EXHIBIT 10.2
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT is made and entered into this
13th day of September, 2000, to be effective for all purposes as of August 21,
2000, by and between CHICO'S FAS, INC., a Florida corporation (the "Company"),
and XXXXX X. XXXXXXX, residing at 00000 Xxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxx, 00000
(the "Employee").
W I T N E S S E T H:
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WHEREAS, the parties hereto have entered into that certain Employment
Agreement dated June 28, 1995 by and between the Company and the Employee (the
"Employment Agreement"); and
WHEREAS, the Company and the Employee have agreed to amend the terms of the
Employment Agreement in certain respects as set forth in this Amendment No. 1 to
Employment Agreement (the "Amendment").
1. TERM
Section 2 of the Employment Agreement shall be replaced in its entirety by
the following:
Subject to the provisions of termination as hereinafter provided, the
term of employment under this Agreement shall be effective as of the date
first above written and shall continue through February 28, 2002; provided,
however, that beginning on February 28, 2001 and on each February 28th
(each a "Renewal Date") thereafter, the term of this agreement shall
automatically be extended for one additional year so that on each Renewal
Date the then remaining unexpired term of this Agreement shall be two
years, unless either party gives the other written notice of non-renewal at
least ninety (90) days prior to any such Renewal Date.
2. COMPENSATION
Sections 3(a) and (b) of the Employment Agreement shall be replaced in
their entirety by the following, with the specified annualized salary effective
from February 7, 2000:
(a) The Employer shall pay to the Employee as compensation for
all services rendered by the Employee during the term of this Agreement a
basic annualized salary of $275,000 per year (the "Basic Salary"), or such
other sum as the parties may agree on from time to time, payable monthly or
in other more frequent installments, as determined by the Employer. The
Board of Directors of the
1.
Employer shall have the right to increase the Employee's compensation from
time to time by action of the Board of Directors. In addition, the Board of
Directors of the Employer, in its discretion, may, with respect to any year
during the term hereof, award a bonus or bonuses to the Employee in
addition to the bonuses provided for in Section 3(b). The compensation
provided for in this Section 3(a) shall be in addition to any pension or
profit sharing payments set aside or allocated for the benefit of the
Employee.
(b) In addition to the Basic Salary paid pursuant to Section
3(a), the Employer shall pay as incentive compensation a semi annual bonus
based upon the Employee's performance and computed in accordance with the
incentive bonus plan adopted each year by the Board of Directors of the
Employer.
3. DUTIES
Section 4 of the Employment Agreement shall be replaced in its entirety as
follows:
4. Duties. The Employee is engaged as the Chief Operating Officer.
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In addition, the Employee shall have such other duties and hold such other
offices as may from time to time be reasonably assigned to him by the Board
of Directors of the Employer.
4. OTHER TERMINATIONS
Section 8(c)(i) of the Employment Agreement shall be replaced in its
entirety as follows:
(i) If the Employer shall terminate the employment of the
Employee without good cause effective on a date earlier than the
termination date provided for in Section 2 (with the effective date of
termination as so identified by the Employer being referred to herein as
the "Accelerated Termination Date"), the Employee, until the termination
date provided for in Section 2 or until the date which is twelve (12)
months after the Accelerated Termination Date, whichever is later, shall
continue to receive the Basic Salary and other compensation and employee
benefits (including without limitation the bonus that would otherwise have
been payable during such compensation continuation period under the bonus
plan in effect immediately before the Accelerated Termination Date) that
the Employer has heretofore in Section 3 agreed to pay and to provide for
the Employee, in each case in the amount and kind and at the time provided
for in Section 3; provided that, notwithstanding such termination of
employment, the Employee's covenants set forth in Section 10 and Section 11
are intended to and shall remain in full force and effect.
Section 8(d)(i) of the Employment Agreement shall be replaced in its
entirety as follows:
2.
(i) If a Change in Control of the Employer, as defined in
Section 8(d)(ii) shall occur and the Employee shall:
(1) voluntarily terminate his employment within one
year following such Change in Control and such termination shall be as
a result of the Employee's good faith determination that as a result
of the Change in Control and a change in circumstances thereafter
significantly affecting his position, he can no longer adequately
exercise the authorities, powers, functions or duties attached to his
position as an executive officer of the Employer; or
(2) voluntarily terminate his employment within one
year following such Change in Control, and such termination shall be
as a result of the Employee's good faith determination that he can no
longer perform his duties as an executive officer of the Employer by
reason of a substantial diminution in his responsibilities, status or
position; or
(3) have his employment terminated by the Employer for
reasons other than those specified in Section 8(b)(ii) within one (1)
year following such Change in Control;
then in any of the above three cases, the Employee shall have, instead of
the further rights described in Section 3(a), the right to immediately
terminate this Agreement and a nonforfeitable right to receive, payable in
a lump sum, the sum of the monthly amounts of his Basic Salary for a period
equal to 36 months plus three times his most recently set annual target
bonus; provided, however, no payments or benefits pursuant to this Section,
together with any other payments to the Employee under this Agreement or
otherwise, shall cause the total of such payments to exceed the maximum
amount allowable as a deduction to the Employer for federal income tax
purposes, as may be determined in the reasonable discretion of the
Employer, under any applicable provision of law or regulations.
