o
|
Preliminary Proxy Statement
|
o
|
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
|
þ
|
Definitive Proxy Statement
|
o
|
Definitive Additional Materials
|
o
|
Soliciting Material Pursuant to Section 240.14a-12
|
þ
|
No fee required
|
o
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
|
1.
|
Title of each class of securities to which transaction applies
|
2.
|
Aggregate number of securities to which transaction applies
|
3.
|
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11
|
4.
|
Proposed maximum aggregate value of transaction
|
5.
|
Total fee paid
|
o
|
Fee paid previously with preliminary materials
|
o
|
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number or the Form or Schedule and the date of its filing.
|
1.
|
To elect a Board of Directors. The Board of Directors intends to nominate the following nine persons, each of whom currently serves as a Board member: Daniel J. Hirschfeld, Dennis H. Nelson, Karen B. Rhoads, James E. Shada, Robert E. Campbell, Bill L. Fairfield, Bruce L. Hoberman, John P. Peetz, III, and Michael E. Huss.
|
2.
|
To ratify the selection of Deloitte & Touche LLP as independent registered public accounting firm for the Company for the fiscal year ending February 1, 2014.
|
3.
|
To approve the Company’s 2013 Management Incentive Plan.
|
4.
|
To approve the Company’s Amended and Restated 2005 Restricted Stock Plan.
|
5.
|
To approve Performance-Based Awards granted pursuant to the Company’s 2005 Restricted Stock Plan.
|
6.
|
To transact such other business as may properly come before the meeting and any adjournments or postponements thereof.
|
Shares of Common Stock
|
|||||||||||
Name of Beneficial Owner
|
Current
Ownership
|
Right to
Acquire (2)
|
Total
Beneficial
Ownership
|
Percent
|
|||||||
5% Stockholders
|
|||||||||||
Royce & Associates, LLC (3)
|
7,222,213
|
0
|
7,222,213
|
15.03%
|
|||||||
Wellington Management Company, LLP (4)
|
2,367,531
|
0
|
2,367,531
|
4.93%
|
|||||||
Directors, Nominees, and Named Executive Officers
|
|||||||||||
Daniel J. Hirschfeld
|
16,200,000
|
0
|
16,200,000
|
33.52%
|
|||||||
Dennis H. Nelson
|
2,942,759
|
(1)
|
0
|
2,942,759
|
6.09%
|
||||||
Karen B. Rhoads
|
275,376
|
(1)
|
0
|
275,376
|
*
|
||||||
Robert E. Campbell
|
32,727
|
0
|
32,727
|
*
|
|||||||
Bill L. Fairfield
|
45,558
|
0
|
45,558
|
*
|
|||||||
Bruce L. Hoberman
|
25,780
|
0
|
25,780
|
*
|
|||||||
Michael E. Huss
|
9,750
|
0
|
9,750
|
*
|
|||||||
John P. Peetz, III
|
12,873
|
5,080
|
17,953
|
*
|
|||||||
James E. Shada
|
103,679
|
0
|
103,679
|
*
|
|||||||
All executive officers and Directors as a group (15)
|
20,231,471
|
(1)
|
5,080
|
20,236,551
|
41.85%
|
(1)
|
These amounts include shares owned within participants’ 401(k) accounts for which the voting power is held by MassMutual. Share amounts include Dennis H. Nelson with 5,454, Karen B. Rhoads with 2,629, and all executive officers as a group with 20,138.
|
(2)
|
These amounts represent shares as to which the named individual has the right to acquire through exercise of options which are exercisable within the next 60 days.
|
(3)
|
Shares owned by Royce & Associates, LLC are those reported in its most recent Form 13G/A, as filed with the SEC on January 4, 2013.
|
(4)
|
Shares owned by Wellington Management Company, LLP are those reported in its most recent Form 13G/A, as filed with the SEC on February 14, 2013.
|
Name
|
Audit
Committee
|
Compensation
Committee
|
Corporate Governance and
Nominating Committee
|
|||
Robert E. Campbell
|
X
|
X
|
X
|
|||
Bill L. Fairfield
|
Chairman
|
X
|
X
|
|||
Bruce L. Hoberman
|
X
|
X
|
Chairman
|
|||
Michael E. Huss |
X
|
X |
X
|
|||
John P. Peetz, III
|
X
|
Chairman
|
X
|
|||
James E. Shada
|
X
|
X
|
X
|
Fees Earned
or Paid in
Cash
|
Stock
Awards
|
Option
Awards
|
Non-Equity
Incentive Plan
Compensation
|
Change in
Pension
Value and
NQDC
Earnings
|
All Other
Compensation
|
Total
|
||||||||
Name
|
($) (1)
|
($) (2)
|
($)
|
($)
|
($)
|
($)
|
($)
|
|||||||
Robert E. Campbell
|
26,500
|
97,538
|
0
|
0
|
0
|
0
|
124,038
|
|||||||
Bill L. Fairfield
|
37,000
|
97,538
|
0
|
0
|
0
|
0
|
134,538
|
|||||||
Bruce L. Hoberman
|
28,500
|
97,538
|
0
|
0
|
0
|
0
|
126,038
|
|||||||
Michael E. Huss
|
26,500
|
97,538
|
0
|
0
|
0
|
0
|
124,038
|
|||||||
John P. Peetz, III
|
32,500
|
97,538
|
0
|
0
|
0
|
0
|
130,038
|
|||||||
James E. Shada
|
26,500
|
97,538
|
0
|
0
|
0
|
0
|
124,038
|
(1)
|
The amount shown is the amount earned during fiscal 2012 by the Company’s non-employee Directors, including an annual retainer paid in quarterly installments, fees paid for attending meetings, including conference calls, and quarterly fees for the Chairman of each committee.
|
(2)
|
Reflects the aggregate grant date fair value of awards computed in accordance with FASB ASC 718,
Compensation-Stock Compensation
. The aggregate grant date fair value of non-vested shares granted to non-employee directors in fiscal 2012 was $585,225. As of February 2, 2013, each director had the following number of options outstanding: Mr. Campbell – none; Mr. Fairfield - none; Mr. Hoberman – none; Mr. Huss - none; Mr. Peetz – 5,080; and Mr. Shada - none.
|
●
|
competitive base salary;
|
●
|
incentive cash bonus, based upon the actual performance of the Company;
|
●
|
benefits including a health and welfare plan, 401(k) plan, and supplemental non-qualified deferred compensation plan (to provide officers with a benefit comparable to that being currently provided to other employees under the 401(k) plan); and
|
●
|
shares of Restricted Stock (hereafter referred to as “Non-Vested Stock” in accordance with terminology used in Generally Accepted Accounting Principles (“GAAP”)).
