- Securities Registration: Employee Benefit Plan (S-8)
July 10 2009 - 4:14PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on ___________ __, 2009
Registration No.
333-[●]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
STEVEN MADDEN, LTD.
(Exact Name of
Registrant as Specified in Its Charter)
Delaware
(State or Other
Jurisdiction of Incorporation or Organization)
13-3588231
(I.R.S. Employer
Identification No.)
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52-16
Barnett Avenue, Long Island City, New York
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11104
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(Address of Principal Executive Offices)
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(Zip Code)
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Steven
Madden, Ltd. 2006 Stock Incentive Plan
(Full Title of the
Plan)
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Edward
R. Rosenfeld
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Copy
to:
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Chief
Executive Officer
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Steven
Madden, Ltd.
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Steven
J. Kuperschmid, Esq.
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52-16
Barnett Avenue
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Certilman
Balin Adler & Hyman, LLP
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Long
Island City, New York 11104
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90
Merrick Avenue
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(Name and
Address of Agent for Service)
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East
Meadow, New York 11554
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(516)
296-7055
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(718)
446-1800
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(Telephone
Number, Including Area Code, of Agent For Service)
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
the definitions of large accelerated filer, accelerated filer and smaller
reporting company in Rule 12b-2 of the Exchange Act.
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(Check one):
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Large accelerated filer
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Accelerated filer
x
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Non-accelerated filer
o
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Smaller reporting company
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CALCULATION
OF REGISTRATION FEE
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Title Of Securities
To Be Registered
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Amount To Be
Registered
(1)
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Proposed Maximum
Offering Price
Per Share
(2)
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Proposed Maximum
Aggregate
Offering Price
(2)
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Amount Of
Registration Fee
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Common Stock, par value $0.0001 per share
(3)
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2,864,000
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$
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24.375
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$
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69,810,000
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$
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3,895.40
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(1)
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This Registration Statement
covers an additional 2,864,000 shares available for issuance under the Steven Madden, Ltd. 2006 Stock Incentive
Plan as amended and restated effective May 22, 2009 (the 2006 Plan) and reflects
the 3-for-2 stock split that became effective May 25, 2006. This Registration
Statement shall also cover any additional shares of common stock of the
Registrant that become issuable under the 2006 Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction that results in an increase in the number of the
outstanding shares of common stock of the Registrant.
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(2)
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Calculated solely for
purposes of the registration fee for this offering in accordance with
paragraph (c) and (h)(1) of Rule 457 of the Securities Act of 1933, on the
basis of the average of the high and low prices of the registrants common
stock as reported by The NASDAQ
Stock Market on July 6,
2009.
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(3)
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Each share is accompanied
by a preferred stock purchase right pursuant to the Rights Agreement between
the Registrant and American Stock Transfer & Trust Company dated November
14, 2001. Until the occurrence of certain events specified in the Rights
Agreement, these rights are not exercisable, are evidenced by the
certificates for the common stock and are transferred solely with the common
stock. The value attributable to these rights, if any, is reflected in the
value of the common stock, and accordingly, no separate fee is paid.
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STATEMENT
PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8
Pursuant to General
Instruction E of Form S-8 under the Securities Act of 1933, as amended (the
Securities Act), this Registration Statement is filed by Steven Madden, Ltd.,
a Delaware corporation (the Company), to register an additional 2,864,000 shares of the Companys common stock, par
value $.0001 per share (the Common Stock), as to which options or awards may
be granted under the Companys 2006 Stock Incentive Plan as amended and
restated effective May 22, 2009 (the 2006 Plan).
On November 9, 2006, the
Company filed a Registration Statement on Form S-8 (Registration No.
333-138584) (the 2006 Registration Statement) in order to register 1,200,000
shares of Common Stock issuable under the Companys 2006 Stock Incentive Plan
as originally approved by the Companys stockholders on May 26, 2006 (the
Original 2006 Plan).
On May 25, 2007, the
Companys stockholders approved an amendment to the Original 2006 Plan to
increase the number of shares as to which options or awards may be granted from
1,200,000 to 1,550,000 shares, and on May 22, 2009, the Companys stockholders
approved an amendment and restatement of the Original 2006 Plan (as theretofore
amended) to increase the number of shares as to which options or awards may be
granted from 1,550,000 to 4,064,000 shares. This registration statement on Form
S-8 (the Registration Statement) is being filed to register the additional 2,864,000 shares of Common Stock issuable under the
2006 Plan.
Pursuant to General Instruction
E of Form S-8, the contents of the 2006 Registration Statement, including the
documents incorporated by reference therein, are hereby incorporated by
reference into this Registration Statement.
-2-
PART
I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the
information specified in Part I of Form S-8 will be sent out or given to
employees eligible to participate in the 2006 Plan as specified by Rule
428(b)(1) of the Securities Act. Those documents and the documents incorporated
by reference into this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
-3-
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by
Reference.
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The
following documents filed with the Securities and Exchange Commission (the
Commission) by Steven Madden, Ltd., a Delaware corporation (the Company or
the Registrant), are incorporated by reference herein:
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(a)
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the Companys Annual Report on Form 10-K for the
fiscal year ended December 31, 2008, filed with the Commission on March 12,
2009;
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(b)
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the Companys Quarterly Report on Form 10-Q for the
period ended March 31, 2009 (filed with the Commission on May 8, 2009);
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(c)
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the Companys Current Reports on Form 8-K, filed
with the Commission on March 17, 2009, April 10, 2009, April 23, 2009, May 5,
2009 and May 28, 2009;
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(d)
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the Companys 2009 Annual Proxy Statement on
Schedule 14A, filed with the Commission on April 9, 2009;
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(e)
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the description of the Companys Common Stock
provided in the Companys Registration Statement on Form SB-2, filed with the
Commission on August 5, 1993, including any amendments or reports filed for
the purpose of updating such description; and
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(f)
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the description of the Rights Agreement dated as of
November 14, 2001 between the Company and American Stock Transfer & Trust
Company, as Rights Agent, provided in the Companys Registration Statement on
Form 8-A, filed with the Commission on November 16, 2001, including any
amendments or reports filed for the purpose of updating such description.
