1
THE BUCKLE, INC.
DEFERRED COMPENSATION PLAN
AND TRUST AGREEMENT
(EFFECTIVE FEBRUARY 1, 1999)
2
THE BUCKLE, INC.
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
Page
----
INTRODUCTION 1
ARTICLE I GENERAL DEFINITIONS 2
ARTICLE II PARTICIPATION 8
ARTICLE III DEFERRED COMPENSATION PLAN CONTRIBUTIONS FOR
ELIGIBLE EMPLOYEES 9
ARTICLE IV GENERAL PROVISIONS REGARDING CONTRIBUTIONS 11
ARTICLE V ALLOCATIONS TO PARTICIPANTS'ACCOUNTS 12
ARTICLE VI DEEMED INVESTMENT OF CONTRIBUTIONS TO PLAN 13
ARTICLE VII VESTING 14
ARTICLE VIII PAYMENT OF BENEFITS 16
ARTICLE IX DESIGNATION OF BENEFICIARY 18
ARTICLE X FUNDING 19
ARTICLE XI ADMINISTRATION 20
ARTICLE XII AMENDMENTS. ACTION BY COMPANY, AND TERMINATION 24
ARTICLE XIII MISCELLANEOUS PROVISIONS 26
APPENDIX A SCHEDULE OF EMPLOYEES ELIGIBLE TO PARTICIPATE
IN DEFERRED COMPENSATION PLAN
2
3
THE BUCKLE, INC.
DEFERRED COMPENSATION PLAN
INTRODUCTION
The Buckle, Inc. (the "Company") hereby establishes The Buckle, Inc.
Deferred Compensation Plan (the "Plan") effective as of February 1, 1999, in
order to provide additional deferred compensation opportunities to certain key
employees. The Plan is an unfunded plan maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees. As such, the Plan is not intended to meet the
qualification requirements of Section 401(a) of the Internal Revenue Code.
ARTICLE I
GENERAL DEFINITIONS
SECTION 1.01. Account. The account maintained for a Participant to
record his or her share of the Company Contributions and Deferral Contributions
and adjustments relating thereto.
SECTION 1.02. Administration Committee or Committee. The persons
appointed pursuant to Article XI to administer the Plan in accordance with said
Article.
SECTION 1.03. Beneficiary. Any person designated under Article IX by
the Participant to receive any benefit payable under the Plan by reason of the
Participant's death.
SECTION 1.04. Board of Directors or Board. The Board of Directors of
the Company.
SECTION 1.05. Change in Control. Change in Control means:
(a) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) of the
Securities and Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the "Exchange Act"))
other than (1) an employee benefit plan (or related
trust) sponsored or maintained by the Company or any of
its affiliates or (2) Xxx Xxxxxxxxxx or any member of
his family (including his spouse, or any lineal
descendent) or The Xxxxxxxxxx Family Foundation or any
of his or their affiliates, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 25 percent 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 percent or more of
the total value of all equity securities of the Company,
if, at the time of such acquisition Xxx Xxxxxxxxxx,
members of his family, The Xxxxxxxxxx Family Foundation
and his or their affiliates own less than 50 percent of
the outstanding voting securities of the Company or less
than 50 percent of the total value of all equity
securities
4
of the Company or less than 50 percent of the total
value of all equity securities of the Company;
(b) 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; or
(c) approval by the stockholders of the Company of (1) 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 50
percent 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, (2) a liquidation or dissolution of the
Company or (3) the sale or other disposition of all or
substantially all of the assets of the Company.
SECTION 1.06. Company. The Buckle, Inc.
SECTION 1.07. Company Contribution. The credits made to the Plan by
the Company under Section 3.02 hereof.
SECTION 1.08. Compensation. The total cash compensation actually
paid to a Participant during a Plan Year, including pre-tax contributions made
on behalf of the Participant under the Profit Sharing Plan, including deferrals
under Section 125 or similar provisions of the Internal Revenue Code and
deferrals under this Plan, including base salary, hourly wages, bonuses,
overtime compensation, commissions and incentives, but excluding the value of
any non-cash fringe benefits.
