Securities Registration: Employee Benefit Plan (s-8)
May 31 2019 - 4:34PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May 31, 2019.
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
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13-3588231
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(State
or other jurisdiction
of
incorporation or organization)
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(IRS
Employer
Identification
Number)
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52-16
Barnett Avenue
Long Island
City, New York 11104
(718) 446-1800
(Address of
Principal Executive Offices, Zip Code)
STEVEN
MADDEN, LTD. 2019 INCENTIVE COMPENSATION PLAN
(Full Title
of Plan)
Edward
R. Rosenfeld
Chief Executive
Officer
Steven Madden,
Ltd.
52-16 Barnett
Avenue
Long Island
City, New York 11104
(718) 446-1800
(Name, address
and telephone number of agent for service)
With
a copy to:
Michele F.
Vaillant, Esq.
McCarter &
English, LLP
Four Gateway
Center
100 Mulberry
Street
Newark, New
Jersey 07102
Tel. (973)
622-4444
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an
emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer
x
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Accelerated
filer
o
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Non-accelerated
filer
o
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Smaller
reporting company
o
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Emerging
growth company
o
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
o
CALCULATION
OF REGISTRATION FEE
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
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Amount of
Registration Fee
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Common
Stock, par value $.0001 per share
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11,000,000
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$30.14
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$331,540,000
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$40,182.65
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(1)
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This
registration statement covers 11,000,000 shares of the registrant’s common stock, par value $0.001 per share, authorized
to be issued under the Steven Madden, Ltd. 2019 Incentive Compensation Plan (the “
Plan
”). This
registration statement also covers any additional shares of common stock which become issuable under the Plan by reason of
any stock dividend, stock split, recapitalization or other similar transaction effected without the registrant’s receipt
of consideration, which results in an increase in the number of outstanding shares of the registrant’s common stock.
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(2)
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Based
on the average of the high and low price of the Registrant’s common stock on May 29, 2019 as reported by The Nasdaq
Stock Market Inc., used solely for the purpose of calculating the registration fee pursuant to paragraph (c) and (h)(1) of
Rule 457 under the Securities Act of 1933, as amended.
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INTRODUCTION
T
his
Registration Statement on Form S-8 is filed by Steven Madden, Ltd. (the “Company”) to register the shares of the common
stock, par value $0.01 per share (the “
Common Stock
”), of the Company available for issuance under the Steven
Madden, Ltd. 2019 Incentive Compensation Plan (the “
Plan
”), which was approved by the Company’s stockholders
at the Annual Meeting of Stockholders on May 24, 2019. The Plan had been previously adopted by the Company’s Board of Directors
on February 25, 2019, subject to stockholder approval. The Plan provides for incentive compensation to non-employee directors,
officers, employees of, and individuals providing consulting or advisory services to, the Company, and is the successor to the
Company’s previously existing equity compensation plan, The Steven Madden, Ltd. Amended and Restated 2006 Stock Incentive
Plan (the “
Former Plan
”), the term of which expired on April 6, 2019. As of April 6, 2019, no further grants
may be made under the Former Plan. On its effective date, a total of 11,000.000 shares of Common Stock became available for issuance
under the Plan.
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 or given to employees eligible to participate in the Plan
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “
Securities Act
”). Such documents
need not be filed with the Securities and Exchange Commission (the “
Commission
”) either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These 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.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation
of Documents by Reference.
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The
following documents filed with the Commission by the Company pursuant to the Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”), are incorporated by reference in this Registration Statement:
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·
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31,
2018, filed with the Commission on February 28, 2019;
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·
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The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019,
filed with the Commission on May 8, 2019;
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·
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The
Registrant’s Current Reports on Form 8-K, filed on January 4, 2019, March 26, 2019,
April 26, 2019 and May 24, 2019;
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·
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The
Registrant’s Proxy Statement on Schedule 14A filed with the Commission on April
8, 2019; and
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·
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the
description of the Registrant’s Common Stock contained in the Company’s 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.
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All documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. To the extent that any information contained in any Current Report on Form 8-K, or
any exhibit thereto, is furnished to, rather than filed with, the Commission, such information or exhibit is specifically not
incorporated by reference in this Registration Statement.
Any statement
contained in a previously filed 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 incorporated or 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.
Item 4.
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Description
of Securities.
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Not
applicable.
Item 5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
Item 6.
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Indemnification
of Directors and Officers.
