“employment” means employment by the Company or a subsidiary. In this regard, neither the transfer
of the Employee from employment by the Company to employment by a subsidiary nor the transfer of
the Employee from employment by a subsidiary to employment by the Company nor the transfer of the
Employee from employment by a subsidiary to employment by another subsidiary shall be deemed to be
a termination of employment of the Employee. Moreover, the employment of the Employee shall not be
deemed to have been terminated because of absence from active employment on account of temporary
illness or during authorized vacation or during temporary leaves of absence from active employment
granted by the Company or a subsidiary for reasons of professional advancement, education, health,
or government service, or during military leave for any period if the Employee returns to active
employment within 90 days after the termination of military leave, or during any period required to
be treated as a leave of absence by virtue of any valid law or agreement. The Plan Administrator’s
determination in good faith regarding whether a termination of employment of any type or disability
has occurred shall be conclusive and determinative.
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7. Ownership Rights. Subject to the restrictions set forth herein and subject to
Paragraph 9, the Employee is entitled to all voting and ownership rights applicable to the
Restricted Stock, including the right to receive any dividends that may be paid on Restricted
Stock, whether or not vested. (Information on Chico’s stock, Annual Reports, and other relevant
information may be found at xxx.xxxxxxxxx.xxx.)
8. Reorganization of Company and Subsidiaries. The existence of this Performance
Award Agreement shall not affect in any way the right or power of the Company or its stockholders
to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in
the Company’s capital structure or its business, or any merger or consolidation of the Company or
any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the
Performance Award or the rights thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
9. Adjustment of Shares. In the event of stock dividends, spin-offs of assets or
other extraordinary dividends, stock splits, combinations of shares, recapitalizations, mergers,
consolidations, reorganizations, liquidations, issuances of rights or warrants and similar
transactions or events involving the Company (“Recapitalization Events”), then for all purposes
references herein to Common Stock or to Performance Award shall mean and include all securities or
other property (other than cash) that holders of Common Stock of the Company are entitled to
receive in respect of Common Stock by reason of each successive Recapitalization Event, which
securities or other property (other than cash) shall be treated in the same manner and shall be
subject to the same restrictions as the underlying Performance Award.
10. Certain Restrictions. By accepting the Performance Award, the Employee agrees
that if at the time of delivery of certificates for shares of Performance Award issued hereunder
any sale of such shares is not covered by an effective registration statement filed under the
Securities Act of 1933 (the “Act”), the Employee will acquire the Performance Award for the
Employee’s own account and without a view to resale or distribution in violation of the Act or any
other securities law, and upon any such acquisition the Employee will enter into such written
representations, warranties and agreements as the Company may reasonably request in order to comply
with the Act or any other securities law or with this Performance Award Agreement.
11. Confidentiality. By accepting the Restricted Stock, Employee agrees that it will
not use or disclose Company’s Confidential Information, except in the faithful performance of the
Employee’s duties for the Company. For purposes of this Agreement, Confidential Information
includes trade secrets and other confidential and proprietary information and materials pertaining
to, among other things: (a) designs (including garment and fabric) and fashion trends; (b)
sourcing, manufacturing, merchandising, licensing and supply chain processes, techniques and plans;
(c) advertising, marketing and promotional plans; (d) technical and business strategies and
processes; (e) sales, revenues, profits, margin, expenses, and other financial information; (f)
relationships between Company and its customers, its vendors and its employees; (g) customers’
personal identifying information; (h) stores and real estate, including expansion and relocation
plans; (i) store operations, including policies and procedures; (j) compensation, benefits,
performance history and other information relating to Company’s
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employees; and (k) acquisitions, mergers, divestitures, and agreements regarding franchising and
distribution. Confidential Information does not include information that is, or becomes, generally
known within the industry or generally available to the public (unless through Employee’s improper
disclosure).
12. Nonsolicitation. By accepting the Restricted Stock, Employee agrees that for a
period of twelve months following separation from employment for any reason, (whether voluntary or
involuntary), Employee will not directly or indirectly solicit, induce or attempt to influence any
Company employee (including Company’s affiliates’ employee) to leave the Company’s employ, nor will
Employee assist anyone in soliciting or recruiting a Company employee (including Company’s
affiliates’ employee) for purposes of being employed or retained as a consultant or contractor
elsewhere.
13. Noncompliance Reporting. By accepting the Restricted Stock, Employee agrees that
if, at any time, Employee learns of information suggesting conduct by an officer or employee of
Company (including of Company’s affiliates) or a member of Company’s Board of Directors that is
unlawful, unethical or violative of any Company policy, regardless of the source of such
information, Employee will report promptly such information to Company through any of the Company’s
internal mechanisms available for the reporting of such conduct such as, for instance, the
Company’s Ethics and Compliance Hotline.
14. Amendment and Termination. No amendment or termination of this Performance Award
Agreement which would impair the rights of the Employee shall be made by the Board, the Committee
or the Plan Administrator at any time without the written consent of the Employee. No amendment or
termination of the Plan will adversely affect the right, title and interest of the Employee under
this Performance Award Agreement or to Performance Award granted hereunder without the written
consent of the Employee.
15. No Guarantee of Employment. This Performance Award Agreement shall not confer
upon the Employee any right with respect to continuance of employment or other service with the
Company or any subsidiary, nor shall it interfere in any way with any right the Company or any
subsidiary would otherwise have to terminate such Employee’s employment or other service at any
time.
16. Withholding of Taxes. The Company shall have the right to (i) make deductions
from the number of shares of Performance Award otherwise deliverable upon satisfaction of the
conditions precedent under this Performance Award Agreement (and other amounts payable under this
Performance Award Agreement) in an amount sufficient to satisfy withholding of any federal, state
or local taxes required by law, or (ii) take such other action as may be necessary or appropriate
to satisfy any such tax withholding obligations.
17. No Guarantee of Tax Consequences. Neither the Company nor any subsidiary nor the
Plan Administrator makes any commitment or guarantee that any federal or state tax treatment will
apply or be available to any person eligible for benefits under this Performance Award Agreement.
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18. Severability. In the event that any provision of this Performance Award Agreement
shall be held illegal, invalid, or unenforceable for any reason, such provision shall be fully
severable, but shall not affect the remaining provisions of this Performance Award Agreement and
this Performance Award Agreement shall be construed and enforced as if the illegal, invalid, or
unenforceable provision had never been included herein.
19. Governing Law. The Performance Award Agreement shall be construed in accordance
with the laws of the State of Florida to the extent federal law does not supersede and preempt
Florida law.
20. Miscellaneous Provisions.
(a) Not a Part of Salary. The grant of an Award under the Plan is not
intended to be a part of the salary of the Employee.
(b) Conflicts With Any Employment Agreement. If the Employee has an employment
agreement with the Company or any of its subsidiaries which contains different or additional
provisions relating to vesting of Performance Award awards, or otherwise conflicts with the terms
of this Performance Award Agreement, the provisions of the employment agreement shall govern.
(c) Electronic Delivery and Signatures. The Employee hereby consents and agrees to
electronic delivery of any Plan documents, proxy materials, annual reports and other related
documents including by way of the Investor Relations section of the Company’s website, at
Xxxxxx.xxx. If the Company establishes procedures for an electronic signature system for delivery
and acceptance of Plan documents (including documents relating to any programs adopted under the
Plan), the Employee hereby consents to such procedures and agrees that his or her electronic
signature is the same as, and shall have the same force and effect as, his or her manual signature.
The Employee consents and agrees that any such procedures and delivery may be effected by a third
party engaged by the Company to provide administrative services related to the Plan, including any
program adopted under the Plan
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