SECTION 1.09. "Deemed Investment" shall mean an investment medium
permitted by the Employer in which a Participant may direct the Employer as to
how the Participant's Account is deemed invested.
SECTION 1.10. Deferral Contribution. The credits made to the Plan by
the Company under Section 3.01 hereof on behalf of an Eligible Employee in
accordance with such Participant's election.
SECTION 1.11. Disability. A physical or mental condition which, in
the judgment of the Administration Committee, based upon medical reports and
other evidence satisfactory to the Administration Committee, permanently
prevents an Employee from satisfactorily performing his or her usual duties for
the Company or the
5
duties of such other position or job which the Company makes available to him or
her and for which such Employee is qualified by reason of his or her training,
education or experience.
SECTION 1.12. Eligible Employee. An Employee who is part of a select
group of highly compensated or management employees and (a) who is identified on
Appendix A attached hereto; or (b) who is declared eligible to participate in a
resolution hereafter duly adopted by the Board of Directors.
SECTION 1.13. Employee. Any person who is employed by the Company.
SECTION 1.14. Former Participant. A Participant whose employment
with the Company has terminated or who has otherwise ceased to be an Eligible
Employee, but who has a vested Account balance under the Plan which has not been
paid in full and, therefore, is continuing to participate in the allocation of
Trust Fund Income.
SECTION 1.15. Good Cause. Good cause shall be deemed to exist if,
and only if:
(a) The Participant engages in acts or omissions
constituting dishonesty, intentional breach of fiduciary
obligation or intentional wrongdoing or malfeasance;
(b) The Participant is convicted of a criminal violation
involving fraud or dishonesty; or
(c) The Participant materially breaches the terms of any
Agreement between the Participant and the Company
relating to the Participant's employment, or materially
fails to satisfy the conditions and requirements of the
Participant's employment with the Company, and such
breach or failure by its nature is incapable of being
cured, or such breach or failure remains uncured for
more than thirty days following receipt by the
Participant of written notice from the Company
specifying the nature of the breach or failure and
demanding the cure thereof. For purposes of this
paragraph, inattention by the Participant to the
Participant's duties shall be deemed a breach or failure
incapable of cure. Notwithstanding anything herein to
the contrary, in the event the Company shall terminate
the employment of the Participant for Good Cause
hereunder, the Company shall give at least thirty days
prior written notice to the Participant specifying in
detail the reason or reasons for the Participant's
termination.
SECTION 1.16. Good Reason. Good Reason shall exist if:
(a) There is a significant reduction in the scope of the
Participant's authority;
(b) There is a reduction in the Participant's rate of base
pay;
(c) The Company changes the principal location in which the
Participant is required to perform services; or
(d) The Company terminates or amends any Incentive Plan or
Retirement Plan so that, when considered in the
aggregate with any substitute Plan or Plans, the
Incentive Plans and Retirement Plans in which the
Participant is participating fail to provide the
Participant with a level of benefits equivalent to at
least 90 percent of the value of the level of benefits
provided in the aggregate by such incentive Plans or
Retirement Plans at the date of a Change in Control.
"Incentive Plans" shall mean any incentive, bonus,
deferred compensation or similar plan or arrangement
currently or hereafter made available by the
6
Company in which the Participant is eligible to participate. For
purposes of the 90 percent test, the level of the value of benefits
shall be compared based on comparable levels of performance, and a
reduction in benefits resulting from a failure to meet performance
targets shall not constitute Good Reason, so long as the performance
targets are comparable and the level of benefits would not have been
reduced by more than 10 percent had the performance targets been
achieved. "Retirement Plans" shall mean any qualified or
supplemental defined benefit retirement plan or defined contribution
retirement plan, currently or hereinafter made available by the
Company in which the Participant is eligible to participate, or any
private arrangement maintained by the Company solely for the
Participant, including, but not limited to The Buckle, Inc. Cash or
Deferred Profit Sharing Plan.
