Ex-10.1 James P. Frain Employment Trans Agreement



 






EXHIBIT 10.1




Employment Transition, Resignation, And Release Agreement




     This confidential resignation and release agreement (“Agreement”) is made and entered into the
1st day of August, 2005, by and between Chico’s FAS, Inc., a Florida corporation (the
“Company”), and James P. Frain (“Frain”).



     This Agreement supercedes all previous agreements between Frain and the Company. In
consideration of the promises set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, agree as
follows:


1. Effective as of March 1, 2006, Frain voluntarily resigns from his position as Executive Vice
President and Chief Marketing Officer of the Company, and the Company hereby accepts this
resignation. Effective as of the end of the day on February 28, 2006, Frain has no further
privileges, duties or obligations in such capacity. Until March 1, 2006, Frain shall continue to
perform substantially the same duties that he has performed over the last six years.



2. From March 1, 2006, through and including August 31, 2006, Frain shall be available to work as a
non-officer consulting employee and shall handle marketing projects as assigned to him by the
Company’s Chief Executive Officer or the Company’s Chief Operating Officer. Frain shall not be
required to work at the Company’s offices more than 10 days per month



3. From the date of this Agreement through February 28, 2006 and as long as Frain has not breached
any of his obligations under this Agreement, the Company shall pay Frain (1) his annualized basic
salary of $450,000; (2) any bonuses that may relate to fiscal year 2005 that would have otherwise
been payable to Frain and (3), such other fringe benefits as provided to other Chief Officers
including, without limitation, the vesting of stock options through February 28, 2006.



From March 1, 2006 through August 31, 2006 and as long as Frain has not breached any of his
obligations under this Agreement, CRS shall pay Frain (1) a monthly basic salary of $40,000; and
(2) such other fringe benefits as provided to other senior executives, including, without
limitation, health benefits and the vesting in due course of any previously granted stock options.
Frain will not be entitled to receive any car allowance, bonus, or super bonus. The Company retains
the right, in its sole discretion, to award Frain a discretionary bonus based on Frain’s
performance.



4. From the date of this Agreement up to and including February 28, 2006, Frain may terminate this
Agreement with ninety days written notice to the Company. Thereafter, Frain may terminate the
Agreement with thirty days written notice to the Company.




     If the Company terminates Frain’s employment without cause prior to August 31, 2006, the
Company will pay Frain, in full and complete satisfaction of any and all claims Frain may have
against the company related to this Agreement, the remaining total of any unpaid monies Frain would
have received under this Agreement through August 31, 2006. In addition, Frain will be permitted to
exercise any options that have vested as of the date of the termination consistent




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with the Company’s stock option plan. If the Company terminates Frain for cause or his
employment terminates due to his death or disability, then the Company only owes Frain those
amounts earned and owed through the date of termination and Frain will only be entitled to exercise
options vested as of the date of termination. For the purposes of this Agreement, the phrase “for
cause” means Frain’s (i) breach or default of any of the material terms of this Agreement and his
failure to cure the breach or default within thirty (30) days after he received written notice
thereof, (ii) conviction of either a felony involving moral turpitude or any crime in connection
with his employment by the Company which causes the Company a substantial detriment, (iii) actions
that clearly are contrary to the best interests of the Company, or (iv) directly or indirectly
entering into, engaging in, being employed by, or consulting with J. Jill, Ann Taylor, Talbot’s,
Coldwater Creek, The Limited Brands, Fourth & Towne, and Liz Claiborne (or any successor entities
of any of such companies or divisions).



5. Frain shall continue to be bound in all respects by all applicable provisions of the Company’s
Insider Trading Policy, Code of Ethics and Associate Nondisclosure Agreement that he previously
signed. Such continuing obligation shall be in addition to Frain’s obligations arising under this
Agreement and under applicable law.



6. Frain agrees that from the date of this Agreement and continuing for a period of six months
after his last date of employment with the Company, Frain shall refrain from and will not, directly
or indirectly, as an individual, partner, officer, director, stockholder, employee, advisor,
independent contractor, joint venturer, consultant, agent, representative, salesman or otherwise
solicit any of the employees of the Company to terminate their employment or solicit, attempt to
entice away, or offer to employ any of the Company’s current employees. For the purposes of this
restriction: the terms “solicit,” “attempt to entice away,” and “offer to employ” do not include
searches for employees, through general recruitment efforts or otherwise, that are not focused on
persons employed by the Company.



