<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 13, 1999
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
SKECHERS U.S.A., INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4376145
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
228 MANHATTAN BEACH BLVD.
MANHATTAN BEACH, CALIFORNIA 90266
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES AND ZIP CODE)
----------------------
AMENDED AND RESTATED
1998 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
(FULL TITLE OF THE PLAN)
----------------------
ROBERT GREENBERG
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
SKECHERS U.S.A., INC.
228 MANHATTAN BEACH BLVD.
MANHATTAN BEACH, CALIFORNIA 90266
(310) 318-3100
(NAME AND ADDRESS OF AGENT FOR SERVICE)
----------------------
COPIES TO:
THOMAS J. POLETTI, ESQ.
JEFFREY S. CANNON, ESQ.
FRESHMAN, MARANTZ, ORLANSKI,
COOPER & KLEIN
9100 WILSHIRE BOULEVARD, SUITE 800 EAST
BEVERLY HILLS, CALIFORNIA 90212
TELEPHONE: (310) 273-1870
FACSIMILE: (310) 274-8357
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box: /X/
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE
AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
- ------------------------------------------------- ------------- -------------- ------------ -----------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.001 par value............ 1,390,715 $ 2.780 $ 3,866,188 $ 1,075
- ------------------------------------------------- ------------- -------------- ------------ -----------------
Class A Common Stock, $.001 par value............ 1,190,034 $11.000 $13,090,374 $ 3,639
- ------------------------------------------------- ------------- -------------- ------------ -----------------
Class A Common Stock, $.001 par value(2) ........ 2,634,405 $ 5.625 $14,818,529 $ 4,120
================================================= ============= ============== ============ =================
Total ........................................... 5,215,154 $31,775,091 $ 8,834
================================================= ============= ============== ============ =================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended.
(2) Based upon the average of the high and low prices of the Class A Common
Stock on September 10, 1999 in accordance with Rule 457(c) of the
Securities Act of 1933.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in this Part I are being
separately provided to the participants in the Amended and Restated 1998 Stock
Option, Deferred Stock and Restricted Stock Plan as specified by Rule 428(b)(1).
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) below have been filed with the
Securities and Exchange Commission (the "Commission") by Skechers U.S.A., Inc.
(the "Registrant") and are incorporated by reference into this Registration
Statement:
(a) Prospectus dated June 9, 1999 including the Prospectus Supplement
dated June 15, 1999, each filed pursuant to Rule 424(b) or the Securities Act of
1933, as amended (the "Securities Act").
(b) Quarterly Report on Form 10-Q for the quarter ending June 30, 1999,
as filed with the Commission on August 11, 1999 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(c) The description of the Registrant's Class A Common Stock contained
in Amendment No. 1 to the Registrant's Registration Statement on Form 8-A, as
filed with the Commission on May 3, 1999 under the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this registration statement indicating that all
securities offered hereby have been sold, or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act. Article VIII of the Registrant's Amended and Restated
Certificate of Incorporation and Article VII of the Registrant's Bylaws, as
amended provide for indemnification of the Registrant's directors, officers,
employees and other agents to the extent and under the circumstances permitted
by the Delaware General Corporation Law. The Registrant has also entered into
agreements with its directors and executive officers that will require the
Registrant, among other things, to indemnify them against certain liabilities
that may arise by reason of their status or service as directors to the fullest
extent not prohibited by law to the extent such costs or expenses are not
covered by existing directors and officers insurance. The Registrant carries
directors' and officers' liability insurance covering its directors and officers
against liability asserted against or incurred by the person arising out of his
or her capacity as an officer or director, including any liability for
violations of the Securities Act or the Exchange Act, subject to some exclusions
and coverage limitations.
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Numbers Description
- ------- -----------
<S> <C>
4 Specimen Certificate of the Registrant's Class A Common Stock(1)
5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein
10.1 Amended and Restated 1998 Stock Option, Deferred Stock and Restricted Stock Plan(2)
10.2 Form of Stock Option Agreement
10.3 Form of Deferred Stock and Restricted Stock Agreement
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included in Exhibit 5)
23.2 Consent of KPMG LLP
24 Powers of Attorney (included on the signature page hereto)
</TABLE>
- ----------------------
(1) Incorporated by reference to Exhibit 4.1 of Amendment No. 2 to the
Registrant's Registration Statement on Form S-1 (File No. 333-60065) as
filed with the Commission on May 12, 1999.
