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Item 9A. Controls and Procedures

2021-03-18 compared with 2020-03-19 · 39 added, 34 removed, 148 unchanged (33% of the section changed)

6 unchanged sentences

Changes in Internal Control Over Financial Reporting

There were no changes to our internal control over financial reporting during the thirteen weeks ended February 1, 2020 , as defined in Exchange Act Rules 13a-15(f) and 15d-15(f), that have materially affected, or that are reasonably likely to materially affect, our internal control over financial reporting.

There were no changes to our internal control over financial reporting during the thirteen weeks ended January 30, 2021, as defined in Exchange Act Rules 13a-15(f) and 15d-15(f), that have materially affected, or that are reasonably likely to materially affect, our internal control over financial reporting.

Management's Annual Report on Internal Control Over Financial Reporting

3 unchanged sentences

Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with policies or procedures may deteriorate.

Management, including the Chief Executive Officer and Chief Financial Officer, assessed the effectiveness of internal control over financial reporting as of February 1, 2020 .

Management, including the Chief Executive Officer and Chief Financial Officer, assessed the effectiveness of internal control over financial reporting as of January 30, 2021.

Management based this assessment on criteria for effective internal control over financial reporting described in “ Internal Control - Integrated Framework (2013)” issued by the Committee of Sponsoring Organizations of the Treadway Commission.

Based on this assessment, management determined that, as of February 1, 2020 , the company maintained effective internal control over financial reporting at a reasonable assurance level.

The effectiveness of the company’s internal control over financial reporting as of February 1, 2020 has been audited by KPMG LLP, our independent registered public accounting firm, as stated in their report dated March 19, 2020 that appears below.

Based on this assessment, management determined that, as of January 30, 2021, the company maintained effective internal control over financial reporting at a reasonable assurance level.

The effectiveness of the company’s internal control over financial reporting as of January 30, 2021 has been audited by KPMG LLP, our independent registered public accounting firm, as stated in their report dated March 18, 2021 that appears below.

Report of Independent Registered Public Accounting Firm

To the Stockholders and Board of Directors

To the Shareholders and Board of Directors

Five Below, Inc.:

Opinion on Internal Control Over Financial Reporting

We have audited Five Below, Inc.’s and subsidiaries' (the Company) internal control over financial reporting as of February 1, 2020 , based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of February 1, 2020 , based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of February 1, 2020 and February 2, 2019 , the related consolidated statements of operations, changes in shareholders’ equity, and cash flows for each of the fiscal years in the three-year period ended February 1, 2020 , and the related notes (collectively, the consolidated financial statements), and our report dated March 19, 2020 expressed an unqualified opinion on those consolidated financial statements.

We have audited Five Below, Inc.

and subsidiary's (the Company) internal control over financial reporting as of January 30, 2021, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of January 30, 2021, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of January 30, 2021 and February 1, 2020, the related consolidated statements of operations, changes in shareholders’ equity, and cash flows for each of the fiscal years in the three-year period ended January 30, 2021, and the related notes (collectively, the consolidated financial statements), and our report dated March 18, 2021 expressed an unqualified opinion on those consolidated financial statements.

Basis for Opinion

39 unchanged sentences

333-180780) filed with the Securities and Exchange Commission on July 9, 2012)

Description of Five Below's Securities (filed herewith)

4.2 Description of Five Below's Securities (incorporated by reference to Exhibit 4.2 of the Annual Report on Form 10-K filed with the Securities and Exchange Commission on October 5, 2018)

10.1† Five Below, Inc.

2 unchanged sentences

Amended and Restated Equity Incentive Plan (incorporated by reference to Exhibit 10.1 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on September 1, 2016)

Five Below, Inc.

2016 Performance Bonus Plan (incorporated by reference to Exhibit 10.2 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on September 1, 2016)

Form of Non-Qualified Stock Option Agreement (Employees) (used for options granted prior to May 21, 2013) (incorporated by reference to Exhibit 10.10 of the Registration Statement on Form S-1 (File No.

10.3a† Form of Non-Qualified Stock Option Agreement (Employees) (used for options granted prior to May 21, 2013) (incorporated by reference to Exhibit 10.10 of the Registration Statement on Form S-1 (File No.

333-180780) filed with the Securities and Exchange Commission on April 18, 2012)

Form of Non-Qualified Stock Option Agreement (Employees) (used for options granted after May 21, 2013 and prior to June 30, 2014) (incorporated by reference to Exhibit 10.3 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on September 10, 2013)

Form of Non-Qualified Stock Option Agreement for Employees (used for options granted after June 30, 2014) (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on June 30, 2014)

Form of Non-Qualified Stock Option Agreement (Executives) (used for options granted prior to May 21, 2013) (incorporated by reference to Exhibit 10.11 of the Registration Statement on Form S-1 (File No.

