<PAGE> 1
As filed with the Securities and Exchange Commission on January 15, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
THE BUCKLE, INC.
(Exact name of registrant as specified in its charter)
NEBRASKA 47-0366193
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2407 WEST 24TH STREET
KEARNEY, NEBRASKA 68847
(Address of Principal Executive Offices) (ZIP Code)
---------------
1997 EXECUTIVE STOCK OPTION PLAN (1)
1998 RESTRICTED STOCK PLAN (2)
1998 EMPLOYEE STOCK PLAN (3)
(Full title of the plan or written contract)
DENNIS NELSON, PRESIDENT
THE BUCKLE, INC.
2407 WEST 24TH STREET
KEARNEY, NEBRASKA 68847
(308) 236-8491
(Name, address and telephone number,
including area code, of agent for service)
With copy to:
Rochelle A. Mullen, Esq.
Cline, Williams, Wright, Johnson & Oldfather
1125 South 103rd St. - Suite 720
Omaha, Nebraska 68124-1090
<PAGE> 2
(1) The 1997 Executive Stock Option Plan authorizing the issuance of
options to purchase 1,250,000 shares of common stock was approved by the
Shareholders on May 28, 1998. Subsequently, the Company effected a 3-for-2 stock
split thereby adjusting the number of shares issuable pursuant to the Plan to
1,875,000.
(2) The 1998 Restricted Stock Plan authorizing the issuance of 225,000
shares of common stock was approved by the Shareholders on May 28, 1998.
Subsequently, the Company effected a 3-for-2 stock split thereby adjusting the
number of shares issuable pursuant to the Plan to 337,500.
(3) The 1998 Employee Stock Plan was adopted by the Board on September
1, 1998 authorizing the issuance of 450,000 shares.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Amount of
to be Registered Registered Offering Price Maximum Registration
Per Share Aggregate Plan Fee
=============================================================================================================
<S> <C> <C> <C> <C>
Common Stock 2,662,500 Shares $28.75 per share $76,546,875 $21,280.04
=============================================================================================================
</TABLE>
(1) The proposed maximum offering price was determined in accordance
with Rule 457(c) under the Securities Act of 1933, based on the average of the
bid and asked price of shares of the same class reported on the New York Stock
Exchange on January 8, 1999.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement covers an indeterminate amount of interests to
be offered or sold pursuant to the plans described herein.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be delivered to employees, officers and directors in accordance with
Form S-8 and Rule 428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by the Registrant with the Securities
and Exchange Commission, are incorporated by reference into this Registration
Statement: (a) the Registrant's Annual Report on Form 10-K for Fiscal Year ended
January 31, 1998; (b) all other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since January 31, 1998; and (c) the
description of the Registrant's Common Stock contained in the Registrant's
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission pursuant to Section 12 of the Securities Act of 1934 on April 28,
1992 and declared effective by the Securities and Exchange Commission on May 6,
1992 as such description was amended by the Company's 1998 Proxy Statement,
specifically Proposal No. 3, filed with the Securities and Exchange on May 1,
1998.
All documents subsequently filed by the Registrant pursuant to sections
13(a), 13(c), and 14 and 15(d) of the Securities Exchange Act of 1934, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nebraska Business Corporation Act empowers the Registrant to
indemnify, subject to the standards set forth therein, any persons in connection
with any action, suit or proceeding brought or threatened by reason of the fact
that he or she is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the
<PAGE> 4
request of the Registrant. The Nebraska Business Corporation Act also provides
that the Registrant may purchase insurance on behalf of any such director,
officer, employee or agent. On September 3, 1991, the Registrant adopted a
resolution providing for the indemnification by the Registrant of each director,
officer, employee or agent of the Registrant to the full extent permitted by the
Nebraska Business Corporation Act. The Registrant maintains an insurance policy
insuring its directors and officers against liability for certain acts and
omissions while acting in their official capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
================================================================================
Exhibit
Number Exhibit
- --------------------------------------------------------------------------------
<S> <C>
5 Opinion of Counsel
- --------------------------------------------------------------------------------
23.1 Consent of Auditors
- --------------------------------------------------------------------------------
23.2 Consent of Counsel ( included in Exhibit 5)
- --------------------------------------------------------------------------------
99.1 1997 Executive Stock Option Plan
- --------------------------------------------------------------------------------
99.2 1998 Restricted Stock Plan
- --------------------------------------------------------------------------------
99.3 1998 Employee Stock Plan
================================================================================
</TABLE>
The Registrant hereby undertakes to submit each plan pursuant to which
shares are hereby registered and any amendments thereto to the Internal Revenue
Service (the "IRS") in a timely manner and to make all changes required by the
IRS in order to qualify the Plan under Section 401(a) of the Internal Revenue
Code of 1986, as amended.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate,
<PAGE> 5
represent a fundamental change in the information in the registration
statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information set forth in the registration
statement;
Provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13 (a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act, and
will be governed by the final adjudication of such issue.
<PAGE> 6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Kearney, State of Nebraska on January 14, 1999.
.
THE BUCKLE, INC.
BY: /s/ KAREN B. RHOADS
------------------------------------
Karen B. Rhoads, Vice President
Of Finance and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ DANIEL J. HIRSCHFELD Chairman and Director 1/14/99
- -----------------------------------
Daniel J. Hirschfeld
/s/ DENNIS H. NELSON President and Director 1/14/99
- -----------------------------------
Dennis H. Nelson
/s/ ROBERT E. CAMPBELL Director 1/14/99
- -----------------------------------
Robert E. Campbell
Director 1/ /99
- ----------------------------------- --
Ralph M. Tysdal
Director 1/ /99
- ----------------------------------- --
Bill L. Fairfield
Director 1/ /99
- ----------------------------------- --
William D. Orr
<PAGE> 1
EXHIBIT 5
LAW OFFICES OF
CLINE, WILLIAMS, WRIGHT, JOHNSON & OLDFATHER
ONE PACIFIC PLACE
1125 S. 103RD STREET, SUITE 720
OMAHA, NEBRASKA 68124
(402) 397-1700
FAX (402) 397-1806
January 8, 1999
Dennis Nelson, President
The Buckle, Inc.