(2) Incorporated by reference to Exhibit 10.1 of Amendment No. 2 to the
Registrant's Registration Statement on Form S-1 (File No. 333-60065) as
filed with the Commission on May 12, 1999.
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement and to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement, or any material change to such
information in this Registration Statement.
(2) That, for purposes of determining any liability under the
Securities Act, 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.
(3) 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
<PAGE> 5
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referenced in Item 6 of this Registration
Statement, or otherwise, the Registrant has been advised that in the opinion of
the Commission, such indemnification is against public policy as expressed in
the Securities 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 the public policy expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of 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 City of Manhattan Beach, State of California, on September 10,
1999.
SKECHERS U.S.A., INC.
By: /s/ ROBERT GREENBERG
----------------------
Name: Robert Greenberg
Title: Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
We the undersigned directors and officers of Skechers U.S.A., Inc., do
hereby constitute and appoint Robert Greenberg and David Weinberg, or either of
them, our true and lawful attorneys and agents to do any and all acts and things
in our name and behalf in our capacities as directors and officers and to
execute any and all instruments for us and in our names in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act, and any rules, regulations, and requirements of the Commission, in
connection with this Registration Statement, including specifically, but without
limitation, power and authority to sign for us or any of us in our names and in
the capacities indicated below, any and all amendments to this Registration
Statement; and we do hereby ratify and confirm all that the said attorneys and
agents, or either of them, shall do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ ROBERT GREENBERG Chairman of the Board and Chief Executive Officer September 10, 1999
- ------------------------ (principal executive officer)
Robert Greenberg
/s/ MICHAEL GREENBERG President and Director September 10, 1999
- ------------------------
Michael Greenberg
/s/ DAVID WEINBERG Executive Vice President, Chief Financial Officer September 10, 1999
- ------------------------ and Director (principal financial and accounting
David Weinberg officer)
/s/ RICHARD SISKIND Director September 10, 1999
- ------------------------
Richard Siskind
/s/ JOHN QUINN Director September 7, 1999
- ------------------------
John Quinn
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit
Numbers Description
- ------- -----------
<S> <C>
4 Specimen Certificate of the Registrant's Class A Common Stock(1)
5 Opinion of Freshman, Marantz, Orlanski, Cooper & Klein
10.1 Amended and Restated 1998 Stock Option, Deferred Stock and Restricted Stock Plan(2)
10.2 Form of Stock Option Agreement
10.3 Form of Deferred Stock and Restricted Stock Agreement
23.1 Consent of Freshman, Marantz, Orlanski, Cooper & Klein (included in Exhibit 5)
23.2 Consent of KPMG LLP
24 Powers of Attorney (included on the signature page hereto)
</TABLE>
- ----------------------
(1) Incorporated by reference to Exhibit 4.1 of Amendment No. 2 to the
Registrant's Registration Statement on Form S-1 (File No. 333-60065) as
filed with the Commission on May 12, 1999.
(2) Incorporated by reference to Exhibit 10.1 of Amendment No. 2 to the
Registrant's Registration Statement on Form S-1 (File No. 333-60065) as
filed with the Commission on May 12, 1999.
<PAGE> 1
[FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN LETTERHEAD]
September 10, 1999
VIA EDGAR
Skechers U.S.A., Inc.
228 Manhattan Beach Blvd.
Manhattan Beach, CA 90266
RE: SKECHERS U.S.A., INC.
REGISTRATION STATEMENT ON FORM S-8
5,215,154 SHARES OF CLASS A COMMON STOCK ISSUABLE
UNDER THE AMENDED AND RESTATED 1998 STOCK OPTION,
DEFERRED STOCK AND RESTRICTED STOCK PLAN
Ladies and Gentlemen:
We are counsel to Skechers U.S.A., Inc., a Delaware corporation (the "Company").
We have assisted the Company in its preparation of a registration statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), registering 5,215,154 shares of the Company's
Class A Common Stock, $0.001 par value per share (the "Common Stock") issuable
under the Company's Amended and Restated 1998 Stock Option, Deferred Stock and
Restricted Stock Plan (the "Plan").
