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EXHIBIT 10.11
CHICO'S FAS, INC.
1993 EMPLOYEE STOCK PURCHASE PLAN
(restated to reflect impact of 2 for 1 stock split and including
an amendment effective upon stock split distribution and
an amendment adopted October 9, 1998)
ARTICLE 1
Purpose
The purpose of the Chico's FAS, Inc. Employee Stock Purchase Plan (the
"Plan") is to provide employees of Chico's FAS, Inc. (the "Company") and its
subsidiaries with an opportunity to acquire a proprietary interest in the
Company through the purchase of authorized but unissued shares of common stock
(par value $.01 per share) of the Company (the "Common Stock"). It is the
intention of the Company to have the Plan qualify as an "employee stock
purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, or any statute or
regulation of similar import. The provisions of the Plan, accordingly, shall be
construed so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
ARTICLE 2
Definitions
The following words and terms as used herein shall have that meaning
set forth therefor in this Article 2 unless a different meaning is clearly
required by the context. Whenever appropriate, words used in the singular shall
be deemed to include the plural and vice versa, and the masculine gender shall
be deemed to include the feminine gender.
2.1 "Account" shall mean the payroll deduction account maintained for
an electing Eligible Employee as provided in Article 7.
2.2 "Board" or "Board of Directors" shall mean the Board of Directors
of the Company.
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.4 "Committee" shall mean the Employee Stock Purchase Plan Committee
of the Board.
2.5 "Common Stock" shall mean the common stock, $.01 par value, of the
Company.
2.6 "Company" shall mean Chico's FAS, Inc., a Florida corporation, and
any successor.
2.7 "Compensation" shall mean an Eligible Employee's regular salary
and wages, overtime pay, bonuses and commissions (in all cases, before any
reduction for elective contributions to any Code Section 401(k) or Code Section
125 Plan), but does not include credits or benefits under the Plan, or any
amount contributed by the Company to any pension, profit sharing or employee
stock ownership plan, or any employee welfare, life insurance or health
insurance plan or arrangement, or any deferred compensation plan or
arrangement.
2.8 "Eligible Employee" shall mean any individual employed by the
Company or any Subsidiary who meets the eligibility requirements of Article 4.
The Committee shall have the sole power to determine who is and who is not an
Eligible Employee.
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2.9 "Fair market value" of the shares of Common Stock shall mean the
closing price, on the date in question (or, if no shares are traded on such
day, on the next preceding day on which shares were traded), of the Common
Stock as reported on the Composite Tape, or if not reported thereon, then such
price as reported in the trading reports of the principal securities exchange
in the United States on which such stock is listed, or if such stock is not
listed on a securities exchange in the United States, the mean between the
dealer closing "bid" and "ask" prices on the over-the-counter market as
reported by the National Association of Security Dealers Automated Quotation
System (NASDAQ), or NASDAQ's successor, or if not reported on NASDAQ, the fair
market value of such stock as determined by the Committee in good faith and
based on all relevant factors.
2.10 "Purchase Documents" is defined in Section 6.1.
2.11 "Plan" shall mean the Chico's FAS, Inc. 1993 Employee Stock
Purchase Plan, as set forth herein and as amended from time to time.
2.12 "Shares" shall mean shares of the Common Stock.
2.13 "Subsidiary" shall mean any corporation that at the time
qualifies as a subsidiary of the Company under the definition of "subsidiary
corporation" contained in Section 424(f) of the Code.
ARTICLE 3
Administration
3.1 Committee. This Plan shall be administered by a committee
appointed by the Board of Directors (the "Committee"). The Committee shall
consist of not less than two (2) nor more than five (5) persons, each of whom
shall be a member of the Board and a disinterested person (as such term is
defined in Rule 16b-3 of the Securities Exchange Act of 1934, or any statute or
regulation of similar import), and none of whom shall be eligible to
participate under the Plan. The Board of Directors may from time to time remove
members from, or add members to, the Committee. Vacancies on the Committee,
howsoever caused, shall be filled by the Board of Directors.
