EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 16th day of
August, 2000, but is effective for all purposes as of February 7, 2000, by and
between CHICO'S FAS, INC. a Florida corporation (the "Employer"), and XXXXXX X.
XXXXXXXX, residing at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx 00000, (the
"Executive").
W I T N E S S E T H:
1. EMPLOYMENT. The Employer hereby employs the Executive, and the
Executive hereby accepts such employment, upon the terms and subject to the
conditions set forth in this Agreement.
2. TERM.
Subject to the provisions of termination as hereinafter
provided, the term of employment under this Agreement shall begin as of February
7, 2000 and shall continue through January 31, 2003; provided, however, that
beginning on February 1, 2003 and on each February 1st (each a "Renewal Date")
thereafter, the term of this agreement shall automatically be extended for one
additional year unless either party gives the other written notice of
termination at least ninety (90) days prior to any such Renewal Date.
3. COMPENSATION; REIMBURSEMENT, ETC.
(a) BASIC SALARY. The Employer shall pay to the Executive
as compensation for all services rendered by the Executive during the term of
this Agreement a basic annualized salary as follows (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:
PERIOD BASIC ANNUALIZED SALARY
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For the period from February 7, 2000
through January 31, 2001 $600,000
For the period from February 1, 2001
through January 31, 2002 $750,000
For the period from February 7, 2002
through January 31, 2003 and thereafter $850,000
The Board of Directors of the Employer shall have the right to increase the
Executive'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
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bonuses to the Executive 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 Executive.
(b) BONUSES. In addition to the Basic Salary to be paid
pursuant to Section 3(a) of this Agreement, during the term of this Agreement or
any renewal or extension, the Company shall pay to the Executive as incentive
compensation quarterly and annual bonuses in accordance with the incentive bonus
plan(s) adopted from time to time by the Board or the Compensation and Benefits
Committee of the Board (the "Committee"), as the case may be. Such plan for the
initial three year term of this Agreement ending January 31, 2003, among other
things, shall establish a "Target Bonus" equal to 50% of the Executive's Basic
Salary and a "Maximum Bonus" equal to 100% of the Executive's Basic Salary.
(c) STOCK OPTIONS. The Executive shall participate in
under the Employer's stock option plan or plans, in accordance with the terms
thereof, through the grant by the Committee of nonqualified options to purchase
shares of the Employer's common stock, as follows (the "Options"), provided that
Executive remains employed by the Employer on the approximate date of grant:
APPROXIMATE DATE OF GRANT NUMBER OF OPTIONS
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Effective Date of this Agreement 75,000
February 1, 2001 100,000
February 1, 2002 125,000
The date of grant for each tranche of Options shall be the respective day on
which the Committee acts to effectuate the respective grant. The initial
exercise price for each tranche of the Options shall be the closing price for
the Company's stock on the Nasdaq Stock Market (NMS) on the respective date of
grant. The Options shall be subject to the terms of the applicable stock option
plan under which they are issued.
(d) REIMBURSEMENTS. The Employer shall reimburse the
Executive for all reasonable expenses incurred by the Executive in the
performance of his duties under this Agreement; provided, however, that the
Executive must furnish to the Employer an itemized account, satisfactory to the
Employer, in substantiation of such expenditures.
(e) OTHER FRINGE BENEFITS. The Executive shall be
entitled to such fringe benefits including, but not limited to, medical and
insurance benefits as may be provided from time to time by the Employer to other
senior officers of the Employer.
(f) AUTOMOBILE. The Executive shall provide his own
automobile for use as an employee hereunder. The Executive shall at all times
maintain said automobile in good repair and condition and shall insure both
Employer and Executive against claims for bodily injury, death or
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property damage occurring as a result of its use to the limit of not less than
Five Hundred Thousand ($500,000.00) Dollars in respect to any one accident and
to the limit of not less than One Million ($1,000,000.00) Dollars in respect to
any one accident and to the limit of not less than One Hundred Thousand
($100,000.00) Dollars in respect to property damage.
(g) DEFERRAL OF CERTAIN COMPENSATION PAYMENTS.
