<PAGE>
As filed with the Securities and Exchange Commission on June 12, 1996
Registration No. -__________
----------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
----------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
--------------------
STEVEN MADDEN, LTD.
(Exact name of registrant as specified in its charter)
New York 13-3588231
(State or other juris- (I.R.S. Employer
diction of organization) Identification No.)
52-16 Barnett Avenue, Long Island City, NY 11104
(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AGREEMENTS DATED FEBRUARY 3,1995, TO PURCHASE AN AGGREGATE OF
24,000 SHARES OF COMMON STOCK
STOCK OPTION AGREEMENT DATED MAY 15, 1995, TO
PURCHASE 90,000 SHARES OF COMMON STOCK
1995 Stock Plan
(Full title of the plan)
Steven Madden
President
Steven Madden, Ltd.
52-16 Barnett Avenue
Long Island City, NY 11104
--------------------------------------
(Name and address of agent for service)
(718) 446-1800
--------------------------------------
(Telephone number, including area code,
of agent for service)
continued overleaf
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to be offering price offering registration
to be registered registered(1) per Share price(2) fee
- ---------------- ------------- --------- -------- ---
<S> <C> <C> <C> <C>
Common Stock, 24,000 $ 3.41(2) $ 81,840 $ 28.22
par value $.0001 per share
Common Stock, 90,000 $ 3.50(2) $ 315,000 $ 108.61
par value $.0001 per share
Common Stock, 300,000 $7.60(3) $2,280,000 $ 786.14
par value $.0001 purchase
--------
Total $ 922.97
</TABLE>
- ----------------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended ("Securities Act"), this registration statement also covers an
indeterminate number of shares as may be required by reason of any
stock dividend, recapitalization, stock split, reorganization, merger,
consolidation, combination or exchange of shares or other similar
change affecting the stock.
(2) The proposed maximum offering price per share is based upon the
designated exercise prices as stated in the appropriate Stock Option
Agreements under which the options were granted.
(3) Estimated solely for the purpose of calculating the registration fee
based upon the average of bid and asked closing prices of the shares of
Common Stock on June 7, 1996 of $7.50 and $7.69 as reported on The
Nasdaq SmallCap Market.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents or portions thereof, as filed with the
Securities and Exchange Commission by Steven Madden, Ltd., a New York
Corporation (the "Corporation"), are incorporated herein by reference:
(1) Quarterly Report on Form 10-QSB for the quarter ended March 31,
1996.
(2) Annual Report on Form 10-KSB/A for the year ended December 31,
1995.
(3) The description of the Common Stock, par value $.0001 per share
("Common Stock"), of the Corporation contained in the Corporation registration
statement filed under Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), subsequent to the effective date of this Registration Statement and prior
to the filing of a post-effective amendment which indicate that all securities
offered have been sold or which registers all securities then remaining unsold,
shall be deemed to be incorporated by reference in the Registration Statement
and to be part thereof from the date of filing such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
3
<PAGE>
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Article IV of the By-Laws provides as follows:
"ARTICLE IV"
INDEMNIFICATION
Indemnification. The Corporation shall (a) indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense of
settlement of such action or suit, (b) indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was a director or officer of the Corporation,
or served at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, for expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with any such action, suit or proceeding, in each case to the fullest extent
permissible under the indemnification provisions of Section 722 of the New York
Business Corporation Law or any successor statute and (c) advance reasonable and
necessary expenses in connection with such actions or suits, and not seek
reimbursement of such expenses unless there is a specific determination that the
officer or director is not entitled to such indemnification. The foregoing right
of indemnification shall in no way be exclusive of any other rights of
indemnification to which any such persons may be entitled, under any by-law,
agreement, vote of shareholders or disinterested directors or otherwise, and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
Item 7. Exemption from Registration Claimed
Not Applicable.
4
<PAGE>
Item 8. Exhibits
The following is a complete list of exhibits filed as a part of this
registration statement:
Exhibit No. Document
4.1 Certificate of Incorporation of the Corporation
(Incorporated by reference to Corporation's
Registration Statement on Form SB-2 Registration No.
33-67162-NY)
4.2 Amendment to the Certificate of Incorporation of
the Corporation (Incorporated by reference to the
Corporations' Registration Statement on Form SB-2
Registration No. 33-67162-NY).
4.3 Consulting Agreement dated as of May 15, 1995
between the Corporation and Gary DeLuca.
4.4 Stock Option Agreement dated as of May 15, 1995
between the Corporation and Gary DeLuca.
4.5 Stock Option Agreement dated as of February 3, 1995
between the Corporation and John Madden.
4.6 Stock Option Agreement dated as of February 3, 1995
between the Corporation and Gary DeLuca.
4.7 The 1995 Stock Plan.
5.1 Opinion of Bernstein & Wasserman, LLP.
23.1 Consent of Bernstein & Wasserman, LLP (included in
Exhibit 5.1).
23.2 Consent of Richard A. Eisner & Company, LLP.
Item 9. Undertakings
A. The undersigned 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;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration
5
<PAGE>
statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement;
(iii) 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;
provided, however, the paragraphs (1)(i) and (1)(ii) do not apply if
the information is required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in the registration statement;
(2) That, for the purpose 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 be deemed to be the initial bona fide
offering thereof; and;
(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.
B. 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new 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.
C. 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 provisions described in item 6, 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 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 public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirement 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 Long Island City, New York, on the 10th day of June, 1996.
STEVEN MADDEN, LTD
By: /s/ Steven Madden
Steven Madden
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven Madden his true and lawful
attorney-in-fact and agent, for him and his name, place and stead, in any and
all capacities, to sign any and all amendments to this registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and to make
any and all state securities law or blue sky filings, granting unto said
attorney-in-fact and agent, to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Steven Madden Chairman of June 10, 1996
- ------------------------------ the Board, President
Steven Madden and Chief Executive
Officer
Director June , 1996
- -------------------------------
John L. Madden
/s/ Arvind Dharia Chief Financial and June 10, 1996
- ------------------------------- Accounting Officer
Arvind Dharia
</TABLE>
<PAGE>
STEVEN MADDEN, LTD
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Document
----------- --------
4.1 Certificate of Incorporation of the Corporation
(Incorporated by reference to Corporation's
Registration Statement on Form SB-2 Registration No.
33-67162-NY)
4.2 Amendment to the Certificate of Incorporation of
the Corporation (Incorporated by reference to the
Corporations' Registration Statement on Form SB-2
Registration No. 33-67162-NY).
4.3 Consulting Agreement dated as of May 15, 1995 between
the Corporation and Gary DeLuca.
4.4 Stock Option Agreement dated as of May 15, 1995
between the Corporation and Gary DeLuca.
4.5 Stock Option Agreement dated as of February 3, 1995
between the Corporation and John Madden.
4.6 Stock Option Agreement dated as of February 3, 1995
between the Corporation and Gary DeLuca.
4.7 The 1995 Stock Plan.
5.1 Opinion of Bernstein & Wasserman, LLP.
23.1 Consent of Bernstein & Wasserman, LLP (included in
Exhibit 5.1).
23.2 Consent of Richard A. Eisner & Company, LLP.
STEVEN MADDEN, LTD.
52-16 BARNETT AVENUE
LONG ISLAND CITY, NY 11104
May 15, 1995
Gary DeLuca
Re: Consulting Agreement
Dear Mr. DeLuca:
This Agreement is to confirm our understanding with respect to the
rendering by you (the "Consultant") of certain consulting services to Steven
Madden, Ltd. ("SML"), upon the terms and conditions set forth below.
1. Payment by SML. As full and total consideration for the services
provided by you to SML, SML shall (i) to pay to you for a period of twenty four
(24) months $11,250 on the fifteenth day of month commencing on the date hereof,
(ii) issue to you an option agreement to purchase 180,000 shares of Common Stock
of SML at an exercise price equal to $3.50 per share, 90,000 of such options
shall vest monthly over the next twelve months following the date hereof and
90,000 of such options shall vest monthly commencing on the thirteenth month
following the date hereof and ending on the eighteenth month following the date
hereof, in accordance with the terms of such option agreement, and (iii)
reimburse you for all reasonable out-of-pocket expenses incurred in connection
with Consultant's performance hereunder. This Agreement may be terminated at any
time by providing the other party hereto with 90 prior written notice.
2. Contractor's Obligations. Contractor agrees to provide SML with
such consulting services as requested by SML in connection with the the
Company's retail and wholesale operations, strategic acquisitions, joint
ventures, licensing alternatives and other corporate transactions.