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All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, subsequent to the effective date
of this Registration Statement, prior to the filing of a post-effective
amendment to this Registration Statement indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof
from the date of filing of such documents. In no event, however, will any
information that the Company discloses under Item 2.02 or Item 7.01 of any
Current Report on Form 8-K that the Company may from time to time furnish to
the Commission be incorporated by reference into, or otherwise become a part
of, this Registration Statement. Any statement contained in any 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 to constitute a part of this Registration Statement,
except as so modified or superseded.
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Item 4.
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Description of Securities
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Not
applicable.
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Item 5.
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Interests of Named Experts and
Counsel.
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Not
applicable.
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Item 6.
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Indemnification of Directors and
Officers.
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Reference
is made to Section 145 of the Delaware General Corporation Law (DGCL) which
provides for indemnification of directors and officers in certain circumstances.
Article
Ninth of the Companys Certificate of Incorporation eliminates the personal
liability of directors of the Company and its stockholders for monetary damages
for breach of fiduciary duty as a director except for liability of a director
(i) for breach of the directors duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL, or (v) for any transaction from which the director
derived an improper personal benefit.
Article
Tenth of the Companys Certificate of Incorporation states as follows:
The
Company shall, to the fullest extent permitted by Section 145 of the DGCL, 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 the heirs, executors, and administrators of such a person.
The
above discussion of the DGCL and of the Companys Certificate of Incorporation
is not intended to be exhaustive and is qualified in its entirety by such
statute and certificate of incorporation.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers or persons controlling the Company as
disclosed above, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is therefore unenforceable.
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Item 7.
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Exemption from Registration
Claimed.
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Not
applicable.
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Exhibit No.
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Description
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3.1
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Certificate of Incorporation of Steven Madden, Ltd.
(incorporated by reference to Exhibit 1 of the Registrants Current Report on
Form 8-K filed with the Commission on November 23, 1998).
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3.2
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Amended & Restated By-Laws of Steven Madden, Ltd
(incorporated by reference to Exhibit 99.1 of the Registrants Current Report
on Form 8-K filed with the Commission on March 28, 2008).
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4.1
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Rights Agreement between the Company and American
Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1
to the Companys Current Report on Form 8-K filed with the Commission on
November 16, 2001).
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5
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Opinion of Certilman Balin Adler & Hyman, LLP*
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23.1
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Consent of Eisner LLP.*
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23.2
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Consent of Certilman Balin Adler & Hyman, LLP
(included in Exhibit 5).
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Item 9.
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Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
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to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii)
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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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table in the effective
Registration Statement; and
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(iii)
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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.
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Provided,
however,
that: (A) paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement;
and (B) paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the
Registration Statement is on Form S-3 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the Registration Statement;
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(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 shall be deemed to be the initial
bona fide
offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities:
The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
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(i)
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any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used or referred to
by the undersigned Registrant;
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(iii)
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the portion of any other free writing prospectus
relating to the offering containing material information about the
undersigned Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
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(iv)
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any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
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(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrants
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 plans
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial
bona
fide
offering thereof.
(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 foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, State of New York on this ninth day of July, 2009.
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STEVEN MADDEN, LTD.
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By:
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/s/ Edward R. Rosenfeld
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Name:
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Edward R. Rosenfeld
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Title:
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Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the date
indicated.
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Signature
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Title
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Date
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/s/ Edward R. Rosenfeld
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Chairman of the Board, Chief Executive Officer and
Director (Principal Executive Officer)
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July 9, 2009
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Edward R. Rosenfeld
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/s/ Arvind Dharia
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Chief Financial Officer (Principal Accounting and
Financial Officer)
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July 9, 2009
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Arvind Dharia
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/s/ John L. Madden
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Director
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July 9, 2009
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John L. Madden
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/s/ Peter Migliorini
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Director
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July 9, 2009
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Peter Migliorini
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/s/ Richard P. Randall
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Director
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July 9, 2009
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Richard P. Randall
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Director
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Thomas H. Schwartz
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/s/ Ravi Sachdev
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Director
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July 9, 2009
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Ravi Sachdev
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-8-
EXHIBIT
INDEX
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Exhibit No.
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Description
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3.1
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Certificate of Incorporation of Steven Madden, Ltd.
(incorporated by reference to Exhibit 1 of the Registrants Current Report on
Form 8-K filed with the Commission on November 23, 1998).
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3.2
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Amended & Restated By-Laws of Steven Madden, Ltd
(incorporated by reference to Exhibit 99.1 of the Registrants Current Report
on Form 8-K filed with the Commission on March 28, 2008).
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4.1
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Rights Agreement between the Company and American
Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1
to the Companys Current Report on Form 8-K filed with the Commission on
November 16, 2001).
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5
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Opinion of Certilman Balin Adler & Hyman, LLP*
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23.1
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Consent of Eisner LLP.*
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23.2
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Consent of Certilman Balin Adler & Hyman, LLP
(included in Exhibit 5).
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-9-
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