UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report: (Date of earliest event reported): January 28, 2005
Chico’s FAS, Inc.
Florida
(State or Other Jurisdiction of Incorporation)
| 0-21258 | 59-2389435 | |
| (Commission File Number) | (IRS Employer Identification No.) | |
| 11215 Metro Parkway, Fort Myers, Florida | 33912 | |
| (Address of Principal Executive Offices) | (Zip code) |
(239) 277-6200
(Registrant’s Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
Stock Options to Executive Officers and Other Employees.
Effective on January 31, 2005, after
consideration of presentations and recommendations of management and such other matters and
information as deemed appropriate, the Compensation and Benefits Committee (the “Committee”) of the
Board of Directors of Chico’s FAS, Inc. (the “Company”) approved grants of stock options
aggregating 611,000 stock options to the Company’s executive officers and certain other officers
pursuant to and under the Company’s 2002 Omnibus Stock and Incentive Plan (the “2002 Omnibus
Plan”). The exercise price per share of common stock under the foregoing options is $52.68 and are
otherwise subject to the terms of the 2002 Omnibus Plan and the respective stock option
certificate. The form of stock option certificate for employees, including as to the foregoing
stock options, is filed as Exhibit 10.1 and incorporated herein by reference. In addition, the
forms of stock option certificate that the Company utilizes in connection with the grant of stock
options to its non-management directors, as they may occur from time to time, are filed
collectively as Exhibit 10.2.
Restricted Stock Awards to Executive Officers and Other Employees
. Effective on January 31, 2005,
after consideration of presentations and recommendations of management and such other matters and
information as deemed appropriate, the Committee granted an aggregate of 70,200 restricted shares
of the Company’s common stock to the Company’s executive officers and certain other officers
pursuant to and under the 2002 Omnibus Plan. The shares of restricted stock will vest 100% on the
date which is three years after the effective date of the grant and some or all of the vesting may
accelerate under certain circumstances as more specifically provided for in the respective
restricted stock agreement. The restricted stock awards are otherwise subject to the terms of the
2002 Omnibus Plan and the respective restricted stock agreement. The form of restricted stock
agreement for employees is filed as Exhibit 10.3 and incorporated herein by reference.
Restricted Stock Awards to Non-Management Directors
. Effective on January 31, 2005, after
consideration of presentations and recommendations of management and such other matters and
information as deemed appropriate, the Board of Directors of the Company granted an aggregate of
17,500 restricted shares of the Company’s common stock to the Company’s non-management directors
pursuant to and under the 2002 Omnibus Plan. The shares of restricted stock will vest ratably in
equal one third annual increments over the three year period after the effective date of the grant
and some or all of the vesting may accelerate under certain circumstances as more specifically
provided for in the respective restricted stock agreement. The restricted stock awards are
otherwise subject to the terms of the 2002 Omnibus Plan and the respective restricted stock
agreement. The form of restricted stock agreement for non-management directors is filed as Exhibit
10.4 and incorporated herein by reference.
2005 Cash Bonus Incentive Plan
. Effective on January 31, 2005, after consideration of
presentations and recommendations of management and such other matters and information as deemed
appropriate, the Committee approved and recommended and the Board of Directors of the Company
approved and adopted the following employee cash bonus plan, which has at least one executive
officer as an eligible participant:
The Chico’s FAS, Inc. 2005 Cash Bonus Incentive Plan (the “2005 Cash Bonus Plan”), a copy of
which is attached hereto as Exhibit 10.5.
Under the 2005 Cash Bonus Plan, certain employees of the Company, including its executive officers,
are eligible to receive basic bonuses for the first six months of the 2005 fiscal year and for the
second six months of the 2005 fiscal year if the Company’s earnings per share for the applicable
period exceed its targeted earnings per share for the respective period. The amount of the bonus
for each participating employee for the applicable period depends on the amount by which the
Company’s earnings per share
2
for the applicable period exceed its targeted earnings per share for the applicable period, the
bonus percentage assigned to the employee by the Board of Directors or the Compensation Committee
and the base salary of the employee. Under the 2005 Cash Bonus Plan, the maximum basic bonuses
payable to the Company’s executive officers range from 60% of his or her base salary to 200% of his
or her base salary, depending on the executive officer’s corporate title and responsibilities.
In addition, under the 2005 Cash Bonus Plan, certain select officers of the Company, including its
executive officers, are eligible to receive a supplemental bonus for the full 2005 fiscal year if
the Company has achieved its overall financial plan and then a portion of such supplemental bonus
can be earned only if the gross profit margin for the 2005 fiscal year for the Company or for the
officer’s operating division, as applicable, exceeds the targeted gross profit margin for 2005 for
the Company or the operating division, as the case may be, by a minimum specified amount and a
separate portion of such supplemental bonus can be earned only if the comparable store sales
increase for 2005 for the Company or for the officer’s operating division, as applicable, exceeds
the targeted comparable store sales increase for 2005 for the Company or the operating division, as
the case may be. The amount of the bonus for each participating officer depends on the actual
amount by which the applicable gross profit margin for the 2005 fiscal year exceeds the applicable
targeted gross profit margin by more than the minimum specified amount, the actual amount by which
the applicable comparable store sales increase exceeds the applicable targeted comparable store
sales increase, the bonus percentage assigned to the officer by the Board of Directors or the
Compensation Committee and the base salary of the officer. Under the 2005 Cash Bonus Plan, the
maximum supplemental bonuses payable to the Company’s executive officers range from 30% of his or
her base salary to 50% of his or her base salary, depending on the executive officer’s corporate
title and responsibilities.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
10.1 Form of the Chico’s FAS, Inc. 2002 Omnibus Stock and Incentive Plan
Stock Option Certificate for Employees
10.2 Forms of the Chico’s FAS, Inc. 2002 Omnibus Stock and Incentive Plan
Stock Option Certificate for Non-management Directors
10.3 Form of the Chico’s FAS, Inc. 2002 Omnibus Stock and Incentive Plan
Restricted Stock Agreement for Employees
10.4 Form of the Chico’s FAS, Inc. 2002 Omnibus Stock and Incentive Plan
Restricted Stock Agreement for Non-management Directors
10.5 2005 Cash Bonus Incentive Plan
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
4
INDEX TO EXHIBITS
CHICO’S FAS, INC.
Date: February 3, 2005
By: /s/ Michael J. Kincaid
Michael J. Kincaid, Vice President -Finance, Chief
Accounting Officer and Assistant Secretary
Number
Description
Form of the Chico’s FAS, Inc. 2002 Omnibus
Stock and Incentive Plan Stock Option
Certificate for Employees
Forms of the Chico’s FAS, Inc. 2002 Omnibus Stock and
Incentive Plan Stock Option Certificate for Non-management
Directors
Form of the Chico’s FAS, Inc. 2002 Omnibus Stock and
Incentive Plan Restricted Stock Agreement for Employees
Form of the Chico’s FAS, Inc. 2002 Omnibus Stock and
Incentive Plan Restricted Stock Agreement for
Non-management Directors
2005 Cash Bonus Incentive Plan
.
.
.
EXHIBIT 10.1
[CHICO's FAS LOGO]
NON-QUALIFIED STOCK OPTION CERTIFICATE
---------------------------------------------------------------------------------------------------------------------------------- GRANTED TO: SOCIAL SECURITY NO. ---------------------------------------------------------------------------------------------------------------------------------- GRANT DATE: SHARES: OPTION PRICE PER SHARE: $ ---------------------------------------------------------------------------------------------------------------------------------- EXPIRATION DATE: OPTION CERTIFICATE NO.: ---------------------------------------------------------------------------------------------------------------------------------- |
THIS IS TO CERTIFY THAT, pursuant to the provisions of the Chico's FAS, Inc. 2002 Omnibus Stock and Incentive Plan (the "Plan"), Chico's FAS, Inc. (the "Company"), effective as of the grant date specified above and subject to the terms and conditions of the Plan and this Certificate, hereby grants to the employee named above (the "Optionee"), and the Optionee hereby accepts, the right and option (the "Option") to purchase from the Company up to the total of the number of shares of the common stock of the Company (the "Stock") at the per share purchase price (the "Option Price"), as specified above. The Option is exercisable as provided in this Certificate. Capitalized terms not defined in this Certificate shall have the meanings given to them in the Plan.