3.2 Organization. The Committee shall select one of its members as
chairman, and shall hold meetings at such time and places as it may determine.
The acts of a majority of the Committee at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of the
Committee, shall be valid acts of the Committee.
3.3 Power and Authority. Subject to the provisions of the Plan, the
Committee shall have full authority, in its discretion: (a) to determine the
employees of the Company and its Subsidiaries who are eligible to participate
in the Plan; (b) to determine the purchase price of the shares of Common Stock
being offered; and (c) to interpret the Plan, and to prescribe, amend and
rescind rules and regulations with respect thereto. The interpretation and
construction by the Committee of any provision of the Plan over which it has
discretionary authority shall be final and conclusive. All actions and policies
of the Committee shall be consistent with the qualification of the Plan at all
times as an employee stock purchase plan under Section 423 of the Code.
(a) No Liability. No member of the Committee shall be liable for
any action or determination made in good faith with respect to the Plan.
ARTICLE 4
Employees Eligible To Participate
4.1 General Rule. Any person, including any officer but not a person
who is solely a director, who is in the employment of the Company or any
Subsidiary on the first day of an offering period is eligible to participate in
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the Plan with respect to that offering, except (a) a person who has been
employed less than one year; (b) a person whose customary employment is 20
hours or less per week; and (c) a person whose customary employment is for not
more than five months in any calendar year.
4.2 Special Rules. Notwithstanding any provision of the Plan to the
contrary, no employee shall be eligible to subscribe for any shares under the
Plan if:
(a) immediately after the subscription, the employee would own
stock and/or hold outstanding options to purchase stock, possessing 5% or more
of the total combined voting power or value of all classes of stock of the
Company or of any Subsidiary (as determined in accordance with the provisions
of Section 423(b)(3) of the Code);
(b) the subscription would permit his rights to purchase shares
under all stock purchase plans of the Company and its parent and subsidiary
corporations to accrue at a rate that exceeds $25,000 of fair market value of
such shares (determined at the time such right to subscribe accrues) for each
calendar year in which such right to subscribe is outstanding at any time;
(c) the subscription is otherwise prohibited by law; or
(d) except with respect to the first offering period (the
offering period ending May 31, 1993), his employment is terminated for any
reason prior to the time revocation or cancellation of participation in an
offering is prohibited under Section 6.2, and with respect to the first
offering period, his employment is terminated for any reason prior to the time
he elects to participate in such offering by satisfying the conditions of
Section 6.1.
ARTICLE 5
Offers
5.1 Offering Periods. There shall be eighteen (18) offering periods
under the Plan: the first offering period shall commence on the effective date
of the Plan and shall conclude on May 31, 1993; thereafter, a separate offering
period shall commence on the first day and conclude on the last day of the
months of May and November in each of the years 1993, 1994, 1995, 1996, 1997,
1998, 1999, 2000, and 2001. Except for the maximum number of shares to be
offered under the Plan, except for a lack of available shares, and except for
the limitation on the number of shares for which each Eligible Employee may
subscribe, there shall be no limit on the aggregate number of shares for which
subscriptions may be made with respect to any particular offering. The right of
an Eligible Employee to subscribe to shares in an offering shall not be deemed
to accrue until the first day of that offering period.
5.2 Price. The purchase price per share for an offering period shall
be 85% of the fair market value of the Common Stock on the last day immediately
preceding the first day of the offering period; provided, however, that with
respect to the first offering period (the offering period ending May 31, 1993),
the purchase price per share shall be 85% of the lesser of (a) the fair market
value of the Common Stock on the last day immediately preceding the first day
of the offering period or (b) the fair market value of the Common Stock on the
last day immediately preceding the last day of the offering period.
5.3 Number of Shares To Be Offered.
(a) The maximum number of shares of Common Stock that may be
offered under the Plan is 210,000.
(b) In each offering, an Eligible Employee shall be entitled to
subscribe for a total number of shares of Common Stock equal to one share for
each One Hundred Fifty Dollars ($150.00) of Compensation paid to him for the
calendar year immediately preceding the year in which the offering occurs.