3. Confidential Information Contractor acknowledges that all
information, documents, customer lists, patents, trademarks, copyrights,
materials, specifications, business strategies or any other ideas which directly
relate to the business of SML (referred to herein as "Confidential Information")
whether prepared or generated by Contractor, or SML pursuant to this Agreement
or otherwise in the possession or knowledge of Contractor prior to the date
hereof or coming into possession or knowledge of Contractor during the term of
this Agreement shall be the exclusive, confidential property of SML, except to
the extent expressly authorized in writing by SML for dissemination. From the
date of this Agreement through and including the twenty-fourth month following
the termination of this Agreement or any extension thereof (the "Restricted
Period"), Contractor shall not disclose any of such Confidential Information to
any third party without the prior written consent of SML and shall take all
reasonable steps and actions necessary to maintain the confidentiality of such
Confidential Information.
4. Status as Independent Contractor. Contractor's engagement pursuant
to this Agreement shall be as independent Contractor and not as an employee,
officer or other agent of SML. Neither party to this Agreement shall represent
or hold itself out to be the employer or employee of the other. Contractor
further acknowledges that the compensation provided herein is a gross amount of
compensation and that SML will not withhold from such compensation any amounts
respective income taxes, social security payments or any other payroll taxes.
All such income taxes and payments shall be made or provided for by Contractor
and SML shall have no responsibility or duties regarding such matters.
5. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law, and the parties irrevocably agree to submit any
controversy or claim arising out of or relating to this Agreement to binding
arbitration conducted in the State of New York, City of New York, in accordance
with the rules of the American Arbitration Association in New York City. This
Agreement may be executed simultaneously in counterparts, each of which will be
deemed to be an original but all of which together will constitute one and the
same instrument. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect. This Agreement
contains the entire understanding of the parties hereto with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties.
If this Agreement accurately reflects your understanding of our
agreement, kindly sign the enclosed copy of this letter on the space provided
below and return it to me at your earliest convenience.
Very truly yours,
/s/ STEVEN MADDEN, LTD
-------------------------
Steven Madden
President
Agreed to and Accepted as of
the Date First Written Above:
/s/ Gary DeLuca
- -------------------
Gary DeLuca
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") dated as of the 15th day of
May, 1995, by and between Steven Madden, Ltd., a New York corporation
maintaining a place of business at 52-16 Barnett Avenue, Long Island City 11104
(hereinafter referred to as the "Company") and Gary DeLuca, a member of the
Company's Board of Directors, whose address is c/o Dollar Time Group, Inc., 4601
Sheridan Street, Hollywood, FL 33021("Optionholder").
W I T N E S S E T H:
WHEREAS, the Company has agreed to grant to Gary DeLuca an option (the
"Option") to acquire shares of common stock (the "Common Shares") of the Company
(the "Option Shares") pursuant to a consulting agreement dated May 15, 1995.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and premises contained herein, the parties hereto agree, subject to the terms
and conditions herein, as follows:
1. The Option.
(a) Upon execution hereof, the Company grants to the
Optionholder the right and option to purchase one hundred eighty thousand
(180,000) Option Shares (adjusted to reflect any stock splits or reverse
splits), at a price equal to $ 3.50.
(b) The Option shall be exercisable for a period of three
(3) years from the date hereof.
(c) Of the one hundred eighty thousand (180,000) Option Shares
granted to Optionholder pursuant to Paragraph 1(a) hereof
(i) ninety thousand (90,000) shall vest monthly over the next twelve months
following the date hereof, and (ii) ninety thousand (90,000) shall vest monthly
comencing on the thirteenth month following the date hereof and ending on the
eighteenth month following the date hereof.
2. Method of Exercise. Each exercise of an option granted
hereunder, shall be by means of a notice of exercise (the "Notice of Exercise")
delivered to the Company specifying the number of Common Shares to be purchased.
Within five (5) days of receiving the Notice of Exercise, the Company shall
schedule a closing, which shall be no more than five (5) days later. At the
closing, the Company shall deliver the Common Shares to the Optionholder with
the appropriate transfer documents and Optionholder shall pay to the Company the
full purchase price of such exercised Common Shares either in cash or by check
payable to the order of "Steven Madden, Ltd." All Common Shares issued pursuant
to such option shall be fully paid and nonassessable and shall not be subject to
any liens.
The Company shall cooperate to the extent reasonably
possible with the Optionee in an exercise pursuant to which all or part of the
Optionee Shares will be sold simultaneously with the exercise of this Option
with the broker-dealer participating in such sale being irrevocably instructed
to remit the proceeds from the exercise of the Option to the Company upon
settlement of the sale of the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a written notice of exercise together
with advice of the delivery of an order to a broker to sell part or all of the
Option Shares, subject to such exercise notice and an irrevocable order to such
broker to deliver to the Company (or its transfer agent) sufficient proceeds
from the sale of such Option Shares to pay the exercise price and any
withholding taxes. All documentation and procedures to be followed in
connection with such a "cashless exercise" shall be approved in advance by the
Company, which approval shall be expeditiously provided and not unreasonably
withheld.
3. Stockholder Rights. Neither the Optionholder nor
any other person legally entitled to exercise the Option shall be entitled to
any of the rights or privileges of a stockholder of the Company with respect to
any common shares issuable upon any exercise of the Option unless and until the
Option is exercised.
4. No Waiver. The failure of any of the parties hereto
to enforce any provisions hereof on any occasion shall not be deemed to be a
waiver of any privilege given by any provision of this Agreement.
5. Entire Agreement. This Agreement constitutes the
entire agreement on the understanding of the parties hereto, and no amendment,
modification or waiver of any provision herein shall be effective, unless in
writing, executed by the party charged therewith.
6. Governing Law. This Agreement shall be construed
and interpreted and enforced in accordance with and shall be governed by the
laws of the State of New York.
7. Binding Effect. This Agreement shall be binding
upon, and inure to the benefit of the parties and their successors and assigns.
8. Paragraph Headings. The paragraph headings herein
have been inserted for convenience of reference only and shall no way modify or
restrict any of the terms of the provisions hereof.
9. Notices. Any notice required or permitted to be delivered
hereunder shall be deemed effective five (5) days after mailing when sent by
United States mail, postage prepaid, certified mail, return receipt requested,
addressed to Optionholder or the Company, as the case may be, at the addresses
set forth below:
If to Optionholder:
Mr. Gary DeLuca
c/o Dollar Time Group, Inc.
4601 Sheridan Street
Hollywood, FL 33021
If to the Company:
Steven Madden, Ltd.
52-16 Barnett Avenue
Long Island City, NY 11104
Attention: Steven Madden
With a copy to:
Alan N. Forman, Esq.
Bernstein & Wasserman
950 Third Avenue
New York, NY 10022
10. Unenforceability and Severability. If any provision
of this Agreement is found to be void or unenforceable by a court of competent
jurisdiction, then the remaining provisions of this Agreement shall
nevertheless be binding upon the parties with the same force and effect as
though the unenforceable part has been severed and deleted.
11. Counterparts. This Agreement may be executed in
counterparts, all of which shall be deemed to be duplicate
originals.
12. Further Assurances. The Company and Optionholder
agrees to execute and deliver to each other such documents as the other party
shall reasonably request to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 15th day of May, 1995.
STEVEN MADDEN, LTD.
By: /s/ Steven Madden
------------------------------
Name: Steven Madden
Title: President
/s/ Gary DeLuca
------------------------------
Gary DeLuca
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") dated as of the 3rd
day of February, 1995, by and between Steven Madden, Ltd., a New
York corporation maintaining a place of business at 540 Broadway,
New York, NY 10012 (hereinafter referred to as the "Company")
and John L. Madden, a member of the Board of Directors of the
Company, with an address at c/o GKN Securities, Mizner Park, 433
Plaza Real, Suite 245, Boca Raton, Florida 33432 ("Madden" or
"Optionholder").
W I T N E S S E T H:
WHEREAS, the Company has agreed to grant to Madden an option
(the "Option") to acquire shares of common stock (the "Common
Shares") of the Company (the "Option Shares") pursuant to the
terms herein.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and premises contained herein, the parties hereto
agree, subject to the terms and conditions herein, as follows:
1. The Option.
(a) Upon execution hereof, the Company grants to the
Optionholder the right and option to purchase twelve thousand
(12,000) Option Shares (adjusted to reflect any stock splits or
reverse splits), at a price of $3.41 per share.
(b) The Option shall be exercisable for a period of
four (4) years from the date of vesting.
(c) The Option Shares granted to Optionholder pursuant
to Paragraph 1(a) hereof shall vest upon execution of this
Agreement.