1. Exercise Period. No part of the Option may be exercised prior to the first anniversary after the Grant Date or after the Expiration Date, each as noted above (the "Exercise Period").
2. Vesting Schedule. The Optionee's rights under the Option shall vest and the Option shall become exercisable (on a cumulative basis) over the Exercise Period in accordance with the following schedule:
--------------------------------------------------------
YEARS AFTER SHARES
GRANT DATE EXERCISABLE
--------------------------------------------------------
Less than 1 year 0%
--------------------------------------------------------
1 year but less than 2 years 33 1/3%
--------------------------------------------------------
2 years but less than 3 years 66 2/3%
--------------------------------------------------------
3 years or more 100%
--------------------------------------------------------
|
Notwithstanding the foregoing, the Optionee's rights to exercise the Option shall be 100% vested if Optionee dies or becomes totally and permanently disabled (as determined in the sole discretion of the Committee) while still employed by the Company or a subsidiary or upon a Change in Control (as defined in the Plan) while the Optionee is still so employed.
3. Exercise of Option.
(a) Notice. Subject to the vesting requirement provided above, the Option may be exercised during the Exercise Period by presenting this Certificate to the Company, together with written notice specifying the number of shares as to which the Option is being exercised and payment of the Option Price for the number of shares of Stock being purchased. This Certificate, together with the notice and payment of the Option Price for the number of shares being purchased, shall be delivered in person or sent by U.S. registered or certified mail, postage and fees prepaid, return receipt requested, to the executive offices of the Company at 11215 Metro Parkway, Ft. Myers, Florida 33912, marked Attention: Director of Benefits. The exercise date shall be the date on which the Optionee's Certificate, notice and payment are received and accepted by the Company.
(b) Payment of Option Price. The Option Price shall be payable
(1) in United States dollars in cash or by check, bank draft or money order
payable to the order of the Company, (2) by delivery of shares of Stock already
owned by the Optionee, (3) through a combination of some or all of the preceding
payment methods acceptable to the Company, (4) by delivery of a copy of an
unconditional and irrevocable direction, satisfactory in form and substance to
the Company, given by the Optionee to a creditworthy broker or dealer pursuant
to which the broker or dealer is instructed to sell shares underlying the Option
exercise on or promptly following the date of exercise and to deliver to the
Company, prior to, on or promptly following the settlement date of the sale, a
cash payment equal to the Option Price and any required withholding taxes
resulting from such exercise from the proceeds of the Optionee's sale of the
underlying shares, (5) by delivery of an unconditional and irrevocable
undertaking and commitment, satisfactory in form and substance to the Company,
by a creditworthy broker or dealer pursuant to which the broker or dealer agrees
to sell shares underlying the Option exercise on or promptly following the date
of exercise and pursuant to which the Company is to receive, prior to, on or
promptly following the settlement date of the sale, a cash payment equal to the
Option Price and any required withholding taxes resulting from such exercise, or
(6) by delivery of similar cashless exercise documentation, satisfactory in form
and substance to the Company. The Company may instruct the broker to deposit the
entire sale proceeds into a Company-
owned account for appropriate distribution to the Company and Optionee as provided in this Certificate.
(c) Minimum Number of Shares; No Fractional Shares. At no time may the Option be exercised for fewer than one hundred (100) shares of Stock, unless the number of shares to be acquired by exercise of the Option is the total number then purchasable under the Option. The Option may be exercised only for whole shares of Stock that are purchasable under the Plan and no fractional shares of Stock will be issued.
(d) Transferability; Exercise During Lifetime. The Option is not transferable by the Optionee except by will or by the laws of descent and distribution (that is, state laws governing the distribution of the Optionee's property upon death) and the Option is exercisable during the Optionee's lifetime only by the Optionee.
(e) Death or Other Termination of Employment.
(i) If the employment of the Optionee (either by the Company or a subsidiary) is terminated for any reason, excluding the death or disability of the Optionee, the Option may be exercised at any time within 90 days after such termination to the extent that the Optionee's right to exercise the Option had vested in accordance with the terms of this Certificate and of the Plan on or before the date of termination and had not been exercised previously; provided, however, if the Optionee terminates employment because of disability (within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) or dies during such 90 day period, the Option may be exercised within one (1) year after termination of employment by the Optionee or, in the case of death, by the personal representative of the Optionee or by any person or persons acquiring the Option directly from the Optionee by bequest or inheritance; provided further, however, that in no event shall the Option be exercisable at any time after the end of the Exercise Period.
(ii) If the Optionee dies while employed by the Company or a subsidiary, the Option may be exercised within one (1) year after the Optionee's death by the personal representative of the Optionee or by any person or persons acquiring the Option directly from the Optionee by bequest or inheritance to the extent that the Optionee's right to exercise the Option had vested in accordance with the terms of this Certificate and of the Plan on or before the date of death and had not been exercised previously; provided, however, that in no event shall the Option be exercisable at any time after the end of the Exercise Period.
4. Adjustments. In accordance with the terms of the Plan, the number and kind of shares of Stock subject to the Option and the purchase price per share shall be equitably and appropriately adjusted in the event of any change in the number of issued shares of Stock resulting from a stock split, stock dividend, recapitalization, reorganization, merger, consolidation, split-up, combination or exchange of shares, or similar change or transaction.
5. Rights as Stockholder. The Optionee shall have no rights as a stockholder in the Company with respect to any shares of Stock subject to the Option prior to the date of issuance to the Optionee of a certificate or certificates for such shares of Stock and the recordation of the ownership of such certificate or certificates in the official books of the Company or its transfer agent with respect to such ownership.
6. Modification, Extension, and Renewal of the Option. Subject to the terms and conditions and within the limitations of the Plan, the Committee may modify, extend or renew the Option or accept its surrender by the Optionee.
7. No Obligation to Exercise Option. The Optionee is not obligated to exercise the Option in whole or in part.
8. Authority of the Committee. The Committee shall have full authority to interpret the terms of the Plan and of this Certificate. The decision of the Committee on any such matter of interpretation or construction shall be final and binding.
9. No Employment Agreement. This Certificate shall not be deemed to confer upon the Optionee any right with respect to continuance of employment by the Company, nor shall it be deemed to limit in any way the right of the Company to terminate the Optionee's employment at any time.
10. Optionee Bound by the Plan, Etc. The Optionee hereby acknowledges receipt of a copy of the Plan, agrees to be bound by all the terms and provisions of the Plan and this Certificate, and understands that in the event of any conflict between the terms of the Plan and of this Certificate, the terms of the Plan shall control.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by the appropriate officer as of the 2nd day of November, 2004.
ACKNOWLEDGED AND AGREED TO CHICO'S FAS, INC.
This day of , 2004.
------- ---------------- By:
---------------------------------
Charles Kleman - CFO/COO
-------------------------------------
Optionee
|
.
.
.
EXHIBIT 10.2
[CHICO'S FAS LOGO]
NON-EMPLOYEE DIRECTOR NON-QUALIFIED STOCK OPTION CERTIFICATE
---------------------------------------------------------------------------------------------------------------------------------- GRANTED TO: SOCIAL SECURITY NO ---------------------------------------------------------------------------------------------------------------------------------- GRANT DATE: SHARES: OPTION PRICE PER SHARE: $ ---------------------------------------------------------------------------------------------------------------------------------- EXPIRATION DATE: OPTION CERTIFICATE NO.: NSO-D-02-2004-__ ---------------------------------------------------------------------------------------------------------------------------------- |
THIS IS TO CERTIFY THAT, pursuant to the provisions of the Chico's FAS, Inc. 2002 Omnibus Stock and Incentive Plan (the "Plan"), Chico's FAS, Inc. (the "Company"), effective as of the grant date specified above and subject to the terms and conditions of the Plan and this Certificate, hereby grants to the non-employee director of the Company named above (the "Optionee"), and the Optionee hereby accepts, the right and option (the "Option") to purchase from the Company up to the total of the number of shares of the common stock of the Company (the "Stock") at the per share purchase price (the "Option Price"), as specified above. The Option is exercisable as provided in this Certificate. Capitalized terms not defined in this Certificate shall have the meanings given to them in the Plan.
1. Exercise Period. No part of the Option may be exercised prior to _____________, or after the Expiration Date, as noted above (the "Exercise Period").