SECTION 1.17. Income. The net gain or loss from Deemed Investments,
as reflected by deemed interest payments, dividends, realized and unrealized
gains and losses on securities, other investment transactions and expenses on
the Deemed Investments. In determining the Income of the Trust Fund as of any
date, assets shall be valued on the basis of their then fair market value.
SECTION 1.18. Participant. Any person participating in the Plan in
accordance with the provisions of Article II.
SECTION 1.19. Plan. The Buckle, Inc. Deferred Compensation Plan, the
plan set forth herein, as amended from time to time.
SECTION 1.20. Plan Year. The twelve-month period commencing February
1 and ending January 31.
SECTION 1.21. Quarter. The first, second, third and fourth
three-month periods of the Plan Year.
SECTION 1.22. Retirement. Termination of employment for reasons
other than death or Disability.
SECTION 1.23. Profit Sharing Plan. The Buckle, Inc. Cash or Deferred
Profit Sharing Plan, as amended from time to time.
SECTION 1.24. Trust or Trust Fund. The Trust or Trust Fund
maintained in accordance with the terms of the Trust Agreement, as from time to
time amended.
SECTION 1.25. Trust Agreement. The Trust Agreement dated as of
February 1, 1999, as amended, substituted, or replaced from time to time,
entered into between the Company and the Trustee, under which Company
Contributions and Deferral Contributions will be received, held, invested, and
disbursed for purposes of the Plan.
7
SECTION 1.26. Trustee. National Bank of Commerce Trust and Savings
Association, or any successor trustee appointed pursuant to the Trust Agreement.
SECTION 1.27. Valuation Date. The last business day of any Quarter.
ARTICLE II
PARTICIPATION
SECTION 2.01. Commencement of Participation. Each Eligible Employee
listed in Appendix A shall commence participation in this Plan as of February 1,
1999. Any Employee who hereafter becomes an Eligible Employee shall commence
participation in this Plan as of the date specified by the Board of Directors in
the resolution declaring such Employee to be eligible to participate in the
Plan.
ARTICLE III
DEFERRED COMPENSATION PLAN CONTRIBUTIONS FOR ELIGIBLE EMPLOYEES
SECTION 3.01. Deferral Contributions for Eligible Employees. Each
Participant who is an Eligible Employee may elect, on forms furnished by the
Company, to reduce his or her Compensation otherwise payable to said Participant
by the percentage(s) specified by the Participant in an appropriate election
form; provided, however, that a Participant may not defer more than twelve
percent (12%) of his or her Compensation. For an Eligible Employee who is a
participant in the Profit Sharing Plan, reductions in Compensation will not
begin until the amount of elective deferrals under the Profit Sharing Plan has
reached the maximum amount of elective deferrals permissible for such Eligible
Employee under the terms of said Profit Sharing Plan. The amounts of such
reductions in Compensation shall be credited to the Plan on behalf of such
Participant by the Company. Each such election shall be made prior to the period
of deferral specified in the election and shall be irrevocable as to such period
of deferral. A period of deferral shall commence on February 1 and shall not be
shorter than twelve months; provided, an Eligible Employee who becomes eligible
to participate in the Plan on February 1, 1999 as a result of the initial
adoption of this Plan may make an election pursuant to this paragraph within 45
days after February 1, 1999, but
8
such election shall apply only to Compensation earned subsequent to the
election. All amounts credited on behalf of a Participant under this paragraph
shall be called "Deferral Contributions," and shall be in addition to any
credits due pursuant to paragraph 3.02 hereof with respect to the same
Participant.