Notwithstanding any other provisions of this Agreement to the contrary, any
portion of the cash compensation otherwise payable to the Executive under this
Agreement shall not be paid currently in cash to the Executive hereunder if
pursuant to the provisions of Section 162(m) of the Internal Revenue Code of
1986, as amended, or any similar or successor provision ("Section 162(m)"), the
Company would not be entitled to a current deduction for federal income tax
purposes in respect of the payment of such portion of the cash compensation (any
such compensation being referred to as "Section 162(m) Non-Deductible
Compensation"). The payment of any such Section 162(m) Non-Deductible
Compensation shall be deferred (the "Deferred Compensation"). The Deferred
Compensation shall be recorded on the books of the Company but shall be
unfunded. The Executive's right to receive the Deferred Compensation in cash
shall arise automatically no later than 30 days after the first time when the
deduction for federal income taxes by the Company in respect of the Section
162(m) Non-Deductible Compensation to which the Deferred Compensation relates
would no longer be prohibited by Section 162(m).
4. DUTIES. The Executive is engaged as the Chief Executive
Officer and President. In addition, the Executive 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.
5. EXTENT OF SERVICES; VACATIONS AND DAYS OFF.
(a) EXTENT OF SERVICES. During the term of his employment
under this Agreement, the Executive shall devote such time, energy and attention
during regular business hours to the benefit and business of the Employer as may
be reasonably necessary in performing his duties pursuant to this Agreement.
(b) VACATIONS. The Executive shall be entitled to
vacations with pay and to such personal and sick leave with pay in accordance
with the policy of the Employer as may be established from time to time by the
Employer and applied to other senior officers of the Employer.
6. FACILITIES. The Employer shall provide the Executive with a
fully furnished office, and the facilities of the Employer shall be generally
available to the Executive in the performance of his duties pursuant to this
Agreement, it being understood and contemplated by the parties that all
equipment, supplies and office personnel required in the performance of the
Executive's duties under this Agreement shall be supplied by the Employer.
3.
7. ILLNESS OR INCAPACITY, TERMINATION ON DEATH, ETC.
(a) DEATH OF EXECUTIVE. If the Executive dies during the
term of his employment, the Employer shall pay to the estate of the Executive
such compensation, including any bonus compensation earned but not yet paid, as
would otherwise have been payable to the Executive up to the end of the month in
which his death occurs plus six (6) month's Basic Salary. The Employer shall
have no additional financial obligation under this Agreement to the Executive or
his estate. After receiving the payments provided in this subparagraph (a), the
Executive and his estate shall have no further rights under this Agreement.
(b) DISABILITY OF EXECUTIVE
(i) During any period of disability, illness or
incapacity during the term of this Agreement which renders the Executive at
least temporarily unable to perform the services required under this Agreement
for a period which shall not equal or exceed one hundred and eighty (180)
continuous days, or one hundred and eighty (180) continuous days in any one (1)
year period, the Executive shall receive the compensation payable under Section
3(a) of this Agreement plus any bonus compensation earned but not yet paid, less
any benefits received by him under any disability insurance carried by or
provided by the Employer. All rights of the Executive under this Agreement
(other than rights already accrued) shall terminate as provided below upon the
Executive's permanent disability (as defined below), although the Executive
shall continue to receive any disability benefits to which he may be entitled
under any disability income insurance which may be carried by or provided by the
Employer from time to time.
(ii) The term "permanent disability" as used in
this Agreement shall mean the inability of the Executive, as determined by the
Board of Directors of the Employer, by reason of physical or mental disability
to perform the duties required of him under this Agreement for a period of one
hundred and eighty (180) days in any one-year period. Successive periods of
disability, illness or incapacity will be considered separate periods unless the
later period of disability, illness or incapacity is due to the same or related
cause and commences less than six months from the ending of the previous period
of disability. Upon such determination, the Board of Directors may terminate the
Executive's employment under this Agreement upon ten (10) days' prior written
notice. If any determination of the Board of Directors with respect to permanent
disability is disputed by the Executive, the parties hereto agree to abide by
the decision of a panel of three physicians. The Executive and Employer shall
each appoint one member, and the third member of the panel shall be appointed by
the other two members. The Executive agrees to make himself available for and
submit to examinations by such physicians as may be directed by the Employer.
Failure to submit to any such examination shall constitute a breach of a
material part of this Agreement.
4.
8. OTHER TERMINATIONS.
(a) VOLUNTARY TERMINATION BY EXECUTIVE.
(i) The Executive may terminate his employment
hereunder upon giving at least ninety (90) days' prior written notice. In
addition, the Executive shall have the right to terminate his employment
hereunder on the conditions and at the times provided for in Section 8(d) of the
Agreement.