2. Method of Exercise. Each exercise of an
option granted hereunder, shall be by means of a notice of
exercise (the "Notice of Exercise") delivered to the Company spe-
cifying the number of Common Shares to be purchased. Within five
(5) days of receiving the Notice of Exercise, the Company shall
schedule a closing, which shall be no more than five (5) days
later. At the closing, the Company shall deliver the Common
Shares to the Optionholder with the appropriate transfer
documents and Optionholder shall pay to the Company the full
purchase price of such exercised Common Shares either in cash or
by check payable to the order of "Steven Madden, Ltd." All
Common Shares issued pursuant to such option shall be fully paid
and nonassessable and shall not be subject to any liens.
3. Stockholder Rights. Neither the Optionholder nor any
other person legally entitled to exercise the Option shall be
entitled to any of the rights or privileges of a stockholder of
the Company with respect to any common shares issuable upon any
exercise of the Option unless and until the Option is exercised.
4. No Waiver. The failure of any of the parties hereto to
enforce any provisions hereof on any occasion shall not be deemed
to be a waiver of any privilege given by any provision of this
Agreement.
2
5. Entire Agreement. This Agreement constitutes the
entire agreement on the understanding of the parties hereto, and
no amendment, modification or waiver of any provision herein
shall be effective, unless in writing, executed by the party
charged therewith.
6. Governing Law. This Agreement shall be construed and
interpreted and enforced in accordance with and shall be governed
by the laws of the State of New York.
7. Binding Effect. This Agreement shall be binding upon,
and inure to the benefit of the parties and their successors and
assigns.
8. Paragraph Headings. The paragraph headings herein have
been inserted for convenience of reference only and shall no way
modify or restrict any of the terms of the provisions hereof.
9. Notices. Any notice required or permitted to be
delivered hereunder shall be deemed effective five (5) days after
mailing when sent by United States mail, postage prepaid,
certified mail, return receipt requested, addressed to
Optionholder or the Company, as the case may be, at the addresses
set forth below:
If to Optionholder:
Mr. John L. Madden
c/o GKN Securities
Minzer Park
433 Plaza Real, Suite 245
Boca Raton, Florida 33432
If to the Company:
3
Steven Madden, Ltd.
51-16 Barnett Avenue
Long Island City, NY 11104
Attention: Steven Madden
With a copy to:
Steven F. Wasserman, Esq.
Bernstein & Wasserman
950 Third Avenue
New York, NY 10022
10. Unenforceability and Severability. If any provision of
this Agreement is found to be void or unenforceable by a court of
competent jurisdiction, then the remaining provisions of this
Agreement shall nevertheless be binding upon the parties with the
same force and effect as though the unenforceable part has been
severed and deleted.
11. Counterparts. This Agreement may be executed in
counterparts, all of which shall be deemed to be duplicate
originals.
12. Further Assurances. The Company and Optionholder
agrees to execute and deliver to each other such documents as the
other party shall reasonably request to effectuate the purposes
of this Agreement.
4
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this 3rd day of February, 1995.
STEVEN MADDEN, LTD.
By: /s/ Steven Madden
--------------------------
Name: Steven Madden
Title: President
/s/ John L. Madden
--------------------------
John L. Madden
5
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") dated as of the 3rd day of
February, 1995, by and between Steven Madden, Ltd., a New York corporation
maintaining a place of business at 540 Broadway, New York, NY 10012 (hereinafter
referred to as the "Company") and John L. Madden, a member of the Board of
Directors of the Company, with an address at c/o GKN Securities, Mizner Park,
433 Plaza Real, Suite 245, Boca Raton, Florida 33432 ("Madden" or
"Optionholder").
W I T N E S S E T H:
WHEREAS, the Company has agreed to grant to Madden an option (the
"Option") to acquire shares of common stock (the "Common Shares") of the Company
(the "Option Shares") pursuant to the terms herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and premises contained herein, the parties hereto agree, subject to the terms
and conditions herein, as follows:
1. The Option.
(a) Upon execution hereof, the Company grants to the
Optionholder the right and option to purchase twelve thousand (12,000) Option
Shares (adjusted to reflect any stock splits or reverse splits), at a price of
$3.41 per share.
(b) The Option shall be exercisable for a period of four (4)
years from the date of vesting.
(c) The Option Shares granted to Optionholder pursuant to
Paragraph 1(a) hereof shall vest upon execution of this Agreement.
2. Method of Exercise. Each exercise of an option granted
hereunder, shall be by means of a notice of exercise (the "Notice of Exercise")
delivered to the Company specifying the number of Common Shares to be purchased.
Within five (5) days of receiving the Notice of Exercise, the Company shall
schedule a closing, which shall be no more than five (5) days later. At the
closing, the Company shall deliver the Common Shares to the Optionholder with
the appropriate transfer documents and Optionholder shall pay to the Company the
full purchase price of such exercised Common Shares either in cash or by check
payable to the order of "Steven Madden, Ltd." All Common Shares issued pursuant
to such option shall be fully paid and nonassessable and shall not be subject to
any liens.
3. Stockholder Rights. Neither the Optionholder nor any other
person legally entitled to exercise the Option shall be entitled to any of the
rights or privileges of a stockholder of the Company with respect to any common
shares issuable upon any exercise of the Option unless and until the Option is
exercised.
4. No Waiver. The failure of any of the parties hereto to
enforce any provisions hereof on any occasion shall not be deemed to be a waiver
of any privilege given by any provision of this Agreement.
2
5. Entire Agreement. This Agreement constitutes the entire
agreement on the understanding of the parties hereto, and no amendment,
modification or waiver of any provision herein shall be effective, unless in
writing, executed by the party charged therewith.
6. Governing Law. This Agreement shall be construed and
interpreted and enforced in accordance with and shall be governed by the laws of
the State of New York.
7. Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of the parties and their successors and assigns.
8. Paragraph Headings. The paragraph headings herein have been
inserted for convenience of reference only and shall no way modify or restrict
any of the terms of the provisions hereof.
9. Notices. Any notice required or permitted to be delivered hereunder
shall be deemed effective five (5) days after mailing when sent by United States
mail, postage prepaid, certified mail, return receipt requested, addressed to
Optionholder or the Company, as the case may be, at the addresses set forth
below:
If to Optionholder:
Mr. Gary DeLuca
c/o Dollar Time Group, Inc.
4601 Sheridan Street
Hollywood, Florida 33021
If to the Company:
Steven Madden, Ltd.
3
51-16 Barnett Avenue
Long Island City, NY 11104
Attention: Steven Madden
With a copy to:
Steven F. Wasserman, Esq.
Bernstein & Wasserman
950 Third Avenue
New York, NY 10022
10. Unenforceability and Severability. If any provision of this
Agreement is found to be void or unenforceable by a court of competent
jurisdiction, then the remaining provisions of this Agreement shall nevertheless
be binding upon the parties with the same force and effect as though the
unenforceable part has been severed and deleted.
11. Counterparts. This Agreement may be executed in counterparts,
all of which shall be deemed to be duplicate originals.
12. Further Assurances. The Company and Optionholder agrees to
execute and deliver to each other such documents as the other party shall
reasonably request to effectuate the purposes of this Agreement.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 3rd day of February, 1995.
STEVEN MADDEN, LTD.
By: /s/ Steven Madden
--------------------------
Name: Steven Madden
Title: President
/s/ Gary DeLuca
------------------------------
Gary DeLuca
5
THE 1995 STOCK PLAN
1. Purposes. The 1995 Stock Plan (the "Plan") is intended to promote
the interests of Steven Madden, Ltd. (the "Company") and its stockholders and
the security of its employees and other key employees who are in a position to
contribute substantially to the progress to seek such results; to closely align
the interests of such employees with the interests of stockholders of the
Company by linking rewards hereunder to stock performance; to retain in the
Company the benefits of the services of such employees; and to attract to the
service of the Company new key employees of high quality.
2. Definitions. In addition to terms defined in Sections 1 and 8 of
the Plan, the following terms used in the Plan shallave the meanings set forth
below:
(a) "Award" shall mean any Option, LSAR, Restricted Stock,
Deferred Stock, Shares granted as a bonus or in lieu of other awards,
Dividend Equivalent, or Other Share-Based Award, or any other right or
interest granted to a Participant under the Plan.
(b) "Change in Control" shall have the meaning specified in
Section 8(b).
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time. References to any provisions of the Code
shall be deemed to include regulations and proposed regulations
thereunder and successor provisions and regulations thereto.
(d) "Committee" shall mean the Compensation Committee of the
Board of Directors, or such other Committee as may be designated by the
Board of Directors, subject to of requirements of Section 3.
(e) "Covered Employee" shall mean a person who is an executive
officer deemed by the Committee, prior to commencement of any fiscal
year, as reasonably likely to be a "named executive officer" in the
Summary Compensation Table of the Company's proxy statement reporting
compensation paid to such person for such fiscal year and whose
compensation over $1 million would not be deductible under Section
162(m) of the Code, but for the provisions of the Plan and any other
"qualified performance-based compensation" plan (as defined under
Section 162(m) of the Code) of the Company; provided, however, that the
Committee may determine that a Participant has ceased to be a Covered
Employee prior to payout of any Award.