2. Vesting Schedule. The Optionee's rights under the Option shall vest and the Option shall become exercisable over the Exercise Period in accordance with the following schedule:
--------------------------------------------------------
NUMBER OF MONTHS SHARES
AFTER GRANT DATE EXERCISABLE
--------------------------------------------------------
Less than 6 months 0%
--------------------------------------------------------
6 months or more 100%
--------------------------------------------------------
|
Notwithstanding the foregoing, the Optionee's rights to exercise the Option shall be 100% vested if Optionee dies or becomes totally and permanently disabled (as determined in the sole discretion of the Board) while still serving as a director of the Company or upon a Change in Control (as defined in the Plan) while the Optionee is still so serving.
3. Exercise of Option.
(a) Notice. Subject to the vesting requirement provided above, the Option may be exercised during the Exercise Period by presenting this Certificate to the Company, together with written notice specifying the number of shares as to which the Option is being exercised and payment of the Option Price for the number of shares of Stock being purchased. This Certificate, together with the notice and payment of the Option Price for the number of shares being purchased, shall be delivered in person or sent by U.S. registered or certified mail, postage and fees prepaid, return receipt requested, to the executive offices of the Company at 11215 Metro Parkway, Ft. Myers, Florida 33912, marked Attention: Director of Benefits. The exercise date shall be the date on which the Optionee's Certificate, notice and payment are received and accepted by the Company.
(b) Payment of Option Price. The Option Price shall be payable
(1) in United States dollars in cash or by check, bank draft or money order
payable to the order of the Company, (2) by delivery of shares of Stock already
owned by the Optionee, (3) through a combination of some or all of the preceding
payment methods acceptable to the Company, (4) by delivery of a copy of an
unconditional and irrevocable direction, satisfactory in form and substance to
the Company, given by the Optionee to a creditworthy broker or dealer pursuant
to which the broker or dealer is instructed to sell shares underlying the Option
exercise on or promptly following the date of exercise and to deliver to the
Company, prior to, on or promptly following the settlement date of the sale, a
cash payment equal to the Option Price and any required withholding taxes
resulting from such exercise from the proceeds of the Optionee's sale of the
underlying shares, (5) by delivery of an unconditional and irrevocable
undertaking and commitment, satisfactory in form and substance to the Company,
by a creditworthy broker or dealer pursuant to which the broker or dealer agrees
to sell shares underlying the Option exercise on or promptly following the date
of exercise and pursuant to which the Company is to receive, prior to, on or
promptly following the settlement date of the sale, a cash payment equal to
the Option Price and any required withholding taxes resulting from such
exercise, or (6) by delivery of similar cashless exercise documentation,
satisfactory in form and substance to the Company. The Company may instruct the
broker to deposit the entire sale proceeds into a Company-owned account for
appropriate distribution to the Company and Optionee as provided in this
Certificate.
(c) Minimum Number of Shares; No Fractional Shares. At no time may the Option be exercised for fewer than one hundred (100) shares of Stock, unless the number of shares to be acquired by exercise of the Option is the total number then purchasable under the Option. The Option may be exercised only for whole shares of Stock that are purchasable under the Plan and no fractional shares of Stock
will be issued.
(d) Transferability; Exercise During Lifetime. The Option is not transferable by the Optionee except by will or by the laws of descent and distribution (that is, state laws governing the distribution of the Optionee's property upon death) and the Option is exercisable during the Optionee's lifetime only by the Optionee.
(e) Termination of Service as Non-Employee Director of the Company.
(i) If the Optionee's service as a director of the Company terminates for any reason prior to the end of the Exercise Period (other than removal as a director for cause), to the extent that the Optionee's right to exercise the Option had vested in accordance with the terms of this Certificate and of the Plan on or before the end of the Exercise Period and had not been exercised previously, the Option may be exercised at any time before the earlier to occur of (1) the end of the Exercise Period or (2) five (5) years following the date on which service as a director of the Company terminated.
(ii) All rights under the Option shall terminate immediately and the Option shall not be exercisable in any respect upon the termination of the Optionee's service as a director of the Company as a result of removal for cause.
(iii) If the Optionee's service as a director of the Company terminates because of his or her death, the Optionee's rights may be exercised after the Optionee's death by the personal representative of the Optionee or by any person or persons acquiring the Option directly from the Optionee by bequest or inheritance to the extent that the Optionee's right to exercise the Option had vested in accordance with the terms of this Certificate and of the Plan on or before the date of death and had not been exercised previously; provided, however, that in no event shall the Option be exercisable at any time after the end of the Exercise Period.
4. Adjustments. In accordance with the terms of the Plan, the number and kind of shares of Stock subject to the Option and the purchase price per share shall be equitably and appropriately adjusted in the event of any change in the number of issued shares of Stock resulting from a stock split, stock dividend, recapitalization, reorganization, merger, consolidation, split-up, combination or exchange of shares, or similar change or transaction.
5. Rights as Stockholder. The Optionee shall have no rights as a stockholder in the Company with respect to any shares of Stock subject to the Option prior to the date of issuance to the Optionee of a certificate or certificates for such shares of Stock and the recordation of the ownership of such certificate or certificates in the official books of the Company or its transfer agent with respect to such ownership.
6. Modification, Extension, and Renewal of the Option. Subject to the terms and conditions and within the limitations of the Plan, the Board may modify, extend or renew the Option or accept its surrender by the Optionee.
7. No Obligation to Exercise Option. The Optionee is not obligated to exercise the Option in whole or in part.
8. Authority of the Board. The Board shall have full authority to interpret the terms of the Plan and of this Certificate. The decision of the Board on any such matter of interpretation or construction shall be final and binding.
9. No Agreement for Continued Service. This Certificate shall not be deemed to confer upon the Optionee any right with respect to continuance of service as a director of the Company, nor shall it be deemed to limit in any way the right of the Company to terminate the Optionee's service as such at any time.
10. Optionee Bound by the Plan, Etc. The Optionee hereby acknowledges receipt of a copy of the Plan, agrees to be bound by all the terms and provisions of the Plan and this Certificate, and understands that in the event of any conflict between the terms of the Plan and of this Certificate, the terms of the Plan shall control.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by the appropriate officer as of the ____day of ________, 20__.
ACKNOWLEDGED AND AGREED TO CHICO'S FAS, INC.
This day of , 20 .
------- ---------------- --
Scott
------------------------------------- -----------------------------------
Optionee Edmonds, CEO/President
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[CHICO'S FAS LOGO]
NON-EMPLOYEE DIRECTOR NON-QUALIFIED STOCK OPTION CERTIFICATE
---------------------------------------------------------------------------------------------------------------------------------- GRANTED TO: SOCIAL SECURITY NO ---------------------------------------------------------------------------------------------------------------------------------- GRANT DATE: SHARES: OPTION PRICE PER SHARE: $ ---------------------------------------------------------------------------------------------------------------------------------- EXPIRATION DATE: OPTION CERTIFICATE NO.: NSO-D-02-2004-__ ---------------------------------------------------------------------------------------------------------------------------------- |
THIS IS TO CERTIFY THAT, pursuant to the provisions of the Chico's FAS, Inc. 2002 Omnibus Stock and Incentive Plan (the "Plan"), Chico's FAS, Inc. (the "Company"), effective as of the grant date specified above and subject to the terms and conditions of the Plan and this Certificate, hereby grants to the non-employee director of the Company named above (the "Optionee"), and the Optionee hereby accepts, the right and option (the "Option") to purchase from the Company up to the total of the number of shares of the common stock of the Company (the "Stock") at the per share purchase price (the "Option Price"), as specified above. The Option is exercisable as provided in this Certificate. Capitalized terms not defined in this Certificate shall have the meanings given to them in the Plan.
11. Exercise Period. No part of the Option may be exercised prior to _____________, or after the Expiration Date, as noted above (the "Exercise Period").
12. Vesting Schedule. The Optionee's rights under the Option shall vest and the Option shall become exercisable over the Exercise Period in accordance with the following schedule:
--------------------------------------------------------
TIME PERIOD SHARES
EXERCISABLE
--------------------------------------------------------
Prior to the Company's 20__ 0%
Annual Meeting
--------------------------------------------------------
On or after the Company's 20__ 100%
Annual Meeting
--------------------------------------------------------
|
Notwithstanding the foregoing, the Optionee's rights to exercise the Option shall be 100% vested if Optionee dies or becomes totally and permanently disabled (as determined in the sole discretion of the Board) while still serving as a director of the Company or upon a Change in Control (as defined in the Plan) while the Optionee is still so serving.
