AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 10, 1999
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)
DELAWARE 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)
1999 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>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================
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 400,000(2) $12.75(3) $5,100,000 $1,417.80
Total $1,417.80
</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) Includes 400,000 shares of Common Stock reserved under the 1999 Stock
Plan.
(3) Estimated solely for the purpose of calculating the registration fee
based upon the closing price of the shares of Common Stock on September 8, 1999
of $12.75 reported on The Nasdaq National 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, as filed with the Securities and Exchange Commission by
Steven Madden, Ltd., a Delaware corporation (the "Corporation"), are
incorporated herein by reference:
(1) Quarterly Report on Form 10-Q for the quarter ended June 30, 1999.
(2) Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
(3) Proxy Statement on Schedule 14A dated April 30, 1999.
(4) Annual Report on Form 10-K for the period ended December 31, 1998.
(5) 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
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify its directors and officers, as well as
other employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation -- a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification in which the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
Article Tenth of the Registrant's Certificate of Incorporation states
as follows:
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of their 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
- ----------- --------
5.1 Opinion of Berlack, Israels & Liberman LLP.
10.1 1999 Stock Plan
23.1 Consent of Berlack, Israels & Liberman LLP (included in
Exhibit 5.1).
23.2 Consent of Richard A. Eisner & Company, LLP.
- ------------------
(1) Incorporated by reference to the Registrant's Registration Statement on
Form S-8 filed on June 12, 1996.
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 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, that 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;
5
<PAGE>
(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 8th day of September,
1999.
STEVEN MADDEN, LTD.
By: /s/ STEVEN MADDEN
------------------------------------
Steven Madden
Chairman of the Board, President
and Chief Executive Officer
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.
Signature Title Date
- --------- ----- ----
/s/ STEVEN MADDEN Chairman of the Board, September 8, 1999
- --------------------- President and Chief
Steven Madden Executive Officer
/s/ RHONDA BROWN Chief Operating Officer September 8, 1999
- --------------------- and Director
Rhonda Brown
/s/ ARVIND DHARIA Chief Financial and September 8, 1999
- --------------------- Accounting Officer
Arvind Dharia and Director
/s/ JOHN BASILE Executive Vice President September 8, 1999
- --------------------- and Director
John Basile
/s/ CHARLES KOPPELMAN Director September 8, 1999
- ---------------------
Charles Koppelman
/s/ JOHN L. MADDEN Director September 8, 1999
- ---------------------
John L. Madden
/s/ PETER MIGLIORINI Director September 8, 1999
- ---------------------
Peter Migliorini
/s/ LES WAGNER Director September 8, 1999
- ---------------------
Les Wagner
7
<PAGE>
STEVEN MADDEN, LTD
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Document
- ----------- --------
5.1 Opinion of Berlack, Israels & Liberman LLP.
10.1 1999 Stock Plan
23.1 Consent of Berlack, Israels & Liberman LLP (included in
Exhibit 5.1).
23.2 Consent of Richard A. Eisner & Company, LLP.
EXHIBIT 5.1
OPINION OF BERLACK, ISRAELS & LIBERMAN LLP
<PAGE>
[LETTERHEAD OF BERLACK, ISRAELS & LIBERMAN LLP]
September 8, 1999
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 Delaware
corporation (the "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 400,000 shares
(the "Shares") of the Company's Common Stock, $.0001 par value ("Common Stock"),
all of which are issuable under the Company's 1999 Stock Plan (the "Stock
Plan").
In that connection, we have examined the Certificate of Incorporation
and the By-Laws of the Company, the Registration Statement, the Stock Plan, 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
Shares have been duly and validly authorized and, when issued and paid for as
described in the Stock Plan or stock option agreements issued pursuant to the
Stock Plan, as the case may be, 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/ Berlack, Israels & Liberman LLP
-----------------------------------
BERLACK, ISRAELS & LIBERMAN LLP
EXHIBIT 10.3
1999 STOCK PLAN
<PAGE>
THE 1999 STOCK PLAN
APPROVED AND ADOPTED BY THE BOARD OF DIRECTORS ON MARCH 15, 1999
SECTION 1. PURPOSE. The purpose of the Steven Madden, Ltd.
