As filed with the Securities and Exchange Commission on June 29, 2020
Registration No. 333-      

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
  
FORM S-8
Registration Statement
Under
The Securities Act of 1933
 
 
Chico’s FAS, Inc.
(Exact name of registrant as specified in its charter)
 

Florida
 
59-2389435
(State or other jurisdiction
of incorporation or organization)

11215 Metro Parkway
Fort Myers, Florida
(Address of Principal Executive Offices)
 
(I.R.S. Employer
Identification No.)

33966
(Zip Code)
  
Chico’s FAS, Inc. 2020 Omnibus Stock and Incentive Plan
(Full title of the plan)
  

Molly Langenstein
Chief Executive Officer and President
Chico’s FAS, Inc.
11215 Metro Parkway
Fort Myers, Florida 33966
(239) 277-6200
(Name, address and telephone number,
including area code, of agent for service)
  
Copies To:
Gregory S. Baker
Senior Vice President - General Counsel and Corporate Secretary
Chico’s FAS, Inc.
11215 Metro Parkway
Fort Myers, Florida 33966
(239) 277-6200

and

Susan S. Ancarrow, Esq.
Troutman Sanders LLP
1001 Haxall Point
Richmond, Virginia 23219
(804) 697-1200
 



Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer
 
¨
  
Accelerated filer
 
ý
Non-accelerated filer

 
¨ 
  
Smaller reporting company
 
¨
 
Emerging growth company
 
¨
    
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨ 





CALCULATION OF REGISTRATION FEE
 Title Of Securities
To Be Registered
  
Amount
To Be
Registered (1)
  
Proposed
Maximum
Offering Price
per Share (3)
  
Proposed
Maximum
Aggregate
Offering Price (3)
  
Amount Of
Registration Fee
Common Stock, par value $0.01 per share
  
12,106,883 (2)
  
$1.30
  
$15,738,947.90
 
$2,042.92

(1)
The amount being registered includes an indeterminate number of shares of common stock, par value $0.01 per share (“Common Stock”) of Chico’s FAS, Inc. (the “Registrant”), which may be offered and issued to prevent dilution from adjustments as a result of stock splits, reverse stock splits, stock dividends, combinations of shares, spin-offs, recapitalizations, mergers and other capital adjustments, in accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”).
(2)
This Registration Statement covers shares of Common Stock of the Registrant reserved for future issuance under the Chico’s FAS, Inc. 2020 Omnibus Stock and Incentive Plan (the “Plan”), as approved by shareholders of the Registrant on June 25, 2020, consisting of (i) 7,600,000 shares of Common Stock, (ii) 3,655,355 shares of Common Stock remaining available for future issuance under the Registrant’s Amended and Restated 2012 Omnibus Stock and Incentive Plan (the “2012 Plan”) as of June 25, 2020, and (iii) up to 851,528 shares of Common Stock represented by awards granted under the 2012 Plan and the Registrant’s Amended and Restated 2002 Omnibus Stock and Incentive Plan (the “2002 Plan”) as of June 25, 2020 to the extent they are forfeited, expire, are settled in cash or are cancelled without delivery of shares of Common Stock on or after June 25, 2020.
(3)
Pursuant to Rule 457(c) and 457(h) of the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated solely for the purpose of calculating the amount of the registration fee and are based on the average of the high and low prices of the Registrant’s Common Stock as reported on the New York Stock Exchange on June 24, 2020, or $1.30 per share.
 
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.    Plan Information.*
Item 2.    Registrant Information and Employee Plan Annual Information.*
* As permitted by Rule 428 under the Securities Act, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule 428(b)(1). Such documents are not being filed with the Securities and Exchange Commission (the "Commission") as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424(b) under the Securities Act.




PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.    Incorporation of Documents by Reference.
By this reference, the following documents filed or to be filed by the Registrant with the Commission are incorporated into and made a part of this Registration Statement:
1.
The Registrant’s Annual Report on Form 10-K for the fiscal year ended February 1, 2020, as filed with the Commission on March 16, 2020.
2.
All other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Annual Report on Form 10-K referenced above.
3.
The description of the Registrant’s Common Stock contained in Exhibit 4.1 to its Annual Report on Form 10-K for the fiscal year ended February 1, 2020, as filed with the Commission on March 16, 2020, which updates the Registrant’s Registration Statement on Form 8-A as filed with the Commission under the Exchange Act on April 6, 2001, and as amended by any subsequent amendment or report filed for the purpose of updating such description.
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all shares of Common Stock offered hereby have been sold or which deregisters any shares of such Common Stock then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document which is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4.    Description of Securities.
Not applicable.