2407 West 24th Street
Kearney, NE 68847
Re: Registration of 2,662,500 Shares of Common Stock
on Form S-8
Dear Mr. Nelson:
We have acted as legal counsel for The Buckle, Inc., a Nebraska
corporation, (the "Company") in connection with the Company's preparation of the
above-referenced registration of shares on Form S-8 (the "Form S-8") being filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, (the "Act"), and the prospectus which is not
filed, but is included as a part of the Form S-8 (the "Prospectus"). The Company
is registering 1,875,000 shares of common stock issuable pursuant to the 1997
Executive Stock Option Plan, 337,500 shares of common stock issuable pursuant to
the 1998 Restricted Stock Plan, and 450,000 shares of common stock issuable
pursuant to the 1998 Employee Stock Plan (collectively the "Plans"). All of the
shares are to be offered and sold, by the Company or its affiliates pursuant to
the Plans and in the manner set forth in the Plans, Form S-8 and each respective
Prospectus.
In connection herewith, we have examined: (i) the Form S-8 and the
Prospectuses; (ii) the Certificate of Incorporation and the Bylaws of the
Company; (iii) the corporate minutes and proceedings of the Company applicable
to filing of the Form S-8; and (iv) such other proceedings, documents and
records as we deemed necessary or appropriate for the purposes of making this
opinion. In making such examinations, we have assumed the genuineness of all
signatures on all documents and conformed originals to all copies submitted to
us as conformed or photocopies. In addition to such examination, we have
ascertained or verified such additional facts as we deemed necessary or
appropriate for purposes of this opinion. However, as to various questions of
fact material to our opinion, we have
<PAGE> 2
relied upon representations, statements or certificates of officers, directors,
or representatives of the Company or others.
Based upon the foregoing, we are of the opinion that: (i) the Company
has been legally incorporated and is validly existing under the laws of the
state of Nebraska; and (ii) the shares issued pursuant to the Plans, upon
issuance and payment therefor, as contemplated by the Plans, Form S-8 and the
Prospectuses, will be validly issued, fully paid and non-assessable common stock
of the Company.
We hereby consent to the filing of the opinion as an exhibit to the
Form S-8 and to any references to our firm in the Prospectuses. In giving this
consent, we do not admit that we come within the category of persons whose
consent is required under Section 7 of the Act or the Rules and Regulations of
the Commission promulgated thereunder.
Very truly yours,
Cline, Williams, Wright, Johnson &
Oldfather
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Buckle, Inc. on Form S-8 of our reports dated February 27, 1998, appearing
in and incorporated by reference in the Annual Report on Form 10-K of The
Buckle, Inc. for the year ended January 31, 1998.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
January 11, 1999
<PAGE> 1
EXHIBIT 99.1
THE BUCKLE, INC.
1997 EXECUTIVE STOCK OPTION PLAN
1. DEFINITIONS.
(a) "Agreement" means an agreement between the Company and a
Participant setting forth the terms and conditions of an Award.
(b) "Award" means a stock option, stock appreciation right, or any
combination of them, as described in and granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Change in Control" means
(i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) of the Exchange Act) other than (A) an employee
benefit plan (or related trust) sponsored or maintained by the Company or any
of its affiliates or (B) Dan Hirschfeld or any member of his family (including
his spouse, or any lineal descendant) or any of his or their affiliates, of
beneficial ownership (within the meaning of Rule 13D-3 promulgated under the
Exchange Act) of 25% or more of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors or of equity
securities having a value equal to 25% or more of the total value of all equity
securities of the Company, if, at the time of such acquisition Dan 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; or
(ii) individuals who as of the effective date of the Plan
constitute the Board and subsequently elected members of the Board whose
election is approved or recommended by at least a majority of such current
members or their successors whose election was so approved or recommended cease
for any reason to constitute at least a majority of such Board.
(iii) approval by the stockholders of the Company of (A) a merger,
reorganization or consolidation with respect to which the individuals and
entities who were the respective beneficial owners of the Common Stock and
voting securities of the Company immediately before such merger, reorganization
or consolidation do not, after such merger, reorganization or
<PAGE> 2
consolidation, beneficially own, directly or indirectly, more than 60% of
respectively, the then outstanding common shares and the combined voting power
of the then outstanding voting securities entitled to vote generally in the
election of directors of the corporation resulting from such merger,
reorganization or consolidation, (B) a liquidation or disolution of the Company
or (C) the sale or other disposition of all or substantially all of the assets
of the Company.
Notwithstanding the foregoing, a Change in Control of the Company shall
be deemed not to have occurred with respect to any Participant, if such
participant is, by written agreement executed prior to such Change in Control, a
party on such Participant's own behalf in a transaction in which the persons (or
their affiliates) with whom such Participant has the written agreement Acquire
the Company (as defined below) and, pursuant to the written agreement, the
Participant has an equity interest in the resulting entity or a right to acquire
such an equity interest.
For the purposes of the foregoing, "Acquire the Company" means the
acquisition of beneficial ownership by purchase, merger, or otherwise, of either
more than 50% of the Common Stock (such percentage to be computed in accordance
with Rule 13d-3(d)(l)(i) promulgated under the Exchange Act) or substantially
all of the assets of the Company or its successors.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means the committee referred to in Section 3(a) of the
Plan.
(g) "Common Stock" means the Common Stock of the Company, par value of
$.05 per share, or such other class or kind of share or other securities as may
be applicable under Section 12.