1999 Stock Plan (the "Plan") is to provide a means whereby directors and
selected employees, officers, agents, consultants, and independent contractors
of Steven Madden, Ltd., a Delaware corporation (the "Company"), or of any parent
or subsidiary (as defined in subsection 5.7 hereof and referred to hereinafter
as "Affiliates") thereof, may be granted incentive stock options and/or
nonqualified stock options to purchase shares of common stock, $.0001 par value
("Common Stock") in order to attract and retain the services or advice of such
directors, employees, officers, agents, consultants, and independent contractors
and to provide additional incentive for such persons to exert maximum efforts
for the success of the Company and its Affiliates by encouraging stock ownership
in the Company.
SECTION 2. ADMINISTRATION. Subject to Section 2.3 hereof, the
Plan shall be administered by the Board of Directors of the Company (the
"Board") or, in the event the Board shall appoint and/or authorize a committee
of two or more members of the Board to administer the Plan, by such committee.
The administrator of the Plan shall hereinafter be referred to as the "Plan
Administrator".
The foregoing notwithstanding, with respect to grants to be
made to directors: (a) the Plan Administrator shall be constituted so as to meet
the requirements of Section 16(b) of the Exchange Act and Rule 16b-3 thereunder,
each as amended from time to time, or (b) if the Plan Administrator cannot be so
constituted, no options shall be granted under the Plan to any directors.
2.1 PROCEDURES. The Board shall designate one of the
members of the Plan Administrator as chairman. The Plan Administrator may hold
meetings at such times and places as it shall determine. The acts of a majority
of the members of the Plan Administrator present at meetings at which a quorum
exists, or acts approved in writing by all Plan Administrator members, shall be
valid acts of the Plan Administrator.
2.2 RESPONSIBILITIES. Except for the terms and
conditions explicitly set forth herein, the Plan Administrator shall have the
authority, in its discretion, to determine all matters relating to the options
to be granted under the Plan, including, without limitation, selection of
whether an option will be an incentive stock option or a nonqualified stock
option, selection of the individuals to be granted options, the number of shares
to be subject to each option, the exercise price per share, the timing of grants
and all other terms and conditions of the options. Grants under the Plan need
not be identical in any respect, even when made simultaneously. The Plan
Administrator may also establish, amend, and revoke rules and regulations for
the administration of the Plan. The interpretation and construction by the Plan
Administrator of any terms or provisions of the Plan or any option issued
hereunder, or of any rule or regulation promulgated in connection herewith,
shall be conclusive and binding on all interested parties, so long as such
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<PAGE>
interpretation and construction with respect to incentive stock options
corresponds to the requirements of Internal Revenue Code of 1986, as amended
(the "Code"). Section 422, the regulations thereunder, and any amendments
thereto. The Plan Administrator shall not be personally liable for any action
made in good faith with respect to the Plan or any option granted thereunder.
2.3 RULE 16B-3 AND SECTION 16(B) COMPLIANCE;
BIFURCATION OF PLAN. It is the intention of the Company that the Plan comply in
all respects with Rule 16b-3 under the Securities Exchange Act of 1934 (the
"Exchange Act") to the extent applicable, and in all events the Plan shall be
construed in favor of its meeting the requirements of Rule 16b-3. If any Plan
provision is later found not to be in compliance with such Rule, such provision
shall be deemed null and void. The Board of Directors may act under the Plan
only if all members thereof are "disinterested persons" as defined in Rule 16b-3
and further described in Section 4 hereof; and no director or officer or other
Company "insider" subject to Section 16 of the Exchange Act may sell shares
received upon the exercise of an option during the six month period immediately
following the grant of the option without complying with the terms of Section 16
of the Exchange Act.