In rendering this opinion, we have considered such questions of law and examined
such statutes and regulations, corporate records, certificates and other
documents and have made such other examinations, searches and investigations as
we have considered necessary. In such examination, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as certified or as photocopies or telecopies. We have not made
an independent examination of the laws of any jurisdiction other than the State
of Delaware and the Federal Law of the United States, and we do not express or
imply any opinions in respect to the laws of any other jurisdiction. The
opinions expressed herein are based on legislation and regulations in effect on
the date hereof. We undertake no obligation to advise you of any changes that
may be brought to our attention after the date hereof.
Based on and subject to the foregoing, we are of the opinion that the Common
Stock, when issued under the Plan and the purchase price therefor has been paid
pursuant to the provisions of the Plan, will be duly and validly issued, fully
paid and nonassessable shares.
<PAGE> 2
Skechers U.S.A., Inc.
September 10, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not to be construed as an admission that
we are an "expert" within the meaning of the Securities Act or a person whose
consent is required to be filed with the Registration Statement under the
provisions of the Securities Act.
Very truly yours,
/s/ FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN
-----------------------------------------------
Freshman, Marantz, Orlanski, Cooper & Klein
a law corporation
<PAGE> 1
SKECHERS U.S.A., INC.
1998 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
STOCK OPTION AGREEMENT
NAME: ___________________
This AGREEMENT is made effective as of the ______ day of
______, _______ (the "Option Grant Date"), by and between Skechers U.S.A., Inc.,
a Delaware corporation (the "Company") and ________________ (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company has established
the 1998 Stock Option, Deferred Stock and Restricted Stock Plan (the "Plan")
effective as of January 15, 1998, and
WHEREAS, pursuant to the provisions of said Plan, the
Administrator of the Company, by action duly taken on ________________, _____,
granted to the Optionee an option or options (the "Option(s)") to purchase
shares of the Common Stock of the Company on the terms and conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. The Option(s). The Optionee may, at his/her option,
purchase all or any part of an aggregate of __________ shares of Common Stock
(the "Optioned Shares"), at the price of $_________ per share (the "Option
Price"), on the terms and conditions set forth herein.
2. Option Type; Exercise Dates and Exercise. Options intended
to qualify as Incentive Stock Options are designated by an "ISO" under the
category "Type." Options intended as separate Non-Qualified Stock Options are
designated by a "NQSO" under the category "Type." The Option(s) shall be
exercisable as to the specified number of Optioned Shares on and after the
"First" dates and on or before the "Last" dates set forth below:
1
<PAGE> 2
<TABLE>
<CAPTION>
Number of Shares Exercise Dates
Type ---------------- First Last
---- ----- ----
<S> <C> <C>
- -------------------- ---------------- ------------------------------
- -------------------- ---------------- ------------------------------
- -------------------- ---------------- ------------------------------
- -------------------- ---------------- ------------------------------
- -------------------- ---------------- ------------------------------
</TABLE>
Optionee acknowledges that he/she understands he/she has no
right whatsoever to exercise the Option(s) granted hereunder with respect to any
Optioned Shares covered by any installment until such installment accrues as
provided above. Optionee further understands that the Option(s) granted
hereunder shall expire and become unexercisable as provided in Section 5(c)
below.
3. Intentionally deleted.
4. Method of Exercise. This Option shall be deemed exercised
as to the shares to be purchased when written notice of such exercise has been
given to the Company at its principal business office by the Optionee with
respect to the Common Stock to be purchased. Such notice shall be accompanied by
full payment in cash or cash equivalents as determined by the Administrator. As
determined by the Administrator, in its sole discretion, payment in whole or
part may also be made (A) in the form of unrestricted Stock already owned by the
optionee, or, in the case of the exercise of a Non-Qualified Stock Option,
Restricted Stock subject to an Award hereunder (based, in each case, on the Fair
Market Value of the Stock on the date the option is exercised), (B) by
cancellation of any indebtedness owed by the Company to the optionee, (C) by a
full recourse promissory note executed by the optionee, (D) by requesting that
the Company withhold whole shares of Common Stock then issuable upon exercise of
the Stock Option (based on the Fair Market Value of the Stock on the date the
option is exercised), (E) in the event that a registration statement on Form S-8
has been filed with the SEC registering the Stock underlying the options, by
arrangement with a broker which is acceptable to the Administrator where payment
of the option price is made pursuant to an irrevocable direction to the broker
to deliver all or part of the proceeds from the sale of the shares underlying
the option to the Company, or (F) by any combination of the foregoing; provided,
however, that in the case of an Incentive Stock Option, the right to make
payment in the form of already owned shares may be authorized only at the time
of grant. Any payment in the form of Stock already owned by the Optionee may be
effected by use of an attestation form approved by the Administrator. If payment
of the option exercise price of a NQSO is made in whole or in part in the form
of Restricted Stock or Deferred Stock, the shares received upon the exercise of
such Option (to the extent of the number of shares of Restricted Stock or
Deferred Stock surrendered upon exercise of such Option) shall be restricted in
accordance with
2
<PAGE> 3
the original terms of the Restricted Stock or Deferred Stock award in question,
except that the Administrator may direct that such restrictions shall apply only
to that number of shares surrendered upon the exercise of such Option.