13. Exercise of Option.
(a) Notice. Subject to the vesting requirement provided above, the Option may be exercised during the Exercise Period by presenting this Certificate to the Company, together with written notice specifying the number of shares as to which the Option is being exercised and payment of the Option Price for the number of shares of Stock being purchased. This Certificate, together with the notice and payment of the Option Price for the number of shares being purchased, shall be delivered in person or sent by U.S. registered or certified mail, postage and fees prepaid, return receipt requested, to the executive offices of the Company at 11215 Metro Parkway, Ft. Myers, Florida 33912, marked Attention: Director of Benefits. The exercise date shall be the date on which the Optionee's Certificate, notice and payment are received and accepted by the Company.
(b) Payment of Option Price. The Option Price shall be payable
(1) in United States dollars in cash or by check, bank draft or money order
payable to the order of the Company, (2) by delivery of shares of Stock already
owned by the Optionee, (3) through a combination of some or all of the preceding
payment methods acceptable to the Company, (4) by delivery of a copy of an
unconditional and irrevocable direction, satisfactory in form and substance to
the Company, given by the Optionee to a creditworthy broker or dealer pursuant
to which the broker or dealer is instructed to sell shares underlying the Option
exercise on or promptly following the date of exercise and to deliver to the
Company, prior to, on or promptly following the settlement date of the sale, a
cash payment equal to the Option Price and any required withholding taxes
resulting from such exercise from the proceeds of the Optionee's sale of the
underlying shares, (5) by delivery of an unconditional and irrevocable
undertaking and commitment, satisfactory in form and substance to the Company,
by a creditworthy broker or dealer pursuant to which the broker or dealer agrees
to sell shares underlying the Option exercise on or promptly following the date
of exercise and pursuant to which the Company is to receive, prior to, on or
promptly following the settlement date of the sale, a cash payment equal to
the Option Price and any required withholding taxes resulting from such exercise, or (6) by delivery of similar cashless exercise documentation, satisfactory in form and substance to the Company. The Company may instruct the broker to deposit the entire sale proceeds into a Company-owned account for appropriate distribution to the Company and Optionee as provided in this Certificate.
(c) Minimum Number of Shares; No Fractional Shares. At no time may the Option be exercised for fewer than one hundred (100) shares of Stock, unless the number of shares to be acquired by exercise of the Option is the total number then purchasable under the Option. The Option may be exercised only for whole shares of Stock that are purchasable under the Plan and no fractional shares of Stock will be issued.
(d) Transferability; Exercise During Lifetime. The Option is not transferable by the Optionee except by will or by the laws of descent and distribution (that is, state laws governing the distribution of the Optionee's property upon death) and the Option is exercisable during the Optionee's lifetime only by the Optionee.
(e) Termination of Service as Non-Employee Director of the Company.
(i) If the Optionee's service as a director of the Company terminates for any reason prior to the end of the Exercise Period (other than removal as a director for cause), to the extent that the Optionee's right to exercise the Option had vested in accordance with the terms of this Certificate and of the Plan on or before the end of the Exercise Period and had not been exercised previously, the Option may be exercised at any time before the earlier to occur of (1) the end of the Exercise Period or (2) five (5) years following the date on which service as a director of the Company terminated.
(ii) All rights under the Option shall terminate immediately and the Option shall not be exercisable in any respect upon the termination of the Optionee's service as a director of the Company as a result of removal for cause.
(iii) If the Optionee's service as a director of the Company terminates because of his or her death, the Optionee's rights may be exercised after the Optionee's death by the personal representative of the Optionee or by any person or persons acquiring the Option directly from the Optionee by bequest or inheritance to the extent that the Optionee's right to exercise the Option had vested in accordance with the terms of this Certificate and of the Plan on or before the date of death and had not been exercised previously; provided, however, that in no event shall the Option be exercisable at any time after the end of the Exercise Period.
14. Adjustments. In accordance with the terms of the Plan, the number and kind of shares of Stock subject to the Option and the purchase price per share shall be equitably and appropriately adjusted in the event of any change in the number of issued shares of Stock resulting from a stock split, stock dividend, recapitalization, reorganization, merger, consolidation, split-up, combination or exchange of shares, or similar change or transaction.
15. Rights as Stockholder. The Optionee shall have no rights as a stockholder in the Company with respect to any shares of Stock subject to the Option prior to the date of issuance to the Optionee of a certificate or certificates for such shares of Stock and the recordation of the ownership of such certificate or certificates in the official books of the Company or its transfer agent with respect to such ownership.
16. Modification, Extension, and Renewal of the Option. Subject to the terms and conditions and within the limitations of the Plan, the Board may modify, extend or renew the Option or accept its surrender by the Optionee.
17. No Obligation to Exercise Option. The Optionee is not obligated to exercise the Option in whole or in part.
18. Authority of the Board. The Board shall have full authority to interpret the terms of the Plan and of this Certificate. The decision of the Board on any such matter of interpretation or construction shall be final and binding.
19. No Agreement for Continued Service. This Certificate shall not be deemed to confer upon the Optionee any right with respect to continuance of service as a director of the Company, nor shall it be deemed to limit in any way the right of the Company to terminate the Optionee's service as such at any time.
20. Optionee Bound by the Plan, Etc. The Optionee hereby acknowledges receipt of a copy of the Plan, agrees to be bound by all the terms and provisions of the Plan and this Certificate, and understands that in the event of any conflict between the terms of the Plan and of this Certificate, the terms of the Plan shall control.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by the appropriate officer as of the ____day of ________, 20__.
ACKNOWLEDGED AND AGREED TO CHICO'S FAS, INC.
This day of , 20 .
------- ---------------- --
------------------------------------- -----------------------------------
Optionee Scott Edmonds, CEO/President
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Exhibit 10.3
CHICO'S FAS, INC.
2002 OMNIBUS STOCK AND INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
CAPITALIZED TERMS NOT DEFINED HEREIN HAVE THE MEANING GIVEN SUCH TERMS IN THE
CHICO'S FAS, INC. 2002 OMNIBUS STOCK AND INCENTIVE PLAN.
This Restricted Stock Agreement (the "Agreement") is dated as of January 31, 2005 (the "Grant Date"), and is entered into between Chico's FAS, Inc., a Florida corporation (the "Company"), and ____________________ (the "Employee").
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the "Committee") is authorized to make grants of Restricted Stock under the Company's 2002 Omnibus Stock and Incentive Plan, as amended (the "Plan");
WHEREAS, on or about January 28, 2005, the Committee approved the grant, pursuant to the Plan, Restricted Stock to the Employee on the Grant Date provided that the Employee continued to be employed as an employee of the Company on the Grant Date;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises set forth below, the parties hereto agree as follows:
1. GRANT OF RESTRICTED STOCK. The Company hereby grants to the Employee all rights, title and interest in the record and beneficial ownership of _______________(###,###) shares of common stock, $.01 par value per share, of the Company ("Common Stock") subject to the conditions described in Paragraphs 5 and 6 as well as the other provisions of this Restricted Stock Agreement (the "Restricted Stock"). The Restricted Stock is granted pursuant to and to implement in part the Chico's FAS, Inc. 2002 Omnibus Stock and Incentive Plan (as amended and in effect from time to time, the "Plan") and is subject to the provisions of the Plan, which is hereby incorporated herein and is made a part hereof, as well as the provisions of this Restricted Stock Agreement. The Employee agrees to be bound by all of the terms, provisions, conditions and limitations of the Plan and this Restricted Stock Agreement. All capitalized terms have the meanings set forth in the Plan unless otherwise specifically provided in this Restricted Stock Agreement. All references to specified paragraphs pertain to paragraphs of this Restricted Stock Agreement unless otherwise specifically provided.
2. NO TRANSFER OF UNVESTED SHARES. During the period that any shares of Restricted Stock are unvested as set forth in Paragraphs 3, 4, 5 and 6, such unvested shares shall not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, other than by will, the laws of descent and distribution, by qualified domestic relations order or as expressly provided for in Paragraph 3. No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities, or torts of the Employee.