10.3b† Form of Non-Qualified Stock Option Agreement (Employees) (used for options granted after May 21, 2013 and prior to June 30, 2014) (incorporated by reference to Exhibit 10.3 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on September 10, 2013)

10.3c† Form of Non-Qualified Stock Option Agreement for Employees (used for options granted after June 30, 2014) (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on June 30, 2014)

10.4a† Form of Non-Qualified Stock Option Agreement (Executives) (used for options granted prior to May 21, 2013) (incorporated by reference to Exhibit 10.11 of the Registration Statement on Form S-1 (File No.

333-180780) filed with the Securities and Exchange Commission on April 18, 2012)

Form of Non-Qualified Stock Option Agreement (Executives) (used for options granted after May 21, 2013 and prior to June 30, 2014) (incorporated by reference to Exhibit 10.4 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on September 10, 2013)

Form of Non-Qualified Stock Option Agreement for Executives (used for options granted after June 30, 2014) (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on June 30, 2014)

10.4b† Form of Non-Qualified Stock Option Agreement (Executives) (used for options granted after May 21, 2013 and prior to June 30, 2014) (incorporated by reference to Exhibit 10.4 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on September 10, 2013)

10.4c† Form of Non-Qualified Stock Option Agreement for Executives (used for options granted after June 30, 2014) (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on June 30, 2014)

10.5† Form of Award Agreement for Restricted Shares under the Five Below, Inc.

41 unchanged sentences

(incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on March 17, 2016)

Fourth Amended and Restated Loan and Security Agreement, dated May 10, 2017, among Five Below, Inc., 1616 Holdings, Inc., and Wells Fargo Bank, National Association (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on May 11, 2017)

10.23 Fifth Amended and Restated Credit Agreement, dated April 24, 2020, among Five Below, Inc., 1616 Holdings, Inc., and Wells Fargo Bank, National Association, and the lenders party thereto (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 29, 2020)

10.24 Facility Guarantee, dated April 24, 2020, between 1616 Holdings, Inc., and Wells Fargo Bank, National Association (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 29, 2020)

10.25 Security Agreement, dated April 24, 2020, among Five Below, Inc., 1616 Holdings, Inc., and Wells Fargo Bank, National Association (incorporated by reference to Exhibit 10.3 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 29, 2020)

10.26 First Amendment to Credit Agreement, dated January 27, 2021, among Five Below, Inc., 1616 Holdings, Inc., and Wells Fargo Bank, National Association, and the lenders party thereto (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 29, 2020)

10.27† Employment Letter, dated April 6, 2017, by and between George S.

5 unchanged sentences

(incorporated by reference to Exhibit 10.1 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on December 1, 2017)

Compensation Policy for Non-Employee Directors (incorporated by reference to Exhibit 10.28 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on June 6, 2019)

10.30† Employment Letter, dated February 19, 2019, and Non-Solicitation, Non-Disclosure, Non-Compete and Proprietary Information Agreement by and between Judy Werthauser and Five Below, Inc.

4 unchanged sentences

2020 Performance Bonus Plan (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on March 16, 2020)

List of Subsidiaries of the Company (filed herewith)

10.33† Compensation Policy for Non-Employee Directors (incorporated by reference to Exhibit 10.32 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on December 3, 2020)

10.34† Form of Award Agreement for Performance-Based Restricted Stock Units under the Five Below, Inc.

Amended and Restated Equity Incentive Plan (Directors) (incorporated by reference to Exhibit 10.33 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on December 3, 2020)

10.35 First Amendment to Credit Agreement, dated January 27, 2021, among the Company, 1616 Holdings, Inc., Wells Fargo Bank, National Association, and the lenders party thereto (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 29, 2021)

21.1 List of Subsidiaries of the Company (incorporated by reference to Exhibit 21.1 of the Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 19, 2020)

23.1 Consent of KPMG LLP (filed herewith)

6 unchanged sentences

101* The following financial information from this Annual Report on Form 10-K, formatted in Inline XBRL (Extensible Business Reporting Language) and furnished electronically herewith:

(i) the Consolidated Balance Sheets as of February 1, 2020 and February 2, 2019 ;

(i) the Consolidated Balance Sheets as of January 30, 2021 and February 1, 2020;

(ii) the Consolidated Statements of Operations for Fiscal Years 2020, 2019, and 2018;

10 unchanged sentences

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

Signature Title Date

/s/ Thomas G.

Non-Executive Chairman of the Board

March 19, 2020

President, Chief Executive Officer and Director (Principal Executive Officer)

March 19, 2020

Non-Executive Chairman of the Board March 18, 2021

President, Chief Executive Officer and Director (Principal Executive Officer) March 18, 2021

/s/ Kenneth R.

Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)

March 19, 2020

Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) March 18, 2021

/s/ Kathleen S.

March 19, 2020

Director March 18, 2021

/s/ Catherine E.

March 19, 2020

Director March 18, 2021

/s/ Michael F.

March 19, 2020

Director March 18, 2021

/s/ Dinesh Lathi

March 19, 2020

Director March 18, 2021

/s/ Richard L.

March 19, 2020

Director March 18, 2021

/s/ Thomas M.

March 19, 2020

Director March 18, 2021

/s/ Ronald L.

March 19, 2020

Director March 18, 2021

/s/ Zuhairah S.

Director March 18, 2021

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures