As
filed with the Securities and Exchange Commission on April 2, 2009
Registration
No. 333-________
UNITED
STATES
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
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47-0366193
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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2407
West 24th Street
Kearney,
Nebraska 68845
(Address
of Principal Executive
Offices) (Zip Code)
THE
BUCKLE, INC. 2008 DIRECTOR RESTRICTED STOCK PLAN
(Full
title of the plan)
Karen
B. Rhoads
The
Buckle, Inc.
2407
West 24th
Street
Kearney,
Nebraska 68845
(Name and
address of agent for service)
(308)
236-8491
(Telephone
number, including area code, of agent for service)
With a
copy to:
Robert
J. Routh, Esq.
Cline,
Williams, Wright, Johnson & Oldfather, L.L.P.
1900
U.S. Bank Building
233
South 13th Street
Lincoln,
Nebraska 68508
(402)
474-6900
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company in Rule 12b-2 of the Exchange
Act.
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Accelerated filer ¨
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Non-accelerated filer ¨ (Do not check if a smaller reporting company)
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Smaller reporting company ¨
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CALCULATION
OF REGISTRATION FEE
Title of
securities
to be registered
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Amount to be
registered(1)(2)
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Proposed maximum
offering price
per share(3)
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Proposed
maximum
aggregate
offering price(3)
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Amount of
registration
fee
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Common
Stock
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90,000 |
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$ |
31.64 |
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$ |
2,847,600 |
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$ |
158.90 |
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(1)
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The
Buckle, Inc. 2008 Director Restricted Stock Plan (the “Plan”) originally
provided for the issuance of up to 60,000 shares of Common
Stock. On September 15, 2008, the Company’s Board of Directors
approved a three-for-two stock split of the Common Stock, in the form of a
stock dividend to shareholders of record at the close of business on
October 15, 2008 (the “2008 Stock Split”). The Plan provides
for an increase in the number of shares of Common Stock that may be issued
under the Plan in the event of a stock split, stock dividend or similar
transaction. As a result of the 2008 Stock Split, the number of
shares of Common Stock issuable under the plan was increased to
90,000.
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(2)
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In
addition, pursuant to Rule 416(a) of the Securities Act of 1933, as
amended (the “Securities Act”), this registration statement also covers
any additional shares of Common Stock that become issuable pursuant to the
anti-dilution provisions of the Plan by reason of any future stock splits,
stock dividends or similar
transactions.
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(3)
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The
proposed maximum offering price was determined in accordance with Rule
457(c) and Rule 457(h) under the Securities Act, based on the average of
the high and low prices reported by the New York Stock Exchange on
March 26, 2009.
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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 the directors in accordance with Form S-8 and Rule 428(b)(1) under
the Securities Act of 1933, as amended (the “Securities Act”).
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Buckle, Inc. (the “Company”) hereby incorporates by reference in this
registration statement the following documents previously filed with the
Securities and Exchange Commission (the “Commission”):
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(1)
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The
Company’s latest Annual Report on Form 10-K for the fiscal year ended
January 31, 2009, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”),
containing audited financial statements for the Company’s latest fiscal
year;
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(2)
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All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the document referred to in
(1) above; and
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(3)
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The
description of the Company’s Common Stock contained in the Company’s
Registration Statement on Form 8-A filed with the Commission pursuant to
Section 12 of the Exchange Act on April 28, 1992 and declared effective by
the Commission on May 6, 1992 as such description was amended by the
Company’s 1998 Proxy Statement on Schedule 14A, specifically Proposal No.
3 therein, filed with the Commission on May 1,
1998.
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All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, 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 the 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 Company 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 Company, or is or was serving
at the request of the Company. The Nebraska Business Corporation Act also
provides that the Company may purchase insurance on behalf of any such director,
officer, employee or agent. On September 3, 1991, the Company adopted a
resolution providing for the indemnification by the Company of each director,
officer, employee or agent of the Company to the full extent permitted by the
Nebraska Business Corporation Act. The Company 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.
Exhibit
Number
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Description
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4.1
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The
Company’s Articles of Incorporation, as amended (incorporated by reference
to Exhibit 3.1 to the Company’s Registration Statement on Form S-1,
Registration No. 33-46294 (the “Form S-1”)).
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4.2
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Amendment
to the Company’s Articles of Incorporation (incorporated by reference to
Exhibit 3.1 to the Form S-1).
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4.3
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The
Company’s By-laws, as amended (incorporated by reference to Exhibit 3.2 to
the Form S-1).
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4.4
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The
Buckle, Inc. 2008 Director Restricted Stock Plan (incorporated by
reference to Exhibit B to the Company’s Definitive Proxy Statement on
Schedule 14A, filed on April 28, 2008).
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5.1
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Opinion
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P. (filed
herewith).
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23.1
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Consent
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P. (included in
Exhibit 5.1).
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23.2
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Consent
of Deloitte & Touche LLP (filed herewith).
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24.1
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Power
of Attorney (included on signature page of this registration
statement).
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Item
9. Undertakings.
(a)
The undersigned Company 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;
(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, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(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 in the registration statement;
provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) 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 may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company has been advised that in
the opinion of the 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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, the Company will, unless in the
opinion of its counsel the matter 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.
SIGNATURES
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 March 31, 2009.
THE
BUCKLE, INC.
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By:
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/s/ KAREN B. RHOADS
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Name:
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Karen
B. Rhoads
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Title:
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Director,
Vice President of Finance, Treasurer and Principal Accounting
Officer
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POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Dennis H. Nelson and Karen B. Rhoads, or either of
them, as such person’s true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person’s
name, place and stead, in any and all capacities, to sign any amendments to this
Registration Statement, including post-effective amendments, and registration
statements filed pursuant to Rule 462 under the Securities Act, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, and does hereby grant unto each said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that each of said attorney-in-fact and agent, or
his substitute therefor, may lawfully do or cause to be done by virtue
hereof.
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
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Title
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Date
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/s/ DANIEL J. HIRSCHFELD
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Daniel
J. Hirschfeld
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Director
and
Chairman
of the Board
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March
31, 2009
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/s/ DENNIS H. NELSON
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Dennis
H. Nelson
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Director,
President and Chief Executive Officer
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March
31, 2009
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/s/ KAREN B. RHOADS
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Karen
B. Rhoads
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Director,
Vice President of Finance, Treasurer and Principal Accounting
Officer
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March
31, 2009
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/s/ JAMES E. SHADA
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James
E. Shada
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Director
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March
31, 2009
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/s/ ROBERT E. CAMPBELL
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Robert
E. Campbell
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Director
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March
31,
2009
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Signature
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Title
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Date
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/s/ BILL L. FAIRFIELD
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Bill
L. Fairfield
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Director
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March
31, 2009
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/s/ RALPH M. TYSDAL
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Ralph
M. Tysdal
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Director
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March
31, 2009
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/s/ BRUCE L. HOBERMAN
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Bruce
L. Hoberman
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Director
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March
31, 2009
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/s/ DAVID A. ROEHR
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David
A. Roehr
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Director
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March
31, 2009
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/s/ JOHN P. PEETZ, III
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John
P. Peetz, III
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Director
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March
31,
2009
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EXHIBIT
INDEX
Exhibit
Number
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Description
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4.1
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The
Company’s Articles of Incorporation, as amended (incorporated by reference
to Exhibit 3.1 to the Company’s Registration Statement on Form S-1,
Registration No. 33-46294 (the “Form S-1”)).
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4.2
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Amendment
to the Company’s Articles of Incorporation (incorporated by reference to
Exhibit 3.1 to the Form S-1).
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4.3
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The
Company’s By-laws, as amended (incorporated by reference to Exhibit 3.2 to
the Form S-1).
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4.4
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The
Buckle, Inc. 2008 Director Restricted Stock Plan (incorporated by
reference to Exhibit B to the Company’s Definitive Proxy Statement on
Schedule 14A, filed on April 28, 2008).
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5.1
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Opinion
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P. (filed
herewith).
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23.1
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Consent
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P. (included in
Exhibit 5.1).
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23.2
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Consent
of Deloitte & Touche LLP (filed herewith).
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24.1
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Power
of Attorney (included on signature page of this registration
statement).
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