3. CUSTODY OF RESTRICTED STOCK. The shares of Restricted Stock will be issued in the name of the Employee and deposited with the Plan Administrator as escrow agent (the "Escrow Agent") together with a stock power endorsed in blank by the Employee, and will not
be sold, assigned, transferred, pledged or otherwise disposed of or encumbered
unless and until the expiration of the Restriction Period set forth in Paragraph
5 and satisfaction of the vesting conditions set forth in Paragraph 5 or the
occurrence of any of the events contemplated by Paragraphs 6(b), 6(c) , 6(d) or
6(e). Notwithstanding the foregoing, while such restrictions remain in effect,
the Employee may transfer the shares of Restricted Stock to a trust created by
such Employee for the benefit of the Employee and the Employee's family as part
of the Employee's estate planning program, provided that prior to any such
transfer, (a) the Employee must submit to the Company a legal opinion of the
Employee's counsel, satisfactory to the Committee, that the transfer to such
trust and the holdings of the shares of Restricted Stock by such trust shall
have no adverse tax or securities law consequences for the Company and (b) the
trust must execute and deliver to the Company a joinder to this Agreement,
satisfactory to the Committee, which shall, among other things, acknowledge the
terms of the grant of the Restricted Stock and the restrictions on transfer of
the shares of Restricted Stock imposed and established pursuant to the terms of
this Agreement and the Plan and the trust must continue the deposit of the
shares of Restricted Stock with the Escrow Agent and deposit with the Escrow
Agent a stock power endorsed in blank by the trustee on behalf of the trust. The
Company may instruct the transfer agent for its Common Stock to place a legend
on the certificates representing the shares of Restricted Stock or otherwise
reflect in its records the restrictions on transfer set forth in this Agreement
and the Plan. The certificate or certificates representing such shares of
Restricted Stock will not be delivered by the Escrow Agent to the Employee
unless and until the shares of Restricted Stock have vested and all other terms
and conditions in this Agreement and the Plan have been satisfied.
4. RISK OF FORFEITURE. Subject to Paragraphs 6(b), 6(c), 6(d) and 6(e), should the Employee's employment (defined below) with Company and each subsidiary (as the term "subsidiary" is defined in the Plan) terminate prior to the end of the Restriction Period set forth in Paragraph 5, the Employee shall forfeit the right to receive the Restricted Stock that would otherwise have vested at the end of the Restriction Period. The Employee hereby appoints the Escrow Agent with full power of substitution, as the Employee's true and lawful attorney-in-fact with irrevocable power and authority in the name and on behalf of the Employee to take any action and execute all documents and instruments, including, without limitation, stock powers which may be necessary to transfer the certificate or certificates evidencing such unvested shares of Restricted Stock to the Company upon such forfeiture.
5. VESTING DATES. Subject to Paragraph 6, the restrictions applicable to the Restricted Stock will lapse as to 100% of the Restricted Stock three years after the Grant Date (with the period from the Grant Date through the date which is three years after the Grant Date being referred to herein as the "Restriction Period"). The table below sets forth such lapse date for the Restricted Stock:
NUMBER OF SHARES
OF COMMON DATE RESTRICTIONS
STOCK LAPSE
-------------------------- -------------------------
________ January 31, 2008
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6. TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL. Voluntary or involuntary termination of employment, retirement, death or disability of the Employee, or occurrence of a Change in Control, shall affect the Employee's rights under this Restricted Stock Agreement as follows:
a. Voluntary Termination or Termination for Cause. If, other than as specified below, the Employee voluntarily terminates employment (defined below) or if the Employee's employment is terminated by the Company for cause prior to the last day of the Restriction Period, then the Employee shall forfeit the right to receive all shares of Restricted Stock.
b. Termination Without Cause. If, other than as specified below, the Employee's employment is terminated by the Company without cause prior to the last day of the Restriction Period, then immediately such number of shares of nonvested Restricted Stock equal to the Accelerated Portion shall fully vest, all restrictions (other than those described in Paragraph 10) applicable to the Accelerated Portion of the nonvested Restricted Stock shall terminate, the Company shall release from escrow or trust and shall issue and deliver to the Employee a certificate or certificates for the Accelerated Portion of the nonvested Restricted Stock and the Employee shall forfeit the right to receive all shares of the nonvested Restricted Stock in excess of the Accelerated Portion. For these purposes, the "Accelerated Portion" shall be equal to the number of shares which is the product of (i) a fraction, the numerator of which is the number of completed months elapsed beginning on the Grant Date and ending on the date of termination of employment and the denominator of which is the total number of months in the Restriction Period, multiplied by (ii) the total number of shares of nonvested Restricted Stock immediately prior to the date of termination of employment.
c. Change in Control. If a Change in Control shall occur, then immediately all nonvested Restricted Stock shall fully vest, all restrictions (other than those described in Paragraph 10) applicable to such Restricted Stock shall terminate and the Company shall release from escrow or trust and shall issue and deliver to the Employee a certificate or certificates for all shares of Restricted Stock.
d. Death or Disability. If the Employee's employment is terminated by death or disability, then immediately all nonvested Restricted Stock shall fully vest, all restrictions (other than described in Paragraph 10) applicable to Restricted Stock shall terminate and the Company shall release from escrow or trust and shall issue and deliver to the Employee, or in the case of death, to the person or persons to whom the Employee's rights under this Restricted Stock Agreement shall pass by will or by the applicable laws of descent and distribution, or in the case of Disability, to the Employee's personal representative, a certificate or certificates for all Restricted Stock.
e. Retirement. If the Employee's employment is terminated by retirement prior to the last day of the Restriction Period, then immediately such number of shares of nonvested Restricted Stock equal to the Accelerated Portion shall fully vest, all restrictions (other than those described in Paragraph 10) applicable to the Accelerated Portion of the nonvested Restricted Stock shall terminate, the Company shall release from escrow or trust and shall issue
and deliver to the Employee a certificate or certificates for the Accelerated Portion of the nonvested Restricted Stock and the Employee shall forfeit the right to receive all shares of the nonvested Restricted Stock in excess of the Accelerated Portion. For these purposes, the "Accelerated Portion" shall be equal to the number of shares which is the product of (i) a fraction, the numerator of which is the number of completed months elapsed beginning on the Grant Date and ending on the date of termination of employment and the denominator of which is the total number of months in the Restriction Period, multiplied by (ii) the total number of shares of nonvested Restricted Stock immediately prior to the date of termination of employment. For these purposes, the Employee's employment will be considered to be terminated by "retirement" if the Employee has (i) reached age 55, and, (ii) the Employee's combined age and years of service with the Company is equal to 65 or greater.
f. Definition of Employment. For purposes of this Restricted Stock Agreement, "employment" means employment by the Company or a subsidiary. In this regard, neither the transfer of the Employee from employment by the Company to employment by a subsidiary nor the transfer of the Employee from employment by a subsidiary to employment by the Company nor the transfer of the Employee from employment by a subsidiary to employment by another subsidiary shall be deemed to be a termination of employment of the Employee. Moreover, the employment of the Employee shall not be deemed to have been terminated because of absence from active employment on account of temporary illness or during authorized vacation or during temporary leaves of absence from active employment granted by the Company or a subsidiary for reasons of professional advancement, education, health, or government service, or during military leave for any period if the Employee returns to active employment within 90 days after the termination of military leave, or during any period required to be treated as a leave of absence by virtue of any valid law or agreement. The Plan Administrator's determination in good faith regarding whether a termination of employment of any type or Disability has occurred shall be conclusive and determinative.
7. OWNERSHIP RIGHTS. Subject to the restrictions set forth herein and subject to Paragraph 9, the Employee is entitled to all voting and ownership rights applicable to the Restricted Stock, including the right to receive any dividends that may be paid on Restricted Stock, whether or not vested.