(h) "Company" means The Buckle, Inc., a Nebraska corporation, or any
successor to substantially all its business.
(i) "Employee" means an officer or other employee of the Company or a
related Company.
(j) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations thereunder.
(k) "Exchange Act" means the Securities and Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
<PAGE> 3
(l) "Fair Market Value" means the average of the highest and the lowest
quoted selling price of a share of Common Stock as reported on the composite
tape for securities listed on the New York Stock Exchange, or such other
national securities exchange as may be designated by the Committee, or, in the
event that the Common Stock is not listed for trading on a national securities
exchange but is quoted on an automated quotation system, on such automated
quotation system, in any such case on the valuation date (or, if there were no
sales on the valuation date, the average of the highest and the lowest quoted
selling prices as reported on said composite tape or automated quotation system
for the most recent day during which a sale occurred). If the Common Stock is
not listed on a national securities exchange and is not quoted on an automated
quotation system, then Fair Market Value shall be determined in good faith by
the Committee.
(m) "Participant" means an Employee who has been granted an Award under
the Plan.
(n) "Plan" means the 1997 Executive Stock Option Plan of the Company as
described herein.
(o) "Related Company" means any corporation or other entity in which
the Company has or obtains a proprietary interest by reason of stock ownership
or otherwise.
2. PURPOSE.
The Plan is intended to provide an incentive to selected Employees of
the Company and of its Related Companies to remain in the employ of the Company
and its Related Companies and to increase their interest in the success of the
Company by providing them with opportunities to increase their proprietary
interest in the Company and to receive compensation based upon the Company's
success.
3. ADMINISTRATION.
(a) A committee (the "Committee") appointed by the Board shall be
responsible for administering the Plan. The Committee shall be comprised of two
or more members of the Board who qualify both as "non-employee directors" as
contemplated by Rule 16(b)3 promulgated under the Exchange Act, or any successor
provision thereto and as "outside directors" under Section 162(m) of the Code.
(b) The Committee shall have authority to adopt such rules as it may
deem appropriate to carry out the purposes of the Plan, and shall have authority
to interpret and construe the provisions of the Plan and any
<PAGE> 4
agreements under the Plan and to make determinations pursuant to any Plan
provision or agreement. Each interpretation, determination or other action made
or taken by the Committee pursuant to the Plan shall be final and binding on all
persons. No member of the Committee shall be liable for any action or
determination made in good faith, and the members of the Committee shall be
entitled to indemnification and reimbursement in the manner provided in the
Company's Articles of Incorporation and By-Laws as they may be amended from time
to time.
(c) The Committee may designate persons other than its members to carry
out its responsibilities under such conditions or limitations as it may set,
except that the Committee may not delegate (i) its authority with regard to
Awards, (including decisions concerning the timing, pricing and amount of
Awards) granted to Employees who are officers or directors for purposes of
Section 16(b) of the Exchange Act or (ii) its authority pursuant to Section 10
to amend the Plan.
4. ELIGIBILITY.
Awards may be granted only to Employees. The Committee shall have the
authority to select the participants to whom Awards may be granted and to
determine the number and form of Awards to be granted to each Participant.
5. STOCK SUBJECT TO THE PROVISIONS OF THE PLAN.
(a) The stock subject to the provisions of the Plan shall be shares of
authorized but unissued Common Stock and shares of Common Stock held as treasury
stock. Subject to adjustment in accordance with the provisions of Section 12,
and subject to Section 5(b) below, the total number of shares of Common Stock as
to which Awards may be granted shall be 1,250,000. During the term of the Plan
no Participant shall be granted options or stock appreciation rights for more
than 500,000 shares. During any fiscal year no Participant shall be granted
options or stock appreciation rights to more than 200,000 shares. Shares not
granted in one year of the Plan may be carried over to subsequent years.
(b) For purposes of computing the number of shares of Common Stock
remaining available for Awards at any time, there shall be debited against the
total number of shares determined to be available pursuant to Section 5(a) and
5(c) the number of shares of Common Stock issuable upon exercise of stock
options and stock appreciation rights granted pursuant to Section 6. In the case
of a stock option granted in tandem with a stock appreciation right, the
exercise of the option or stock appreciation right will reduce proportionately
the number of shares subject to the tandem stock appreciation right or option,
as the case may be. Any shares ceasing to be subject to the tandem option or
<PAGE> 5
right because of such reduction shall not be available for future Awards granted
under the Plan.
(c) Any shares represented by Awards which are forfeited, terminated,
or expire unexercised shall again be available for grants and issuance under the
Plan. In the event of a stock-for-stock exercise, only the net number of shares
shall be deemed utilized, and shares withheld to pay withholding tax shall be
deemed not to be utilized.
6. AWARDS UNDER THE PLAN.
(a) Stock Options. A stock option shall entitle the Participant to whom
the option was granted the right to purchase a specified number of shares of
Common Stock during a specified time at a price that is fixed at the time of
grant, or for which the method of determining the price is specified at the time
of grant, all as the Committee may determine. Payment of the exercise price
shall be made in cash, or, to the extent provided in the Agreement relating to
the option, in shares of Common Stock already owned by the participant (so long
as the shares either (i) have been owned by the Participant for at least six
months, or (ii) acquired by the Participant in the open market) or in any
combination of cash and shares of Common Stock. If the Committee permits a
Participant to pay any portion of the option price and/or tax withholding
liability with shares of Stock with respect to the exercise of an Option (the
"underlying Option") as provided herein then the Committee, in its discretion,
may grant to such Participant (but only if Participant remains an eligible
Participant at that time) additional non-qualified stock options, the number of
shares of Option Stock called for thereunder to be equal to all or a portion of
the Stock so surrendered or withheld (a "Reload Option"). Each Reload Option
will be evidenced by an Option Agreement. Unless otherwise set forth therein,
each Reload Option will be immediately exercisable upon such grant and will be
coterminous with the Underlying Option. The Committee, in its sole discretion,
may establish such other terms and conditions for Reload Options as it deems
appropriate. The Committee may permit a Participant to elect to pay the Exercise
Price upon the exercise of an Option by authorizing a third party to sell Shares
(or a sufficient portion of the Shares) acquired upon exercise of the Option,
and remit to the Company a sufficient portion of the sale proceeds to pay the
entire Exercise Price and any tax withholding resulting from such exercise. The
Agreement relating to a stock option shall set forth the applicable vesting
schedule as determined by the Committee. A Stock Option shall be effective for
such term as shall be determined by the Committee and set forth in the Agreement
relating to such option.