|
●
|
Any acquisition (other than by an employee benefit plan sponsored or maintained by the Company, or by Daniel Hirschfeld, or any member of his family) of 25% or more of the then outstanding voting securities of the Company, or 25% or more of the total value of all equity securities, if, at the time of such acquisition, Daniel Hirschfeld, members of his family, and his affiliates own less than 50% of the outstanding voting securities of the Company or less than 50% of the total value of all equity securities of the Company;.
|
●
|
If individuals who, as of the effective date of each Plan, constitute the Board of Directors of the Company, and subsequently elected members of the Board whose election is approved or recommended by at least a majority of the current members or their successors, cease for any reason to constitute at least a majority of the Board of Directors; or
|
●
|
Approval by the stockholders of the Company of a merger, reorganization, or consolidation with respect to which the individuals and entities who were the respective beneficial owners of the Common Stock of the Company immediately before the merger, reorganization, or consolidation, do not, after such merger, reorganization, or consolidation, beneficially own, directly or indirectly, more than 60% of respectively, the then outstanding Common Shares and the combined voting power other than outstanding voting securities entitled to vote generally in the election of directors of the Corporation resulting from such merger, reorganization, or consolidation, or approval by the stockholders of a liquidation or dissolution of the Company, or the sale or other disposition of all or substantially all of the assets of the Company.
|
●
|
dishonesty, intentional breach of fiduciary obligation, or intentional wrongdoing or malfeasance;
|
●
|
conviction of a criminal violation involving fraud or dishonesty; or
|
●
|
material breach of the terms of any agreement between the employee and the Company.
|
Generally, pursuant to these agreements, “Good Reason” is deemed to exist when there is a:
|
●
|
significant reduction in the scope of the employee’s authority;
|
●
|
reduction in the participant’s rate of base pay;
|
●
|
the Company changes the principal location in which employee is required to perform services; or
|
●
|
the Company terminates or amends any incentive plan or retirement plan that, when considered in the aggregate with any substitute plan or plans, the incentive plans and retirement plans fail to provide employee with the level of benefits equivalent to at least 90% of the value of the level of benefits provided in the aggregate by the plans existing at the date of the Change in Control.
|
Name
|
Maximum Value of
Accelerated Vesting of
Stock Options
|
Maximum Value of
Accelerated Vesting of
Non-Vested Shares
|
Total
|
|||
Dennis H. Nelson
|
0
|
7,407,225
|
7,407,225
|
|||
Karen B. Rhoads
|
0
|
1,234,538
|
1,234,538
|
|||
Patricia K. Whisler
|
0
|
1,234,538
|
1,234,538
|
|||
Brett P. Milkie
|
0
|
1,234,538
|
1,234,538
|
|||
Kari G. Smith
|
0
|
1,234,538
|
1,234,538
|
Name and
|
Salary
|
Bonus
|
Stock
Awards
|
Option
Awards
|
Equity
Incentive
Plan
Compensation
|
Change in
Pension
Value and
Non-
qualified
Deferred
compen
sation
Earnings
|
All Other
Compen
sation
|
Total
|
||||||||||
Principal Position
|
Year
|
($)
|
($) (2)
|
($) (3)
|
($)
|
($)
|
($)
|
($) (1)
|
($)
|
|||||||||
Dennis H. Nelson
|
2012
|
960,000
|
3,401,728
|
3,901,500
|
0
|
0
|
0
|
273,502
|
8,536,730
|
|||||||||
President
|
2011
|
950,000
|
5,228,163
|
3,203,100
|
0
|
0
|
0
|
190,681
|
9,571,944
|
|||||||||
and CEO
|
2010
|
925,000
|
2,805,377
|
1,278,900
|
0
|
0
|
0
|
263,020
|
5,272,297
|
|||||||||
|
|
|||||||||||||||||
Karen B. Rhoads
|
2012
|
320,000
|
680,346
|
650,250
|
0
|
0
|
0
|
43,089
|
1,693,685
|
|||||||||
Vice President of
|
2011
|
308,000
|
1,045,633
|
533,850
|
0
|
0
|
0
|
22,381
|
1,909,864
|
|||||||||
Finance and CFO
|
2010
|
290,000
|
561,075
|
213,150
|
0
|
0
|
0
|
32,311
|
1,096,536
|
|||||||||
|
|
|||||||||||||||||
Patricia K. Whisler
|
2012
|
362,000
|
680,346
|
650,250
|
0
|
0
|
0
|
44,137
|
1,736,733
|
|||||||||
Vice President of
|
2011
|
350,000
|
1,045,633
|
533,850
|
0
|
0
|
0
|
27,340
|
1,956,823
|
|||||||||
Women’s Merchandising
|
2010
|
335,000
|
561,075
|
213,150
|
0
|
0
|
0
|
37,336
|
1,146,561
|
|||||||||
Brett P. Milkie
|
2012
|
360,000
|
680,346
|
650,250
|
0
|
0
|
0
|
44,081
|
1,734,677
|
|||||||||
Vice President of
|
2011
|
347,500
|
1,045,633
|
533,850
|
0
|
0
|
0
|
27,247
|
1,954,230
|
|||||||||
Leasing
|
2010
|
325,000
|
561,075
|
213,150
|
0
|
0
|
0
|
37,029
|
1,136,254
|
|||||||||
Kari G. Smith
|
2012
|
362,000
|
680,346
|
650,250
|
0
|
0
|
0
|
43,390
|
1,735,986
|
|||||||||
Vice President of
|
2011
|
347,500
|
1,045,633
|
533,850
|
0
|
0
|
0
|
26,579
|
1,953,562
|
|||||||||
Sales
|
2010
|
325,000
|
561,075
|
213,150
|
0
|
0
|
0
|
36,574
|
1,135,799
|
(1)
|
Fiscal 2012 amounts include the Company's matching contribution into the 401(k) profit sharing plan for the plan year ended December 31, 2012, net of match forfeitures resulting from ACP testing. The Company matched 50% of the employees' deferrals not exceeding 6% of gross earnings and subject to dollar limits per Internal Revenue Code regulations. These amounts also include the Company’s matching contribution into The Buckle, Inc. Deferred Compensation Plan, covering the executive officers for the plan year ended December 31, 2012. The Company matched 45% of each officer’s deferrals, except for the President whose match was 60% of deferrals, not exceeding 6% of gross earnings. For fiscal 2012, Other Compensation for Dennis H. Nelson includes $45,771 of value added to earnings for personal usage of the Company’s airplanes.
|
(2)
|
The executive officers’ bonuses for fiscal 2012 were calculated based upon the Company’s 2012 Management Incentive Plan, as approved at the 2012 Annual Meeting of Stockholders. (See “Report of the Compensation Committee”)
|
(3)
|
Reflects the grant date fair value of performance-based shares that achieved their performance goals for Fiscal 2012, as established in the Company’s 2012 Management Incentive Plan for vesting of shares granted. Such value is computed in accordance with FASB ASC 718,
Compensation-Stock Compensation
, see Note J in the Notes to Financial Statements included in the Company’s Annual Report on Form 10-K.