5. Governing Plan. This Agreement hereby incorporates by
reference the Plan and all of the terms and conditions of the Plan as heretofore
amended and as the same may be amended from time to time hereafter in accordance
with the terms thereof, but no such subsequent amendment shall adversely affect
the Optionee's rights under this Agreement and the Plan except as may be
required by applicable law. The Optionee expressly acknowledges and agrees that
the provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. The Optionee also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan,
a copy of which is attached hereto and by reference incorporated herein, and
represents that he/she is familiar with the terms and provisions of said Plan,
and hereby accepts this Agreement subject to all the terms and provisions of
said Plan.
(b) Agrees to accept as binding, conclusive and
final all decisions or interpretations of the Administrator upon any questions
arising under the Plan.
(c) Acknowledges that he/she is familiar with
Sections of the Plan regarding the exercise of the Option(s) and represents that
he/she understands that said Option(s) must be exercised on or before the
earliest of the following dates, whichever is applicable: (i) the "Last"
exercise date noted above in Section 2; (ii) the day prior to the fifth
anniversary, in certain circumstances, of the Option(s) Grant Date with respect
to Options granted as Incentive Stock Options pursuant to Subsection (5)(b) and
the day prior to the tenth anniversary of the Option(s) Grant Date with respect
to Options granted as Non-Qualified Stock Options; (iii) the effective date of a
sale or other disposition of all or substantially all of the stock or assets of
the Company, as provided in Section 10 of the Plan; (iv) the date which is the
earlier of (A) three months from the date of termination or (B) the expiration
of such Option's term (provided, however, that if the Option's term expires
within 30 days from the date of termination, then such Option shall expire 30
days from the date of termination) following the Optionee's termination of
directorship or consulting or other arrangement (unless extended) for any reason
other than death or disability as provided under Subsection 5(i) of the Plan; or
(v) the date that is one year following the Optionee's termination of
employment, directorship or consulting or other arrangement by reason of his/her
death, or the date that is one year following his/her termination of employment,
directorship or consulting or other arrangement by reason of disability,
whichever is applicable, as provided in Subsections 5(g) and 5(h) of the Plan.
(d) Acknowledges, understands and agrees that
the existence of the Plan and the execution of this Agreement are not sufficient
by themselves to cause any exercise of any Option(s) granted as an Incentive
Stock Option to qualify for favorable tax treatment through the application of
Section 422 of the Internal Revenue Code; that Optionee must, in order to so
qualify,
3
<PAGE> 4
individually meet by his own action all applicable requirements of Section 422,
including without limitation the following holding period and employment
requirements:
(1) holding period requirement: no
disposition of an Optioned Share may be made by Optionee
within two (2) years from the date of the granting of the
Option(s) nor within one (1) year after the transfer of such
Optioned Share to him/her, and
(2) employment requirement: at all times
during the period beginning on the date of the granting of the
Option(s) and ending on the day three (3) months before the
date of exercise, the Optionee must have been an employee of
the Company, its Parent, or a Subsidiary of the Company, or a
corporation or a parent or subsidiary of such corporation
issuing or assuming the Option(s) in a transaction to which
Section 425(a) of the Internal Revenue Code applies, except
where the termination of employment is by means of the
employee's disability, in which case said three (3) month
period may be extended to one (1) year, as provided under
Internal Revenue Code Section 422.
