As filed with the Securities and Exchange Commission on June 25, 1997
Registration No. 33-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FOOTSTAR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3439443
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(State or other jurisdiction (I.R.S. Employer
of incorporation of organization) Identification No.)
933 MAC ARTHUR BOULEVARD
MAHWAH, NEW JERSEY 07430
(Address, including zip code, of principal executive offices)
FOOTSTAR 1997 ASSOCIATE STOCK PURCHASE PLAN
(Full title of the plan)
FOOTSTAR, INC.
933 MAC ARTHUR BOULEVARD
MAHWAH, NEW JERSEY 07430
(201) 934-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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With a copy to:
WARREN J. CASEY, ESQ.
PITNEY, HARDIN, KIPP & SZUCH
P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962
(201) 966-6300
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CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
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Title of Amount Proposed maximum Proposed Amount of
Securities to to be offering price aggregate registration
be registered registered per unit (1) offering price (1) fee
- ------------------------- ----------------------- ----------------------- ------------------------ -----------------------
- ------------------------- ----------------------- ----------------------- ------------------------ -----------------------
Common Stock, Par 1,600,000 $19.23 $30,768,000 $9,323.64
Value $.01 per share
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(1) Calculated pursuant to Rule 457(h)(1), based upon the provisions of
the Plan whereby shares are to be purchased at 85% of the stock price,
and based upon the average of the high and low price per share of the
registrant's common stock listed on the New York Stock Exchange
as reported in The Dow Jones on June 20, 1997.
<PAGE>
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.
Not filed with this Registration Statement.
ITEM 2. Registrant Information and Employee Plan Annual
Information.
Not filed with this Registration Statement.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents filed by Footstar, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the year ended
December 28, 1996.
2. The Company's Current Report on Form 10-Q filed with the
Commission on May 13, 1997.
3. The description of the Company's common stock contained in the
Registration Statement on Form 10 registering the Company's
common stock, and any amendment or report filed for the purpose
of updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, 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, hereby are incorporated herein by reference and shall be
deemed a part hereof from the date of filing of such documents.
ITEM 4. Description of Securities.
Not applicable.
<PAGE>
ITEM 5. Interests of Named Experts and Counsel.
The report of KPMG Peat Marwick LLP, independent certified
public accountants, dated February 12, 1997, relating to the consolidated
statements of financial condition of the Company and its subsidiaries as of
December 28, 1996 and December 31, 1995 and the related consolidated
statements of income, changes in shareholders' equity, and cash flows for
each of the years in the three-year period ended December 28, 1996, which
report appears in the December 28, 1996 Annual Report on Form 10-K of the
Company, is incorporated herein by reference upon authority of said firm as
experts in accounting and auditing.
ITEM 6. Indemnification of Directors and Officers.
INDEMNIFICATION. Article Ninth of the Amended and Restated
Certificate of Incorporation of the Company provides that the corporation
shall indemnify its present and former officers and directors serving at its
request against expenses incurred in connection with any threatened, pending
or completed civil, criminal, administrative or investigative proceeding to
the fullest extent permitted by the Delaware Law. The right to
indemnification conferred in Article Ninth of the Amended and Restated
Certificate of Incorporation of the Company also includes the right to be
paid by the Corporation the expenses incurred in connection with any such
proceeding in advance of its final disposition to the fullest extent
authorized by Delaware Law.
Section 145 of the Delaware General Corporation Law
provides that a corporation may indemnify its directors, officers, employees
and agents against judgments, fines, penalties, amounts paid in settlement
and expenses, including attorneys' fees, resulting from various types of
legal actions or proceedings if the actions of the party being indemnified
meet the standards of conduct specified therein. Determinations concerning
whether or not the applicable standard of conduct has been met can be made by
(a) a disinterested majority of the Board of Directors, (b) independent legal
counsel, or (c) an affirmative vote of a majority of shares held by the
Shareholders. No indemnification is permitted to be made to or on behalf of a
corporate director, officer, employee or agent if a judgment or other final
adjudication adverse to such person establishes that his acts or omissions
(a) were in breach of his duty of loyalty to the corporation or its
shareholders, (b) were not in good faith or involved a knowing violation of
law or (c) resulted in receipt by such person of any improper personal
benefit.
