INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is
made and entered into this 5 th day of December , 2005 , by and
between Ross E. Roeder (the “Indemnified Party”)
and CHICO’S FAS, INC., a Florida corporation (the
“Corporation”).
WHEREAS, it is
essential to the Corporation to retain and attract as Directors
and/or Executive Officers the most capable persons available;
and
WHEREAS, the
substantial increase in corporate litigation subjects directors and
officers to expensive litigation risks at the same time that the
availability of directors’ and officers’ liability
insurance has been severely limited; and
WHEREAS, in
addition, the statutory indemnification provisions of the Florida
Business Corporation Act and Article VII of the bylaws of the
Corporation (the “Article”) expressly provide that they
are non-exclusive; and
WHEREAS, the
Indemnified Party does not regard the protection available under
the Article and insurance, if any, as adequate in the present
circumstances, and considers it necessary and desirable to his
service as a Director and/or Executive Officer to have adequate
protection, and the Corporation desires the Indemnified Party to
serve in such capacity and have such protection; and
WHEREAS, the
Florida Business Corporation Act and the Article provide that
indemnification of Directors and Executive Officers of the
Corporation may be authorized by agreement, and thereby
contemplates that contracts of this nature may be entered into
between the Corporation and the Indemnified Party with respect to
indemnification of the Indemnified Party as a Director and/or
Executive Officer of the Corporation.
NOW THEREFORE, in
consideration of the premises and the mutual covenants and
agreements contained in this Agreement, it is hereby agreed as
follows:
1. INDEMNIFICATION GENERALLY .
(a)
Grant of Indemnity . (i) Subject to and upon the terms
and conditions of this Agreement, the Corporation shall indemnify
and hold harmless the Indemnified party in respect of any and all
costs, claims, losses, damages and expenses which may be incurred
or suffered by the Indemnified Party as a result of or arising out
of prosecuting, defending, settling or investigating:
(1)
any threatened, pending, or completed claim, demand, inquiry,
investigation, action , suit or proceeding, whether formal or
informal or brought by or in the right of the Corporation or
otherwise and whether of a civil, criminal, administrative or
investigative nature, in which the Indemnified Party may be or may
have been involved as a party or otherwise, arising out of the fact
that the Indemnified Party is or was a director, officer, employee,
independent contractor or stockholder of the Corporation or any of
its “Affiliates” (as such term is defined in the rules
and regulations promulgated by the Securities and Exchange
Commission under the Securities Act of 1933), or served as a
director, officer, employee,
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independent
contractor or stockholder in or for any person, firm, partnership,
corporation or other entity at the request of the Corporation
(including without limitation service in any capacity for or in
connection with any employee benefit plan maintained by the
Corporation or on behalf of the Corporation’s
employees);
(2)
any attempt (regardless of its success) by any person to charge or
cause the Indemnified Party to be charged with wrongdoing or with
financial responsibility for damages arising out of or incurred in
connection with the matters indemnified against in this Agreement;
or
(3)
any expense, interest, assessment, fine, tax, judgment or
settlement payment arising out of or incident to any of the matters
indemnified against in this Agreement including reasonable fees and
disbursements of legal counsel, experts, accountants, consultants
and investigators (before and at trial and in appellate
proceedings).
(ii) The
obligation of the Corporation under this Agreement is not
conditioned in any way on any attempt by the Indemnified Party to
collect from an insurer any amount under a liability insurance
policy.
(iii) In
no case shall any indemnification be provided under this Agreement
to the Indemnified Party by the Corporation in:
(1)
Any action or proceeding brought by or in the name or interest of
the Indemnified Party against the Corporation; or
(2)
Any action or proceeding brought by the Corporation against the
Indemnified Party, which action is initiated at the direction of
the Board of Directors of the Corporation.
(b)
Claims for Indemnification . (i) Whenever any claims
shall arise for indemnification under this Agreement, the
Indemnified Party shall notify the Corporation promptly and in any
event within 30 days after the Indemnified Party has actual
knowledge of the facts constituting the basis for such claim. The
notice shall specify all facts known to the Indemnified Party
giving rise to such indemnification right and the amount or an
estimate of the amount of liability (including estimated expenses)
arising therefrom.
(ii) Any
indemnification under this Agreement shall be made no later than
30 days after receipt by the Corporation of the written
notification specified in Section 1(b)(i), unless a
determination is made within such 30 day period by
(X) the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the mater described
in the notice of (Y) independent legal counsel, agreed to by the
Corporation, in a written opinion (which counsel shall be appointed
if such a quorum is not obtainable), that the Indemnified Party has
not met the relevant standards for indemnification under this
Agreement.
