Employment Transition, Resignation, And Release Agreement
Employment Transition, Resignation, And Release Agreement
This confidential resignation and release agreement (“Agreement”) is made and entered into the
10th day of March, 2006 by and between Chico’s FAS, Inc., a Florida corporation (the
“Company”), and Xxxxx X. Xxxxx (“Xxxxx”).
This Agreement supercedes all previous agreements between Xxxxx and the Company. In
consideration of the promises set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, agree as
follows:
1. Effective as of March 11, 2006, Xxxxx voluntarily resigns from his position as Executive Vice
President and Chief Marketing Officer of the Company and the Company hereby accepts this
resignation. Effective as of the end of the day on March 10, 2006, Xxxxx has no further privileges,
duties or obligations in such capacity. Xxxxx Xxxxx 00, 0000, Xxxxx shall continue to perform
substantially the same duties that he has performed over the last six years.
2. From March 11, 2006, through and including February 28, 2007 Xxxxx shall be available to work as
a non-officer consulting employee and shall handle marketing projects as assigned to him by the
Company’s Chief Executive Officer or the Company’s Chief Operating Officer.
3. From the date of this Agreement through March 10, 2006 and as long as Xxxxx has not breached any
of his obligations under this Agreement, the Company shall pay Xxxxx (1) his annualized basic
salary of $450,000; (2) any bonuses that may relate to fiscal year 2005 that would have otherwise
been payable to Xxxxx and (3), such other fringe benefits as provided to other Chief Officers
including, without limitation, the vesting of stock options through February 28, 2006.
From March 11, 2006 through February 28, 2007 and as long as Xxxxx has not breached any of his
obligations under this Agreement, CRS shall pay Xxxxx (1) a monthly basic salary of $15,000; and
(2) such other fringe benefits as provided to other senior executives, including, without
limitation, health benefits and the vesting in due course of any previously granted stock options.
Xxxxx will not be entitled to receive any car allowance, bonus, or super bonus. The Company retains
the right, in its sole discretion, to award Xxxxx a discretionary bonus based on Xxxxx’x
performance. Xxxxx shall not be required to work at the Company’s offices more than 5 days per
month.
4. From the date of this Agreement up to and including March 10, 2006, Xxxxx may terminate this
Agreement with ninety days written notice to the Company. Thereafter, Xxxxx may terminate the
Agreement with thirty days written notice to the Company.
If the Company terminates Xxxxx’x employment without cause prior to February 28, 2007, the
Company will pay Xxxxx, in full and complete satisfaction of any and all claims Xxxxx may have
against the company related to this Agreement, the remaining total of any unpaid monies Xxxxx would
have received under this Agreement through February 28, 2007. Xxxxx will also be
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permitted to exercise any options that have vested as of the date of the termination
consistent with the Company’s stock option plan.
If the Company terminates Xxxxx for cause or his employment terminates due to his death or
disability, then the Company only owes Xxxxx those amounts earned and owed through the date of
termination and Xxxxx will only be entitled to exercise options vested as of the date of
termination. For the purposes of this Agreement, the phrase “for cause” means Xxxxx’x (i) breach or
default of any of the material terms of this Agreement and his failure to cure the breach or
default within thirty (30) days after he received written notice thereof, (ii) conviction of either
a felony involving moral turpitude or any crime in connection with his employment by the Company
which causes the Company a substantial detriment, (iii) actions that clearly are contrary to the
best interests of the Company, or (iv) directly or indirectly entering into, engaging in, being
employed by, or consulting with J. Xxxx, Xxx Xxxxxx, Xxxxxx’x, Coldwater Creek, The Limited Brands,
Fourth & Towne, and Liz Claiborne (or any successor entities of any of such companies or
divisions).
5. Xxxxx shall continue to be bound in all respects by all applicable provisions of the Company’s
Xxxxxxx Xxxxxxx Policy, Code of Ethics and Associate Nondisclosure Agreement that he previously
signed. Such continuing obligation shall be in addition to Xxxxx’x obligations arising under this
Agreement and under applicable law.
6. Xxxxx agrees that from the date of this Agreement and continuing for a period of six months
after his last date of employment with the Company, Xxxxx shall 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 Company to terminate their employment or solicit, attempt to
entice away, or offer to employ any of the Company’s current employees. For the purposes of this
restriction: the terms “solicit,” “attempt to entice away,” and “offer to employ” do not include
searches for employees, through general recruitment efforts or otherwise, that are not focused on
persons employed by the Company.