LIMITATION ON LIABILITY. Article Ninth of the Amended and
Restated Certificate of Incorporation of the Company provides:
A director of the Corporation shall, to the fullest extent
permitted by Delaware Law, not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director.
Neither the amendment nor repeal of the Article Ninth of
the Amended or Restated Certificate of Incorporation of the Company,
by the shareholders of the Corporation, or otherwise shall adversely
affect any right or protection of a director or officer of the
Corporation existing at the time of such repeal or modification.
Section 102 of the Delaware General Corporation Law permits
a corporation to provide in its Certificate of Incorporation that a director
or officer shall not be personally liable to the corporation or its
shareholders for breach of any duty owed to the corporation or its
shareholders for breach of any duty owed to the corporation or its
shareholders, except that such provisions shall not relieve a director or
officer from liability for any breach of duty based upon an action or
omission (a) in breach of such person's duty of loyalty to the corporation or
its shareholders, (b) not in good faith or involving intentional misconduct
or a knowing violation of law, (c) involving the payment of unlawful
dividends or expenditure of funds for unlawful stock purchases or
redemptions, or (d) resulting in receipt by such person of any improper
personal benefit.
INSURANCE. Article Ninth of the Amended and Restated
Certificate of Incorporation authorizes the corporation to purchase and
maintain insurance on behalf of any of the persons enumerated against any
liability whether or not the corporation would have the power to indemnify
him against such liability under Delaware Law.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
5 Opinion of Pitney, Hardin, Kipp & Szuch, as to the legality of
the securities being registered.
15 Letter of KPMG Peat Marwick LLP re unaudited interim financial
information.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Pitney, Hardin, Kipp & Szuch (included in Exhibit 5
hereto).
99 Summary Plan Description of the Footstar 1997 Associate Stock
Purchase Plan.
ITEM 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement 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.
(b) That, for purposes of determining any liability under
the Securities Act of 1933, 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by
reference in this 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.
3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and
Exchange 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 registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant
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 registrant 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all 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 County of Bergen, State of New Jersey, on
the 24 day of June, 1997.
FOOTSTAR, INC.
/S/ J.M. ROBINSON
By:-----------------------------------
Chairman of the Board, Chief Executive
Officer and President of the Corporation
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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<S> <C> <C>
Signature Title Date
/S/ J.M. ROBINSON Chairman of the Board, Chief June 24, 1997
- -------------------------- Executive Officer, President of
J.M. Robinson the Corporation and Director
/S/ CARLOS E. ALBERINI Senior Vice President and Chief June 24, 1997
- -------------------------- Financial Officer
Carlos E. Alberini
/S/ DONALD V. ROACH Vice President and June 24, 1997
- -------------------------- Corporate Controller
Donald V. Roach
/S/ STANLEY P. GOLDSTEIN Director June 24, 1997
- --------------------------
Stanley P. Goldstein
/S/ GEORGE S. DAY Director June 24, 1997
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George S. Day
/S/ TERRY R. LAUTENBACH Director June 19, 1997
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Terry R. Lautenbach
/S/ BETTYE MARTIN MUSCHAM Director June 18, 1997
- --------------------------
Bettye Martin Musham
/S/ KENNETH S. OLSHAN Director June 23, 1997
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Kenneth S. Olshan
/S/ M. CABELL WOODWARD, JR. Director June 24, 1997
- --------------------------
M. Cabell Woodward, Jr.
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
5 Opinion of Pitney, Hardin, Kipp & Szuch, as to the
legality of the securities being registered.
15 Letter of KPMG Peat Marwick LLP re unaudited
interim financial information.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Pitney, Hardin, Kipp & Szuch (included
in Exhibit 5 hereto).
99 Summary Plan Description of the Footstar 1997
Associate Stock Purchase Plan.
PITNEY, HARDIN, KIPP & SZUCH
P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962-1945
June 23, 1997
Footstar, Inc.
933 MacArthur Blvd.
Mahwah, New Jersey 07430
Re: Registration Statement on Form S-8
of Shares of Common Stock issuable
pursuant to the Footstar 1997 Associate
Stock Purchase Plan
We have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by Footstar, Inc. (the "Company")
with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of
shares of common stock of the Company, par value $.01 per share (the
"Shares") issuable pursuant to the Footstar 1997 Associate Stock Purchase
Plan (the "Plan").
