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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1998
Registration Statement No.
---------------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 (I.R.S. Employer
of incorporation or organization) Identification Number)
11215 METRO PARKWAY
FORT MYERS, FLORIDA 33912
(941) 277-6200
(Address, including zip code,
of Registrant's principal executive offices)
CHICO'S FAS, INC.
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
MARVIN J. GRALNICK, PRESIDENT
CHICO'S FAS, INC.
11215 METRO PARKWAY
FORT MYERS, FLORIDA 33912
(Name and address of agent for service)
(941) 277-6200
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered Price Per Share(1) Aggregate Offering Price Registration Fee
====================================================================================================================
<S> <C> <C> <C> <C>
Common Stock. . . . . . . . 150,000 shs. $23.3125 $3,496,875.00 $972.13
====================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c), solely for the purpose of calculating
the registration fee, based upon the average of the high and low prices for
the common stock reported by the Nasdaq National Market System on December
21, 1998.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
By this reference, the following documents filed or to be filed by
Chico's FAS, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated into and made a part of this Registration
Statement:
1. The Company's Annual Report on Form 10-K (Commission File No.
0-21258) for the Year Ended January 31, 1998, as filed with the
Commission on April 27, 1998.
2. The Company's Quarterly Reports on Form 10-Q (Commission File
No. 0-21258) for the Quarters Ended May 2, 1998, August 1, 1998
and October 31, 1998 as filed with the Commission on June 3,
1998, September 2, 1998 and December 11, 1998, respectively.
3. All documents filed by the Company with the Commission
subsequent to the date of this Registration Statement under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated into and made a part of this
Registration Statement from the date of filing of such documents
with the Commission.
4. The description of the Common Stock of the Company contained on
page 47 of the Company's Prospectus dated November 16, 1993, as
filed with the Commission under Rule 424(b) of the Securities
Act of 1933, which was a part of the Company's Registration
Statement on Form S-1 (Registration Statement No. 33-70620), as
amended and which was incorporated by reference in the Company's
Registration Statement on Form 8-A as filed with the Commission
under the Securities Exchange Act of 1934 (Registration
Statement No. 0-21258).
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 officer or director 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
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further that, with respect to any criminal action or proceeding, the officer or
director 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 was or is
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 actually and reasonably incurred in connection with the defense or
settlement of such proceeding, 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 liable unless a court of competent jurisdiction determines upon
application that such person is fairly and reasonably entitled to indemnity. To
the extent that any officers or directors 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 officers or
directors against expenses actually and reasonably incurred in connection
therewith. However, the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any officer or director 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
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
Company's By-laws provides that the Company shall indemnify any director,
officer or employee or any former director, officer or employee to the full
extent permitted by law.
The Company 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 Company also are insured against
certain liabilities, including certain liabilities arising under the Securities
Act of 1933, which might be incurred by them in such capacities and against
which they are not indemnified by the Company.
The Company has entered into indemnity agreements with each of its
directors and executive officers. The indemnity agreements create certain
indemnification obligations of the Company in favor of the directors and
executive officers and, as a 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.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ ------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation (incorporated herein
by reference to Exhibit 3.2 to the Company's Form 10-Q for the
Quarter ended September 1, 1992, as filed with the Commission on
October 15, 1992).
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.2 Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.4 to the
Company's Form 10-Q for the Quarter ended September 1, 1992, as filed with the Commission on
October 15, 1992).
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, as to the legality of the
Common Stock being registered
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis (contained in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Powers of Attorney (contained on signature page)
</TABLE>
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 of 1933;
(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 a 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 information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 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 of 1933 and will be
governed by the final adjudication of such issue.
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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 21st day
of December, 1998.
Chico's FAS, Inc.