Notwithstanding anything in the Plan to the contrary, the
Board, in its absolute discretion, may bifurcate the Plan so as to restrict,
limit, or condition the use of any provision of the Plan to participants who are
officers and directors or other persons subject to Section 16(b) of the Exchange
Act without so restricting, limiting, or conditioning the Plan with respect to
other participants.
SECTION 3. STOCK SUBJECT TO THE PLAN. The stock subject to
this Plan shall be the Common Stock, presently authorized but unissued or
subsequently acquired by the Company. Subject to adjustment as provided in
Section 7 hereof, the aggregate amount of Common Stock to be delivered upon the
exercise of all options granted under the Plan shall not exceed in the aggregate
400,000 shares as such Common Stock was constituted on the effective date of the
Plan. If any option granted under the Plan shall expire, be surrendered,
exchanged for another option, canceled, or terminated for any reason without
having been exercised in full, the unpurchased shares subject thereto shall
thereupon again be available for purposes of the Plan, including for replacement
options which may be granted in exchange for such surrendered, canceled, or
terminated options.
SECTION 4. ELIGIBILITY. An incentive stock option may be
granted only to any individual who, at the time the option is granted, is a
director, employee, officer, agent, consultant, or independent contractor of the
Company or any Affiliate thereof. A nonqualified stock option may be granted to
any director, employee, officer, agent, consultant, or independent contractor of
the Company or any Affiliate thereof, whether an individual or an entity. Any
party to whom an option is granted under the Plan shall be referred to
hereinafter as an "Optionee".
A director shall in no event be eligible for the benefits of
the Plan unless at the time discretion is exercised in the selection of a
director as a person to whom options may be granted, or in the determination of
the number of shares which may be covered by options granted to the director,
the Plan complies with the requirements of Rule 16b-3 under the Exchange Act.
A-2
<PAGE>
SECTION 5. TERMS AND CONDITIONS OF OPTIONS. Options granted
under the Plan shall be evidenced by written agreements which shall contain such
terms, conditions, limitations, and restrictions as the Plan Administrator shall
deem advisable and which are not inconsistent with the Plan.
5.2 TERM AND MATURITY. Subject to the restrictions
contained in Section 6 hereof with respect to granting stock options to greater
than ten percent stockholders, the term of each stock option shall be as
established by the Plan Administrator and, if not so established, shall be ten
years from the date of its grant, but in no event shall the term of any
incentive stock option exceed a ten year period.
5.3 EXERCISE. Each option may be exercised in whole
or in part; provided, that only whole shares may be issued pursuant to the
exercise of any option. Subject to any other terms and conditions herein, the
Plan Administrator may provide that an option may not be exercised in whole or
in part for a stated period or periods of time during which such option is
outstanding; provided, that the Plan Administrator may rescind, modify, or waive
any such limitation (including by the acceleration of the vesting schedule upon
a change in control of the Company) at any time and from time to time after the
grant date thereof. During an Optionee's lifetime, any incentive stock options
granted under the Plan are personal to such Optionee and are exercisable solely
by such Optionee. Options shall be exercised by delivery to the Company of
notice of the number of shares with respect to which the option is exercised,
together with payment of the exercise price in accordance with Section 5.4
hereof.
5.4 PAYMENT OF EXERCISE PRICE. Except as set forth
below, payment of the option exercise price shall be made in full at the time
the notice of exercise of the option is delivered to the Company and shall be in
cash, bank certified or cashier's check, or personal check (unless at the time
of exercise the Plan Administrator in a particular case determines not to accept
a personal check) for shares of Common Stock being purchased.
The Plan Administrator can determine at the time the option is
granted in the case of incentive stock options, or at any time before exercise
in the case of nonqualified stock options, that additional forms of payment will
be permitted. To the extent permitted by the Plan Administrator and applicable
laws and regulations (including, without limitation, federal tax and securities
laws and regulations and state corporate law), an option may be exercised by:
(a) delivery of shares of Common Stock of the Company
held by an Optionee having a fair market value equal to the exercise price, such
fair market value to be determined in good faith by the Plan Administrator;
(b) delivery of a properly executed Notice of
Exercise, together with irrevocable instructions to a broker, all in accordance
with the regulations of the Federal Reserve Board, to promptly deliver to the
Company the amount of sale or loan proceeds to pay the exercise price and any
federal, state, or local withholding tax obligations that may arise in
connection with the exercise; or
A-3
<PAGE>
(c) delivery of a properly executed Notice of
Exercise, together with instructions to the Company to withhold from the shares
of Common Stock that would otherwise be issued upon exercise that number of
shares of Common Stock having a fair market value equal to the option exercise
price.
