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EXHIBIT 10.3
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT is made and entered into this
21st day of September, 2000, to be effective for all purposes as of August 21,
2000, by and between CHICO'S FAS, INC., a Florida corporation (the "Company"),
and MORI CAMERON MACKENZIE, residing at 23561 Sandy Creek Terrace, #1305, Bonita
Springs, Florida 34135 (the "Employee").
W I T N E S S E T H:
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WHEREAS, the parties hereto have entered into that certain Employment
Agreement dated September 26, 1995 by and between the Company and the Employee
(the "Employment Agreement"); and
WHEREAS, the Company and the Employee have agreed to amend the terms of the
Employment Agreement in certain respects as set forth in this Amendment No. 1 to
Employment Agreement (the "Amendment").
[1. TERM
Section 2 of the Employment Agreement shall be replaced in its entirety by
the following:
Subject to the provisions of termination as hereinafter provided, the
term of employment under this Agreement shall be effective as of October 9,
1995 and shall continue through September 30, 2001; provided, however, that
beginning on September 30, 2000 and on each September 30th (each a "Renewal
Date") thereafter, the term of this agreement shall automatically be
extended for one additional year so that on each Renewal Date the then
remaining unexpired term of this Agreement shall be two years, unless
either party gives the other written notice of non-renewal at least ninety
(90) days prior to any such Renewal Date.]
2. COMPENSATION
Section 3(a) of the Employment Agreement shall be replaced in its entirety
by the following, with the specified annualized salary effective from February
7, 2000:
(a) The Employer shall pay to the Employee as compensation for
all services rendered by the Employee during the term of this Agreement a
basic annualized salary of $195,000 per year (the "Basic Salary"), or such
other sum as the
1.
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parties may agree on from time to time, payable monthly or in other more
frequent installments, as determined by the Employer. The Board of
Directors of the Employer shall have the right to increase the Employee's
compensation from time to time by action of the Board of Directors. In
addition, the Board of Directors of the Employer, in its discretion, may,
with respect to any year during the term hereof, award a bonus or bonuses
to the Employee in addition to the bonuses provided for in Section 3(b).
The compensation provided for in this Section 3(a) shall be in addition to
any pension or profit sharing payments set aside or allocated for the
benefit of the Employee.
3. DUTIES
Section 4 of the Employment Agreement shall be replaced in its entirety as
follows:
4. Duties. The Employee is engaged as the Vice President - Director
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of Stores. In addition, the Employee shall have such other duties and hold
such other offices as may from time to time be reasonably assigned to her
by the Board of Directors of the Employer.
4. OTHER TERMINATIONS
Section 8(c)(i) of the Employment Agreement shall be replaced in its
entirety as follows:
(i) If the Employer shall terminate the employment of the
Employee without good cause effective on a date earlier than the
termination date provided for in Section 2 (with the effective date of
termination as so identified by the Employer being referred to herein as
the "Accelerated Termination Date"), the Employee, until the termination
date provided for in Section 2 or until the date which is twelve (12)
months after the Accelerated Termination Date, whichever is later, shall
continue to receive the Basic Salary and other compensation and employee
benefits (including without limitation the bonus that would otherwise have
been payable during such compensation continuation period under the bonus
plan in effect immediately before the Accelerated Termination Date) that
the Employer has heretofore in Section 3 agreed to pay and to provide for
the Employee, in each case in the amount and kind and at the time provided
for in Section 3; provided that, notwithstanding such termination of
employment, the Employee's covenants set forth in Section 10 and Section 11
are intended to and shall remain in full force and effect.
Section 8(d) of the Employment Agreement shall be replaced in its entirety
by Sections 8(d), 8(e) and 8(f), as follows:
(a) Rights Upon Change in Control.