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The
Company is incorporated under the laws of the State of Delaware. Section 145 of
the Delaware General Corporation Law (the “
DGCL
”) provides that a
Delaware corporation may indemnify any persons who are, or are threatened to be made,
parties to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was an officer, director,
employee or agent of such corporation, or is or was serving at the request of such corporation
as a director, officer, employee or agent of another corporation or enterprise. The indemnity
may include expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such person acted in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, the corporation’s best
interests and, with respect to any criminal action or proceedings, had no reasonable
cause to believe that his or her conduct was illegal. Similar provisions apply to actions
brought by or in the right of the corporation, except that no indemnification shall be
made without judicial approval if the officer or director is adjudged to be liable to
the corporation. Where an officer or director is successful on the merits or otherwise
in the defense of any action referred to above, the corporation must indemnify him or
her against the expenses which such officer or director has actually and reasonably incurred.
Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance
on behalf of any indemnified person against any liability asserted against him or her
and incurred by him or her in any indemnified capacity, or arising out of his or her
status as such, regardless of whether the corporation would otherwise have the power
to indemnify him or her under the DGCL.
In addition,
Section 102(b)(7) of the DGCL authorizes a corporation to limit or eliminate its directors’ personal liability
to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, other than for:
(i) any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) acts or
omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (iii) any unlawful
payment of dividends, stock purchases, or redemption of shares; or (iv) any transaction from which the director derived
an improper personal benefit.
Article
NINTH of the Certificate of Incorporation of the Company provides that the personal liability of the directors of the
Company is eliminated to the fullest extent permitted by Section 102(b)(7) of the DGCL, Further, Article TENTH of the
Certificate of Incorporation indicates that the Company shall indemnify such persons whom it shall have power to indemnify
to the fullest extent permitted by Section 145 of the DGCL.
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In addition,
the Company maintains directors’ and officers’ liability insurance, which insures against liabilities that its directors
and officers may incur in such capacities.
Item 7.
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Exemption
from Registration Claimed.
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Not
applicable.
The Exhibits
to this Registration Statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.
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:
(a)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(b)
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 the volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(c)
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 (a) and (b) above do not apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the Commission pursuant to Section 13 or Section 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, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of the 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.
The undersigned
registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement 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.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the 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 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 and will
be governed by the final adjudication of such issue.
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 Long Island City, State of New York on May 31, 2019.
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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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POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Edward R. Rosenfeld and Arvind Dharia, and each of them,
as attorneys-in-fact and agents, with full power of substitution, for and in the name, place and stead of the undersigned, in
any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on
Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto each such attorney-in-fact and agent full power and authority to do an perform each and every
act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming each act that said attorney-in-fact and agent may lawfully do or cause to be done by virtue thereof.
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.
Signature
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Title
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Date
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/s/
Edward R. Rosenfeld
Edward
R. Rosenfeld
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Chairman
of the Board, Chief Executive Officer and Director (Principal Executive Officer)
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May
28, 2019
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/s/
Arvind Dharia
Arvind
Dharia
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Chief
Financial Officer
(Principal
Financial Officer)
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May
28, 2019
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/s/
Amelia Newton Varela
Amelia
Newton Varela
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Director
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May 28, 2019
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/s/
Peter Migliorini
Peter
Migliorini
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Director
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May
28, 2019
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/s/
Richard P. Randall
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Director
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May
30, 2019
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Richard
P. Randall
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/s/
Ravi Sachdev
Ravi
Sachdev
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Director
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May
28, 2019
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/s/
Thomas H. Schwartz
Thomas
H. Schwartz
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Director
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May
28, 2019
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/s/
Rose Lynch
Rose
Lynch
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Director
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May
29, 2019
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/s/
Robert Smith
Robert
Smith
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Director
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May
29, 2019
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/s/
Mitchell S. Klipper
Mitchell
S. Klipper
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Director
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May
28, 2019
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EXHIBIT INDEX
Exhibit
No.
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Description
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4.1
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Provisions of the Certificate
of Incorporation of Steven Madden, Ltd., as amended, that define the rights of the security holders of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 2013 filed with the Commission on August 8, 2013).
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4.2
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Provisions of the Certificate
of Amendment to the Certificate of Incorporation of Steven Madden, Ltd. that define the rights of the security holders of
the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Commission
on May 24, 2019).
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4.3
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Provisions of the Amended
& Restated By-Laws of Steven Madden, Ltd. that define the rights of the security holders of the Company (incorporated
by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2017 filed with
the Commission on August 4, 2017).
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4.4
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Steven Madden, Ltd.
2019 Incentive Compensation Plan, effective February 25, 2019 (incorporated by reference to Annex A to the Company’s
Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 8, 2019).
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5.1
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Opinion of McCarter
& English, LLP as to the legality of the securities being registered.
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23.1
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Consent of EisnerAmper
LLP, an independent registered public accounting firm.
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23.2
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Consent of McCarter
& English, LLP (included in the opinion filed as Exhibit 5.1).
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24.1
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Power of Attorney (included
on the signature page to this Registration Statement).
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