SECTION 3.02. Company Contributions for Participants. The Company
will credit an annual matching credit to the Plan for the Account of each
Participant for whom a Deferral Contribution is made and who is employed on the
last day of the Plan Year to which the Deferral Contribution relates. All
credits due under this Paragraph shall be "Company Contributions" and shall be
in an amount calculated as a percentage of the Deferral Contribution made on
behalf of a Participant. The percentage shall be as stated on Appendix A or as
set forth in a Board resolution hereafter adopted identifying an additional
Eligible Employee. However, the Company shall not make Company Contributions
with respect to a Participant's Deferral Contributions which exceed 6 percent of
the Participant's Compensation. For example, if a Participant's Deferral
Contributions total 8 percent of his or her Compensation and the Participant's
Company Contribution percentage on Appendix A is 50 percent, the maximum Company
Contribution will be 3 percent of the Participant's Compensation.
ARTICLE IV
GENERAL PROVISIONS REGARDING CONTRIBUTIONS
SECTION 4.01. Time of Payment of Company Contribution and Deferral
Contribution Amounts. Amounts equal to Company Contributions and Deferral
Contributions shall be paid to the Trustee as soon as administratively possible,
but in no case later than April 15 following the close of the Plan Year for
which they are made.
SECTION 4.02. Withholding Payroll Taxes. To the extent required by
the laws in effect at the time contributions are made, the Company shall reduce
such contributions made hereunder by the amount of any taxes required to be
withheld from the Participant's Compensation for federal, state or local
government purposes, and an amount equal to the reduction shall be withheld from
the Participant's Compensation otherwise paid.
9
ARTICLE V
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
SECTION 5.01. Accounts. The Administration Committee shall create
and maintain adequate records to disclose the interest in the Trust of each
Participant, Former Participant and Beneficiary. Such records shall be in the
form of individual Accounts, and credits and charges shall be made to such
Accounts in the manner herein described. The maintenance of individual Accounts
is only for accounting purposes, and a segregation of the assets of the Trust
Fund to each Account shall not be required.
SECTION 5.02. Allocations to Accounts. The Accounts of Participants,
Former Participants and Beneficiaries shall be adjusted in accordance with the
following:
(a) Income. All Income of the Trust Fund for each Quarter
attributable to the Deemed Investments made pursuant to
Article VI hereof shall be allocated to Accounts of
Participants in accordance with the Deemed Investments
made for such Participants' Accounts pursuant to Article
VI hereof and in proportion to their previous Account
balances.
(b) Company Contributions. As of the end of each Plan Year,
the Company Contribution for such Plan Year shall be
allocated to the Accounts of Participants. Such
allocations shall be in the amounts specified in Section
3.02.
(c) Deferral Contributions. As of the end of each Quarter,
the Deferral Contributions for such Quarter shall be
allocated to the Accounts of the Participants who have
elected to have Deferral Contributions made on their
behalf, in accordance with the amounts indicated by such
elections.
ARTICLE VI
DEEMED INVESTMENT OF CONTRIBUTIONS TO PLAN
SECTION 6.01. Allocation to Investment Funds. Any amounts credited
to a Participant's Account shall be deemed invested as the Participant directs
among various funds or other investment vehicles or options as the Employer or
Committee may allow in its sole discretion for such deemed investments.
SECTION 6.02. Changes in Investment Elections. The Employer or the
Committee will specify the manner and frequency in which a Participant may make
or change his or her deemed investment elections. Until such time as the
Employer or Committee shall direct further, Participants may change their deemed
investment
10
elections effective as soon as administratively possible following the
commencement of the Quarter following the Committee's receipt of the
Participant's changed investment election.
ARTICLE VII
VESTING
SECTION 7.01. Vesting Defined. The term "vested" or "vested
interest" shall mean a nonforfeitable, noncontingent right of the Participant or
his Beneficiaries to a present or future enjoyment of any allocation to the
Participant's Account, including subsequent Company Contributions and Deferral
Contributions and deemed investment Income allocated thereto.