7. Frain shall be required to execute a copy of the release agreement substantially in the form
attached as Appendix A (a “Release”) as a condition to this Agreement. Frain also agrees to execute
a Release on February 28, 2006 as a condition of continuing as a consulting employee and for the
compensation and benefits during that period.



8. This Agreement shall be binding upon and inure to the benefit of Frain and his heirs,
administrators, representatives, executors, successors and assigns, and shall be binding upon and
inure to the benefit of Releasees and each of them, and to their respective heirs, administrators,
representatives, executors, successors and assigns. This Agreement shall be construed and
interpreted in accordance with the laws of the state of Florida.



9. This Agreement shall constitute the full and complete agreement between the parties concerning
its subject matter and fully supersedes any and all other prior agreements or understandings
between the parties regarding the subject matter hereto. This Agreement shall not be modified or
amended except by a written instrument signed by both Frain and an authorized representative of the
Company.




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10. The unenforceability or invalidity of any particular provision of this Agreement shall not
affect its other provisions and to the extent necessary to give such other provisions effect, they
shall be deemed severable.



11. Frain warrants, agrees that he has been encouraged to seek advice from anyone of his choosing
regarding this Agreement, including his attorney, accountant or tax advisor prior to his signing
it; that this Agreement represents written notice to do so; and that he has been given the
opportunity and sufficient time to seek such advice; and that he fully understands the meaning and
contents of this Agreement. FRAIN UNDERSTANDS THAT HE HAD THE RIGHT TO TAKE UP TO TWENTY-ONE (21)
DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS AGREEMENT. Frain further represents
and warrants that he was not coerced, threatened or otherwise forced to sign this Agreement and
that his signature appearing hereinafter is voluntary and genuine, is given freely and is given
with intent to be bound.



12. FRAIN UNDERSTANDS THAT HE MAY REVOKE THIS AGREEMENT BY NOTIFYING THE CHIEF FINANCIAL OFFICER OF
THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN (7) DAYS OF HIS EXECUTION OF THIS AGREEMENT
AND THAT THIS AGREEMENT IS NOT EFFECTIVE UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAYS. FOR SUCH
REVOCATION TO BE EFFECTIVE, WRITTEN NOTICE MUST BE ACTUALLY RECEIVED BY THE CHIEF FINANCIAL OFFICER
OF THE COMPANY AT THE COMPANY’S OFFICES NO LATER THAN THE CLOSE OF BUSINESS ON THE 7TH DAY AFTER
FRAIN EXECUTES THIS AGREEMENT. IF FRAIN EXERCISES HIS RIGHT TO REVOKE THIS AGREEMENT, ALL OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT SHALL BE OF NO FORCE AND EFFECT AND THE COMPANY SHALL NOT
HAVE ANY OBLIGATION TO MAKE THE PAYMENTS OR PROVIDE THE BENEFITS TO FRAIN PROVIDED FOR IN THIS
AGREEMENT. FRAIN UNDERSTANDS THAT UPON THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD WITHOUT SUCH A
REVOCATION, THIS AGREEMENT WILL BE BINDING UPON HIS AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES,
EXECUTORS, SUCCESSORS AND ASSIGNS AND WILL BE IRREVOCABLE.




	 	 	 	 	 
	WITNESS:	 	CHICO’S FAS, INC.
	 
	 	 	 	 
	/s/ A. Alexander Rhodes

	 	By:
	 	/s/ Scott A. Edmonds
	 

	 	 	 	 
	 

	 	 	 	Scott A. Edmonds
	 

	 	 	 	President and Chief Executive Officer
	 
	 	 	 	 
	WITNESS:
	 	 	 	 
	 
	 	 	 	 
	/s/ A. Alexander Rhodes	 	 	 	/s/ James Frain
	 	 	 
	 

	 	James Frain






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APPENDIX A—GENEREAL RELEASE




     In consideration of the payments to be made and the benefits to be received by Frain pursuant
to this Agreement, which Frain acknowledges are in addition to payment and benefits to which Frain
would not be entitled to but for this Agreement, Frain, for himself, his dependents, successors,
assigns, heirs, executors and administrators (and their respective 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, successors, assigns, representatives, agents, counsel, the
Company’s and its affiliates’ benefit plans, including the respective 401(k) plans, the respective
benefit plans’ trustees, administrators, and all other fiduciaries, employees, and their agents
(collectively, “Releasees”), of and from any and all arbitrations, claims (including claims for
attorneys’ fees), demands, damages, suits, proceedings, actions and/or causes of action of any kind
and every description, whether known or unknown, which Frain, and his heirs, executors,
administrators, agents, distributees, beneficiaries, successors in interest and assignees, now have
or in the future may have, by reason of any matter, cause or thing whatsoever from the beginning of
the world to the date of this Agreement (“claims”), against the Releasees, including but not
limited to the following (except that such Release shall not operate to release the Company from
its express obligations under this Agreement):