However, no Eligible Employee shall be entitled to subscribe in any offering to
more than six hundred (600) shares or (for those Eligible Employees
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who are entitled to purchase at least ten (10) shares) fewer than ten (10)
shares. Notwithstanding the provisions of Section 8.1, no stock adjustment
referred to therein shall operate to change from ten (10) the minimum number of
shares required to be subscribed for by an Eligible Employee in any offering in
order for such Eligible Employee to participate in such offering.
(b) Subscriptions shall be allowed for full shares only. Any
rights to subscribe for fractional shares shall be void; and any computation
relating to fractional shares shall be rounded down to the next lowest whole
number of shares.
(c) If with respect to any offering the available shares are
oversubscribed, the aggregate of the subscriptions allowable under Section
5.3(b) shall be reduced to such lower figure as may be necessary to eliminate
the oversubscription. Such reduction shall be effected on a proportionate basis
as equitably as possible; but in no event shall such reduction result in a
subscription of less than the minimum subscription or a subscription for
fractional shares. In the event of an oversubscription and cutback as provided
in this paragraph (d), the Company will refund to the participating employees
any excess payment for subscribed shares as soon as practicable after
completion of the offering.
ARTICLE 6
Participation and Payment
6.1 Election To Participate. An Eligible Employee may become a
participant in an offering (a) by completing a subscription agreement,
indicating the number of shares of Common Stock to be purchased, and such other
documents as the Company may require (the "Purchase Documents"); and (b) by
tendering the Purchase Documents and cash or a check (payable in U.S. funds)
for the full subscription price (less the amount to be withdrawn from such
Eligible Employee's Account pursuant to Section 7.3) to the Secretary of the
Company (or such other person as may be designated by the Committee) at any
time during the offering. With respect to the first offering period (the
offering period ending May 31, 1993), the Eligible Employee shall tender an
amount equal to the purchase price based on the fair market value of the stock
as of the beginning of the offering period. If the final purchase price is
less, the Company shall refund the excess amount to the Eligible Employee as
soon as practicable after the close of the offering period. Purchase Documents
and cash or check received by the Secretary of the Company (or other designated
person) before or after the offering shall be void and shall be given no effect
with respect to the offering; and the Secretary shall return such documents and
cash or check to the involved employee as soon as practicable after receipt.
6.2 No Revocation of Election. No election to participate in an
offering may be revoked or cancelled by an Eligible Employee once the Purchase
Documents and full payment have been tendered to the Company; provided,
however, that with respect to the first offering period (the period ending May
31, 1993), an Eligible Employee may revoke his election to participate in the
offering by providing written notice thereof to the Secretary of the Company
(or other designated person) on or before the last day of such offering period.
Such revocation may be with respect to all or less than all of the shares of
Common Stock originally elected to be purchased. In the event of any such
revocation, the Company shall refund to such Eligible Employee, as soon as
practicable after such revocation, the amount previously tendered for the
shares to which the revocation relates.
6.3 No Interest. No interest shall be payable on the purchase price of
the shares of Common Stock subscribed for or on the funds returned to employees
as a result of an oversubscription, an overpayment, pursuant to Section 6.1 for
early or late delivery, or pursuant to Section 6.2 after a revocation.
6.4 Delivery of Certificates Representing Shares.
(a) As soon as practicable after the completion of each offering,
the Company shall deliver or cause to be delivered to each participating
employee a certificate or certificates representing the shares of Common Stock
purchased in the offering.
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(b) Certificates representing shares of Common Stock to be
delivered to a participating employee under the Plan will be registered in the
name of the participating employee, or if the participating employee so
directs, by written notice to the Company prior to the termination date of the
pertinent offering, and to the extent permitted by applicable law, in the names
of the participating employee and one such other person as may be designated by
the participating employee, as joint tenants with rights of survivorship.
6.5 Rights as Stockholder. No participating employee shall have any
right as a stockholder until after the completion of the offering in which the
employee participated and the date on which he becomes a record owner of the
shares purchased under the Plan (the "record ownership date"). No adjustment
shall be made for dividends or other rights for which the record date is prior
to the record ownership date.