(ii) If the Executive gives notice pursuant to
Section 8(a) above, the Employer shall have the right to relieve the Executive,
in whole or in part, of his duties under this Agreement (without reduction in
compensation through the termination date).
(b) TERMINATION BY EMPLOYER.
(i) Except as otherwise provided in this
Agreement, the Employer may terminate the employment of the Executive hereunder
only for good cause and upon written notice; provided, however, that no breach
or default by the Executive shall be deemed to occur hereunder unless the
Executive shall have failed to cure the breach or default within thirty (30)
days after he received written notice thereof indicating that it is a notice of
termination pursuant to this Section of this Agreement.
(ii) As used herein, "good cause" shall include:
(1) the Executive's conviction of
either a felony involving moral turpitude or any crime in connection
with his employment by the Employer which causes the Employer a
substantial detriment, but specifically shall not include traffic
offenses;
(2) actions by the Executive as an
executive officer of the Employer which clearly are contrary to the
best interests of the Employer;
(3) the Executive's willful failure to
take actions permitted by law and necessary to implement policies of
the Employer's Board of Directors which the Board of Directors has
communicated to him in writing, provided that minutes of a Board of
Directors meeting attended in its entirety by the Executive shall be
deemed communicated to the Executive;
(4) the Executive's continued failure
to attend to his duties as an executive officer of the Employer; or
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(5) any condition which either resulted
from the Executive's substantial dependence, as determined by the Board
of Directors of the Employer, on alcohol, or any narcotic drug or other
controlled or illegal substance. If any determination of substantial
dependence is disputed by the Executive, the parties hereto agree to
abide by the decision of a panel of three physicians appointed in the
manner and subject to the same penalties for noncompliance as specified
in Section 7(b)(ii) of this Agreement.
(iii) Termination of the employment of the
Executive for reasons other than those expressly specified in this Agreement as
good cause shall be deemed to be a termination of employment "without good
cause."
(c) CONTINUATION OF COMPENSATION FOLLOWING TERMINATION
WITHOUT GOOD CAUSE.
(i) If the Employer shall terminate the
employment of the Executive 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 Executive, 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 employee benefits (including without limitation the bonus
that would have otherwise 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 Executive, 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 Executive's covenants set forth in Section 10 and Section 11
are intended to and shall remain in full force and effect.
(ii) The parties agree that, because there can be
no exact measure of the damage that would occur to the Executive as a result of
a termination by the Employer of the Executive's employment without good cause,
the payments and benefits paid and provided pursuant to this Section 8(c) shall
be deemed to constitute liquidated damages and not a penalty for the Employer's
termination of the Executive's employment without good cause, and the Employer
agrees that the Executive shall not be required to mitigate his damages.
(d) RIGHTS UPON CHANGE IN CONTROL.
(i) If a Change in Control of the Employer, as
defined in Section 8(d)(ii) shall occur and the Executive shall:
(1) voluntarily terminate his
employment within one year following such Change in Control and such
termination shall be as a result of the Executive'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
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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 Executive'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 Executive 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 the greater
of 12 months or the number of full months remaining in the period from the date
of such termination through the termination date provided for in Section 2 of
this Agreement plus an amount equal to the aggregate of all bonuses earned by
the Executive with respect to the 12 month period ended on the fiscal quarter
end which next precedes such date of termination.
(ii) For purposes of this Agreement, a "Change in
Control" shall mean:
(1) the obtaining by any party of fifty
percent (50%) or more of the voting shares of the Employer pursuant to
a "tender offer" for such shares as provided under Rule 14d-2
promulgated under the Securities Exchange Act of 1934, as amended, or
any subsequent comparable federal rule or regulation governing tender
offers; or
(2) individuals who were members of the
Employer's Board of Directors immediately prior to any particular
meeting of the Employer's shareholders which involves a contest for the
election of directors fail to constitute a majority of the members of
the Employer's Board of Directors following such election; or
(3) the Employer's executing an
agreement concerning the sale of substantially all of its assets to a
purchaser which is not a subsidiary; or
(4) the Employer's adoption of a plan
of dissolution or liquidation; or
(5) the Employer's executing an
agreement concerning a merger or consolidation involving the Employer
in which the Employer is not the surviving corporation or if,
immediately following such merger or consolidation, less than fifty
percent
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(50%) of the surviving corporation's outstanding voting stock is held
by persons who are stockholders of the Employer immediately prior to
such merger or consolidation.