5.5 WITHHOLDING TAX REQUIREMENT. The Company or any
Affiliate thereof shall have the right to retain and withhold from any payment
of cash or Common Stock under the Plan the amount of taxes required by any
government to be withheld or otherwise deducted and paid with respect to such
payment. No option may be exercised unless and until arrangements satisfactory
to the Company, in its sole discretion, to pay such withholding taxes are made.
At its discretion, the Company may require an Optionee to reimburse the Company
for any such taxes required to be withheld by the Company and withhold any
distribution in whole or in part until the Company is so reimbursed. In lieu
thereof, the Company shall have the right to withhold from any other cash
amounts due or to become due from the Company to the Optionee an amount equal to
such taxes or retain and withhold a number of shares having a market value not
less than the amount of such taxes required to be withheld by the Company to
reimburse the Company for any such taxes and cancel (in whole or in part) any
such shares of Common Stock so withheld. If required by Section 16(b) of the
Exchange Act, the election to pay withholding taxes by delivery of shares of
Common Stock held by any person who at the time of exercise is subject to
Section 16(b) of the Exchange Act shall be made either six months prior to the
date the option exercise becomes taxable or at such other times as the Company
may determine as necessary to comply with Section 16(b) of the Exchange Act.
Although the Company may, in its discretion, accept Common Stock as payment of
withholding taxes, the Company shall not be obligated to do so.
5.6 NONTRANSFERABILITY.
5.6.1 OPTION. Options granted under the Plan and
the rights and privileges conferred hereby may not be transferred, assigned,
pledged, or hypothecated in any manner (whether by operation of law or
otherwise) other than by will or by the applicable laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
Section 414(p) of the Code, or Title I of the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder, and shall not be
subject to execution, attachment, or similar process. Any attempt to transfer,
assign, pledge, hypothecate, or otherwise dispose of any option under the Plan
or of any right or privilege conferred hereby, contrary to the Code or to the
provisions of the Plan, or the sale or levy or any attachment or similar process
upon the rights and privileges conferred hereby shall be null and void ab
initio. The designation by an Optionee of a beneficiary does not, in and of
itself, constitute an impermissible transfer under this subsection 5.6.1.
5.6.2 STOCK. The Plan Administrator may provide
in the agreement granting the option that (a) the Optionee may not transfer or
otherwise dispose of shares acquired upon exercise of an option without first
A-4
<PAGE>
offering such shares to the Company for purchase on the same terms and
conditions as those offered to the proposed transferee or (b) upon termination
of employment of an Optionee, the Company shall have a six month right of
repurchase as to the shares acquired upon exercise, which right of repurchase
shall allow for a maximum purchase price equal to the fair market value of the
shares on the termination date. The foregoing rights of the Company shall be
assignable by the Company upon reasonable written notice to the Optionee.
5.7 TERMINATION OF RELATIONSHIP. If the Optionee's
relationship with the Company or any Affiliate thereof ceases for any reason
other than termination for cause, death, or total disability, and unless by its
terms the option sooner terminates or expires, then the Optionee may exercise,
for a three month period, that portion of the Optionee's option which is
exercisable at the time of such cessation, but the Optionee's option shall
terminate at the end of the three month period following such cessation as to
all shares for which it has not theretofore been exercised, unless, in the case
of a nonqualified stock option, such provision is waived in the agreement
evidencing the option or by resolution adopted by the Plan Administrator within
90 days of such cessation. If, in the case of an incentive stock option, an
Optionee's relationship with the Company or Affiliate thereof changes from
employee to nonemployee (i.e., from employee to a position such as a
consultant), such change shall constitute a termination of an Optionee's
employment with the Company or Affiliate and the Optionee's incentive stock
option shall terminate in accordance with this subsection 5.7.