(f) "Deferred Stock" shall mean a right, granted to a
Participant under Section 6(e), to receive Shares at the end of a
specified deferral period.
(g) "Directors," "Board of Directors" and "Board" shall mean
the Board of Directors of the Company as constituted from time to time.
(h) "Dividend Equivalent" shall mean a right, granted to a
Participant under Section 6(g), to receive cash, Shares, other Awards,
or other property equal in value to dividends paid with respect to a
specified number of Shares or other periodic payments. Dividend
Equivalents may be awarded on a free-standing basis or in connection
with another Award, and may be paid currently or on a deferred basis.
(i) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(j) "Fair Market Value" of a Share shall be the mean average
of the bid and asked prices of a Share on the NASDAQ Small-Cap Market
(or, if the Common Stock is not listed for trading on the NASDAQ
Small-Cap Market, such principal exchange system on which such Shares
are then listed or quoted) on a specified date, or the last preceding
date on which such prices were reported; or if such Shares are not then
listed on any exchange or quoted in the NASDAQ Small-Cap Market, then
the Fair Market Value of such Shares shall be the average of the bid
and asked prices of the Shares in the over-the-counter market on the
specified date or the last preceding date on which such bid and asked
prices were quoted; or if no such prices are available, the Fair Market
Value shall be determined by the Committee in its discretion using any
reasonable method.
(k) "Incentive Stock Option" or "ISO" shall mean an incentive
stock option within the meaning of Section 422 of the Code.
(l) "LSAR" or "Limited Stock Appreciation Right" shall mean
the right granted to a Participant under Section 6(c) to be paid an
amount, in the event of a Change in Control, measured by the
appreciation in the Fair Market Value of a Share from the date of grant
to the date of exercise of the right, with payment to be made in cash,
Shares, or other Awards as specified in the Award or determined by the
Committee.
(m) "Non-Incentive Stock Option" shall mean an Option which is
not an ISO.
(n) "Option" shall mean an option of the purchase of Shares
granted under Section 6(b) of the Plan, which will be either an ISO or
Non-Incentive Stock Option.
(o) "Other Share-Based Award" shall mean a right, granted to
Participant under Section 6(h), that relates to or is valued by
reference to Shares, other Awards relating to Shares, or other
property.
2
(p) "Participant" shall mean a person who, as an executive
officer or other key employee of the Company or a Subsidiary, is
selected by the Committee to receive an Award under the Plan.
(q) "Restricted Stock" shall mean an award of Shares to a
Participant under Section 6(d) that may be subject to certain
restrictions and to a risk of forfeiture.
(r) "Rule 16b-3" shall mean Rule 16b-3, as from time to time
in effect and applicable to the Plan and Participants, promulgated by
the Securities and Exchange Commission under Section 16 of the Exchange
Act.
(s) "Share" shall mean a share of Common Stock, par value
$.0001 per share, of the Company, and such other securities as may be
substituted or resubstituted for Shares pursuant to Section 9.
3. Administration.
(a) Authority of the Committee. The Plan shall be administered
by the Committee, which shall consist of not less than two Directors
designated by the Board of Directors. Directors who serve on the
Committee shall be "disinterested persons" within the meaning of Rule
16b-3 and shall be "outside directors" within the meaning of Section
162(m) of the Code (including persons deemed to be outside directors
pursuant to any transitional rules adopted by the Internal Revenue
Service). The Board of Directors may fill any vacancy in the Committee.
The Secretary of the Company shall be ex officio the Secretary of the
Committee. Subject to the terms of the Plan, the Committee shall have
full authority in its sole discretion to administer the Plan,
including, but without limiting the generality of the foregoing,
determining the persons to whom Awards shall be granted; the type of
Award and the number of Shares to which each Award shall relate; the
time of such grants; the terms of payment, if any relating to any
Award; the dates on which Awards may be exercised or the risk of
forfeiture or deferral period relating to Awards shall lapse or
terminate, and the acceleration of any such dates; the expiration date
of Awards; whether, to what extent, and under what circumstances and
Award may be settled, or the exercise price of an Award may be paid, in
cash, Shares, other Awards, or other property; and all other terms and
conditions of Awards. The Committee shall also have full power, in its
sole discretion, to interpret the Plan, and to prescribe, amend, and
rescind rules and regulations relating thereto and agreements relating
to Awards, and to make all other determinations under the Plan, subject
to the terms of the Plan. Decisions of the Committee with respect to
the administration and interpretation of the Plan shall be final,
conclusive, and binding upon all persons interested in the Plan.
(b) Manner of Exercise of Committee Authority. Unless
authority is
3
specifically reserved to the Board of Directors under the terms
of the Plan, the Company's Certificate of Incorporation or
Bylaws, or applicable law, the Committee shall have sole discretion in
exercising authority under the Plan. The Committee shall select one of
its members as its chairman and shall hold meetings at such times and
places as it shall deem advisable. Any action of the Committee shall be
taken with the approval of majority of its members present and voting
at a meeting duly called and held at which a quorum is present. A
majority of the Committee's members shall constitute a quorum. Any
action may be taken by a written instrument signed by all members of
the Committee and such action shall be fully as effective as if taken
by a majority of the members at a meeting duly called and held. The
Committee may delegate to officers or managers of the Company or any
Subsidiary of the Company the authority, subject to such terms as the
Committee shall determine, to perform administrative functions and,
with respect to Participants not subject to Section 16 of the Exchange
Act, to perform such other functions as the Committee may determine, to
the extent permitted under Rule 16b-3 and applicable law.
(c) Limitation of Liability. Each member of the Committee
shall be entitled to, in good faith, rely or act upon any report or
other information furnished to him by any officer or other employee of
the Company or any subsidiary, the Company's independent certified
public accountants, or any executive compensation consultant, legal
counsel or other professional retained by the Company to assist in the
administration of the Plan. No member of the Committee, nor any officer
or employee of the Company or a Subsidiary acting on behalf of the
Committee, shall be personally liable for any action, determination, or
interpretation taken or made in good faith with respect to the Plan,
and such persons shall, to the extent permitted by law, be fully
indemnified and protected by the Company with respect to any such
action, determination, or interpretation.
4. Shares Subject to the Plan.
(a) Subject to adjustment as provided in Section 9 hereof, the
total number or Shares reserved for delivery to Participants in
connection with Awards under the Plan shall be 330,000 shares.
(b) No Award (including an Award that may only be settled in
cash) may be granted if the number of Shares to which such Award
relates, when added to the number of Shares previously delivered under
the Plan and the number of Shares to which other then-outstanding
Awards relate, exceeds the number of Shares deemed available under this
Section 4. The Committee may adopt procedures for the counting of
Shares under this Section 4 to ensure appropriate counting, avoid
double counting (in the case of tandem or substitute Awards), and
provide for adjustments in any case in which the number of Shares
actually delivered differs from the number of Shares previously counted
in connection with an Award or Other Plan Award. Any Shares
4
delivered pursuant to an Award may consist, in whole or in art, of
authorized and unissued Shares or treasury Shares.
5. Persons Eligible; Annual Limitations. Persons eligible to receive
Awards shall be the executive officers and other key employees of the Company
and/or any of its Subsidiaries (including officers or key employees who may be
members of the Board of Directors). During any calendar year, no Participant may
be granted, under the Plan, Options or other Awards under Section 6(b) through
6(h) relating to more than 75,000 Shares and in no event shall exceed at the
time of grant an amount equal to $100,000, subject to adjustment in accordance
with Section 9 hereof. With respect to any Award that may be settled in cash, no
Participant may be paid during any calendar year an amount that exceeds the
greater of the Fair Market Value of the number of Shares set forth in the
preceding sentence at the date of grant or the date of settlement of the Award
(this limitation is separate and not affected by the number of Awards granted
during such calendar year subject to the limitation in the preceding sentence).
6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and conditions
set forth in this Section 6 and otherwise in accordance with the Plan.
In addition, the committee may impose on any Award or the exercise
thereof, at the date of grant or thereafter (subject to Section 10(e)),
such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including
terms requiring forfeiture of Awards in the event of termination of
employment by the Participant. Except as provided in Sections 6(f),
6(h), 7(a), or 7(b), or to the extent necessary to comply with
requirements of the New York Business Corporation Law that lawful
consideration be paid for Shares, only services may be required as
consideration for the grant (but not the exercise) of any Award.