6. Representations and Warranties. As a condition to the
exercise of any portion of an Option, the Company may require the person
exercising such Option to make any representation and/or warranty to the
Company as may, in the judgment of counsel to the Company, be required under any
applicable law or regulation, including but not limited to a representation and
warranty that the shares are being acquired only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required under the Securities
Act of 1933 or any other applicable law, regulation or rule of any governmental
agency. Optionee hereby represents to the Company that each of the Options
evidenced hereby and the shares purchasable upon exercise thereof are being
acquired only for investment and without any present intention to sell or
distribute such securities.
7. Options Not Transferable. No Stock Option shall be
transferable by the Optionee other than by will or by the laws of descent and
distribution. Incentive Stock Options shall be exercisable, during the
Optionee's lifetime, only by the Optionee or, with respect to NonQualified Stock
Options, in accordance with the terms of a qualified domestic relations order.
8. No Enlargement of Employee Rights. Nothing in this
Agreement shall be construed to confer upon the Optionee (if an employee) any
right to continued employment with the Company, any Parent or Subsidiary, or to
restrict in any way the right of the Company, a Subsidiary or Parent, to
terminate his/her employment. Optionee acknowledges that in the absence of an
express written employment agreement to the contrary, Optionee's employment with
the Company may be terminated by the Company at any time, with or without cause.
9. Withholding of Taxes. Optionee authorizes the Company to
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of the Option(s) or the issuance of stock pursuant to the
exercise of such Option(s).
4
<PAGE> 5
10. Laws Applicable to Construction. This Agreement shall be
construed and enforced in accordance with the laws of the State of California.
11. Agreement Binding on Successors. The terms of this
Agreement shall be binding upon the executors, administrators, heirs,
successors, transferees and assignees of the Optionee.
12. Costs of Litigation. In any action at law or in equity to
enforce any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
13. Necessary Acts. The Optionee agrees to perform all acts
and execute and deliver any documents that may be reasonably necessary to carry
out the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
14. Counterparts. For convenience this Agreement may be
executed in any number of identical counterparts, each of which shall be deemed
a complete original in itself and may be introduced in evidence or used for any
other purpose without the production of any other counterparts.
15. Invalid Provisions. In the event that any provision of
this Agreement is found to be invalid or otherwise unenforceable under any
applicable law, such invalidity or unenforceability shall not be construed as
rendering any other provisions contained herein invalid or unenforceable, and
all such other provisions shall be given full force and effect to the same
extent as though the invalid and unenforceable provision was not contained
herein.
16. Limitation on Value of Optioned Shares. Optionee
acknowledges that the Plan provides that the aggregate fair market value
(determined as of the date hereof) of the shares of Common Stock to which
Options granted as Incentive Stock Options are exercisable for the first time by
Optionee during any calendar year under all incentive stock option plans of the
Company and any Subsidiary shall not exceed $100,000. It is understood and
agreed that should it be determined that an Option if granted as an Incentive
Stock Option hereunder would exceed such maximum, such Option shall be
considered granted as a Non-Qualified Stock Option to the extent, but only to
the extent of such excess. This limitation shall not apply to any option granted
as a NonQualified Stock Option.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company and the Optionee have executed
this Agreement effective as of the date first written hereinabove.
SKECHERS U.S.A., INC. OPTIONEE
By:________________________________ _________________________________
Name: (Signature)
Title:
_________________________________
(Print Name)
Address of Participant:
___________________________________ __________________________________
(Social Security)
___________________________________
By his or her signature below, the spouse of the Optionee, if
such Optionee be legally married as of the date of his execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of said Agreement and said Plan document.
__________________________________
Spouse
Dated:
__________________________________
By his or her signature below the Optionee represents that he
or she is not legally married as of the date of execution of this Agreement.
__________________________________
Optionee
Dated:
__________________________________
6
<PAGE> 1
EXHIBIT 10.3
SKECHERS U.S.A., INC.