If an Optionee is terminated for cause, any option granted
hereunder shall automatically terminate as of the first discovery by the Company
of any reason for termination for cause, and such Optionee shall thereupon have
no right to purchase any shares pursuant to such option. "Termination for cause"
shall mean dismissal for dishonesty, conviction or confession of a crime
punishable by law (except minor violations), fraud, misconduct, or disclosure of
confidential information. If an Optionee's relationship with the Company or any
Affiliate thereof is suspended pending an investigation of whether or not the
Optionee shall be terminated for cause, all Optionee's rights under any option
granted hereunder likewise shall be suspended during the period of
investigation.
If an Optionee's relationship with the Company or any
Affiliate thereof ceases because of a total disability, the Optionee's option
shall not terminate or, in the case of an incentive stock option, cease to be
treated as an incentive stock option until the end of the 12 month period
following such cessation (unless by its terms it sooner terminates and expires).
As used in the Plan, the term "total disability" refers to a mental or physical
impairment of the Optionee which is expected to result in death or which has
lasted or is, in the opinion of the Company and two independent physicians,
expected to last for a continuous period of 12 months or more and which causes
or is, in such opinion, expected to cause the Optionee to be unable to perform
his or her duties for the Company and to be engaged in any substantial gainful
activity. Total disability shall be deemed to have occurred on the first day
after the Company and the two independent physicians have furnished their
opinion of total disability to the Plan Administrator.
A-5
<PAGE>
For purposes of this subsection 5.7, a transfer of
relationship between or among the Company and/or any Affiliate thereof shall not
be deemed to constitute a cessation of relationship with the Company or any of
its Affiliates. For purposes of this subsection 5.7, with respect to incentive
stock options, employment shall be deemed to continue while the Optionee is on
military leave, sick leave, or other bona fide leave of absence (as determined
by the Plan Administrator). The foregoing notwithstanding, employment shall not
be deemed to continue beyond the first 90 days of such leave, unless the
Optionee's reemployment rights are guaranteed by statute or by contract.
As used herein, the term "Affiliate" shall be defined as
follows: (a) when referring to a subsidiary corporation, "Affiliate" shall mean
any corporation (other than the Company) in an unbroken chain of corporations
ending with the Company if, at the time of the granting of the option, the stock
possessing 50% or more of the total combined voting power of all classes of
stock of each of the corporations other than the Company is owned by one of the
other corporations in such chain; and (b) when referring to a parent
corporation, "Affiliate" shall mean any corporation in an unbroken chain of
corporations ending with the Company if, at the time of the granting of the
option, each of the corporations other than the Company owns stock possessing
50% or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
5.8 DEATH OF OPTIONEE. If an Optionee dies while he
or she has a relationship with the Company or any Affiliate thereof or within
the three month period (or 12 month period in the case of totally disabled
Optionees) following cessation of such relationship, any option held by such
Optionee, to the extent that the Optionee would have been entitled to exercise
such option, may be exercised within one year after his or her death by the
personal representative of his or her estate or by the person or persons to whom
the Optionee's rights under the option shall pass by will or by the applicable
laws of descent and distribution.
5.9 STATUS OF STOCKHOLDER. Neither the Optionee nor
any party to which the Optionee's rights and privileges under the option may
pass shall be, or have any of the rights or privileges of, a stockholder of the
Company with respect to any of the shares issuable upon the exercise of any
option granted under the Plan unless and until such option has been exercised.
5.10 CONTINUATION OF EMPLOYMENT. Nothing in the Plan
or in any option granted pursuant to the Plan shall confer upon any Optionee any
right to continue in the employ of the Company or of an Affiliate thereof, or to
interfere in any way with the right of the Company or of any such Affiliate to
terminate his or her employment or other relationship with the Company at any
time.
