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EXHIBIT 10.11
KIRKLAND'S, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The Kirkland's, Inc. Employee Stock Purchase Plan (the "Plan")
is intended to encourage and facilitate the purchase of Shares of the Common
Stock of Kirkland's, Inc. (the "Company"), by employees of the Company and any
Participating Companies, thereby providing employees with a personal stake in
the Company and a long range inducement to remain in the employ of the Company
and Participating Companies. It is the intention of the Company that the Plan
qualify as an "employee stock purchase plan" within the meaning of Section 423
of the Code.
2. DEFINITIONS.
(a) "Account" means a bookkeeping account established by the Committee
on behalf of a Participant to hold Payroll Deductions.
(b) "Approved Leave of Absence" means a leave of absence that has been
approved by the applicable Participating Company in such a manner as the Board
may determine from time to time.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Committee appointed pursuant to section 14 of
the Plan.
(f) "Company" means Kirkland's, Inc.
(g) "Compensation" means an Employee's total cash compensation payable
for services rendered to a Participating Company during a calendar month.
(h) "Election Form" means the form acceptable to the Committee which an
Employee shall use to make an election to purchase Shares through Payroll
Deductions pursuant to the Plan.
(i) "Eligible Employee" means an Employee who meets the requirements
for eligibility under section 3 of the Plan.
(j) "Employee" means a person who is an employee of a Participating
Company.
(k) "Five Percent Owner" means an Employee who, with respect to a
Participating Company, is described in section 423(b) of the Code.
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(l) "Offering" means an offering of Shares to Eligible Employees
pursuant to the Plan.
(m) "Offering Commencement Date" means the first day of each January,
April, July and October, beginning on or after adoption of the Plan by the
Board, until the Plan Termination Date, provided that the first Offering
Commencement Date shall be July 1, 1998, or such later date as may be determined
by the Committee.
(n) "Offering Period" means the period extending from an Offering
Commencement Date through the following Offering Termination Date.
(o) "Offering Termination Date" means the last day of each three-month
period following an Offering Commencement Date.
(p) "Option Price" means 85 percent of the average of the high and low
sales prices per Share on the principal exchange on which the Shares are listed
or, if not so listed, on the Nasdaq National Market, on the Offering Termination
Date, or if such date is not a trading day, then on the next trading day
thereafter.
(q) "Participant" means an Employee who meets the requirements for
eligibility under section 3 of the Plan and who has timely delivered an Election
Form to the Committee.
(r) "Participating Company" means, the Company and subsidiaries of the
Company, within the meaning of section 424(f) of the Code, if any, that are
approved by the Board from time to time and whose employees are designated as
Employees by the Board.
(s) "Payroll Deductions" means amounts withheld from a Participant's
Compensation pursuant to the Plan, as described in section 5 of the Plan.
(t) "Plan" means Kirkland's, Inc. Employee Stock Purchase Plan, as set
forth in this document, and as may be amended from time to time.
(u) "Plan Termination Date" means the earlier of:
(1) The Offering Termination Date for the Offering in which
the maximum number of Shares specified in section 5 of the Plan have been issued
pursuant to the Plan; or
(2) The date as of which the Board chooses to terminate the
Plan as provided in section 15 of the Plan.
(v) "Shares" means shares of Common Stock of the Company, no par value.
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(w) "Successor-in-Interest" means the Participant's executor or
administrator, or such other person or entity to whom the Participant's rights
under the Plan shall have passed by will or the laws of descent and
distribution.
(x) "Termination Form" means the form acceptable to the Committee which
an Employee shall use to withdraw from an Offering pursuant to section 8 of the
Plan.
3. ELIGIBILITY AND PARTICIPATION.
(a) Initial Eligibility. Except as provided in section 3(b) of the
Plan, each Employee shall be eligible to participate in the Plan.
(b) Ineligibility. An Employee shall not be eligible to participate in
the Plan if such Employee:
(1) is a Five Percent Owner;
(2) has not been employed by a Participating Company for a
period of at least twelve (12) consecutive months;
(3) does not customarily perform work for a Participating
Company more than 20 hours per week; or
(4) is restricted from participating under section 3(d) of the
Plan.
