Current Report Filing (8-k)
March 16 2015 - 1:11PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date
of Report: March 11, 2015
(Date of earliest event reported)
STEVEN
MADDEN, LTD.
(Exact Name of Registrant as Specified in Charter)
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Delaware |
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000-23702 |
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13-3588231 |
(State
or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS
Employer
Identification No.) |
52-16
Barnett Avenue, Long Island City, New York 11104 |
(Address
of Principal Executive Offices) (Zip Code) |
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Registrant’s
telephone number, including area code: (718) 446-1800
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. |
Departure of
Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers. |
(e) On March 11, 2015, Steven Madden, Ltd. (the "Company") entered into an employment agreement with Robert Schmertz, the Company's Brand Director (the "Schmertz Employment Agreement"). The Schmertz Employment Agreement, the full text of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference, replaces an employment agreement with Mr. Schmertz that expired by its terms on December 31, 2014. Pursuant to the Schmertz Employment Agreement, Mr. Schmertz will continue to serve as Brand Director of the Company for a term commencing on March 9, 2015 and expiring on December 31, 2016, unless sooner terminated in accordance with the Schmertz Employment Agreement. Mr. Schmertz will receive an annual salary of $761,250 and a monthly car allowance of $1,500 during the term of the Schmertz Employment Agreement. In addition, pursuant to the Schmertz Employment Agreement, within two weeks of the execution of the Schmertz Employment Agreement, Mr. Schmertz will receive an award of 20,000 shares of the Company's common stock, $0.0001 per share, subject to certain restrictions (the "Restricted Common Stock"), issued under the Steven Madden, Ltd, 2006 Stock Incentive Plan, as amended. The Restricted Common Stock will vest in three substantially equal annual installments commencing on the third anniversary of the grant date. Additional compensation and bonuses, if any, are at the absolute discretion of the Company's Board of Directors.
The Company may terminate the Schmertz Employment Agreement with or without Cause (as such terms are defined therein). In the event that the Company terminates the Schmertz Employment Agreement for Cause, Mr. Schmertz would be entitled to receive only his accrued and unpaid base salary through the date of termination. In the event that Mr. Schmertz's employment is terminated by the Company without Cause, Mr. Schmertz would be entitled to receive payment of his annual salary, payable at regular payroll intervals, from the date of termination through the remainder of the term. In addition, if Mr. Schmertz's employment is terminated by the Company without Cause during the period commencing 30 days prior to a Change of Control (as such term is defined in the Schmertz Employment Agreement) and ending 180 days after a Change of Control, he would be entitled to receive an amount equal to the lesser of (i) three times the average amount of total compensation actually received by him during the preceding three calendar years and (ii) the maximum amount that is tax deductible to the Company under Section 280G of the Internal Revenue Code, such amount to be in lieu of, and not in addition to, any other payments to which he would be entitled in the event of the termination of his employment.
The foregoing description of the Schmertz Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Employment Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
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Item 9.01. |
Financial Statements
and Exhibits. |
Exhibit |
Description |
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10.1 |
Employment Agreement, dated March 11, 2015, between the Company and Robert Schmertz |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated:
March 16, 2015
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STEVEN
MADDEN, LTD. |
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By: |
/s/
Edward R. Rosenfeld |
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Edward R.
Rosenfeld |
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Chief Executive
Officer |
Exhibit 10.1
March 11, 2015
Dear Mr. Schmertz:
This letter
(the “Agreement”) will set forth below the terms and conditions of your employment with Steven Madden, Ltd. (the “Company”):
| 1. | Term
of Agreement. March 9, 2015 through December 31, 2016 unless sooner terminated in
accordance with Paragraph 7 of this Agreement (the “Term”). |
| 2. | Position.
Brand Director. You shall report to the Chief Executive Officer or such other person
as the Chief Executive Officer shall direct. You shall expend all of your working time
to the Company and shall devote your best efforts, energy and skills to the Company and
the promotion of its interests; you shall not take part in any activities detrimental
to the best interest of the Company. |
| 3. | Salary.