7. Xxxxx shall be required to execute a copy of the release agreement substantially in the form
attached as Appendix A (a “Release”) as a condition to this Agreement. Xxxxx also agrees to execute
a Release on March 10, 2006 as a condition of continuing as a consulting employee and for the
compensation and benefits during that period.
8. This Agreement shall be binding upon and inure to the benefit of Xxxxx and his heirs,
administrators, representatives, executors, successors and assigns, and shall be binding upon and
inure to the benefit of Releasees and each of them, and to their respective heirs, administrators,
representatives, executors, successors and assigns. This Agreement shall be construed and
interpreted in accordance with the laws of the state of Florida.
9. This Agreement shall constitute the full and complete agreement between the parties concerning
its subject matter and fully supersedes any and all other prior agreements or understandings
between the parties regarding the subject matter hereto. This Agreement shall not
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be modified or amended except by a written instrument signed by both Xxxxx and an authorized
representative of the Company.
10. The unenforceability or invalidity of any particular provision of this Agreement shall not
affect its other provisions and to the extent necessary to give such other provisions effect, they
shall be deemed severable.
11. Xxxxx warrants, agrees that he has been encouraged to seek advice from anyone of his choosing
regarding this Agreement, including his attorney, accountant or tax advisor prior to his signing
it; that this Agreement represents written notice to do so; and that he has been given the
opportunity and sufficient time to seek such advice; and that he fully understands the meaning and
contents of this Agreement. XXXXX UNDERSTANDS THAT HE HAD THE RIGHT TO TAKE UP TO TWENTY-ONE (21)
DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS AGREEMENT. Xxxxx further represents
and warrants that he was not coerced, threatened or otherwise forced to sign this Agreement and
that his signature appearing hereinafter is voluntary and genuine, is given freely and is given
with intent to be bound.
12. XXXXX UNDERSTANDS THAT HE MAY REVOKE THIS AGREEMENT BY NOTIFYING THE CHIEF FINANCIAL OFFICER OF
THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN (7) DAYS OF HIS EXECUTION OF THIS AGREEMENT
AND THAT THIS AGREEMENT IS NOT EFFECTIVE UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAYS. FOR SUCH
REVOCATION TO BE EFFECTIVE, WRITTEN NOTICE MUST BE ACTUALLY RECEIVED BY THE CHIEF FINANCIAL OFFICER
OF THE COMPANY AT THE COMPANY’S OFFICES NO LATER THAN THE CLOSE OF BUSINESS ON THE 7TH DAY AFTER
XXXXX EXECUTES THIS AGREEMENT. IF XXXXX EXERCISES HIS RIGHT TO REVOKE THIS AGREEMENT, ALL OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT SHALL BE OF NO FORCE AND EFFECT AND THE COMPANY SHALL NOT
HAVE ANY OBLIGATION TO MAKE THE PAYMENTS OR PROVIDE THE BENEFITS TO XXXXX PROVIDED FOR IN THIS
AGREEMENT. XXXXX UNDERSTANDS THAT UPON THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD WITHOUT SUCH A
REVOCATION, THIS AGREEMENT WILL BE BINDING UPON
HIS AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS AND ASSIGNS AND WILL BE
IRREVOCABLE.