|
Estimated Future Payments
Under Non-Equity Incentive
Plan Awards
|
Estimated Future Payments
Under Equity Incentive Plan
Awards
|
All Other
Stock
Awards;
Number of Shares of
Stock or
|
All Other
Option
Awards;
Number of Securities Underlying
|
Exercise
or
Base
Price of
Option
|
||||||||||||
Grant
|
Threshold
|
Target
|
Maximum
|
Threshold
|
Target
|
Maximum
|
Units
|
Options |
Awards
|
|||||||
Name
|
Date
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
(#)
|
(#)
|
($/SH)
|
||||||
Dennis H. Nelson
|
1/29/2012
|
0
|
0
|
0
|
0
|
0
|
0
|
90,000
|
0
|
N/A
|
||||||
Karen B. Rhoads
|
1/29/2012
|
0
|
0
|
0
|
0
|
0
|
0
|
15,000
|
0
|
N/A
|
||||||
Patricia K. Whisler
|
1/29/2012
|
0
|
0
|
0
|
0
|
0
|
0
|
15,000
|
0
|
N/A
|
||||||
Brett P. Milkie
|
1/29/2012
|
0
|
0
|
0
|
0
|
0
|
0
|
15,000
|
0
|
N/A
|
||||||
Kari G. Smith
|
1/29/2012
|
0
|
0
|
0
|
0
|
0
|
0
|
15,000
|
0
|
N/A
|
Option Award
|
Stock Awards
|
||||||||||
Name
|
Number of Securities Underlying Unexercised Options (#) Exercisable
|
Number of Securities Underlying Unexercised Options (#) Unexercisable
|
Equity
Incentive
Plans
Awards;
Number of Securities Underlying Unexercised Unearned
Options (#)
|
Option
Exercise
Price ($)
|
Option
Expiration
Date
|
Number of
Shares or
Units of
Stock That
Have Not
Vested (#)
|
Market
Value of
Shares or
Units of
Stock That
Have Not
Vested ($)
|
Equity
Incentive
Plan
Awards;
Number of Unearned
Shares,
Units, or
Other
Rights That
Have Not
Vested (#)
|
Equity
Incentive
Plan
Awards;
Market or
Payout
Value
of
Unearned
Shares,
Units, or
Other
Rights
That
Have Not
Vested (#)
|
||
Dennis H. Nelson
|
0
|
0
|
0
|
N/A
|
N/A
|
157,500
|
7,407,225
|
0
|
0
|
||
Karen B. Rhoads
|
0
|
0
|
0
|
N/A
|
N/A
|
26,250
|
1,234,538
|
0
|
0
|
||
Patricia K. Whisler
|
0
|
0
|
0
|
N/A
|
N/A
|
26,250
|
1,234,538
|
0
|
0
|
||
Brett P. Milkie
|
0
|
0
|
0
|
N/A
|
N/A
|
26,250
|
1,234,538
|
0
|
0
|
||
Kari G. Smith
|
0
|
0
|
0
|
N/A
|
N/A
|
26,250
|
1,234,538
|
0
|
0
|
Option Awards
|
Stock Awards
|
|||||
|
Number of Shares
Acquired on Exercise
|
Value Realized on
Exercise
|
Number of Shares
Acquired on Vesting
|
Value Realized on
Vesting
|
||
Name |
(#)
|
($)
|
(#)
|
($)
|
||
Dennis H. Nelson
|
210,992
|
9,955,539
|
76,500
|
3,620,115
|
||
Karen B. Rhoads
|
0
|
0
|
12,750
|
603,353
|
||
Patricia K. Whisler
|
77,542
|
3,710,505
|
12,750
|
603,353
|
||
Brett P. Milkie
|
0
|
0
|
12,750
|
603,353
|
||
Kari G. Smith
|
7,872
|
361,295
|
12,750
|
603,353
|
Executive
Contributions
Last FY
|
Registrant
Contributions
Last FY
|
Aggregate
Earnings in
Last FY
|
Aggregate
Withdrawals/
Distributions
|
Aggregate
Balance at
Last FYE
|
||||||
Name
|
($) (1)
|
($) (1) (2)
|
($) (3)
|
($)
|
($)
|
|||||
Dennis H. Nelson
|
371,417
|
220,856
|
577
|
0
|
4,250,512
|
|||||
Karen B. Rhoads
|
81,952
|
36,214
|
93,096
|
0
|
711,393
|
|||||
Patricia K. Whisler
|
84,475
|
37,262
|
143,074
|
0
|
959,478
|
|||||
Brett P. Milkie
|
168,681
|
37,206
|
173,930
|
0
|
1,546,652
|
|||||
Kari G. Smith
|
84,473
|
37,261
|
98,945
|
0
|
688,558
|
(1)
|
Amounts have been reported as compensation in the Summary Compensation Table.
|
(2)
|
Consists of amounts earned for the plan year ended December 31, 2012, but not credited to the participant’s account until paid in fiscal 2013.
|
(3)
|
Amounts not included in the Summary Compensation Table, as they do not represent above-market or preferential earnings on compensation.
|
John P. Peetz, III, Chairman | Robert E. Campbell | Bill L. Fairfield | |
Bruce L. Hoberman | Michael E. Huss | James E. Shada |
●
|
to establish base salaries at a competitive level;
|
●
|
to establish a cash bonus program that rewards exceptional performance;
|
●
|
to eliminate cash bonuses based upon participation in the first dollar of profits; and
|
●
|
to eliminate an automatic and mathematical bonus in the event that the Company’s performance does not at least equal performance for the immediately preceding fiscal year.
|
●
|
an annual Cash Award; and
|
●
|
an annual grant of Non-Vested Stock pursuant to the 2005 Restricted Stock Plan.
|
●
|
select the persons to be granted Cash Awards and Shares of Non-Vested Stock;
|
●
|
determine the time when Cash Awards and Non-Vested Stock will be granted;
|
●
|
determine whether objectives and conditions for earning Cash Awards and Non-Vested Stock have been met;
|
●
|
determine whether payment of Cash Awards and Non-Vested Stock will be made at the end of an award period or deferred; and
|
●
|
approve discretionary year-end cash incentives for extraordinary events.