     Any and all claims for salary, wages, compensation, monetary relief, employment benefits,
including but not limited to, any claims for benefits under, or contribution to, an employee
benefit plan, profit sharing or any retirement plan, capital stock, bonuses, merit and longevity
increases, and all other benefits of all kind, earnings, backpay, front pay, liquidated, and other
damages, interest, attorney’s fees and costs, compensatory damages, punitive damages, damage to
character, damage to reputation, emotional distress, mental anguish, depression, injury, impairment
in locating employment, financial loss, pain and suffering, injunctive and declaratory relief
arising from his employment with the Company or its subsidiaries or his separation thereof;
provided, however, notwithstanding anything to the contrary set forth herein, that this General
Release shall not extend to (x) benefit claims under employee pension benefit plans in which Frain
is a participant by virtue of his employment with the Company or its subsidiaries, and (y) any
obligation expressly assumed or acknowledged under this Agreement by the Company.



     Any and all claims growing out of, resulting from, or connected in any way to Frain’s
employment with the Company or its subsidiaries, and/or the separation thereof, including any and
all claims for discrimination, including but not limited to claims of discrimination on the basis
of race, national origin, color, religion, handicap or disability, age, sex, harassment of any
kind, including sexual harassment, retaliation, whistleblowing, breach of contract, rescission,
promises, claims under the Employee Retirement Income Security Act of 1974 “ERISA”) [29 U.S.C.
Sections 1001B1461], as amended, including ERISA Section 510 and any claims to benefits under
any and all bonus, severance or any other similar plan sponsored by the Company now and hereafter,
torts of all kinds, claims or rights under state and federal whistleblower legislation, including
Sections 448.101B448.105, Florida Statutes, as amended, the consolidated Omnibus Budget
Reconciliation Act of 1985 [Pub. L. 99-509], as amended (“COBRA”), the Florida Health Insurance
Coverage Continuation Act (“FHICCA”), the Family and Medical




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Leave Act [29 U.S.C. Sections 2601-2654], as amended (“FMLA”), the Americans with
Disabilities Act [42 U.S.C. Sections 12101-12213], as amended (“ADA”), the Age Discrimination in
Employment Act, as amended (“ADEA”), the Polygraph Protection act, the Internal Revenue Service
Code [Title 26, U.S.C.], as amended, the Older Workers Benefit Protection Act [29 U.S.C. Section
621-630], as amended (“OWBPA”), the Equal Pay Act [29 U.S.C. Section 206(d)], as amended (“EPA”),
Title VII of the Civil Rights Act of 1964 [42 U.S.C. Section 2000e-2000e-17] as amended (“Title
VII”), the Florida Civil Rights Act of 1992 [Sections 760.02-760.11, Fla. Stats.], as amended
(“FCRA”), the Uniformed Services Employment and Reemployment Rights Act of 1994 [38 U.S.C. Sections
4301-4333] (“USERRA”), the National Labor Relations Act [29 U.S.C. Sections 151-169], as amended
(“NLRA”), the Occupational safety and Health Act [29 U.S.C. Sections 201-219], as amended (“OSHA”),
the Fair Labor Standards Act [29 U.S.C. Sections 201-219], as amended (“FLSA”), retaliation
pursuant to Section 440.205 Florida Statutes, and any other claim of any kind; provided, however,
notwithstanding anything to the contrary set forth herein, that this General Release shall not
extend to (x) benefit claims under employee pension benefit plans in which Frain is a participant
by virtue of his employment with the Company, and (y) any obligation expressly assumed under this
Agreement by the Company.




	 	 	 	 	 
	WITNESS:	 	CHICO’S FAS, INC.
	 
	 	 	 	 
	/s/ A. Alexander Rhodes

	 	By:
	 	/s/ Scott A. Edmonds
	 

	 	 	 	 
	 

	 	 	 	      Scott A. Edmonds
	 

	 	 	 	      President and Chief Executive Officer
	 
	 	 	 	 
	WITNESS:
	 	 	 	 
	 
	 	 	 	 
	/s/ A. Alexander Rhodes	 	 	 	/s/ James Frain
	 	 	 
	 

	 	James Frain







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