DILLARD’S,
INC.
STOCK
PURCHASE PLAN
THIS
STOCK PURCHASE PLAN, adopted and effective the 20th day of December, 2004, by
DILLARD’S, INC. (hereinafter called "Company").
WITNESSETH:
WHEREAS,
the Dillard’s, Inc. Investment & Employee Stock Ownership Plan for Full Time
Employees ("ESOP") permits eligible employees of the Company and its wholly
owned subsidiaries to have contributed up to twenty percent (20%) of their
compensation ("Salary Deferral Contribution") to the ESOP and the Company makes
a matching contribution of One Hundred Percent (100%) of the Salary Deferral
Contribution up to five percent (5%) of the employee's compensation ("Matching
Contribution");
WHEREAS,
as a result of the non-discrimination tests under Sections 401(k) and 401(m) of
the Internal Revenue Code of 1986 ("Code"), the limitation on Salary Deferral
Contributions under Section 402(g) of the Code, the limitation on compensation
which can be taken into account under Section 401(a)(17) of the Code and the
maximum limitation on contributions under Section 415 of the Code, "Highly
Compensated Employees," as defined in Section 414(q) of the Code, may be limited
under the ESOP to a Salary Deferral Contribution of less than twenty percent
(20%) of their compensation and a Matching Contribution of less than five
percent (5%) of their compensation; and
WHEREAS,
the Company desires to provide a plan to which shall be contributed the excess
portions of a Highly Compensated Employee's Salary Deferral Contribution and
Matching Contribution which are not permitted to be allocated under the ESOP
solely as a result of the limitations in the Code;
WHEREAS,
this Plan is intended to be an “excess benefit plan” as defined in Rule
16b-3(b)(2) to Section 16 of the Securities Exchange Act of 1934, which is an
employee benefit plan that is operated in conjunction with a qualified plan (as
defined in the rule), and provides only the benefits or contributions that would
be provided under the qualified plan but for any benefit or contribution
limitations set forth in the Code;
WHEREAS,
the Company desires to adopt this Plan upon the following terms and
conditions:
As used
herein, the following definitions shall apply:
| a. |
"Board"
shall mean the Board of Directors of Dillard’s,
Inc. |
| b. |
"Broker"
shall mean and refer to the brokerage or other company which will receive
contributions from the Company, receive Common Stock as contributions or
purchase Common Stock with cash contributions and maintain an account for
each Employee participating in the Plan. |
| c. |
"Code"
shall mean the Internal Revenue Code of 1986, as
amended. |
| d. |
"Committee"
shall mean the Stock Option and Executive Compensation Committee of the
Board or any successor thereto or such other Committee designated by the
Board. |
| e. |
"Common
Stock" shall mean the Common Stock, Class A, no par value, of the Company
which is issued and outstanding, treasury stock or authorized but
unissued. |
| f. |
"Company"
shall mean Dillard’s, Inc. and any wholly owned subsidiary
thereof. |
| g. |
"Compensation"
shall mean the compensation amount which is reportable as the “Wages, Tips
and other Compensation’ box on the Employee’s Form W-2 for the Plan Year.
Notwithstanding the foregoing sentence however, Compensation shall exclude
any amount not paid as cash compensation during the Plan Year and any
compensation received as an employee of an Employer prior to the Company
acquiring a controlling ownership interest in the
Employer. |
| h. |
"Effective
Date" shall mean December 20, 2004. |
| i. |
"Eligible
Employee" shall mean an Employee who is eligible to participate for the
applicable Plan Year pursuant to the requirements of Paragraph
2. |
| j. |
"Employee"
shall mean any person actively employed on a full-time basis by the
Company. |
| k. |
"Employer"
shall mean the Company. |
| l. |
"ESOP"
shall mean the Dillard’s, Inc. Investment & Employee Stock Ownership
Plan for Full Time Employees. |
| m. |
"Highly
Compensated Employee" shall mean any Employee who is a Highly Compensated
Employee as defined in Section 414(q) of the
Code. |
| n. |
"Matching
Contribution" shall mean an Employee's total Company contribution under
the ESOP and this Plan which are made by the Company as a matching
contribution. |
| o. |
"Plan"
shall mean the Dillard’s, Inc. Stock Purchase
Plan. |
| p. |
"Plan
Year" shall mean the calendar year. |
| q. |
"Salary
Deferral Contribution" shall mean an Employee's payroll deduction amount
which is allocated as a contribution to the ESOP pursuant to the
requirements of Section 401(k) of the Code. |
| r. |
"Share
or Shares" shall mean a single share or shares of Common Stock. The
aggregate number of Shares which may be allocated under this Plan shall
not exceed 1,000,000 Shares, or the equivalent number thereto in the event
of a change in the number of the issued shares after the Effective
Date. |
| s. |
"Stock
Purchase Employee Contribution" shall mean an Employee's payroll deduction
amount which is allocated as an after-tax contribution to this
Plan. |
| t. |
"'34
Act" shall mean the Securities Exchange Act of 1934.
|
2. Eligible
Employees.
a. The
Employees eligible to participate in the Plan for a Plan Year shall be those
Employees who are eligible participants in the ESOP during such Plan Year and
are Highly Compensated Employees during such Plan Year.
b. Notwithstanding
the foregoing Subparagraph a., an Employee who is participating in a plan
providing deferred or incentive compensation or benefits which the Committee, in
its discretion, determines to be a substitute for this Plan shall be ineligible
to participate in this Plan.