|
Name
|
Base Salary
|
|
Dennis H. Nelson
|
988,800
|
|
Karen B. Rhoads
|
345,000
|
|
Patricia K. Whisler
|
374,000
|
|
Brett P. Milkie
|
372,000
|
|
Kari G. Smith
|
374,000
|
Name and Position
|
Cash Award
|
Non-Vested Stock
|
||
Dennis H. Nelson, President and CEO
|
3,401,728
|
90,000
|
||
Karen B. Rhoads, Vice President of Finance and CFO
|
680,346
|
15,000
|
||
Patricia K. Whisler, Vice President of Women’s Merchandising
|
680,346
|
15,000
|
||
Brett P. Milkie, Vice President of Leasing
|
680,346
|
15,000
|
||
Kari G. Smith Vice President of Sales
|
680,346
|
15,000
|
||
All Executive Officers (8 persons)
|
7,118,117
|
180,000
|
||
Non-Executive Officer Directors (0 persons)
|
0
|
0
|
1.
|
an increase in the number of shares of common stock that may be issued under the Amended Stock Plan of 800,000 shares, for a total number of shares of common stock reserved for issuance under the Amended Stock Plan of an aggregate of 3,000,000 shares;
|
2.
|
for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended, or the “Code,” (i) approval of a limit on awards of 125,000 shares per person, per year for purposes of compliance with Section 162(m), and (ii) reapproval of existing Performance Criteria upon which Performance Goals may be based with respect to performance awards under the Amended Stock Plan; and
|
3.
|
other clarifying changes for ease of administration and conformity with applicable law.
|
Name and Position
|
Dollar Value(1)
|
Number of Shares
|
||
Dennis H. Nelson, President and CEO
|
3,901,500
|
90,000
|
||
Karen B. Rhoads, Vice President of Finance and CFO
|
650,250
|
15,000
|
||
Patricia K. Whisler, Vice President of Women’s Merchandising
|
650,250
|
15,000
|
||
Brett P. Milkie, Vice President of Leasing
|
650,250
|
15,000
|
||
Kari G. Smith Vice President of Sales
|
650,250
|
15,000
|
||
All Executive Officers
|
7,716,300
|
178,000
|
||
All Non-Employee Directors
|
0
|
0
|
||
All Non-Executive Officer Employees
|
2,557,650
|
59,000
|
(1)
|
Reflects the aggregate grant date fair value of awards computed in accordance with FASB ASC 718,
Compensation-Stock Compensation
.
|
Plan Category
|
Number of Securities to
be Issued Upon Exercise
of Outstanding Options,
Warrants and Rights
(a)
|
Weighted-Average
Exercise Price of
Outstanding Options,
Warrants and Rights
(b)
|
Number of Securities
Remaining Available for
Future Issuance Under Equity
Compensation Plans
(Excluding Securities
Reflected in Column (a))
(c)
|
|||||||||
Equity Compensation Plans Approved by Stockholders
|
42,808 | $ | 1.79 | 1,226,017 | ||||||||
Total
|
42,808 | $ | 1.79 | 1,226,017 |
Name
|
Number of Non-Vested Shares
|
|
Dennis H. Nelson
|
90,000
|
|
Karen B. Rhoads
|
15,000
|
|
Patricia K. Whisler
|
15,000
|
|
Brett P. Milkie
|
15,000
|
|
Kari G. Smith
|
15,000
|
Bill L. Fairfield, Chairman
|
Robert E. Campbell | Bruce L. Hoberman | |
Michael E. Huss | John P. Peetz, III | James E. Shada |
1.
|
PURPOSES
|
2.
|
DEFINITIONS
|
A.
|
“Applicable Percentage Amounts” means 8.0% of the Increase in Same Store Sales; 5.0% of the Increase in Margin; and 15.0% of the Increase in Pre-Bonus Net Income.
|
B.
|
“Base Year” means the immediately preceding fiscal year with regard to Same Store Sales and the rolling average for the immediately preceding three (3) fiscal years with regard to Margin and Pre-Bonus Net Income; for purposes of computing the rolling average each year shall be weighted equally.
|
C.
|
“Bonus Pool” means the amount calculated each Plan Year comprised of the total of the Applicable Percentage Amounts multiplied by the Same Store Sales Factor, the Pre-Bonus Net Income Factor (for the Applicable Percentage amount of the Increase in Pre-Bonus and Pre-Tax Net Income) and the Margin Factor (for the Applicable Percentage Amount of the Increase in Margin).
|
D.
|
“Cash Award” means any cash incentive payment made under the Plan.
|
E.
|
“Code” means the Internal Revenue Code of 1986, as amended.
|
F.
|
“Committee” means the Compensation Committee of The Buckle, Inc.’s Board of Directors, or such other committee designated by that Board of Directors. The Committee shall be comprised solely of Directors who are “Directors” as defined in Section 162(m) of the Code.
|
G.
|
“Company” means The Buckle, Inc. and its subsidiary.
|
H.
|
“Executive Officers” means the officers of the Company designated as executive officers in the Company’s annual report on Form 10-K as filed with the Securities and Exchange Commission.
|
I.
|
“GAAP” means generally accepted accounting principles consistently applied.
|
J.
|
“Increase” means the amount by which the Company’s Same Store Sales, Margin, and Pre-Bonus Net Income in the current Plan Year exceed the Base Year amounts for Same Store Sales, Margin, and Pre-Bonus Net Income, respectively.
|
K.
|
“Margin” means gross sales less the cost of sales (including buying, occupancy, and distribution expenses) determined in accordance with GAAP, excluding accrued bonus expense.
|
L.
|
“Margin Factor” means the factor set forth below with respect to the Increase in Margin.
|
Increase in Margin
|
Margin Factor
|
|
0% to 9.99%
|
0.90
|
|
10.00% to 14.99%
|
0.85
|
|
15.00% to 19.99%
|
0.80
|
|
20.00% to 39.99%
|
0.70
|
|
> 40%
|
0.64
|
M.
|
“Participant” means any individual to whom an Award is granted under the Plan.
|
N.
|
“Plan” means this Plan, which shall be known as The Buckle, Inc. 2013 Management Incentive Plan.
|
O.
|
“Plan Year” means a fiscal year of the Company.
|
P.
|
“Pre-Bonus Net Income” means the Company’s net income from operations after the deduction of all expenses, excluding administrative and store manager percentage bonuses and excluding income taxes. Net income from operations does not include earnings on cash and investments or other income.
|
Q.
|
“Pre-Bonus Net Income Factor” means the factor set forth below with respect to Increase in Pre-Bonus Net Income.
|
Increase in Pre-Bonus Net Income
|
Pre-Bonus Net Income Factor
|
|
0% to 9.99%
|
0.90
|
|
10.00% to 14.99%
|
0.85
|
|
15.00% to 19.99%
|
0.70
|
|
20.00% to 39.99%
|
0.64
|
|
> 40%
|
0.55
|
R.
|
“Non-Vested Stock” means shares of the Company’s Common Stock granted pursuant to the Company’s 2005 Restricted Stock Plan.
|
S.