(c)
Rights to Defend or Settle; Third Party Claims, etc .
(i) If the facts giving rise to any indemnification right
under this Agreement shall involve any actual or threatened claim
or demand against the Indemnified Party, or any possible claim by
the Indemnified Party against any third party, such claim shall be
referred to as a “Third Party Claim.” If the
Corporation
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provides the
Indemnified Party with an agreement in writing in form and
substance satisfactory to the Indemnified Party and his counsel,
agreeing to indemnify, defend or prosecute and hold the Indemnified
Party harmless from all costs and liability arising from any Third
Party Claim (an “Agreement of Indemnity”), and
demonstrating to the satisfaction of the Indemnified Party the
financial wherewithal to accomplish such indemnification, the
Corporation may at its own expense undertake full responsibility
for the defense or prosecution of such Third Party Claim. The
Corporation may contest or settle any such Third Party Claim for
money damages on such terms and conditions as it deems appropriate
but shall be obligated to consult in good faith with the
Indemnified Party and not to contest or settle any Third Party
Claim involving injunctive or equitable relief against or affecting
the Indemnified Party of his properties or assets without the prior
written consent of the Indemnified Party, such consent not to be
withheld unreasonably. The Indemnified Party may participate at his
own expense and with his own counsel in defense or prosecution of a
Third Party Claim pursuant to this Section 1(c)(i), and such
participation shall not relieve the Corporation of its obligation
to indemnify the Indemnified Party under this Agreement.
(ii) If
the Corporation fails to deliver a satisfactory Agreement of
Indemnity and evidence of financial wherewithal within 10 days
after receipt of notice pursuant to Section 1(b), the
Indemnified Party may contest or settle the Third Party Claim on
such terms as it sees fit but shall not reach a settlement with
respect to the payment of money damages without consulting in good
faith with the Corporation. The Corporation may participate at its
own expense and with its own counsel in defense or prosecution of a
Third Party Claim pursuant to this Section 1(c)(ii), but any
such participation shall not relieve the Corporation of its
obligations to indemnify the Indemnified Party under this
Agreement. All expenses (including attorneys’ fees) incurred
in defending or prosecuting any Third Party Claim shall be paid
promptly by the Corporation as the suit or other matter is
proceeding, upon the submission of bills therefore or other
satisfactory evidence of such expenditures during the pendency of
any matter as to which indemnification is available under this
Agreement. The failure to make such payments within 10 days
after submission of evidence of those expenses shall constitute a
breach of a material obligation of the Corporation under this
Agreement.
(iii) If
by reason of any Third Party Claim a lien, attachment, garnishment
or execution is placed upon any of the property or assets of the
Indemnified Party, the Corporation shall promptly furnish a
satisfactory indemnity bond to obtain the prompt release of such
lien, attachment, garnishment or execution.
(iv) The
Indemnified Party shall cooperate in the defense of any Third Party
Claim which is controlled by the Corporation, but the Indemnified
Party shall continue to be entitled to indemnification and
reimbursement for all costs and expenses incurred by him in
connection therewith as provided in this Agreement.
(d)
Cooperation . The parties to this Agreement shall execute
such powers of attorney as may be necessary or appropriate to
permit participation of counsel selected by any party hereto and,
as may be reasonably related to any such claim or action, shall
provide to the counsel, accountants and other representatives of
each party access during normal business hours to all properties,
personnel, books, records, contracts, commitments and all other
business records of such other party and will furnish to such other
party copies of all such documents as may be reasonably requested
(certified, if requested).
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(e)
Choice of Counsel . In all matters as to which
indemnification is available to the Indemnified Party under this
Agreement, the Indemnified Party shall be free to choose and retain
counsel, provided the Indemnified Party shall secure the prior
written consent of the Corporation as to such selection, which
consent shall not be unreasonably withheld.
(f)
Consultation . If the Indemnified Party desires to retain
the services of an attorney prior to the determination by the
Corporation as to whether it will undertake the defense or
prosecution of the Third Party Claim as provided in
Section 1(c), the Indemnified Party shall notify the
Corporation of such desire in the notice delivered pursuant to
Section 1(b)(i), and such notice shall identify the counsel to
be retained. The Corporation shall then have 10 days within
which to advise the Indemnified Party whether it will assume the
defense or prosecution of the Third Party Claim in accordance with
Section 1(c)(i). If the Indemnified Party does not receive an
affirmative response within such 10-day period, he shall be free to
retain counsel of his choice, and the indemnity provided in Section
1(a) shall apply to the reasonable fees and disbursements of such
counsel incurred after the expiration of such 10-day period. Any
fees
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