We have also examined originals, or copies certified or
otherwise identified to our satisfaction, of the Plan, the Amended and
Restated Certificate of Incorporation and By-laws of the Company, as
currently in effect, and relevant resolutions of the Board of Directors of
the Company; and we have examined such other documents as we deemed necessary
in order to express the opinion hereinafter set forth.
In our examination of such documents and records, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and conformity with the originals of all
documents submitted to us as copies.
Based on the foregoing, we are of the opinion that, when
the Registration Statement has become effective under the Act, and the Shares
shall have been duly issued in the manner contemplated by the Registration
Statement and the Plan, the Shares will be legally issued, fully paid and
non-assessable.
The foregoing opinion is limited to the federal laws of the
United States and the Corporate Laws of the State of Delaware, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to use of this opinion as an Exhibit to
the Registration Statement. In giving such consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Act, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/S/ PITNEY, HARDIN, KIPP & SZUCH
Accountants' Acknowledgment
Footstar, Inc.
Mahwah, New Jersey
Board of Directors:
Re: Registration Statement Number 33- on Form S-8
With respect to the subject registration statement, we acknowledge our awareness
of the use therein of our report dated April 17, 1997 related to our review of
interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered a part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
/S/ KPMG Peat Marwick LLP
New York, New York
June 24, 1997
INDEPENDENT AUDITORS' CONSENT
Consent of Independent Auditors
The Board of Directors and Shareholders
Footstar, Inc.
We consent to the use of our audit report dated February 12, 1997 on the
consolidated balance sheets of Footstar, Inc. and subsidiary Companies as of
December 28, 1996 and December 31, 1995 and the related statements of
operations, shareholders' equity, and cash flows for each of the years in the
three year period ended December 28, 1996 incorporated herein by reference in
the Registration Statement on Form S-8 of the Footstar 1997 Associate Stock
Purchase Plan.
Our audit report refers to Footstar, Inc.'s adoption of the Financial Accounting
Standards Board's Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of" effective October 1, 1995 and a change in its policy for
accounting for the costs of internally developed software effective January 1,
1995.
/S/ KPMG Peat Marwick LLP
New York, New York
June 24, 1997
SUMMARY PLAN DESCRIPTION OF THE
FOOTSTAR 1997 ASSOCIATE STOCK PURCHASE PLAN
Summary of the ASPP. The following is a brief description of
the material features of the ASPP. Such description is qualified in its entirety
by reference to the full text of the ASPP.
Eligibility. All present and future employees of the
Corporation or any designated U.S. Domestic subsidiary who have completed at
least one year of service and have worked at least one thousand hours in the
twelve month period prior to eligibility are eligible to participate in the
ASPP.
Administration. The ASPP will be administered by the
Committee, which is either the Compensation Committee or such other committee as
may be designated by the Board to administer the ASPP. Certain administrative
functions have been delegated to the Vice President, Human Resources of the
Corporation.
General Description. A participant in the ASPP may authorize
payroll deductions in whole percentages or whole dollars with a maximum of 10%
of compensation per payroll period, with a minimum of $5 per week, if the
deductions are authorized in dollars. The amounts so deducted and contributed
are applied to the purchase of full and fractional shares of Common Stock at 85%
of the fair market value of such Common Stock, determined as of the first or
last day of an Offering Period, whichever is lower. Offering Periods are twelve
month periods beginning on January 1 each year; provided, however, that the
first Offering Period shall begin on September 1, 1997 and end on December 31,
1997. Purchase Dates are the last business days of each calendar quarter during
an Offering Period; provided however, that the first Purchase Date shall be
December 31, 1997. The fair market value of Common Stock purchased under the
ASPP for a participant in any one calendar year cannot exceed $25,000. In
addition, once a participant owns (or is considered as owning within the meaning
of Section 423(d) of the Code) 5% or more of the voting power of the
Corporation, he or she will not be able to purchase any more stock under the
ASPP.