(b) Options. The Committee is authorized to grant Options
to Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per Share
purchasable under an Option shall be determined by
the Committee; provided, however, that, except as
provided in section 7(a), such exercise price shall
be not less than the Fair Market Value of a Share on
the date of grant of such Option and, in all cases,
shall be not less than par value of a Share.
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be
exercised in whole or in part, the methods by which
such exercise price may be paid or deemed to be paid,
the form of such payment, including, without
limitation, cash, Shares, other Awards or awards
granted under other Company plans, or
6
other property (including notes or other contractual
obligations of Participants to make payment on a
deferred basis, such as through "cashless exercise"
arrangements, to the extent permitted by applicable
law), and the methods by which Shares will be
delivered or deemed to be delivered to Participants.
(iii) ISOs. The terms of any ISO granted under the Plan
shall comply in all respects with the provisions of
Section 422 of the Code, including but not limited to
the requirement that no ISO shall be granted more
than ten years after the effective date of the Plan.
Anything in the Plan to the contrary notwithstanding,
no provision of the Plan relating to ISOs shall be
interpreted, amended, or altered, nor shall any
discretion or authority granted under the Plan be
exercised, so as to disqualify either the Plan or any
ISO under Section 422 of the Code.
(iv) Restriction on Sale or Disposition of Shares Subject
to Non-ISOs. Upon the grant of an Option which is not
an ISO, the Committee shall specify a period of time
during which the sale or other disposition of Shares
acquired pursuant to such Option shall be restricted,
which the sale or other disposition of shares
acquired pursuant to such Option shall be restricted,
which period shall be not less than six months nor
more than three years after exercise of an Option
("Restricted Period"). In the case of Shares
purchased upon the exercise of non-ISO:
(A) During the Restricted Period, such Shares may not
be sold, transferred, pledged, assigned or
otherwise disposed by the holder thereof except
that the optionee may offer the Shares to the
Company and the Company may purchase up to all
the Shares offered, in its sole discretion,
during such period at a price equal to the
exercise price of the Shares. Furthermore, upon
termination of optionee's employment with the
Company during the Restricted Period for reasons
other than death, disability or retirement due to
advanced age, such optionee shall be required,
upon written request of the Company made during
the Restricted Period, to sell to the Company up
to all of the Shares purchased at the exercise
price. If the Company does not require such sale,
the optionee shall continue to hold such shares
subject to the restrictions imposed by this
clause (A).
(B) After the end of the Restricted Period, in the
event the holder of such Shares desires to sell
such Shares, such holder shall first offer by
written notice such Shares to the Company at the
Fair Market Value thereof on the date of such
notice and the Company
7
shall have until the close of business on the
seventh business day after receipt of such offer
to accept it in whole or in part by written
notice thereof. If the Company shall elect to
purchase such Shares it shall pay cash therefor
on the fifth business day following the date of
the notice of the acceptance of the offer. If the
Company shall not elect to purchase such Shares,
the offering holder shall then be free to sell
all Shares offered to and not acquired by the
Company for a period of 30 days beginning on the
first business day after the date the Company
gives notice that it does not elect to purchase
such Shares or after expiration of the period
within which the Company can elect to purchase,
whichever is sooner. Upon the expiration of such
30 day period, the holder must again offer the
Shares to the Company as aforesaid before any
sale thereof. The restrictions contained in this
clause (B) shall be applicable to persons who
succeed, by will or by reason of the laws of
descent and distribution, to the rights of
holders of non-ISO Options or Shares acquired
upon exercise thereof.
(v) Right of First Refusal Concerning Shares Subject to
ISOs. The right of first refusal granted to the
Company with respect to the sale or disposition of
Shares acquired pursuant to the exercise of a non-ISO
set forth in Clause (B) of subparagraph (iv) above
also shall be applicable to Shares acquired pursuant
to the exercise of ISOs from the date of exercise of
such Options. These restrictions shall also be
applicable to persons who succeed by will or by
reason of the laws of descent and distribution to the
rights of the holders of ISO Options or shares
acquired upon exercise thereof.
(vi) Exercise Price and Term for 10% Stockholders. The
exercise price of an ISO granted to a person
possessing more than 10% of the total combined voting
power of all shares of stock of the Company or a
parent or subsidiary of the Company ("10%
Stockholder") shall in no event be less than 110% of
the Fair Market Value of the shares of the Common
Stock at the time the ISO is granted. The term of an
ISO granted to a 10% Stockholder shall not exceed
five years from the date of grant.
(c) Limited Stock Appreciation Rights. The Committee
is authorized to grant LSARs to Participants on the following terms
and conditions:
(i) Grant. The Committee, in connection with any Option,
either at the time the Option is granted or any other
time thereafter while the Option is outstanding, may
grant to any optionee an LSAR entitling the holder,
in the event of a Change in Control of the Company,
to receive from the Company at any time during the
60-day period following such Change in Control, in
lieu of exercising such Option, an amount of cash
equal to the excess of (x) the Fair Market Value of
the number of shares as to which the LSAR is
exercised (determined as of the effective date of the
Change in Control) over (y) the exercise price, times
the number of shares as to which such LSAR is
exercised.
(ii) Payment. An optionee who exercise an LSAR will
receive payment of the amount of cash due within 20
business days after such exercise.
(iii) Conditions to Exercise. An LSAR will be exercisable
only when the underlying Option is otherwise
exercisable and will be transferable only when the
Option is otherwise transferable. In the event of the
death of an optionee, an LSAR may be exercised
following a Change in Control only to the extent the
related Option may be exercised by such person's
executor or legal representative. In addition, in the
case of an ISO, any exercise of an LSAR can only be
made when the Fair Market Value of the Shares subject
to the ISO exceeds the exercise price of such Option.
(iv) Termination. Upon the exercise of an Option pursuant
to the Plan, the LSAR relating to the Shares covered
by such Option shall terminate. Upon the exercise of
an LSAR, the related Option, to the extent the number
of Shares with respect to which such LSAR was
exercised, shall terminate. If any Option shall
expire or terminate for any reason without having
been exercised in full, the LSAR with respect thereto
shall terminate.
(d) Restricted Stock. The Committee is authorized to
grant Restricted Stock to Participants on the following terms and
conditions:
(i) Grant and Restrictions. Restricted Stock shall be
subject to such restrictions on transferability and
other restrictions, if any, as the Committee may
impose, which restrictions may lapse separately or
incombination at such time, under such circumstances,
in such installments, or otherwise, as the Committee
may determine. Except to the extent restricted under
the terms of the Plan and any Award agreement
relating to the Restricted Stock, a Participant
granted Restricted Stock shall have all of the rights
of a stockholder including, without limitation, the
right to vote Restricted Stock and the right to
receive dividends thereon.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment during the
applicable restriction period, Restricted Stock that
is at that time subject to restrictions shall be
forfeited and reacquired by the Company; provided,
however, that the
8
Committee may provide, by rule or regulation or in
any Award agreement, or may determine in any
individual case, that restrictions or forfeiture
conditions relating to Restricted Stock will be
waived in whole or in part in the event of
terminations resulting from specified causes.
(iii) Certificates of Shares. Restricted Stock granted
under the Plan may be evidenced in such manner as the
Committee shall determine. If certificates
representing Restricted Stock are registered in the
name of the Participant, such certificates shall bear
an appropriate legend referring to the terms,
conditions, and restrictions applicable to such
Restricted Stock, the Company shall retain physical
possession of the Certificate, and the Participant
shall have delivered a stock power to the Company,
endorsed in blank, relating to the Restricted Stock.
(iv) Dividends. Dividends paid on Restricted Stock shall
be either paid at the dividend payment date in cash
or in unrestricted Shares having a Fair Market Value
equal to the amount of such dividends, or the payment
of such dividends all be deferred and/or the amount
or value thereof automatically reinvested in
additional Restricted Stock, other Awards, or other
investment vehicles, as the Committee shall determine
or permit the Participant to elect. Shares
distributed in connection with a stock split or stock
dividend, and other property distributed as a
dividend, shall be subject to restrictions and a risk
of forfeiture to the same extent as the Restricted
Stock with respect to which such Shares or other
property has been distributed.
(e) Deferred Stock. The Committee is authorized to grant
Deferred Stock to Participants, subject to the
following terms and conditions:
(i) Award and Restrictions. Delivery of Shares will occur
upon expiration of the deferral period specified for
an Award of Deferred Stock by the Committee (or, if
permitted by the Committee, as elected by the
Participant). In addition, Deferred Stock shall be
subject to such restrictions as the Committee may
impose, if any, which restrictions may lapse at the
expiration of the deferral period or at earlier
specified times, separately or in combination, in
installments, or otherwise, as the Committee may
determine.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment (as
determined under criteria established by the
Committee) during the applicable deferral period or
portion thereof to which forfeiture conditions apply
(as provided in the Award agreement evidencing the
Deferred Stock), all Deferred stock that is at that
time subject to deferral (other than a deferral at
the election of the
9
Participant) shall be forfeited; provided, however,
that the Committee may provide, by rule or
regulation or in any Award agreement, or may
determine in any individual case, that restrictions
or forfeiture conditions relating to Deferred Stock
will be waived in whole or in part in the event of
terminations resulting from specified causes, and
the committee may in other cases waive in whole or
in part the forfeiture of Deferred Stock.