$761,250 per annum (paid in accordance with normal Company practice) from March 9, 2015
through December 31, 2016. |
| 4. | Discretionary
Bonuses. The Company may pay you a bonus in such amount, if any, and at such time
or times, as the Board of Directors may determine in its absolute discretion subject
to the Company’s ordinary payroll practice. |
| 5. | Car
Allowance. You shall receive a car allowance of $1,500 per month. |
| 6. | Restricted
Stock. Within two weeks of signing of this Agreement, you shall be granted 20,000
shares of restricted stock. The shares shall vest 33⅓ % on the third anniversary
of the grant date; 33⅓ % on the fourth anniversary of the grant date; and 33⅓
% on the fifth anniversary of the grant date. |
| (a) | Involuntary
Termination. The Company has the right to terminate your employment, on written notice
to you, at any time without Cause (as defined below). In the event the Company terminates
your employment without Cause, then the Term shall terminate immediately, and you shall
be entitled to receive only Salary payments described in Paragraph 3, at the regular
intervals of payment, from the date of termination through the date this Agreement would
have otherwise terminated but for the involuntary termination. |
| (b) | Voluntary
Termination by you or Termination for Cause. You shall have the right to terminate
your employment at any time for any reason (“Voluntary Termination”) and
the Company shall have the right to terminate your employment at any time for Cause,
on written notice to you, setting forth in reasonable detail the facts and circumstances
resulting in the Cause upon which such termination is based. In the event of a Voluntary
Termination or a termination by the Company for Cause, the Term shall terminate immediately
and you shall be entitled only to any accrued and unpaid Salary described in Paragraph
3 through the date of termination. For the purpose of this Agreement, Cause shall mean: |
| (i) | a
material breach by you of your material duties or obligations to the Company which is
not remedied to the reasonable satisfaction of the Company within ten (10) days after
the receipt by you of written notice of such breach from the Company; |
| (ii) | you
are convicted of, or enter a guilty or “no contest” plea with respect to
a felony or a crime of mural turpitude (whether or not a felony); |
| (iii) | you
have an alcohol or substance abuse problem, which in the reasonable opinion of the Company
materially interferes with your ability to perform your duties; |
| (iv) | any
act or acts of personal dishonesty, fraud, embezzlement, misappropriation or conversion
intended to result in your personal enrichment at the expense of the Company, or any
of its subsidiaries or affiliates, or any other material breach or violation of fiduciary
duty owed to the Company, or any of its subsidiaries or affiliates; |
| (v) | any
grossly negligent act or omission or any willful and deliberate misconduct by you that
results, or is likely to result, in material economic, or other harm, to the Company,
or any of its subsidiaries or affiliates; or |
| (vi) | you
violate or pay fines, suffer sanctions or injunctive relief relating to (whether or not
you are found to have violated) any federal or state securities laws, rules or regulations
or the rules and regulations of any stock exchange on which the Company is listed or
included. |
| (c) | Disability.
You shall be considered to be “Disabled” if, in the Company’s reasonable
opinion after receiving the written report of an independent physician selected by the
Company, you are incapable, due to mental or physical disability, of performing the essential
functions of your duties for a period of sixty (60) days (whether or not consecutive)
during any period of one hundred twenty (120) days. In the event you shall become Disabled
during the Term, the Company may terminate your employment and the Term and the Company
shall have no further obligation or liabilities to you, except (i) payment of accrued
and unpaid Salary described in Paragraph 3 through the date of termination plus (ii)
Salary payments described in Paragraph 3, at the regular intervals of payment for the
twelve (12) month period immediately subsequent to the date of your termination. |
| (d) | Death.