5.11 MODIFICATION AND AMENDMENT OF OPTION. Subject to
the requirements of Section 422 of the Code with respect to incentive stock
options and to the terms and conditions and within the limitations of the Plan,
including, without limitation, Section 9.1 hereof, the Plan Administrator may
modify or amend outstanding options granted under the Plan. The modification or
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amendment of an outstanding option shall not, without the consent of the
Optionee, impair or diminish any of his or her rights or any of the obligations
of the Company under such option. Except as otherwise provided herein, no
outstanding option shall be terminated without the consent of the Optionee.
Unless the Optionee agrees otherwise, any changes or adjustments made to
outstanding incentive stock options granted under the Plan shall be made in such
a manner so as not to constitute a "modification" as defined in Section 424(h)
of the Code and so as not to cause any incentive stock option issued hereunder
to fail to continue to qualify as an incentive stock option as defined in
Section 422(b) of the Code.
5.12 LIMITATION ON VALUE FOR INCENTIVE STOCK OPTIONS.
As to all incentive stock options granted under the terms of the Plan, to the
extent that the aggregate fair market value (determined at the time of the grant
of the incentive stock option) of the shares of Common Stock with respect to
which incentive stock options are exercisable for the first time by the Optionee
during any calendar year (under the Plan and all other incentive stock option
plans of the Company, an Affiliate thereof or a predecessor corporation) exceeds
$100,000, such options shall be treated as nonqualified stock options. The
foregoing sentence shall not apply, and the limitation shall be that provided by
the Code or the Internal Revenue Service, as the case may be, if such annual
limit is changed or eliminated by (a) amendment of the Code or (b) issuance by
the Internal Revenue Service of (i) a Revenue ruling, (ii) a Private Letter
ruling to any of the Company, any Optionee, or any legatee, personal
representative, or distributee of any Optionee, or (iii) regulations.
5.13 VALUATION OF COMMON STOCK RECEIVED UPON EXERCISE.
5.13.1 EXERCISE OF OPTIONS UNDER SECTIONS 5.4(A)
AND (C). The value of Common Stock received by the Optionee from an exercise
under Sections 5.4(a) and 5.4(c) hereof shall be the fair market value as
determined by the Plan Administrator, provided, that if the Common Stock is
traded in a public market, such valuation shall be the average of the high and
low trading prices or bid and asked prices, as applicable, of the Common Stock
for the date of receipt by the Company of the Optionee's delivery of shares
under Section 5.4(a) hereof or delivery of the Notice of Exercise under Section
5.4(c) hereof, determined as of the trading day immediately preceding such date
(or, if no sale of shares is reported for such trading day, on the next
preceding day on which any sale shall have been reported).
5.13.2 EXERCISE OF OPTION UNDER SECTION 5.4(B).
The value of Common Stock received by the Optionee from an exercise under
Section 5.4(b) hereof shall equal the sales price received for such shares.
SECTION 6. GREATER THAN TEN PERCENT STOCKHOLDERS.
6.1 EXERCISE PRICE AND TERM OF INCENTIVE STOCK
OPTIONS. If incentive stock options are granted under the Plan to employees who,
at the time of such grant, own greater than ten percent of the total combined
voting power of all classes of stock of the Company or any Affiliate thereof,
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the term of such incentive stock options shall not exceed five years and the
exercise price shall be not less than 110% of the fair market value of the
Common Stock at the time of grant of the incentive stock option. This provision
shall control notwithstanding any contrary terms contained in an option
agreement or any other document. The term and exercise price limitations of this
provision shall be amended to conform to any change required by a change in the
Code or by ruling or pronouncement of the Internal Revenue Service.