SECTION 7.02. Deferral Contributions Account. A Participant shall be
100 percent vested in his or her Deferral Contributions Account at all times.
SECTION 7.03. Company Contributions Account. A Participant shall be
vested in the percentage of his or her Company Contributions Account as is equal
to the percentage that he or she is vested in his or her Employer Contribution
Account under the Profit Sharing Plan; provided however that a Participant shall
forfeit his or her entire Company Contributions Account balance upon the
occurrence of one of the following events:
(a) Participation in any fraud, commission of any felony or the
intentional destruction or misappropriation of property belonging to
the Company,
(b) The Participant makes any materially disparaging statements
concerning the Company following his or her termination of
employment with the Company,
(c) The Participant uses any of the Company's proprietary
information following termination of employment with the Company,
(d) Upon termination of employment, the Participant fails to
execute, deliver to the Company and perform in accordance with the
terms of, a confidentiality and nondisclosure agreement in form
satisfactory to the Company in which the Participant agrees to
maintain and keep all nonpublic information strictly confidential
and to not disclose the same in any form to any person, firm or
entity, or use the same for any purpose whatsoever except as such
disclosures may be required by any governmental agency or at any
time by law. Nonpublic information shall include, but not be limited
to, all trade secrets and other information pertaining to or in any
way connected with present or future products or services or any
component parts thereof; the Company's routines, standards, and
procedures, and all information undertaken or made in connection
therewith; all information relating to customer, personnel and/or
employee relations, marketing, business plans, business or marketing
research; all information relating to financial and/or other
business affairs; and all files, documents, contracts, materials,
listings, computer programs, printouts, source codes, drawings,
specifications, processes, applications, techniques, routines,
formulas and information of every
11
name, nature or description, whether or not the same is in machine
readable form or reduced to writing, which pertain thereto; or
(e) The Participant's failure to give not less than nine months'
advance written notice to the Company's Chairman of the Board of the
Participant's voluntary termination of employment with the Company,
unless such notice is waived in writing by said Chairman of the
Board.
Forfeitures of a Participant's Employer Contribution Account pursuant to this
section shall not inure to the benefit of the other Plan Participants. At the
direction of the Company, the Trustee will apply any Trust assets that were
allocated for record keeping purposes to a Participant's forfeited Employer
Contribution Account as an offset to contributions which the Company would
otherwise make to the Trust after the time the forfeiture occurs.
ARTICLE VIII
PAYMENT OF BENEFITS
SECTION 8.01. Time of Distribution. Distribution of a Participant's
Account balance shall be made or commence as soon as administratively practical
following (but in no case later than the 60th day following the close of a Plan
Year in which there occurs) the earliest of the following events:
(a) The later of the termination of employment of an
actively employed Participant or such Participant's
attainment of age 59 1/2.
(b) Disability of a Participant.
(c) Death of a Participant.
(d) Following a Change in Control and within 12 months
thereof, the Participant's termination of employment by
the Employer for any reason other than Good Cause or the
Participant's voluntary termination of employment with
the Company for Good Reason.
SECTION 8.02. Method of Payments. The Participant may elect in
accordance with Section 8.03 hereof to receive payment under either of the
following alternate methods:
(a) A single lump sum payment, or
(b) Periodic payments of substantially equal amounts for ten
years remaining from the benefit commencement date, in
which event the unpaid balance as of each Valuation Date
shall share in the allocation of Trust Fund Income in
accordance with the provisions of Section 5.02. Such
periodic payments shall be made not less frequently than
annually. If Participant's death occurs before all
periodic payments have been made, the remaining amounts
shall be paid to Participant's beneficiary in a lump sum
on the next installment payment date following
Participant's death, unless the Participant specifies in
his or her election form that the periodic payments
shall continue.
12
If the Participant fails to elect a method of payment, benefits shall be
paid in a single lump sum payment.