(f) Bonus Shares and Awards in Lieu of Cash Obligations. The
Committee is authorized to grant Shares as a bonus, or to grant Shares
or other Awards in lieu of Company obligations to pay cash under other
plans or compensatory arrangements; provided, however, that, in the
case of Participants subject to Section 16 of the Exchange Act and
unless otherwise determined by the Board of Directors, such cash amount
are determined under such other plans in a manner that complies with
applicable requirements of Rule 16b-3 so that the acquisition of Shares
or Awards hereunder shall be exempt from Section 16(b) liability.
Shares or Awards granted hereunder shall be subject to such other terms
as shall be determined by the Committee.
(g) Dividend Equivalents. The Committee is authorized to grant
Dividend Equivalents to Participants. The Committee may provide that
Dividend Equivalents shall be paid or distributed when accrued or shall
be deemed to have been reinvested in additional Shares, Awards, or
other investment vehicles as the Committee may specify.
(h) Other Share-Based Awards. The Committee is authorized,
subject to limitations under applicable law, to grant to Participants
such other Awards that may be denominated or payable in, valued in
whole or in party by reference to, or otherwise based on, or related
to, Shares, as deemed by the Committee to be consistent with the
purposes of the Plan, including, without limitation, convertible or
exchangeable debentures or other debt securities, other rights
convertible or exchangeable into Shares, purchase rights for Shares,
Awards with value and payment contingent upon performance of the
Company or any other factors designated by the Committee, and Awards
valued by reference to the book value of Shares or the value of
securities of or the performance of specified Subsidiaries. The
Committee shall determine the terms and conditions of such Awards.
Awards for which Participants are required to pay consideration, and
Shares delivered pursuant to an Award in the nature of a purchase right
granted under this Section 6(h) shall be purchased for such
consideration, paid for at such times, by such methods, and in such
forms, including, without limitation, cash, Shares, other Awards, or
other property, as the Committee shall determine. Cash awards, as an
element of or supplement to any other Awards under the Plan, shall also
be authorized pursuant to this Section 6(h).
10
7. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional, Tandem, and Substitute Awards.
Awards granted under the Plan may, in the discretion of the Committee,
be granted either alone or in addition to, in tandem with, or in
substitution for, any other Award granted under the Plan or Other Plan
Awards, any Subsidiary, or any business entity to be acquired by the
Company or a Subsidiary, or any other right of a Participant to receive
payment from the Company or any Subsidiary. Awards granted in addition
to or in tandem with other Awards or Other Plan Awards may be granted
either as of the same time as or a different time from the grant of
such other Awards or Other Plan Awards. The per share exercise price of
any Option or purchase price of any other Award conferring a right to
purchase Shares:
(i) Granted in substitution for an outstanding Award or
Other Plan Award shall be not less than the lessor of
the Fair Market Value of a Share at the date such
substitute Award is granted or such Fair Market Value
at that date reduced to reflect the Fair Market Value
at that date of the Award or Other Plan Award
required to be surrendered by the Participant as a
condition to receipt of the substitute Award; or
(ii) Restoratively granted in tandem with an outstanding
Award or Other Plan Award shall be not less than the
lesser of the Fair Market Value of a Share at the
date of grant of the later Award or at the date of
grant of the earlier Award or Other Plan Award.
(b) Exchange or Buyout Provisions. The Committee may at any
time offer to exchange or buy out any previously granted Award for a
payment in cash, Shares, other Awards (subject to section 7(a)), or
other property based on such terms and conditions as the Committee
shall determine and communicate to the Participant at the time that
such offer is made.
(c) Term or Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided, however, that
in no event shall the term of any ISO or an LSAR granted in tandem
therewith exceed a period of ten years from the date of its grant (or
such shorter period as may be applicable under Section 422 of the Code.
(d) Form of Payment Under Awards. Subject to the terms of the
Plan and any applicable Award Agreement, payments to be made by the
Company or a subsidiary upon the grant or exercise of an Award may be
made in such forms as the Committee shall determine, including, without
limitation, cash, Shares, other Awards, or other property, and may be
made in a single payment or transfer, in installments, or on a deferred
basis. Such payments may include, without limitation, provisions for
the payment or crediting of reasonable interest on installment or
deferred payments or the
11
grant or crediting of Dividend Equivalents in respect of installment or
deferred payments denominated in Shares.
(e) Rule 16b-3 Compliance.
(i) Six-Month Holding Period. Unless a Participant could
otherwise exercise a derivative security or dispose of
Shares delivered upon exercise of a derivative security
granted under the Plan without incurring liability under
Section 16(b) of the Exchange Act, (i) Shares delivered
under the Plan other than upon exercise or conversion of a
derivative security granted under the Plan shall be held
for at least six months from the date of acquisition, and
(ii), with respect to derivative security to the date of
disposition of the derivative security (other than upon
exercise or conversion) or its underlying equity security.
(ii) Reformation To Comply with Exchange Act Rules. It is the
intent of the Company that this Plan comply in all
respects with applicable provisions of Rule 16b-3 or Rule
16a-1(c)(3) under the Exchange Act in connection with any
grant of Awards to other transaction by a Participant who
is subject to Section 16 of the Exchange Act (except for
transactions exempted under alternative Exchange Act Rules
or acknowledged in writing to be non-exempt by such
Participant). Accordingly, if any provision of this Plan
or any Award agreement relating to an Award does not
comply with the requirements of Rule 16b-3 or Rule
16a-1(c)(3) so that such Participant shall avoid liability
under Section 16(b).
(f) Installment Payment Arrangements. Upon grant or exercise
of an Award, the Committee may, in its discretion, permit the payment
of any exercise or purchase price or other consideration, in whole or
in part, in installments, subject to the terms of this Section 7(f).
Each such installment payment arrangement will be evidenced by a
promissory note, the terms and conditions of which shall be determined
by the Committee subject to the following: (a) the maximum term of any
note shall be 15 years from date of the original payment obligation,
(b) the minimum interest rate with respect to amounts loaned hereunder
shall be such rate as may be determined by the Committee from time to
time, but in no event shall such rate be less than the rate required to
avoid imputation of interest (or original issue discount) under Section
483 or any similar provision of the Code, (c) the note shall be secured
as and to the extent determined by the Committee, but the employee
shall be personally liable despite any security pledged, (d) the note
may be prepaid in full or in part at any time without penalty, and (e)
the unpaid principal and interest of any note will become due and
payable on the earlier to occur of the sale of any Shares in connection
with which the payment obligation was incurred and 30 days after the
Participant's employment with
12
the Company terminates (unless the Committee, in its discretion,
extends the note for an additional period). In addition, the Committee
may authorize the Company to make, guarantee, or arrange for a loan or
loans to a Participant to enable the Participant to pay any federal,
state, or local income or other taxes due in connection with an Award.
The Committee shall have the authority to forgive repayment of, or
waive rights relating to, any note or loan authorized hereunder,
including interest thereon. Any arrangement under this Section 7(f)
entered into to permit a Participant to purchase or carry securities
shall comply with the applicable provisions of Regulation G promulgated
by the Federal Reserve Board, and arrangements shall be entered into
and continue only to the extent that such arrangements otherwise shall
comply with all applicable laws, regulations, and contractual
obligations of the Company.
(g) Performance-Based Awards to Covered Employees. Other
provisions of the Plan notwithstanding and unless otherwise determined
by the Committee, the provisions of this Section 7(g) exercisability or
settlement of which is subject to the achievement of performance
conditions (other than an Option granted with an exercise price at
least equal to 100% of Fair Market Value of Shares on the date of
grant) if such Award is granted to a person who, at the time of grant,
is a Covered Employee. The terms used in this Section 7(g) shall be
interpreted in a manner consistent with Section 162(m) of the Code and
regulations thereunder (including Proposed Regulation 1.162-27). The
performance objectives for an Award subject to this Section 7(g) shall
consist of one or more business criteria and a targeted level or levels
of performance with respect to such criteria, as specified by the
Committee but subject to this Section 7(g). Performance objectives
shall be objective and shall otherwise meet the requirements of Section
162(m)(4)(C) of the Code and regulations thereunder (including Proposed
Regulation 1.162-27(e)(2)). The following business criteria shall be
used by the Committee in connection with a performance objective:
(1) Consolidated net income;
(2) Pre-tax earnings from continuing operations of the
Company, a Subsidiary or business unit;
(3) Revenues of the Company, a Subsidiary or a business
unit;
(4) Earnings per common share; and/or
(5) Return on common equity.
