EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 29th day of
August, 2000, but is effective for all purposes as of September 6, 2000, by and
between CHICO'S FAS, INC. a Florida corporation (the "Employer"), and XXXXXXX
XXXXXX, residing at 000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxxx 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
September 6, 2000 and shall continue through September 1, 2002; provided,
however, that beginning on September 1, 2001 and on each September 1st (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.
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 (the "Basic Salary") of $500,000, 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 Employer shall have the right to increase the Executive's
compensation from time to time by action of the Board of Directors and shall
evaluate such Base Salary for adjustment on the basis of a performance/merit
review within one year from the effective date of this Agreement and at least
annually thereafter so long as the term continues. 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 Executive in addition to
the bonuses provided for in Sections 3(b) and (c). 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) SIGN ON BONUS. Upon the execution of this Agreement,
the Executive shall receive from the Employer a lump sum payment equal to
$50,000 (the "Sign On Bonus").
(c) INCENTIVE 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 semi-annual 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 shall establish (i) for the initial twelve months of this
Agreement, among other things, a "Minimum Guaranteed Bonus" equal to 40% of the
Executive's Basic Salary and a "Maximum Bonus" equal to 80% of the Executive's
Basic Salary and (ii) thereafter, among other things, a "Target Bonus" equal to
40% of the Executive's Basic Salary and a "Maximum Bonus" equal to 80% of the
Executive's Basic Salary. Except as otherwise expressly provided in this
Agreement, to receive an incentive bonus, the Executive must be employed by the
Employer on the last day of the semi-annual period or the last day of the year
to which the incentive bonus relates, as the case may be. For the Employer's
fiscal semi-annual period ending February 3, 2001, the amount of any incentive
bonus shall be adjusted to take into account the portion of the semi-annual
period during which the Executive was employed by the Employer.
(d) STOCK OPTIONS. The Executive shall receive one or
more nonqualified stock options to purchase an aggregate of 250,000 shares of
the Employer's common stock. The right to purchase such stock shall be
nontransferable and shall vest in equal thirds on each one year anniversary date
of the execution of this Agreement over a 3 year period commencing one year
after the execution date of this Agreement and such vesting shall continue
during such period as the Executive is continuing to receive and/or entitled to
receive compensation under this Agreement. The option price on 30,000 of the
options shall be equal to 2/3 of the closing market price of the stock on the
business day next preceding the execution of this Agreement and the option price
on the balance of the options shall be equal to the closing market price of the
stock on the business day next preceding the execution of this Agreement. The
Employer may grant said stock options either under the Employer's currently
existing stock option plans ("Plans"), or in such other manner as may be
determined by the Employer; provided, however, that the terms pursuant to which
the stock option is granted, if granted outside of the Plans, shall be
substantially similar to the terms of grant contained in the Plans; except that
the vesting of such stock option shall be fully accelerated in the event that
the Executive's employment hereunder terminates following a "change of control"
(as hereinafter defined) as a result of termination of such employment by the
Employer without cause or termination of such employment by the Executive for
Good Reason (as hereinafter defined).
(e) REIMBURSEMENTS AND ADVANCES. The Employer shall
reimburse the Executive or shall make an advance to the Executive, as
appropriate, for all reasonable expenses incurred or scheduled to be incurred by
the Executive, as the case may be, 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. Notwithstanding the foregoing, as for travel expenses incurred in
the performance of his duties under this Agreement, the Executive shall be
entitled to secure reimbursement or advance, as applicable, for an upgrade to a
business class level of travel only where the travel involves a domestic flight
in excess of four (4) hours or an international flight.
2.
(f) OTHER FRINGE BENEFITS. The Executive shall be
entitled to such fringe benefits including, but not limited to, medical, dental,
vision and other insurance benefits and participation in the Employer's 401(k)
plan upon qualification for participation, as may be provided from time to time
by the Employer to other senior officers of the Employer.
(g) 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 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. The Employer shall provide the Executive
with an automobile allowance of $2,000 per month ($24,000 per year).
(h) RELOCATION EXPENSES. To assist the Executive in his
relocation to Xxx County in order to commence his employment hereunder, the
Employer shall reimburse the Executive for all reasonable and customary
relocation expenses incurred therewith by the Executive.