Notwithstanding the foregoing, the Committee may, in its sole
discretion and in accordance with uniform procedures as it may adopt, direct the
Trustee to distribute any Account balance in less frequent periodic payments
than those elected by the Participant or Beneficiary or in a single lump sum, so
as to avoid the payment of anything less than a nominal amount per period as
determined by the Committee.
SECTION 8.03. Participant Elections. Elections as to the time and
method of distribution in accordance with this Article may be made by a
Participant on a form prescribed by the Administration Committee. To be
effective, such election form must be filed by the Participant at least six
months prior to the date his or her benefit payments would become due under the
Plan. An election shall become irrevocable and unalterable no later than the
date benefits have become due and payable in accordance with Section 8.01.
ARTICLE IX
DESIGNATION OF BENEFICIARY
SECTION 9.01. Designation. Each Participant or Former Participant
from time to time may designate any person or persons (who may be designated
contingently or successively and who may be an entity other than a natural
person) as his or her Beneficiary or Beneficiaries to whom his or her Plan
benefits are paid if he or she dies before receipt of all such benefits. Each
Beneficiary designation shall be in the form prescribed by the Administration
Committee and will be effective only when filed with the Administration
Committee during the Participant's lifetime. Each Beneficiary designation filed
with the Administration Committee will cancel all Beneficiary designations
previously filed with the Administration Committee.
SECTION 9.02. Disposition of Death Benefits on Failure to Designate
Beneficiary. If any Participant or Former Participant fails to designate a
Beneficiary in the manner provided above, or if the Beneficiary designated by a
deceased Participant dies before the Participant or before complete distribution
of the Participant's benefits, benefits shall be paid to the Personal
Representative of the Participant's estate.
13
ARTICLE X
FUNDING
SECTION 10.01. Obligation of the Company. Benefits under this Plan
shall be payable out of the general assets of the Company. The obligation of the
Company to make benefit payments under this Plan constitutes merely the
unsecured, but legally enforceable, promise of the Company to make such
payments, and no Participant, Former Participant or Beneficiary shall have any
lien, prior claim, or other security interest in any property of the Company.
SECTION 10.02. Trust Fund. The Trust Fund shall for all purposes be
part of the general assets of the Company, and no person other than the Company
shall have any interest in the Trust Fund. To the extent that any person
acquires a right to receive payment from the Company under this Plan, such right
shall be no greater than the right of any unsecured general creditor of the
Company.
ARTICLE XI
ADMINISTRATION
SECTION 11.01. Administration Committee and Expenses. The Plan shall
be administered by an Administration Committee consisting of at least three
persons who shall be appointed by and serve at the pleasure of the Board of
Directors of the Company. All usual and reasonable expenses of the
Administration Committee may be paid in whole or in part by the Company. Any
members of the Administration Committee who are Employees shall not receive
compensation with respect to their services for the Administration Committee.
SECTION 11.02. Claims Procedure. The Administration Committee shall
make all determinations as to the right of any person to a benefit. Any denial
by the Administration Committee of the claim for benefits under the Plan by a
Participant or Beneficiary shall be stated in writing by the Administration
Committee and delivered or mailed to the Participant or Beneficiary, and such
notice shall set forth the specific reasons for the denial, written to the best
of the Administration Committee's ability in a manner that may be understood
without legal counsel. In addition, the Administration Committee shall afford a
reasonable opportunity to any Participant or Beneficiary whose claim for
benefits has been denied for a review of the decision denying the claim.
14
SECTION 11.03. Duties and Powers. The Administration Committee shall
have such duties and powers as it deems necessary for the administration of the
Plan including, but not by way of limitation, the following:
(a) to construe and interpret the Plan, decide all
questions of eligibility and determine the amount,
manner and time of payment of any benefits hereunder;
(b) to prescribe procedures to be followed by
Participants, Former Participants or Beneficiaries
filing applications for benefits;
(c) to prepare and distribute, in such manner as the
Administration Committee determines to be
appropriate, information explaining the Plan;
(d) to receive from the Company and from Participants,
Former Participants or Beneficiaries such information
as shall be necessary for the proper administration
of the Plan;
(e) to furnish the Company, upon request, such annual
reports with respect to the administration of the
Plan as are reasonable and appropriate;
(f) to receive, review and keep on file (as it deems
convenient and proper) reports of benefit payments by
the Trustee and reports of disbursements for expenses
directed by the Administration Committee;
(g) to appoint or employ individuals to assist in the
administration of the Plan and any other agents it
deems advisable, including legal counsel.