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(i) If a Change in Control of the Employer, as defined in Section
8(d)(ii) shall occur and the Employee shall:
(1) voluntarily terminate her employment within one year
following such Change in Control and such termination shall be as a
result of the Employee's good faith determination that as a result of
the Change in Control and a change in circumstances thereafter
significantly affecting her position, she can no longer adequately
exercise the authorities, powers, functions or duties attached to her
position as an executive officer of the Employer; or
(2) voluntarily terminate her employment within one year
following such Change in Control, and such termination shall be as a
result of the Employee's good faith determination that she can no
longer perform her duties as an executive officer of the Employer by
reason of a substantial diminution in her responsibilities, status or
position; or
(3) have her employment terminated by the Employer for
reasons other than those specified in Section 8(b)(ii) within one (1)
year following such Change in Control;
then in any of the above three cases, the Employee shall have, instead of
the further rights described in Section 3(a), the right to immediately
terminate this Agreement and a nonforfeitable right to receive the sum of
the monthly amounts of her Basic Salary for a period equal to 36 months
plus three times her most recently set annual target bonus.
(ii) For purposes of this Agreement, a "Change in Control" shall
mean:
(1) the obtaining by any party of fifty percent (50%) or
more of the voting shares of the Employer pursuant to a "tender offer"
for such shares as provided under Rule 14d-2 promulgated under the
Securities Exchange Act of 1934, as amended, or any subsequent
comparable federal rule or regulation governing tender offers; or
(2) individuals who were members of the Employer's Board of
Directors immediately prior to any particular meeting of the
Employer's shareholders which involves a contest for the election of
directors fail to constitute a majority of the members of the
Employer's Board of Directors following such election; or
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(3) the Employer's executing an agreement concerning the
sale of substantially all of its assets to a purchaser which is not a
subsidiary; or
(4) the Employer's adoption of a plan of dissolution or
liquidation; or
(5) the Employer's executing an agreement concerning a
merger or consolidation involving the Employer in which the Employer
is not the surviving corporation or if, immediately following such
merger or consolidation, less than fifty percent (50%) of the
surviving corporation's outstanding voting stock is held by persons
who are stockholders of the Employer immediately prior to such merger
or consolidation.
(iii) The provisions of Section 8(c) and this Section 8(d) are
mutually exclusive, provided, however, that if within one year following
commencement of an 8(c) payout there shall be a Change in Control as
defined in Section 8(d)(ii), then the Employee shall be entitled to the
amount payable to the Employee under Section 8(d)(i) reduced by the amount
that the Employee has received under Section 8(c) up to the date of the
change in control. The triggering of the lump sum payment requirement of
this Section 8(d) shall cause the provisions of Section 8(c) to become
inoperative. The triggering of the continuation of payment provisions of
Section 8(c) shall cause the provisions of Section 8(d) to become
inoperative except to the extent provided in this Section 8(d)(iii).
(b) Compensation Payable Upon Termination by Employer for Good Cause
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or Voluntarily by Employee Absent Change in Control. If the employment of
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the Employee is terminated for good cause under Section 8(b)(ii) of this
Agreement, or if the Employee voluntarily terminates her employment by
written notice to the Employer under Section 8(a) of this Agreement without
reliance on Section 8(d), the Employer shall pay to the Employee any
compensation earned but not paid to the Employee prior to the effective
date of such termination. Under such circumstances, such payment shall be
in full and complete discharge of any and all liabilities or obligations of
the Employer to the Employee hereunder, and the Employee shall be entitled
to no further benefits under this Agreement.
(c) Release. Payment of any compensation to the Employee under this
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Section 8 following termination of employment shall be conditioned upon the
prior receipt by the Employer of a release executed by the Employee in
substantially the form attached to this Agreement as Exhibit A.
5. MISCELLANEOUS
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Unless specifically modified, added or deleted by this Amendment No.1, all
terms and provisions of the Employment Agreement remain in full force and effect
throughout the term of the Employment Agreement, as amended.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the day
and year first above written.
CHICO'S FAS, INC.
By: /s/ Marvin Gralnick
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Marvin J. Gralnick, President
"Company"
/s/ Mori Cameron MacKenzie
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MORI CAMERON MACKENZIE
"Employee"
5.