|
“Same Store Sales” means gross sales from stores open at least twelve (12) months, including the online store sales, but excluding closed stores. The same store sales increase will be applied by the same factors as the “Pre-Bonus Net Income Factor” as set forth above.
|
3.
|
ADMINISTRATION
|
A.
|
The Plan shall be administered by the Committee. The Committee shall have the authority to:
|
(i)
|
interpret and determine all questions of policy and expediency pertaining to the Plan;
|
(ii)
|
adopt such rules, regulations, agreements, and instruments as it deems necessary for its proper administration;
|
(iii)
|
grant waivers of Plan or Award conditions (other than Awards intended to qualify under Section 162(m) of the Code);
|
(iv)
|
accelerate the payment of Awards (but with respect to Awards intended to qualify under Section 162(m) of the Code, only as permitted under that Section);
|
(v)
|
correct any defect, supply any omission, or reconcile any inconsistency in the Plan, any Award, or any Award notice;
|
(vi)
|
take any and all actions it deems necessary or advisable for the proper administration of the Plan;
|
(vii)
|
adopt such Plan procedures, regulations, sub-plans, and the like as it deems are necessary to enable Executive Officers to receive Awards; and
|
(viii)
|
amend the Plan at any time and from time to time, provided however than no amendment to the Plan shall be effective unless approved by the Company’s stockholders, to the extent such stockholder approval is required under Section 162(m) of the Code with respect to Awards which are intended to qualify under that Section.
|
4.
|
ELIGIBILITY
|
5.
|
CASH AWARDS
|
A.
|
Each Participant in the Plan shall receive a Cash Award calculated to be equal to 100% of the Participant’s share of the Bonus Pool. The President’s share of the Bonus Pool shall be 40 points, which is approximately 48% of the allocated points, and the share of each other Participant in the Bonus Pool shall be determined by the President prior to the first day of each Plan Year.
|
B.
|
Executives may be eligible for a discretionary year-end cash incentive for extraordinary events, such as mergers or acquisitions, as may be determined by the Compensation Committee of the Board of Directors in its discretion.
|
C.
|
No payment of a Cash Award for the year may be made to an Executive until the Company’s Same Store Sales, Margin, and Pre-Bonus Net Income for the year are certified by the Committee. A Participant shall not be entitled to receive payment of an Award unless such Participant is still in the employ of the Company on the last day of the fiscal year for which the Cash Award is earned.
|
D.
|
The Company shall withhold all applicable federal, state, local, and foreign taxes required by law to be paid or withheld relating to the receipt or payment of any Cash Award.
|
6.
|
NON-VESTED STOCK
|
Name
|
Number of Non-Vested Shares
|
|
Dennis H. Nelson
|
90,000
|
|
Karen B. Rhoads
|
15,000
|
|
Patricia K. Whisler
|
15,000
|
|
Brett P. Milkie
|
15,000
|
|
Kari G. Smith
|
15,000
|
7.
|
GENERAL
|
A.
|
The Restricted Stock Plan became effective as of February 10, 2005, subject to stockholder approval at the 2005 annual meeting of the Company’s stockholders and was amended by stockholders at the 2006, 2007, 2010, and 2012 annual meetings of the Company’s stockholders. Subject to stockholder approval at its 2013 Annual Meeting, the Plan is being amended and restated to (1) increase the number of shares authorized for grant, (2) for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended, for approval of award limits for purposes of compliance with Section 162(m) and reapproval of existing performance criteria upon which performance goals may be based with respect to performance awards under this Plan, (3) to extend the term of the plan for fiscal years 2013 through 2017, and (4) for other clarifying changes for ease of administration and compliance with applicable law.
|
B.
|
Any rights of a Participant under the Plan shall not be assignable by such Participant, by operation of law or otherwise, except by will or the laws of descent and distribution. No Participant may create a lien on any funds or rights to which he or she may have an interest under the Plan, or which is held by the Company for the account of the Participant under the Plan.
|
C.
|
Participation in the Plan shall not give any Key Employee any right to remain in the employ of the Company. Further, the adoption of the Plan shall not be deemed to give any Executive Officer or other individual the right to be selected as a Participant or to be granted an Award.
|
D.
|
To the extent any person acquires a right to receive payments from the Company under this Plan, such rights shall be no greater that the rights of an unsecured creditor of the Company.
|
E.
|
The Plan shall be governed by and construed in accordance with the laws of the State of Nebraska.
|
1.
|
PURPOSES; Effectiveness of the Plan
.
|
2.
|
CERTAIN DEFINITIONS
|
(a)
|
“1933 Act” means the federal Securities Act of 1933, as amended;
|
(b)
|
“1934 Act
”
means the federal Securities Exchange Act of 1934, as amended;
|
(c)
|
“Board” means the Board of Directors of the Company;
|
(d)
|
“
Code” means the Internal Revenue Code of 1986, as amended (references herein to Sections of the Code are intended to refer to Sections of the Code as enacted at the time of this Plan's adoption by the Committee and as subsequently amended), or to any substantially similar successor provisions of the Code resulting from recodification, renumbering or otherwise;
|
(e)
|
“
Committee” means the Compensation Committee of the Company, which shall be comprised of two or more Disinterested Directors, appointed by the Board, to administer and interpret this Plan;
|
(f)
|
“Company” means The Buckle, Inc., a Nebraska corporation;
|
(g)
|
“
Disinterested Director” means a member of the Board who is a
“
non-employee director” as defined in Rule 16b-3 promulgated under the 1934 Act and an “outside director” as defined under Section 162(m) of the Code;
|
(h)
|
“Eligible Participants” means persons who, at a particular time, are employees or officers of the Company or its Subsidiaries;
|
(i)
|
“Holder” means an Eligible Participant to whom any Restricted Stock is issued hereunder, and any permitted transferee thereof pursuant to a Transfer authorized under this Plan;
|
(j)
|
“Performance Based Award” means an Award granted to selected Covered Employees pursuant to Section 6 and Section 7. All Performance Based Awards are intended to qualify as Qualified Performance Based Compensation.
|
(k)
|
“Performance Criteria” means the criteria that the Committee selects for purposes of establishing the Performance Goal or Performance Goals for a Participant for a Performance Period. The Performance Criteria that will be used to establish Performance Goals are limited to the following: net earnings (either before or after any of the following: interest, taxes, depreciation and amortization, and certain other expenses), net losses, sales or revenue, operating earnings, operating cash flow, return on net assets, return on stockholders’ equity, return on assets, return on capital, stockholder returns, gross or net profit margin, earnings per share, price per share of Stock, and market share, any of which may be measured either in absolute terms or as compared to any incremental increase or as compared to results of a peer group. The Committee shall, within the time prescribed by Section 162(m) of the Code, define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such Performance Period for such Participant.