8. REORGANIZATION OF COMPANY AND SUBSIDIARIES. The existence of this Restricted Stock Agreement shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Restricted Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
9. ADJUSTMENT OF SHARES. In the event of stock dividends, spin-offs of assets or other extraordinary dividends, stock splits, combinations of shares, recapitalizations, mergers, consolidations, reorganizations, liquidations, issuances of rights or warrants and similar transactions or events involving the Company ("Recapitalization Events"), then for all purposes
references herein to Common Stock or to Restricted Stock shall mean and include all securities or other property (other than cash) that holders of Common Stock of the Company are entitled to receive in respect of Common Stock by reason of each successive Recapitalization Event, which securities or other property (other than cash) shall be treated in the same manner and shall be subject to the same restrictions as the underlying Restricted Stock.
10. CERTAIN RESTRICTIONS. By accepting the Restricted Stock, the Employee agrees that if at the time of delivery of certificates for shares of Restricted Stock issued hereunder any sale of such shares is not covered by an effective registration statement filed under the Securities Act of 1933 (the "Act"), the Employee will acquire the Restricted Stock for the Employee's own account and without a view to resale or distribution in violation of the Act or any other securities law, and upon any such acquisition the Employee will enter into such written representations, warranties and agreements as the Company may reasonably request in order to comply with the Act or any other securities law or with this Restricted Stock Agreement.
11. AMENDMENT AND TERMINATION. No amendment or termination of this Restricted Stock Agreement which would impair the rights of the Employee shall be made by the Board, the Committee or the Plan Administrator at any time without the written consent of the Employee. No amendment or termination of the Plan will adversely affect the right, title and interest of the Employee under this Restricted Stock Agreement or to Restricted Stock granted hereunder without the written consent of the Employee.
12. NO GUARANTEE OF EMPLOYMENT. This Restricted Stock Agreement shall not confer upon the Employee any right with respect to continuance of employment or other service with the Company or any subsidiary, nor shall it interfere in any way with any right the Company or any subsidiary would otherwise have to terminate such Employee's employment or other service at any time.
13. WITHHOLDING OF TAXES. The Company shall have the right to (i) make deductions from the number of shares of Restricted Stock otherwise deliverable upon satisfaction of the conditions precedent under this Restricted Stock Agreement (and other amounts payable under this Restricted Stock Agreement) in an amount sufficient to satisfy withholding of any federal, state or local taxes required by law, or (ii) take such other action as may be necessary or appropriate to satisfy any such tax withholding obligations.
14. NO GUARANTEE OF TAX CONSEQUENCES. Neither the Company nor any subsidiary nor the Plan Administrator makes any commitment or guarantee that any federal or state tax treatment will apply or be available to any person eligible for benefits under this Restricted Stock Agreement.
15. SEVERABILITY. In the event that any provision of this Restricted Stock Agreement shall be held illegal, invalid, or unenforceable for any reason, such provision shall be fully severable, but shall not affect the remaining provisions of this Restricted Stock Agreement and this Restricted Stock Agreement shall be construed and enforced as if the illegal, invalid, or unenforceable provision had never been included herein.
16. GOVERNING LAW. The Restricted Stock Agreement shall be construed in accordance with the laws of the State of Florida to the extent federal law does not supersede and preempt Florida law.
17. MISCELLANEOUS PROVISIONS.
(a) Not a Part of Salary. The grant of an Award under the Plan is not intended to be a part of the salary of the Employee.
(b) Conflicts With Any Employment Agreement. If the Employee has an employment agreement with the Company or any of its subsidiaries which contains different or additional provisions relating to vesting of restricted stock awards, or otherwise conflicts with the terms of this Restricted Stock Agreement, the provisions of the employment agreement shall govern.
(c) Electronic Delivery and Signatures. The Employee hereby consents and agrees to electronic delivery of any Plan documents, proxy materials, annual reports and other related documents. If the Company establishes procedures for an electronic signature system for delivery and acceptance of Plan documents (including documents relating to any programs adopted under the Plan), the Employee hereby consents to such procedures and agrees that his or her electronic signature is the same as, and shall have the same force and effect as, his or her manual signature. The Employee consents and agrees that any such procedures and delivery may be effected by a third party engaged by the Company to provide administrative services related to the Plan, including any program adopted under the Plan.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement effective as of the Grant Date.
ACKNOWLEDGED AND AGREED TO CHICO'S FAS, INC.
This _______ day of ________________, 20___.
By: _______________________________
Charles Kleman - Chief Financial Officer
_____________________________________________
Employee
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EXHIBIT 10.4
CHICO'S FAS, INC.
2002 OMNIBUS STOCK AND INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
FOR DIRECTOR
CAPITALIZED TERMS NOT DEFINED HEREIN HAVE THE MEANING GIVEN SUCH TERMS IN THE
CHICO'S FAS, INC. 2002 OMNIBUS STOCK AND INCENTIVE PLAN.
This Restricted Stock Agreement (the "Agreement") is dated as of January 31, 2005 (the "Grant Date"), and is entered into between Chico's FAS, Inc., a Florida corporation (the "Company"), and ____________________ (the "Director").
WHEREAS, the Board of Directors of the Company (the "Board") is authorized to make grants of Restricted Stock under the Company's 2002 Omnibus Stock and Incentive Plan, as amended (the "Plan");
WHEREAS, on or about January 28, 2005, the Board approved the grant, pursuant to the Plan, Restricted Stock to the Director on the Grant Date provided that the Director continued in the capacity as a Director of the Company on the Grant Date;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises set forth below, the parties hereto agree as follows:
1. GRANT OF RESTRICTED STOCK. The Company hereby grants to the Director all rights, title and interest in the record and beneficial ownership of _______________(###,###) shares of common stock, $.01 par value per share, of the Company ("Common Stock") subject to the conditions described in Paragraphs 5 and 6 as well as the other provisions of this Restricted Stock Agreement (the "Restricted Stock"). The Restricted Stock is granted pursuant to and to implement in part the Chico's FAS, Inc. 2002 Omnibus Stock and Incentive Plan (as amended and in effect from time to time, the "Plan") and is subject to the provisions of the Plan, which is hereby incorporated herein and is made a part hereof, as well as the provisions of this Restricted Stock Agreement. The Director agrees to be bound by all of the terms, provisions, conditions and limitations of the Plan and this Restricted Stock Agreement. All capitalized terms have the meanings set forth in the Plan unless otherwise specifically provided in this Restricted Stock Agreement. All references to specified paragraphs pertain to paragraphs of this Restricted Stock Agreement unless otherwise specifically provided.
2. NO TRANSFER OF UNVESTED SHARES. During the period that any shares of Restricted Stock are unvested as set forth in Paragraphs 3, 4, 5 and 6, such unvested shares shall not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, other than by will, the laws of descent and distribution, by qualified domestic relations order or as expressly provided for in Paragraph 3. No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities, or torts of the Director.
3. CUSTODY OF RESTRICTED STOCK. The shares of Restricted Stock will be issued in the name of the Director and deposited with the Plan Administrator as escrow agent (the
"Escrow Agent") together with a stock power endorsed in blank by the Director, and will not be sold, assigned, transferred, pledged or otherwise disposed of or encumbered unless and until the expiration of the Restriction Period set forth in Paragraph 5 and satisfaction of the vesting conditions set forth in Paragraph 5 or the occurrence of any of the events contemplated by Paragraphs 6(b), 6(c) , 6(d) or 6(e). Notwithstanding the foregoing, while such restrictions remain in effect, the Director may transfer the shares of Restricted Stock to a trust created by such Director for the benefit of the Director and the Director's family as part of the Director's estate planning program, provided that prior to any such transfer, (a) the Director must submit to the Company a legal opinion of the Director's counsel, satisfactory to the Board, that the transfer to such trust and the holdings of the shares of Restricted Stock by such trust shall have no adverse tax or securities law consequences for the Company and (b) the trust must execute and deliver to the Company a joinder to this Agreement, satisfactory to the Board, which shall, among other things, acknowledge the terms of the grant of the Restricted Stock and the restrictions on transfer of the shares of Restricted Stock imposed and established pursuant to the terms of this Agreement and the Plan and the trust must continue the deposit of the shares of Restricted Stock with the Escrow Agent and deposit with the Escrow Agent a stock power endorsed in blank by the trustee on behalf of the trust. The Company may instruct the transfer agent for its Common Stock to place a legend on the certificates representing the shares of Restricted Stock or otherwise reflect in its records the restrictions on transfer set forth in this Agreement and the Plan. The certificate or certificates representing such shares of Restricted Stock will not be delivered by the Escrow Agent to the Director unless and until the shares of Restricted Stock have vested and all other terms and conditions in this Agreement and the Plan have been satisfied.