(iii) The provisions of Section 8(c) and this
Section 8(d) are mutually exclusive, provided, however, that if within one year
following commencement of an 8(c) payout there shall be a Change in Control as
defined in Section 8(d)(ii), then the Executive shall be entitled to the amount
payable to the Executive under Section 8(d)(i) reduced by the amount that the
Executive has received under Section 8(c) up to the date of the change in
control. The triggering of the lump sum payment requirement of this Section 8(d)
shall cause the provisions of Section 8(c) to become inoperative. The triggering
of the continuation of payment provisions of Section 8(c) shall cause the
provisions of Section 8(d) to become inoperative except to the extent provided
in this Section 8(d)(iii).
(e) COMPENSATION PAYABLE UPON TERMINATION BY EMPLOYER FOR
GOOD CAUSE OR VOLUNTARILY BY EMPLOYEE ABSENT CHANGE IN CONTROL. If the
employment of the Executive is terminated for good cause under Section 8(b)(ii)
of this Agreement, or if the Executive voluntarily terminates his employment by
written notice to the Employer under Section 8(a) of this Agreement without
reliance on Section 8(d), the Employer shall pay to the Executive any
compensation earned but not paid to the Executive prior to the effective date of
such termination. Under such circumstances, such payment shall be in full and
complete discharge of any and all liabilities or obligations of the Employer to
the Executive hereunder, and the Executive shall be entitled to no further
benefits under this Agreement.
(f) RELEASE. Payment of any compensation to the Executive
under this Section 8 following termination of employment shall be conditioned
upon the prior receipt by the Employer of a release executed by the Executive in
substantially the form attached to this Agreement as Exhibit A.
9. DISCLOSURE. The Executive agrees that during the term of his
employment by the Employer, he will disclose and disclose only to the Employer
all ideas, methods, plans, developments or improvements known by him which
relate directly or indirectly to the business of the Employer, whether acquired
by the Executive before or during his employment by the Employer. Nothing in
this Section 9 shall be construed as requiring any such communication where the
idea, plan, method or development is lawfully protected from disclosure as a
trade secret of a third party or by any other lawful prohibition against such
communication.
10. CONFIDENTIALITY. The Executive agrees to keep in strict
secrecy and confidence any and all information the Executive assimilates or to
which he has access during his employment by the Employer and which has not been
publicly disclosed and is not a matter of common knowledge in the fields of work
of the Employer. The Executive agrees that both during and after the term of his
employment by the Employer, he will not, without the prior written consent of
the Employer, disclose
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any such confidential information to any third person, partnership, joint
venture, company, corpora tion or other organization.
11. NONCOMPETITION AND NONSOLICITATION.
The Executive hereby acknowledges that, during and solely as a result
of his employment by the Employer, he has received and shall continue to
receive: (1) special training and education with respect to the operations of a
retail clothing chain and other related matters, and (2) access to confidential
information and business and professional contacts. In consideration of the
special and unique opportunities afforded to the Executive by the Employer as a
result of the Executive's employment, as outlined in the previous sentence, the
Executive hereby agrees as follows:
(a) NONCOMPETITION. During the term of the Executive's
employment, whether pursuant to this Agreement, any automatic or other renewal
hereof or otherwise, and, except as may be otherwise herein provided, for a
period of two (2) years after the termination of his employment with the
Employer, regardless of the reason for such termination, the Executive shall
not, directly or indirectly, enter into, engage in, be employed by or consult
with any business which competes with the business of the Employer by selling,
offering to sell, soliciting offers to buy, or producing, or by consulting with
others concerning the selling or producing of, any product substantially similar
to those now sold or produced by the Employer or included in the product lines
then developed by the Employer for sale or production, or by engaging in
transactions with any person who was a vendor of merchandise to the Employer;
provided that the restriction on the ability to deal with a vendor shall not
apply to dealing with any vendor from whom the Employer has not purchased or is
not expected to purchase in excess of $250,000 of merchandise in any one fiscal
year and shall not apply to dealing with a vendor in connection with any
transaction which does not involve, directly or indirectly, a product
substantially similar to those being sold or produced by the Employer. The
Executive shall not engage in such prohibited activities, either as an
individual, partner, officer, director, stockholder, employee, advisor,
independent contractor, joint venturer, consultant, agent, or representative or
salesman for any person, firm, partnership, corporation or other entity so
competing with the Employer. The restrictions of this Section 11 shall not be
violated by (i) the ownership of no more than 2% of the outstanding securities
of any company whose stock is traded on a national securities exchange or is
quoted in the Automated Quotation System of the National Association of
Securities Dealers (NASDAQ), or (ii) other outside business investments that do
not in any manner conflict with the services to be rendered by the Executive for
the Employer and that do not diminish or detract from the Executive's ability to
render his required attention to the business of the Employer.