<PAGE> 6
(b) Stock Appreciation Rights.
(i) General. A stock appreciation right shall entitle a
Participant to receive, upon exercise, an amount in cash equal to the excess, if
any, of the Fair Market Value on the exercise date of the number of shares of
Common Stock for which the stock appreciation right is exercised, over the Fair
Market Value of such number of shares on the date of grant (or, in the case of a
stock appreciation right granted in tandem with a stock option, the aggregate
exercise price which the Participant would otherwise have been required to pay
under the terms of the stock option in order to purchase such shares).
(ii) Exercisability. A stock appreciation right shall be
exercisable at the time or times established by the Committee at the time of
grant. If a stock appreciation right is granted in tandem with a stock option,
the stock appreciation right shall not be exercisable prior to or later than the
time the related stock option could be exercised.
(c) General Terms. The following terms and conditions shall be
applicable to Awards:
(i) Restrictions on Transfer. A stock option or stock
appreciation right granted under the Plan may not be transferred, pledged,
assigned, or otherwise disposed of, except by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
the Code or Title I or ERISA.
(ii) Award Exercisable Only by Participant. During the
lifetime of a Participant, a stock option or other Award providing for exercise
shall be exercisable only by the Participant. The grant of an Award shall impose
no obligation upon the Participant to exercise the Award.
(iii) Rights of a Stockholder. A Participant shall have no
rights as a stockholder with respect to shares covered by an Award until the
date the Participant or his nominee becomes the holder of record of such shares.
No adjustment will be made for dividends or other rights for which the record
date is prior to such date, except as provided in Section 12.
(iv) Limitation on Exercise. An Option may not be exercised,
and no shares of Common Stock may be issued in connection with an Award, unless
the issuance of such shares has been registered under the Securities Act of
1933, as amended, and qualified under applicable state "blue sky" laws, or the
Company has determined that an exemption from registration and from
qualification under such state "blue sky" laws is available.
(v) Single or Tandem Grants. Any Award described in
subsections (a) or (b) above may be granted singly or in combination or tandem
with any other Award, as the Committee may determine. Awards may be made in
combination with, in replacement of or as alternatives to grants or rights under
any other
<PAGE> 7
employee or compensation plan of the Company, including the plan of any acquired
entity.
7. AGREEMENTS.
The terms and conditions of each Award shall be embodied in an
Agreement in a form approved by the Committee, which shall contain terms and
conditions not inconsistent with the Plan and which shall incorporate the Plan
by reference.
8. TERMINATION OF EMPLOYMENT.
The Agreement relating to an Award will set forth provisions governing
the disposition of an Award in the event of the retirement, disability, death or
other termination of a Participant's employment.
9. TAX WITHHOLDING.
The Company or a subsidiary thereof, as appropriate, shall deduct from
all cash payments made pursuant to or in connection with any Award any Federal,
state or local taxes required to be withheld with respect to such payments. In
the case of an Award payable in shares of Common Stock, the Company shall
satisfy such obligation to remit taxes by withholding shares of Common Stock
that would otherwise be received by such individual.
10. AMENDMENTS.
The Committee may at any time and from time to time alter, amend,
suspend or terminate the Plan in whole or in part, provided, however, that any
amendment which under the requirements of applicable law or by the rules of any
stock exchange on which shares of the Common Stock of the Company are traded
must be approved by the stockholders of the Company shall not be effective
unless and until such stockholder approval has been obtained in compliance with
such law, and provided, further that any amendment that must be approved by the
stockholders of the Company in order to maintain the continued qualification of
the Plan under Section 162(m) of the Code, or any successor provision, shall not
be effective unless and until such stockholder approval has been obtained in
compliance with such rule. No termination or amendment of the Plan may, without
the consent of the participant to whom an Award has been granted, adversely
affect the rights of such Participant under such Award.
11. APPLICATION OF FUNDS.
The proceeds received by the Company from the sale of Common Stock or
other securities pursuant to Awards will be used for general corporate purposes.
<PAGE> 8
12. ADJUSTMENT OF AND CHANGES IN SHARES.
In the event of any merger, consolidation, recapitalization,
reclassification, stock dividend, distribution of property, special cash
dividend, or other change in corporate structure affecting the shares, the
Committee shall make such adjustments, if any, as it deems appropriate in the
number and class of shares subject to, and the exercise price of, outstanding
options granted under the Plan, and in the value of, or number or class of
shares subject to, other Awards granted or available to be granted under the
Plan. The foregoing adjustments shall be determined by the Committee in its sole
discretion.
13. NO RIGHT TO EMPLOYMENT.
No person shall have any claim or right to receive grants of Awards
under the Plan. Neither the Plan, the grant or Awards under the Plan, nor any
action taken or omitted to be taken under the Plan shall be deemed to create or
confer on any employee any right to be retained in the employ of the Company or
any subsidiary or other affiliate thereof, or to interfere with or to limit in
any way the right of the Company or any subsidiary or other affiliate thereof to
terminate the employment of such employee at any time.
