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Item 9A. Controls and Procedures

2024-03-21 compared with 2023-03-16 · 31 added, 16 removed, 187 unchanged (20% 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 January 28, 2023, 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 fourteen weeks ended February 3, 2024, 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 January 28, 2023.

Management, including the Chief Executive Officer and Chief Financial Officer, assessed the effectiveness of internal control over financial reporting as of February 3, 2024.

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 January 28, 2023, 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 28, 2023 has been audited by KPMG LLP, our independent registered public accounting firm, as stated in their report dated March 16, 2023 that appears below.

Based on this assessment, management determined that, as of February 3, 2024, 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 3, 2024 has been audited by KPMG LLP, our independent registered public accounting firm, as stated in their report dated March 21, 2024 that appears below.

Report of Independent Registered Public Accounting Firm

3 unchanged sentences

We have audited Five Below, Inc.

and subsidiary's (the Company) internal control over financial reporting as of January 28, 2023, 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 28, 2023, 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 28, 2023 and January 29, 2022, 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 28, 2023, and the related notes (collectively, the consolidated financial statements), and our report dated March 16, 2023 expressed an unqualified opinion on those consolidated financial statements.

and subsidiary's (the Company) internal control over financial reporting as of February 3, 2024, 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 3, 2024, 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 3, 2024 and January 28, 2023, 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 3, 2024, and the related notes (collectively, the consolidated financial statements), and our report dated March 21, 2024 expressed an unqualified opinion on those consolidated financial statements.

Basis for Opinion

18 unchanged sentences

OTHER INFORMATION

During the fourteen weeks ended February 3, 2024, none of the Company's directors or Section 16 officers adopted or terminated any contract, instruction or written plan for the purchase or sale of Company securities that was intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) of the Exchange Act or any "non-Rule 10b5-1 trading arrangement."

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS

1 unchanged sentence

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The information required by this Item 10 is included in the “Board of Directors-Nominees for Election to the Board of Directors for a Three-Year Term Expiring at the 2025 Annual Meeting,” “Board of Directors-Members of the Board of Directors Continuing in Office for a Term Expiring at the 2024 Annual Meeting,” “Board of Directors-Members of the Board of Directors Continuing in Office for a Term Expiring at the 2023 Annual Meeting,” “Executive Officers,” “Board of Directors-Code of Business Conduct and Ethics,” “Board of Directors-Committees of the Board of Directors,” and “Board of Directors-Director Nomination Process” sections of our proxy statement for the 2023 annual meeting of shareholders, which will be filed with the Securities and Exchange Commission, and is incorporated by reference herein.

The information required by this Item 10 is included in the “Board of Directors-Nominees for Election to the Board of Directors for a Term Expiring at the 2025 Annual Meeting,” “Board of Directors-Members of the Board of Directors Continuing in Office for a Term Expiring at the 2025 Annual Meeting,” “Executive Officers,” “Board of Directors-Code of Business Conduct and Ethics,” “Board of Directors-Committees of the Board of Directors,” and “Board of Directors-Director Nomination Process” sections of our proxy statement for the 2024 annual meeting of shareholders, which will be filed with the Securities and Exchange Commission, and is incorporated by reference herein.

EXECUTIVE COMPENSATION

24 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)

10.3a† Form of Non-Qualified Stock Option Agreement ( C r e w ) (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 (Crew) (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)

73 unchanged sentences

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

Amended and Restated Equity I ncentive Plan (Direc tors) (incorporated by reference to Exhibit 10.3 5 † of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on June 9 , 202 2 )

Amended and Restated Equity Incentive Plan (Directors) (incorporated by reference to Exhibit 10.35† of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on June 9, 2022)

10.38† Five Below, Inc.

2022 Equity Incentive Plan (incorporated by reference to Appendix A-1 to the Company's Definitive Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on May 5, 2022)

10.39† F orm of Restricted Stock Unit Grant Notice and Award Agreement under the Five Below, Inc .

10.39† Form of Restricted Stock Unit Grant Notice and Award Agreement under the Five Below, Inc.

2022 Equity Incentive Plan (incorporated by reference to Exhibit 4.4 of the Company’s registration statement on Form S-8, filed with the Securities and Exchange Commission on June 14, 2022)

10.40 Second Amendment to Credit Agreement, dated September 16, 2022, 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 September 16, 2022)

10.41† Amendment dated March 13, 2023 to Employment Letter Agreement dated April 16, 2012 by and between Kenneth R.

Bull and Five Below, Inc.

(incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on March 14, 2023)

10.42 Offer Letter, dated June 13, 2023., by and between Kristy Chipman and Five Below, Inc.

(incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on June 14, 2023)

10.43† Co mpensation Pol icy for Non-Employee Directors (incorporated by reference to Exhibit 10.

1 † of the Quarterly Report on Form 10 - Q filed with the Securities and Exchange Commission on November 30 , 2023)

10.44 Amended and Restated Five Below, Inc.

Clawback Policy (incorporated by reference to Exhibit 10.

3 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 30, 2023)

21.1 List of Subsidiaries of the Company (filed herewith)

6 unchanged sentences

1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (filed herewith)

97.1 Five Below, Inc.

Dodd-Frank Clawback Policy (incorporated by reference to Exhibit 10.2 of the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 30, 2023)

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 January 28, 2023 and January 29, 2022;

(i) the Consolidated Balance Sheets as of February 3, 2024 and January 28, 2023;

(ii) the Consolidated Statements of Operations for Fiscal Years 2023, 2022, and 2021;

6 unchanged sentences

Optional disclosure not included in this report.

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in Philadelphia, Pennsylvania, on the 16th day of March 2023.

FIVE BELOW, INC.

5 unchanged sentences

President, Chief Executive Officer and Director (Principal Executive Officer) March 21, 2024

/s/ Kenneth R.

Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) March 16, 2023

/s/ Kristy Chipman

Kristy Chipman

Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) March 21, 2024

/s/ Kathleen S.

Director March 21, 2024

/s/ Catherine E.

/s/ Karen Bowman

Director March 21, 2024

11 unchanged sentences

Director March 21, 2024

/s/ Zuhairah S.

1 unchanged sentence

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