 Item 5.    Interests of Named Experts and Counsel.
Not applicable.

Item 6.    Indemnification of Directors and Officers.
The Florida Business Corporation Act, as amended (the “Florida Act”), provides that, in general, a business corporation may indemnify any person who is or was a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that he or she is or was a director or officer of the corporation, against liability incurred in connection with such proceeding, including any appeal thereof, provided certain standards are met, including that such director or officer acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and provided further that, with respect to any criminal action or proceeding, the director or officer had no reasonable cause to believe his or her conduct was unlawful. In the case of proceedings by or in the right of the corporation, the Florida Act provides that, in general, a corporation may indemnify any person who is or was a party to any such proceeding by reason of the fact that he or she is or was a director or officer of the corporation against expenses and amounts paid in settlement not exceeding, in the judgment of the corporation’s board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement, including any appeal thereof, provided that such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim as to which such person is adjudged to be liable unless the court in which such proceeding was brought, or any other court of competent jurisdiction, determines upon application that such person is fairly and reasonably entitled to indemnity. To the extent that any directors or officers are successful on the merits or otherwise in the defense of any of the proceedings described above, the Florida Act provides that the corporation is required to indemnify such directors or officers against expenses actually and reasonably incurred in connection therewith. Expenses incurred by a director or officer in defending a civil or criminal proceeding may be paid by the corporation in advance



of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if he or she is ultimately found not to be entitled to indemnification by the corporation. However, the Florida Act further provides that, in general, indemnification or advancement of expenses shall not be made to or on behalf of any director or officer if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (i) a violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a transaction from which the director or officer derived an improper personal benefit; (iii) in the case of a director, a circumstance under which the director has voted for or assented to a distribution made in violation of the Florida Act or the corporation’s articles of incorporation; or (iv) willful or intentional misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder. Article VI of the Registrant’s Amended and Restated Bylaws provides that the Registrant shall indemnify any director, officer or employee or any former director, officer or employee to the fullest extent permitted by law.
As is permitted under the Florida Act, the Registrant has purchased insurance with respect to, among other things, the liabilities that may arise under the statutory provisions referred to above. The directors and officers of the Registrant also are insured against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities and against which they may or may not be indemnified by the Registrant.
The Registrant has entered into indemnification agreements with each of its directors and certain of its executive officers. The agreements create certain indemnification obligations of the Registrant in favor of the directors and executive officers and, as permitted by applicable law, clarify and expand the circumstances under which a director or executive officer will be indemnified.
 Item 7.    Exemption from Registration Claimed.
Not applicable.
 
Item 8.    Exhibits.
The following exhibits have been filed as a part of this Registration Statement and are specifically incorporated by reference:
EXHIBIT INDEX  
Exhibit
No.
  
Description of Exhibits
 
 
  4.1
  
 
 
  4.2
 
 
 
  4.3
  
 
 
  4.4
 
 
 
 
  5.1ǂ 
  
 
 
23.1ǂ
 
 
 
 
23.2ǂ 
  
 
 
24.1ǂ 
 
 
 
 
99.1
  
 
ǂ Filed herewith.

Item 9.    Undertakings.
(a)    The undersigned Registrant hereby undertakes:



(1)    To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
i.To include any prospectus required by Section 10(a)(3) of the Securities Act;
ii.To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
iii.To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2)    That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)    To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b)    The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h)    Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to applicable law, the Registrant’s articles of incorporation or bylaws, as such may be amended from time to time, the Registrant’s indemnification agreements or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.




SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Fort Myers, State of Florida, on the date or dates indicated below.
 