14. GOVERNING LAW.
The Plan and all agreements entered into under the Plan shall be
construed in accordance with and governed by the laws of the State of Nebraska.
15. EFFECTIVE DATE.
The effective date of this Plan shall be the date the Plan is adopted
by the Compensation Committee of the Board of Directors, provided the Plan is
approved by the Board of Directors and the stockholders of the Company within
twelve months before or after that date. If the Plan is not so approved any
Awards granted under this Plan will be rescinded and will be void.
16. TERM OF PLAN.
Unless earlier terminated pursuant to Section 10, the Plan shall
terminate on the fifth anniversary of the effective date provided for in Section
15, except with respect to Awards then outstanding.
<PAGE> 9
17. NO RESTRICTION ON RIGHT OF COMPANY TO EFFECT CORPORATE CHANGES.
The Plan shall not affect in any way the right or power of the Company
or its stockholders to make or authorize any or all adjustment,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or
affect the Common Stock or the rights thereof or which are convertible into or
exchangeable for Common Stock , or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
18. CHANGE IN CONTROL.
In order to maintain the Participant's rights in the event of a Change
in Control, the Committee, in its sole discretion, may, either at the time an
Award is made hereunder or at any time prior to, or coincident with or after the
time of a Change in Control:
(i) provide for the acceleration of any time periods relating to the
exercise or realization of such Awards so that such Awards may be exercised or
realized in full on or before a date fixed by the Committee;
(ii) provide for the purchase of such Awards, upon the Participant's
request, for an amount of cash equal to the Change in Control Value of such
rights had such Awards been currently exercisable or payable;
(iii) make such adjustments to the Awards then outstanding as the
Committee deems appropriate to reflect such Change in Control; or
(iv) cause the Awards then outstanding to be assumed, or new rights
substituted therefor, by the surviving corporation in such Change in Control.
The Committee may, in its discretion, include such further provisions
and limitations in any agreement documenting such Awards as it may deem
equitable and in the best interests of the Company in the event of a Change in
Control, except that in no event may the Committee take actions that would cause
the Plan to lose qualification under Rule 16b-3 under the Exchange Act, or take
actions that will enable any Participant to incur liability under Section 16(b)
of the Exchange Act. Notwithstanding anything contained in the Plan or any
agreement under the Plan to the contrary, if the consummation of any transaction
under the Plan, or the taking of any action by the Committee in
<PAGE> 10
connection with a Change in Control, would result in the possible imposition of
liability on a Participant pursuant to Section 16(b) of the Exchange Act, the
Committee shall have the right in its sole discretion, but shall not be
obligated, to defer such transaction or the effectiveness of such action to the
extent necessary to avoid such liability, but in no event for a period longer
than 180 days.
Approved by the Compensation Committee on December 26, 1997.
Approved by the Board of Directors on March 20, 1998.
Approved by the Stockholders on May 28,1998.
<PAGE> 1
EXHIBIT 99.2
THE BUCKLE, INC.
1998 RESTRICTED STOCK PLAN
1. Purpose; Effectiveness of the Plan
(a) The purpose of this Plan is to advance the interests of
the Company and its stockholders by helping the Company obtain
and retain the services of employees and officers, upon whose
judgment, initiative and efforts the Company is substantially
dependent, and to provide those persons with further
incentives to advance the interests of the Company.
(b) This Plan will become effective on the date of its
adoption by the Committee, provided this Plan is approved by
the Board and the stockholders of the Company (within twelve
(12) months before or after that date). If this Plan is not so
approved by the stockholders of the Company within such period
of time, any agreements entered into under this Plan, and any
issuances of Stock thereunder, will be rescinded and will be
void. This Plan will remain in effect until it is terminated
by the Board or the Committee under Section 8 hereof. This
Plan will be governed by, and construed in accordance with,
the laws of the State of Nebraska.
2. Certain Definitions.
Unless the context otherwise requires, the following defined terms
(together with other capitalized terms defined elsewhere in this Plan) will
govern the construction of this Plan, and of any agreements entered into
pursuant to this Plan:
(a) "the 1933 Act" means the federal Securities Act of 1933,
as amended;
(b) "the 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 Board and as subsequently amended, or
to any
<PAGE> 2
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; provided that the term "Committee" will refer to
the Board during such times as no Committee is appointed by
the Board;
(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 16(b)(3)
promulgated under the 1934 Act and an "outside director" as
defined under Section 163(m) of the Code;
(h) "Eligible Participants" means persons who, at a particular
time, are employees or officers of the Company of its
subsidiaries;
(i) "Holder" means an Eligible Participant to whom any
Restricted Stock is issued hereunder, and any transferee
thereof pursuant to a Transfer authorized under this Plan;
(j) "Plan" means this 1998 Restricted Stock Plan of the
Company;
(k) "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;
(l) "Restricted Stock" means Stock issued or issuable by the
Company pursuant to this Plan;
(m) "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;
(n) "Stock" means shares of the Company's Common Stock, $.05
par value;
(o) "Subsidiary" has the same meaning as "Subsidiary
Corporation" as defined in Section 424(f) of the Code;
(p) "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).
(q) "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 as 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
<PAGE> 3
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
to 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.
The Company may issue Restricted Stock under this Plan only to persons
who are Eligible Participants as of the time of such issuance. Subject to the
provisions of section 5, there is no limitation on the amount of Restricted
Stock that may be issued to an Eligible Participant.
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, by-laws 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, 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.
<PAGE> 4
(d) Restricted Stock Agreements. Restricted Stock will be
issued hereunder only upon the execution and delivery of an
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.
(a) Restricted Stock Pool. The aggregate number of shares of
Restricted Stock that may be issued pursuant to this Plan will
not exceed Two Hundred Twenty Five Thousand (225,000) (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
exercise price of any rights of repurchase or of first refusal
under this Plan; and (iii) 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 of 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 or
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.