Shares purchased under the ASPP will be evidenced on the books of the
Corporation, and, after expiration of the tax holding period, certificates for
whole shares will be issued to participants upon request. Shares purchased under
the ASPP generally are transferable at any time after the purchase is
consummated, regardless of whether certificates therefore have been issued. In
the event that a dividend is declared and paid with respect to Common Stock
acquired under the ASPP, the Committee shall determine whether the dividend will
be paid in cash to the owners of such Common Stock, or whether it will be used
to purchase additional Common Stock. It is contemplated that the Common Stock
required for the ASPP will be purchased on the open market, but, in the
discretion of the Committee, may be treasury Common Stock, reacquired Common
Stock, and/or authorized but unissued Common Stock.
Participants may increase or decrease their payroll deductions as of
the first business day following a Purchase Date, or at such other times as may
be permitted by the plan administrator. Participants may withdraw from further
participation in the ASPP at any time by filing a withdrawal form with the plan
administrator. Upon such withdrawal, all payroll deductions then credited to the
participant's account under the ASPP which have not already been applied for the
purchase of Common Stock will be paid to the participant, and no further payroll
deductions will be made for that participant until he or she files a new payroll
authorization form; upon such withdrawal, a participant may not file a new
payroll authorization form for the remainder of the Offering Period in which the
withdrawal occurs. If a participant ceases to be an employee on or before the
last working day preceding the 15th day prior to a Purchase Date, then that
participant will be deemed to have elected to withdraw from participation in the
ASPP, and all payroll deductions then credited to the participant's account
which were not applied for the purchase of Common Stock will be paid to the
participant; if a participant ceases to be an employee after the above described
date, he or she will be deemed to have elected to purchase Common Stock with the
previously accumulated payroll deductions.
Future Amendments to the ASPP. The Committee may at any time
amend the ASPP in any respect, except that no amendment that (i) would effect an
increase in the number of shares of Common Stock which may be purchased under
the ASPP, if that increase would require shareholder approval under Section 423
of the Code, or (ii) would effect a change in the designation of the
corporations whose employees may participate in the ASPP, if that change would
require shareholder approval under Section 423 of the Code, will be effective
unless the required shareholder approval is obtained.
Federal Income Tax Consequences. A participant will not incur federal
income tax as a result of the purchase of Common Stock pursuant to the ASPP at
85% of fair market value. Generally, if the associate holds any share purchased
under the Plan for (a) more than two years after the first day of the Offering
Period relating to such purchase, and (b) more than one year after the Purchase
Date (the "Holding Period"), then any gain realized upon the sale or other
disposition of that share will be taxed as long-term capital gain, and any loss
will be long-term capital loss, except that an amount equal to the lesser of (a)
the excess of the fair market value of the share on the first day of the
Offering Period relating to such purchase over the price at which such option
could have been exercised at that time if it had then been exercisable and (b)
the amount, if any, by which the fair market value of the share at the time of
such disposition exceeds the price actually paid for the share under the option,
will be taxed as ordinary income in the taxable year in which such sale or other
disposition occurs. If an associate disposes of the share, such amount of
ordinary income realized upon the sale or other disposition of the share will
increase the associate's tax basis in the share for determining gain or loss
upon such sale or other disposition of the share. The Corporation will not be
entitled to a deduction for federal income tax purposes in connection with such
sale or other disposition. If an associate disposes of any share purchased under
the Plan without satisfying the Holding Period, the associate should report as
ordinary income for the taxable year in which the disposition occurs the amount
by which the market value of such share on the Purchase Date exceeded the amount
the associate paid for such share. Any such ordinary income will increase the
associate's tax basis for the purpose of determining gain or loss on the sale or
other disposition of the share. The associate will be considered to have
disposed of a share if such associate sells, exchanges, makes a gift or
transfers (except by pledge, tax free reorganization or by transfer on death)
legal title to the share.
The Corporation will not be entitled to a business expense deduction
for federal income tax purposes in connection with the sale of the shares under
the ASPP, unless a participant disposes of the Common Stock received under the
ASPP prior to expiration of the required holding period. In that case, the
Corporation will be entitled to a business expense deduction to the extent
ordinary income is recognized by the participant.
This summary of federal income tax consequences does not purport to be
complete, and it is recommended that participants consult their own tax advisor.
Reference should be made to applicable provisions of the Code. There may also be
state and local income taxes applicable to the transactions contemplated by the
ASPP.