|
(l)
|
“Performance Goals” means, for a Performance Period, the goals established in writing by the Committee for the Performance Period based upon the Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the Performance Goals may be expressed in terms of overall Company performance or the performance of a division, business unit, or an individual. The Committee, in its discretion, may, within the time prescribed by Section 162(m) of the Code, adjust or modify the calculation of Performance Goals for such Performance Period in order to prevent the dilution or enlargement of the rights of Participants (i) in the event of, or in anticipation of, any unusual or extraordinary corporate item, transaction, event or development, or (ii) in recognition of, or in anticipation of, any other unusual or nonrecurring events affecting the Company, or the financial statements of the Company, or in response to, or in anticipation of, changes in applicable laws, regulation, accounting principles, or business conditions.
|
(m)
|
“Performance Period” means the one or more periods of time, which may be of varying and overlapping durations, as the Committee may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to, and the payment of, a Performance Based Award;
|
(n)
|
“Plan” means this Amended and Restated 2005 Restricted Stock Plan of the Company;
|
(o)
|
“
Purchase Price” means the price per share at which an Eligible Participant may purchase Restricted Stock hereunder, pursuant to a Restricted Stock Agreement, which price may be zero;
|
(p)
|
“Qualified Performance Based Compensation” means any compensation that is intended to qualify as “qualified performance based compensation” as described in Section 162(m)(4)(C) of the Code.
|
(q)
|
“Restricted Stock” means Stock issued or issuable by the Company pursuant to this Plan;
|
(r)
|
“
Restricted Stock Agreement” means an agreement between the Company and an Eligible Participant to evidence the terms and conditions of the issuance of Restricted Stock hereunder;
|
(s)
|
“Stock” means shares of the Company
'
s Common Stock, $.01 par value;
|
(t)
|
“
Subsidiary” has the same meaning as
“
Subsidiary Corporation” as defined in Section 424(f) of the Code;
|
(u)
|
“Termination Event” means, with respect to any Holder of Restricted Stock, any event that results in such Holder no longer being an Eligible Participant hereunder for any reason whatsoever (whether by reason of such Holder's death, disability, voluntary resignation, involuntary termination, or any other reason).
|
(v)
|
“Transfer,
”
with respect to Restricted Stock, includes, without limitation, a voluntary or involuntary sale, assignment, transfer, conveyance, pledge, hypothecation, encumbrance, disposal, loan, gift, attachment or levy of such Restricted Stock, including without limitation an assignment for the benefit of creditors of the Holder, a transfer by operation of law, such as a transfer by will or under the laws of descent and distribution, an execution of judgment against the Restricted Stock or the acquisition of record or beneficial ownership thereof by a lender or creditor, a transfer pursuant to a qualified domestic relations order, or to any decree of divorce, dissolution or separate maintenance, any property settlement, any separation agreement or any other agreement with a spouse under which a part or all of the shares of Restricted Stock are transferred or awarded to the spouse of the Holder or are required to be sold; or a transfer resulting from the filing by the Holder of a petition for relief, or the filing of an involuntary petition against such Holder, under the bankruptcy laws of the United States or of any other nation.
|
3.
|
ELIGIBILITY
|
4.
|
ADMINISTRATION
|
(a)
|
Committee.
The Committee will administer this Plan.
|
(b)
|
Authority and Discretion
of
Committee.
The Committee will have full and final authority in its discretion, at any time and from time to time, subject only to the express terms, conditions and other provisions of the Company
'
s Articles of Incorporation, Bylaws and this Plan:
|
(i)
|
to select and approve the persons to whom Restricted Stock will be issued under this Plan from among the Eligible Participants, including the number of shares of Restricted Stock so issued to each such person; and
|
(ii)
|
to determine the Purchase Price of Restricted Stock issued under this Plan, which may be zero, the period or periods of time during which the Company will have a right to repurchase such Restricted Stock and the terms and conditions of such repurchase, and other matters to be determined by the Committee in connection with specific issuances of Restricted Stock and Restricted Stock Agreements as provided in this Plan; and
|
(iii)
|
to interpret this Plan, to prescribe, amend and rescind rules and regulations relating to this Plan, and to make all other determinations necessary or advisable for the operation and administration of this Plan.
|
(c)
|
Limitation on Authority.
Notwithstanding the foregoing, or any other provision of this Plan, the Committee will have no authority to approve the issuance of Restricted Stock to any of its members, whether or not approved by the Board.
|
(d)
|
Restricted Stock Agreements.
Restricted Stock will be issued hereunder only upon the execution and delivery of a Restricted Stock Agreement by the Holder and a duly authorized officer of the Company. Restricted Stock will not be deemed issued merely upon the authorization of such issuance by the Committee.
|
5.
|
SHARES RESERVED FOR RESTRICTED STOCK; MAXIMUM AWARD
|
(a)
|
Restricted Stock Pool.
The aggregate number of shares of Restricted Stock that may be issued pursuant to this Plan will not exceed Three Million (3,000,000) (the “Restricted Stock Pool
”
), provided that such number will be increased by the number of shares of Restricted Stock that the Company subsequently may reacquire through repurchase or otherwise.
|
(b)
|
Adjustments Upon Changes in Stock.
In the event of any change in the outstanding Stock of the Company as a result of a stock split, reverse stock split, stock dividend, recapitalization, combination or reclassification, appropriate proportionate adjustments will be made in: (i) the aggregate number of shares of Restricted Stock in the Restricted Stock Pool that may be issued pursuant to this Plan; (ii) the maximum number of shares of Restricted Stock that may be issued to any one Eligible Participant pursuant to Section 5(c) of this Plan; (iii) the exercise price of any rights of repurchase or of first refusal under this Plan; and (iv) other rights and matters determined on a per share basis under this Plan or any Restricted Stock Agreement hereunder. Any such adjustments will be made only by the Committee, and when so made will be effective, conclusive and binding for all purposes with respect to this Plan. If there is any other change in the number or kind of the outstanding shares of Stock of the Company, or of any other security into which that Stock has been changed or for which it has been exchanged, and if the Committee, in its sole discretion, determines that this change requires any adjustment in the restrictions on Transfer, rights of repurchase, or rights of first refusal in Restricted Stock then subject to this Plan, such an adjustment will be made in accordance with the determination of the Committee. No such adjustments will be required by reason of the issuance or sale by the Company for cash or other consideration of additional shares of its Stock or securities convertible into or exchangeable for shares of Stock. Notwithstanding the foregoing, unless the Committee determines otherwise, in no event shall a Performance Based Award that is intended to qualify as Qualified Performance Based Compensation be adjusted pursuant to this Section 5(b) to the extent such adjustment would cause such Performance Based Award to fail to qualify as Qualified Performance Based Compensation.
|
(c)
|
Maximum Award.