In the event of your death, your employment and the Term shall terminate immediately
and the Company shall have no further obligation or liabilities to you or your estate
except that your estate shall be entitled to receive (i) payment of accrued and unpaid
Salary described in Paragraph 3 through the date of termination plus (ii) Salary payments
described in Paragraph 3, at the regular intervals of payment for the twelve (12) month
period immediately subsequent to the date of your death. |
| (e) | Change
of Control. The term “Change of Control”, as used herein, shall mean
when any person or group (excluding the Company or any of its affiliates) becomes the
beneficial owner of securities representing 50% or more of the combined voting power
of the Company’s then outstanding securities. If, during the period commencing
30 days prior to a Change of Control and ending 180 days after a Change of Control, you
are terminated by the Company other than for Cause, you are entitled to receive an amount
equal to the lesser of (i) the average amount of total compensation actually received
by you for the preceding three calendar years multiplied by 3 or (ii) the maximum amount
which is tax deductible to the Company under Internal Revenue Code Section 280G. The
foregoing shall be in lieu of, and not in addition to, any other payments or compensation
you would otherwise be entitled to hereunder as a result of your termination. |
| (f) | Termination
Payment. Provided the Company makes the payments required under this Agreement that
are attributable to the termination of your employment, such payments shall be in full
and complete satisfaction and release of any and all claims you or your beneficiaries,
estate or legal representatives may have against the Company and/or its subsidiaries
or affiliates hereunder. Notwithstanding anything contained in this Agreement, the Company
shall have no obligation to make any payment to you under this Agreement unless and until
you execute and deliver to the Company a general release from any and all liability and
all applicable periods of time have expired such that the Company shall irrevocably be
entitled to enjoy the benefits of the aforementioned release. |
| 8. | Non-Solicitation/Non-Competition
Agreement. You recognize that the services to be performed by you hereunder are special
and unique you acknowledge that the restrictions set forth in this Paragraph 8 and in
Paragraphs 9, 10 and 11 of this Agreement are fair and reasonable. In consideration of
the compensation granted herein, you agree that, through December 31, 2017, you shall
not, directly or indirectly, anywhere in the United States, whether individually or as
a principal officer, employee, partner, member, director or agent of, or consultant for,
any person or entity: (i) become employed by, an owner of, or otherwise affiliated with,
or furnish services to, any business that competes with the Company, (ii) solicit any
business from any customers of the Company, or (iii) hire, offer to hire, entice away,
or in any manner persuade or attempt to persuade any employee of the Company to discontinue
his/her employment with the Company or any other party that has a business relationship
with the Company to discontinue his/her/its business relationship with the Company. |
| 9. | Discoveries.
You agree to disclose promptly in writing to the Board of Directors of the Company all
ideas, processes, methods, devices, business concepts, inventions, improvements, discoveries,
know-how and other creative achievements (hereinafter referred to collectively as “Discoveries”)
to the extent such Discoveries have been reduced to practice, in whole or in part, whether
or not the same or any part thereof is capable of being patented, trademarked, copyrighted,
or otherwise protected, which you, while employed by the Company, conceive, make, develop,
acquire or reduce to practice, whether acting alone or with others and whether during
or after usual working hours, and which are related to the Company’s business or
interests, or are used or usable by the Company, or arise out of or in connection with
the duties performed by you. You hereby transfer and assign to the Company all right,
title and interest in and such Discoveries that are conceived, made, developed, acquired
or reduced to practice during your employment with the Company, including any and all
domestic and foreign copyrights and patent and trademark rights therein and any renewals
thereof. On request of the Company, You will, without any additional compensation, from
time to time during, and after the expiration or termination of, the Term, execute such
further instruments (including applications for copyrights, patents, trademarks and assignments
thereof) and do all such other acts and things as may be deemed necessary or desirable
by the Company to protect and/or enforce its rights in respect of such Discoveries. All
reasonable expenses incurred by you in complying with the Company’s request and
all expenses of filing or prosecuting any patent, trademark or copyright application
shall be borne by the Company, but you shall cooperate in filing and/or prosecuting any
such application. |
| 10. | Covenant
Not to Disclose. You covenant and agree that you will not at any time during or after
the Term, reveal, divulge or make known to any person (other than (i) to the Company,
or (ii) in the regular course of business of the Company) or use for your own account
any confidential or proprietary records, data, processes, ideas, methods, devices, business