6. Terms of Restricted Stock Agreements.
Each issuance of Restricted Stock pursuant to this Plan will be
evidenced by a Restricted Stock Agreement between the Company and the Eligible
Participant to whom such Restricted Stock is to be issued, in form and
<PAGE> 5
substance satisfactory to the Committee in its sole discretion, consistent with
this Plan. Each Restricted Stock Agreement will specify the Purchase Price with
respect to the Restricted Stock to be sold to the Holder thereunder, to be
fixed by the Committee in its discretion, which Purchase Price may be zero. The
Purchase Price will be payable to the Company in United States dollars in cash
or by check, or such other legal consideration as may be approved by the
Committee, in its discretion. Without limiting the foregoing, each Restricted
Stock Agreement (unless otherwise stated therein) will be deemed to include the
following terms and conditions:
(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 Unbelted 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 Unbelted 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
Unbelted 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
<PAGE> 6
any) at any 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
Unbelted 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 an
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
<PAGE> 7
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 an 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 an 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) Securities Act of 1933. The Holder
understands that the shares of Restricted Stock
have not been registered under the 1933 Act, and
that such shares are not freely tradable and must
be held indefinitely unless such shares are either
registered under the 1933 Act or an exemption from
such registration is available.
(ii) Other Applicable Laws. The Holder
further understands that each Transfer of the
Restricted Stock requires full compliance with the
provisions of all applicable laws.
(iii) 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
<PAGE> 8
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.
(h) Notices. Any notice to be given to the Company under the
terms of an 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.
(i) 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.
7. Proceeds from Sale of Stock.
Cash proceeds from the sale of shares of Restricted Stock, if any,
issued from time to time pursuant to this Plan will be added to the general
funds of the Company and as such will be used from time to time for general
corporate purposes.
<PAGE> 9
8. Amendment and Discontinuance.
The Board or the Committee may amend, suspend or discontinue this Plan
at any time or from time to time; provided that no such action of the Board or
the Committee shall alter or impair any rights previously granted to Holders
under the Plan without the consent of such affected Holders (or their successors
or assignees.)
9. Copies of Plan.
A copy of this Plan will be delivered to each Holder at or before the
time he or she executes an Restricted Stock Agreement.
Date Plan Adopted by the Committee: March 20, 1998
Date Plan Adopted by Board of Directors: March 20, 1998
Date Plan Adopted by Stockholders: May 28, 1998.
<PAGE> 1
EXHIBIT 99.3
THE BUCKLE, INC.
1998 EMPLOYEE STOCK OPTION PLAN
1. DEFINITIONS.
(a) "Agreement" means an agreement between the Company and a
Participant setting forth the terms and conditions of an Award.
(b) "Award" means a stock option, as described in and granted
under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Change in Control" means
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d) (3) of the Exchange Act) other than (A) an
employee benefit plan (or related trust) sponsored or maintained by the Company
or any of its affiliates or (B) Dan Hirschfeld or any member of his family
(including his spouse, or any lineal descendant) or any of his or their
affiliates, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors or of equity securities having a value equal to 25% or more of the
total value of all equity securities of the Company, if, at the time of such
acquisition Dan 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; or
(ii) individuals who as of the effective date of the Plan
constitute the Board and subsequently elected members of the Board whose
election is approved or recommended by at least a majority of such current
members or their successors whose election was so approved or recommended, cease
for any reason to constitute at least a majority of such Board.
(iii) approval by the stockholders of the Company of (A)
a merger, reorganization or consolidation with respect to which the individuals
and entities who were the respective beneficial owners of the Common Stock and
voting securities of the Company immediately before such 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
<PAGE> 2
power of the then outstanding voting securities entitled to vote generally in
the election of directors of the corporation resulting from such merger,
reorganization or consolidation, (B) a liquidation or dissolution of the Company
or (C) the sale or other disposition of all or substantially all of the assets
of the Company.
Notwithstanding the foregoing, a Change in Control of the
Company shall be deemed not to have occurred with respect to any Participant, if
such Participant is, by written agreement executed prior to such Change in
Control, a party on such Participant s own behalf in a transaction in which the
persons (or their affiliates) with whom such Participant has the written
agreement Acquire the Company (as defined below) and, pursuant to the written
agreement, the Participant has an equity interest in the resulting entity or a
right to acquire such an equity interest.
For the purposes of the foregoing, "Acquire the Company" means
the acquisition of beneficial ownership by purchase, merger, or otherwise, of
either more than 50% of the Common Stock (such percentage to be computed in
accordance with Rule 13d-3(d)(1)(i) promulgated under the Exchange Act) or
substantially all of the assets of the Company or its successors.
(e) "Code" means the Internal Revenue Code of 1986, as
amended.
(f) "Committee" means the committee referred to in Section
3(a) of the Plan.
(g) "Common Stock" means the Common Stock of the Company, par
value $.01 per share, or such other class or kind of share or other securities
as may be applicable under Section 12.
(h) "Company" means The Buckle, Inc., a Nebraska corporation,
or any successor to substantially all its business.
(i) "Employee" means an officer or other employee of the
Company or a Related Company, other than an executive officer of the Company.
(j) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and the rules and regulations thereunder.
(k) "Exchange Act" means the Securities and Exchange Act of
1934, as amended, and the rules and regulations thereunder.
<PAGE> 3
(l) "Fair Market Value" means the average of the highest and
the lowest quoted selling price of a share of Common Stock as reported on the
composite tape for securities listed on the New York Stock Exchange, or such
other national securities exchange as may be designated by the Committee, or, in
the event that the Common Stock is not listed for trading on a national
securities exchange but is quoted on an automated quotation system, on such
automated quotation system, in any such case on the valuation date (or, if there
were no sales on the valuation date, the average of the highest and the lowest
quoted selling prices as reported on said composite tape or automated quotation
system for the most recent day during which a sale occurred) . If the Common
Stock is not listed on a national securities exchange and is not quoted on an
automated quotation system, then Fair Market Value shall be determined in good
faith by the Committee.