Except as otherwise expressly provided in this Plan, the
Administration Committee shall have no power to add to, subtract from or modify
any of the terms of the Plan, or to change or add to any benefits provided by
the Plan, or to waive or fail to apply any requirements or eligibility for a
benefit under the Plan.
SECTION 11.04. Rules. The Administration Committee may adopt such
rules as it deems necessary, desirable or appropriate. All rules and decisions
of the Administration Committee shall be uniformly and consistently applied to
all Participants, Former Participants or Beneficiaries in similar circumstances.
When making a determination or calculation, the Committee shall be entitled to
rely upon information furnished by a Participant, Former Participant or
Beneficiary, the Company, the legal counsel of the Company, or the Trustee.
SECTION 11.05. Action by Committee. The Administration Committee may
act at a meeting or in writing without a meeting. The Administration Committee
shall elect one of its members as chairman, appoint a secretary, who may or may
not be an Administration Committee member, and advise the Trustee of such
actions in writing. The secretary shall keep a record of all meetings and
forward all necessary communications to the Company or the Trustee. The
Administration Committee may adopt such bylaws and regulations as it deems
desirable for the
15
conduct of its affairs. All decisions of the Administration Committee shall be
made by the vote of the majority including actions in writing taken without a
meeting.
SECTION 11.06. Directions to Trustee. The Administration Committee
shall issue directions to the Trustee concerning all benefits which are to be
paid from the Trust Fund pursuant to the provisions of the Plan and warrants
that all such directions are in accordance with this Plan.
SECTION 11.07. Applications for Benefits. The Administration
Committee may require a Participant, Former Participant or Beneficiary to
complete and file with the Administration Committee an application for a benefit
and all other forms approved by the Administration Committee and to furnish all
pertinent information requested by the Administration Committee. The
Administration Committee may rely upon all such information so furnished it,
including the Participant's, Former Participant's or Beneficiary's current
mailing address.
SECTION 11.08. Benefits to Persons Under Legal Disability. Whenever,
in the Administration Committee's opinion, a person entitled to receive any
payment of a benefit or installment thereof hereunder is under a legal
disability or is incapacitated in any way so as to be unable to manage his or
her financial affairs, the Administration Committee may direct the Trustee to
make payments to such person or to his or her legal representative or to a
relative or friend of such person for his or her benefit, or the Administration
Committee may direct the Trustee to apply the payment for the benefit of such
person in such manner as the Administration Committee considers advisable. Any
payment of a benefit or installment thereof in accordance with the provisions of
this Article shall be a complete discharge of any liability for the making of
such payment under the provisions of the Plan.
SECTION 11.09. Indemnification. The Administration Committee and the
individual members thereof shall be indemnified by the Company and not from the
Trust Fund against any and all liabilities arising by reason of any act or
failure to act made in good faith pursuant to the provisions of the Plan,
including expenses reasonably incurred in the defense of any claim relating
thereto.
16
ARTICLE XII
AMENDMENTS, ACTION BY COMPANY, AND TERMINATION
SECTION 12.01. Amendments. The Company reserves the right to make
from time to time any amendment or amendments to this Plan and, subject to the
provisions of Section 12.05 hereof, to terminate the Plan.
SECTION 12.02. Action by Company. Any action by the Company under
this Plan may be by resolution of its Board of Directors or by any person or
persons duly authorized by resolution of said Board to take such action.