1998 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
DEFERRED STOCK OR
RESTRICTED STOCK AWARD AGREEMENT
Participant Name:___________________
This AGREEMENT dated as of the _____ day of _______________, ____,
between SKECHERS U.S.A., INC., a California corporation (the "Company") and
________________ (the "Participant").
RECITALS
WHEREAS, the Company has established the 1998 Stock Option, Deferred
Stock and Restricted Stock Plan (the "Plan") effective as of January 15, 1998,
and
WHEREAS, pursuant to Section 2 of the Plan, the Administrator has
granted to the Participant by action duly taken on __________, ______,(the
"Award Date") a deferred stock award (the "Deferred Stock Award") and/or a
restricted stock award (the "Restricted Stock Award") based upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of services rendered and to be
rendered by the Participant and the mutual promises made herein, the mutual
benefits to be derived therefrom and other good and valuable consideration, the
parties agree as follows:
AGREEMENT
1. Grant. Subject to the terms of this Agreement, the Company
grants to the Participant the following:
(a) Deferred Stock Award:
________________ shares of Common Stock of the
Company (the "Deferred Stock")
Price (optional): $_____________ per share
Restricted Period: ____________________ to
__________________
Performance Objectives (optional):
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Other Restrictions:
(b) Restricted Stock Award:
________________ shares of Common Stock of the
Company (the "Restricted Stock")
Price (optional): $_____________ per share
Restricted Period: ____________________ to
____________________
Performance Objectives (optional):
Other Restrictions:
2. Deferred Stock.
(a) Restriction. Subject to the provisions of the Plan and
this Agreement, during the Restricted Period, Participant is not permitted to
sell, transfer, pledge or assign shares of Deferred Stock awarded hereunder.
(b) Voting Rights, Dividends and Certificates. Participant
shall generally not have the rights of a shareholder of the Company, including
the right to vote the shares during the Restricted Period; provided, however,
that dividends declared during the Restricted Period with respect to the number
of shares covered by the Deferred Stock Award shall be paid to Participant.
Certificates for shares of unrestricted Stock shall be delivered to Participant
promptly after, and only after, the Restricted Period expires without forfeiture
in respect of such shares of Deferred Stock, except as the Participant otherwise
determines.
(c) Termination. Subject to the provisions of Section 7 of the
Plan and this Agreement, upon termination of employment for any reason during
the Restricted Period, all shares still subject to restriction shall be
forfeited by Participant, and Participant shall only receive the amount, if any,
paid by Participant for such Deferred Stock, plus simple interest at 8% per
year.
(d) Expiration. At the expiration of the Restricted Period,
stock certificates in respect of such shares of Deferred Stock shall be
delivered to Participant, or his legal representative, in a number equal to the
shares of Stock covered by the Deferred Stock Award.
3. Restricted Stock.
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(a) Restriction. Subject to the provisions of the Plan,
Participant is not permitted to sell, transfer, pledge or assign the shares of
Restricted Stock during the Restricted Period.
(b) Certificates and Legend. Participant shall be issued a
stock certificate in respect of such shares of Restricted Stock; and such
certificate shall be registered in the name of Participant, and shall bear an
appropriate legend referring to the terms, conditions, and restrictions
applicable to such Award, substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the Skechers U.S.A., Inc., 1998 Stock Option, Deferred
Stock and Restricted Stock Plan and a Restricted Stock Award Agreement
entered into between the registered owner and Skechers U.S.A., Inc.
Copies of such Plan and Agreement are on file in the offices of
Skechers U.S.A., Inc."
The stock certificates evidencing such shares shall be held in
the custody of the Company until the restrictions thereon shall have lapsed, and
that, as a condition of any Restricted Stock award, Participant shall have
delivered a stock power, endorsed in blank, relating to the Stock covered by
such Award, a form of which is attached here to as Exhibit A.
(c) Voting Rights. Except as provided herein, Participant
shall have all of the rights of a shareholder of the Company, including the
right to vote the shares, and the right to receive any dividends thereon during
the Restricted Period.
(d) Termination. Subject to the provisions of this Agreement
and Section 7 of the Plan, upon termination of employment for any reason during
the Restricted Period, all shares still subject to restriction shall be
forfeited by Participant, and Participant shall only receive the amount, if any,
paid by the Participant for such Restricted Stock, plus simple interest at 8%
per year.
4. Governing Plan. This Agreement hereby incorporates by reference the
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect
Participant's rights under this Agreement and the Plan except as may be required
by applicable law. Participant expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. Participant also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of
which is attached hereto and by reference incorporated herein, and represents
that he/she is familiar with the terms and provisions of said Plan, and hereby
accepts this Agreement subject to all the terms and provisions of said Plan.
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(b) Agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions arising
under the Plan.