6.2 ATTRIBUTION RULE. For purposes of subsection 6.1,
in determining stock ownership, an employee shall be deemed to own the stock
owned, directly or indirectly, by or for his or her brothers, sisters, spouse,
ancestors, and lineal descendants. Stock owned, directly or indirectly, by or
for a corporation, partnership estate, or trust shall be deemed to be owned
proportionately by or for its stockholders, partners, or beneficiaries. If an
employee or a person related to the employee owns an unexercised option or
warrant to purchase stock of the Company, the stock subject to that portion of
the option or warrant which is unexercised shall not be counted in determining
stock ownership. For purposes of this Section 6, stock owned by an employee
shall include all stock owned by him or her which is actually issued and
outstanding immediately before the grant of the incentive stock option to the
employee.
SECTION 7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The
aggregate number and class of shares for which options may be granted under the
Plan, the number and class of shares covered by each outstanding option, and the
exercise price per share thereof (but not the total price), and each such
option, shall all be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock of the Company resulting from a
split or consolidation of shares or any like capital adjustment, or the payment
of any stock dividend.
7.1. EFFECT OF LIQUIDATION, REORGANIZATION, OR CHANGE
IN CONTROL.
7.1.1 CASH, STOCK, OR OTHER PROPERTY FOR STOCK. Except
as provided in subsection 7.1.2 hereof, upon a merger (other than a merger of
the Company in which the holders of Common Stock immediately prior to the merger
have the same proportionate ownership of common stock in the surviving
corporation immediately after the merger), consolidation, acquisition of
property or stock, separation, reorganization (other than mere reincorporation
or creation of a holding company), or liquidation of the Company (each, an
"event"), as a result of which the stockholders of the Company receive cash,
stock, or other property in exchange for, or in connection with, their shares of
Common Stock, any option granted hereunder shall terminate, but the time during
which such options may be exercised shall be accelerated as follows: the
Optionee shall have the right immediately prior to any such event to exercise
such Optionee's option in whole or in part whether or not the vesting
requirements set forth in the option agreement have been satisfied.
7.1.2 CONVERSION OF OPTIONS ON STOCK FOR EXCHANGE
STOCK. If the stockholders of the Company receive capital stock of another
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corporation ("Exchange Stock") in exchange for their shares of Common Stock in
any transaction involving a merger (other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation,
or reorganization (other than mere reincorporation or creation of a holding
company), all options granted hereunder shall be converted into options to
purchase shares of Exchange Stock unless the Company and corporation issuing the
Exchange Stock, in their sole discretion, determine that any or all such options
granted hereunder shall not be converted into options to purchase shares of
Exchange Stock but instead shall terminate in accordance with the provisions of
subsection 7.1.1 hereof. The amount and price of converted options shall be
determined by adjusting the amount and price of the options granted hereunder in
the same proportion as used for determining the number of shares of Exchange
Stock the holders of the Common Stock receive in such merger, consolidation,
acquisition, separation, or reorganization. Unless the Board determines
otherwise, the converted options shall be fully vested whether or not the
vesting requirements set forth in the option agreement have been satisfied.
7.2 FRACTIONAL SHARES. In the event of any adjustment
in the number of shares covered by an option, any fractional shares resulting
from such adjustment shall be disregarded and each such option shall cover only
the number of full shares resulting from such adjustment.
7.3 DETERMINATION OF BOARD TO BE FINAL. Except as
otherwise required for the Plan to qualify for the exemption afforded by Rule
16b-3 under the Exchange Act, all adjustments under this Section 7 shall be made
by the Board, and its determination as to what adjustments shall be made, and
the extent thereof, shall be final, binding, and conclusive. Unless an Optionee
agrees otherwise, any change or adjustment to an incentive stock option shall be
made in such a manner so as not to constitute a "modification" as defined in
Section 424(h) of the Code and so as not to cause the incentive stock option
issued hereunder to fail to continue to qualify as an incentive stock option as
defined in Section 422(b) of the Code.