(b) NONSOLICITATION. During his employment with the
Employer and, except as may be otherwise herein provided, for a period of two
(2) years following the termination of his employment with the Employer,
regardless of the reason for such termination, the Executive agrees he will
refrain from and will not, directly or indirectly, as an individual, partner,
officer, director, stockholder, employee, advisor, independent contractor, joint
venturer, consultant, agent, representative, salesman or otherwise solicit any
of the employees of the Employer to terminate their
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employment unless such solicitation is consented to in writing by an authorized
senior officer of the Employer (other than the Employer or a person related to
the Employee) prior to such solicitation.
(c) EXTENSION OF PROHIBITION PERIOD. The period of time
during which the Executive is prohibited from engaging in certain business
practices pursuant to Sections 11(a) or (b) shall be extended by any length of
time during which the Executive is in breach of such covenants.
(d) INDEPENDENT COVENANTS. It is understood by and
between the parties hereto that the foregoing restrictive covenants set forth in
Sections 11(a) through (c) are essential elements of this Agreement, and that,
but for the agreement of the Executive to comply with such covenants, the
Employer would not have agreed to enter into this Agreement. Such covenants by
the Executive shall be construed as agreements independent of any other
provision in this Agreement. The existence of any claim or cause of action of
the Executive against the Employer, whether predicated on this Agreement, or
otherwise, shall not constitute a defense to the enforcement by the Employer of
such covenants.
(e) DIVISIBLE COVENANTS. It is agreed by the Employer and
Executive that if any portion of the covenants set forth in this Section 11 are
held to be invalid, unreasonable, arbitrary or against public policy, then such
portion of such covenants shall be considered divisible both as to time and
geographical area. The Employer and Executive agree that, if any court of
competent jurisdiction determines the specified time period or the specified
geographical area applicable to this Section 11 to be invalid, unreasonable,
arbitrary or against public policy, a lesser time period or geographical area
which is determined to be reasonable, non-arbitrary and not against public
policy may be enforced against the Executive. The Employer and the Executive
agree that the foregoing covenants are appropriate and reasonable when
considered in light of the nature and extent of the business conducted by the
Employer.
12. SPECIFIC PERFORMANCE. The Executive agrees that damages at law
will be an insufficient remedy to the Employer if the Executive violates the
terms of Sections 9, 10 or 11 of this Agreement and that the Employer would
suffer irreparable damage as a result of such violation. Accordingly, it is
agreed that the Employer shall be entitled, upon application to a court of
competent jurisdiction, to obtain injunctive relief to enforce the provisions of
such Sections, which injunctive relief shall be in addition to any other rights
or remedies available to the Employer. The Executive agrees to pay to the
Employer all costs and expenses incurred by the Employer relating to the
enforcement of the terms of Sections 9, 10 or 11 of this Agreement, including
reasonable fees and disbursements of counsel (both at trial and in appellate
proceedings).
13. PAYMENT OF EXCISE TAXES.
(a) PAYMENT OF EXCISE TAXES. If the Executive is to
receive any (1) Change of Control Payment under Section 8(d) of this Agreement,
(2) any benefit or payment under Section 7 as a result of or following the death
or permanent disability of the Executive, or (3) any benefit or
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payment under Section 8(c) as a result of or following any termination of
employment hereunder Without Good Cause (such sections being referred to as the
"Covered Sections" and the benefits and payments to be received thereunder being
referred to as the "Covered Payments"), the Executive shall be entitled to
receive the amount described below to the extent applicable: If any Covered
Payment(s) under any of the Covered Sections or by the Employer under another
plan or agreement (collectively, the "Payments") are subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986 (as amended from
time to time, the "Code"), or any successor or similar provision of the Code
(the "Excise Tax"), the Employer shall pay the Executive an additional cash
amount (the "Gross Up") such that the net amount retained by the Executive after
deduction of any Excise Tax on the Payments (and any Excise Tax on the federal
income tax and Excise Tax on any amounts paid as Gross Up under this Section 13)
shall be equal to the Payments.