The following Section 8(f) shall be added:
(f) Release. Payment of any compensation to the Employee under this
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Section 8 following termination of employment shall be conditioned upon the
prior receipt by the Employer of a release executed by the Employee in
substantially the form attached to this Agreement as Exhibit A.
5. MISCELLANEOUS
3.
Unless specifically modified, added or deleted by this Amendment No.1, all
terms and provisions of the Employment Agreement remain in full force and effect
throughout the term of the Employment Agreement, as amended.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the day
and year first above written.
CHICO'S FAS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
"Company"
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
"Employee"
4.
EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH XXXXX X. XXXXXXX
DATED AS OF _______________, 2000
Release
WHEREAS, _______________________________ (the "Executive") is an employee
of Chico's FAS, Inc., (the "Company") and is a party to the Employment Agreement
dated __________________ (the "Agreement");
WHEREAS, the Executive's employment has been terminated in accordance with
Section 8___ of the Agreement; and
WHEREAS, the Executive is required to sign this Release in order to receive
the payment of any compensation under Section 8 of the Agreement following
termination of employment.
NOW, THEREFORE, in consideration of the promises and agreements contained
herein and other good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, and intending to be legally bound, the Executive
agrees as follows:
1. This Release is effective on the date hereof and will continue in
effect as provided herein.
2. In consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Agreement (collectively, the "Release
Consideration), which the Executive acknowledges are in addition to payments and
benefits to which the Executive would be entitled but for the Agreement, the
Executive, for the Executive and the Executive's dependents, successors,
assigns, heirs, executors and administrators (and the Executive and their legal
representatives of every kind), hereby releases, dismisses, remises and forever
discharges the Company, its predecessors, parents, subsidiaries, divisions,
related or affiliated companies, officers, directors, stockholders, members,
employees, heirs, successors, assigns, representatives, agents and counsel
(collectively the "Released Party") from any and all arbitrations, claims,
including claims for attorney's fees, demands, damages, suits, proceedings,
actions and/or causes of action of any kind and every description, whether known
or unknown, which the Executive now has or may have had for, upon, or by reason
of any cause whatsoever ("claims"), against the Released Party, including but
not limited to:
(1) any and all claims arising out of or relating to Executive's
employment by or service with the Company and the Executive's
termination from the Company.
(2) any and all claims of discrimination, including but not limited to
claims of discrimination on the basis of sex, race, age, national
origin, marital status, religion or handicap, including, specifically,
but without limiting the generality of the foregoing, any claims under
the Age Discrimination in Employment Act, as
A-1.
amended, Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act; and
(3) any and all claims of wrongful or unjust discharge or breach of any
contract or promise, express or implied.
Notwithstanding the foregoing, nothing herein shall be considered as releasing
the Company from its obligations to pay and/or provide the Release Consideration
or as an agreement by the Executive not to file a lawsuit to enforce the payment
and/or providing of the Release Consideration.
3. The Executive understands and acknowledges that the Company does
not admit any violation of law, liability or invasion of any of the Executive
rights and that any such violation, liability or invasion is expressly denied.
The consideration provided for this Release is made for the purpose of settling
and extinguishing all claims and rights (and every other similar or dissimilar
matter) that the Executive ever had or now may have against the Company to the
extent provided in this Release. The Executive further agrees and acknowledges
that no representations, promises or inducements have been made that the Company
other than as appear in the Agreement.
4. The Executive further agrees and acknowledges that:
(1) The Release provided for herein releases claims to and including the
date of this Release;
(2) The Executive has been advised by the Company to consult with legal
counsel prior to executing this Release, has had an opportunity to
consult with and to be advised by legal counsel of the Executive's
choice, fully understands the terms of this Release, and enters into
this Release freely, voluntarily and intending to be found.
(3) The Executive has been given a period of 21 days to review and
consider the terms of this Release, prior to its execution and that
the Executive may use as much of the 21 day period as the Executive
desires; and
(4) The Executive may, within 7 days after execution, revoke this Release.
Revocation shall be made by delivering a written notice of revocation
to the Chief Financial Officer at the Company. For such revocation to
be effective, written notice must be actually received by the Chief
Financial Officer at the Company no later than the close of business
on the 7th day after the Executive executes this Release. If the
Executive does exercise the Executive's right to revoke this Release,
all of the terms and conditions of the Release shall be of no force
and effect and the Company shall not have any obligation to make
payments or provide benefits to the Executive as set forth in Sections
8 of the Agreement.
5. The Executive agrees that the Executive will never file a lawsuit
or other complaint asserting any claim that is released in this Release.
A-2.
6. The Executive waives and releases any claim that the Executive
has or may have to reemployment after________________________________________.
IN WITNESS WHEREOF, the Executive has executed and delivered this Release
on the date set forth below.
Dated:_______________________
Executive
A-3.