Achievement of performance objectives shall be measured over a period
of one, two, three, of four years, as specified by the Committee. No
business criteria other than those named for an Award to a Covered
Employee under this Section 7(g). For each such Award relating to a
Covered Employee, the Committee shall establish the targeted level or
levels of performance for each business criteria. Performance
objectives may differ for Awards under this Section 7(g) to different
Covered Employees and from year to year. The Committee may determine
that an Award under this Section 7(g) shall be payable upon achievement
of any one of his performance objectives or may
13
require that two or more of the performance objectives must be achieved
in order for an Award to be payable. The Committee may, in its
discretion, reduce the amount of a payout otherwise to be made in
connection with an Award under this Section 7(g), but may not exercise
discretion to increase such amount, and the Committee may consider
other performance criteria in exercising such discretion. All
determinations by the Committee as to the achievement of performance
objectives shall be made in writing. The Committee may not delegate any
responsibility under this Section 7(g).
8. Change in Control Provisions.
(a) Acceleration Provisions. In the event of a "Change
in Control," as defined in this Section 8, the following acceleration
provisions shall apply:
(i) Any Award carrying a right to exercise that was not
previously exercisable and vested shall become fully
exercisable and vested, subject only to the
restrictions set forth in Sections 7(e)(i), 10(a),
and 10(m); and
(ii) The restrictions, deferral limitations, and
forfeiture conditions applicable to any other Award
granted under the Plan shall lapse and such Awards
shall be deemed fully vested, and any performance
conditions imposed with respect to Awards, shall be
deemed to be fully achieved (or in the case of an
Award subject to Section 7(g), achieved to the extent
of the actual achievement to the date of the Change
in Control), subject to the restrictions on
dispositions of equity securities set forth in
Sections 7(e)(i), 10(a), and 10(m).
(b) Definition of "Change in Control." For purposes of the
Plan, a "Change in Control" shall have occurred if at any time prior to
the expiration or termination of the last Award granted under the Plan:
(i) The stockholders of the Company approve a merger or
consolidation of which the Company is not the
surviving corporation, or a sale or disposition of
all or substantially all of the Company's assets or a
plan of complete liquidation of the Company;
(ii) A tender offer or exchange offer for securities of
the Company is made by any person (as such term is
used in Section 13(d) and 14(d)(3) of the Exchange
Act), other than any person who is a member of the
existing Board of Directors of the Company, as
defined, with the intent to take over and control the
Company;
(iii) Any person, other than any person who is a member of
the existing Board of Directors is or becomes the
beneficial owner (as such term is
14
defined in Rule 13d-3 under the Exchange Act) of
Shares representing 25% or more of the combined
voting power of the Company's then outstanding
securities; or
(iv) The persons constituting the Existing Board of
Directors cease for any reason whatsoever to
constitute as least majority of the Company's Board
of Directors;
provided, however, that no Change in Control shall be deemed to have
occurred with respect to any Award (other than an ISO or an LSAR in tandem with
an ISO if the exercise of discretion under this provision would cause such ISO
to lose its status as an incentive stock option) if the Board shall determine,
prior to the occurrence of the event specified in Section 8(a)(i) through (iv)
hereof, that such event shall not constitute a Change in Control for purposes of
the Plan; and provided further, that a Change in Control shall not include
increases in the percentage of voting power of persons who beneficially own or
control Shares or other outstanding securities of the Company which occur solely
as a result of a reduction in the amount of Shares or other securities
outstanding or as a result of the exercise of Options or vesting of Awards
granted hereunder.
(c) Definition of "Existing Board of Directors." For purposes
of the Plan, the term "existing Board of Directors" shall mean the
persons constituting the Board of Directors of the Company on the date
of adoption of the Plan, together with each new Director whose
election, or nomination for election by the Company's stockholders, is
approved by a vote of the majority of the members of the existing Board
of Directors who are in office immediately prior to the election or
nomination of such Director.
9. Adjustments. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Shares, or
other property), recapitalization, forward or reverse split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share exchange, or
other similar corporate transaction or event, affects the Shares such that an
adjustment is appropriate in order to prevent dilution of enlargement of the
rights of Participants under the Plan, then the Committee shall, in such manner
as it may deem equitable, adjust any or all of (i) the number and kind of Shares
which may thereafter be delivered in connection with Awards, (ii) the number and
kind of Shares that may be delivered or deliverable in respect of outstanding
Awards, (iii) the number of shares with respect to which Awards may be granted
to a given Participant in the specified period as set forth in Section 5, and
(iv) the exercise price, grant price, or purchase price relating to any Award
or, if deemed appropriate, make provision for a cash payment with respect to any
outstanding Award; provided, however, in each case, that, with respect to ISOs,
no such adjustment shall be authorized to the extent that such authority would
cause the Plan to violate Section 422(b)(1) of the Code or previously issued
ISOs to lose their status as such. In addition, the Committee is authorized to
make adjustments in the terms and conditions of, and the criteria included in,
Awards in recognition of unusual or nonrecurring events (including, without
limitation, events described in the preceding sentence) affecting the Company or
any
15
Subsidiary or the financial statements of the applicable laws, regulations, or
accounting principles, or tax rates and regulations, or accounting principles,
or tax adjustments are intended to be objectively determinable and non
discretionary and, as such, consistent with the qualification of Awards as
"performance-based compensation" under Section 162(m) of the Code, and shall be
construed accordingly. To the extent it shall be determined, based on an opinion
of counsel, that any such adjustment would likely cause compensation relating to
an Award to a Covered Employee to fail to be deductible under Section 162(m) of
the Code, such adjustment shall not be authorized or made, unless otherwise
determined by the Committee.
10. General Provisions.
(a) Compliance With Legal and Exchange Requirements. The
Company shall not be obligated to deliver Shares upon the exercise or
settlement of any Award or take other actions under the Plan until the
Company shall have determined that applicable federal and state laws,
rules, and regulations have been complied with and such approvals of
any regulatory or governmental agency have been obtained and
contractual obligations to which the Award may be subject have been
satisfied. The Company, in its discretion, may postpone the issuance or
delivery of Shares under any Award until completion of such stock
exchange listing or registration or qualification of such Shares or
other required action under any federal or state law, rule, or
regulation as the Company may consider appropriate, and may require any
Participant to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or
delivery of Shares under the Plan.
(b) Nontransferability. A Participant's rights under the Plan
(including any right that may constitute a "derivative security" under
the general definition of Rule 16a-1(c)(3)) may not be transferred,
pledged, mortgaged, hypothecated, or otherwise encumbered, and shall
not be subject to claims of the Participant's creditors; provided,
however, that the Committee may permit transfers of Options and other
Awards for estate planning purposes if and to the extent such transfers
do not cause a Participant who is then subject to Section 16 of the
Exchange Act who then or thereafter has transactions with respect to
such Option or Award to lose the benefit of the exemption under Rule
16b-3 for such transactions (unless the Participant acknowledges in
writing that such transfer is non-exempt), or violates other rules or
regulations of the Securities and Exchange Commission or the Internal
Revenue Service or materially increase the cost of the Company's
compliance with such rules or regulations.
(c) No Right to Continued Employment. Neither the Plan nor any
action taken hereunder shall be construed as creating any contract of
employment between the Company or any of its Subsidiaries and any
employee or otherwise giving any employee the right to be retained in
the employ of the Company or any of its Subsidiaries, nor shall it
interfere in any way with the right of the Company or any of its
Subsidiaries to terminate any employee's employment at any time.
16
(d) Taxes. In the event that the Company or any of its
Subsidiaries shall be required to withhold any amount by reason of any
federal, state, or local tax law, rule, or regulation or by reason of
the grant or exercise of any Award, the Company or its Subsidiaries
shall be entitled to deduct and withhold such amount from any other
cash payment or payments to be made by the Company or its Subsidiaries
(including from payroll) to such person. In any such event, the
Participant shall make available to the Company or its Subsidiaries,
promptly when required, sufficient funds to meet the Company's or
Subsidiary's requirement of such withholding; and the Company shall be
entitled to take such steps as the Committee may deem advisable in
order to have such funds available to the Company or its Subsidiary at
the required time or times. This Committee authority shall include
authority to withhold or receive Shares or other property, on a
mandatory basis or at the election of the Participant, and to make cash
payments in respect thereof in satisfaction of a Participant's tax
obligations (which may include mandatory withholding obligations and
obligations of the Participant in excess of such mandatory obligations
relating to an Award).
