EXHIBIT 10.1
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT is made and entered into
this 31st day of October, 2001, to be effective for all purposes as of February
13, 2001, by and between CHICO'S FAS, INC., a Florida corporation (the
"Company"), and JAMES P. FRAIN, residing at 3980 West Riverside Drive, Fort
Myers, FL 33901 (the "Employee").
WITNESSETH:
WHEREAS, the parties hereto have entered into that certain Employment
Agreement dated as of April 14, 2000 by and between the Company and the
Employee (the "Employment Agreement"); and
WHEREAS, the Company and the Employee have agreed to amend the terms
of the Employment Agreement in certain respects as set forth in this Amendment
No. 1 to Employment Agreement (the "Amendment").
1. COMPENSATION
Section 3(a) of the Employment Agreement shall be replaced in its
entirety by the following, with the specified annualized salary effective from
February 13, 2001:
(a) The Employer shall pay to the Employee as
compensation for all services rendered by the Employee during the term
of this Agreement a basic annualized salary of $190,000 per year (the
"Basic Salary"), or such other sum as the parties may agree on from
time to time, payable monthly or in other more frequent installments,
as determined by the Employer. The Board of Directors of the Employer
shall have the right to increase the Employee's compensation from time
to time by action of the Board of Directors. In addition, the Board of
Directors of the Employer, in its discretion, may, with respect to any
year during the term hereof, award a bonus or bonuses to the Employee.
The compensation provided for in this Section 3(a) shall be in
addition to any pension or profit sharing payments set aside or
allocated for the benefit of the Employee.
2. DUTIES
Section 4 of the Employment Agreement shall be replaced in its
entirety as follows:
1.
4. DUTIES. The Employee is engaged as the Vice
President - Director of Marketing. In addition, the Employee shall
have such other duties and hold such other offices as may from time to
time be reasonably assigned to him by the Board of Directors of the
Employer.
3. OTHER TERMINATIONS
Section 8(c)(i) of the Employment Agreement shall be replaced in its
entirety as follows:
(i) If the Employer shall terminate the
employment of the Employee without good cause effective on a date
earlier than the termination date provided for in Section 2 (with the
effective date of termination as so identified by the Employer being
referred to herein as the "Accelerated Termination Date"), the
Employee until the date which is twelve (12) months after the
Accelerated Termination Date, shall continue to receive the Basic
Salary and other compensation and employee benefits (including without
limitation the bonus that would otherwise have been payable during
such compensation continuation period under the bonus plan in effect
immediately before the Accelerated Termination Date) that the Employer
has heretofore in Section 3 agreed to pay and to provide for the
Employee, in each case in the amount and kind and at the time provided
for in Section 3; provided that, notwithstanding such termination of
employment, the Employee's covenants set forth in Section 10 and
Section 11 are intended to and shall remain in full force and effect.
Section 8(d) of the Employment Agreement shall be replaced in its
entirety by Sections 8(d), 8(e) and 8(f), as follows:
(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 Employee shall:
(1) voluntarily terminate his
employment within one year following such Change in Control
and such termination shall be as a result of the Employee's
good faith determination that as a result of the Change in
Control and a change in circumstances thereafter
significantly affecting his position, he can no longer
adequately exercise the authorities, powers, functions or
duties attached to his position as an executive officer of
the Employer; or
(2) voluntarily terminate his
employment within one year following such Change in Control,
and such termination shall be as a result of the Employee's
good faith determination that he can no longer perform his
2.
duties as an executive officer of the Employer by reason of a
substantial diminution in his responsibilities, status or
position; or
(3) have his employment terminated by
the Employer for reasons other than those specified in
Section 8(b)(ii) within one (1) year following such Change in
Control;
then in any of the above three cases, the Employee shall have, instead
of the further rights described in Section 3(a), the right to
immediately terminate this Agreement and a nonforfeitable right to
receive the sum of the monthly amounts of his Basic Salary for a
period equal to 12 months plus an amount equal to 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.
3.
(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 Employee
shall be entitled to the amount payable to the Employee under Section
8(d)(i) reduced by the amount that the Employee 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 Employee is terminated for good cause under
Section 8(b)(ii) of this Agreement, or if the Employee 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 Employee any compensation earned but not
paid to the Employee 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 Employee hereunder, and the Employee shall be entitled to no
further benefits under this Agreement.
(f) Release. Payment of any compensation to the Employee
under this Section 8 following termination of employment shall be
conditioned upon the prior receipt by the Employer of a release
executed by the Employee in substantially the form attached to this
Agreement as Exhibit A.
4. NONCOMPETITION AND NONSOLICITATION
Section 11 of the Employment Agreement shall be replaced in its
entirety as follows:
11. NONSOLICITATION.
The Employee 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 business
and professional contacts. In consideration of the special and unique
opportunities afforded to the Employee by the Employer as a result of
the Employee's employment, the Employee hereby agrees as follows:
(a) 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,
4.
the Employee 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.
(b) The period of time during which the Employee
is prohibited from engaging in certain business practices pursuant to
Section 11(a) shall be extended by any length of time during which the
Employee is in breach of such covenants.
(c) It is understood by and between the parties
hereto that the foregoing restrictive covenants set forth in Sections
11(a) and (b) are essential elements of this Agreement, and that, but
for the agreement of the Employee to comply with such covenants, the
Employer would not have agreed to enter into this Agreement. Such
covenants by the Employee shall be construed as agreements independent
of any other provision in this Agreement. The existence of any claim
or cause of action of the Employee 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) It is agreed by the Employer and Employee
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 Employee 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 Employee. The Employer and the Employee 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.
5. NOTICE ADDRESS
The notice address for the Executive in Section 19 of the
Employment Agreement shall be changed to be the following:
5.
To the Executive:
James P. Frain
3980 West Riverside Drive
Fort Myers, FL 33901
6. MISCELLANEOUS
Unless specifically modified, added or deleted by this Amendment No.1,
all terms and provisions of the Employment Agreement remain in full force and
effect throughout the term of the Employment Agreement, as amended.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
the day and year first above written.
CHICO'S FAS, INC.
By: /s/ Marvin J. Gralnick
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Marvin J. Gralnick, President
"Company"
/s/ James P. Frain
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JAMES P. FRAIN
"Employee"
6.
EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH JAMES P. FRAIN
DATED AS OF APRIL 14, 2000, AS AMENDED
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:
(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 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.
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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:
(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.
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:
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