(b) CERTAIN ADJUSTMENT PAYMENTS. For purposes of
determining the Gross Up, the Executive shall be deemed to pay the federal
income tax at the highest marginal rate of taxation (currently 39.6%) in the
calendar year in which the payment to which the Gross Up applies is to be made.
The determination of whether such Excise Tax is payable and the amount thereof
shall be made upon the opinion of tax counsel selected by the Employer and
reasonably acceptable to the Executive. The Gross Up, if any, that is due as a
result of such determination shall be paid to the Executive in cash in a lump
sum within thirty (30) days of such computation. If such opinion is not finally
accepted by the Internal Revenue Service upon audit or otherwise, then
appropriate adjustments shall be computed (without interest but with additional
Gross Up, if applicable) by such tax counsel based upon the final amount of the
Excise Tax so determined; any additional amount due the Executive as a result of
such adjustment shall be paid to the Executive by the Employer in cash in a lump
sum within thirty (30) days of such computation, or if less than the Gross Up
any amount due the Employer as a result of such adjustment shall be paid to the
Employer by the Executive in cash in a lump sum within thirty (30) days of such
computation.
14. COMPLIANCE WITH OTHER AGREEMENTS. The Executive represents and
warrants that the execution of this Agreement by him and his performance of his
obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any Agreement
to which the Executive is a party or by which the Executive is or may be bound.
15. WAIVER OF BREACH. The waiver by the Employer of a breach of
any of the provisions of this Agreement by the Executive shall not be construed
as a waiver of any subsequent breach by the Executive.
16. BINDING EFFECT; ASSIGNMENT. The rights and obligations of the
Employer under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Employer. It is expressly acknowledged
that the provisions of Section 11 relating to noncompetition, nonsolicitation
and nonacceptance may be enforced by the Employer's successors and assigns. This
Agreement is a personal employment contract and the rights, obligations and
interests of the Executive hereunder may not be sold, assigned, transferred,
pledged or hypothecated.
11.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement
and supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof, including without limitation any
previously existing employment agreements between the parties. This Agreement
may be changed only by an agreement in writing signed by the party against whom
any waiver, change, amendment, modification or discharge is sought.
18. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
19. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida.
20. NOTICE. All notices which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given
when received if personally delivered; when transmitted if transmitted by
telecopy or similar electronic transmission method; one working day after it is
sent, if sent by recognized expedited delivery service; and five days after it
is sent, if mailed, first class mail, certified mail, return receipt requested,
with postage prepaid. In each case notice shall be sent to:
To the Employer: Chico's FAS, Inc.
00000 Xxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxx 00000
With a copy to: Xxxx X. Xxxxxx, Esquire
Trenam, Kemker, Scharf, Barkin
Xxxx, X'Xxxxx & Xxxxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxx 00000
To the Executive at his address herein first above written.
12.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
CHICO'S FAS, INC.
By: /s/ XXXX XXXXXX
-----------------------------------
Xxxx Xxxxxx, Chairperson,
Compensation & Benefits Committee
EXECUTIVE:
/s/ XXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxxx
13.
EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH XXXXXX X. XXXXXXXX
DATED AS OF FEBRUARY 7, 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:
2. This Release is effective on the date hereof and will continue in
effect as provided herein.
3. In consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Agreement, which the Executive
acknowledges are in addition to payment and benefits to which the Executive
would be entitled to 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:
(a) 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.
(b) 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
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foregoing, any claims under the Age Discrimination in
Employment Act, as amended, Title VII of the Civil Rights Act
of 1964, as amended, the Americans with Disabilities Act; and
(c) any and all claims of wrongful or unjust discharge or breach
of any contract or promise, express or implied.
4. 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.
5. The Executive further agrees and acknowledges that:
(a) The Release provided for herein releases claims to and
including the date of this Release;
(b) 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.
(c) 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
(d) 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.
6. The Executive agrees that the Executive will never file a
lawsuit or other complaint asserting any claim that is released in this Release.
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7. 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
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