Subject to Section 5(b) above, and notwithstanding any provision contained in this Plan to the contrary, the maximum number of shares of Restricted Stock that may be issued to any one Eligible Participant under this Plan for any fiscal year shall be 125,000 shares.
|
6.
|
TERMS OF RESTRICTED STOCK AGREEMENTS
|
(a)
|
Covenants of Holder.
Nothing contained in this Plan, any Restricted Stock Agreement or in any other agreement executed in connection with the issuance of Restricted Stock under this Plan will confer upon any Holder any right with respect to the continuation of his or her status as an employee of the Company, and its Subsidiaries.
|
(b)
|
Vesting Periods, Company Repurchase Right
|
(i)
|
Vesting.
Except as otherwise provided herein, each Restricted Stock Agreement may specify the period or periods of time within which the Restricted Stock issued thereunder may be repurchased by the Company or its assignee (the “Vesting Period”) as set forth in this Section 6(b). Such Vesting Periods will be fixed by the Committee in its discretion, and may be accelerated or shortened by the Committee in its discretion.
|
(ii)
|
Scope of Repurchase Right.
Upon the occurrence of any Termination Event with respect to any Holder of Restricted Stock, the Company will have an assignable right (but not an obligation), to repurchase any Unvested shares of Restricted Stock owned by such Holder at the time of such Termination Event for a repurchase price per share equal to the Holder's original cost per share, subject to appropriate adjustment pursuant to section 5(b), which repurchase price will be zero if the purchase price was zero.
|
(iii)
|
Mechanics and Notice.
Within thirty (30) days after any such Termination Event, the Holder of any Unvested Restricted Stock will provide to the Company a notice of the occurrence of such Termination Event. Within ninety (90) days of the receipt of such notice, the Company will exercise its right, if at all, by informing the Holder in writing of the Company's intention to do so, and specifying a closing date within such ninety (90) day period. The Unvested Stock will be repurchased at the Company's principal executive offices on that date. The repurchase price will be paid in cash or cancellation of indebtedness (if any) at that time. If the Company (or its assignee ) fails to exercise its purchase rights as provided under this Section 6(b), then at the end of the ninety (90) day period referred to herein, all Unvested Restricted Stock of the Holder immediately will become Vested Restricted Stock for all purposes hereunder.
|
(c)
|
Restrictions on Transfer of Restricted Stock
|
(i)
|
General Rule on Permissible Transfer of Restricted Stock.
Unvested Restricted Stock may not be transferred. Vested Restricted Stock may be Transferred only in accordance with the specific limitations on the Transfer of Restricted Stock imposed by the Restricted Stock Agreement or by applicable state or federal securities laws and set forth below, and subject to certain undertakings of the transferee (subsection 6(c)(iii)). All Transfers of Restricted Stock not meeting the conditions set forth in this Section 6(c) are expressly prohibited.
|
(ii)
|
Effect of Prohibited Transfer.
Any prohibited Transfer of Restricted Stock is void and of no effect. Should such a Transfer purport to occur, the Company may refuse to carry out the Transfer on its books, attempt to set aside the Transfer, enforce any undertaking or right under this subsection 6(c), or exercise any other legal or equitable remedy.
|
(iii)
|
Required Undertaking.
Any Transfer that would otherwise be permitted under the terms of this Plan is prohibited unless the transferee executes such documents as the Company may reasonably require to ensure that the Company
'
s rights under a Restricted Stock Purchase Agreement and this Plan are adequately protected with respect to the Restricted Stock so Transferred. Such documents may include, without limitation, an agreement by the transferee to be bound by all of the terms of this Plan, and of the applicable Restricted Stock Agreement, as if the transferee were the original Holder of such Restricted Stock.
|
(iv)
|
Escrow.
To facilitate the enforcement of the restrictions on Transfer set forth in this Plan, the Committee may, at its discretion, require the Holder of shares of Restricted Stock to deliver the certificate(s) for such shares with a stock power executed in blank by Holder and Holder
'
s spouse (if required for transfer), to the Secretary of the Company or his or her designee, to hold said certificate(s) and stock power(s) in escrow and to take all such actions and to effectuate all such Transfers and/or releases as are in accordance with the terms of this Plan. The certificates may be held in escrow so long as the shares of Restricted Stock whose ownership they evidence are subject to any right of repurchase or of first refusal under this Plan or under a Restricted Stock Agreement. Each Holder acknowledges that the Secretary of the Company (or his or her designee) is so appointed as the escrow holder with the foregoing authorities as a material inducement to the issuance of shares of Restricted Stock under this Plan, that the appointment is coupled with an interest, and that it accordingly will be irrevocable. The escrow holder will not be liable to any party to a Restricted Stock Agreement (or to any other party) for any actions or omissions unless the escrow holder is grossly negligent relative thereto. The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine.
|
(d)
|
Additional Restrictions on Transfer.
By accepting Restricted Stock under this Plan, the Holder will be deemed to represent, warrant and agree as follows:
|
(i)
|
Applicable Laws.
The Holder understands that each Transfer of the Restricted Stock requires full compliance with the provisions of all applicable laws.
|
(ii)
|
Investment Intent.
Unless a registration statement is in effect with respect to the sale and issuance of the Restricted Stock to the Holder hereunder: (1) the Holder is purchasing the Restricted Stock for his or her own account and not with a view to distribution within the meaning of the 1933 Act, other than as may be effected in compliance with the 1933 Act and the rules and regulations promulgated thereunder; (2) no one else will have any beneficial interest in the Restricted Stock; and (3) Holder has no present intention of disposing of the Restricted Stock at any particular time.
|
(e)
|
Compliance with Law.
Notwithstanding any other provision of this Plan, Restricted Stock may be issued pursuant to this Plan only after there has been compliance with all applicable federal and state securities laws, and such issuance will be subject to this overriding condition. The Company will not be required to register or qualify Restricted Stock with the Securities and Exchange Commission or any State agency, except that the Company will register with, or as required by local law, file for and secure an exemption from, the applicable securities administrator and other officials of each jurisdiction in which an Eligible Participant would be issued Restricted Stock hereunder prior to such issuance.
|
(f)
|
Stock Certificates.
Certificates representing the Restricted Stock issued pursuant to this Plan will bear all legends required by law and necessary to effectuate this Plan's provisions. The Company may place a
“
stop transfer
”
order against shares of the Restricted Stock until all restrictions and conditions set forth in this Plan and in the legends referred to in this Section 6(f) have been complied with.
|
(g)
|
Lock-Up.
To the extent requested by the Company and any underwriter of securities of the Company in connection with a firm commitment underwriting, no Holder of any shares of Restricted Stock will sell or otherwise Transfer any such shares not included in such underwriting, or not previously registered pursuant to a registration statement filed under the 1933 Act, during the one hundred twenty (120) day period following the effective date of the registration statement filed with the Securities and Exchange Commission in connection with such offering.