(e) Changes to the Plan and Awards. The Board may amend,
alter, suspend, discontinue, or terminate the Plan or the Committee's
authority to grant Awards under the Plan without the consent of
stockholders or Participants, except that any such action shall be
subject to the approval of the Company's stockholder at or before the
next annual meeting of stockholders after such Board action if such
stockholder approval is require by any federal or state law or
regulation or the rules of any stock exchange or automated quotation
system on which the Shares may then be listed or quoted, and the Board
may otherwise, in its discretion, determine to subject other such
changes to the Plan to stockholders for approval; provided, however,
that, without the consent of an affected Participant, no amendment,
alteration, suspension, discontinuation, or termination of the plan may
materially impair the rights of such Participant under any Award
theretofore granted to him. The Committee may waive any conditions or
rights under, or amend, alter, suspend, discontinue, or terminate, any
Award theretofore granted and any Award Agreement relating thereto;
provided, however, that, without the consent of an affected
Participant, no such amendment, alternation, suspension,
discontinuation, or termination of any Award may materially impair the
rights of such Participant under such Award.
(f) No Rights to Awards; No Stockholder Rights. Nothing
contained in the Plan shall be deemed to give any person eligible to
receive an Award hereunder, or any heir, distributee, executor,
administrator or personal representative of any such person, any
interest or title to any specific property of the Company, or any of
its Subsidiaries, or any other right against the Company or any of its
Subsidiaries other than as set forth in the Plan. Neither the
establishment of the Plan nor any other action taken now or at any time
with regard thereto shall be construed as giving any person whatsoever
any legal or equitable right against the Company unless such right
shall be specifically provided for in the Plan. There is no obligation
for uniformity of treatment of Participants and employees under the
Plan. No Award shall confer on any
17
Participant any of the rights of a stockholder of the Company unless
and until Shares are duly issued or transferred and delivered to the
Participant in accordance with the of the Award.
(g) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any
Award shall give any such Participant any rights that are greater than
those of a general creditor of the Company; provided, however, that the
Committee may authorize the creation of trusts or make other
arrangements to meet the Company's obligations under the Plan to
deliver cash, Shares, other Awards, or other property pursuant to any
Award, which trusts or other arrangements shall be consistent with the
"unfunded" status of the Plan unless the Committee otherwise determines
with the consent of each affected Participant. If and to the extent
authorized by the Committee, the Company may deposit into such a trust
Shares for delivery to the Participant in satisfaction of the Company's
obligations under any Award. If so provided by the Committee, upon such
a deposit of Shares or other assets for the benefit of a Participant,
there shall be substituted for the rights of the Participant to receive
delivery of Shares and other payments under this Agreement a right to
receive the assets of the trust (to the extent that the deposited
Shares or other assets represented the full amount of the Company's
obligation under the Award at the date of deposit). The trustee of the
trust may be authorized to dispose of trust assets and reinvest the
proceeds in alternative investments, subject to such terms and
conditions as the Committee may specify and in accordance with
applicable law.
(h) Nonexclusivity of the Plan. Neither the adoption of the
Plan by the Board nor its submission to the stockholders of the Company
for approval shall be construed as creating any limitations on the
power of the Board to adopt such other incentive arrangements as it may
deem desirable, including, without limitation, the granting of stock
options otherwise than under the Plan, and such arrangements may be
either applicable generally or only in specific cases.
(i) Binding Effect. The provisions of the Plan shall be
binding upon the heirs, distributees, executors, administrators and
personal representatives of any person participating under the Plan.
Any person claiming any rights under the Plan as a beneficiary or
otherwise through conditions of the Plan and any additional terms and
conditions as may be imposed by the Committee.
(j) No Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award. The Committee shall
determine whether cash, other awards, or other property shall be issued
or paid in lieu of such fractional shares or whether such fractional
shares or any rights thereto shall be forfeited or otherwise
eliminated.
18
(k) Compliance with Code Section 162(m). It is the intent of
the Company that, unless otherwise determined by the Committee, Options
and other Awards subject to the performance objectives specified under
Section 7(g) granted under the Plan to persons who are Covered
Employees within the meaning of Code Section 162(m) and regulations
thereunder (including Proposed Regulation 1.162-27(c) (2) shall
constitute "qualified performance-based compensation" within the
meaning of Code Section 162(m) and regulations thereunder (including
Proposed Regulation 1.162-27(e), and subject to the transition rules
under Proposed Regulation 1.162-27(h) (2) thereunder. Accordingly,
unless otherwise determined by the Committee, if any provision of the
Plan or any Award agreement relating to such a Award granted to a
Covered Employee does not comply or is inconsistent with the
requirements of Code Section 162(m) or regulations thereunder, such
provision shall be construed or deemed amended to the extent necessary
to conform to such requirements, and no provision shall be deemed to
confer upon the Committee or any other person discretion to increase
the amount of compensation otherwise payable to a Covered Employee in
connection with such Award upon attainment of the performance
objectives.
(l) Governing Law. The Plan and all related documents shall be
governed by, and construed in accordance with, the laws of the State of
New York (except to the extent provisions of federal law may be
applicable). If any provision hereof shall be held by a Court of
competent jurisdiction to be invalid and unenforceable, the remaining
provisions of the Plan shall continue to be fully effective. In the
event that the Company merges with and into another corporation, then
the Plan and all related documents shall be governed by the laws of the
state of incorporation of such other state.
(m) Effective Date; Plan Termination. The Plan shall become
effective as of June 1, 1995; provided, however, that the Plan shall
have been approved by the affirmative votes of the holders of a
majority of voting securities present in person or represented by
proxy, and entitled to vote at the next annual meeting of Company
stockholders for which the record date is after the effective date of
the Plan, or any adjournment thereof, or prior to such annual meeting
at a special meeting of stockholders or by the written consent of the
holders of a majority of voting securities entitled to vote, in
accordance with applicable provisions of the New York Business
Corporation Law. Any awards granted under the Plan prior to such
approval of stockholders shall not be effective unless and until
stockholder approval is obtained, and, if stockholders fail to approve
the Plan as specified hereunder, any previously granted Award shall be
forfeited and canceled, and Participants shall repay to the Company any
payments received pursuant to Dividend Equivalents or dividend payments
on Restricted Stock. Unless earlier terminated under Section 10(e)
hereto, the Plan shall terminate on and no further Awards may be
granted under the Plan after May 31, 2005.
19
BERNSTEIN & WASSERMAN, LLP
950 Third Avenue
New York, N.Y. 10022
June 10, 1996
Steven Madden, Ltd.
52-16 Barnett Avenue
Long Island City, NY 11105
Ladies and Gentlemen:
We have acted as counsel for Steven Madden, Ltd., a New York
corporation ("Company"), in connection with a Registration Statement on Form S-8
("Registration Statement") being filed contemporaneously herewith by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), covering an aggregate of (i) 24,000 shares of
the Company's Common Stock, $.0001 par value ("Common Stock"), reserved for
issuance upon the exercise of options heretofore granted pursuant to certain
Option Agreements dated February 3, 1995 between the Company and each of, Gary
DeLuca and John L. Madden, Directors of the Company, (ii) 90,000 shares of
Common Stock reserved for issuance upon the exercise of options heretofore
granted pursuant to a certain Option Agreement and a certain Consulting
Agreement, both dated May 15, 1996 between the Company and Gary DeLuca, and
(iii) 300,000 shares of Common Stock reserved for issuance pursuant to the
Company's 1995 Stock Plan.
In that connection, we have examined the Certificate of Incorporation,
as amended, and the Amended and Restated By-Laws of the Company, the
Registration Statement, the Option Agreements, the Consulting Agreement between
the Company and Gary DeLuca, the 1995 Stock Plan, corporate proceedings of the
Company relating to the issuance of the Common Stock pursuant to such documents,
and such other instruments and documents as we have deemed relevant under the
circumstances.
In making the aforesaid examinations, we have assumed the genuineness
of all signatures and the conformity to original documents of all copies
furnished to us as original or photostatic copies. We have also assumed that the
corporate records of the Company include all corporate proceedings taken by the
Company to date.
Based upon and subject to the foregoing, we are of the opinion that the
Common Stock
has been duly and validly authorized and, when issued and paid for as described
in the respective documents, will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Bernstein & Wasserman, LLP
BERNSTEIN & WASSERMAN, LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 being filed under the Securities Act of 1933 of our report dated
February 23, 1996 relating to the financial statements included in the December
31, 1995 Annual Report on Form 10-KSB, as amended, of Steven Madden, Ltd.
/s/ Richard A. Eisner & Company, LLP
New York, New York
June 6, 1996