By: /s/ Marvin J. Gralnick
----------------------------------
Marvin J. Gralnick
President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers
and directors of Chico's FAS, Inc., a Florida corporation, for himself and not
for one another, does hereby constitute and appoint Marvin J. Gralnick, Charles
J. Kleman and Scott A. Edmonds, and each of them, a true and lawful attorney in
his name, place and stead, in any and all capacities, to sign his name to any
and all amendments, including post-effective amendments, to this registration
statement, with respect to the proposed issuance, sale and delivery of shares
of its Common Stock, and to cause the same to be filed with the Securities and
Exchange Commission, granting unto said attorneys and each of them full power
and authority to do and perform any act and thing necessary and proper to be
done in the premises, as fully to all intents and purposes as the undersigned
could do if personally present, and each of the undersigned for himself hereby
ratifies and confirms all that said attorneys or any one of them shall 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Marvin J. Gralnick President, Chief Executive December 21, 1998
- ----------------------------------------- Officer and Director
Marvin J. Gralnick (Principal Executive Officer)
/s/ Charles J. Kleman Chief Financial Officer, December 21, 1998
- ----------------------------------------- Executive Vice President -
Charles J. Kleman Finance and Director (Principal
Financial Officer and Principal
Accounting Officer)
/s/ Helene B. Gralnick Director December 21, 1998
- -----------------------------------------
Helene B. Gralnick
/s/ Verna K. Gibson Director December 21, 1998
- -----------------------------------------
Verna K. Gibson
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Ross E. Roeder Director December 21, 1998
- ---------------------------------------------------
Ross E. Roeder
/s/ John W. Burden Director December 21, 1998
- ----------------------------------------------------
John W. Burden
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- ----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation (incorporated herein by reference to Exhibit
3.2 to the Company's Form 10-Q for the Quarter ended September 1, 1992, as filed with the
Commission on October 15, 1992).
4.2 Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.4 to the
Company's Form 10-Q for the Quarter ended September 1, 1992, as filed with the Commission on
October 15, 1992).
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, as to the legality of the
Common Stock being registered
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis (contained in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Powers of Attorney (contained on signature page)
</TABLE>
<PAGE> 1
EXHIBIT 5
[Trenam, Kemker, et al. Letterhead]
December 21, 1998
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Chico's FAS, Inc.
Non-Employee Directors' Stock Option Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have represented Chico's FAS, Inc. (the "Company") in connection
with the Company's Registration Statement on Form S-8 (the "S-8 Registration
Statement") relating to the offering by the Company (the "Offering") of 150,000
shares of the Company's Common Stock under the Company's Non-Employee
Directors' Stock Option Plan (the "Plan"). This opinion is being provided as
Exhibit 5 to the S-8 Registration Statement.
In our capacity as counsel to the Company in connection with the S-8
Registration Statement and the Offering, we have examined and are familiar
with: (1) the Company's Articles of Incorporation and Bylaws, each as currently
in effect, (2) the Plan, (3) the S-8 Registration Statement and (4) such other
corporate records and documents and instruments as in our opinion are necessary
or relevant as the basis for the opinions expressed below.
As to various questions of fact material to our opinion, we have relied
without independent investigation on statements or certificates of officials
and representatives of the Company, the Department of State of the State of
Florida and others. In all such examinations, we have assumed the genuineness
of all signatures on original and certified documents and the conformity to
original and certified documents of all copies submitted to us as conformed,
photostatic or other exact copies.
We express no opinion as to the law of any jurisdiction other than of
the State of Florida and the federal laws of the United States of America.
Based upon and in reliance on the foregoing, we are of the opinion
that:
<PAGE> 2
SECURITIES AND EXCHANGE COMMISSION December 21, 1998
PAGE 2
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1. The Company is a validly existing corporation under the laws of the
State of Florida and its status is active.
2. The Plan has been duly and legally authorized by all required
corporate action.
3. When the following events shall have occurred:
a. the S-8 Registration Statement shall have become effective in
accordance with the Securities Act of 1933, as amended;
b. the options covering shares of Common Stock shall have been
granted and exercised as contemplated in the Plan;
c. the consideration specified in the Plan and in the instrument of
grant covering options granted under the Plan shall have been
received; and
d. the certificates representing such shares shall have been duly
executed, counter-signed and issued by or on behalf of the
Company,
the shares of Common Stock so offered and sold in the Offering will be duly
authorized, validly issued, fully paid and non-assessable shares of the capital
stock of the Company.
This firm hereby consents to the filing of this opinion as an Exhibit
to the S-8 Registration Statement.
Sincerely,
TRENAM, KEMKER, SCHARF, BARKIN,
FRYE, O'NEILL & MULLIS
Professional Association
By: /s/ Gary I. Teblum
--------------------------------
Gary I. Teblum
<PAGE> 1
EXHIBIT 23.2
[Arthur Andersen LLP Letterhead]
CONSENT TO USE OF REPORT OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
March 3, 1998, incorporated by reference in Chico's FAS, Inc.'s Form 10-K for
the fiscal year ended January 31, 1998, and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Tampa, Florida
December 17, 1998