SECTION 8. SECURITIES LAW COMPLIANCE. Shares shall not be
issued with respect to an option granted under the Plan unless the exercise of
such option and the issuance and delivery of such shares pursuant thereto shall
comply with all relevant provisions of law, including, without limitation, any
applicable state securities laws, the Securities Act of 1933, as amended (the
"Act"), the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance, including, without limitation, the availability of
an exemption from registration for the issuance and sale of any shares
hereunder. Inability of the Company to obtain from any regulatory body having
jurisdiction, the authority deemed by the Company's counsel to be necessary for
the lawful issuance and sale of any shares hereunder or the unavailability of an
exemption from registration for the issuance and sale of any shares hereunder
shall relieve the Company of any liability in respect of the nonissuance or sale
of such shares as to which such requisite authority shall not have been
obtained.
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As a condition to the exercise of an option, if, in the
opinion of counsel for the Company, assurances are required by any relevant
provision of the aforementioned laws, the Company may require the Optionee to
give written assurances satisfactory to the Company at the time of any such
exercise (a) as to the Optionee's knowledge and experience in financial and
business matters (and/or to employ a purchaser representative reasonably
satisfactory to the Company who is knowledgeable and experienced in financial
and business matters) and that such Optionee is capable of evaluating, either
alone or with the purchaser representative, the merits and risks of exercising
the option or (b) that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares. The foregoing
requirements shall be inoperative if the issuance of the shares upon the
exercise of the option has been registered under a then currently effective
registration statement under the Act.
At the option of the Company, a stop-transfer order against
any shares may be placed on the official stock books and records of the Company,
and a legend indicating that the stock may not be pledged, sold, or otherwise
transferred unless an opinion of counsel is provided (concurred in by counsel
for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
assure exemption from registration. The Plan Administrator may also require such
other action or agreement by the Optionees as may from time to time be necessary
to comply with the federal and state securities laws. NONE OF THE ABOVE SHALL BE
CONSTRUED TO IMPLY AN OBLIGATION ON THE PART OF THE COMPANY TO UNDERTAKE
REGISTRATION OF THE OPTIONS OR STOCK HEREUNDER.
Should any of the Company's capital stock of the same class as
the stock subject to options granted hereunder be listed on a national
securities exchange or on the Nasdaq National Market, all stock issued hereunder
if not previously listed on such exchange or market shall, if required by the
rules of such exchange or market, be authorized by that exchange or market for
listing thereon prior to the issuance thereof.
SECTION 9. USE OF PROCEEDS. The proceeds received by the
Company from the sale of shares pursuant to the exercise of options granted
hereunder shall constitute general funds of the Company.
SECTION 10. AMENDMENT AND TERMINATION.
10.1 BOARD ACTION. The Board may at any time suspend,
amend, or terminate the Plan, provided, that no amendment shall be made without
stockholder approval within 12 months before or after adoption of the Plan if
such approval is necessary to comply with any applicable tax or regulatory
requirement, including any such approval as may be necessary to satisfy the
requirements for exemptive relief under Rule 16b-3 of the Exchange Act or any
successor provision. Rights and obligations under any option granted before
amendment of the Plan shall not be altered or impaired by any amendment of the
Plan unless the Company requests the consent of the person to whom the option
was granted and such person consents in writing thereto.
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10.2 AUTOMATIC TERMINATION. Unless sooner terminated
by the Board, the Plan shall terminate ten years from the earlier of (a) the
date on which the Plan is adopted by the Board or (b) the date on which the Plan
is approved by the stockholders of the Company. No option may be granted after
such termination or during any suspension of the Plan. The amendment or
termination of the Plan shall not, without the consent of the option holder,
alter or impair any rights or obligations under any option theretofore granted
under the Plan.
SECTION 11. EFFECTIVENESS OF THE PLAN. The Plan shall become
effective upon adoption by the Board so long as it is approved by the holders of
a majority of the Company's shares of voting capital stock cast with respect to
the proposal to adopt the Plan at any time within 12 months before or after the
adoption of the Plan by the Board.
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EXHIBIT 23.2
CONSENT OF RICHARD A. EISNER & COMPANY, LLP.
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INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated February 19, 1999 on our audit of the financial
statements of Steven Madden, Ltd. included in the Annual Report on Form 10-K for
the year ended December 31, 1998.
New York, New York
September 8, 1999
