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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) Xxx Xxxxxxxxxx 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 Xxx Xxxxxxxxxx, 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
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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.
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(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
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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.
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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
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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.
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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.
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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;
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(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.