4. RISK OF FORFEITURE. Subject to Paragraphs 6(b), 6(c), 6(d) and 6(e), should the Director's position as a director of the Company terminate prior to the end of the Restriction Period set forth in Paragraph 5, the Director shall forfeit the right to receive the Restricted Stock that would otherwise have vested at the end of the Restriction Period. The Director hereby appoints the Escrow Agent with full power of substitution, as the Director's true and lawful attorney-in-fact with irrevocable power and authority in the name and on behalf of the Director to take any action and execute all documents and instruments, including, without limitation, stock powers which may be necessary to transfer the certificate or certificates evidencing such unvested shares of Restricted Stock to the Company upon such forfeiture.
5. VESTING DATES. Subject to Paragraph 6, the restrictions applicable to the Restricted Stock will lapse as follows: (i) the restrictions as to one-third of the Restricted Stock will lapse one year after the Grant Date; (ii) the restrictions as to an additional one-third of the Restricted Stock will lapse two years after the Grant Date; and (iii) the restrictions as to the remaining one-third of the Restricted Stock will lapse three years after the Grant Date. The table below sets forth such lapse date for the Restricted Stock:
NUMBER OF SHARES DATE RESTRICTIONS
OF COMMON STOCK LAPSE
---------------------------------------------------
January 31, 2006
January 31, 2007
January 31, 2008
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6. TERMINATION OF SERVICE; CHANGE IN CONTROL. Voluntary or involuntary termination of service as a director, retirement, death or disability of the Director, or occurrence of a Change in Control, shall affect the Director's rights under this Restricted Stock Agreement as follows:
a. Voluntary Termination or Termination for Cause. If, other than as specified below, the Director voluntarily terminates service as a director of the Company or if the Director's position as a director of the Company is terminated by the Company for cause prior to the last day of the Restriction Period, then the Director shall forfeit the right to receive all shares of Restricted Stock.
b. Termination Without Cause. If, other than as specified below, the Director's position as a director is terminated by the Company without cause prior to the last day of the Restriction Period, then immediately such number of shares of nonvested Restricted Stock equal to the Accelerated Portion shall fully vest, all restrictions (other than those described in Paragraph 10) applicable to the Accelerated Portion of the nonvested Restricted Stock shall terminate, the Company shall release from escrow or trust and shall issue and deliver to the Director a certificate or certificates for the Accelerated Portion of the nonvested Restricted Stock and the Director shall forfeit the right to receive all shares of the nonvested Restricted Stock in excess of the Accelerated Portion. For these purposes, the "Accelerated Portion" shall be equal to the number of shares which is the product of (i) a fraction, the numerator of which is the number of completed months elapsed beginning on the Grant Date and ending on the date of termination of service as a director of the Company and the denominator of which is the total number of months in the Restriction Period, multiplied by (ii) the total number of shares of nonvested Restricted Stock immediately prior to the date of termination of service as a director of the Company.
c. Change in Control. If a Change in Control shall occur, then immediately all nonvested Restricted Stock shall fully vest, all restrictions (other than those described in Paragraph 10) applicable to such Restricted Stock shall terminate and the Company shall release from escrow or trust and shall issue and deliver to the Director a certificate or certificates for all shares of Restricted Stock.
d. Death or Disability. If the Director's position as a director of the Company is terminated by death or disability, then immediately all nonvested Restricted Stock shall fully vest, all restrictions (other than described in Paragraph 10) applicable to Restricted Stock shall terminate and the Company shall release from escrow or trust and shall issue and deliver to the Director, or in the case of death, to the person or persons to whom the Director's rights under this Restricted Stock Agreement shall pass by will or by the applicable laws of descent and distribution, or in the case of Disability, to the Director's personal representative, a certificate or certificates for all Restricted Stock.
e. Retirement. If the Director's position as a director of the Company is terminated by retirement prior to the last day of the Restriction Period, then immediately such number of shares of nonvested Restricted Stock equal to the Accelerated Portion shall fully vest, all restrictions (other than those described in Paragraph 10) applicable to the Accelerated Portion
of the nonvested Restricted Stock shall terminate, the Company shall release from escrow or trust and shall issue and deliver to the Director a certificate or certificates for the Accelerated Portion of the nonvested Restricted Stock and the Director shall forfeit the right to receive all shares of the nonvested Restricted Stock in excess of the Accelerated Portion. For these purposes, the "Accelerated Portion" shall be equal to the number of shares which is the product of (i) a fraction, the numerator of which is the number of completed months elapsed beginning on the Grant Date and ending on the date of termination of service as a director of the Company and the denominator of which is the total number of months in the Restriction Period, multiplied by (ii) the total number of shares of nonvested Restricted Stock immediately prior to the date of termination of the Director's position as a director of the Company. For these purposes, the Director's position as a director of the Company will be considered to be terminated by "retirement" if the Director has (i) reached age 55, and, (ii) the Director's combined age and years of service with the Company as a director is equal to 65 or greater.
7. OWNERSHIP RIGHTS. Subject to the restrictions set forth herein and subject to Paragraph 9, the Director is entitled to all voting and ownership rights applicable to the Restricted Stock, including the right to receive any dividends that may be paid on Restricted Stock, whether or not vested.
8. REORGANIZATION OF COMPANY AND SUBSIDIARIES. The existence of this Restricted Stock Agreement shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Restricted Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
9. ADJUSTMENT OF SHARES. In the event of stock dividends, spin-offs of assets or other extraordinary dividends, stock splits, combinations of shares, recapitalizations, mergers, consolidations, reorganizations, liquidations, issuances of rights or warrants and similar transactions or events involving the Company ("Recapitalization Events"), then for all purposes references herein to Common Stock or to Restricted Stock shall mean and include all securities or other property (other than cash) that holders of Common Stock of the Company are entitled to receive in respect of Common Stock by reason of each successive Recapitalization Event, which securities or other property (other than cash) shall be treated in the same manner and shall be subject to the same restrictions as the underlying Restricted Stock.
10. CERTAIN RESTRICTIONS. By accepting the Restricted Stock, the Director agrees that if at the time of delivery of certificates for shares of Restricted Stock issued hereunder any sale of such shares is not covered by an effective registration statement filed under the Securities Act of 1933 (the "Act"), the Director will acquire the Restricted Stock for the Director's own account and without a view to resale or distribution in violation of the Act or any other securities law, and upon any such acquisition the Director will enter into such written representations, warranties and agreements as the Company may reasonably request in order to comply with the Act or any other securities law or with this Restricted Stock Agreement.
11. AMENDMENT AND TERMINATION. No amendment or termination of this Restricted Stock Agreement which would impair the rights of the Director shall be made by the Board or the Plan Administrator at any time without the written consent of the Director. No amendment or termination of the Plan will adversely affect the right, title and interest of the Director under this Restricted Stock Agreement or to Restricted Stock granted hereunder without the written consent of the Director.
12. NO GUARANTEE OF CONTINUED POSITION AS A DIRECTOR. This Restricted Stock Agreement shall not confer upon the Director any right with respect to continuance of the Director's position as a director of the Company or other service with the Company or any subsidiary, nor shall it interfere in any way with any right the Company or any subsidiary would otherwise have to terminate such Director's position as a director of the Company or other service at any time.
13. WITHHOLDING OF TAXES. The Company shall have the right to (i) make deductions from the number of shares of Restricted Stock otherwise deliverable upon satisfaction of the conditions precedent under this Restricted Stock Agreement (and other amounts payable under this Restricted Stock Agreement) in an amount sufficient to satisfy withholding of any federal, state or local taxes required by law, or (ii) take such other action as may be necessary or appropriate to satisfy any such tax withholding obligations.
14. NO GUARANTEE OF TAX CONSEQUENCES. Neither the Company nor any subsidiary nor the Plan Administrator makes any commitment or guarantee that any federal or state tax treatment will apply or be available to any person eligible for benefits under this Restricted Stock Agreement.
15. SEVERABILITY. In the event that any provision of this Restricted Stock Agreement shall be held illegal, invalid, or unenforceable for any reason, such provision shall be fully severable, but shall not affect the remaining provisions of this Restricted Stock Agreement and this Restricted Stock Agreement shall be construed and enforced as if the illegal, invalid, or unenforceable provision had never been included herein.