6.6 Termination of Employment. An employee whose employment is
terminated for any reason shall have no right to participate in the Plan after
termination. However, the termination shall not affect any election to
participate in the Plan that is made prior to termination in accordance with
the provisions of Section 6.1.
6.7 Rights Not Transferable. The right of an Eligible Employee to
participate in the Plan shall not be transferable by the employee, and no right
of an Eligible Employee under this Plan may be exercised after his death, by
his Personal Representative or anyone else, or during his lifetime by any
person other than the Eligible Employee.
ARTICLE 7
Payroll Deduction
7.1 Election of Payroll Deduction. Each Eligible Employee may elect
(on such form as may be provided from time to time by the Company) to have a
portion of his Compensation deducted from each paycheck (or, if the Company so
permits, from only the first paycheck in each month), which amounts shall not
exceed in the aggregate Five Thousand Dollars ($5,000.00) in any calendar year.
An Eligible Employee may change the amount to be withheld from time to time in
accordance with rules established by the Committee, which rules may include,
among other things, limitations on the number of times changes are permitted
and when changes are permitted. A change shall be effective no earlier than the
first full payroll period following receipt of the new form by the Committee.
The Committee may, however, on a uniform and non-discriminatory basis delay the
effective date of a change if it determines that such a delay is either
necessary or appropriate for the proper administration of the Plan.
7.2 Maintenance of Accounts. A separate Account shall be maintained
for each Eligible Employee who has amounts withheld from his Compensation under
this Article 7. The maintenance of separate Accounts shall not require the
segregation of any assets from any other assets held under this Article 7. The
Accounts shall not bear interest. Each Account shall be adjusted from time to
time to reflect the amounts withheld from the Compensation of the Eligible
Employee to whom the Account relates, the amounts withdrawn by such Eligible
Employee for purchases of Common Stock under the Plan, and for other amounts
withdrawn by such Eligible Employee from the Account.
7.3 Use of Accounts To Purchase Common Stock. At the time that an
Eligible Employee elects to participate in an offering under Section 6.1, the
Eligible Employee may elect to have a specified amount from his Account (up to
the whole amount thereof) used to pay all or a portion of the purchase price.
7.4 Other Use of Accounts. At any time that a person is no longer an
employee (including by reason of death) or an Eligible Employee, the balance in
such person's Account shall be paid to such person or his legal representative.
In addition, the Committee may also permit the complete withdrawal of the
amounts in an Account under such uniform and non-discriminatory conditions as
it may impose from to time to time (including, without limitation, not
permitting the Eligible Employee making such withdrawal from again electing
payroll deductions for a specified period of time). Except as otherwise
provided in Section 7.3 and this Section 7.4, an Eligible Employee shall not
withdraw any amount from his Account, in whole or in part.
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ARTICLE 8
Miscellaneous
8.1 Stock Adjustments.
(a) In the event of any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split or other division or
consolidation of shares or the payment of a stock dividend (but only on the
Common Stock) or any other increase or decrease in the number of such shares
effected without any receipt of consideration by the Company, then, in any such
event, the number of shares of Common Stock that remain available under the
Plan, and the number of shares of Common Stock and the purchase price per share
of Common Stock then subject to subscription by Eligible Employees, shall be
proportionately and appropriately adjusted for any such increase or decrease.
(b) Subject to any required action by the stockholders, if any
change occurs in the shares of Common Stock by reason of any recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or of any similar change affecting the shares of Common Stock, then, in
any such event, the number and type of shares then subject to subscription by
Eligible Employees, and the purchase price thereof, shall be proportionately
and appropriately adjusted for any such change.
(c) In the event of a change in the Common Stock as presently
constituted that is limited to a change of all of its authorized shares with
par value into the same number of shares with a different par value or without
par value, the shares resulting from any change shall be deemed to be shares of
Common Stock within the meaning of the Plan.
(d) To the extent that the foregoing adjustments relate to stock
or securities of the Company, such adjustments shall be made by, and in the
discretion of, the Committee, whose determination in that respect shall be
final, binding and conclusive.