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(h)
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Notices.
Any notice to be given to the Company under the terms of a Restricted Stock Agreement will be addressed to the Company at its principal executive office, Attn: Corporation Secretary, or at such other address as the Company may designate in writing. Any notice to be given to a Holder will be addressed to the Holder at the address provided to the Company by the Holder. Any such notice will be deemed to have been duly given if and when enclosed in a properly sealed envelope, addressed as aforesaid, registered and deposited, postage and registry fee prepaid, in a post office or branch post office regularly maintained by the United States Postal Service.
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(i)
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Other Provisions.
The Restricted Stock Agreement may contain such other terms, provisions and conditions, including such special forfeiture conditions, rights of repurchase, rights of first refusal and other restrictions on Transfer of Restricted Stock issued hereunder, not inconsistent with this Plan, as may be determined by the Committee in its sole discretion.
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7.
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PERFORMANCE BASED AWARDS
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(a)
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Purpose
. The purpose of this Section 7 is to provide the Committee the ability to qualify grants of Restricted Stock as Qualified Performance Based Compensation. If the Committee, in its discretion, decides to grant a Performance Based Award to a Covered Employee, the provisions of this Section 7 shall control over any contrary provision contained in the Plan.
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(b)
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Applicability
. This Section 7 shall apply only to those Covered Employees selected by the Committee to receive Performance Based Awards. The designation of a Covered Employee as a Participant for a Performance Period shall not in any manner entitle the Participant to receive a Performance Based Award for the period. Moreover, designation of a Covered Employee as a Participant for a particular Performance Period shall not require designation of such Covered Employee as a Participant in any subsequent Performance Period and designation of one Covered Employee as a Participant shall not require designation of any other Covered Employee as a Participant in such period or in any other period.
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(c)
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Procedures with Respect to Performance Based Awards
. To the extent necessary to comply with the Qualified Performance Based Compensation requirements of Section 162(m)(4)(C) of the Code, with respect to any Performance Based Award granted under this Plan which may be granted to one or more Covered Employees, no later than ninety (90) days following the commencement of any fiscal year in question or any other designated fiscal period or period of service (or such other time as may be required or permitted by Section 162(m) of the Code), the Committee shall, in writing, (i) designate one or more Covered Employees, (ii) select the Performance Criteria applicable to the Performance Period, (iii) establish the Performance Goals, and amounts of such Performance Based Awards, as applicable, which may be earned for such Performance Period, and (iv) specify the relationship between Performance Criteria and the Performance Goals and the amounts of such Performance Based Awards, as applicable, to be earned by each Covered Employee for such Performance Period. Following the completion of each Performance Period, the Committee shall certify in writing whether the applicable Performance Goals have been achieved for such Performance Period. In determining the amount earned by a Covered Employee, the Committee shall have the right to reduce or eliminate (but not to increase) the amount payable at a given level of performance to take into account additional factors that the Committee may deem relevant to the assessment of individual or corporate performance for the Performance Period.
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(d)
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Payment of Performance Based Awards
. Unless otherwise provided in the applicable Restricted Stock Agreement, a Participant must be employed by the Company or a Subsidiary on the day a Performance Based Award for such Performance Period becomes vested. Furthermore, a Participant shall become vested pursuant to a Performance Based Award for a Performance Period only if the Performance Goals for such period are achieved. In determining the amount earned under a Performance Based Award, the Committee may reduce or eliminate (but not increase) the amount of the Performance Based Award earned for the Performance Period, if in its sole and absolute discretion, such reduction or elimination is appropriate.
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(e)
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Limitation on Discretion.
In no event shall any discretionary authority granted to the Committee under this Plan be used to: (i) grant Performance Based Awards for a Performance Period if the Performance Goals for such Performance Period have not been attained under the applicable Performance Criteria; or (ii) increase a Performance Based Award for any Eligible Participant above the maximum amount permitted under Section 5(c)
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(f)
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Additional Limitations
. Notwithstanding any other provision of the Plan, any Award which is granted to a Covered Employee and is intended to constitute Qualified Performance Based Compensation shall be subject to any additional limitations set forth in Section 162(m) of the Code (including any amendment to Section 162(m) of the Code) or any regulations or rulings issued thereunder that are requirements for qualification as qualified performance based compensation as described in Section 162(m)(4)(C) of the Code, and the Plan shall be deemed amended to the extent necessary to conform to such requirements.
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8.
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PROCEEDS FROM SALE OF STOCK
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9.
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AMENDMENT AND DISCONTINUANCE
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10.
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GENERAL PROVISIONS
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(a)
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No Rights to Awards.
No Eligible Participant or other person shall have any claim to be granted any Award pursuant to the Plan, and neither the Company nor the Committee is obligated to treat Eligible Participants, Participants or other persons uniformly.
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(b)
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Withholding
. The Company shall have the authority and the right to deduct or withhold, or require an Eligible Participant or Holder to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including the Holder’s FICA obligation) required by law to be withheld with respect to any taxable event concerning a Holder arising as a result of this Plan. The Committee may in its discretion and in satisfaction of the foregoing requirement allow an Eligible Participant or Holder to elect to have the Company withhold shares of Stock otherwise issuable under an Award (or allow the return of shares of Stock) having a fair market value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan, the number of shares of Stock which may be withheld with respect to the issuance, vesting, exercise or payment of any Award (or which may be repurchased from the Participant of such Award within six (6) months (or such other period as may be determined by the Committee) after such shares of Stock were acquired by the Participant from the Company) in order to satisfy the Participant’s federal, state, local and foreign income and payroll tax liabilities with respect to the issuance, vesting, exercise or payment of the Award shall be limited to the number of shares which have a fair market value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such supplemental taxable income.
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(c)
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Indemnification
. To the extend allowable pursuant to applicable law, each member of the Committee or of the Board shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any proceeding against him or her;
provided
he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant to the Company’s Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify or hold them harmless.
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(d)
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Expenses.
The expenses of administering the Plan shall be borne by the Company and its Subsidiaries.
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(e)
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Titles and Headings
.
The titles and headings of the Sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control.
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(f)
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Fractional Shares
.
No fractional shares of Stock shall be issued and the Committee shall determine, in its discretion, whether cash shall be given in lieu of fractional shares or whether such fractional shares shall be eliminated by rounding up or down is appropriate.
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(g)
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Limitations Applicable to Section 16 Persons
.
Notwithstanding any other provision of the Plan, the Plan, and any Award granted or awarded to any Participant who is then subject to Section 16 of the 1934 Act, shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the 1934 Act (including any amendment to Rule 16b-3 of the 1934 Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
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11.
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COPIES OF PLAN
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