3. Determination
of Excess Amount.
a. At
the Beginning and During each Plan Year. Each
Eligible Employee shall elect prior to the beginning of each Plan Year and for
as many times as permitted pursuant to the ESOP to have a certain whole number
percentage of his Compensation he would otherwise receive directly during the
Plan Year to be applied as a contribution to the ESOP and this Plan. The
Committee shall determine the amount of
each
Eligible Employee's estimated Salary Deferral Contribution which will be
deducted from each payroll and allocated to the ESOP, which will not exceed the
lesser of the amount permitted under Section 402(g) of the Code for the Plan
Year or the amount permitted to be contributed by the Administrative Committee
of the ESOP for Highly Compensated Employees for the Plan Year. The portion of
the Eligible Employee's election in excess of the amount allocated to the Salary
Deferral Contribution to the ESOP shall be deducted from each payroll and
contributed as a Stock Purchase Employee Contribution. The Company shall also
contribute at the end of each week during the Plan Year as a Matching
Contribution to this Plan an amount equal to One Hundred Percent (100%) of the
Stock Purchase Employee Contribution made for such week, but in no event shall
the Employee's Matching Contribution for the Plan Year (i.e., the total of both
the matching contribution under the ESOP and this Plan) exceed Five Percent (5
%) of the Employee’s Compensation for the Plan Year.
b. At
the End of each Plan Year. Prior
to or soon after the end of each Plan Year of the ESOP, the Company shall
determine the actual amount of each Highly Compensated Employee's Salary
Deferral Contribution and Matching Contribution to the ESOP which may be
retained in the ESOP pursuant the limitations imposed under the
non-discrimination tests under Section 401(k) and 401(m) of the Code. The amount
of the Salary Deferral Contribution, Matching Contribution and income earned
thereon, as computed under the rules and regulations interpreting Sections
401(k) and 401(m) of the Code, which cannot be retained in the ESOP or must be
forfeited under the terms of the ESOP, shall be contributed to this Plan as a
Stock Purchase Employee Contribution and Matching Contribution.
4. Application
of Subscription Proceeds.
a. The
Company will remit the accumulated payroll deductions and Matching Contributions
allocable to this Plan pursuant to Paragraph 3(a) on a weekly basis to the
Broker in the form of cash, Shares of an equivalent value or both.
b. The
Company will remit the excess Salary Deduction Contributions, Matching
Contributions and income thereon allocable to the Stock Purchase Plan pursuant
to Paragraph 3(b) to the Broker in the form of cash, Shares of an equivalent
value or both as soon as reasonably possible after the withdrawal from the
ESOP.
5. Shares
Allocated to Plan.
If the
Broker receives cash contributions, the Broker will purchase Common Stock over a
period of several days for as many Shares as the funds will allow and the
Employee's cost per Share will be the average of the overall cost. The number of
shares purchased will depend upon the market price of the Common Stock at the
time such purchases are made. A separate account for each participating Employee
shall be credited with the number of Shares, including fractional Shares, to
which such Employee shall be entitled on the basis of his proportion, including
the Company's contribution hereunder,
of the
aggregate funds and Shares delivered to Broker. No actual stock certificate for
the Shares each Employee owns shall be issued, unless requested. However, each
quarter the Employee shall receive a statement from the Broker showing the
number of Shares (fractional or otherwise), received, purchased or sold, the
price, and the total number of Shares in the Employee's account as of that date.
Any dividends received on the Common Stock held in an Employee's account shall
be automatically reinvested, unless otherwise designated by the Employee. There
shall be no holding period for the Shares acquired pursuant to this Plan, and an
Employee may take delivery of the Shares or direct that the Broker sell Shares
and distribute the proceeds thereof, at any time.
6. Discontinuance
of Eligibility.
a. An
Employee shall be no longer eligible to participate in the Plan and no further
Stock Purchase Employee Contributions shall be deducted immediately upon the
occurrence of any of the following:
(1) The
termination for any reason from the active employment of the Employee from the
Employer, except a Stock Purchase Employee Contribution shall be deducted from
the Employee's final payroll for active employment.
(2) Death of
the Employee, except a Stock Purchase Employee Contribution shall be deducted
from the Employee's final payroll for active employment.
(3) The
filing with or levying upon the Company or the Employer of any judgment,
attachment, garnishment, or other court order affecting either the Employee's
earnings or his or her account under this Plan.
(4) The
Employee commits an act which, in the opinion of the Committee, constitutes
fraud, deceit, embezzlement or the commission of any criminal act.
(5) The
Employee shall enter into a business or employment which the Committee
determines to be (i) detrimentally competitive with the business of the Company,
or (ii) substantially injurious to the Company's financial
interest.