(c) Acknowledges that he/she is familiar with Sections of the
Plan regarding the issuance of the [DEFERRED STOCK AND/OR RESTRICTED STOCK].
5. Representations and Warranties. As a condition to the issuance of
any portion of shares of [RESTRICTED STOCK/DEFERRED STOCK] the Company may
require Participant receiving such shares to make any representation and/or
warranty to the Company as may, in the judgment of counsel to the Company, be
required under any applicable law or regulation, including but not limited to a
representation and warranty that the shares are being acquired only for
investment and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation is required
under the Securities Act of 1933 or any other applicable law, regulation or rule
of any governmental agency. Participant hereby represents to the Company that
the shares issuable pursuant to this Agreement are being acquired only for
investment and without any present intention to sell or distribute such
securities.
6. No Enlargement of Employee Rights. Nothing in this Agreement shall
be construed to confer upon Participant(if an employee) any right to continued
employment with the Company, any Parent or Subsidiary, or to restrict in any way
the right of the Company, a Subsidiary or Parent to terminate his/her
employment. Participant acknowledges that in the absence of an express written
employment agreement to the contrary, Participant's employment with the Company
may be terminated by the Company at any time, with or without cause.
7. Execution and Delivery. Participant acknowledges that Participant
shall have no rights with respect to any Award granted by the Company unless and
until Participant executes an Award Agreement and delivers it to the Company
within sixty days of such award (or such other period as the Participant may
specify after the Award Date).
8. Withholding of Taxes. Participant authorizes the Company to
withhold, in accordance with any applicable law, from any compensation payable
to him any taxes required to be withheld by federal, state or local law as a
result of the grant of Deferred Stock and/or Restricted Stock Award.
9. Laws Applicable to Construction. This Agreement shall be construed
and enforced in accordance with the laws of the State of California.
10. Agreement Binding on Successors. The terms of this Agreement shall
be binding upon the executors, administrators, heirs, successors, transferees
and assignees of the Participant.
11. Costs of Litigation. In any action at law or in equity to enforce
any of the provisions or rights under this Agreement or the Plan, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses end fees on any appeals),
and if the successful party recovers judgment in any
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such action or proceeding such costs, expenses and attorneys' fees shall be
included as part of the judgment.
12. Necessary Acts. The Participant agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
13. Counterparts. For convenience this Agreement may be executed in any
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
14. Invalid Provisions. In the event that any provision of this
Agreement is found to be invalid or otherwise unenforceable under any applicable
law, such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written. By Participant's execution of this Agreement,
Participant agrees to the terms and conditions hereof and of the Plan.
SKECHERS U.S.A., INC. PARTICIPANT
By: _________________________ _______________________
Name: (Signature)
Title:
_______________________
(Print Name)
_______________________
(Address)
_______________________
(City, State, Zip Code)
_______________________
(Social Security)
By his or her signature below, the spouse of the Participant, of such
Participant be legally married as of the date of his execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of said Agreement and said Plan document.
___________________________
Spouse
Dated:____________________
By his or her signature below the Participant represents that
he or she is not legally married as of the date of execution of this Agreement.
___________________________
Participant
Dated:____________________
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EXHIBIT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sell, assign and transfer unto:
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
_______________________________________) Shares of the _________________________
Stock of the ______________________________________________________ Corporation
standing in ___________________________ name(s) on the books of said Corporation
represented by certificate(s) No. _____________________________________________
herewith and do hereby irrevocably constitute and appoint ______________________
______________________________________________________________________ attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitute.
Dated _____________________ ___________________________________
___________________________________
THE SIGNATURE(S) ON THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) ON THE FACE
OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR
ANY CHANGE.
THE SIGNATURE(S) OF THE ASSIGNOR(S) MUST BE GUARANTEED HEREON.
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
Skechers U.S.A., Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Skechers U.S.A., Inc. of our reports dated March 12, 1999, except
as to Note 12, which is as of May 28, 1999, with respect to the consolidated
balance sheets of Skechers U.S.A., Inc. and subsidiary as of December 31, 1998
and 1997, and the related consolidated statements of earnings, stockholders'
equity, and cash flows and related schedule for each of the years in the
three-year period ended December 31, 1998, which reports appear in the
June 9, 1999 registration statement on Form S-1 of Skechers U.S.A., Inc.
/s/ KPMG LLP
Los Angeles, California
September 9, 1999