(c) Leave of Absence. For purposes of participation in the Plan, an
Employee on an Approved Leave of Absence shall be deemed to be an Employee for
the first 90 days of such Approved Leave of Absence and such Employee's
employment shall be deemed to have terminated for purposes of participation
under the Plan at the close of business on the 90th day of such Approved Leave
of Absence unless such Employee shall have returned to regular non-temporary
employment before the close of business on such 90th day. Termination by the
Participating Company of an Employee's Approved Leave of Absence, other than
termination or return to non-temporary employment, shall terminate an Employee's
employment for all purposes of the Plan and shall terminate such Employee's
participation in the Plan and the right to exercise any option. An Approved
Leave of Absence shall be considered active employment for purposes of sections
3(b)(2) and 3(b)(3) of the Plan.
(d) Restrictions on Participation. Notwithstanding any provisions of
the Plan to the contrary, no Employee shall be granted an option to participate
in the Plan if:
(1) Immediately after the grant, such Employee would be a Five
Percent Owner; or
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(2) Such option would permit such Employee's rights to
purchase stock under all employee stock purchase plans of the Participating
Companies which meet the requirements of section 423(b) of the Code to accrue at
a rate which exceeds $25,000 in fair market value (as determined pursuant to
section 423(b)(8) of the Code) for each calendar year in which such option is
outstanding.
(e) Commencement of Participation. An Employee who meets the
eligibility requirements of sections 3(a) and 3(b) of the Plan and whose
participation is not restricted under section 3(d) of the Plan shall become a
Participant by completing an Election Form and filing it with the Committee on
or before the 15th day of the month immediately preceding the Offering
Commencement Date for the first Offering to which such Election Form applies.
Payroll Deductions for a Participant shall commence on the applicable Offering
Commencement Date when his or her authorization for Payroll Deductions becomes
effective, and shall end on the Plan Termination Date, unless sooner terminated
by the Participant pursuant to section 8 of the Plan.
4. SHARES PER OFFERING.
The Plan shall be implemented by a series of Offerings that shall
terminate on the Plan Termination Date. Offerings shall be made with respect to
Compensation payable for each calendar month of the Company's fiscal year for
the period commencing with the first day of the initial Offering Commencement
Date and ending with the Plan Termination Date. Shares available for any
Offering shall be the difference between the maximum number of Shares that may
be issued under the Plan, as determined pursuant to section 10(a) of the Plan,
for all of the Offerings, less the actual number of Shares purchased by
Participants pursuant to prior Offerings. If the total number of Shares for
which options are exercised on any Offering Termination Date exceeds the maximum
number of Shares available, the Committee shall make a pro rata allocation of
Shares available for delivery and distribution in as nearly a uniform manner as
practicable, and as it shall determine to be fair and equitable, and the
unapplied Account balances shall be returned to Participants as soon as
practicable following the Offering Termination Date.
5. PAYROLL DEDUCTIONS.
(a) Amount of Payroll Deductions. Each Participant's Election Form
shall specify the amount of Payroll Deductions to be made from his or her
Compensation on each regular payday during the time that he or she participates
in the Plan; provided, however, that the Committee may from time to time
establish rules or limitations applicable to the amount of Payroll Deductions
that may be made from each Participant's Compensation; and provided further that
any rules or limitations established by the Committee under this Section 5 shall
be consistent with section 423(b)(5) of the Code.
(b) Participants' Accounts. All Payroll Deductions with respect to a
Participant pursuant to section 5(a) of the Plan shall be credited to the
Participant's Account under the Plan.
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(c) Changes in Payroll Deductions. A Participant may discontinue his
participation in the Plan as provided in section 8(a) of the Plan, but no other
change can be made during an Offering, including, but not limited to, changes in
the amount of Payroll Deductions for such Offering. A Participant may change the
amount of Payroll Deductions for subsequent Offerings by giving written notice
of such change to the Committee on or before the 15th day of the month
immediately preceding the Offering Commencement Date for the Offering for which
such change is effective.
(d) Leave of Absence. A Participant who goes on an Approved Leave of
Absence before the Offering Termination Date after having filed an Election Form
with respect to such Offering may:
(1) Withdraw the balance credited to his or her Account
pursuant to section 8(b) of the Plan;
(2) Discontinue contributions to the Plan but remain a
Participant in the Plan through the Offering Termination Date;
(3) Remain a Participant in the Plan during such Approved
Leave of Absence through the Offering Termination Date and continue the
authorization for the Participating Company to make Payroll Deductions for each
payroll period out of continuing payments to such Participant, if any.