(m) "Participant" means an Employee who has been granted an
Award under the Plan.
(n) "Plan" means the 1998 Employee Stock Option Plan of the
Company as described herein.
(o) "Related Company" means any corporation or other entity in
which the Company has or obtains a proprietary interest by reason of stock
ownership or otherwise.
2. PURPOSE.
The Plan is intended to provide an incentive to selected
Employees of the Company and of its Related Companies to remain in the employ of
the Company and its Related Companies and to increase their interest in the
success of the Company by providing them with opportunities to increase their
proprietary interest in the Company and to receive compensation based upon the
Company s success.
3. ADMINISTRATION.
(a) A committee (the "Committee") appointed by the Board shall
be responsible for administering the Plan. The Committee shall be comprised of
two or more members of the Board who qualify both as "non-employee directors" as
contemplated by Rule l6(b)3 promulgated under the Exchange Act, or any successor
provision thereto and as "outside directors" under Section 162 (m) of the Code.
(b) The Committee shall have authority to adopt such rules as
it may deem appropriate to carry out the purposes of the Plan, and shall have
authority to interpret and construe the provisions of the Plan and any
<PAGE> 4
agreements under the Plan and to make determinations pursuant to any Plan
provision or agreement. Each interpretation, determination or other action made
or taken by the Committee pursuant to the Plan shall be final and binding on all
persons. No member of the Committee shall be liable for any action or
determination made in good faith, and the members of the Committee shall be
entitled to indemnification and reimbursement in the manner provided in the
Company s Articles of Incorporation and By-Laws as they may be amended from time
to time.
(c) The Committee may designate persons other than its members
to carry out its responsibilities under such conditions or limitations as it may
set, except that the Committee may not delegate (i) its authority with regard to
Awards, (including decisions concerning the timing, pricing and amount of
Awards) granted to Employees who are officers or directors for purposes of
Section 16(b) of the Exchange Act or (ii) its authority pursuant to Section 10
to amend the Plan.
4. ELIGIBILITY.
Awards may be granted only to Employees. The Committee shall have the
authority to select the participants to whom Awards may be granted and to
determine the number and form of Awards to be granted to each Participant.
5. STOCK SUBJECT TO THE PROVISIONS OF THE PLAN.
(a) The stock subject to the provisions ot the Plan shall be
shares of authorized but unissued Common Stock. Subject to adjustment in
accordance with the provisions of Section 12, and subject to Section 5(b) below,
the total number of shares of Common Stock as to which Awards may be granted
shall be 450,000.
(b) For purposes of computing the number of shares of Common
Stock remaining available for Awards at any time, there shall be debited against
the total number of shares determined to be available pursuant to Section 5(a)
and 5(c) the number of shares of Common Stock issuable upon exercise of stock
options and pursuant to Section 6.
(c) Any shares represented by Awards which are forfeited,
terminated, or expire unexercised shall again be available for grants and
issuance under the Plan. In the event of a stock-for-stock exercise, only the
net number of shares shall be deemed utilized, and shares withheld to pay
withholding tax shall be deemed not to be utilized.
<PAGE> 5
6. AWARDS UNDER THE PLAN.
(a) Stock Options. A stock option shall entitle the
Participant to whom the option was granted the right to purchase a specified
number of shares of Common Stock during a specified time at a price that is
fixed at the time of grant, or for which the method of determining the price is
specified at the time of grant, all as the Committee may determine. Payment of
the exercise price shall be made in cash, or, to the extent provided in the
Agreement relating to the option, in shares of Common Stock already owned by the
participant (so long as the shares either (i) have been owned by the Participant
for at least six months, or (ii) acquired by the Participant in the open market)
or in any combination of cash and shares of Common Stock. If the Committee
permits a Participant to pay any portion of the option price and/or tax
withholding liability with shares of Stock with respect to the exercise of an
Option (the "Underlying Option") as provided herein then the Committee, in its
discretion, may grant to such Participant (but only if Participant remains an
eligible Participant at that time) additional non-qualified stock options, the
number of shares of Option Stock called for thereunder to be equal to all or a
portion of the Stock so surrendered or withheld (a "Reload Option"). Each Reload
Option will be evidenced by an Option Agreement. Unless otherwise set forth
therein, each Reload Option will be immediately exercisable upon such grant and
will be coterminus with the Underlying Option. The Committee, in its sole
discretion, may establish such other terms and conditions for Reload Options as
it deems appropriate. The Committee may permit a Participant to elect to pay the
Exercise Price upon the exercise of an Option by authorizing a third party to
sell Shares (or a sufficient portion of the Shares) acquired upon exercise of
the Option, and remit to the Company a sufficient portion of the sale proceeds
to pay the entire Exercise Price and any tax withholding resulting from such
exercise. The Agreement relating to a stock option shall set forth the
applicable vesting schedule as determined by the Committee. A stock option shall
be effective for such term as shall be determined by the Committee and set forth
in the Agreement relating to such option.
(b) General Terms. The following terms and conditions shall be
applicable to Awards:
(i) Restrictions on Transfer. A stock option granted
under the Plan may not be transferred, pledged, assigned, or otherwise disposed
of, except by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code or Title I or ERISA.
(ii) Award Exercisable Only by Participant. During the
lifetime of a Participant, a stock option shall be exercisable only by the
<PAGE> 6
Participant. The grant of an Award shall impose no obligation upon the
Participant to exercise the Award.
(iii) Rights of a Stockholder. A Participant shall have
no rights as a stockholder with respect to shares covered by an Award until the
date the Participant or his nominee becomes the holder of record of such shares.