16. GOVERNING LAW. The Restricted Stock Agreement shall be construed in accordance with the laws of the State of Florida to the extent federal law does not supersede and preempt Florida law.
17. ELECTRONIC DELIVERY AND SIGNATURES. The Director hereby consents and agrees to electronic delivery of any Plan documents, proxy materials, annual reports and other related documents. If the Company establishes procedures for an electronic signature system for delivery and acceptance of Plan documents (including documents relating to any programs adopted under the Plan), the Director hereby consents to such procedures and agrees that his or her electronic signature is the same as, and shall have the same force and effect as, his or her manual signature. The Director consents and agrees that any such procedures and delivery may be effected by a third party engaged by the Company to provide administrative services related to the Plan, including any program adopted under the Plan.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement effective as of the Grant Date.
ACKNOWLEDGED AND AGREED TO CHICO'S FAS, INC.
This _______ day of ________________, 20___.
By: _______________________________
Charles Kleman - Chief Financial Officer
_____________________________________
Director
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EXHIBIT 10.5
CHICO'S FAS, INC.
2005 CASH BONUS INCENTIVE PLAN
1. PURPOSE OF THE PLAN.
The purpose of the Plan is to advance the interests of the Company and its stockholders by providing incentives in the form of cash bonus awards to certain executives and other key employees of the Company and its Subsidiaries. The Plan is intended to enable the Company to attract and retain appropriate executive and key employee talent and to motivate such officers and key employees to manage and grow the Company's business and to attain the performance goals articulated under the Plan.
2. DEFINITIONS.
The following capitalized terms used in the Plan have the respective meanings set forth in this Section:
(a) "AWARD" means a cash bonus award granted pursuant to the Plan.
(b) "BOARD" means the Board of Directors of the Company.
(c) "CODE" means the Internal Revenue Code of 1986, as amended, or any successor thereto.
(d) "COMMITTEE" means the Compensation and Benefits Committee of the Board, or any successor thereto or any other committee designated by the Board to assume the obligations of the Committee hereunder.
(e) "COMPANY" means Chico's FAS, Inc., a Florida corporation, and its Subsidiaries.
(f) "EFFECTIVE DATE" means the date on which the Plan takes effect in accordance with Section 13 of the Plan.
(g) "PARTICIPANT" means an employee of the Company or any of its
Subsidiaries who is selected by the Committee to participate in the Plan pursuant to Section 4 of the Plan.
(h) "PERFORMANCE PERIOD" means the Company's 2005 fiscal year or any portion thereof designated by the Committee.
(i) "PLAN" means the Chico's FAS, Inc. 2005 Cash Bonus Incentive Plan.
(j) "SUBSIDIARY" means a subsidiary corporation, as defined in
Section 424(f) of the Code (or any successor section thereto).
3. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee shall have the authority to select the employees to be granted Awards under the Plan, to determine the size and terms of an Award (subject to the limitations imposed on Awards in Section 5 below), to modify the terms of any Award that has been granted, to determine the time when Awards will be made, the amount of any payments pursuant to such Awards, and the Performance Period to which they relate, to establish performance objectives in respect of such Performance Periods and to determine whether such performance objectives were attained. The Committee is authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make any other determinations that it deems necessary or desirable for the administration of the Plan. The Committee may correct any defect or omission or reconcile any inconsistency in the Plan in the manner and to the extent the Committee deems necessary or desirable. Any decision of the Committee in the interpretation and administration of the Plan, as described herein, shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned. Determinations made by the Committee under the Plan need not be uniform and may be made selectively among Participants, whether or not such Participants are similarly situated. The Committee shall have the right to deduct from any payment made under the Plan any federal, state, local or foreign income or other taxes required by law to be withheld with respect to such payment. The Committee may delegate to one or more employees of the Company or any of its Subsidiaries, including, but not limited to the Company's Chief Executive Officer, the authority to take actions on its behalf pursuant to the Plan; provided, however, only the Committee may determine compensation awards to Executive Officers.
4. ELIGIBILITY AND PARTICIPATION.
The Committee shall determine the executive officers and, upon the recommendation of the Chief Executive Officer, such other persons who shall be Participants for the Performance Period. Participants shall be selected from among the employees of the Company and any of its Subsidiaries. The designation of Participants may be made individually or by groups or classifications of employees, as the Committee deems appropriate. Participants may be granted one or more Awards.
5. AWARDS.
(a) Performance Goals. Awards under the Plan shall be conditioned on the attainment of written performance goals. Performance goals shall be recommended by the Chief Executive Officer and determined and approved by the Committee for the Performance Period. The Committee shall determine whether and to what extent each performance goal has been met. In determining whether and to what extent a performance goal has been met, the Committee shall consider the recommendation of the Chief Executive Officer (other than with respect to his Award or Awards) and may consider such other matters as the Committee deems appropriate.
(b) Target Bonus. The Committee shall determine and specify a target bonus amount to be payable pursuant to each Award for each Participant.
(c) Amount Payable. The amount payable pursuant to an Award shall be determined by the Committee in its sole discretion based on the applicable target bonus amount, any prescribed weighting of the performance goals if more than one, and the Committee's determination of whether and to what extent each applicable performance goal has been met. No amounts shall be paid for performance at or below the threshold level.
(d) Payment. The amount of the Award payable as determined by the Committee for the Performance Period shall be paid to the Participant at such time as determined by the Committee in its sole discretion after the end of the applicable Performance Period. The Committee shall have the discretion to decrease, but not increase, the amount of any payment otherwise payable pursuant to an Award based on such factors as it shall deem appropriate, but will consider the recommendation of the Chief Executive Officer prior to making any such determination.
(e) Termination of Employment. If a Participant dies, retires, is assigned to a different position or is granted a leave of absence, or if the Participant's employment is otherwise terminated (except with cause by the Company, as determined by the Committee in its sole discretion) during a Performance Period, a pro rata share of each of the Participant's Awards based on the period of actual participation may, in the Committee's sole and absolute discretion, be paid to the Participant after the end of the Performance Period if it would have become earned and payable had the Participant's employment status not changed.
6. AMENDMENTS OR TERMINATION.
The Committee may amend, alter or discontinue the Plan, but no amendment, alteration or discontinuation shall be made which would impair any of the rights or obligations under any Award theretofore granted to a Participant under the Plan without such Participant's consent; provided, however, that the Committee may amend the Plan in such manner as it deems necessary to permit the granting of Awards meeting the requirements of any applicable law, rule or regulation.
7. NO RIGHT TO EMPLOYMENT.
Neither the Plan nor any action taken hereunder shall be construed as giving any Participant or other person any right to continue to be employed by or perform services for the Company or any Subsidiary, and the right to terminate the employment of or performance of services by any Participant at any time and for any reason is specifically reserved to the Company and its Subsidiaries.
8. NONTRANSFERABILITY OF AWARDS.
An Award shall not be transferable or assignable by the Participant other than by will or by the laws of descent and distribution.
9. OFFSET OF AWARDS.
Notwithstanding anything to the contrary herein, the Committee, in its sole and absolute discretion, may reduce any amounts otherwise payable to any Participant hereunder in order to satisfy any liabilities owed to the Company or any of its Subsidiaries by the Participant.
10. ADJUSTMENTS UPON CERTAIN EVENTS.
In the event of any material change in the business assets, liabilities or prospects of the Company, any division or any Subsidiary, the Committee in its sole and absolute discretion and without liability to any person may make such adjustment, if any, as it deems to be equitable as to any affected terms of outstanding Awards.
11. MISCELLANEOUS PROVISIONS.
The Company is the sponsor and legal obligor under the Plan and shall make all payments hereunder, other than any payments to be made by any of the Subsidiaries (in which case payment shall be made by such Subsidiary, as appropriate). The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to ensure the payment of any amounts under the Plan, and the Participants' rights to the payment hereunder shall be no greater than the rights of the Company's (or Subsidiary's) unsecured creditors. All expenses involved in administering the Plan shall be borne by the Company.
12. CHOICE OF LAW.
The Plan shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed in the State of Florida.
13. EFFECTIVENESS OF THE PLAN.
The Plan shall be effective as of the date of its adoption by the Board.