 
 
 
 
 
CHICO’S FAS, INC.
(Registrant)
 
 
June 29, 2020
 
By: /s/ Molly Langenstein
 
 
Molly Langenstein
 
 
Chief Executive Officer, President and Director
 
 

POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Molly Langenstein, Gregory S. Baker and David M. Oliver his or her true and lawful attorney-in-fact and agent with full powers of substitution and resubstitution, for the undersigned and in the name of the undersigned, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
Capacity
Date
/s/ Molly Langenstein
Molly Langenstein
Chief Executive Officer, President and Director
(Principal Executive Officer)
June 29, 2020
/s/ David M. Oliver
David M. Oliver
Interim Chief Financial Officer and Senior Vice President, Controller
(Principal Financial Officer, Controller and Principal Accounting Officer)
June 29, 2020
Bonnie R. Brooks
Executive Chair of the Board
 
/s/ Janice L. Fields
Janice L. Fields
Director
June 29, 2020
Deborah L. Kerr
Director
 
/s/ John J. Mahoney
John J. Mahoney
Director
June 29, 2020
/s/ Kim Roy
Kim Roy
Director
June 29, 2020
/s/ William S. Simon
William S. Simon
Lead Independent Director
June 29, 2020
/s/ David F. Walker
David F. Walker
Director
June 29, 2020
/s/ Stephen E. Watson
Stephen E. Watson
Director
June 29, 2020







CHS2020PLANEXHIBIT51T_IMAGE1.JPG

Exhibit 5.1
June 29, 2020
The Board of Directors
Chico’s FAS, Inc.
11215 Metro Parkway
Fort Myers, Florida 33966
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Chico’s FAS, Inc., a Florida corporation (the “Company”) in connection with the filing by the Company of the above-referenced Registration Statement (the “Registration Statement”) with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), whereby 12,106,883 shares (the “Shares”) of common stock, $0.01 par value per share (the “Common Stock”), of the Company are registered to be issued in accordance with the Chico’s FAS, Inc. 2020 Omnibus Stock and Incentive Plan, as approved by the Board of Directors of the Company (the “Board”) on April 24, 2020, subject to shareholder approval, which was obtained on June 25, 2020 (the “Plan”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements, and other instruments, certificates, orders, opinions, correspondence with public officials, certificates provided by the Company’s officers and representatives, and other documents as we have deemed necessary or advisable for the purposes of rendering the opinion set forth herein, including (i) the corporate and organizational documents of the Company, including the Restated Articles of Incorporation, as amended to date (the “Articles”), and the Amended and Restated Bylaws, as amended to date, (ii) the resolutions (the “Resolutions”) of the Board with respect to the offering and issuance of the Shares under the Plan and certain related matters, (iii) the Plan, (iv) the Registration Statement and exhibits thereto and (v) the prospectus related to the Registration Statement.
For purposes of the opinion expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted as certified, photostatic or electronic copies and the authenticity of the originals thereof, (iii) the legal capacity of natural persons, (iv) the genuineness of signatures not witnessed by us, (v) the due authorization, execution and delivery of all documents by all parties, other than the Company, and the validity, binding effect and enforceability thereof and (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed.

The Board of Directors
Chico’s FAS, Inc.
Page 2

Based on the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, we are of the opinion that the Shares have been duly authorized and, when and if issued in accordance with the Articles, the Plan, the Registration Statement and the Resolutions (assuming that, upon any issuance of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Articles), the Shares will be validly issued, fully paid and nonassessable.
We express no opinion as to the effect of the laws of any state or jurisdiction other than the federal laws of the United States of America and the State of Florida or as to the securities or blue sky laws of any state (including, without limitation, Florida), municipal law or the laws of any local agencies within any state (including, without limitation, Florida). This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Our opinion is as of the date hereof and we have no responsibility to update this opinion for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to our attention and we disavow any undertaking to advise you of any changes in law.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.  In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules or regulations of the Commission promulgated thereunder.

Very truly yours,
/s/ Troutman Sanders LLP    

Exhibit 23.1


Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Chico’s FAS, Inc. 2020 Omnibus Stock and Incentive Plan of our reports dated March 16, 2020, with respect to the consolidated financial statements of Chico’s FAS, Inc. and subsidiaries and the effectiveness of internal control over financial reporting of Chico’s FAS, Inc. and subsidiaries included in its Annual Report (Form 10-K) for the fiscal year ended February 1, 2020, filed with the Securities and Exchange Commission.

/s/ ERNST & YOUNG LLP
Tampa, FL
June 29, 2020