| WITNESS: | CHICO’S FAS, INC. | |||||
/s/
Xxxxx Xxxxxx
|
By: /s/ Xxxxx X. Xxxxxxx | |||||
| Xxxxx X. Xxxxxxx President and Chief Executive Officer |
||||||
WITNESS: |
||||||
| /s/ Xxxxxxx Xxxxx | /s/ Xxxxx Xxxxx | |||||
| Xxxxx Xxxxx | ||||||
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APPENDIX A—GENERAL RELEASE
In consideration of the payments to be made and the benefits to be received by Xxxxx pursuant
to this Agreement, which Xxxxx acknowledges are in addition to payment and benefits to which Xxxxx
would not be entitled to but for this Agreement, Xxxxx, for himself, his dependents, successors,
assigns, heirs, executors and administrators (and their respective 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, successors, assigns, representatives, agents, counsel, the
Company’s and its affiliates’ benefit plans, including the respective 401(k) plans, the respective
benefit plans’ trustees, administrators, and all other fiduciaries, employees, and their agents
(collectively, “Releasees”), of and from any and all arbitrations, claims (including claims for
attorneys’ fees), demands, damages, suits, proceedings, actions and/or causes of action of any kind
and every description, whether known or unknown, which Xxxxx, and his heirs, executors,
administrators, agents, distributees, beneficiaries, successors in interest and assignees, now have
or in the future may have, by reason of any matter, cause or thing whatsoever from the beginning of
the world to the date of this Agreement (“claims”), against the Releasees, including but not
limited to the following (except that such Release shall not operate to release the Company from
its express obligations under this Agreement):
Any and all claims for salary, wages, compensation, monetary relief, employment benefits,
including but not limited to, any claims for benefits under, or contribution to, an employee
benefit plan, profit sharing or any retirement plan, capital stock, bonuses, merit and longevity
increases, and all other benefits of all kind, earnings, backpay, front pay, liquidated, and other
damages, interest, attorney’s fees and costs, compensatory damages, punitive damages, damage to
character, damage to reputation, emotional distress, mental anguish, depression, injury, impairment
in locating employment, financial loss, pain and suffering, injunctive and declaratory relief
arising from his employment with the Company or its subsidiaries or his separation thereof;
provided, however, notwithstanding anything to the contrary set forth herein, that this General
Release shall not extend to (x) benefit claims under employee pension benefit plans in which Xxxxx
is a participant by virtue of his employment with the Company or its subsidiaries, and (y) any
obligation expressly assumed or acknowledged under this Agreement by the Company.
Any and all claims growing out of, resulting from, or connected in any way to Xxxxx’x
employment with the Company or its subsidiaries, and/or the separation thereof, including any and
all claims for discrimination, including but not limited to claims of discrimination on the basis
of race, national origin, color, religion, handicap or disability, age, sex, harassment of any
kind, including sexual harassment, retaliation, whistleblowing, breach of contract, rescission,
promises, claims under the Employee Retirement Income Security Act of 1974 “ERISA”) [29 U.S.C.
Sections 1001B1461], as amended, including ERISA Section 510 and any claims to benefits under
any and all bonus, severance or any other similar plan sponsored by the Company now and hereafter,
torts of all kinds, claims or rights under state and federal whistleblower legislation, including
Sections 448.101B448.105, Florida Statutes, as amended, the consolidated Omnibus Budget
Reconciliation Act of 1985 [Pub. L. 99-509], as amended (“COBRA”), the Florida Health Insurance
Coverage Continuation Act (“FHICCA”), the Family and Medical
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Leave Act [29 U.S.C. Sections
2601-2654], as amended (“FMLA”), the Americans with Disabilities Act [42
U.S.C. Sections 12101-12213], as amended (“ADA”), the Age Discrimination in Employment Act, as
amended (“ADEA”), the Polygraph Protection act, the Internal Revenue Service Code [Title 26,
U.S.C.], as amended, the Older Workers Benefit Protection Act [29 U.S.C. Section 621-630], as
amended (“OWBPA”), the Equal Pay Act [29 U.S.C. Section 206(d)], as amended (“EPA”), Title VII of
the Civil Rights Act of 1964 [42 U.S.C. Section 2000e-2000e-17] as amended (“Title VII”), the
Florida Civil Rights Act of 1992 [Sections 760.02-760.11, Fla. Stats.], as amended (“FCRA”), the
Uniformed Services Employment and Reemployment Rights Act of 1994 [38 U.S.C. Sections 4301-4333]
(“USERRA”), the National Labor Relations Act [29 U.S.C. Sections 151-169], as amended (“NLRA”), the
Occupational safety and Health Xxx [00 U.S.C. Sections 201-219], as amended (“OSHA”), the Fair
Labor Standards Act [29 U.S.C. Sections 201-219], as amended (“FLSA”), retaliation pursuant to
Section 440.205 Florida Statutes, and any other claim of any kind; provided, however,
notwithstanding anything to the contrary set forth herein, that this General Release shall not
extend to (x) benefit claims under employee pension benefit plans in which Xxxxx is a participant
by virtue of his employment with the Company, and (y) any obligation expressly assumed under this
Agreement by the Company.
| WITNESS: | CHICO’S FAS, INC. | |||||
/s/
Xxxxx Xxxxxx
|
By: /s/ Xxxxx X. Xxxxxxx | |||||
| Xxxxx X. Xxxxxxx |
||||||
| President and Chief Executive Officer | ||||||
WITNESS: |
||||||
| /s/ Xxxxxxx Xxxxx | /s/ Xxxxx Xxxxx | |||||
| Xxxxx Xxxxx | ||||||
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