concepts, inventions, discoveries, know-how, trade secrets or any other confidential
or proprietary information whatsoever (the “Confidential Information”) previously
possessed or used by the Company or any of its subsidiaries or affiliates, (whether or
not developed, devised or otherwise created in whole or in part by your efforts) and
made known to you by reason of your employment by or affiliation with the Company. You
further covenant and agree that you shall retain all such knowledge and information which
you shall acquire or develop respecting such Confidential Information in trust for the
sole benefit of the Company and its successors and assigns. Additionally, you agree that
all right, title and interest in and to any discoveries, processes, ideas, methods and/or
business concepts that you develop during the Term relating to the business of the Company
are, and shall remain the property of the Company, and you hereby assign to the Company
any right, title and interest you might otherwise claim therein. |
| 11. | Business
Materials, Covenant to Report. All written materials, records and documents made
by you or coming into your possession concerning the business or affairs of the Company
shall be the sole property of the Company and, upon the termination or expiration of
your employment with the Company or upon the request of the Company at any time, you
shall promptly deliver the same to the Company and shall retain no copies thereof. You
agree to render to the Company such reports of your activities or activities of others
under your direction during the Term as the Company may request. |
| 12. | Governing
Law; Injunctive Relief. |
| 12.1 | The validity, interpretation,
and performance of this Agreement shall be controlled by and construed under the laws of the State of New York, excluding choice
of law rules thereof. |
| 12.2 | You
acknowledge and agree that, in the event you shall violate any of the restrictions of
Paragraphs 8, 9, 10 or 11 hereof, the Company will be without an adequate remedy at law
and will therefore be entitled to enforce such restrictions by temporary or permanent
injunctive or mandatory relief in any court of competent jurisdiction without the necessity
of proving damages or posting a bond or other security, and without prejudice to any
other remedies which it may have at law or in equity. Each of you and the Company acknowledges
and agrees that, in addition to any other state having proper jurisdiction, any such
relief may be sought in, and for such purpose each of you and the Company consents to
the jurisdiction of, the courts of the State of New York. |
| 13. | Assignment.
This Agreement, as it relates to your employment, is a personal contract and your rights
and interests hereunder may not be sold, transferred, assigned, pledged or hypothecated. |
| 14. | Notices.
Any and all notices or other communications or deliveries required or permitted to be
given or made pursuant to any of the provisions of this Agreement shall be deemed to
have been duly given or made for all purposes when hand delivered or sent by certified
or registered mail, return receipt requested and postage prepaid, overnight mail or courier,
or facsimile, addressed, if to the Company, at the Company’s offices, Attn: President,
and if to you, at the address of your personal residence as maintained in the Company’s
records, or at such other address as any party shall designate by notice to the other
party given in accordance with this Paragraph 14. |
| 15. | Entire
Agreement. This Agreement represents the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof, supersedes all prior agreements
between such parties with respect to the subject matter hereof, and cannot be amended,
supplemented or modified orally, but only by an agreement in writing signed by the party
against whom enforcement of any such amendment, supplement or modification is sought. |
| 16. | Execution
in Counterparts; Signatures; Severability. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute
one and the same instrument. Facsimile or electronic mail signatures hereon shall constitute
original signatures. If any provisions of this Agreement as applied to any part or to
any circumstance shall be adjudged by a court to be invalid or unenforceable, the same
shall in no way affect any other provision of this Agreement, the application of such
provision in any other circumstances or the validity or enforceability of this Agreement. |
| 17. | Representation
by Counsel; Interpretation. Each party acknowledges that it has been represented
by counsel or has had the opportunity to be represented by counsel in connection with
this Agreement and the transactions contemplated by this Agreement. Accordingly, any
rule or law or any legal decision that would require interpretation of any claimed ambiguities
in this Agreement against the party that drafted it has no application and is expressly
waived by such parties. The provisions of this Agreement shall be interpreted in a reasonable
manner to effect the intent of the parties hereto. |
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STEVEN MADDEN, LTD. |
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Signature: |
By: |
/s/ Edward R. Rosenfeld |
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Edward R. Rosenfeld, CEO |
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Counter-signature: |
/s/ Robert Schmertz |
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Robert Schmertz |
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