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH MORI CAMERON MACKENZIE
DATED AS OF _______________, 2000
Release
WHEREAS, _______________________________ (the "Executive") is an employee
of Chico's FAS, Inc., (the "Company") and is a party to the Employment Agreement
dated __________________ (the "Agreement");
WHEREAS, the Executive's employment has been terminated in accordance with
Section 8___ of the Agreement; and
WHEREAS, the Executive is required to sign this Release in order to receive
the payment of any compensation under Section 8 of the Agreement following
termination of employment.
NOW, THEREFORE, in consideration of the promises and agreements contained
herein and other good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, and intending to be legally bound, the Executive
agrees as follows:
1. This Release is effective on the date hereof and will continue in
effect as provided herein.
2. In consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Agreement (collectively, the "Release
Consideration), which the Executive acknowledges are in addition to payments and
benefits to which the Executive would be entitled but for the Agreement, the
Executive, for the Executive and the Executive's dependents, successors,
assigns, heirs, executors and administrators (and the Executive and their legal
representatives of every kind), hereby releases, dismisses, remises and forever
discharges the Company, its predecessors, parents, subsidiaries, divisions,
related or affiliated companies, officers, directors, stockholders, members,
employees, heirs, successors, assigns, representatives, agents and counsel
(collectively the "Released Party") from any and all arbitrations, claims,
including claims for attorney's fees, demands, damages, suits, proceedings,
actions and/or causes of action of any kind and every description, whether known
or unknown, which the Executive now has or may have had for, upon, or by reason
of any cause whatsoever ("claims"), against the Released Party, including but
not limited to:
(1) any and all claims arising out of or relating to Executive's
employment by or service with the Company and the Executive's
termination from the Company.
(2) any and all claims of discrimination, including but not limited to
claims of discrimination on the basis of sex, race, age, national
origin, marital status, religion or handicap, including, specifically,
but without limiting the generality of the foregoing, any claims under
the Age Discrimination in Employment Act, as
A-1.
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amended, Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act; and
(3) any and all claims of wrongful or unjust discharge or breach of any
contract or promise, express or implied.
Notwithstanding the foregoing, nothing herein shall be considered as releasing
the Company from its obligations to pay and/or provide the Release Consideration
or as an agreement by the Executive not to file a lawsuit to enforce the payment
and/or providing of the Release Consideration.
3. The Executive understands and acknowledges that the Company does
not admit any violation of law, liability or invasion of any of the Executive
rights and that any such violation, liability or invasion is expressly denied.
The consideration provided for this Release is made for the purpose of settling
and extinguishing all claims and rights (and every other similar or dissimilar
matter) that the Executive ever had or now may have against the Company to the
extent provided in this Release. The Executive further agrees and acknowledges
that no representations, promises or inducements have been made that the Company
other than as appear in the Agreement.
4. The Executive further agrees and acknowledges that:
(1) The Release provided for herein releases claims to and including the
date of this Release;
(2) The Executive has been advised by the Company to consult with legal
counsel prior to executing this Release, has had an opportunity to
consult with and to be advised by legal counsel of the Executive's
choice, fully understands the terms of this Release, and enters into
this Release freely, voluntarily and intending to be found.
(3) The Executive has been given a period of 21 days to review and
consider the terms of this Release, prior to its execution and that
the Executive may use as much of the 21 day period as the Executive
desires; and
(4) The Executive may, within 7 days after execution, revoke this Release.
Revocation shall be made by delivering a written notice of revocation
to the Chief Financial Officer at the Company. For such revocation to
be effective, written notice must be actually received by the Chief
Financial Officer at the Company no later than the close of business
on the 7th day after the Executive executes this Release. If the
Executive does exercise the Executive's right to revoke this Release,
all of the terms and conditions of the Release shall be of no force
and effect and the Company shall not have any obligation to make
payments or provide benefits to the Executive as set forth in Sections
8 of the Agreement.
5. The Executive agrees that the Executive will never file a lawsuit
or other complaint asserting any claim that is released in this Release.
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6. The Executive waives and releases any claim that the Executive has
or may have to reemployment after________________________.
IN WITNESS WHEREOF, the Executive has executed and delivered this Release
on the date set forth below.
Dated:________________________
Executive
A-3.