No adjustment will be made for dividends or other rights for which the record
date is prior to such date, except as provided in Section 12.
(iv) Limitation on Exercise. An Option may not be
exercised, and no shares of Common Stock may be issued in connection with an
Award, unless the issuance of such shares has been registered under the
Securities Act of 1933, as amended, and qualified under applicable state "blue
sky" laws, or the Company has determined that an exemption from registration and
from qualification under such state "blue sky" laws is available.
7. AGREEMENTS.
The terms and conditions of each Award shall be embodied in an
Agreement in a form approved by the Committee, which shall contain terms and
conditions not inconsistent with the Plan and which shall incorporate the Plan
by reference.
8. TERMINATION OF EMPLOYMENT.
The Agreement relating to an Award will set forth provisions
governing the disposition of an Award in the event of the retirement,
disability, death or other termination of a Participant `s employment.
9. TAX WITHHOLDING.
The Company or a subsidiary thereof, as appropriate, shall
satisfy the obligation to withhold Federal, State or local taxes by withholding
shares of Common Stock that would otherwise be received by such individual.
<PAGE> 7
10. AMENDMENTS.
The Committee may at any time and from time to time alter,
amend, suspend or terminate the Plan in whole or in part, provided, however,
that any amendment which under the requirements of applicable law or by the
rules of any stock exchange on which shares of the Common Stock of the Company
are traded must be approved by the stockholders of the Company shall not be
effective unless and until such stockholder approval has been obtained in
compliance with such law, and provided, further, that any amendment that must be
approved by the stockholders of the Company in order to maintain the continued
qualification of the Plan under Section 162(m) of the Code, or any successor
provision, shall not be effective unless and until such stockholder approval has
been obtained in compliance with such rule. No termination or amendment of the
Plan may, without the consent of the Participant to whom an Award has been
granted, adversely affect the rights of such Participant under such Award.
11. APPLICATION OF FUNDS.
The proceeds received by the Company from the sale of Common
Stock or other securities pursuant to Awards will be used for general corporate
purposes.
12. ADJUSTMENT OF AND CHANGES IN SHARES.
In the event of any merger, consolidation, recapitalization,
reclassification, stock dividend, distribution of property, special cash
dividend, or other change in corporate structure affecting the shares, the
Committee shall make such adjustments, if any, as it deems appropriate in the
number and class of shares subject to, and the exercise price of, outstanding
options granted under the Plan, and in the value of, or number or class of
shares subject to, other Awards granted or available to be granted under the
Plan. The foregoing adjustments shall be determined by the Committee in its sole
discretion.
13. NO RIGHT TO EMPLOYMENT.
No person shall have any claim or right to receive grants of
Awards under the Plan. Neither the Plan, the grant of Awards under the Plan, nor
any action taken or omitted to be taken under the Plan shall be deemed to create
or confer on any employee any right to be retained in the employ of the Company
or any subsidiary or other affiliate thereof, or to interfere with or to limit
in any way the right of the Company or any subsidiary or other affiliate thereof
to terminate the employment of such employee at any time.
<PAGE> 8
14. GOVERNING LAW.
The Plan and all agreements entered into under the Plan shall
be construed in accordance with and governed by the laws of the State of
Nebraska.
15. EFFECTIVE DATE.
The effective date of this Plan shall be the date the Plan is
adopted by the Compensation Committee of the Board of Directors, provided the
Plan is approved by the Board of Directors and the stockholders of the Company
within twelve months before or after that date. If the Plan is not so approved
any Awards granted under this Plan will be rescinded and will be void.
16. TERM OF PLAN.
Unless earlier terminated pursuant to Section 10, the Plan
shall terminate on the fifth anniversary of the effective date provided for in
Section 15, except with respect to Awards then outstanding.
17. NO RESTRICTION ON RIGHT OF COMPANY TO EFFECT CORPORATE CHANGES.
The Plan shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company s capital
structure or its business, or any merger or consolidation of the Company, or any
issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or
affect the Common Stock or the rights thereof or which are convertible into or
exchangeable for Common Stock, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
18. CHANGE IN CONTROL.
In order to maintain the Participants rights in the event of a
Change in Control, the Committee, in its sole discretion, may, either at the
time an Award is made hereunder or at any time prior to, or coincident with or
after the time of a Change in Control;
<PAGE> 9
(i) provide for the acceleration of any time periods
relating to the exercise or realization of such Awards so that such Awards may
be exercised or realized in full on or before a date fixed by the Committee;
(ii) provide for the purchase of such Awards, upon the
Participant s request, for an amount of cash equal to the Change in Control
Value of such rights had such Awards been currently exercisable or payable;
(iii) make such adjustments to the Awards then
outstanding as the Committee deems appropriate to reflect such Change in
Control; or
(iv) cause the Awards then outstanding to be assumed, or
new rights substituted therefor, by the surviving corporation in such Change in
Control.
The Committee may, in its discretion, include such further
provisions and limitations in any agreement documenting such Awards as it may
deem equitable and in the best interests of the Company in the event of a Change
in Control, except that in no event may the Committee take actions that would
cause the Plan to lose qualification under Rule 16b-3 under the Exchange Act, or
take actions that will enable any Participant to incur liability under Section
16(b) of the Exchange Act. Notwithstanding anything contained in the Plan or any
agreement under the Plan to the contrary, if the consummation of any transaction
under the Plan, or the taking of any action by the Committee in connection with
a Change in Control, would result in the possible imposition of liability on a
Participant pursuant to Section 16(b) of the Exchange Act, the Committee shall
have the right, in its sole discretion, but shall not be obligated, to defer
such transaction or the effectiveness of such action to the extent necessary to
avoid such liability, but in no event for a period longer than 180 days.
Approved by the Compensation Committee on September 21, 1998.
Approved by the Board of Directors on September 21, 1998.