6. GRANTING OF OPTIONS.
On each Offering Termination Date, each Participant shall be deemed to
have been granted an option to purchase a minimum of one (1) Share and a maximum
number of Shares that shall be a number of whole Shares equal to the quotient
of: (a) the balance credited to the Participant's Account as of the Offering
Termination Date, divided by (b) the Option Price.
7. EXERCISE OF OPTIONS.
(a) Automatic Exercise. With respect to each Offering, a Participant's
option for the purchase of Shares granted pursuant to section 6 of the Plan
shall be deemed to have been exercised automatically on the Offering Termination
Date applicable to such Offering.
(b) Fractional Shares and Minimum Number of Shares. To the extent that
a Participant's Account is not sufficient to acquire whole shares only,
fractional Shares shall be credited to the Participant.
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(c) Transferability of Option. No option granted to a Participant
pursuant to the Plan shall be transferable other than by will or by the laws of
descent and distribution, and no such option shall be exercisable during the
Participant's lifetime other than by the Participant.
(d) Delivery of Certificates for Shares. The Company shall deliver
certificates for Shares acquired on the exercise of options during an Offering
Period as soon as practicable following the Offering Termination Date.
8. WITHDRAWALS.
(a) Withdrawal of Account. A Participant may elect to withdraw the
balance credited to the Participant's Account by providing a Termination Form to
the Committee at any time before the Offering Termination Date applicable to any
Offering.
(b) Amount of Withdrawal. A Participant may withdraw all, but not less
than all, of the amounts credited to the Participant's Account by giving a
Termination Form to the Committee. All amounts credited to such Participant's
Account shall be paid as soon as practicable following the Committee's receipt
of the Participant's Termination Form, and no further Payroll Deductions will be
made with respect to the Participant.
(c) Effect of Withdrawal on Subsequent Participation. A Participant who
elects to withdraw from an Offering pursuant to section 8(a) of the Plan shall
be deemed to have elected not to participate in each of the four succeeding
Offerings following the date on which the Participant gives a Termination Form
to the Committee.
(d) Termination of Employment. Upon termination of a Participant's
employment for any reason other than death, including termination due to
disability or continuation of a leave of absence beyond 90 days, all amounts
credited to such Participant's Account shall be returned to the Participant. In
the event of a Participant's (1) termination of employment due to death or (2)
death after termination of employment but before the Participant's Account has
been returned, all amounts credited to such Participant's Account shall be
returned to the Participant's Successor-in-Interest.
(e) Leave of Absence. A Participant who is on an Approved Leave of
Absence shall, subject to the Participant's election pursuant to section 5(d) of
the Plan, continue to be a Participant in the Plan until the end of the first
Offering ending after commencement of such Approved Leave of Absence. A
Participant who has been on an Approved Leave of Absence for more than 90 days
shall not be eligible to participate in any Offering that begins on or after the
commencement of such Approved Leave of Absence so long as such leave of absence
continues.
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9. INTEREST.
No interest shall be paid or allowed with respect to amounts paid into
the Plan or credited to any Participant's Account.
10. SHARES.
(a) Maximum Number of Shares. No more than 250,000(1) Shares may be
issued under the Plan. Such Shares may be unissued shares or treasury shares of
the Company. The number of Shares available for any Offering and all Offerings
shall be adjusted if the number of outstanding Shares of the Company is
increased or reduced by split-up, reclassification, stock dividend or other
similar event. All Shares issued pursuant to the Plan shall be validly issued,
fully paid and nonassessable.
(b) Participant's Interest in Shares. A Participant shall have no
interest in Shares subject to an option until such option has been exercised.
(c) Registration of Shares. Shares to be delivered to a Participant
under the Plan shall be registered in the name of the Participant.
(d) Restrictions on Exercise. The Board may, in its discretion, require
as conditions to the exercise of any option such conditions as it may deem
necessary to assure that the exercise of options is in compliance with all
applicable laws.
11. EXPENSES.
The Participating Companies shall pay all fees and expenses incurred
(excluding individual Federal, state, local or other taxes) in connection with
the Plan. No charge or deduction for any such expenses will be made to a
Participant upon the termination of his or her participation under the Plan or
upon the distribution of certificates representing Shares purchased with his or
her contributions.
12. TAXES.
The Participating Companies shall have the right to withhold from each
Participant's Compensation an amount equal to all Federal, state, city or other
taxes as the Participating Companies shall determine are required to be withheld
by them. In connection with such withholding, the Participating Companies may
make any such arrangements as are consistent with the Plan as it may deem
appropriate, including the right to withhold from Compensation paid to a
Participant other than in connection with the Plan.