7. Expenses.
The
Company will pay the Broker for commissions, if any, on purchases made for the
Employee's account as a result of the Company's and the Employee's
contributions. The Company will also pay the Broker for any fees charged by the
Broker for administration of the Plan. Broker's commissions and other charges in
connection with sales, dividend reinvestments, or in connection with purchases
not made by the Employee's payroll deduction and the Company contribution will
be payable by the Employee who orders the transactions for his or her
account.
8. Authority
of Committee.
a. The Plan
shall be administered by the Committee. A majority vote of the Committee at
which a quorum is present, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts of the
Committee for the purposes of the Plan.
b. The
Committee shall have plenary authority in its discretion, but subject to the
express provisions of the Plan, to determine the terms of all contributions and
transactions under the Plan, including, without limitation, the amounts of all
contributions to be made under the Plan; the participants to whom and the time
or times at which contributions shall be made; to interpret the Plan; and to
make all other determinations deemed advisable for the administration of the
Plan. All determinations of the Committee shall be made by not less than a
majority of its members. The Committee may designate Employees of Dillard’s to
assist the Committee in the administration of the Plan and may grant authority
to such persons to execute agreements or other documents or to take other
actions on behalf of the Committee.
c. The
Committee may make such rules and regulations and establish such procedures as
it deems appropriate for the administration of the Plan.
d. In the
event of a disagreement as to the interpretation of the Plan or any amendment
hereto or any rule, regulation or procedure thereunder or as to any right or
obligation arising from or related to the Plan, the decision of the Committee
shall be final and binding. No member of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
benefit granted under it.
9. Plan
Amendment.
The Board
may amend any or all provisions of this Plan at any time by written instrument
identified as an amendment of the Plan effective as of a specified date. The
Committee may amend the Plan as deemed appropriate to facilitate effective and
efficient administration of the Plan, provided that no amendment adopted by the
Committee shall become effective which has the effect of materially increasing
Company contributions or which creates a significant risk of liability for the
Company.
10. Plan
Termination.
The
Company expects to continue the Plan indefinitely. However, the Company shall
have the right at any time to terminate the Plan in whole or in part by
suspending or discontinuing contributions hereunder, or to terminate the
Plan.
11. Plan
Not a Contract of Employment.
The
adoption and maintenance of the Plan shall not be deemed to constitute or modify
a contract between any Employer and any Employee or to be a consideration or
inducement for or condition of the performance of service by any person. Nothing
herein
contained
shall be deemed to give to any Employee the right to continue in any service of
any Employer or to interfere with any right of any Employer to discharge any
Employee at any time, nor to give any Employer the right to require an Employee
to remain in its service or to interfere with the Employee's right to terminate
his service at any time.
12. Taxation.
The
Employee's and the Company's contribution to the Plan are taxable to the
Employee, as compensation received, in the tax year in which the payroll
deduction occurs for Employee contributions and in the tax year of the
contribution for Company contributions, and shall be reported as wages on the
Employee's W-2 statement.
13. Other
Benefit Plans.
Nothing
contained herein shall in any way limit an Employee's right to participate in or
benefit from any current or deferred compensation plan for which he is currently
eligible by reason of his employment.
14. Alienation
of Benefits.
None of
the payments provided for by this Plan shall be subject to seizure for payment
of any debts or judgments against the Employee; nor shall the Employee have any
right to transfer, modify, anticipate or encumber any rights or benefits
hereunder.
15. Minors,
Incompetents or Lost Persons.
In the
event a payment is to be made to the account of a minor or a person declared to
be incompetent, then the Committee may in its discretion make such payment to
the legal guardian or, if none, to a parent of a minor with whom the minor
maintains his residence. Such a payment to the legal guardian or parent of a
minor shall fully discharge the Company and Committee from further liability or
account thereof. In the event a benefit is payable under this Plan to a person
who cannot be located, the Committee may declare that such payment is
forfeited.
16. Headings
and Captions.
Subject
headings and captions are included for convenience purposes only and shall not
affect the interpretation of the Plan.
17. Gender
and Pronouns.
Throughout
this Plan, the masculine shall include the feminine and neuter and the singular
shall include the plural and vice versa as the context requires.
18. Severability.
If any
portion of this Plan is held invalid, illegal or unenforceable, such
determination shall not impair the enforceability of the remaining terms and
provisions herein.
19. Governing
Law.
This Plan
shall be governed by the laws of the State of Arkansas. Notwithstanding anything
in this Plan to the contrary, it is the intention of Company that this Plan
constitute a "Bonus Program" within the meaning of ERISA Regulation Section
2510.3-2(c) and therefore is exempt from the requirements of the Employee
Retirement Income Security Act of 1974, as amended, and the Committee and the
Board are expressly authorized to make any amendment necessary to comply with
this intent.
THIS PLAN
IS HEREBY ADOPTED AND EXECUTED as of the date first above written.
DILLARD’S,
INC.
By:/s/
James I. Freeman
James I.
Freeman,
Senior
Vice President and
Chief
Financial Officer
ATTEST:
/s/
Phillip R. Watts
Phillip
R. Watts