SECTION 12.03. Successor Company. In the event of the dissolution,
merger, consolidation or reorganization of the Company, provision may be made by
which the Plan and Trust will be continued by the successor; and, in that event,
the successor shall be substituted for the Company under the Plan. The
substitution of the successor shall constitute an assumption of Plan liabilities
by the successor, and the successor shall have all of the powers, duties and
responsibilities of the Company under the Plan.
SECTION 12.04. Termination of Plan. The Company may terminate its
participation in the Plan at any time. In the event of the dissolution, merger,
consolidation or reorganization of the Company, the Plan shall terminate unless
the Plan is continued by a successor to the Company in accordance with Section
12.03.
SECTION 12.05. Distribution of Trust Fund. Upon termination or
partial termination of the Plan, the Committee may direct the Trustee: (a) to
continue to administer the Trust Fund and pay account balances in accordance
with Article VIII to Participants affected by the termination upon their
termination of employment, or to their Beneficiaries upon such Participant's
death, until the Trust Fund has been liquidated and (b) to distribute the assets
remaining in the Trust Fund, after payment of any expenses properly chargeable
thereto and all benefits provided by the Plan, to the Company.
17
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. No Employment Contract. Nothing contained in the Plan
shall be construed as a contract of employment between the Company and any
Employee, or as a right of any Employee to be continued in the employment of the
Company, or as a limitation of the right of the Company to discharge any of its
Employees, with or without cause.
SECTION 13.02. Rights of Participants and Beneficiaries. No
Participant, Former Participant or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund at any time, except as provided from
time to time under this Plan, and then only to the extent of the benefits
payable under the Plan to such Participant, Former Participant or Beneficiary
out of the assets of the Trust Fund.
SECTION 13.03. Benefits Not Assignable. Benefits payable under this
Plan shall not be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, charge, garnishment, execution or
levy of any kind, either voluntary or involuntary, including any such liability
which is for alimony or other payments for the support of a spouse or former
spouse or for any other relative of the Participant, Former Participant or
Beneficiary, prior to actually being received by the person entitled to the
benefit under the terms of the Plan; and any attempt to otherwise dispose of any
right to benefits payable hereunder shall be void.
The Trust Fund shall not in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements or torts of any person entitled
to benefits hereunder.
SECTION 13.04. Suspension of Benefits Upon Re-employment. If a
Former Participant who is in receipt of periodic payments hereunder in
accordance with Section 8.02 is re-employed by a Company, such payments shall be
suspended during the period of such re-employment, and the Participant may make
a new election in accordance with Section 8.02 with respect to the distribution
of his or her Account balance to be made at the time of his or her subsequent
Retirement, death or Disability.
18
SECTION 13.05. Gender and Number. The masculine pronoun whenever
used herein will include the feminine gender, and the singular number as used
herein will include the plural and the plural the singular unless the context
clearly indicates a different meaning.
SECTION 13.06. Construction. The provisions of this Plan shall be
construed according to the federal laws governing employee benefit plans of this
type, and to the extent applicable, according to the laws of the State of
Nebraska.
IN WITNESS WHEREOF, The Buckle, Inc. Deferred Compensation Plan is
hereby adopted by the Company effective as of February 1, 1999.
THE BUCKLE, INC. (the "Company")
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Title: CHAIRMAN OF BOARD
-------------------------------
19
APPENDIX A
THE BUCKLE, INC. DEFERRED COMPENSATION PLAN
SCHEDULE OF EMPLOYEES ELIGIBLE TO PARTICIPATE
IN DEFERRED COMPENSATION PLAN
STATED PERCENTAGE
OF EMPLOYER
NAME CONTRIBUTIONS
---- -------------
Xxxxxx Xxxxxx 65%
Xxxxx Xxxxxx 50%
Xxx Xxxxx 50%
Xxxx Xxxxxx 50%
Xxxxx Xxxxxx 50%
Xxxxx Xxxxxx 50%