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(1) As constituted after the stock split to be effected in connection
with the Company's initial public offering.
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13. PLAN AND CONTRIBUTIONS NOT TO AFFECT EMPLOYMENT.
The Plan shall not confer upon any Eligible Employee any right to
continue in the employ of the Participating Companies.
14. ADMINISTRATION.
The Plan shall be administered by the Board, which may delegate
responsibility for such administration to a committee of the Board (the
"Committee"). If the Board fails to appoint the Committee, any references in the
Plan to the Committee shall be treated as references to the Board. The Board, or
the Committee, shall have authority to interpret the Plan, to prescribe, amend
and rescind rules and regulations relating to it, and to make all other
determinations deemed necessary or advisable in administering the Plan, with or
without the advice of counsel. The determinations of the Board or the Committee
on the matters referred to in this paragraph shall be conclusive and binding
upon all persons in interest.
15. AMENDMENT AND TERMINATION.
The Board may terminate the Plan at any time and may amend the Plan
from time to time in any respect; provided, however, that upon any termination
of the Plan, all Shares or Payroll Deductions (to the extent not yet applied to
the purchase of Shares) under the Plan shall be distributed to the Participants;
provided further, that no amendment to the Plan shall affect the right of a
Participant to receive his or her proportionate interest in the Shares or his or
her Payroll Deductions (to the extent not yet applied to the purchase of Shares)
under the Plan; and provided further that the Company may seek shareholder
approval of an amendment to the Plan if such approval is determined to be
required by or advisable under the regulations of the Securities or Exchange
Commission or the Internal Revenue Service, the rules of any stock exchange or
system on which the Shares are listed, or other applicable law, rule or
regulation.
16. EFFECTIVE DATE.
The Plan shall be effective on the date of adoption by the Board,
subject to approval by the Company's shareholders within one year thereafter.
Any option granted before the approval of the Plan by the Company's shareholders
shall be expressly conditioned upon such approval, and no Share certificates
shall be issued until such approval. If shareholder approval is not received
within 12 months before or after the date of the initial adoption of the Plan by
the Board, no Share certificates shall be issued with respect to any automatic
exercises which may have occurred pursuant to section 7 of the Plan, and all
amounts credited to Participants' Accounts with respect to such Shares shall be
returned to Participants as soon as administratively practicable.
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17. GOVERNMENT AND OTHER REGULATIONS.
(a) In General. The purchase of Shares under the Plan shall be subject
to all applicable laws, rules and regulations, and to such approvals by any
governmental agencies as may be required.
(b) Securities Law. The Committee shall have the power to make each
grant under the Plan subject to such conditions as it deems necessary or
appropriate to comply with the then-existing requirements of the Securities Act
of 1933, as amended, and the Securities Exchange Act of 1934, as amended,
including Rule 16b-3 (or any similar rule) of the Securities and Exchange
Commission.
18. NON-ALIENATION.
No Participant shall be permitted to assign, alienate, sell, transfer,
pledge or otherwise encumber his interest under the Plan prior to the
distribution to him of Share certificates. Any attempt at assignment,
alienation, sale, transfer, pledge or other encumbrance shall be void and of no
effect.
19. NOTICES.
Any notice required or permitted hereunder shall be sufficiently given
only if delivered personally, telecopied, or sent by first class mail, postage
prepaid, and addressed:
If to the Company:
Kirkland's, Inc.
805 N. Parkway
P.O. Box 7222
Jackson, Tennessee 38308-7222
Attention: Employee Stock Purchase Plan Committee
Or any other address provided pursuant to written notice.
If to the Participant:
At the address on file with the Company from time to time, or to such
other address as either party may hereafter designate in writing by
notice similarly given by one party to the other.
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20. SUCCESSORS.
The Plan shall be binding upon and inure to the benefit of any
successor, successors or assigns of the Company.
21. SEVERABILITY.
If any part of this Plan shall be determined to be invalid or void in
any respect, such determination shall not affect, impair, invalidate or nullify
the remaining provisions of this Plan which shall continue in full force and
effect.
22. ACCEPTANCE.
The election by any Eligible Employee to participate in this Plan
constitutes his or her acceptance of the terms of the Plan and his or her
agreement to be bound hereby.
23. APPLICABLE LAW.
This Plan shall be construed in accordance with the laws of the State
of Tennessee, without regard to the application of the principles of conflicts
or choice of laws.
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