(e) Except as hereinabove expressly provided in this Section 8.1,
an Eligible Employee shall have no rights by reason of any division or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, merger or
consolidation, or spin-off of assets or stock of another corporation; and any
issuance by the Company of shares of stock of any class, securities convertible
into shares of stock of any class, or warrants or options for shares of stock
of any class shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Common Stock subject to
any subscription.
(f) The existence of the Plan, and any subscription for shares of
Common Stock hereunder, shall not affect in any way the right or power of the
Company to make adjustments, reclassifications, reorganizations or changes of
its capital or business structure or to merge or to consolidate, or to
dissolve, to liquidate, to sell, or to transfer all or any part of its business
or assets.
8.2 Necessity for Delay. If at any time the Committee shall determine,
in its discretion, that the listing, registration or qualification of the
shares of Common Stock covered by the Plan upon any securities exchange or
under any state or federal law or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the Plan or the offering, issue or purchase of shares thereunder, the
Plan shall not be effective as to later offerings unless and until such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
Notwithstanding anything in the Plan to the contrary, if the provisions of this
Section 8.2 become operative and if, as a result thereof, an offering is missed
in whole or in part, then and in that event, the missed portion of the offering
shall be passed and the term of the Plan shall not be affected. Notwithstanding
the foregoing or any other provision in the Plan, the Company shall have no
obligation under the Plan to cause any shares of Common Stock to be registered
or qualified under any federal or state law or listed on any stock exchange or
admitted to any national marketing system.
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8.3 Term of Plan. The Plan, unless sooner terminated as provided in
Section 8.4, shall commence upon the satisfaction of the conditions of Section
8.9 and shall terminate on the conclusion of the offering to be made in
November 2001.
8.4 Amendment of the Plan; Termination. The Board shall have the right
to revise, amend or terminate the Plan at any time without notice, provided
that no Eligible Employee's existing rights are adversely affected thereby
without the consent of the Eligible Employee, and provided further that,
without approval of the stockholders of the Company, no such revision or
amendment shall (a) increase the total number of shares of Common Stock to be
offered; (b) change the formula by which the price at which the shares shall be
sold is determined; (c) increase the maximum number of shares of Common Stock
that an employee can purchase; (d) materially modify the requirements as to
eligibility for participation in the Plan; (e) otherwise materially increase
the benefits under the Plan to Eligible Employees; or (f) remove the
administration of the Plan from the Committee. The foregoing prohibitions shall
not be affected by adjustments in shares and purchase price made in accordance
with the provisions of Section 8.1.
8.5 Application of Funds. The proceeds received by the Company from
the sale of Common Stock pursuant to the Plan will be used for general
corporate purposes.
8.6 No Obligation to Participate. The offering of any Common Stock
under the Plan shall impose no obligation upon any Eligible Employee to
subscribe to purchase any such shares.
8.7 No Implied Rights to Employees. The existence of the Plan, and
the offering of shares of Common Stock under the Plan, shall in no way give any
employee the right to continued employment, give any employee the right to
receive any Common Stock or any additional Common Stock under the Plan, or
otherwise provide any employee any rights not specifically set forth in the
Plan.
8.8 Withholding. Whenever the Company proposes or is required to issue
or transfer shares of Common Stock under the Plan, the Company shall have the
right to require a participating employee to remit to the Company an amount
sufficient to satisfy any federal, state or local withholding tax liability
prior to the delivery of any certificate or certificates for such shares.
Whenever under the Plan payments are to be made in cash, such payments shall be
made net of an amount sufficient to satisfy any federal, state or local
withholding tax liability.
8.9 Conditions Precedent to Effectiveness. The Plan shall become
effective upon the satisfaction of all the following conditions, with the
effective date of the Plan being the date that the last such condition is
satisfied:
(a) the adoption of the Plan by the Board of Directors;
(b) the approval of the Plan by the stockholders of the Company
within 12 months after its adoption by the Board; and
(c) the closing of the initial public offering of the Company's
stock.
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