(i) COMMUTING EXPENSES. The Employer acknowledges that at
least for the first year of this Agreement the Executive may continue to
maintain a residence in the New Canaan, Connecticut area and will establish a
temporary residence in the Fort Xxxxx, Florida area. The Employer shall
reimburse the Executive for reasonable housing and commuting expenses incurred
by Executive in connection with the performance of his obligations under this
Agreement for a period of one year from the date of this Agreement of (1) up to
$2,000 per month in temporary living expenses in the Fort Xxxxx, Florida area
and (2) reasonable travel expenses between Executive's residence in New Canaan
and the Employer's corporate offices for up to two round trips per month. The
Employer will make such payments within 30 days after receipt of Executive's
written request therefore, which request shall be accompanied by documentation
supporting the request for reimbursement. Prior to the commencement of the
second year of the term of this Agreement, the parties will review whether it is
appropriate for the Executive to continue with such commuting and whether and to
what extent the Employer should continue to reimburse the Executive for such
expenses. If it is determined that it is appropriate for such commuting to
continue and for the Employer to continue any reimbursement of such commuting
expenses, the agreement to such effect will be reflected in an amendment to this
Agreement, in a side letter agreement between the parties or in such other
fashion as mutually agreed upon by the parties.
(j) DISCOUNT ON CLOTHING. During the term of this
Agreement, the Executive shall be entitled to receive the 50% employee discount
on purchases made at any of the Employer-owned Chico's stores, to the extent
that such privilege is being given to employees of Chico's and to the extent
that such purchases constitute normal levels of individual customer purchases.
3.
(k) 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 Executive Vice President and an
adjustment in such title shall be considered by the Board of Directors of the
Employer within one year following the effective date of this Agreement. In
addition, at the request of the Board, the Executive shall serve in the same or
other positions in any wholly owned subsidiary, joint venture or affiliate of
the Company, without any additional compensation. The Executive shall report
directly to the Chief Executive Officer. The Executive's duties and
responsibilities shall be commensurate with those customarily associated with an
executive vice president of a corporation comparable to the Employer, with such
specific duties and powers as shall be assigned by the Board consistent
therewith.
5. EXTENT OF SERVICES; VACATIONS AND DAYS OFF.
(a) EXTENT OF SERVICES. During the term of the
Executive's employment under this Agreement, except during customary vacation
periods and periods of illness, the Executive shall devote full-time energy and
attention during regular business hours to the benefit and business of the
Company as may be reasonably necessary in performing the Executive's duties
pursuant to this Agreement. Notwithstanding the foregoing, the Executive may (i)
serve on corporate, trade association, civic, religious or charitable boards or
committees, (ii) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (iii) manage personal investments, so long as such
activities do not interfere with the performance of the Executive's duties and
responsibilities and do not create a conflict of interest.
(b) VACATIONS. The Executive shall be entitled to
vacations with pay (initially four weeks each year) 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.
4.
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 and it
being further understood that a temporary office may need to be utilized until
the Employer completes the office space expansion project currently under
construction.
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) 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
5.
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.
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) 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;
(3) the Executive's continued failure
to attend to his duties as an executive officer of the Employer; or
6.
(4) 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
7.
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 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.
(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 (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
8.
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 any such confidential information to any third person,
partnership, joint venture, company, corporation or other organization.
11. 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
access to confidential information and
9.
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) 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 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.
(b) 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) shall be extended by any length of time
during which the Executive is in breach of such covenants.
(c) INDEPENDENT COVENANTS. It is understood by and
between the parties hereto that the foregoing restrictive covenants set forth in
Sections 11(a) through (b) 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.
(d) 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
10.
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. 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.
14. 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.
15. 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.
16. 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.
17 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
18 GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida.
19 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:
11.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
CHICO'S FAS, INC.
By: /s/ XXXXXX XXXXXXXX
-----------------------------------
Xxxxxx Xxxxxxxx, CEO and President
EXECUTIVE:
/s/ XXXXXXX XXXXXX
---------------------------------------
Xxxxxxx Xxxxxx
12.
EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH XXXXXXX XXXXXX
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 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.
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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.
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
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